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HON. FREDERICK PAUL HORNSuperior Court of Orange CountyUndergraduate: West L.A. University, 1972Law School: West L.A. Univ. Law, 1974Admitted to Practice:1974Appointed to the Bench:1993Appointed by: Pete Wilson, RepublicanCareerPolice Officer, City of Santa Monica, California, 1965-1971Career as an AttorneyDeputy District Attorney, Los Angeles County, California, (specialty: casesinvolving hard-core gang members and crimes against police officers), 1974-91Judicial OfficeSupervising Judge, Civil Unlimited Panel, Superior Court, OrangeCounty, California, 2006-Other Judicial OfficeJudge, Municipal Court, Harbor Judicial District, Orange County, California, 1991-93Assistant Presiding Judge, Superior Court, Harbor Judicial District, OrangeCounty (since 1993)Assistant Presiding Judge, Superior Court, Orange County, California, 2000-01Presiding Judge, Superior Court, Orange County, California, 2002-05

Organizational AffiliationsMember:California Continuing Judicial Studies Program Planning Committee, 2002-National Council of Metropolitan Courts, 2003- (Board of Directors, 2004)Probate Conservatorship Task Force, 2006-Chair, Commission of Judicial Performance, 2007-Chair, Judicial Council’s Emergency Response & Security Task Force, 2007-Former Member:Judicial Council’s Advisory Committee of Access & Fairness,1994-2001 (Chair, 1998-2001)New Judge Orientation Planning Committee, 1997-2000Crime Victims with Disabilites State Coordination Committee, 2001-02Rules & Project Committee, 2002Judicial Council, 2002 & 2005Judicial Council’s Task Force on Judicial Ethical Issues, 2002-04Litigation Management Committee, 2002-2005Chair, Judicial Council’s Trial Court Presiding Judges Advisory Committee,2002-06 (Vice-Chair, 2005-06 & Judicial member, 2003)Chair, Judicial Council’s Trial Court Presiding Judges, Executive Committee, 2003-06Advisory Committee of the National Judicial Education Program, 2003-06Executive & Planning Committee, 2003-06Trial Court Budget Working Group, 2004-06Court House Access Advisory Committee, 2004-07Temporary Judges Working Group, 2004-07Other InformationTeaching/Lectures/PanelistTeaching:California Continuing Judicial Studies Program, California1995-Faculty, B.E. Witkin Judicial College of California,, Berkeley, 1997-New Judges Education Program, 1998Former Instructor:National Judicial College, University of Nevada, RenoMilitary Service:U.S. Army, 1967-69

RULINGS ON LAW& MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5231) to notify thecourt that all parties are submitting on the tentative and no appearance will be necessary. The tentativewill then become the final ruling.If no one appears at the hearing the tentative will be the final ruling. Either side may appear and arguethe court’s tentative ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPAREAN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF APARTY OR THE CASE.TENTATIVE RULINGS ON LAW & MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31Date: Wednesday, May 22, 2013# Case Name4 2012-00601735Michael Colaco vs CavotecS.A.TENTATIVE RULING:The motion to compel further responses to FormRog 15.1 is continued to June 26, 2013. The parties areordered to further meet and confer and are to file a jointdeclaration regarding efforts made and/or anyoutstanding disputes. The declaration is to be filed atleast five court days prior to the continued hearingdate. The issue of sanctions will be reserved for the nexthearing. Moving party is to give notice.Plaintiff’s attorney Ram’s declaration 20 statesthat he received a voice message from defense attorneyGreenberg on 03/29/13 but there was nothing regardingamending the discovery responses. The motion was thensubsequently filed. Plaintiff’s attorney complains that noadditional responses were served, but clearly, defensecounsel was attempting to meet and confer when he left avoice message. Plaintiff’s position that either additionalresponses be served or a motion will be filed does notsupport a good faith effort to meet and confer, especiallywhen Plaintiff’s counsel does not aver he attempted tocontact defense counsel following the 03/29/13voicemail.The hearing will be continued and the parties areordered to further meet and confer regarding the issuespertaining to Form Rog 15.1.5 2013-00625916Jae Hwa Yoon vs EdwardYoonTENTATIVE RULING:The general demurrer of defendant Edward Yoon to thefirst and second causes of action in the first amendedcomplaint of plaintiff Jae Hwa Yoon is sustained with 20days’ leave to amend.The FAC contains two causes of action for civil conspiracyand fraud. The gravamen of the action is that defendantYoon, with the help of co-defendant Steele, eitherfabricated or forged a will by decedent Doo Hah Yoon orinduced decedent to execute a will when he wasincompetent to do so, and then stated to the family that

he and Duck Ja Yoon were the only beneficiaries of thedecedent’s estate under the will.As alleged, there is no cause of action for fraud. Theelements of fraud or deceit are: a representation, usuallyof fact, which is false, knowledge of its falsity, intent todefraud, justifiable reliance on the misrepresentation, anddamage resulting from the justifiable reliance. Stansfieldv. Starkey (1990) 220 Cal.App.3d 59, 72-73. Everyelement of the cause of action for fraud must be allegedin the proper manner and the facts constituting the fraudmust be alleged with sufficient specificity to allowdefendant to understand fully the nature of the chargemade. Id. at p. 73.As pointed out by the moving defendant, the FAC doesnot show that the moving defendant made anymisrepresentations or that the plaintiff was induced totake any action as the result of the misrepresentations.The first cause of action for civil conspiracy is alsolacking. If the plaintiff elects to sue on the theory ofconspiracy, the complaint should allege: (1) the formationand operation of the conspiracy; (2) the wrongful facts oract of the conspirators under the conspiracy; and (3) theresulting damage. 5 Witkin, Cal.Proc. (5th ed. 2008),Pleading, § 922, p. 336.Here, the alleged wrong is the fabrication of thedecedent’s will. However, the FAC indicates that therehave been no resulting damages as a result of the allegedfabrication. While the FAC alleges that defendant Yoon“planned” to have the will “executed” in South Korea, italso alleges that the South Korean courts have questionedthe validity of the will (and have not yet acknowledged itsvalidity). See FAC at 29.To the extent that plaintiff seeks to challenge the validityof the will, appropriate remedies may be available throughthe Probate Court rather than civil remedies availablethrough this Court.8 2011-00494335Tami Wang vs WestgateResorts IncTENTATIVE RULING:The motion of specially appearing defendants WestgateResorts Anaheim, Inc., Westgate Flamingo Bay, LLC, andCFI Sales and Marketing, Inc., for an order quashingservice of the summons and first amended complaint ofplaintiff Tami Wang is denied without prejudice fordefendants to raise the Code Civ. Proc. § 474 issue at trialor by appropriate motion.Plaintiff’s objections to the supplemental declaration ofBrian Siegel are all overruled.Defendants move to quash service of the summons andfirst amended complaint under Code Civ. Proc. §§418.10(a)(1) and 474. They contend that they are allFlorida corporations who have sufficient minimumcontacts with California for this Court to exercise personaljurisdiction over them. They also contend that plaintiffhas improperly substituted them in as Doe defendantsbecause she was aware of their identities when her causeof action accrued and that she named them after the

limitations period lapsed.A motion under subdivision (a)(1) of section 418.10challenges the Court’s exercise of jurisdiction over thedefendant. When a defendant moves to quash service ofsummons for lack of jurisdiction, the burden of proof is onthe plaintiff to establish the facts of jurisdiction by apreponderance of the evidence. Kroopf v. Guffey (1986)183 Cal.App.3d 1351, Thomas J. Palmer, Inc. v. TurkiyeIs Bankasi, A.S. (1980) 105 Cal.App.3d 135, 146.A state may exercise jurisdiction over a nonresidentdefendant if the defendant has sufficient “minimumcontacts” with the forum such that the maintenance of thesuit does not offend traditional notions of fair play andsubstantial justice. International Shoe Co. v. Washington(1945) 326 U.S. 310, 316. It is essential that there besome act by which the defendant purposefully avails itselfof the privilege of conducting activities within the forumstate, thus invoking the benefits and protections of itslaws. Pedus Building Services v. Allen (2002) 96Cal.App.4th 152, 162.Personal jurisdiction can be either general or specific. Anonresident defendant is subject to the forum’s generaljurisdiction if its contacts are substantial, continuous, andsystematic. Vons Companies v. Seabest Foods, Inc.(1996) 14 Cal.4th 434, 445. In that situation, the causeof action need not be related to the defendant’scontacts. Ibid.Specific jurisdiction arises when: (1) the defendant haspurposefully availed himself or herself of forum benefitswith respect to the matter in controversy; (2) thecontroversy is related to or arises from the defendant’scontacts with the forum; and (3) the exercise ofjurisdiction would comport with fair play and substantialjustice. Pavlovich v. Superior Court (2002) 29 Cal.4th262, 269.The moving papers contend that all three defendants areFlorida corporations with their principal offices in Orlando,Florida. They also contend that the defendants do notconduct any business in California, do not have anyoffices, employees, bank accounts, or property inCalifornia with the exception of an interest of airspace inAnaheim.However, the opposition has submitted evidence showingthat, while defendant Westgate Resorts Anaheim, Inc., isa Florida corporation with offices in Orlando, it has morethan an interest in airspace in Anaheim. Specifically, ithas entered into a contract with the City of Anaheim tobuild and complete an 866-room resort in Anaheim by2019. (See Exhibit B to opposition at pp. 3 and 4.) Inaddition, the registration filed by Westgate ResortsAnaheim with the Secretary of State (Exhibit M to theopposition) shows that this defendant’s principal office inCalifornia is in Anaheim. Thus, the plaintiff has shownthat defendant Westgate Resorts Anaheim has a physicalpresence in Orange County sufficient for the Court toexercise personal jurisdiction over it.

With respect to defendant Westgate Flamingo Bay, whichis apparently the owner and operator of the resort in LasVegas where plaintiff was injured, plaintiff has submittedevidence indicating that this defendant has an interactivewebsite through which California residents can makereservations and enter into contracts.According to Snowney v. Harrah’s Entertainment, Inc.(2005) 35 Cal.4th 1054, which is cited by plaintiff in heropposition, internet presence can constitute purposefulavailment. The court said that where the defendant hasan interactive website where a user can exchangeinformation with the host computer, “’the exercise ofjurisdiction is determined by examining the level ofinteractivity and commercial nature of the exchange ofinformation that occurs on the Web site.’ [Citation.]” Id.at p. 1063.Here, plaintiff has shown that the West Flamingo Baywebsite has functions for making and confirmingreservations and shows the proximity of the resort to LosAngeles and gives directions. (See declaration of RobertS. Doble and Exhibits E and F.) Plaintiff has also shownthat West Flamingo Bay’s responses to specialinterrogatories that Californians made approximately 4455reservations with the defendant in the last three yearsand entered into approximately 552 contracts with thedefendants. Although the reply indicates that thesereservations and contracts are but a fraction of the totalnumber made over the course of a three-year period,4455 reservations and 552 contracts are not insignificantnumbers and show that this defendant is purposefullyavailing itself of the privilege of conducting business inCalifornia. Plaintiff apparently became aware of thesemarketing efforts even if she made her reservationsthrough a third party, as she was a guest at the resort.With respect to defendant CFI Sales and Marketing,plaintiff has shown that it is a registered “telephoneseller” in California and actively makes sales calls toCalifornia residents. (See Exhibits K and L toopposition.) This shows that this defendant is alsopurposefully availing itself of the privilege of conductingbusiness in California to attract visitors and timesharepurchases for the Westgate Resorts.To the extent that the defendants claim that plaintiffimproperly added them as defendants after the statute oflimitations, they cite Code Civ. Proc. § 474, which is thecode section that permits a plaintiff to sue a defendant bya fictitious name when he or she is ignorant of thedefendant’s name, and Motor City Sales v. Superior Court(1973) 31 Cal.App.3d 342, 346, and Maier Brewing Co. v.Flora Crane Service, Inc., (1969) 270 Cal.App.2d 873,875. Motor City Sales makes a passing statement at p.346 that a defendant “can attack the legitimacy of his [orher] being named fictitiously by way of motion to quash,to strike, to set aside a default, or for summaryjudgment.” Likewise, Maier Brewing Company states at p.875 that “[i]f the terms of Code of Civil Procedure section474 have not been complied with, the purported

defendant has not been named as such in the complaint.A service upon one not named in a complaint does notconfer jurisdiction to proceed upon the complaint againsthim, and a motion to quash is proper.”However, the original complaint alleges that plaintiff wasignorant of the true names and capacity of defendantssued as Does 31 through 50 but that such Does were“Partnerships or limited partners with control over, orresponsibility for, the Westgate Flamingo BayResort.” (Complaint, 5.) The first amended complaintalleges that plaintiff is replacing Does 31, 32, and 33 withdefendants Westgate Flamingo Bay, Westgate ResortsAnaheim, LLC, and CFI Sales and Marketing, Inc. (FAC, 3-5.)Thus, on their faces, the original and first amendedcomplaints comply with Code Civ. Proc. § 474. Whetheror not plaintiff actually was ignorant of the names of thesedefendants and their involvement is a question of factthat is more appropriately decided at trial or through anevidentiary motion. See Hazel v. Hewlett (1988) 201Cal.App.3d 1458, 1465. A motion to quash is not theproper proceeding in which to test the legal or factualmerits of a complaint. J.M. Sahlein Music Co. v. NipponGakki Co. (1987) 197 Cal.App.3d 539, 545; Regents ofthe University of New Mexico v. Superior Court (1975) 52Cal.App.3d 964, 970, fn. 7 (“Special appearances are notproper occasions for testing the legal or factual merits of acomplaint.”).As such, the motion is denied without prejudice fordefendants to raise the issue of whether they wereproperly added to the action under Code Civ. Proc. § 474.9 2012-00589490Susan O’Neill vsVeterinary SurgicalSpecialists IncTENTATIVE RULING:1. The Demurrer of Defendant Advanced CriticalCare to the Third Amended Complaint is sustained withoutleave to amend as to the 1 st (veterinary malpractice), 2 nd(fraud), and 3 rd (negligence) causes of action. Thedemurrer to the 4 th cause of action for breach of contractis overruled. Defendant’s Request for Judicial Notice of(1) the date plaintiff filed her original complaint; (2) theallegations of the 3AC; (3) the fact that 12-4-10 fell on aSaturday; and (4) the court’s 3-6-13 minute order aregranted. Request for Judicial Notice #5, for judicial noticeof the court’s tentative ruling re the demurrer to the 2ACis denied as the tentative ruling attached by defendant isthe 11-28-12 tentative regarding the challenges to theFAC, not the 2-27-13 tentative for the challenges to the2AC.2. The Motion to Strike of Defendant AdvancedCritical Care is granted without leave to amend as toRequests 1-3 and 10-13. Requests 4-9 are moot as theresult of the court’s ruling on the demurrer. Defendant’sRequest for Judicial is granted as to (1) the court’s 3-6-13minute order and denied as to (2) the court’s tentativeruling on the Motion to Strike the 2AC as this 2-27-13tentative ruling is not attached. The tentative attached isfor the Motion to Strike the FAC heard on 11-28-12.

general demurrer. [Emphasis added.]” (Saliter v. PierceBrothers Mortuaries (1978) 81 Cal.App.3d 292,297.) Thus, plaintiff is held to both her actual knowledgeand the knowledge that could reasonably be discoveredthrough investigation of sources open to her. (Miller v.Lakeside Village Condominium Assn. (1991) 1 Cal.App.4th1611, 1629.)The problem with plaintiff’s delayed discoveryargument is two-fold. First, the statute does not toll untilthe plaintiff actually discovers that wrongs have beencommitted. The delayed discovery rule “postponesaccrual of a cause of action until the plaintiff discovers, orhas reason to discover, the cause of action.” (Fox v.Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797,807.) Here, plaintiff has alleged facts showing why shedid not act on her reasonable suspicionssooner. However, she has not alleged facts showing thatshe harbored no reasonable suspicions back in December2010. In fact, plaintiff’s detailed allegations regardingdefendant’s treatment of Storm and plaintiff’s frustration,at the time, with defendant’s delay in performing theultrasound (3AC; 12), indicates plaintiff reasonablysuspected her cat was not being properly treated at thetime of treatment.Further, plaintiff’s decision to conduct research inmid-August 2011 indicates her suspicion of wrongdoingpre-existed that date as plaintiff has not alleged that anynew facts came to light in August 2011 that caused her tobegin investigating. Plaintiff instead asserts that herother obligations reasonably had to take precedence untilthen – and that leads to the second problem withplaintiff’s delayed discovery argument – time constraintsbased on family obligations and work do not appear to befacts which delay accrual of a cause of action.Plaintiff has pleaded details regarding herobligations and the court is in no way making light oftime-management issues that a working single motherwho also cares for a seriously sick pet and an elderlyparent faces. Plaintiff asserts in opposition that the injuryto Storm had a “debilitating impact” onplaintiff. However, the family and work obligationsplaintiff is asserting are not uncommon.In addition, plaintiff has cited no authority that aplaintiff is excused from investigation based on areasonable suspicion or wrongdoing when work and familyobligations are pressing. The court notes that if suchwere the rule, the delayed discovery rule might wellsubsume the statute of limitations in a huge number ofcases - as working plaintiffs who care for other familymembers (e.g., children/parents/spouses/pets) are not ainsignificant percentage of the population. In the absenceof any citation to authority stating that suchcircumstances as are present here, where it is not theplaintiff who was injured by the defendant’s conduct,suffice to delay accrual of the cause of action, the courtconcludes that plaintiff’s obligations to children, a parent,Storm, and work are not sufficient to justify her delay inacting on her reasonable suspicion of wrongdoing.

Accordingly, the demurrer to the 1 st cause of actionfor veterinary malpractice is sustained without leave toamend.2 nd cause of action for fraud: Plaintiff allegesdefendant Advanced Critical Care misrepresented “thematerial fact of having a business open for providingAdvanced Critical Care and Internal Medicine of veterinaryservices to the public.” Plaintiff alleges thisrepresentation was made in signage and in a brochure sheread when she walked in the office. Plaintiff further statesthat she knows these representations were false becausestaff admitted at all relevant times in question that therewere no internal medicine veterinarians on staff orpresent. Plaintiff alleges defendant deceived her becausethey failed to tell her that they could not help her andfailed to tell her to go somewhere elseimmediately. Plaintiff further alleges she had no reasonnot to trust the signage – but that allegation appears toconflict with her previous allegation that the staff at thetime told her there was no internal medicine veterinarianspresent or on staff. (3AC; 46)Defendant argues that the office signage andbrochure are nothing more than “puffing” which is notactionable. Defendant argues that “advanced criticalcare” is not the sort of specific fact which can support afraud cause of action. Defendant further points out thatplaintiff’s own allegations shows that Storm waseventually seen by an internist at defendant’sfacility. (3AC; 26)An essential element of a fraud cause of action is“a misrepresentation of a material fact.” (Small v. FritzCompanies, Inc. (2003) 30 Cal.4th 167, 184.) Vagueexpressions and expressions of opinion do not qualify asmaterial facts. Thus, a statement by eBay that a positiveeBay rating is “worth its weight in gold” will not support amisrepresentation cause of action. “Although the line ofdemarcation between expressions of fact and opinion canbe unclear at times, this is not such a case. This kind ofvague, highly subjective statement as to the significanceof a positive rating is not the sort of statement that aconsumer would interpret as factual or upon which he orshe could reasonably rely.” (Gentry v. eBay, Inc. (2002)99 Cal.App.4th 816, 835-836.) The allegation thatdefendant Advanced Critical Care represented that itprovides “advanced critical care” is similarly too vague tobe an actionable material fact.As to the allegation that defendant representedthat it provides “Internal Medicine of veterinary services”(3AC; 46), that is also incredibly vague. There is norepresentation that board certified internal medicineveterinarians are present at all times. It is simply arepresentation that defendant provides internal medicineservices, which plaintiff’s own allegations shown is true asStorm was seen by an “internal medicine doctor” on 12-7-10. (3AC; 12) Thus, in addition to being too vague toqualify as a misrepresentation of fact, the facts allegedshow that the representation was not false.

In short, while the allegations regarding therepresentations relied upon by plaintiff are now pleadedwith sufficient specificity, the additional details pleadedestablish that the representations are notactionable. Accordingly, the demurrer to defendantAdvanced Critical Care to the 2 nd cause of action for fraudis sustained.3 rd cause of action for negligence: Like the 1 stcause of action for veterinary malpractice, defendantcontends this cause of action is barred by the one-yearstatute of limitations set forth in CCP 340(c). Plaintiffresponds that a negligence cause of action is governed bythe two-year statute set forth in CCP 335.1.CCP 340(c) provides for a one-year statute oflimitations for neglect in the practice of veterinarymedicine. It states that the following action must bebrought within one year:“(c) An action for … against any person … whoengages in the practice of veterinary medicine asdefined in Section 4826 of the Business andProfessions Code, for that person's neglectresulting in injury or death to an animal or fowl …in the course of the practice of veterinary medicineon that animal or fowl.” (CCP 340(c))CCP 335.1 sets forth a 2-year statute of limitationsfor causes of action for assault, battery, personal injuryand wrongful death.“Within two years: An action for assault, battery,or injury to, or for the death of, an individualcaused by the wrongful act or neglect ofanother.” (CCP 335.1)However, that statute clearly applies to injury topersons. And, CCP 3340(c) is clear that a one-yearstatute applies to veterinary negligence. This cause ofaction is thus barred by the statute of limitations for thesame reasons set forth in conjunction with the 1 st cause ofaction.4 th cause of action for breach ofcontract: Defendant argues that plaintiff should not beable to bring a breach of contract cause of action againstdefendant as in most cases, a plaintiff cannot make sucha claim against a medical doctor. Defendant contendssuch a claim is allowed only when the doctor promises aparticular result. Defendant acknowledges it has notauthority finding the same rule applies to actions againstvets but argues the same rule should apply.The court previously overruled a demurrer to thiscause of action by defendant Advanced Critical Care. Thecase law on whether a defendant may make successivedemurrers to the same cause of action (demurrer again toa cause of action to which a prior demurrer wasoverruled) is conflicting. (Rylaarsdam & Edmon, Cal.

Prac. Guide: Civ. Pro Before Trial (The Rutter Group2012), §§7:141 and 7:142.) However, one case has heldthat a successive demurrer is not allowed absentcompliance with CCP 1008 (a showing of new facts orlaw). (Bennett v. Suncloud (1997) 56 Cal.App.4th 91,97.) And, here, defendant has not complied with therequirements of CCP 1008. Defendant has not explainedwhy the court should rule differently to the extent thearguments are the same as those made last time and hasnot explained why any new arguments or citations werenot made last time. Accordingly, the court will not revisitthe sufficiency of the breach of contract cause of actionand the demurrer to this cause of action is againoverruled.Motion 2 – Motion to Strike of defendant Advanced CriticalCareRequests 1 (exemplary damages and attorney’sfees), 2 (plaintiff had to take time off work for a month tocare for Storm), and 3 (plaintiff had to take time off workto provide 24/7 care to Storm) concern generalallegations made at the beginning of thecomplaint. These allegations have no relevance to theremaining cause of action for breach of contract and thusare stricken without leave to amend.Requests 4-9 are moot as they are contained in thecauses of action to which the demurrer is sustainedwithout leave to amend.Request 10, claims for exemplary and punitivedamages and atty fees and assertion that defendant’sinjury of storm was committed willfully and with grossnegligence, is granted without leave toamend. Exemplary and punitive damages are notrecoverable for a breach of contract. (Applied EquipmentCorp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503,516.) Plaintiff has withdrawn the claim for attorney’sfees. (Opposition; 2) And, allegations regarding grossnegligence are not relevant to a breach of contractclaim.Requests 11 and 12, requests for punitive andexemplary damages in the prayer, are granted withoutleave to amend as such damages are not recoverable forbreach of contract.Request 13, request for attorney’s fees in theprayer, is granted without leave to amend as plaintiff haswithdrawn this claim.Motion 3 – Demurrer of Rob Harner and HarnerVeterinary, Inc. dba Irvine Pet Complex1 st cause of action for veterinary malpractice: TheHarner defendants also argue that plaintiff’s 1 st cause ofaction is barred by the one-year statute of limitations setforth in CCP 340(c). And, the cause of action is barred asto these defendants as well. Plaintiff alleges that thesedefendants also failed to timely perform an ultrasoundand failed to properly diagnose Storm despite his high

temperature and other symptoms. (3AC; 22)As previously discussed in conjunction with thedemurrer of Advanced Critical Care, the allegations of thecomplaint make clear that plaintiff suspected malpracticeat the time of defendants’ treatment. Plaintiff allegesdefendant Harner sent Storm home on 12-4-10 and 12-5-10 despite Storm’s high fever and other symptoms andthat she then had to take Storm to Advanced Critical Careon the night of 12-5-10. These circumstances appear togive plaintiff a reasonable suspicion of wrongdoing. And,plaintiff’s assertions regarding her work and familyobligations and time spent caring for Storm do not delayaccrual of the cause of action. Accordingly, the demurreris sustained without leave to amend.2 nd cause of action for fraud: Plaintiff asserts theHarner defendants misrepresented on their web sitethat: “During regular business hours, we are able to takecare of all your pet’s veterinary emergency needs.” (3AC; 48) Plaintiff alleges this representation was falsebecause these defendants misdiagnosed Storm withcolitis.The representation alleged is too vague to be amaterial misrepresentation of fact in thesecircumstances. The demurrer is thus sustained withoutleave to amend.3 rd cause of action for negligence: The demurrerto this cause of action is sustained without leave toamend for the same reasons set forth in the discussion ofMotion 1.4 th cause of action for breach of contract: Eventhough the Harner defendants joined in the demurrer ofAdvanced Critical Care to this cause of action in the 2AC,and the demurrer was overruled as to this cause of action,defendant again demurrers arguing this cause of action issubject to the one-year statute of limitation set forth inCCP 340(c) rather than the normal 2-year statute oflimitations applicable to breach of oral contract causes ofaction.As with Motion 1, the court declines to revisit thesufficiency of the breach of contract cause of action. Inaddition, while defendant contends that the language ofthe one-year statute of limitations in CCP 340(c), makingit applicable to any claim for neglect by a veterinarian,shows this section is meant to apply to all plaintiff’scauses of action. Defendant is not persuasive. Defendantargues that allowing plaintiff to proceed based on abreach of contract cause of action would undermine theeffect of the one-year statute of limitations set forth inCCP 340(c). However, if the Legislature meant toexclude actions based on the breach of a contract againsta veterinarian, it could have said so. And, defendant hascited no authority finding that a breach of contract causeof action against a vet is subject to the one-year statuteset forth in CC 340(c). The demurrer to this cause ofaction is thus again overruled.

Motion 4 – Joinder of the Harner defendants in the Motionto Strike of Advanced Critical CareThe joinder is granted as the arguments in themotion apply equally to the Harner defendants.Motion 5 – Demurrer of defendant Veterinary SurgicalSpecialists, Inc. (VSSI)1 st cause of action for veterinary malpractice: Thiscause of action is barred by the statute of limitations setforth in CCP 340(c) for the same reasons set forth in theconnection with the demurrers of the Harner defendantsand Advanced Critical Care. As to VSSI, plaintiff’s ownallegations show that the need for the second surgery wassufficient to give a plaintiff a reasonable suspicion ofwrongdoing. (3AC; 27)2 nd cause of action for fraud: Plaintiff alleges thename of this defendant, Veterinary Surgical Specialists,was the misrepresentation on which she relied. (3AC; 47) Plaintiff alleges this was a misrepresentation basedon the fact that this defendant, allegedly, botched the firstsurgery. However, defendant’s name is far too vague toconstitute a material fact sufficient to support a fraudcause of action. The demurrer to this cause of action isthus sustained without leave to amend.3 rd cause of action for negligence: This cause ofaction fails for the same reasons set forth in thediscussion of Motion 1.Note on Timeliness of Opposition: Defendant VSSIargues that plaintiff’s opposition was due to be filed andserved on 5-8-13, making filing and service on 5-9-13untimely. However, 9 court days prior to the 5-22-13hearing date was 5-9-13, making service and filing timelyunder CCP 1005(b).Motion 6 – Motion to Strike of VSSIThe court’s tentative ruling for the Motion to Strikeof defendant VSSI to the prior pleading (the 2AC), whichVSSI has attached to its demurrer (Motion 5) as Exh. A,stated:“Notice of Motion is Defective: “A notice of motionto strike a portion of a pleading must quote in fullthe portions sought to be stricken except wherethe motion is to strike an entire paragraph, causeof action, count, or defense. Specifications in anotice must be numbered consecutively.” (CRC3.1322(a)) Here, while defendant has quoted thelanguage sought to be stricken, where it involvesless than an entire or cause of action, defendanthas not numbered the requests to strike. Thecourt, in its discretion, will reach the merits of themotion to strike anyway. But, defendant shouldcomply with CRC 3.1322(a)’s requirement that therequests in the notice by numbered in any futuremotions to strike. Simply lumping multiplerequests under the cause of action in which thelanguage is found or under the subject

(punitives/attorney‘s fees) as defendant did here,does not comply. [Emphasis added.] ”Despite this prior warning, VSSI’s Motion to Strikeportions of the 3AC again fails to sequentially number thespecifications of what defendant is seeking to havestricken. as required by CRC 3.1322(a). Last time thecourt exercised its discretion and heard the Motion toStrike on the merits despite the failure to comply withCRC 3.1322(a) – but defendant was warned not to do itthis way again. The Motion to Strike is thus denied forthe failure to comply with CRC 3.1322(a).The court notes that as a practical matter, it makeslittle difference whether this motion is heard on themerits. As a matter of law, plaintiff cannot recoverpunitive or exemplary damages in connection with abreach of contract – whether the requests for suchdamages remain in the pleading or not. Nor can plaintiffrecover for loss of earning capacity, taking time off work,or loss of enjoyment of life in connection with a claim forbreach of contract arising from the alleged incompetentprovision of veterinary services. And, plaintiff haswithdrawn her claims for attorney fees.10 2011-00501809Hung Phuong Nguyen vsDung Tri BuiTENTATIVE RULING:The motion to set aside default is denied. Plaintiffis to give notice.A defendant is entitled to relief under CCP §473.5 ifhe or she has not received actual notice of theproceedings. Imputed or constructive notice is not“actual” notice (see Civ. Code §18). Rosenthal v. Garner(1983) 142 Cal.App.3d 891, 895. A defendant seekingrelief under CCP § 473.5 must show that his or her lack ofactual notice in time to defend was not caused byinexcusable neglect or avoidance of service. Tunis v.Barrow (1986) 184 Cal.App.3d 1069, 1077–1078.Relief under CCP §473.5 must be sought “within areasonable time ... “(discretionary time limit); and ”in noevent later than 2 years after entry of default judgment or180 days after service of written notice that such defaultor default judgment has been entered,“ whichevercomes first. CCP §473.5 (emphasis added). The noticeof motion must be accompanied by an affidavit ordeclaration showing (a) defendant's lack of notice of theaction in time to defend; and (b) that such lack “was notcaused by his or her avoidance of service or inexcusableneglect.” CCP §473.5(b); Anastos v. Lee (2004) 118Cal.App.4th 1314, 1319. Defendant must also file withthe notice of motion a copy of the answer, motion orother pleading proposed to be filed in the action. CCP§473.5(b).Contrary to Plaintiff’s argument, a proposedanswer was filed with the court on 04/12/13, the sametime as this motion. The issue comes down to whetherMoving Defendants received “actual notice” and if so,when, in order to determine if this motion is timely. Thefollowing chart was compiled from the declarations of the

Moving Defendants regarding when they learned of thecase. The other dates indicate when default was entered.Dung Tri Bui(01/10/12)* Unknown**Nhan Van Bui 02/20/12Loi Viet Cao 03/22/12Lap Trung Hua 02/16/12Dat Quang Le 01/13/12Thien Truyen Nguyen Le (01/10/12)* Unknown**Cu Van Nguyen (Van Cu (01/10/12)* Unknown**Nguyen)Hien Van Nguyen (Van (02/06/12)* Unknown**Hien Nguyen)Chanh Minh Nguyen 01/10/12Lactan Nuygen (Lac Tan 01/09/12Nguyen)Long Nguyen 02/16/12Luc Van Nguyen 02/16/12Nghia Xuan Nguyen (Neil (01/10/12)* Unknown**Nghia Nguyen)Vong Hy Nguyen (Hy 02/16/12Vong Nguyen)Anh Tran Pham 02/20/12Huu Nhu Phan (Nhu Huu (01/10/12)* Unknown**Phan)Thomas Nhon Phan (02/16/12)* Unknown**(Nhon Ky Phan)Nguu Tan Phan(01/10/12)* Unknown**Cat Binh Son Tran 02/16/12Dung Trung Tran 02/21/12Ha Son Tran (Son Ha (02/06/12)* Unknown**Tran)Laura Hien Tran (Thanh (02/06/12)* Unknown**Hien Tran)Minh Van Tran03/15/12 (retainedcounsel)Trina Trang Nguyen (02/16/12)* Unknown**(Duyen Trang Tran)Victor D. Tran (Thang 02/16/12Van Tran)Phong Thanh Tran (Thanh 02/16/12Phong Tran)Thoi Thanh Vo (Thanh 02/16/12Thoi Vo)*Date of default**Unknown when partylearned of lawsuitBased on the chart above, all of the dates ofdefault were entered no later than March 2012. 180 daysfrom the entry of default would have been approximatelyaround September 2012. This motion was not filed until04/12/13.However, none of the parties bothers to point outwhen notices of the actual entry of default (as opposed tothe request for entry of default) were served. Thenumerous declarations by Moving Defendants state whenthey received the request for entry of default, but not the

actual entry of default. Plaintiff never made anyargument or provided any evidence regarding when thosenotices of entry of default were served.However, the problem with Moving Defendants’motion is that there is no explanation given for why ittook them so long to seek relief. They knew as ofFebruary to March 2012 about this lawsuit, yet neverattempted to set aside the defaults. They are supposedto seek relief “within a reasonable time” and waiting ayear to file this motion is not a reasonable time. Theycannot now claim that they did not receive actualnotice. For those that made no mention as to when theylearned of this lawsuit, they failed to meet their burdenhere as they keep they court in the dark regarding howthey learned of this matter. The motion is denied.11 2012-00602493Sun Woong Park vs LeahKimTENTATIVE RULING:“Notwithstanding any other requirements of this section,the court shall, whenever an application for relief is madeno more than six months after entry of judgment, is inproper form, and is accompanied by an attorney’s swornaffidavit attesting to his or her mistake, inadvertence,surprise or neglect, vacate any...resulting default enteredby the clerk against his or her client, and which will resultin entry of a default judgment...unless the court finds thatthe default...was not in fact caused by the attorney’smistake, inadvertence, surprise, or neglect.”Code Civ. Proc. §473(b). Defendants’ default was enteredon 12/31/12, and they served and filed the instant motionby 04/23/13. Thus, the motion is timely.While defendants argue that service was invalid, thedeclarations establish that both defendants had received acopy of the summons and complaint by 10/10/12, andthat defendants had provided their counsel, Mr. Yee, witha copy of the summons and complaint by 10/16/12. Anyissues with service should have been brought to thecourt’s attention via motion. The court concludes that thefailure to file a responsive pleading was due to theexcusable neglect of counsel, Mr. Yee. Therefore, thecourt will grant the motion to vacate the default under themandatory authority of Section 473(b).Mr. Yee shall compensate plaintiff for his costs, asrequired by Section 473(b). However, the court in itsdiscretion will not impose a penalty upon Mr. Yee. Theevidence submitted shows that plaintiff received a letterfrom Mr. Yee on 11/07/12. (See Pl.’s Ex. 2.) In theletter, Mr. Yee (1) advised plaintiff that his clients had notbeen personally served, (2) requested a copy of thepleading and proof of service, and (3) asked to discusssettlement. Plaintiff ignored this letter, and instead tookdefendants’ default. The court does not look kindly uponsuch tactics.The motion by defendants Leah Kim and New Star Realty& Inv. to set aside entry of default is GRANTED. Thecourt concludes that the defaults were proximately causedby counsel’s failure to file a responsive pleading or motion

in a timely manner. See Code Civ. Proc. §473(b).Defendants’ counsel, Attorney Wayne Yee, is ORDERED topay the reasonable compensatory costs incurred byplaintiff in preparing to prove up the default. However,the court will impose no penalty upon Attorney Yee.Plaintiff is ORDERED to serve and file a declarationenumerating his costs within 10 days.12 2012-00544810Caron vs PNC Bank14 2012-00579526Hernan Garcia vs MalconCivils Inc15 2012-00592670City of Anaheim vs ReleafHealth & WellnessTENTATIVE RULING:Plaintiff’s unopposed motion to expunge therecorded substitution of trustee is denied. Plaintiff is togive notice.Plaintiff is asking the court to expunge a recorded publicdocument, the substitution of trustee, claiming theoriginal document was not recorded. Procedurally,Plaintiff has not provided any valid authority allowing herto bring this motion. She unconvincingly argues that thismotion is similar to a motion to expunge lis pendens (CCP§405 et seq.). Plaintiff is improperly seeking declaratoryand injunctive relief despite the fact that a judgment wasentered against her and in favor of SPS and PNC BankOff CalendarTENTATIVE RULING:Motion No. 1 – Demurrer to Cross-Complaint (“XC”):Cross-Defendants’ demurrer to the entire cross-complaintis sustained without leave to amend. Moving parties areto give notice.This demurrer was continued pending the CaliforniaSupreme Court’s ruling on 05/06/13 in City of Riverside v.Inland Empire Patents Health and Wellness Center, Inc.(2013) 2013 WL 1859214. The Court held that the CUAand MMP do not pre-empt local bans on medicalmarijuana dispensaries. “We thus conclude that neitherthe CUA nor the MMP expressly or impliedly preempts theauthority of California cities and counties, under theirtraditional land use and police powers, to allow, restrict,limit, or entirely exclude facilities that distribute medicalmarijuana, and to enforce such policies by nuisanceactions. Accordingly, we reject defendants' challenge toRiverside's MMD ordinances.” Id. at *19.With this recent holding in mind, the merits of thedemurrer are addressed. To the extent Cross-Complainants base any arguments on pre-emption, thosefail due to the City of Riverside ruling. Despite thatopinion, Cross-Complainants seek to circumvent the localordinance ban by alleging discrimination under severalstate and federal statutes.On a procedural note, the Sur-Reply was untimelyand Cross-Complainants did not seek the court’spermission to file such a document. Nevertheless, thearguments were considered in the analysis.

1 st COA – Preemption: This claim alleges that theCity’s ordinance banning medical marijuana dispensariesis pre-empted by state law, or namely, the CUA andMMP. However, as already discussed above, this claimfails in light of the recent Supreme Court ruling. Thedemurrer to this cause of action is sustained without leaveto amend.2 nd COA – Violation of Due Process: This claimalleges a violation of due process because Cross-Complainants cannot function as a business without abusiness license, which the City refuses to issue becauseReleaf is a medical marijuana dispensary. Again, thiscause of action fails since the City is not pre-empted fromenacting ordinances that outright ban medical marijuanadispensaries. The demurrer to this cause of action issustained without leave to amend.3 rd COA – Violation of Civ. Code §55: This statutemerely allows an aggrieved or potentially aggrievedperson to seek an injunction based on a violation of Civ.Code §54 or 54.1.Civ. Code §54 states, in pertinent part: “(a)Individuals with disabilities or medical conditions have thesame right as the general public to the full and free use ofthe streets, highways, sidewalks, walkways, publicbuildings, medical facilities, including hospitals, clinics,and physicians' offices, public facilities, and other publicplaces. [] (c) A violation of the right of an individualunder the [ADA ] also constitutes a violation of thissection.”Additionally, “Individuals with disabilities shall beentitled to full and equal access, as other members of thegeneral public, to accommodations, advantages, facilities,medical facilities, including hospitals, clinics, andphysicians' offices, and privileges of all common carriers,airplanes, motor vehicles, railroad trains, motorbuses,streetcars, boats, or any other public conveyances ormodes of transportation ... telephone facilities, adoptionagencies, private schools, hotels, lodging places, places ofpublic accommodation, amusement, or resort, and otherplaces to which the general public is invited, subject onlyto the conditions and limitations established by law, orstate or federal regulation, and applicable alike to allpersons.” Civ. Code §54.1(a).To the extent Cross-Complainants claim the banamounts to discrimination under the ADA, “Congress hasdetermined that, for purposes of federal law, marijuana isunacceptable for medical use.” James v. City of CostaMesa (9 th Cir. 2012) 700 F.3d 394, 403. Therefore, theargument relating to the ADA fails.As for Civ. Code §§54 and 54.1, the City ordinancebans all medical marijuana dispensaries and does not limitwho may or may not access a dispensary based upondisability. There is no discriminatory conduct alleged byCross-Complainants. They argue that the ban of alldispensaries is discriminatory to disabled persons who

seek medical marijuana. However, “The DPA is intendedto secure to disabled persons the same right as thegeneral public to the full and free use of facilities open tothe public.” Turner v. Ass’n of American Medical Colleges(2008) 167 Cal.App.4 th 1401, 1412. “It does not entitle adisabled individual to greater access than the public atlarge.” Id. at 1413.Therefore, the demurrer to this cause of action issustained without leave to amend.4 th COA – Injunctive Relief per CCP §526a: CCP§526a states, in pertinent part: “An action to obtain ajudgment, restraining and preventing any illegalexpenditure of, waste of, or injury to, the estate, funds,or other property of a county, town, city or city andcounty of the state, may be maintained against any officerthereof, or any agent, or other person, acting in its behalf,either by a citizen resident therein, or by a corporation,who is assessed for and is liable to pay, or, within oneyear before the commencement of the action, has paid, atax therein.”Cross-Complainants are alleging that the City’sexpenditure of taxpayer money to assist federalinvestigations violates CCP §526a. However, this claim ispremised on the allegation that Releaf was conductingitself within the confines of state law (CUA andMMP). Nevertheless, as already discussed, it isirrelevant whether the ban is based upon state or federallaw. The City was acting within its power when it enactedan ordinance outright banning the medical marijuanadispensaries. Therefore, there is no merit to this claim,and the demurrer to this cause of action is sustainedwithout leave to amend.5 th COA – Violation of Rehabilitation Act of 1973(29 USC §701): 29 U.S.C. § 794(a) provides in pertinentpart, “[n]o otherwise qualified individual with a disability... shall, solely by reason of her or his disability, beexcluded from the participation in, be denied the benefitsof, or be subjected to discrimination under any programor activity receiving Federal financial assistance....” Here,the XC alleges that City receives federal funding (XC149). Cross-Complainants have not cited any authoritythat medical marijuana use is protected under theRehabilitation Act. “The Fair Housing Act, Americans withDisabilities Act, and Rehabilitation Act all expresslyexclude illegal drug use, and AHA did not have a duty toreasonably accommodate Assenberg's medical marijuanause. See 42 U.S.C. §§ 3602(h), 12210(a); 29 U.S.C. §705(20)(C)(i).” Assenberg v. Anacortes HousingAuthority (9 th Cir. 2008) 268 Fed. Appx. 643. Since thisis a federal statute, Cross-Complainants have not alleged,and most likely cannot allege that medical marijuana isnot an illegal drug under federal law. The demurrer tothis cause of action is sustained without leave to amend.Other Issues: The XC and parties address otherprovisions under the Gov. Code or Unruh Civil Rights Act(Civ. Code §51), but they were not expressly discussed inthe causes of action, and therefore, will not be addressed.

Motion No. 2 – Demurrer to First AmendedComplaint (“FAC”): Defendants’ demurrer to all threecauses of action of the FAC are overruled. Defendants areto file and serve an answer within 10 days. Plaintiff is togive notice.This matter was continued pending the outcome ofthe California Supreme Court’s ruling in the City ofRiverside case discussed above. As already addressed inMotion No. 1, the Supreme Court held that cities mayenact ordinances outright banning the medical marijuanadispensaries, and those ordinances are not preempted bythe CUA or MMP.1 st COA re City Ordinance: City claims Defendants’activities violated the City Code §18.90.120.020, whichprovides that any Zoning Code violation is a publicnuisance. City Code §4.20 specifically bans medicalmarijuana dispensaries.“[A] nuisance per se arises when a legislative bodywith appropriate jurisdiction, in the exercise of the policepower, expressly declares a particular object orsubstance, activity, or circumstance, to be a nuisance....[T]o rephrase the rule, to be considered a nuisance per sethe object, substance, activity or circumstance at issuemust be expressly declared to be a nuisance by its veryexistence by some applicable law.” City of Claremont v.Kruse (2009) 177 Cal.App.4 th 1153. Per the recentSupreme Court ruling, the demurrer to this cause ofaction is overruled.2 nd COA re Civ. Code §3479 and 3 rd COA re H&SCode §11570: Civ. Code §3479 provides, in pertinentpart, “Anything which is injurious to health, including, butnot limited to, the illegal sale of controlled substances, …is a nuisance.” H&S Code §11570 provides, in pertinentpart, “Every building used for the purpose of unlawfullyselling, serving, storing, keeping, manufacturing, or givingaway any controlled substance, precursor, or analogspecified in this division, and every building or placewherein or upon which those acts take place, is anuisance ….” For the same reasons stated above, theoperation of the dispensary was not permitted under thelocal ordinance and therefore, sufficient facts have beenalleged that Defendants’ conduct constituted a nuisanceunder Civ. Code §3478 and H&S Code §11570. Thedemurrers to these causes of action are overruled.

RULINGS ON LAW& MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5231) to notify thecourt that all parties are submitting on the tentative and no appearance will be necessary. The tentativewill then become the final ruling.If no one appears at the hearing the tentative will be the final ruling. Either side may appear and arguethe court’s tentative ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPAREAN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF APARTY OR THE CASE.TENTATIVE RULINGS ON LAW & MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31Date: Wednesday, June 5, 2013# Case Name2 2012-00592677City of Anaheim vs 7Points Medical Delivery IncTENTATIVE RULING:Defendants Samir Josef Azzam and MayssaAzzam’s demurrers to all three causes of action of thecomplaint are overruled. Moving Defendants are to fileand serve an answer within 10 days. Plaintiff is to givenotice.Since the time of the original hearing on 02/06/13,the California Supreme Court issued its opinion on05/06/13 in City of Riverside v. Inland Empire PatentsHealth and Wellness Center, Inc. (2013) 2013 WL1859214 that directly affects the issues in thismatter. The Court held that the CUA and MMP do not preemptlocal bans on medical marijuana dispensaries. “Wethus conclude that neither the CUA nor the MMP expresslyor impliedly preempts the authority of California cities andcounties, under their traditional land use and policepowers, to allow, restrict, limit, or entirely excludefacilities that distribute medical marijuana, and to enforcesuch policies by nuisance actions. Accordingly, we rejectdefendants' challenge to Riverside's MMD ordinances.” Id.at *19. With this recent holding in mind, the merits of thedemurrer are addressed.1 st COA re City Ordinance: City claims Defendants’activities violated the City Code §18.90.120.020, whichprovides that any Zoning Code violation is a publicnuisance. City Code §4.20 specifically bans medicalmarijuana dispensaries.“[A] nuisance per se arises when a legislative bodywith appropriate jurisdiction, in the exercise of the policepower, expressly declares a particular object orsubstance, activity, or circumstance, to be a nuisance....[T]o rephrase the rule, to be considered a nuisance per sethe object, substance, activity or circumstance at issuemust be expressly declared to be a nuisance by its veryexistence by some applicable law.” City of Claremont v.Kruse (2009) 177 Cal.App.4 th 1153. Per the recentSupreme Court ruling, the demurrer to this cause of

action is overruled.2 nd COA re Civ. Code §3479 and 3 rd COA re H&SCode §11570: Civ. Code §3479 provides, in pertinentpart, “Anything which is injurious to health, including, butnot limited to, the illegal sale of controlled substances, …is a nuisance.” H&S Code §11570 provides, in pertinentpart, “Every building used for the purpose of unlawfullyselling, serving, storing, keeping, manufacturing, or givingaway any controlled substance, precursor, or analogspecified in this division, and every building or placewherein or upon which those acts take place, is anuisance ….” For the same reasons stated above, theoperation of the dispensary was not permitted under thelocal ordinance and therefore, sufficient facts have beenalleged that Defendants’ conduct constituted a nuisanceunder Civ. Code §3479 and H&S Code §11570. Thedemurrers to these causes of action are overruled.4 2012-00609899Benny Hernandez Gomezvs CR&R IncTENTATIVE RULING:Defendants CR&R, Inc. and Solag, Incorporated’s Motionto Strike Plaintiff’s Demand for Jury Trial is DENIED.Although plaintiff waived his right to jury trial by makinguntimely payment of advance jury fees under Code ofCivil Procedure Section 631, the court retains discretion,upon just terms, to allow trial by jury despite suchwaiver. See Code Civ. Proc. §631(e). Such discretion isto be exercised with awareness that the right to trial byjury is inviolate and constitutionally protected. Such aconsideration must weigh especially heavily here, where itappears that it is plaintiff’s counsel, and not plaintiffhimself, who is responsible for the failure to timely postthe fees.“A trial court abuses its discretion as a matter of law when‘... relief has been denied where there has been noprejudice to the other party or to the court from aninadvertent waiver [of the right to trial by jury].” TesoroDel Valle Master Homeowners Assn. v. Griffin, 200Cal.App.4 th 619, 638 (2011). While the court does notcondone plaintiff’s inertia, both in making untimelypayment of fees, and in failing to seek relief from hisseemingly inadvertent waiver, defendants have shown noprejudice to themselves or to the court from thesefailures.Defendants’ request for judicial notice is granted only asto Exhibits 1, 2, and 11.5 2011-00511134Robert Ingraham vsOrange CountyTransportation AuthorityTENTATIVE RULING:Plaintiff’s motion to quash is granted in part, anddenied in part. The subpoenas seeking jail records aremodified such that only records showing a felonyconviction, nature of the felony, and time of conviction areto be produced. The motion to quash medical records isdenied. Defendant is to give notice.CCP § 1987.1 provides, in pertinent part:“(a) If a subpoena requires the attendance of a

witness or the production of books, documents, orother things before a court, or at the trial of anissue therein, or at the taking of a deposition, thecourt, upon motion reasonably made by anyperson described in subdivision (b), or upon thecourt's own motion after giving counsel notice andan opportunity to be heard, may make an orderquashing the subpoena entirely, modifying it, ordirecting compliance with it upon those terms orconditions as the court shall declare, includingprotective orders. In addition, the court may makeany other order as may be appropriate to protectthe person from unreasonable or oppressivedemands, including unreasonable violations of theright of privacy of the person.”The deponent may be commanded both to testifyand to produce described documents at his or herdeposition. CCP §2020.510(a). A records and testimonysubpoena “need not be accompanied by an affidavit ordeclaration showing good cause for the production.” CCP§2020.510(b). Here, the subpoenas are attached asExhibits 1-6 to the motion (Hatchell’s decl.).There was no separate statement filed as requiredunder CRC Rule 3.1345(a)(5), but the issues are straightforwardand there was no objection by Defendant OCTAon this ground. The court addresses the motion on themerits.The subpoenas seek jail and/or medical recordsfrom various government agencies, including the L.A. andOC Sheriffs’ departments, Dept. of Corrections andRehabilitation, and OC Health Agency.In his deposition (Opposition Exh. A), Plaintiffadmitted that he had been formerly convicted of at leastseveral felonies, including drunk driving in 2008 andindecent exposures. However, he could not recall thenumber of times or dates. In his form interrogatoryresponses (Opposition Exh. B), he listed at least sevendifferent convictions relating to a violation of Veh. Code§23152 (drunk driving), but was unsure which onesresulted in felony convictions.The relevant statute here is Evid. Code §788,which provides for circumstances under which evidence ofa prior felony conviction may be used to attack a witness’scredibility. Although it is mostly invoked in criminalcases, it may be used in civil cases with the trial courtweighing its probative value against prejudicial effectunder section 352. Robbins v. Wong (1994) 27Cal.App.4 th 261, 274.A witness may be impeached with evidence of aconviction showing the witness’s bias without regard tothe nature of the underlying crime as it relates to thecharacter traits of honesty and truthfulness. Piscitelli v.Salesian Soc. (2008) 166 Cal.App.4 th 1, 9. Moral turpitudehas been defined more broadly as a general readiness todo evil, which may, but does not necessarily involvedishonesty. People v. Gray (2007) 158 Cal.App.4 th 635,

640.When a party impeaches a witness with evidenceof a prior conviction, the scope of inquiry does not extendto the details of the underlying offense or its surroundingcircumstances. People v. Szaddziewicz (2008) 161Cal.App.4 th 823, 842.Felony driving under the influence with three ormore driving under the influence convictions within sevenyears of instant offense is “crime involving moralturpitude” for purposes of determining whether priorfelony conviction can be used to impeach witness. Peoplev. Forster (1994) 29 Cal.App.4 th 1746, 1757. Indecentexposure is a crime involving moral turpitude. People v.Ballard (1993) 13 Cal.App.4 th 687. Even when individualoffenses appear remote in time, they are admissible whenthere is an ongoing pattern of misconduct. People v.Mendoza (2000) 78 Cal App.4 th 918 (there were 10 theftrelatedoffenses).Plaintiff relies on Denari v. Sup. Ct. (1989) 215Cal.App.3d 1488 for the proposition that the discovery ofthe jail records invades his right to privacy. However, theDenari case involved the plaintiff alleging excessive forceagainst the police and sought identifying information ofother arrestees in the cells near her at the time of thealleged injury in order to obtain their possible witnesstestimony. This is completely different to the situation athand here. Nevertheless, arrestee records are stillsubject to a privacy analysis.Discovery will not be ordered if the informationsought is available from other sources or through lessintrusive means. Allen v. Sup. Ct. (1984) 151 Cal.App.3d447, 449. The court must “carefully balance” theinterests involved: i.e., the claimed right of privacy versusthe public interest in obtaining just results inlitigation. Valley Bank of Nevada v. Sup. Ct. (1975) 15Cal.3d 652, 657.The subpoenas that seek jail records request thefollowing:“Any and all DOCUMENTS and tangible things inYOUR possession, custody or control RELATING TOthe INCARECERATON and/or DETENTION ofINGRAHAM, including, but not limited to jailrecords and reports, central file(s), classificationfile(s), disciplinary file(s), administrativesegregation file(s), flimsy file(s), photographs,audiotapes, videotapes, written statements,COMMUNICATIONS, forms, notes and otherwritings, whether in hard copy or electronic/digitalformat.”This request as drafted is overbroad. As statedabove, the details of the underlying nature of the offensewould not be admissible at trial to impeach Plaintiff. Thecourt notes that Plaintiff argues that he did not impeachhimself regarding his prior convictions, and therefore, thisevidence is irrelevant. However, the issue is not

egarding the veracity of the specific testimony, but hisveracity in general.The problem here is that Defendant OCTA has notdiscussed whether there are other sources for theinformation or less intrusive means of obtaining it. Forexample, as Plaintiff pointed out, did Defendant try courtrecords? However, that may not necessarily be the mostefficient manner for obtaining the relevantinformation. The subpoenas seeking jail records aremodified as follows: Only documents that show Plaintiffwas incarcerated for a felony conviction, and the nature ofthe felony conviction, including date of conviction, may beproduced. The court will not place a limit on time since atthis point, it is unclear what the production may yield, andany objections regarding relevance can be addressed ifraised at trial.As for the medical records, it appears Plaintiff hasagreed that he will not be making any brain orpsychological damage claims. However, it is not clear tothe court whether information relating to substance abusemay or may not be relevant, as there is a suggestion itcould have possibly played a part in Plaintiff’s injury. Thesubstance abuse may have affected both the mental andphysical health of Plaintiff, and the court is not in aposition to determine which is relevant, and which isnot. Therefore, the motion to quash the medical recordsis denied, and the parties may make any pertinentobjections or limiting motions at trial.In regard to sanctions, the court may order thelosing party to pay the prevailing party's expenses,including reasonable attorney fees, incurred on the motionto quash, if it finds that the motion was “made or opposedin bad faith or without substantial justification or that oneor more of the requirements of the subpoena wasoppressive.” CCP §1987.2(a). Here, neither the motionor opposition was brought in bad faith or withoutsubstantial justification. Therefore, the court denies bothsides’ requests for sanctions.7 2013-00646502Boniface Mvogo vs 1-800-PACK-RATTENTATIVE RULING ON MOTION #1: The applicationof plaintiff Boniface Mvogo for a temporary restrainingorder to enjoin defendant 1-800-PACK-RAT fromadvertising, holding, conducting, or participating in anyauction sale of plaintiff’s property and/or requiringdefendant to reclaim any property sold at auction and/oridentifying the purchasers of the property is denied.To the extent that plaintiff seeks to enjoin defendant fromselling the personal property contained in two storageunits, this relief cannot be given because defendant hasshown that the property was already sold at an auctionthat occurred on April 19, 2013, which is before thecomplaint was filed. As pointed out in the opposition, theexpress purpose of a prohibitory injunction is to preventfuture harm to the applicant by ordering the defendant torefrain from doing a particular act. Scripps Health v.Marin (1999) 72 Cal.App.4th 324, 332. Therefore,injunctive relief lies only to prevent threatened injury andhas no application to wrongs that have been

completed. Ibid.To the extent that the plaintiff seeks to require defendantto identify the purchasers who may have purchased thecontainers and/or plaintiff’s property at auction, theopposition and the bills of sale attached as Exhibit F to theopposition clearly show that the property was sold toDennis Vasquez and Joe Hester. Thus, the purchasershave been identified and the request for relief is moot.To the extent that plaintiff seeks to require defendant toreclaim the property sold to third persons, this wouldinvolve a mandatory injunction. An injunction isprohibitory if it requires a person to refrain from aparticular act and mandatory if it compels performance ofan affirmative act that changes the position of theparties. Davenport v. Blue Cross of California (1997) 52Cal.App.4th 435, 447. The granting of a mandatoryinjunction is generally not permitted except in extremecases where the right thereto is clearly established and itappears that irreparable injury will flow from itsrefusal. Ibid.In determining whether to issue a preliminary injunction,the Court looks at two related factors: (1) the likelihoodthat the plaintiff will prevail on the merits at trial; and (2)the interim harm that the plaintiff is likely to sustain if theinjunction is denied as compared with the harm that thedefendant is likely to suffer if the preliminary injunction isissued.Here, the plaintiff contends that he was not given noticeof the lien or the auction or the moving of his personalproperty, even though he was in “constant” telephoniccontact with the defendant. However, the defendant hasshown, through the declarations of Jessica Cox and EricJones and the exhibits attached thereto, that plaintiff wasin arrears on his payments and that written notice of thelien and sale were given to the plaintiff and published andthat it complied with the Business and ProfessionsCode. Thus, the likelihood that plaintiff will prevail on themerits is low and injunctive relief is inappropriate.MOTION #2: FOR JUDICIAL NOTICE ANDMOTION FOR COUNSEL OF PLAINTIFF’SCHOICETENTATIVE RULING MOTION #2: The motion ofplaintiff Boniface Mvogo for an order permitting him toenjoy the assistance of counsel or co-counsel of his choicewho is not necessarily a member of the State Bar and notnecessarily a licensed attorney is granted in part anddenied in part, even though it is not clear whether thismotion has been served on the defendant.The Court’s record shows that plaintiff is currentlyrepresenting himself, as is permitted. If plaintiff wishes tohave a licensed attorney represent him, he may have thisattorney substitute in as counsel of record. Plaintiff mayalso receive informal assistance from an attorney whowishes to draft documents but not formally appear in the

case. See CRC 3.37(a). However, only plaintiff, as a selfrepresentedlitigant, or an attorney who is licensed topractice law in California may represent plaintiff in Court.11 2011-00532542Tran vs BNY MellonTENTATIVE RULINGS:MOTION NOS. 1-4 RE DISCOVERY BY DR. SHAH:Defendant Nayana Shah, M.D.’s unopposed motions todeem facts admitted, compel responses to specialinterrogatories, requests for production and forminterrogatories are granted. Plaintiff is to provide verifiedresponses without objections to the interrogatories andrequests for production within 30 days after notice of thisruling is served. Plaintiff is to pay sanctions of $285 permotion (or total of $1140) to Defendant’s counsel within30 days. Moving party is to give notice.Plaintiffs failed to file an opposition to any of thesefour motions despite proper notice.Special & Form Rogs: Defendant has complied withthe requirements in bringing the motion to compelresponses to Special and Form Rogs per CCP §2030.290and made a showing that the interrogatories were servedupon Plaintiff, that the time to respond had expired, andthat no responses of any kind had been served (see SnowDeclarations). Leach v. Sup. Ct. (1980) 111 Cal.App.3d902, 905–906. There is no need to informally resolve thedispute. CCP §2030.290; Leach, supra, at 906. SincePlaintiff did not respond, she has waived her right toobject to the interrogatories. CCP §2030.290. Plaintiff isordered to serve verified responses without objection.RFP: Where there has been no timely response toa CCP §2031.010 demand, the first thing the demandingparty must do is to seek an order compelling a response.There is no need to informally resolve the dispute. CCP§2031.300. (TRG, Cal. Prac. Guide, Civ. Proc. Before Trial§§8:1483 and 8:1486.) Here, Defendant has compliedwith the requirements in bringing this motion and made ashowing that the demand for production was served uponPlaintiff and that she failed to respond (see SnowDeclaration). Plaintiff must serve verified responseswithout objection.RFAs: Under CCP §2033.280:“(c) The court shall make this order [to deemmatters admitted], unless it finds that the party towhom the requests for admission have beendirected has served, before the hearing on themotion, a proposed response to the requests foradmission that is in substantial compliance withSection 2033.220. It is mandatory that the courtimpose a monetary sanction . . . on the party orattorney, or both, whose failure to serve a timelyresponse to requests for admission necessitatedthis motion.” (Emphasis added.)No attempt to meet and confer is necessary if noresponses were given. See Demyer v. Costa Mesa MobileHome Estates (1995) 36 Cal.App.4th 393, 395 fn. 4

(citing text) (disapproved on other grounds in Wilcox v.Birtwhistle (1999) 21 Cal.4th 973, 983 fn. 12).Here, Defendant served Plaintiff with Requests forAdmission and no response was given (see SnowDeclaration). Unless Plaintiff makes some kind of showingthat she served responses prior to the hearing at thehearing, the court is required to order the matters in theRFAs to be deemed admitted per CCP §2033.280(c).Sanctions: The court is authorized to awardsanctions for the motions to compel responses to Rogs(CCP §2030.290) and RFPs (CCP §2031.300), and motionto deem matters admitted (CCP §2033.280) against thelosing party. Although the statutes are silent on thematter, the CRC authorize an award of sanctions “eventhough no opposition to the motion was filed, oropposition ... was withdrawn, or the requested discoverywas provided ... after the motion was filed.“ CRC Rule3.1348(a).Here, Attorney Snow states she will spend a totalof 8 hours for the motion and preparing for thehearing. The requested amount of $420 is the proratedamount for each motion. The motions are relativelystraight forward and the total amount of time should bereduced to 5 hours instead. Therefore, the total amountrecoverable for each of the four motions is $285 (($5hours x $180/hour + $60 filing fee x 4 motions)/4motions).MOTION NO. 5 RE ADDING PUNITIVE DAMAGES:Plaintiff’s motion for leave to add punitive damages isdenied. Defendant Dr. Shah is to give notice.Procedural Issues: Plaintiff failed to provide aproper proof of service showing electronic service hasbeen accepted by the other parties. No oppositions werefiled by the other non-responding healthcare providerDefendants, and therefore, notice was insufficient. Themotion is denied on procedural grounds with respect tothose other non-responding Defendants. Nevertheless themotion fails with respect to all defendants anyway, for thereasons set forth below. As for Dr. Shah, since sheresponded, she has waived the procedural defect withrespect to her.Merits: Plaintiff seeks to add punitive damages tothe 4AC against the healthcare provider Defendants basedon the allegations that they subjected her to psychologicalillness and battered her.Defendant Dr. Shah argues the operative 4AC wasonly served the morning the opposition was beingdrafted. The motion is premature as Dr. Shah intends todemur to and strike the pleading, and new additionalcauses of action were added improperly. Nevertheless,Dr. Shah argues there is no cause of action that wouldgive rise to punitive damages as the only claims againstDefendant are civil conspiracy and malpractice, which isbased on negligence. There is also no substantialprobability she will prevail on the claims per CCP §425.13

and no evidence Dr. Shah acted with malice, fraud oroppression.In Reply, Plaintiff claims she provided the 4AC tobe served by the sheriff’s department and emailed copiesto defense counsel. Plaintiff argues that the “heinousmisconducts [sic]” give rise to a punitive damages claimand that she has showed a substantial probability ofprevailing.Any claim for punitive damages against ahealthcare provider arising out of professional negligencemust be raised only in an amended pleading by motionper CCP §425.13. To obtain leave to amend to add apunitive damages claim against a health care provider,the statute requires plaintiff to establish a “substantialprobability” that he or she will prevail on that claim. CCP§425.13(a). “Substantial probability” requires plaintiff toshow a legally sufficient claim that is “substantiated” bycompetent, admissible evidence (declarations,etc.). College Hosp., Inc. v. Sup. Ct. (1994) 8 Cal.4th704, 719. Stated slightly differently, the burden is onplaintiff to produce evidence that if accepted by the trierof fact would establish a prima facie showing of “malice,oppression or fraud” (bearing in mind the “clear andconvincing” standard of proof required in such cases; seeCiv. Code §3294(a)). Looney v. Sup. Ct. (1993) 16Cal.App.4th 521, 538.The court determines the motion on the basis of“supporting and opposing affidavits” (CCP§425.13). Plaintiff's own pleadings are “entitled to noevidentiary weight in the analysis.” Pomona Valley Hosp.Med. Ctr. v. Sup. Ct. (2013) 213 Cal.App.4th 828, 837. Aproposed punitive damages claim is “substantiated” onlywhen the factual recitals in the affidavits are made underpenalty of perjury and set forth competent admissibleevidence that is within the declarant's personalknowledge. College Hosp., Inc. v. Sup. Ct., supra, 8Cal.4th at 719–720, fn.7. However, the court may notweigh conflicting affidavits or predict the likely outcome ata trial: “(S)ection 425.13(a) does not authorize the trialcourt to reject a well-pled and factually supported punitivedamages claim simply because the court believes theevidence is not strong enough for probable success beforea jury.” Id. at 709.In Pomona Valley Hosp. med. Ctr. v. Sup. Ct.,supra, plaintiff sued Hospital for negligence, alleging thatproducts used in an unsuccessful back surgery were notFDA approved, causing injury that required a secondsurgery. She subsequently moved to amend to include aclaim for punitive damages, alleging Hospital was usingthe products as part of a secret research project; thatplaintiff was unwittingly enrolled in the project; and thatshe would not have consented to participation if she hadknown about it. In support, she submitted three lettersfrom Hospital's Review Board and a declaration from hercounsel that asserted the letters “demonstrated plaintiffwas an unwitting participant in a secret research projectconducted by the Hospital.” This showing failed, becauseit contained no competent evidence to substantiate any of

plaintiff's claims. The only sworn evidence was counsel'sdeclaration, which established personal knowledge only ofthe fact that the three letters were obtained duringdiscovery. Nothing in the letters themselves showed thatHospital was conducting a study; that there was anysecret study; that plaintiff was part of any study or, if shewere, that she failed to give consent. 213 Cal.App.4 th at831, 837.Here, the only evidence in support of the motion isPlaintiff’s declaration. She claims she has been submittedto a special proceeding and was subjected topsychological research and study that was meant to driveher to mental illness. Dr. Shah provides a declarationthat Plaintiff was never her patient and that she nevertreated or cared for her.Plaintiff’s evidence is insufficient to support hermotion. There is nothing showing that there is a“substantial probability” that she will prevail on theclaim. The factual recitals are extremely vague andambiguous and there is nothing specifically implicating Dr.Shah, or any of the other Defendants with any wrongfulconduct. Substantively, the motion is denied.Defendant Dr. Shah’s objections areoverruled. The request for judicial notice is denied as it isunclear what specific relevant facts Plaintiff is seeking tobe noticed with respect to this motion.MOTION NO. 6 RE QUASH SUBPOENA: ProceduralIssues: The same procedural issues stated in Motion No.5 apply here. Nevertheless, since a response was filed,the defect is deemed waived. The merits will beaddressed.Merits: Plaintiff’s motion to quash subpoenaissued to County of Orange is granted in part and deniedin part, such that only medical records are to beproduced. Defendant is to give notice.Although the notice of motion states that it seeksto quash subpoenas issued to several county agencies, itappears that the motion only concerns a subpoena issuedto the County of Orange, which was attached to themotion and opposition as an exhibit. It seeks theproduction of the following:“THE RECORDS REQUESTED ARE regardless ofdate FOR THE FOLLOWIGN TYPES OF RECORS:ANY AND ALL RECORDS, DOCUMENTS, REPORTS,FILES, CLAIMS AND ANY OTHER RECORDS,INLCUDING BUT NOT LIMITED TO ANYRECRDS/DOCUMENTS THAT MAY BE STOREDDIGITALLY AND/OR ELECTRONICALLY RELATINGTO SHIRLEY TRAN AKA: MAN HUE, MAN TRAN,MAN H. TRAN, MAN HUE TRAN, SHIRLEY M. TRAN,SHIRLEY MANHUE TRAN.”Plaintiff “does not yet know what exactly contained[sic] in those records, but based on the nature of thiscase, Plaintiff assumes those records contain privileged

materials.” She claims the records are protected by herright to privacy and the subpoenas are overbroad as theyare not limited to seeking only medical records.Defendant Dr. Shah argues that Plaintiff has placedher medical condition and medical records at issue due toher medical malpractice claim, and therefore, waived anyright to privacy. Dr. Shah seeks $1,320 in sanctions.In Reply, Plaintiff alleges that the medical records’existence is itself a violation, and it is clearly understoodthat her privacy interests are at stake in those records.CCP § 1987.1 provides, in pertinent part:“(a) If a subpoena requires the attendance of awitness or the production of books, documents, orother things before a court, or at the trial of anissue therein, or at the taking of a deposition, thecourt, upon motion reasonably made by anyperson described in subdivision (b), or upon thecourt's own motion after giving counsel notice andan opportunity to be heard, may make an orderquashing the subpoena entirely, modifying it, ordirecting compliance with it upon those terms orconditions as the court shall declare, includingprotective orders. In addition, the court may makeany other order as may be appropriate to protectthe person from unreasonable or oppressivedemands, including unreasonable violations of theright of privacy of the person.”The deponent may be commanded both to testifyand to produce described documents at his or herdeposition. CCP §2020.510(a). A records and testimonysubpoena “need not be accompanied by an affidavit ordeclaration showing good cause for the production.” CCP§2020.510(b). There was no separate statement filed asrequired under CRC Rule 3.1345(a)(5), but the issues arestraight-forward and there was no objection by Defendanton this ground.The constitutional right of privacy applies to aparty's medical records. John B. v. Sup. Ct. (2006) 38Cal.4th 1177, 1198. The party seeking discovery mustshow a particularized need for the confidential informationsought. The broad “relevancy to the subject matter”standard is not enough here. The court must be convincedthat the information is directly relevant to a cause ofaction or defense ... i.e., that it is essential to determiningthe truth of the matters in dispute. Britt v. Sup. Ct.(1978) 20 Cal.3d 844, 859–862. Discovery will not beordered if the information sought is available from othersources or through less intrusive means. Allen v. Sup. Ct.(1984) 151 Cal.App.3d 447, 449. The court must then“carefully balance” the interests involved: i.e., the claimedright of privacy versus the public interest in obtaining justresults in litigation. Valley Bank of Nevada v. Sup. Ct.(1975) 15 Cal.3d 652, 657.Here, Plaintiff has placed the medical records atissue due to her medical malpractice claim. Additionally,

her claims are so vague (see 4AC 267 “group ofpsychiatrists of the County of Orange”) that Defendantmust resort to subpoenaing records to verify herallegations. Plaintiff does not even know what theproduction will yield and does not even know if there isany private information, but assumes there willbe. However, the request is overbroad as it does not limitthe scope of discovery to only medicalrecords. Therefore, the motion to quash is granted in partand denied in part, in that only medical records are to beproduced.Defendant’s request for sanctions is denied. Therequest for judicial notice is denied for the same reasonsstated in Motion No. 5.MOTION NO. 7 RE DISMISSAL: Defendants State ofCalifornia and Governor Edmund G. Brown, Jr.’sunopposed motion for dismissal is granted. A nunc protunc minute order will be issued to reflect the properruling of this court at the 03/27/13 hearing. Movingparties are to give notice.CCP §581(f)(1) allows the court to dismiss theaction as to the defendants after a demurrer to theoperative pleading is sustained without leave to amendand a party moves for dismissal. Here, the courtcontinued the hearing to allow moving parties to providethe court with the transcript at the 03/27/13hearing. The tentative ruling at the hearing was tosustain MP Defendants’ demurrers to the TAC withoutleave to amend. MP Defendants submitted on thetentative ruling (see Court Reporter’sTranscript). However, the 03/27/13 minute order’smodification of the tentative ruling showing the demurrerswere sustained with leave to amend was meant to beapplied to the other defendants that demurred to the TAC.MOTION NO. 8 RE CHANGE CASE NAME: Plaintiff’smotion to change the case name is denied. Defendant isto give notice.Plaintiff seeks to change the name of the case toonly her initials because she is concerned and distressedthat her identity is known to the public. Defendant Dr.Shah objects because Plaintiff has provided no authorityfor the change and such a change would prejudice futuredefendants attempting to deem her a vexatious litigant.In the complaint, the title of the action shallinclude the names of all the parties; but, except asotherwise provided by statute or rule of the JudicialCouncil, in other pleadings it is sufficient to state thename of the first party on each side with an appropriateindication of other parties. CCP §422.40.Here, Plaintiff has not provided any statute orJudicial Council rule allowing her to change her namebecause of her concern that the public is aware of heridentity. “[A] party may preserve his or her anonymity injudicial proceedings in special circumstances when theparty's need for anonymity outweighs prejudice to theopposing party and the public's interest in knowing the

party's identity.” Doe v. Lincoln Unified School Dist. (188Cal.App.4 th 758, 767 (citation omitted). Here, Plaintifffails to set forth any special circumstance justifying heranonymity and that outweighs the public’s interest toknow her identity.14 2012-00541798Michael Younessi, asTrustee of the MJK FamilyTrust and the MJK FamilyTrust vs Bank of America,N.A.TENTATIVE RULING:Defendants’ Motion for Summary Judgment isgranted. Defendants’ Objections to the Declaration ofPlaintiff Younessi are sustained as to Nos. 12 and 13. Allremaining objections are overruled.There is no triable issue of fact as to the onlyremaining cause of action against defendants, the 6 thcause of action for violation of CC 1920 and CC1921. This cause of action asserts there was wrongdoingin the origination of the loan in 2006. In particular,plaintiff alleges the lender failed to consider all factorswhich could reasonably be deemed to affect his ability tomeet his mortgage obligations as required by CC 1920and failed to provide him with a copy of the ConsumerHandbook on Adjustable Rate Mortgages as required byCC 1921(b).Defendants assert that they cannot be liable underthe 6 th cause of action because they were not involved inthe origination of the loan. It is undisputed that theoriginating lender was Express Capital Lending, which isnot a party to this case. Defendants submit thedeclaration of Edward Hernandez, who states thatdefendant Bank of America eventually became theservicer of the loan. Defendants further submit aSubstitution of Trustee and Assignment of Deed of Trustrecorded 12-22-09 which shows that MERS assigned theDOT to defendant Deutsche on 12-1-09. (Exh. E) Thisevidence is sufficient to show that defendants were notthe originating lender. The burden thus shifts to plaintiffsto create a triable issue of fact and plaintiffs have notdone so.Plaintiffs allege in the 3AC that defendants areliable for the wrongdoing of Express Lending because theyare the successors in interest of Express Lending. Ingeneral, a successor company is only liable for itspredecessor's actions if: (1) the successor expressly orimpliedly agrees to assume the subject liabilities; (2) thetransaction amounts to a consolidation or merger of thesuccessor and the predecessor, (3) the successor is amere continuation of the predecessor; or (4) the transferof assets to the successor is for the fraudulent purpose ofescaping liability for the predecessor'sdebts. (CenterPoint Energy, Inc. v. Superior Court (2007)157 Cal.App.4th 1101, 1120.)While plaintiffs assert in opposition that defendantsare successors of Express Lending, plaintiffs havesubmitted no evidence in support of thisassertion. Plaintiffs note that they have pleadeddefendants are successors and then state:“Plaintiffs should be allowed to conduct discovery

to investigate Defendants’ claim they were notsuccessors but mere ‘servicers,’ and prove theirclaim.” [Opposition; 6]Plaintiffs request for time to conduct discoverydoes not raise a triable issue of fact. In addition, to theextent this statement by plaintiffs is meant to be arequest for a discovery continuance, it is completelyinadequate. CCP 437c(h) authorizes the court to continuea motion for summary judgment when additionaldiscovery is needed.“(h) If it appears from the affidavits submitted inopposition to a motion for summary judgment orsummary adjudication or both that facts essentialto justify opposition may exist but cannot, forreasons stated, then be presented, the court shalldeny the motion, or order a continuance to permitaffidavits to be obtained or discovery to be had ormay make any other order as may be just.” (CCP437c(h))The purpose of the affidavit required by Code ofCivil Procedure section 437c(h) is to inform the court ofoutstanding discovery which is necessary to resist thesummary judgment motion. It is not sufficient to merelyindicate further discovery or investigation iscontemplated. The party moving for a continuance mustshow that facts essential to justify opposition mayexist. (Bahl v. Bank of America (2001) 89 Cal.App.4th389, 397.)Here, plaintiffs have not submitted a declarationsetting forth the discovery needed to oppose thesummary judgment. Nor have plaintiffs explained what, ifany, discovery is outstanding. This thus appears to be asituation in which the plaintiff is simply indicating thatfurther discovery and investigation is contemplated –which is not sufficient to justify a discoverycontinuance. (Id.)In short, defendants have submitted evidenceshowing they are not the successors of the originatinglender [Defendants’ Undisputed Facts 1, 7, 10, and11] and plaintiffs have not submitted evidence sufficientto make that a disputed issue. Defendants are thusentitled to summary judgment.As summary judgment is warranted based ondefendants’ argument that they are not the successors ofthe originating lender, the court need not reachdefendants’ arguments that the originating lendercomplied with CC 1920 and CC 1921 and that the claimsare barred by the statute of limitations.15 2011-00510443Michael Z Tun vsCalifornia BeemersTENTATIVE RULING:The motion of plaintiff Michael Z. Tun for an order forjudgment based on the twentieth affirmative defense inthe answer of defendant Wells Fargo Dealer Services toplaintiff’s second amended complaint is denied.

Among other things, it is unclear whether the motion isproperly before the Court procedurally. The notice ofmotion indicates that it is brought under Code Civ. Proc. §438(c) and based on the second amended complaint andthe answer of Wells Fargo to that second amendedcomplaint.However, the second amended complaint is not theoperative complaint in this action, plaintiff having filed athird amended complaint concurrently with the instantmotion. An amended complaint supersedes theoriginal. See 5 Witkin, Cal.Proc. (5th. ed. 2008),Pleading, § 1187, p. 619.In addition, the filing of the third amended complaint mayrequire the defendants to file new answers. If the changein the complaint is substantial, the defendant cannot relyon his or her original answer but must file a new answer(or demurrer), controverting the new issues raised or adefault will be entered. See 5 Witkin, Cal.Proc. (5th. ed.2008), Pleading, § 1187, p. 619.Here, the third amended complaint does add an eleventhcause of action. There is no stipulation by the partiesindicating whether the various defendants wish to deemtheir answers to the second amended complaint as theiranswers to the third amended complaint. However, thismay be the case as to Wells Fargo because it respondedto the motion on the merits.Further, plaintiff seems to argue that a motion forjudgment on the pleadings is a dispositive motion suchthat it is entitled to judgment on the merits if the Courtgrants the motion. This is incorrect.A motion for judgment on the pleadings asks the Court torule that: (1) a complaint (or cross-complaint or allegedcause of action) does not state facts sufficient toconstitute a cause of action, Code Civ. Proc. §438(c)(1)(B)(ii); or (2) an answer or alleged defense doesnot state facts sufficient to constitute a defense, Code Civ.Proc. § 438(c)(1)(A). A motion for judgment on thepleadings is basically a general demurrer except thatthere are fewer time constraints. Like a generaldemurrer, a motion for judgment on the pleadings canaddress only the defects that appear either on the face ofthe pleading or of which judicial notice may betaken. Code Civ. Proc. § 438(d). Thus, a motion forjudgment on the pleadings only tests the sufficiency ofthe pleadings. While a summary judgment may, whensupported by admissible evidence, be treated as a motionfor judgment on the pleadings, a judgment on thepleadings cannot be treated as a motion for summaryjudgment.Furthermore, even if the twentieth affirmative defense isinsufficiently pled, the plaintiff would not necessarily beentitled to judgment. As the opposition points out, thereare nineteen other affirmative defenses and a generaldenial in the complaint.With regard to the twentieth affirmative defense

specifically, plaintiff contends that this defense, which istitled “Tender of Amounts Owed,” coupled with thedeposit of $15,070 with the Court Clerk, constitute ajudicial admission by Wells Fargo that it is liable to theplaintiff for at least the amount tendered and depositedwith the Court, i.e., $15,070. Plaintiff further contendsthat the tender to the Court was procedurally improper inseveral respects, including its omission of attorneys’ feesand costs and it not being made concurrently with thefiling of the answer.Defendant contends that the twentieth affirmative defensemerely sets up a defense under Civ. Code § 2983.4. Inits entirety, section 2983.4 states:Reasonable attorney's fees and costs shall beawarded to the prevailing party in any action on acontract or purchase order subject to theprovisions of this chapter regardless of whether theaction is instituted by the seller, holder or buyer.Where the defendant alleges in his answer that hetendered to the plaintiff the full amount to whichhe was entitled, and thereupon deposits in court,for the plaintiff, the amount so tendered, and theallegation is found to be true, then the defendantis deemed to be a prevailing party within themeaning of this section.Here, the twentieth affirmative defense alleges that WellsFargo “has tendered to Plaintiff the full amount to whichPlaintiff is entitled” and that it “will deposit such sumswith the Court.” It then alleges that Wells Fargo “must bedetermined to be the prevailing party for purposes of thislitigation” and references section 2983.4.The allegations in this defense are sufficient to adequatelyset forth an affirmative defense on the part of the WellsFargo. Whether plaintiff is actually entitled to the$15,070 that has been deposited with the Court and/oradditional damages and/or attorneys’ fees and costsconstitutes an issue that remains to be tried.18 2013-00628537Universal ProtectionService, L.P. vs Mark andBrian’s Engine CompanyBuilding, LLCTENTATIVE RULING:Motion No. 2: Application to File Exhibit “C” toMeiselas Declaration Under SealThe application to seal Exhibit C to the Declaration of BenMeiselas is DENIED. The parties make no showing thatunsealing the Settlement Agreement would prejudicelegitimate proprietary or business interests. See HuffyCorp. v. Sup. Ct., 112 Cal.App.4 th 97, 107 (2003) (citingUniversal Studios, Inc. v. Sup. Ct., 110 Cal.App.4 th 1273,1281-82 (2003)).Motion No. 1:The demurrer of defendant Mark and Brian’s EngineCompany Building, LLC d/b/a Fine Arts Building, Inc. isOVERRULED inasmuch as the request for judicial notice ofExhibits A and C to the Declaration of Ben Meiselas isDENIED.

While the court can take judicial notice of the existence ofExhibit A as a webpage, the court should not accept thetruth of its contents. See Unruh-Haxton v. Regents ofUniv. of Calif., 162 Cal.App.4 th 343, 365(2008). Moreover, the proper interpretation of a judiciallynoticed document is still disputable. Ibid. The webpagesubmitted by defendant indicates that Universal Servicesof America has two divisions – Universal ProtectionSecurity Systems and Universal BuildingMaintenance. But plaintiff herein is called UniversalProtection Service, L.P., not Universal Protection SecuritySystems. Thus, the webpage does not clearly establishthat the entities listed therein are the same as, oraffiliated with, the entity that was party to the SettlementAgreement.Exhibit C is the Settlement Agreement between UniversalBuilding Maintenance, LLC and defendant. Plaintiff doesnot dispute the existence of the Settlement Agreement,but rather, disputes that it is a party to thatagreement. Plaintiff is not the entity named in theSettlement Agreement, and disputes that the contract’sterms affect the present lawsuit. Thus, the SettlementAgreement is an improper subject for judicial notice. SeeGould v. Maryland Indus., Inc., 31 Cal.App.4 th 1137,1145-46 (1995) (distinguishing Ascherman v. Gen.Reinsurance Group, 183 Cal.App.3d 307, 310-11 (1986)).Defendant is ordered to file an answer within 10 days.19 2013-00624786Warren LaRose vsSchoolsFirst Federal CUTENTATIVE RULING:The general demurrer of defendant Schoolsfirst FederalCredit Union to all three causes of action in the complaintof plaintiffs Warren and Chandra La Rose is sustained with20 days’ leave to amend.The complaint contains three causes of action for breachof contract, promissory estoppel, and unfair businesspractices.The action is based on the alleged breach of a loanmodification that the parties entered into by the parties inAugust 2009, a copy of which is attached to the complaintas Exhibit A. Plaintiffs allege that this agreement providesthat the defendant lender was to charge interestbeginning on 10-1-09 and at a rate of 4.25%. Theyallege that the defendant breached this agreement bycharging interest beginning on 9-1-09 and at the rate of5.875%. (See complaint at 25 and 26.) They furtherallege that the lender admitted that it was charging thehigher interest and promised them that it would correctthe mistake, but that it failed to do so. Plaintiffs allege,after they stopped paying on the loan, the defendantstated that the amount to reinstate the loan would be$66,858.09, which included legal fees of $47,033.99incurred in responding to their qualified writtenrequests. Plaintiffs allege that the legal fees are excessiveand unreasonable.Defendant contends that all three causes of action aredefective. Among other things, it contends that plaintiff

Chandra La Rose does not have standing to assert thecomplaint because she has filed bankruptcy and anyclaims are the estate of the bankruptcy trustee. It alsocontends that there was no-interest fee period under theloan, that the error in the rate of interest charged wascorrected, and that it was awarded significant legal fees inother litigation.Defendant asks for judicial notice of numerousdocuments, including documents filed with the bankruptcycourt in two cases. The Court takes judicial notice of theexistence of these documents and notes that the partieshave a long litigation history between them.However, to the extent that the defendant is asking forjudicial notice of facts and events contained in documentsfiled with the Bankruptcy Court, the Court declines to doso.Although a court is authorized to take judicialnotice in connection with a demurrer [citation], itmay not judicially notice the truth of assertions indeclarations or affidavits filed in court proceedings.‘Although in ruling on a demurrer courts may takejudicial notice of files in other judicial proceedings,this does not mean that they take judicial notice ofthe truth of factual matters asserted therein. Asstated in Day v. Sharp [(1975) 50 Cal.App.3d 904,914], ‘“... There exists a mistaken notion that thismeans taking judicial notice of the existence offacts asserted in every document of a court file,including pleadings and affidavits. However, acourt cannot take judicial notice of hearsayallegations as being true, just because they arepart of a court record or file. A court may takejudicial notice of the existence of each document ina court file, but can only take judicial notice of thetruth of facts asserted in documents such asorders, findings of fact and conclusions of law, andjudgments.” ’ (Italics in original.)” [Citations.]”Bach v. McNelis (1989) 207 Cal.App.3d 852, 864-865; emphasis in originalOn the other hand, the Court notes that the demurrer isunopposed, even though it has been re-served on counselat the proper address. The Court will construe this as anadmission by the plaintiffs and their counsel that there issome merit to the demurrer. Therefore, the Court willsustain the demurrer with leave to amend.

RULINGS ON LAW & MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5231) to notify thecourt that all parties are submitting on the tentative and no appearance will be necessary. The tentativewill then become the final ruling.If no one appears at the hearing the tentative will be the final ruling. Either side may appear and arguethe court’s tentative ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPAREAN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF APARTY OR THE CASE.TENTATIVE RULINGS ON LAW & MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31Date: Wednesday, June 5, 2013# Case Name2 2012-00592677City of Anaheim vs 7Points Medical Delivery IncTENTATIVE RULING:Defendants Samir Josef Azzam and MayssaAzzam’s demurrers to all three causes of action of thecomplaint are overruled. Moving Defendants are to fileand serve an answer within 10 days. Plaintiff is to givenotice.Since the time of the original hearing on 02/06/13,the California Supreme Court issued its opinion on05/06/13 in City of Riverside v. Inland Empire PatentsHealth and Wellness Center, Inc. (2013) 2013 WL1859214 that directly affects the issues in thismatter. The Court held that the CUA and MMP do not preemptlocal bans on medical marijuana dispensaries. “Wethus conclude that neither the CUA nor the MMP expresslyor impliedly preempts the authority of California cities andcounties, under their traditional land use and policepowers, to allow, restrict, limit, or entirely excludefacilities that distribute medical marijuana, and to enforcesuch policies by nuisance actions. Accordingly, we rejectdefendants' challenge to Riverside's MMD ordinances.” Id.at *19. With this recent holding in mind, the merits of thedemurrer are addressed.1 st COA re City Ordinance: City claims Defendants’activities violated the City Code §18.90.120.020, whichprovides that any Zoning Code violation is a publicnuisance. City Code §4.20 specifically bans medicalmarijuana dispensaries.“[A] nuisance per se arises when a legislative bodywith appropriate jurisdiction, in the exercise of the policepower, expressly declares a particular object orsubstance, activity, or circumstance, to be a nuisance....[T]o rephrase the rule, to be considered a nuisance per sethe object, substance, activity or circumstance at issuemust be expressly declared to be a nuisance by its veryexistence by some applicable law.” City of Claremont v.Kruse (2009) 177 Cal.App.4 th 1153. Per the recentSupreme Court ruling, the demurrer to this cause of

action is overruled.2 nd COA re Civ. Code §3479 and 3 rd COA re H&SCode §11570: Civ. Code §3479 provides, in pertinentpart, “Anything which is injurious to health, including, butnot limited to, the illegal sale of controlled substances, …is a nuisance.” H&S Code §11570 provides, in pertinentpart, “Every building used for the purpose of unlawfullyselling, serving, storing, keeping, manufacturing, or givingaway any controlled substance, precursor, or analogspecified in this division, and every building or placewherein or upon which those acts take place, is anuisance ….” For the same reasons stated above, theoperation of the dispensary was not permitted under thelocal ordinance and therefore, sufficient facts have beenalleged that Defendants’ conduct constituted a nuisanceunder Civ. Code §3479 and H&S Code §11570. Thedemurrers to these causes of action are overruled.4 2012-00609899Benny Hernandez Gomezvs CR&R IncTENTATIVE RULING:Defendants CR&R, Inc. and Solag, Incorporated’s Motionto Strike Plaintiff’s Demand for Jury Trial is DENIED.Although plaintiff waived his right to jury trial by makinguntimely payment of advance jury fees under Code ofCivil Procedure Section 631, the court retains discretion,upon just terms, to allow trial by jury despite suchwaiver. See Code Civ. Proc. §631(e). Such discretion isto be exercised with awareness that the right to trial byjury is inviolate and constitutionally protected. Such aconsideration must weigh especially heavily here, where itappears that it is plaintiff’s counsel, and not plaintiffhimself, who is responsible for the failure to timely postthe fees.“A trial court abuses its discretion as a matter of law when‘... relief has been denied where there has been noprejudice to the other party or to the court from aninadvertent waiver [of the right to trial by jury].” TesoroDel Valle Master Homeowners Assn. v. Griffin, 200Cal.App.4 th 619, 638 (2011). While the court does notcondone plaintiff’s inertia, both in making untimelypayment of fees, and in failing to seek relief from hisseemingly inadvertent waiver, defendants have shown noprejudice to themselves or to the court from thesefailures.Defendants’ request for judicial notice is granted only asto Exhibits 1, 2, and 11.5 2011-00511134Robert Ingraham vsOrange CountyTransportation AuthorityTENTATIVE RULING:Plaintiff’s motion to quash is granted in part, anddenied in part. The subpoenas seeking jail records aremodified such that only records showing a felonyconviction, nature of the felony, and time of conviction areto be produced. The motion to quash medical records isdenied. Defendant is to give notice.CCP § 1987.1 provides, in pertinent part:“(a) If a subpoena requires the attendance of a

witness or the production of books, documents, orother things before a court, or at the trial of anissue therein, or at the taking of a deposition, thecourt, upon motion reasonably made by anyperson described in subdivision (b), or upon thecourt's own motion after giving counsel notice andan opportunity to be heard, may make an orderquashing the subpoena entirely, modifying it, ordirecting compliance with it upon those terms orconditions as the court shall declare, includingprotective orders. In addition, the court may makeany other order as may be appropriate to protectthe person from unreasonable or oppressivedemands, including unreasonable violations of theright of privacy of the person.”The deponent may be commanded both to testifyand to produce described documents at his or herdeposition. CCP §2020.510(a). A records and testimonysubpoena “need not be accompanied by an affidavit ordeclaration showing good cause for the production.” CCP§2020.510(b). Here, the subpoenas are attached asExhibits 1-6 to the motion (Hatchell’s decl.).There was no separate statement filed as requiredunder CRC Rule 3.1345(a)(5), but the issues are straightforwardand there was no objection by Defendant OCTAon this ground. The court addresses the motion on themerits.The subpoenas seek jail and/or medical recordsfrom various government agencies, including the L.A. andOC Sheriffs’ departments, Dept. of Corrections andRehabilitation, and OC Health Agency.In his deposition (Opposition Exh. A), Plaintiffadmitted that he had been formerly convicted of at leastseveral felonies, including drunk driving in 2008 andindecent exposures. However, he could not recall thenumber of times or dates. In his form interrogatoryresponses (Opposition Exh. B), he listed at least sevendifferent convictions relating to a violation of Veh. Code§23152 (drunk driving), but was unsure which onesresulted in felony convictions.The relevant statute here is Evid. Code §788,which provides for circumstances under which evidence ofa prior felony conviction may be used to attack a witness’scredibility. Although it is mostly invoked in criminalcases, it may be used in civil cases with the trial courtweighing its probative value against prejudicial effectunder section 352. Robbins v. Wong (1994) 27Cal.App.4 th 261, 274.A witness may be impeached with evidence of aconviction showing the witness’s bias without regard tothe nature of the underlying crime as it relates to thecharacter traits of honesty and truthfulness. Piscitelli v.Salesian Soc. (2008) 166 Cal.App.4 th 1, 9. Moral turpitudehas been defined more broadly as a general readiness todo evil, which may, but does not necessarily involvedishonesty. People v. Gray (2007) 158 Cal.App.4 th 635,

640.When a party impeaches a witness with evidenceof a prior conviction, the scope of inquiry does not extendto the details of the underlying offense or its surroundingcircumstances. People v. Szaddziewicz (2008) 161Cal.App.4 th 823, 842.Felony driving under the influence with three ormore driving under the influence convictions within sevenyears of instant offense is “crime involving moralturpitude” for purposes of determining whether priorfelony conviction can be used to impeach witness. Peoplev. Forster (1994) 29 Cal.App.4 th 1746, 1757. Indecentexposure is a crime involving moral turpitude. People v.Ballard (1993) 13 Cal.App.4 th 687. Even when individualoffenses appear remote in time, they are admissible whenthere is an ongoing pattern of misconduct. People v.Mendoza (2000) 78 Cal App.4 th 918 (there were 10 theftrelatedoffenses).Plaintiff relies on Denari v. Sup. Ct. (1989) 215Cal.App.3d 1488 for the proposition that the discovery ofthe jail records invades his right to privacy. However, theDenari case involved the plaintiff alleging excessive forceagainst the police and sought identifying information ofother arrestees in the cells near her at the time of thealleged injury in order to obtain their possible witnesstestimony. This is completely different to the situation athand here. Nevertheless, arrestee records are stillsubject to a privacy analysis.Discovery will not be ordered if the informationsought is available from other sources or through lessintrusive means. Allen v. Sup. Ct. (1984) 151 Cal.App.3d447, 449. The court must “carefully balance” theinterests involved: i.e., the claimed right of privacy versusthe public interest in obtaining just results inlitigation. Valley Bank of Nevada v. Sup. Ct. (1975) 15Cal.3d 652, 657.The subpoenas that seek jail records request thefollowing:“Any and all DOCUMENTS and tangible things inYOUR possession, custody or control RELATING TOthe INCARECERATON and/or DETENTION ofINGRAHAM, including, but not limited to jailrecords and reports, central file(s), classificationfile(s), disciplinary file(s), administrativesegregation file(s), flimsy file(s), photographs,audiotapes, videotapes, written statements,COMMUNICATIONS, forms, notes and otherwritings, whether in hard copy or electronic/digitalformat.”This request as drafted is overbroad. As statedabove, the details of the underlying nature of the offensewould not be admissible at trial to impeach Plaintiff. Thecourt notes that Plaintiff argues that he did not impeachhimself regarding his prior convictions, and therefore, thisevidence is irrelevant. However, the issue is not

egarding the veracity of the specific testimony, but hisveracity in general.The problem here is that Defendant OCTA has notdiscussed whether there are other sources for theinformation or less intrusive means of obtaining it. Forexample, as Plaintiff pointed out, did Defendant try courtrecords? However, that may not necessarily be the mostefficient manner for obtaining the relevantinformation. The subpoenas seeking jail records aremodified as follows: Only documents that show Plaintiffwas incarcerated for a felony conviction, and the nature ofthe felony conviction, including date of conviction, may beproduced. The court will not place a limit on time since atthis point, it is unclear what the production may yield, andany objections regarding relevance can be addressed ifraised at trial.As for the medical records, it appears Plaintiff hasagreed that he will not be making any brain orpsychological damage claims. However, it is not clear tothe court whether information relating to substance abusemay or may not be relevant, as there is a suggestion itcould have possibly played a part in Plaintiff’s injury. Thesubstance abuse may have affected both the mental andphysical health of Plaintiff, and the court is not in aposition to determine which is relevant, and which isnot. Therefore, the motion to quash the medical recordsis denied, and the parties may make any pertinentobjections or limiting motions at trial.In regard to sanctions, the court may order thelosing party to pay the prevailing party's expenses,including reasonable attorney fees, incurred on the motionto quash, if it finds that the motion was “made or opposedin bad faith or without substantial justification or that oneor more of the requirements of the subpoena wasoppressive.” CCP §1987.2(a). Here, neither the motionor opposition was brought in bad faith or withoutsubstantial justification. Therefore, the court denies bothsides’ requests for sanctions.7 2013-00646502Boniface Mvogo vs 1-800-PACK-RATTENTATIVE RULING ON MOTION #1: The applicationof plaintiff Boniface Mvogo for a temporary restrainingorder to enjoin defendant 1-800-PACK-RAT fromadvertising, holding, conducting, or participating in anyauction sale of plaintiff’s property and/or requiringdefendant to reclaim any property sold at auction and/oridentifying the purchasers of the property is denied.To the extent that plaintiff seeks to enjoin defendant fromselling the personal property contained in two storageunits, this relief cannot be given because defendant hasshown that the property was already sold at an auctionthat occurred on April 19, 2013, which is before thecomplaint was filed. As pointed out in the opposition, theexpress purpose of a prohibitory injunction is to preventfuture harm to the applicant by ordering the defendant torefrain from doing a particular act. Scripps Health v.Marin (1999) 72 Cal.App.4th 324, 332. Therefore,injunctive relief lies only to prevent threatened injury andhas no application to wrongs that have been

completed. Ibid.To the extent that the plaintiff seeks to require defendantto identify the purchasers who may have purchased thecontainers and/or plaintiff’s property at auction, theopposition and the bills of sale attached as Exhibit F to theopposition clearly show that the property was sold toDennis Vasquez and Joe Hester. Thus, the purchasershave been identified and the request for relief is moot.To the extent that plaintiff seeks to require defendant toreclaim the property sold to third persons, this wouldinvolve a mandatory injunction. An injunction isprohibitory if it requires a person to refrain from aparticular act and mandatory if it compels performance ofan affirmative act that changes the position of theparties. Davenport v. Blue Cross of California (1997) 52Cal.App.4th 435, 447. The granting of a mandatoryinjunction is generally not permitted except in extremecases where the right thereto is clearly established and itappears that irreparable injury will flow from itsrefusal. Ibid.In determining whether to issue a preliminary injunction,the Court looks at two related factors: (1) the likelihoodthat the plaintiff will prevail on the merits at trial; and (2)the interim harm that the plaintiff is likely to sustain if theinjunction is denied as compared with the harm that thedefendant is likely to suffer if the preliminary injunction isissued.Here, the plaintiff contends that he was not given noticeof the lien or the auction or the moving of his personalproperty, even though he was in “constant” telephoniccontact with the defendant. However, the defendant hasshown, through the declarations of Jessica Cox and EricJones and the exhibits attached thereto, that plaintiff wasin arrears on his payments and that written notice of thelien and sale were given to the plaintiff and published andthat it complied with the Business and ProfessionsCode. Thus, the likelihood that plaintiff will prevail on themerits is low and injunctive relief is inappropriate.MOTION #2: FOR JUDICIAL NOTICE ANDMOTION FOR COUNSEL OF PLAINTIFF’SCHOICETENTATIVE RULING MOTION #2: The motion ofplaintiff Boniface Mvogo for an order permitting him toenjoy the assistance of counsel or co-counsel of his choicewho is not necessarily a member of the State Bar and notnecessarily a licensed attorney is granted in part anddenied in part, even though it is not clear whether thismotion has been served on the defendant.The Court’s record shows that plaintiff is currentlyrepresenting himself, as is permitted. If plaintiff wishes tohave a licensed attorney represent him, he may have thisattorney substitute in as counsel of record. Plaintiff mayalso receive informal assistance from an attorney whowishes to draft documents but not formally appear in the

case. See CRC 3.37(a). However, only plaintiff, as a selfrepresentedlitigant, or an attorney who is licensed topractice law in California may represent plaintiff in Court.11 2011-00532542Tran vs BNY MellonTENTATIVE RULINGS:MOTION NOS. 1-4 RE DISCOVERY BY DR. SHAH:Defendant Nayana Shah, M.D.’s unopposed motions todeem facts admitted, compel responses to specialinterrogatories, requests for production and forminterrogatories are granted. Plaintiff is to provide verifiedresponses without objections to the interrogatories andrequests for production within 30 days after notice of thisruling is served. Plaintiff is to pay sanctions of $285 permotion (or total of $1140) to Defendant’s counsel within30 days. Moving party is to give notice.Plaintiffs failed to file an opposition to any of thesefour motions despite proper notice.Special & Form Rogs: Defendant has complied withthe requirements in bringing the motion to compelresponses to Special and Form Rogs per CCP §2030.290and made a showing that the interrogatories were servedupon Plaintiff, that the time to respond had expired, andthat no responses of any kind had been served (see SnowDeclarations). Leach v. Sup. Ct. (1980) 111 Cal.App.3d902, 905–906. There is no need to informally resolve thedispute. CCP §2030.290; Leach, supra, at 906. SincePlaintiff did not respond, she has waived her right toobject to the interrogatories. CCP §2030.290. Plaintiff isordered to serve verified responses without objection.RFP: Where there has been no timely response toa CCP §2031.010 demand, the first thing the demandingparty must do is to seek an order compelling a response.There is no need to informally resolve the dispute. CCP§2031.300. (TRG, Cal. Prac. Guide, Civ. Proc. Before Trial§§8:1483 and 8:1486.) Here, Defendant has compliedwith the requirements in bringing this motion and made ashowing that the demand for production was served uponPlaintiff and that she failed to respond (see SnowDeclaration). Plaintiff must serve verified responseswithout objection.RFAs: Under CCP §2033.280:“(c) The court shall make this order [to deemmatters admitted], unless it finds that the party towhom the requests for admission have beendirected has served, before the hearing on themotion, a proposed response to the requests foradmission that is in substantial compliance withSection 2033.220. It is mandatory that the courtimpose a monetary sanction . . . on the party orattorney, or both, whose failure to serve a timelyresponse to requests for admission necessitatedthis motion.” (Emphasis added.)No attempt to meet and confer is necessary if noresponses were given. See Demyer v. Costa Mesa MobileHome Estates (1995) 36 Cal.App.4th 393, 395 fn. 4

(citing text) (disapproved on other grounds in Wilcox v.Birtwhistle (1999) 21 Cal.4th 973, 983 fn. 12).Here, Defendant served Plaintiff with Requests forAdmission and no response was given (see SnowDeclaration). Unless Plaintiff makes some kind of showingthat she served responses prior to the hearing at thehearing, the court is required to order the matters in theRFAs to be deemed admitted per CCP §2033.280(c).Sanctions: The court is authorized to awardsanctions for the motions to compel responses to Rogs(CCP §2030.290) and RFPs (CCP §2031.300), and motionto deem matters admitted (CCP §2033.280) against thelosing party. Although the statutes are silent on thematter, the CRC authorize an award of sanctions “eventhough no opposition to the motion was filed, oropposition ... was withdrawn, or the requested discoverywas provided ... after the motion was filed.“ CRC Rule3.1348(a).Here, Attorney Snow states she will spend a totalof 8 hours for the motion and preparing for thehearing. The requested amount of $420 is the proratedamount for each motion. The motions are relativelystraight forward and the total amount of time should bereduced to 5 hours instead. Therefore, the total amountrecoverable for each of the four motions is $285 (($5hours x $180/hour + $60 filing fee x 4 motions)/4motions).MOTION NO. 5 RE ADDING PUNITIVE DAMAGES:Plaintiff’s motion for leave to add punitive damages isdenied. Defendant Dr. Shah is to give notice.Procedural Issues: Plaintiff failed to provide aproper proof of service showing electronic service hasbeen accepted by the other parties. No oppositions werefiled by the other non-responding healthcare providerDefendants, and therefore, notice was insufficient. Themotion is denied on procedural grounds with respect tothose other non-responding Defendants. Nevertheless themotion fails with respect to all defendants anyway, for thereasons set forth below. As for Dr. Shah, since sheresponded, she has waived the procedural defect withrespect to her.Merits: Plaintiff seeks to add punitive damages tothe 4AC against the healthcare provider Defendants basedon the allegations that they subjected her to psychologicalillness and battered her.Defendant Dr. Shah argues the operative 4AC wasonly served the morning the opposition was beingdrafted. The motion is premature as Dr. Shah intends todemur to and strike the pleading, and new additionalcauses of action were added improperly. Nevertheless,Dr. Shah argues there is no cause of action that wouldgive rise to punitive damages as the only claims againstDefendant are civil conspiracy and malpractice, which isbased on negligence. There is also no substantialprobability she will prevail on the claims per CCP §425.13

and no evidence Dr. Shah acted with malice, fraud oroppression.In Reply, Plaintiff claims she provided the 4AC tobe served by the sheriff’s department and emailed copiesto defense counsel. Plaintiff argues that the “heinousmisconducts [sic]” give rise to a punitive damages claimand that she has showed a substantial probability ofprevailing.Any claim for punitive damages against ahealthcare provider arising out of professional negligencemust be raised only in an amended pleading by motionper CCP §425.13. To obtain leave to amend to add apunitive damages claim against a health care provider,the statute requires plaintiff to establish a “substantialprobability” that he or she will prevail on that claim. CCP§425.13(a). “Substantial probability” requires plaintiff toshow a legally sufficient claim that is “substantiated” bycompetent, admissible evidence (declarations,etc.). College Hosp., Inc. v. Sup. Ct. (1994) 8 Cal.4th704, 719. Stated slightly differently, the burden is onplaintiff to produce evidence that if accepted by the trierof fact would establish a prima facie showing of “malice,oppression or fraud” (bearing in mind the “clear andconvincing” standard of proof required in such cases; seeCiv. Code §3294(a)). Looney v. Sup. Ct. (1993) 16Cal.App.4th 521, 538.The court determines the motion on the basis of“supporting and opposing affidavits” (CCP§425.13). Plaintiff's own pleadings are “entitled to noevidentiary weight in the analysis.” Pomona Valley Hosp.Med. Ctr. v. Sup. Ct. (2013) 213 Cal.App.4th 828, 837. Aproposed punitive damages claim is “substantiated” onlywhen the factual recitals in the affidavits are made underpenalty of perjury and set forth competent admissibleevidence that is within the declarant's personalknowledge. College Hosp., Inc. v. Sup. Ct., supra, 8Cal.4th at 719–720, fn.7. However, the court may notweigh conflicting affidavits or predict the likely outcome ata trial: “(S)ection 425.13(a) does not authorize the trialcourt to reject a well-pled and factually supported punitivedamages claim simply because the court believes theevidence is not strong enough for probable success beforea jury.” Id. at 709.In Pomona Valley Hosp. med. Ctr. v. Sup. Ct.,supra, plaintiff sued Hospital for negligence, alleging thatproducts used in an unsuccessful back surgery were notFDA approved, causing injury that required a secondsurgery. She subsequently moved to amend to include aclaim for punitive damages, alleging Hospital was usingthe products as part of a secret research project; thatplaintiff was unwittingly enrolled in the project; and thatshe would not have consented to participation if she hadknown about it. In support, she submitted three lettersfrom Hospital's Review Board and a declaration from hercounsel that asserted the letters “demonstrated plaintiffwas an unwitting participant in a secret research projectconducted by the Hospital.” This showing failed, becauseit contained no competent evidence to substantiate any of

plaintiff's claims. The only sworn evidence was counsel'sdeclaration, which established personal knowledge only ofthe fact that the three letters were obtained duringdiscovery. Nothing in the letters themselves showed thatHospital was conducting a study; that there was anysecret study; that plaintiff was part of any study or, if shewere, that she failed to give consent. 213 Cal.App.4 th at831, 837.Here, the only evidence in support of the motion isPlaintiff’s declaration. She claims she has been submittedto a special proceeding and was subjected topsychological research and study that was meant to driveher to mental illness. Dr. Shah provides a declarationthat Plaintiff was never her patient and that she nevertreated or cared for her.Plaintiff’s evidence is insufficient to support hermotion. There is nothing showing that there is a“substantial probability” that she will prevail on theclaim. The factual recitals are extremely vague andambiguous and there is nothing specifically implicating Dr.Shah, or any of the other Defendants with any wrongfulconduct. Substantively, the motion is denied.Defendant Dr. Shah’s objections areoverruled. The request for judicial notice is denied as it isunclear what specific relevant facts Plaintiff is seeking tobe noticed with respect to this motion.MOTION NO. 6 RE QUASH SUBPOENA: ProceduralIssues: The same procedural issues stated in Motion No.5 apply here. Nevertheless, since a response was filed,the defect is deemed waived. The merits will beaddressed.Merits: Plaintiff’s motion to quash subpoenaissued to County of Orange is granted in part and deniedin part, such that only medical records are to beproduced. Defendant is to give notice.Although the notice of motion states that it seeksto quash subpoenas issued to several county agencies, itappears that the motion only concerns a subpoena issuedto the County of Orange, which was attached to themotion and opposition as an exhibit. It seeks theproduction of the following:“THE RECORDS REQUESTED ARE regardless ofdate FOR THE FOLLOWIGN TYPES OF RECORS:ANY AND ALL RECORDS, DOCUMENTS, REPORTS,FILES, CLAIMS AND ANY OTHER RECORDS,INLCUDING BUT NOT LIMITED TO ANYRECRDS/DOCUMENTS THAT MAY BE STOREDDIGITALLY AND/OR ELECTRONICALLY RELATINGTO SHIRLEY TRAN AKA: MAN HUE, MAN TRAN,MAN H. TRAN, MAN HUE TRAN, SHIRLEY M. TRAN,SHIRLEY MANHUE TRAN.”Plaintiff “does not yet know what exactly contained[sic] in those records, but based on the nature of thiscase, Plaintiff assumes those records contain privileged

materials.” She claims the records are protected by herright to privacy and the subpoenas are overbroad as theyare not limited to seeking only medical records.Defendant Dr. Shah argues that Plaintiff has placedher medical condition and medical records at issue due toher medical malpractice claim, and therefore, waived anyright to privacy. Dr. Shah seeks $1,320 in sanctions.In Reply, Plaintiff alleges that the medical records’existence is itself a violation, and it is clearly understoodthat her privacy interests are at stake in those records.CCP § 1987.1 provides, in pertinent part:“(a) If a subpoena requires the attendance of awitness or the production of books, documents, orother things before a court, or at the trial of anissue therein, or at the taking of a deposition, thecourt, upon motion reasonably made by anyperson described in subdivision (b), or upon thecourt's own motion after giving counsel notice andan opportunity to be heard, may make an orderquashing the subpoena entirely, modifying it, ordirecting compliance with it upon those terms orconditions as the court shall declare, includingprotective orders. In addition, the court may makeany other order as may be appropriate to protectthe person from unreasonable or oppressivedemands, including unreasonable violations of theright of privacy of the person.”The deponent may be commanded both to testifyand to produce described documents at his or herdeposition. CCP §2020.510(a). A records and testimonysubpoena “need not be accompanied by an affidavit ordeclaration showing good cause for the production.” CCP§2020.510(b). There was no separate statement filed asrequired under CRC Rule 3.1345(a)(5), but the issues arestraight-forward and there was no objection by Defendanton this ground.The constitutional right of privacy applies to aparty's medical records. John B. v. Sup. Ct. (2006) 38Cal.4th 1177, 1198. The party seeking discovery mustshow a particularized need for the confidential informationsought. The broad “relevancy to the subject matter”standard is not enough here. The court must be convincedthat the information is directly relevant to a cause ofaction or defense ... i.e., that it is essential to determiningthe truth of the matters in dispute. Britt v. Sup. Ct.(1978) 20 Cal.3d 844, 859–862. Discovery will not beordered if the information sought is available from othersources or through less intrusive means. Allen v. Sup. Ct.(1984) 151 Cal.App.3d 447, 449. The court must then“carefully balance” the interests involved: i.e., the claimedright of privacy versus the public interest in obtaining justresults in litigation. Valley Bank of Nevada v. Sup. Ct.(1975) 15 Cal.3d 652, 657.Here, Plaintiff has placed the medical records atissue due to her medical malpractice claim. Additionally,

her claims are so vague (see 4AC 267 “group ofpsychiatrists of the County of Orange”) that Defendantmust resort to subpoenaing records to verify herallegations. Plaintiff does not even know what theproduction will yield and does not even know if there isany private information, but assumes there willbe. However, the request is overbroad as it does not limitthe scope of discovery to only medicalrecords. Therefore, the motion to quash is granted in partand denied in part, in that only medical records are to beproduced.Defendant’s request for sanctions is denied. Therequest for judicial notice is denied for the same reasonsstated in Motion No. 5.MOTION NO. 7 RE DISMISSAL: Defendants State ofCalifornia and Governor Edmund G. Brown, Jr.’sunopposed motion for dismissal is granted. A nunc protunc minute order will be issued to reflect the properruling of this court at the 03/27/13 hearing. Movingparties are to give notice.CCP §581(f)(1) allows the court to dismiss theaction as to the defendants after a demurrer to theoperative pleading is sustained without leave to amendand a party moves for dismissal. Here, the courtcontinued the hearing to allow moving parties to providethe court with the transcript at the 03/27/13hearing. The tentative ruling at the hearing was tosustain MP Defendants’ demurrers to the TAC withoutleave to amend. MP Defendants submitted on thetentative ruling (see Court Reporter’sTranscript). However, the 03/27/13 minute order’smodification of the tentative ruling showing the demurrerswere sustained with leave to amend was meant to beapplied to the other defendants that demurred to the TAC.MOTION NO. 8 RE CHANGE CASE NAME: Plaintiff’smotion to change the case name is denied. Defendant isto give notice.Plaintiff seeks to change the name of the case toonly her initials because she is concerned and distressedthat her identity is known to the public. Defendant Dr.Shah objects because Plaintiff has provided no authorityfor the change and such a change would prejudice futuredefendants attempting to deem her a vexatious litigant.In the complaint, the title of the action shallinclude the names of all the parties; but, except asotherwise provided by statute or rule of the JudicialCouncil, in other pleadings it is sufficient to state thename of the first party on each side with an appropriateindication of other parties. CCP §422.40.Here, Plaintiff has not provided any statute orJudicial Council rule allowing her to change her namebecause of her concern that the public is aware of heridentity. “[A] party may preserve his or her anonymity injudicial proceedings in special circumstances when theparty's need for anonymity outweighs prejudice to theopposing party and the public's interest in knowing the

party's identity.” Doe v. Lincoln Unified School Dist. (188Cal.App.4 th 758, 767 (citation omitted). Here, Plaintifffails to set forth any special circumstance justifying heranonymity and that outweighs the public’s interest toknow her identity.14 2012-00541798Michael Younessi, asTrustee of the MJK FamilyTrust and the MJK FamilyTrust vs Bank of America,N.A.TENTATIVE RULING:Defendants’ Motion for Summary Judgment isgranted. Defendants’ Objections to the Declaration ofPlaintiff Younessi are sustained as to Nos. 12 and 13. Allremaining objections are overruled.There is no triable issue of fact as to the onlyremaining cause of action against defendants, the 6 thcause of action for violation of CC 1920 and CC1921. This cause of action asserts there was wrongdoingin the origination of the loan in 2006. In particular,plaintiff alleges the lender failed to consider all factorswhich could reasonably be deemed to affect his ability tomeet his mortgage obligations as required by CC 1920and failed to provide him with a copy of the ConsumerHandbook on Adjustable Rate Mortgages as required byCC 1921(b).Defendants assert that they cannot be liable underthe 6 th cause of action because they were not involved inthe origination of the loan. It is undisputed that theoriginating lender was Express Capital Lending, which isnot a party to this case. Defendants submit thedeclaration of Edward Hernandez, who states thatdefendant Bank of America eventually became theservicer of the loan. Defendants further submit aSubstitution of Trustee and Assignment of Deed of Trustrecorded 12-22-09 which shows that MERS assigned theDOT to defendant Deutsche on 12-1-09. (Exh. E) Thisevidence is sufficient to show that defendants were notthe originating lender. The burden thus shifts to plaintiffsto create a triable issue of fact and plaintiffs have notdone so.Plaintiffs allege in the 3AC that defendants areliable for the wrongdoing of Express Lending because theyare the successors in interest of Express Lending. Ingeneral, a successor company is only liable for itspredecessor's actions if: (1) the successor expressly orimpliedly agrees to assume the subject liabilities; (2) thetransaction amounts to a consolidation or merger of thesuccessor and the predecessor, (3) the successor is amere continuation of the predecessor; or (4) the transferof assets to the successor is for the fraudulent purpose ofescaping liability for the predecessor'sdebts. (CenterPoint Energy, Inc. v. Superior Court (2007)157 Cal.App.4th 1101, 1120.)While plaintiffs assert in opposition that defendantsare successors of Express Lending, plaintiffs havesubmitted no evidence in support of thisassertion. Plaintiffs note that they have pleadeddefendants are successors and then state:“Plaintiffs should be allowed to conduct discovery

to investigate Defendants’ claim they were notsuccessors but mere ‘servicers,’ and prove theirclaim.” [Opposition; 6]Plaintiffs request for time to conduct discoverydoes not raise a triable issue of fact. In addition, to theextent this statement by plaintiffs is meant to be arequest for a discovery continuance, it is completelyinadequate. CCP 437c(h) authorizes the court to continuea motion for summary judgment when additionaldiscovery is needed.“(h) If it appears from the affidavits submitted inopposition to a motion for summary judgment orsummary adjudication or both that facts essentialto justify opposition may exist but cannot, forreasons stated, then be presented, the court shalldeny the motion, or order a continuance to permitaffidavits to be obtained or discovery to be had ormay make any other order as may be just.” (CCP437c(h))The purpose of the affidavit required by Code ofCivil Procedure section 437c(h) is to inform the court ofoutstanding discovery which is necessary to resist thesummary judgment motion. It is not sufficient to merelyindicate further discovery or investigation iscontemplated. The party moving for a continuance mustshow that facts essential to justify opposition mayexist. (Bahl v. Bank of America (2001) 89 Cal.App.4th389, 397.)Here, plaintiffs have not submitted a declarationsetting forth the discovery needed to oppose thesummary judgment. Nor have plaintiffs explained what, ifany, discovery is outstanding. This thus appears to be asituation in which the plaintiff is simply indicating thatfurther discovery and investigation is contemplated –which is not sufficient to justify a discoverycontinuance. (Id.)In short, defendants have submitted evidenceshowing they are not the successors of the originatinglender [Defendants’ Undisputed Facts 1, 7, 10, and11] and plaintiffs have not submitted evidence sufficientto make that a disputed issue. Defendants are thusentitled to summary judgment.As summary judgment is warranted based ondefendants’ argument that they are not the successors ofthe originating lender, the court need not reachdefendants’ arguments that the originating lendercomplied with CC 1920 and CC 1921 and that the claimsare barred by the statute of limitations.15 2011-00510443Michael Z Tun vsCalifornia BeemersTENTATIVE RULING:The motion of plaintiff Michael Z. Tun for an order forjudgment based on the twentieth affirmative defense inthe answer of defendant Wells Fargo Dealer Services toplaintiff’s second amended complaint is denied.

Among other things, it is unclear whether the motion isproperly before the Court procedurally. The notice ofmotion indicates that it is brought under Code Civ. Proc. §438(c) and based on the second amended complaint andthe answer of Wells Fargo to that second amendedcomplaint.However, the second amended complaint is not theoperative complaint in this action, plaintiff having filed athird amended complaint concurrently with the instantmotion. An amended complaint supersedes theoriginal. See 5 Witkin, Cal.Proc. (5th. ed. 2008),Pleading, § 1187, p. 619.In addition, the filing of the third amended complaint mayrequire the defendants to file new answers. If the changein the complaint is substantial, the defendant cannot relyon his or her original answer but must file a new answer(or demurrer), controverting the new issues raised or adefault will be entered. See 5 Witkin, Cal.Proc. (5th. ed.2008), Pleading, § 1187, p. 619.Here, the third amended complaint does add an eleventhcause of action. There is no stipulation by the partiesindicating whether the various defendants wish to deemtheir answers to the second amended complaint as theiranswers to the third amended complaint. However, thismay be the case as to Wells Fargo because it respondedto the motion on the merits.Further, plaintiff seems to argue that a motion forjudgment on the pleadings is a dispositive motion suchthat it is entitled to judgment on the merits if the Courtgrants the motion. This is incorrect.A motion for judgment on the pleadings asks the Court torule that: (1) a complaint (or cross-complaint or allegedcause of action) does not state facts sufficient toconstitute a cause of action, Code Civ. Proc. §438(c)(1)(B)(ii); or (2) an answer or alleged defense doesnot state facts sufficient to constitute a defense, Code Civ.Proc. § 438(c)(1)(A). A motion for judgment on thepleadings is basically a general demurrer except thatthere are fewer time constraints. Like a generaldemurrer, a motion for judgment on the pleadings canaddress only the defects that appear either on the face ofthe pleading or of which judicial notice may betaken. Code Civ. Proc. § 438(d). Thus, a motion forjudgment on the pleadings only tests the sufficiency ofthe pleadings. While a summary judgment may, whensupported by admissible evidence, be treated as a motionfor judgment on the pleadings, a judgment on thepleadings cannot be treated as a motion for summaryjudgment.Furthermore, even if the twentieth affirmative defense isinsufficiently pled, the plaintiff would not necessarily beentitled to judgment. As the opposition points out, thereare nineteen other affirmative defenses and a generaldenial in the complaint.With regard to the twentieth affirmative defense

specifically, plaintiff contends that this defense, which istitled “Tender of Amounts Owed,” coupled with thedeposit of $15,070 with the Court Clerk, constitute ajudicial admission by Wells Fargo that it is liable to theplaintiff for at least the amount tendered and depositedwith the Court, i.e., $15,070. Plaintiff further contendsthat the tender to the Court was procedurally improper inseveral respects, including its omission of attorneys’ feesand costs and it not being made concurrently with thefiling of the answer.Defendant contends that the twentieth affirmative defensemerely sets up a defense under Civ. Code § 2983.4. Inits entirety, section 2983.4 states:Reasonable attorney's fees and costs shall beawarded to the prevailing party in any action on acontract or purchase order subject to theprovisions of this chapter regardless of whether theaction is instituted by the seller, holder or buyer.Where the defendant alleges in his answer that hetendered to the plaintiff the full amount to whichhe was entitled, and thereupon deposits in court,for the plaintiff, the amount so tendered, and theallegation is found to be true, then the defendantis deemed to be a prevailing party within themeaning of this section.Here, the twentieth affirmative defense alleges that WellsFargo “has tendered to Plaintiff the full amount to whichPlaintiff is entitled” and that it “will deposit such sumswith the Court.” It then alleges that Wells Fargo “must bedetermined to be the prevailing party for purposes of thislitigation” and references section 2983.4.The allegations in this defense are sufficient to adequatelyset forth an affirmative defense on the part of the WellsFargo. Whether plaintiff is actually entitled to the$15,070 that has been deposited with the Court and/oradditional damages and/or attorneys’ fees and costsconstitutes an issue that remains to be tried.18 2013-00628537Universal ProtectionService, L.P. vs Mark andBrian’s Engine CompanyBuilding, LLCTENTATIVE RULING:Motion No. 2: Application to File Exhibit “C” toMeiselas Declaration Under SealThe application to seal Exhibit C to the Declaration of BenMeiselas is DENIED. The parties make no showing thatunsealing the Settlement Agreement would prejudicelegitimate proprietary or business interests. See HuffyCorp. v. Sup. Ct., 112 Cal.App.4 th 97, 107 (2003) (citingUniversal Studios, Inc. v. Sup. Ct., 110 Cal.App.4 th 1273,1281-82 (2003)).Motion No. 1:The demurrer of defendant Mark and Brian’s EngineCompany Building, LLC d/b/a Fine Arts Building, Inc. isOVERRULED inasmuch as the request for judicial notice ofExhibits A and C to the Declaration of Ben Meiselas isDENIED.

While the court can take judicial notice of the existence ofExhibit A as a webpage, the court should not accept thetruth of its contents. See Unruh-Haxton v. Regents ofUniv. of Calif., 162 Cal.App.4 th 343, 365(2008). Moreover, the proper interpretation of a judiciallynoticed document is still disputable. Ibid. The webpagesubmitted by defendant indicates that Universal Servicesof America has two divisions – Universal ProtectionSecurity Systems and Universal BuildingMaintenance. But plaintiff herein is called UniversalProtection Service, L.P., not Universal Protection SecuritySystems. Thus, the webpage does not clearly establishthat the entities listed therein are the same as, oraffiliated with, the entity that was party to the SettlementAgreement.Exhibit C is the Settlement Agreement between UniversalBuilding Maintenance, LLC and defendant. Plaintiff doesnot dispute the existence of the Settlement Agreement,but rather, disputes that it is a party to thatagreement. Plaintiff is not the entity named in theSettlement Agreement, and disputes that the contract’sterms affect the present lawsuit. Thus, the SettlementAgreement is an improper subject for judicial notice. SeeGould v. Maryland Indus., Inc., 31 Cal.App.4 th 1137,1145-46 (1995) (distinguishing Ascherman v. Gen.Reinsurance Group, 183 Cal.App.3d 307, 310-11 (1986)).Defendant is ordered to file an answer within 10 days.19 2013-00624786Warren LaRose vsSchoolsFirst Federal CUTENTATIVE RULING:The general demurrer of defendant Schoolsfirst FederalCredit Union to all three causes of action in the complaintof plaintiffs Warren and Chandra La Rose is sustained with20 days’ leave to amend.The complaint contains three causes of action for breachof contract, promissory estoppel, and unfair businesspractices.The action is based on the alleged breach of a loanmodification that the parties entered into by the parties inAugust 2009, a copy of which is attached to the complaintas Exhibit A. Plaintiffs allege that this agreement providesthat the defendant lender was to charge interestbeginning on 10-1-09 and at a rate of 4.25%. Theyallege that the defendant breached this agreement bycharging interest beginning on 9-1-09 and at the rate of5.875%. (See complaint at 25 and 26.) They furtherallege that the lender admitted that it was charging thehigher interest and promised them that it would correctthe mistake, but that it failed to do so. Plaintiffs allege,after they stopped paying on the loan, the defendantstated that the amount to reinstate the loan would be$66,858.09, which included legal fees of $47,033.99incurred in responding to their qualified writtenrequests. Plaintiffs allege that the legal fees are excessiveand unreasonable.Defendant contends that all three causes of action aredefective. Among other things, it contends that plaintiff

Chandra La Rose does not have standing to assert thecomplaint because she has filed bankruptcy and anyclaims are the estate of the bankruptcy trustee. It alsocontends that there was no-interest fee period under theloan, that the error in the rate of interest charged wascorrected, and that it was awarded significant legal fees inother litigation.Defendant asks for judicial notice of numerousdocuments, including documents filed with the bankruptcycourt in two cases. The Court takes judicial notice of theexistence of these documents and notes that the partieshave a long litigation history between them.However, to the extent that the defendant is asking forjudicial notice of facts and events contained in documentsfiled with the Bankruptcy Court, the Court declines to doso.Although a court is authorized to take judicialnotice in connection with a demurrer [citation], itmay not judicially notice the truth of assertions indeclarations or affidavits filed in court proceedings.‘Although in ruling on a demurrer courts may takejudicial notice of files in other judicial proceedings,this does not mean that they take judicial notice ofthe truth of factual matters asserted therein. Asstated in Day v. Sharp [(1975) 50 Cal.App.3d 904,914], ‘“... There exists a mistaken notion that thismeans taking judicial notice of the existence offacts asserted in every document of a court file,including pleadings and affidavits. However, acourt cannot take judicial notice of hearsayallegations as being true, just because they arepart of a court record or file. A court may takejudicial notice of the existence of each document ina court file, but can only take judicial notice of thetruth of facts asserted in documents such asorders, findings of fact and conclusions of law, andjudgments.” ’ (Italics in original.)” [Citations.]”Bach v. McNelis (1989) 207 Cal.App.3d 852, 864-865; emphasis in originalOn the other hand, the Court notes that the demurrer isunopposed, even though it has been re-served on counselat the proper address. The Court will construe this as anadmission by the plaintiffs and their counsel that there issome merit to the demurrer. Therefore, the Court willsustain the demurrer with leave to amend.

RULINGS ON LAW& MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5231) to notify the courtthat all parties are submitting on the tentative and no appearance will be necessary. The tentative will thenbecome the final ruling.If no one appears at the hearing the tentative will be the final ruling. Either side may appear and argue thecourt’s tentative ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPARE ANORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY ORTHE CASE.TENTATIVE RULINGS ON LAW & MOTION MATTERSJUDGE GLENN SALTERDEPT C-31Date: Wednesday, June 26, 2013# Case Name2 Ruby Hunter vs. FountainValley Self Storage4 Nikola Axten vs. GregoryW. AxtenTentative Ruling:The motion for preliminary injunction is denied becauseplaintiff cannot show there is a reasonable probability shewill prevail on the merits. It appears the precise issuesraised in this action have already been resolved adverselyto her (and to Mr. Masaoka ) in two prior small claimsactions, both at trial and on trial de novo. (FountainValley Self Storage v. Hunter, 30-2012-00594422 andTrabuco Self Storage v. Arther Masaoka, 30-2012-00594208.) The request for judicial notice of the smallclaims proceedings is granted.Tentative Ruling:The demurrer of John Foster, LLC as to the first, sixth,and seventh causes of action of the second amendedcomplaint is sustained without leave to amend. As to thefirst cause of action for breach of the implied covenant ofgood faith and fair dealing, this is essentially the samecause of action to which a demurrer was sustained inMarch, except that now plaintiff alleges liability based onan alter ego theory. Plaintiff cannot use the alter egotheory in reverse to pierce the “individual veil” of her exhusbandin order to obtain the LLC’s assets. As to thesixth cause of action for negligence, plaintiff alleges herex-husband breached his “good faith” duty to maximizethe LLC’s profits when he “carelessly and negligentlyharmed the plaintiff by not engaging tenants that wouldpay reasonable market value for the single asset of theLLC—the subject premises.” This is simply anotherattempt to impose improperly an alter ego theory on theLLC. As to the seventh cause of action for conversion, ageneralized claim for money cannot form the basis for aconversion action, especially where the plaintiff has notalleged a specific, identifiable sum of money that hasbeen converted. In her opposition to the demurrer to thesixth and seventh causes of action, plaintiff offers nocounter argument but simply requests leave toamend. Plaintiff must be prepared to tell the court

specifically what additional facts she would plead giventhis is the second amended complaint.7 Sri Nine Main Plaza, LLCvs. The Eclipse Group LLPTentative Ruling:Defendant has not provided the court with a proof ofpersonal service of the motion by themessenger. Defendant will provide the court clerk withproof of service by the messenger prior to thehearing. On the merits, the motion to file an amendedanswer to the complaint is granted. The proposed firstamended answer is deemed filed and served as of thedate of the hearing. Defendant to give notice.8 Caron vs. PNC Bank Tentative Ruling:Motion for new trial denied. Plaintiff makes numerousallegations in her 53-page motion, none of which hasmerit. Defendants to give notice.9 Cheyenne Capital Ltd.Liability Company vs.Stephan Z. Elieff10 Century 21 Chamberlain &Associates vs. First TeamReal Estate of OrangeCountyTentative Ruling:The motions of defendants Stephan Z. Elieff andArgent Management, LLC for summary judgment andsummary adjudication of issues are denied.Whether a conveyance was fraudulent is a questionof fact. Evidence submitted by the defendants shows theconveyance was made in good faith and for value. Thisshifts the burden to plaintiff. Elieff’s testimony at thejudgment debtor examination and at his deposition, aswell as the deposition testimony of Tom Rollins, creates atriable issue of material fact. The relationship betweenElieff, his brother, SunCal, and TDV, as well as the lack ofknowledge by Elieff of the transaction, the source of thefunds, the nature of the bank account used in thepurchase, the absence of any explanation for the depositinto the bank account, and the subsequent use of thefurniture and assets, all suggest the conveyance of thefixtures and furnishings were not sold in good faith andfor reasonable value.All evidentiary objections are overruled.Tentative Ruling:Defendant’s motion to continue the hearing on themotion for summary judgment and motion for summaryadjudication of issues is denied. There is no showing whythe unanswered discovery requests, which form the basisof continuance request, were not prepared and servedearlier. The court notes that the original summaryjudgment motion filed in October 2012 touched on thesame issues; yet, discovery was not served until April andMay of 2013.The unopposed request for judicial notice of theCourt of Appeal opinion and the tentative ruling ofFebruary 27, 2013, is granted.

Defendants’ objections to plaintiffs’ evidence isoverruled as to 6, 8-12, 15-17, 24, 30-33, 37-38, 43-44,47-50, and 52, and sustained as to 1-5, 13-14, 18-23,25-29, 34-36, 39-42, 45-46, and 51.The summary Judgment motions of KennethWayne Shishido and Tammy Newland are granted. Theyhave met their burden of proof to show that they did notmake any of the alleged defamatory statements, that theywere not involved in the defamatory statements, and arenot liable as owners of OCREC; and plaintiffs have failedto raise any triable issue of material fact as to them.The summary judgment motion of Elaine Armogidais denied because there is a triable issue of material factas to whether she made the alleged defamatorystatements and whether those statements were madewith malice given the length of time the rumors had beencirculating and the failure to investigate, all of which mayshow reckless or wanton disregard.The summary judgment motion of OCREC is deniedbecause it may be vicariously liable as Armogida’semployer.The motions for summary adjudication of issuesare denied. As to punitive damages (issue no. 1), thereare triable issues of material fact as to whether thestatements were made maliciously. As to businessrelated damages (issue no. 2), plaintiffs are not seekingto recover damages relating to any real estate businesstransaction disputes with other realtors (which wouldsubject them to arbitration); rather, they are seekingdamages to their business based on the allegeddefamatory statements. In short, plaintiffs are notjudicially estopped from claiming these damages based onprior representations to the court.

RULINGS ON LAW& MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5231) to notify the courtthat all parties are submitting on the tentative and no appearance will be necessary. The tentative will thenbecome the final ruling.If no one appears at the hearing the tentative will be the final ruling. Either side may appear and argue thecourt’s tentative ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPARE ANORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY ORTHE CASE.TENTATIVE RULINGS ON LAW & MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31Date: Wednesday, July 03, 2013# Case Name2 Macro-Z-TechnologyCompany vs. LCC-MZTTEAM IV3 Demetri Gutierrez vs.Onewest Bank, FSBTENTATIVE RULING:Because Landa and LarKor were in default when thisdemurrer to CJW’s cross-complaint was filed and becausethe filing was untimely, neither could properly file ademurrer. Although the Court has executed the parties’6/26/13 stipulation to set aside the default, no request forrelief from the untimely filing has been made. Landa andLarKor submit instead a demurrer of questionable merit,and then merely ask the Court to exercise its discretion toconsider their arguments. The Court further observesthat this matter has become increasingly unwieldy, as thefrequency and number of cross-complaints and demurrersrender the matter that may be more appropriatelyadjudicated in the complex court. As this case was filednearly a year ago and the operative pleadings have yet tobe determined, the Court encourages the parties toincrease their efforts to resolve their disagreementswithout the Court’s intervention so that this case canfinally move forward. Accordingly, Landa and LarKor areordered to file a responsive pleading within 10 days.TENTATIVE RULING:Defendant OneWest Bank, FSB’s (“OneWest’s”) Requestfor Judicial Notice is GRANTED. See Fontenot v. WellsFargo Bank, N.A., 198 Cal.App.4th 256 (2011); Evid.Code §452(d).The court will not consider the deposition transcriptattached to the Declaration of Attorney AnthonyGraham. Plaintiff neither requested judicial notice of thisdocument, nor articulated a basis upon which the courtcould properly notice it. See Code Civ. Proc. §§430.30(a)& 430.70.Motion No. 1:OneWest’s Demurrer to plaintiff Demetri Gutierrez’s FirstAmended Complaint (“FAC”) is SUSTAINED in part, andOVERRULED in part, as follows:1. The demurrer to the First Cause of Action for quiet

title is SUSTAINED with 20 days’ leave toamend. The Assignment of Deed of Trustsubmitted by OneWest indicates that it wasassigned the Deed of Trust in November2011. (See Def.’s RJN, Ex. 3.) Thus, theAssignment directly contradicts the allegations inthe FAC.2. The demurrer to the Second Cause of Action ismoot. Plaintiff indicates that he will amend thiscause of action in response to OneWest’sdemurrer.3. The demurrer to the Third Cause of Action fornegligence is SUSTAINED with leave to amend. Tothe extent that OneWest merely undertook todiscuss loan modification with plaintiff, it has notstepped outside the role of a lender of money. SeeRagland v. U.S. Bank Nat. Assn., 209 Cal.App.4 th182, 207 (2012).4. The demurrer to the Fourth Cause of Action forviolations of the California Civil Code isOVERRULED. Plaintiff has stated a claim forinjunctive relief under the Homeowners Bill ofRights based on OneWest’s failure to respond tohis request for loan modification. See Civ. Code§§2924.12 & 2924.19.5. The demurrer to the Fifth Cause of Action forviolations of the Unfair Competition Law isSUSTAINED with leave to amend. Plaintiff fails toallege an injury in fact that occurred as a result ofOneWest’s alleged violations of the HomeownersBill of Rights. See Bus. & Prof. Code §17204.Motion No. 2:The court will GRANT in part OneWest’s Motion to Strikeas follows:1. Since plaintiff’s allegations regarding theassignment of the note and deed of trust arerefuted by the Assignment of Deed of Trust, therequest to strike paragraphs 7, 9, and 16 isGRANTED with leave to amend.2. Since the Note and Deed of Trust indicate thatIndymac Bank, FSB, not OneWest, was theoriginator of the loan, the request to strikeparagraphs 10, 11, 12, 13, 14, 15, and 17 isGRANTED with leave to amend.3. Inasmuch as plaintiff intends to amend the SecondCause of Action, the motion to strike paragraph 33is moot.4. Inasmuch as the court will sustain OneWest’sdemurrers to the Third and Fifth Causes of Action,the request to strike paragraphs 33, 38, 40-48, 56,71, and 73 is moot.Plaintiff may file his amended complaint within 20 days.

5 William Richard Wittwervs. Estate of Christina LubiFioriTENTATIVE RULING:The demurrers to causes of action 1-6 aresustained with 20 days leave to amend for insufficientfacts. The demurrer to the 7 th cause of action isoverruled. The motion to strike is moot. Moving partiesare to give notice.1 st COA – Voidance of Premarital Agreement:Plaintiff seeks to void the premarital agreement because itdid not comply with the requirements under Fam. Code§1615(c), i.e., the agreement was unconscionablebecause Fiori did not fully disclose property or financialobligations.Defendant argues that this is a declaratory reliefclaim, which fails because it does not state the parties oran actual controversy. Plaintiff has not stated any actualcontroversy at this time. A declaratory relief complaintmust specifically allege that an actual, presentcontroversy exists, and must state the facts of therespective claims concerning the disputed subjectmatter. City of Cotati v. Cashman (2002) 29 Cal.4 th 69,79. Is the Estate or Trustee seeking to enforce theprenuptial agreement against him? The claim may not beripe for judicial review at this time. The demurrer to thiscause of action is sustained with leave to amend.2 nd COA – Fraud as to the Estate: Plaintiff claimshe was fraudulently included into the premaritalagreement and making contributions to the marriagebecause Fiori concealed her mental condition, whichincluded her depression, anxiety and previous suicideattempts.Defendant argues that Civ. Code §43.4 barsactions for damages based on a fraudulent inducement tomarry. That statute states: “A fraudulent promise tomarry or to cohabit after marriage does not give rise to acause of action for damages.”Here, it is not clear whether Plaintiff is claimingfraud with respect to the premarital agreement and/or themarriage itself, which makes the cause of actionuncertain.Additionally, the claim has not been pled with therequisite specificity. Moreover, the cause of action isbeing alleged against the Estate of Fiori, only. However, aprobate or trust estate is not a legal entity; it is simply acollection of assets and liabilities. As such, it has nocapacity to sue, be sued or defend an action. Anylitigation must be maintained by, or against, the executor,administrator or trustee of the estate. Galdjie v. Darwish(2003) 113 Cal.App.4th 1331, 1344.The demurrer to this cause of action is sustainedwith leave to amend.3 rd COA – Negligent Misrepresentation as to theEstate: This claim fails for the same reasons stated aboveregarding the fraud cause of action. The demurrer to this

cause of action is sustained with leave to amend.4 th COA – Conversion as to Estate: Plaintiff allegeshe possessed items in 16 [this is error as nothing islisted in 16, he most likely meant 17], which includes$375,000 in assets for the French home, payments forshipments of furniture and car, $100,000 for furniture andpaintings, $40,000 for wedding, $120,000 for householdexpenses, $50,000 for the engagement ring, wedding ringand other jewelry, $$2,600 for rental storage, and$75,000 for travel expenses.The problem with this claim is that Plaintiff appearsto be alleging the money paid for those “items” wereconverted. However, as Defendant points out, moneycannot be the subject of a cause of action forconversion. “A ‘generalized claim for money [is] notactionable as conversion.’” PCO, Inc. v. Christensen,Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007)150 Cal.App.4th 384, 395. This claim is also broughtagainst the Estate. The demurrer to this cause of actionis sustained with leave to amend.5 th COA – Unjust Enrichment as to Estate: Theelements of an unjust enrichment claim are the “receipt ofa benefit and [the] unjust retention of the benefit at theexpense of another.” Peterson v. Cellco Partnership(2008) 164 Cal.App.4th 1583, 1593.“A person who, incidentally to the performance ofhis own duty or to the protection or the improvement ofhis own things, has conferred a benefit upon another, isnot thereby entitled to contribution.” DinosaurDevelopment, Inc. v. White (1989) 216 Cal.App.3d 1310,1315. Here, the “items” listed in 17 appears to be forthe benefit of the marriage and therefore, would have alsobeen a benefit to himself, thus defeating the claim forunjust enrichment. This claim is also brought against theEstate. The demurrer to this cause of action is sustainedwith leave to amend.6 th COA – Breach of Contract as to Estate: Plaintiffclaimed he had an oral contract with Fiori that he wouldcontribute financially to the marriage and she would repayhim for those contributions from her assets, but did not,and therefore breached the contract. Civ. Code §43.5bars claims for “breach of promise of marriage.” TO theextent Defendant argues a breach of Civ. Code §43.4,that section only deals with claims of fraud. This claim isalso being brought against the Estate. Based on Civ. Code§43.5, the demurrer to this cause of action is sustainedwith leave to amend.7 th COA – Breach of Contract as to Estate andTrustee: This claim seeks reimbursement for Fiori’sfuneral expenses paid by Plaintiff. He alleges that Nelson,as the representative of Fiori’s estate, orally agreed topay the expenses amounting to about $6,000. Defendantargues that this would make it a small claims case, butsuch an argument is not proper here.“A cause of action for damages for breach of

contract is comprised of the following elements: (1) thecontract, (2) plaintiff's performance or excuse fornonperformance, (3) defendant's breach, and (4) theresulting damages to plaintiff. It is elementary that oneparty to a contract cannot compel another to performwhile he himself is in default. While the performance of anallegation can be satisfied by allegations in general terms,excuses must be pleaded specifically.” Durell v. SharpHealthcare (2010) 183 Cal.App.4th 1350, 1367 (citationsand quotations omitted).A written contract may be pleaded either in haecverba (word for word) or generally “according to its legalintendment and effect” (e.g., “Defendant agreed to sellthe described property to Plaintiff for$100,000”). Construction Protective Services, Inc. v. TIGSpecialty Ins. Co. (2002) 29 Cal.4 th 189, 198–199(plaintiff may plead the legal effect of the contract ratherthan its precise language).This cause of action has been sufficientlypled. The demurrer to this cause of action is overruled.8 th COA – Promissory Estoppel: Plaintiff allegesthat Fiori promised she would reimburse Pliantiff for hisfinancial conditions he made to the marriage and shebreached the promise by failing to repay him. This claimfails for the same reasons stated above regarding Civ.Code §43.5. Also, “a plaintiff cannot state a claim forpromissory estoppel when the promise was given inreturn for proper consideration.” Fontenot v. Wells FargoBank, N.A. (2011) 198 Cal.App.4th 256, 275. This claimis also being brought against the Estate. The demurrer tothis cause of action is sustained with leave to amend.6 Boniface Mvogo vs. 1-800-PACK-RATTENTATIVE RULING:The demurrer to the Complaint will be sustained in partand overruled in part.Plaintiff alleges that he had a rental contract withdefendant 1-800-PACK-RAT for use of two storagecontainers, in which he stored personalbelongings. (Compl., 6.) Plaintiff claims that the storeditems constitute “all [his] family has in theworld.” (Ibid.) Plaintiff further alleges that he had beenin “constant contact” with defendant Jessica Cox-Wilmothregarding arranging payment for overdue rent. (Compl.,7.) He acknowledges that Ms. Cox told him that anauction might happen if payment of rent was notreceived. (Id., 8.) However, he was not advised thathis belongings had been removed to a different location.And he alleges that neither he nor his partner everreceived notice of a lien sale. (Id., 8-9.)Plaintiff alleges that Ms. Cox was aware that the notices oflien sale that defendants had sent were returned, and hadnot reached plaintiff. (Compl., 11.) Plaintiff also allegesthat he only realized that an auction had been scheduledwhen he specifically requested the date. He was told thatthe sale was scheduled for 04/19/13, but the sale actuallyoccurred on 04/17/13. (Id., 9, 13.) Finally, plaintiffalleges that defendants refused to accept tender of

payments that could have helped him avert the liensale. (Id., 16.)Standard for Ruling on DemurrerIn ruling on general demurrer, the court must determine“whether the plaintiff has alleged sufficient facts to justifyany relief,” and must “liberally construe” the pleading“with a view to attaining substantial justice among theparties.” See B&P Development Corp. v. City of Saratoga,185 Cal.App.3d 949, 952-953 (1986).Jessica CoxThe demurrers to the Complaint are overruled as todefendant Jessica Cox. Plaintiff avers in the declarationattached to the Complaint that Ms. Cox was the “accountmanager/employee” of defendant 1-800-PACK-RAT. (Mvogo Decl., 6.) An agent or employee is alwaysliable for her own wrongful conduct on behalf of herprincipal. See Civ. Code §2343(3). Defendant’sarguments regarding conspiracy do not apply here, whereplaintiff has made no allegation of a conspiracy betweenthe defendants.1 st COA – TheftThe demurrer to the First Cause of Action will beoverruled.The court treats this as a cause of action for conversion,which would require plaintiff to prove that defendant’sexercise of dominion over his personal property waswrongful. See Plummer v. Day/Eisenberg, LLP, 184Cal.App.4 th 38, 50 (2010). Defendant potentiallywrongfully exercised dominion over plaintiff’s property byselling it without his knowledge or over his objection.The California Self-Service Storage Facility Act providesthe specific procedures that a storage facility owner mustfollow in order to conduct a lien sale of an occupant’sproperty. See Bus. & Prof. Code §§21700 et seq. Ifplaintiff rented units on defendant’s property, or storeditems there, defendant would have a lien on that propertyfor rent, late payment fees, or other charges. See Bus. &Prof. Code §21702. If plaintiff failed to pay rent,defendant could terminate his use through a notice that issupposed to itemize the amounts due. See Bus. & Prof.Code §21703. If, after sending that notice, plaintiffcontinued to fail to pay the sum due and owing, the lienwould attach as of the termination date specified in thenotice, and the defendant would be entitled to enter andremove the property stored. See Bus. & Prof. Code§21705. At that point, a notice of lien sale could beissued, and defendant could proceed with setting up thesale unless plaintiff paid the sum due or sent a declarationof opposition to the sale. If a declaration of oppositionwas received, defendant could only have enforced the lienby filing an action in small claims court or another court,depending on the amount in question. See Bus. & Prof.Code §21710.It is unclear whether defendant properly followed thesestatutory procedures, because plaintiff claims that henever received the notices sent by defendant. Moreover,

plaintiff alleges that defendant was aware that he had notreceived the notices, and knew that plaintiff was opposedto the sale. (See Compl., 8-17.)2 nd COA – Breach of Fiduciary DutyThe court sustains the demurrer to the Second Cause ofAction without leave to amend. Plaintiff has alleged nobasis for a fiduciary relationship between himself anddefendants. And there generally is no fiduciary duty owedin a purely commercial relationship. McCann v. LuckyMoney, Inc., 129 Cal.App.4 th 1382, 1398 (2005).3 rd COA - FraudThe demurrer to the Third Cause of Action will besustained with leave to amend.It is unclear whether plaintiff is alleging a claim forintentional misrepresentation or fraud byconcealment. See Civ. Code §§1710(1) &(3). Regardless, every element of the cause of actionmust be alleged “in the proper manner and the factsconstituting the fraud must be alleged with sufficientspecificity to allow defendant to understand fully thenature of the charge made.” See Tarmann v. State FarmMut. Auto Ins. Co., 2 Cal.App.4 th 153, 157 (1991).Here, plaintiff alleges that he and defendants wereengaged in a commercial transactional relationship. Hefurther alleges that Ms. Cox told him only that his items“may” go up for auction if overdue rent was notpaid. (Compl., 12.) Neither Ms. Cox nor defendantadvised plaintiff during their communications that noticesrelating to the lien sale had been sent to him andreturned. Finally, plaintiff alleges that he was told by anunidentified person that the auction was to be held on04/19/13, when it was actually to be held on04/17/13. However, plaintiff does not identify detailsregarding the dates of the communications, and who toldhim the date of the auction.4 th COA – Constructive FraudThe court sustains the demurrer to the Fourth Cause ofAction without leave to amend. “Constructive fraud is aunique species of fraud applicable only to a fiduciary orconfidential relationship.” See Assilzadeh v. CaliforniaFederal Bank, 82 Cal.App.4 th 399, 415 (2000). Plaintiffhas not alleged a fiduciary or confidential relationshipbetween himself and defendants, and one generally doesnot exist in a purely commercial setting, as stated above.5 th & 6 th COA’s – Violations of California and Federal DueProcessThe demurrers to these causes of action will be sustainedwithout leave to amend. Constitutional due processguarantees do not apply to the acts of private persons orentities. See Deutsch v. Masonic Homes of California,Inc., 164 Cal.App.4 th 748, 761 (2008); see also Rendell-Baker v. Kohn, 457 U.S. 830, 837-838 (1982).7 th COA – Intentional Infliction of Emotional Distress

The court sustains the demurrer to the Seventh Cause ofAction without leave to amend. This cause of actionrequires extreme and outrageous conduct exceeding thebounds of what a civilized community wouldtolerate. Moreover, plaintiff must show that defendanteither intended to inflict injury on him, or that defendantengaged in the conduct with the realization that injurywould result. See Hughes v. Pair, 46 Cal.4 th 1035, 1050-1051 (2009). If the cause of action is based on recklessdisregard for plaintiff’s interests, “the presence of theplaintiff at the time the outrageous conduct occurs isrecognized as the element establishing a higher degree ofculpability which, in turn, justifies recovery...” SeeChristensen v. Sup. Ct., 54 Cal.3d 868, 905-906(1991). Plaintiff has not alleged facts to indicate thatdefendants intended to inflict injury on him, and he doesnot appear to have been present when the sale occurred.8 th COA – Negligent Infliction of Emotional DistressThe court sustains the demurrer to the Eighth Cause ofAction without leave to amend. Where a plaintiff has notsuffered a physical injury, the California Supreme Courthas only recognized a cause of action for negligentinfliction of emotional distress damages as a direct victimin three circumstances: (1) negligent mishandling ofcorpses, see Christensen, supra, 54 Cal.3d at 879, (2)negligent misdiagnosis of a disease that could potentiallyharm another, see Molien v. Kaiser Foundation Hospitals,27 Cal.3d 916, 923 (1980), and (3) the negligent breachof a duty arising out of a preexisting relationship. SeeBurgess v. Sup. Ct., 2 Cal.4 th 1064, 1076 (1992). Thecases allowing recovery for emotional distress from thethird circumstance generally deal with preexistingrelationships that entail a certain level of emotionalvulnerability. See Burgess (obstetrician had a dutytoward mother as a result of botched delivery of baby);see also Marlene F. v. Affiliated Psychiatric Medical Clinic,Inc., 48 Cal.3d 583, 591 (1989) (therapist treating bothmother and son who sexually molested son could haveforeseen emotional distress to mother). The relationshipbetween the parties here is not even remotely close tothese types of relationships.9 th COA – NegligenceThe court sustains the demurrer to the Ninth Cause ofAction with leave to amend. Plaintiff alleges no basis forfinding the existence of a duty of care.10 th COA – Failure to Discharge Mandatory DutyThe demurrer to the Tenth Cause of Action will besustained with leave to amend. Plaintiff does not allegewhat mandatory duty was not discharged, or how thefailure to discharge it gives rise to a cause of action forhim.11 th COA – InjunctionThe court sustains the demurrer to the Eleventh Cause ofAction without leave to amend. “Injunction is a remedy,not a cause of action.” See Witkin,6 Cal. Proc. (5 th ed.)§274. Plaintiff has not articulated a basis for injunctiverelief. Moreover, according to the allegations in the

Complaint, the sale of plaintiff’s items has already takenplace. (Compl., 13.) Thus, any request for injunctionagainst these particular defendants would appear to bemoot. See People ex rel. Herrera v. Stender, 212Cal.App.4 th 614, 630-631 (2012) (noting that injunctiverelief cannot be granted when the wrongdoing has alreadyoccurred unless there is a likelihood that it will recur inthe future).Plaintiff may file an amended complaint within 20 days.Defendants to give notice.7 Fidel Galindo vs. AlejandroAlvarado Rodriguez9 Audrey Elo vs. FletcherJones Motorcars, Inc.TENTATIVE DECISION:Plaintiff has established in his sworn declaration that heno longer resides at the address where substitute servicewas purportedly effected and that he resides in a differentcity. Moreover, the John Doe served by process serverRosemary Hernandez notes on her declaration that Doetold her that defendant did not reside at thatlocation. Accordingly, the motion to quash service of thesummons and complaint is granted.TENTATIVE RULING:Defendant Fletcher Jones Motor Cars, Inc.’s motionto compel arbitration is granted. The court is inclined togrant Defendant Eric Rosenthal’s motion for joinder. Theaction is stayed pending arbitration per CCP§1281.4. Moving parties are to give notice.This motion is brought pursuant to both CCP§1281.2 et seq. and the FAA (9 USC §1 et seq.).A party to an arbitration agreement may seek acourt order compelling the parties to arbitrate a disputecovered by the agreement. CCP §1281.2. The petitionmust allege the existence of a written agreement toarbitrate a controversy, that a party refuses to arbitratesuch controversy (id.), and provisions of the arbitrationclause are set forth verbatim, or attached andincorporated by reference (CRC Rule 3.1330). Under theFAA, “Any application to the court hereunder shall bemade and heard in the manner provided by law for themaking and hearing of motions, except as otherwiseherein expressly provided.” 9 USC §6.Here, there are 3 agreements to arbitrate: (1)Comprehensive Agreement Employment At-Will andArbitration (Motion Exh. A (attached to Decl. ofTompkins)); (2) Applicant’s Statement & Agreement(Motion Exh. B); and (3) Employee Acknowledgment andAgreement (Motion Exh. C). Exhs. A and C contain thesame arbitration language, and Exh. B contains a similarprivilege. All of the claims that are the subject of this suitare encompassed by the arbitration provision and arearbitrable.Plaintiff files a short opposition that is somewhatconfusing. She claims that only the President had

authority to make any agreement contrary to theApplicant’s Statement & Agreement (Motion Exh. B). Thisargument is not well-taken and does not aid her case hereas that agreement itself contains an arbitration provisionanyway. Moreover, the other two arbitration agreements(Exhs. A and C) do not appear contrary to the Applicant’sStatement & Agreement. Nevertheless, Plaintiff fails toargue unconscionability, lack of existence of a contract, orany other grounds. Rather, she seems to acknowledgethat she is subject to the arbitration agreement(s) as sherequests the court to allow an ex parte petition to selectan arbitrator to be filed pursuant to CCP §1281.6 if theparties “are unable to reach agreement within seven (7)days of the hearing on this matter.” Clearly, if shethought the agreements were unenforceable she wouldnot be making such a statement and requesting thematter be stayed per CCP §1281.4.CCP §1281.6 provides the procedure for theselection of an arbitrator in the event the parties cannotagree on one. There is no time limitation placed upon theparties. If Plaintiff wishes to seek ex parte relief, it maydo so, but there is no reason for the court to impose atime limitation.The motion to compel arbitration is granted. Therequest for stay proceedings pending arbitration underCCP §1281.4 is granted. Defendant Eric Rosenthal’smotion for joinder is granted (arbitration agreementscontained language to include claims againstemployees). With respect to whether any claims againstany remaining defendants, i.e., Jared Byrne, are subjectto arbitration, that issue is not before the court andtherefore, will not be addressed.11 Gilmore Bank vs. CindyDalrympleTENTATIVE RULING:Plaintiffs have brought a motion to compel defendantSonia Dalrymple to appear (by telephone per stipulation)and answer 21 questions that she refused to answerduring the sixth session of her deposition on 2-20-13. Defendants have brought a cross-motion forprotective order that Sonia Dalrymple need not appear forfurther questioning and/or concluding thedeposition. Defendants seek alternative relief in the formof a protective order that Sonia Dalrymple need notanswer 21 questions from the sixth session of herdeposition. Although the motions target some of thesame questions, the two lists of questions are notidentical.The parties have a long history of discoverydisputes. After the plaintiffs filed 58 discovery motions onMarch 6, 2012, the Court held a hearing on May 30, 2012to determine whether a discovery referee should beappointed. At that time, the Court determined that adiscovery referee was not necessary at that time based ondeclarations submitted by counsel. However, it did notforeclose the possibility of appointing a discovery refereein the future.Since May 30, 2012, the parties have filed the followingdiscovery motions:

motion for protective order filed by defendants on7-10-12motion to compel David Berardo to answerdeposition questions filed by plaintiffs on 7-20-12motion to compel defendant Cindy Dalrymple toanswer deposition questions filed by plaintiffs on7-23-12motion to quash deposition subpoena issued toWilliam Norman filed by defendants on 8-15-12motion to compel defendant Cindy Dalrymple toanswer deposition questions filed by plaintiffs on11-14-12motion to compel defendant Cindy Dalrymple toanswer deposition questions filed by plaintiffs on12-3-12motion for protective order re: the deposition ofWilliam Norman filed by defendants on 12-17-12motion for protective order filed by defendantSonia Dalrymple on 12-21-12motion to compel William Norman to producedocuments at deposition filed by plaintiffs on 1-15-13motion to compel Sonia Dalrymple to answerdeposition questions filed by plaintiffs on 5-8-13motion for protective order filed by defendantSonia Dalrymple on 5-13-13Because the parties continue to need Court intervention on afrequent basis on extensive and time-consuming matters,the Court is inclined to appoint a discovery referee underCode Civ. Proc. § 639 for the resolution of the motionsbefore the Court and all remaining discovery purposes.The majority of the factors present for the appointment ofa referee under Taggares v. Superior Court (1998) 62Cal.App.4th 94, 106, are present here: “(1) there aremultiple issues to be resolved; (2) there are multiplemotions to be heard simultaneously; (3) the presentmotion is only one in a continuum of many; (4) thenumber of documents to be reviewed (especially in issuesbased on assertions of privilege) make the inquiryinordinately time-consuming.”Unless the parties here can show otherwise, they appearto be capable of equally sharing the cost of the referee.Counsel for the parties are ordered to meet and confer tomutually select a retired judge who is acceptable to bothsides to act as a discovery referee. If the parties areunable to agree, the attorneys are to submit the names ofthree retired judges to the Court and the Court will selecta discovery refer from among the six names submitted bythe parties.The parties are ordered to appear on August 29, 2013 at9:00 am for appointment of the discovery referee.Plaintiff is ordered to give notice.

14 Inter Bilt Corporation, Inc.vs. Vericrest Financial,Inc.TENTATIVE RULING:Vericrest’s unopposed motions are granted in theirentirety. Inter Bilt is ordered to provide, withoutobjection, responses to form interrogatories, specialinterrogatories, and production requests within 20 days.The sanctions request is viewed as excessive and includeswork performed by an attorney other than the declarant,as well as supervisory activities. These time expendituresare disallowed. Because the motions are also boilerplate,the Court finds that a total of $240 for one hour eachmotion, including apportionment of appearance time isreasonable. Accordingly, a total of $720 in sanctions isawarded against Inter Bilt, payable within 30 days.

RULINGS ON LAW& MOTION MATTERSJUDGE ROBERT MONARCHDEPT C-31APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5231) to notify thecourt that all parties are submitting on the tentative and no appearance will be necessary. The tentativewill then become the final ruling.If no one appears at the hearing the tentative will be the final ruling. Either side may appear and arguethe court’s tentative ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPAREAN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF APARTY OR THE CASE.TENTATIVE RULINGS ON LAW & MOTION MATTERSJUDGE ROBERT MONARCHDEPT C-31Date: Wednesday, July 10, 2013# Case Name1 Kimberly Claytor vs. HoagMemorial HospitalPresbyterianTENTATIVE: GRANT MOTIONS TO STRIKE CLAIMFOR PUNITIVE DAMAGES WITH 20 DAYS LEAVE TOFILE A MOTION PER CCP 425.13.The parties appear to agree that plaintiff must file amotion per CCP 425.13 and obtain permission from thecourt before she may file an amended complaint toinclude a claim for punitive damages. Such a motion hasnot yet been filed. The Order on file herein permitting anamended complaint is insufficient.5 Carlos C. Balasbas vs.Blanca Lopez-DeDavisTENTATIVE: OVERRULE DEMURRER.Plaintiff alleges generally the failure to comply withInsurance Code 11583 which is sufficient to provide abasis to establish the tolling of the Statute of Limitationswith respect to all of her claims. In any event, her claimfor property damage is not barred. ( CCP 338)8 Law Office of Joseph P.Scully, P.C. vs. JohnGambinaTENTATIVE: CONTINUE MOTION TO ALLOWDEFENDANT TO COMPLY WITH STATUTORYPROVISIONS INCLUDING CCP 1005Service of motion fails to comply with CCP 1005.9 Evodio Serrano vs. ThangLong Restaurant, In.cTENTATIVE: GRANT MOTION TO COMPELDISCOVERY (WITH EXCEPTIONS)MOTION NO. 1: Grant re form rogs 201.6, 216.6 and217.1. Also RFAs 2. 4 and 14 sanctions of $669.95 againstdefendant payable within 20 days.MOTION NO. 2: Grant re special Rogs 13, 15, 18and 19. Deny re 16, 17, 20 and 21.Request for sanctionsis denied since motion was only granted in part.MOTION NO. 3: Grant re RFPs 5-8, 11, 23, and 38.Deny re RFP 44. Sanctions of $500 against defendantpayable within 20 days. Sanctions are appropriate sinceonly one request was denied.

All further discovery responses -shall be served within20 days.13 Century 21 Chamberlain &Associates vs. First TeamReal Estate of OrangeCountyTENTATIVE: REQUEST FOR PROTECTIVE ORDER ISGRANTEDTRIAL DATE IS VACATED; DISCOVERY IS RE-OPENED TO 30 DAYS PRIOR TO NEW TRIAL DATE;REQUESTS FOR SANCTIONS ARE DENIED.“All the peace you make in their cause is calling boththe parties knaves”.(Shakespeare, Coriolanus 2.1.77-79)The recent discovery propounded by plaintiff isfacially burdensome, oppressive, and overwhelming. It isdisappointing to this court that a highly competentlawyer with almost 30 years of litigation experience didnot tailor this belated discovery to be more specificallyrelated to the remaining issues in this matter consideringthe existing discovery cut-off and trial date. The argumentthat counsel for defendants also abused this process isunavailing and a tacit admission that he is also abusingthis process.On the other hand, it would be expected thatdefendants would provide some responses. Counsel fordefendants could have economically provided reasonablegeneral responses to what he determined to be thesubstance of the discovery requests. This would put theburden on plaintiff’s counsel to justify his position.The court encourages counsel to again meet andconfer resolve their differences in an effort to minimizeadditional fees and costs which might include preservingthe existing trial date.

14 Vinh Hoang vs. SaigonNho NewspaperTENTATIVE: DENY MOTION TO COMPEL: SANCTIONSOF $500 ARE AWARDED AGAINST DEFENDANT.The right of privacy exist in this matter based on thestrength of the nexus between the artificial entity andhuman beings and the context in which this controversyarises.Request 19 is requiring the production of NVDN taxreturns which are privileged based on the circumstancesof this case. It has not been made clear that the returnswould provide the business loss information they areseeking. In any event, such information is availablethrough profit and loss statements or other corporatefinancial records that would better pinpoint the lossesidentified. Further, this matter does not involve a waiverof the privilege in that the complaint is consistent with thecontinued assertion of the privilege. The tax returns arenot put directly at issue.The court finds that the motion was brought withoutsubstantial justification. Accordingly, sanctions in theamount of $500 are awarded to plaintiff NVDN,andagainst defendants. (CCP 2031.310(h).17 Vincent J. Rossini vs.Barry J. WishartTENTATIVE: DENY MOTION FOR SUMMARYJUDGMENTThere is a triable issue of material fact as to whetherdefendants failed to meet the standard of care required offamily law lawyers during the meeting that took place on4-19-11, when counsel determined what discoveryresponses were required to comply with the OrderCompelling Further Discovery made on 3-25-11, requiringresponses no later than 4-25-11.The arguments of defendants are persuasive that theburden placed upon plaintiff to establish the elements ofmalpractice is substantial. Plaintiff has to presentevidence of the tracing documentation available todefendants during the 4-19-11, meeting,including the 3boxes of documents later delivered by Mr. Whitton in “anabundance of caution”. Plaintiff has to establish that theselection of documents and/or responses made bydefendants was inadequate in light of what was availableduring this meeting. Plaintiff must establish in the casewithin this case, that as a result of the selections made bydefendants, plaintiff was precluded from presenting proofto the court establishing a separate property interestvalued at over $2,000,000. Plaintiff has to establish thatthe result of the family law proceedings would have beensuperior to the terms and provisions of the settlementagreement wherein the value placed on his separateproperty interest was only $200,000, or that hisnegotiation position would have been improved to theextent that the terms and provisions of this settlementagreement would have been substantially better than theagreement signed by plaintiff.Notwithstanding the burden of proof placed on plaintiff,he is entitled to attempt to meet this burden at trial. Thedisputed facts are shown in plaintiff’s Responsive

Separate Statement with respect to defendant’s facts 12,35 and 45 and Plaintiff’s Additional Facts 147, 148, 149,150, 151, 153 and 154. Further, plaintiff has shown thathe has documentation that could prove his claim for $2.1million in separate property assets, thus he differs fromthe plaintiff in Marshak vs. Ballesteros (1999) 72Cal.App.4 th 1514, who did not have any evidence toestablish the value of his case but simply alleged the casewas worth more than he settled it for.

RULINGS ON LAW& MOTION MATTERSJUDGE GLENN R. SALTERDEPT C-31APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5231) to notify thecourt that all parties are submitting on the tentative and no appearance will be necessary. The tentativewill then become the final ruling.If no one appears at the hearing the tentative will be the final ruling. Either side may appear and arguethe court’s tentative ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPAREAN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF APARTY OR THE CASE.TENTATIVE RULINGS ON LAW & MOTION MATTERSJUDGE GLENN R. SALTERDEPT C-31Date: Wednesday, July 17, 2013# Case Name1 2013-00644154Robert Leal vs Wells FargoBank, NAThe demurrer of defendants Wells Fargo Bank and Bank ofAmerica to the complaint is: (a) overruled as to the firstcause of action, and (b) sustained with 10 days leave toamend as to the second through fifth causes of action.The first cause of action is for breach of contract of thesettlement agreement the parties entered into to resolvethe original complaint and the unlawful detainerproceeding. The terms of the written agreement areclear: it was attached to the opposition to the demurrerand the Banks rely on an interpretation of the agreementin making their arguments. The agreement provides theBanks promised “to process a complete loan modificationpackage.” Plaintiffs allege the Banks did not do so ingood faith because they calculated his temporary monthlyloan payments at 31 percent of an artificially high incomelevel, more than $5,000 above what plaintiffs actuallymake. The Banks’ failure to calculate the monthlypayments correctly is a breach of the agreement. TheBanks’ counter that while they may have promised toprocess a loan modification, they never promised toapprove a modification or process a request “in goodfaith” (see reply brief). Their argument seems toconcede they did not process the modification here ingood faith. The Banks’ argument that the complaint mustbe dismissed because the plaintiffs have not tendered thetotal amount of the loan is irrelevant: this is not acomplaint about the foreclosure or foreclosure process;rather it is about a breach of the settlementagreement. The Banks provide no authority that tenderof the entire amount due is required under these facts.The second cause of action for negligence does not state acause of action because the alleged conduct does notviolate a duty independent of the contract. Whether theBanks owe a duty of care with respect to loanmodifications is uncertain; indeed, the federal courts aresplit on the issue. The better result under these facts isthat the plaintiffs cannot state such a cause of actionwithout pleading more than there was an error in thedocument or they breached their agreement.

The third cause of action for intentional misrepresentationand the fourth cause of action for negligentmisrepresentation do not sufficiently plead facts showingactionable misrepresentation. There are, for example, noallegations as to the names of the persons who made thealleged misrepresentations, their authority to speak forthe corporation, what they said or wrote, to whom theyspoke, and when the alleged misrepresentations weremade. Nothing in the settlement agreement wouldappear to be misrepresentations. There is also noactionable claim for a negligent false promise, which iswhat is alleged in the fourth cause of action.The fifth cause of action for promissory estoppel failsbecause there was consideration for the promise.2 2013-00643638Tekon Universal Sciences,Inc. vs Callahan & Blaine,APLCDemurrer to the first amended complaint is sustainedwithout leave to amend. The motion to strike is denied asmoot. (See Code Civ. Proc., § 1281.4.)The plaintiffs’ claims in this action arise out of the samefacts in the related action (see 30-2011-525393) whichwas ordered to arbitration April 4, 2013. Pursuant to theorder of Judge Margines, the arbitration provision covered“fee disputes” and “claims for damages,” including“malpractice.” Had plaintiffs wanted to pursue theseclaims they had to file a cross-claim in the arbitrationproceedings. The addition of new defendants in this casedoes not change that analysis: the claims against themwould also have been subject to the arbitrationproceedings as the “new” claims concerned theirrepresentation in the underlying Carvalho case.Even if the court were able to consider these new claimsin this action, they are clearly time-barred. And, anyclaim for fraud needed to be raised in the arbitrationproceedings because plaintiffs were aware of the facts ofthe alleged fraud prior to the arbitration order.The request for consolidation of this case with the feeaward arbitration is denied.3 2012-00601531Nicola Axten vs GregoryW. AxtenThe demurrer of defendant Axten is (a) overruled as tothe first and second causes of action, and (b) sustainedwithout leave as to the third through seventh causes ofaction.As to the first cause of action for breach of the covenantof good faith and fair dealing, and the second cause ofaction for breach of fiduciary duty, the facts alleged donot establish as a matter of law that these causes arebarred by the statute of limitations. Defendant Axten, asthe managing member, owed plaintiff a fiduciary duty. Assuch, the statute of limitations begins to run when plaintiffhas actual notice of the alleged wrong or when areasonably prudent person would have been put on noticeof the wrong. Plaintiff alleges she was kept in the darkand denied access to the entity’s books and thebuilding. Whether plaintiff knew or should have knownabout the alleged breach of fiduciary duty prior to 2012 isa factual question that cannot be resolved on

demurrer. Also, case law has cut out an area where aprivate right of action may be maintained—whenmanaging members/directors pay themselves excessivecompensation, thus reducing the profits distributed to theshareholders.In Jara v. Suprema Meats, Inc. (2004) 121 Cal.App.4th1238 the appellate court allowed a direct action where thedirectors paid themselves excessive compensation, thusreducing a shareholder’s share of the profits. The factsalleged here are analogous. Plaintiff alleges defendantAxten caused the LLC to allow an entity in which he has acontrolling interest to pay less than the fair market rentalvalue for use of the LLC’s property. This resulted indistributions from the LLC to plaintiff which were less thanthey should have been, and an increase in profits(excessive distributions) to defendant Axten via his otherentity. Whether these excessive distributions are paid toAxten directly or through another entity he controls, theeffect is much the same.The third cause of action for intentional interference withprospective economic advantage fails to state a cause ofaction: no disruption in the relationship between plaintiffand John Foster LLC is alleged. Plaintiff is simplyreceiving less in distributions from the LLC than she thinksshe is entitled. Moreover, defendant Axten is a party tothe Operating Agreement and one party to a contractcannot be liable for a disruption of thatcontract. (Kasparian v. County of Los Angeles (1995) 38Cal.App.4th 242, 266.)The fourth and fifth causes of action for inducing breachof contract and intentional interference with contractualrelations fail to state a cause of action: defendant Axten,as a party to the Operating Agreement, cannot be liablefor inducing its breach. (See Kasparian, supra.)The sixth cause of action for negligence fails to state acause of action: managing members are liable for“grossly” negligent or reckless conduct (see Corp. Code,§ 16404, subd. (c)), not simple negligence.The seventh cause of action fails to state a cause of actionfor conversion: no specific, identifiable sum of money hasbeen pleaded. A generalized claim of money cannot statea claim for conversion. (Weiss v. Marcus (1975) 51Cal.App.3d 590, 599.)The motion of defendant Axten to strike the first cause ofaction is denied. If punitive damages are impermissible,the proper remedy is to strike the offending paragraph,not the entire cause of action.The motion of defendant Axten to strike 51 of the firstcause of action, which seeks punitives, isgranted. (Freeman & Mills, Inc. v. Belcher Oil Co. (1995)11 Cal.4th 85, 102-103.) The court notes that no motionto strike punitives was made as to that allegation in thesecond cause of action.The demurrer of American Geotechnical to the third

(intentional interference with prospective economicadvantage), fourth (inducing breach of contract), and fifth(intentional interference with contractual relations) causesof action is sustained without leave. The only thingplaintiff alleges is that American Geotechnical has paidrent plaintiff thinks is too low. The wrongdoer, if there isone, is Axten. Moreover, each of these three causes ofaction requires an actual disruption of the relationshipbetween plaintiff and a third party. The facts alleged donot show a disruption in the relationship between plaintiffand John Foster LLC.4 2012-00573681Verona Collection S.R.L.vs Wayne A. BolligMotion of defendant MS International for leave to file across-complaint against defendant Bollig and the plaintiffis granted; the cross-complaint shall be filed within 10days.The proposed cross-complaint seeks only equitable claimsof indemnification and contribution. It does not, asplaintiff argues, improperly accuse counsel of theunauthorized practice of law and with a conspiracy todefraud. That is a crabbed reading of what is concededlya poorly worded paragraph in the proposed crosscomplaint.Defendant may wish to re-write thatparagraph in order to eliminate any confusion in its intent.Defendant Bollig filed a motion for a protective order as tothe subpoena seeking production of documents from WellsFargo Bank. As to Part 1 (accounts standing in the nameof Verona Collection), the motion is granted by limitingthe time period from January 1, 2010, to the present. Inall other respects the motion for a protective order as tothat part is denied. As to Part 2 (accounts standing in thename of MS International), the motion is granted bylimiting the time period from March 1, 2012, to thepresent and by limiting the scope of the request totransactions between MS International and Bollig and MSInternational and Verona, Inc. In all other respects themotion for a protective order as to that part is denied.Defendant Bollig filed a motion for a protective order as tothe subpoena seeking production of documents fromSavino Del Bene. As to Part 1 (shipments from VeronaCollection, etc.), the motion is granted by limiting thetime period from January 1, 2010, to the present. In allother respects the motion for a protective order as to thatpart is denied. As to Part 2 (shipments from VeronaCollection to third parties), the motion for a protectiveorder is granted.9 2013-00625916Jae Hwa Yoon vs EdwardYoonMotion to dismiss is denied without prejudice. Plaintiffwas afforded 20 days within which to file a secondamended complaint but has not done so. Althoughdefendant Edward Yoon argues the 20 days runs from thehearing that misunderstands the terms of the minuteorder. Defendant was ordered to give notice. There is noproof in the court’s file that notice of the ruling was evergiven. Not only has the 20 days leave to amend notexpired, it has not even started.The court notes plaintiff recently filed a probateproceeding involving what appears to be the same

matter. (See 30-2013-00660249.) This signals plaintiffhas abandoned this civil matter.No tentative on the three motions to compel furtherresponses to special interrogatories, form interrogatories,and request for production of documents, as well assanctions, because it appears plaintiff has abandoned thiscase.10 2012-00621102Armand Khosrovian vsCrown Royal Services, LLCThe motions of defendants Crown Royal Services andThomas Gregory to compel discovery are granted.As to the requests for admission, the genuineness of anydocuments and the truth of any matters specified in therequests are deemed admitted. As to the specialinterrogatories and interrogatories, plaintiff is ordered toserve verified answers to those requests, withoutobjection, within 20 days. As to the request forproduction of documents, plaintiff is ordered to serveverified written responses, without objection, and produceany responsive documents within 20 days.Sanctions are appropriate for plaintiff’s failure to respond,but the request for $3,840 for four simple and ratherroutine motions, all to be heard at the same time, isexcessive. The court awards sanctions of $1,600. Thisaward includes all costs and filing fees.There was no opposition to the motions.11 2012-00600001Sealey vs Civic CenterBarrio HousingCorporationMotion for leave to file first amended complaint isgranted. The first amended complaint is deemed filed andserved this date.There was no opposition to the motion.

RULINGS ON LAW& MOTION MATTERSJUDGE ROBERT D. MONARCHDEPT C-31APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5231) to notify thecourt that all parties are submitting on the tentative and no appearance will be necessary. The tentativewill then become the final ruling.If no one appears at the hearing the tentative will be the final ruling. Either side may appear and arguethe court’s tentative ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPAREAN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF APARTY OR THE CASE.TENTATIVE RULINGS ON LAW & MOTION MATTERSJUDGE ROBERT D. MONARCHDEPT C-31Date: Wednesday, July 24, 2013# Case Name1 2012-00616058Lynch vs PSAVPresentation Services Inc.TENTATIVE: SUSTAIN DEMURRER TO SECONDCAUSE OF ACTION; 20 DAYS LEAVE TO AMEND.Assuming that plaintiff was a party, or third partybeneficiary to the contract between PSAV and Plexus, theonly reasonable inference that the court can derive fromthis contract is that the dress kit required by the contractwas to “dress up” the base of the screen to hide theprotruding support legs to provide an aesthetic quality tothe screen to enhance any presentation using this screen.The court cannot infer from the contract that the dress kitwas intended to enhance safety. In fact, the dress kitdiminished the safety of the screen set up by hiding whatmight be considered a dangerous protrusion of the base ofthe screen.In any event, the alleged damages do not flow from abreach of contract but are founded in tort. The courtagrees with defendants that they cannot be held liable fordamages to plaintiff’s health and feelings. Again, it wasnot the objective of this contract to protect thecontracting parties (or any beneficiary thereof) frompersonal injury.Moving party to give notice.2 2013-00641882Mazarei vs RydmanTENTATIVE: SUSTAIN DEMURRERS TO ALL CAUSESOF ACTION; 20 DAYS LEAVE TO AMEND.Plaintiff contends that the only valid contract is Exhibit A,which does not contain a requirement that the escrowholder obtain title insurance or that it must immediatelyrecord the deed. Even if title insurance were required,this would not have covered any liens that occurred afterclosing. Likewise, the recording of the deed would nothave precluded the lien from attaching.The language of Exhibit A supersedes plaintiff’scontradictory claims. No independent duty has beenestablished. The intentional tort claim is bases on thesame allegations as the breach of contract and negligence

claims. Accordingly, all three causes of action fail.Moving parties to give notice.3 2013-00644405Sevastyanov vs WellsFargo Home Mortgage, adivision of Wells FargoBank, N.A.TENTATIVE: OVERRULE DEMURRERS TO 1 ST AND 3 RDCAUSES OF ACTION; SUSTAIN DEMURRERS TO 2 ND ,4 TH AND 5 TH CAUSES OF ACTION WITH 20 DAYSLEAVE TO AMEND.(1 st cause of action)Requiring tender at this point would run counter to theright to cure the default 5 days prior to the sale. (CC2924c(e) ).The litigation privilege per CC 47 does not preclude claimsper CC 2924.12, which places potential liability on thetrustee in violation of CC 2923.6, which was recentlyamended and imposes additional obligations upon thelender/servicer with respect to the loan modificationreview process.However, Exhibit D to the complaint fails to show thatplaintiff provided reasonable evidence of a change infinancial circumstances. The letter to Wells Fargo merelystates that “the borrowers have had a change ofcircumstance as their income and expenses havechanged”. This is insufficient to trigger the application ofCC 2923.6.However, further, plaintiffs have alleged that defendantsviolated the statute by recording the NOTS within 30 daysof their receipt of the 2/27/13, denial letter (Exhibit J tothe complaint) and may be enjoined per CC2923.6 untilthey comply with this statute.(3 rd cause of action)Violation of B&P 17200 is valid and properly pled as aresult of an alleged violation of CC2923.6 which claimsimproper fees. A home under foreclosure is a sufficientbasis to claim standing per B&P 17204.(2 nd cause of action)Alleged violation of CC 2924 fails in that the recodeddocuments show that the chain of interests is proper.(4 th and 5 th causes of action)No facts shown the Quality had a duty or breached a dutyto plaintiffs and no special relationship was establishedentitling plaintiffs to an accounting.Moving party to give notice.4 2012-00605458Pham vs JPMorgan ChaseBank a banking entity assuccessor in Interest toWashington Mutual BankTENTATIVE: SUSTAIN DEMURRERS TO ALL CAUSESOF ACTION WITHOUT LEAVE TO AMEND.No opposition. The motion is presumed to have merit.Request for judicial notice is granted. This is the First

Amended Complaint. Plaintiffs have had the opportunityto correct defects and have not done so. The 1 st cause ofaction appears to be pled for the first time but lacks factsestablishing any kind of wrongdoing and the requisitespecificity. This claim seems to be more properly directedat the FDIC.Moving parties to give notice.6 2012-00554062Hessen vs UnemploymentInsurance7 2012-00601036CACH, LLC VS Kardish8 2012-00595526Hoang vs Saigon NhoNewspaperTENTATIVE: GRANT MOTION FOR LEAVE TO FILEAMENDMENT TO PETITIONNo opposition. Motion is presumed to have merit. Motionis proper per CCP 473(a)(1).TENTATIVE: DENY MOTION TO SET ASIDE DEFAULTPlaintiff’s request for judicial notice are granted.Defendant has not established that he was not served orthat he was not properly served. The Proof of servicesubmitted by the registered process server establishedproper substituted service at the residence owned bydefendant. Defendant has not expressly denied residing atthis address or receiving legal documents. Defendant hasnot established that the Proof of Service is incorrect inany of its details. No basis for relief per CCP 473(b) or473.5.TENTATIVE: DENY MOTION TO COMPEL; GRANTSANCTIONS OF $965 AGAINST PLAINTIFF.It was finally resolved that plaintiff is not seekingdamages for lost income. This results in the conclusionthat there is no good cause to compel further productionof documents substantiating lost income. However, NVDNcould have, and should have clarified this point withdefendants prior the filing of the motion. Accordingly, themotion was brought with substantial justification in lightof conflicting responses to discovery seemingly claimingdamages for lost income.The sanctions of $965 are based upon $250/hr. x 3.5 hrs.plus $60 filing fee and $30 reporting fee.10 2012-00590404Fischer vs National UnionFire Insurance Companyof Pittsburgh, PATENTATIVE: DENY MOTION TO COMPEL FURTHERPRODUCTION OF DOCUMENTS AND DEFENDANT’STESTIMONY.Use of deposition does not comply with CRC 3.1116(a),requiring that the first page of the deposition used as anexhibit state the name of the deponent and the date ofthe deposition. This omission also makes it difficult todetermine if there is compliance with CCP 2025.480(d),requiring that the motion be brought no later than 60days after completing the record of the deposition.Further, plaintiff has not lodged a certified copy of thedeposition per CCP 2025.480(h).On the merits, Defendant has established that the stateby state summary is protected from disclosure by theattorney-client privilege and/or the work product doctrine.Further, plaintiff is not entitled to documents regardingactual past practices of defendant with respect tonotifying motor carrier insureds and the DMV of policy

cancellations.The deposition and declaration of Elayne Wilson establishthat the summary is privileged in that it was prepared byattorneys in order to provide legal advice to theunderwriting department and that there was no impliedwaiver of the privilege. Defendant has not placed thisdocument in issue and the defense of good faith mistakedoes not necessarily implicate advice of counsel. Hertestimony is compelling especially in light of herstatement that defendant was not in compliance with theVehicle Code requirements, which demonstrates there islittle point in compelling testimony of actual practice.However, her testimony concerning undue burden isweak. Defendant probably has the technological ability tomake some reasonable compilation. However, plaintiff hasnot sufficiently articulated good cause to compel furthertestimony and production.Plaintiff’s objections to the Wilson Declaration areOVERRULED.Sanctions were not requested by either party and nonewill be awarded. (CCP 2023.040)11 2012-00589490O’Neill vs VeterinarySurgical Specialist IncTENTATIVE: DENY MOTION TO RECLASSIFYWITHOUT PREJUDICEDefendant has not shown that an award of damages inexcess of $25,000 per defendant is virtually unobtainable.The claim for consequential damages for the care ofStorm was not significantly addressed. Defendantaddressed primarily the claim for return of monies paid todefendants. Plaintiff’s estimates, made under penalty ofperjury, are sufficient to preclude the possibility ofdamages in excess of $25,000 per defendant.The Joinder of defendant VSSI is granted.

RULINGS ON LAW& MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5231) to notify thecourt that all parties are submitting on the tentative and no appearance will be necessary. The tentativewill then become the final ruling.If no one appears at the hearing the tentative will be the final ruling. Either side may appear and arguethe court’s tentative ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPAREAN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF APARTY OR THE CASE.TENTATIVE RULINGS ON LAW & MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31Date: Wednesday, July 31, 2013# Case Name1 2013-00630395McHenry vs WellsFargo Bank, N.A.TENTATIVE RULING:The general demurrer of defendant Fidelity National TitleInsurance Co. to the first and second causes of action in the firstamended complaint of plaintiff Kathryn McHenry is sustained with20 days’ leave to amend.The first cause of action is for violations of Civil Code § 2923.6. Itappears to be based on the notice of trustee’s sale recorded by themoving defendant on 9-27-12. (See FAC at 72.) Plaintiff allegesthat her financial situation improved in 7-12 and that sheattempted to contact co-defendant Wells Fargo about the change infinancial circumstances and a re-evaluation of her application for aloan modification without success. (See FAC at 75-76 and 96-97.)Subdivision (c) of section 2923.6 provides that if a borrowersubmits “a complete application for a first lien loan modificationoffered by, or through, the borrower’s mortgage servicer, amortgage servicer, mortgagee, trustee, beneficiary, or authorizedagent shall not record a notice of default or notice of sale, orconduct a trustee’s sale, while the complete first lien loanmodification application is pending.”Subdivision (g) of section 2923.6 provides that a mortgage servicer“is not obligated to evaluate applications from borrowers who havealready been evaluated or afforded a fair opportunity to beevaluated for a first lien loan modification prior to January 1, 2013,or who have been evaluated or afforded a fair opportunity to beevaluated consistent with the requirements of this section, unlessthere has been a material change in the borrower’s financialcircumstances since the date of the borrower’s previous applicationand that change is documented by the borrower and submitted tothe mortgage servicer.”Thus, although plaintiff has alleged facts showing that codefendantWells Fargo may be obligated to re-evaluate herapplication for a loan modification due her changed financialcircumstances, she has not alleged facts showing that movingdefendant Fidelity has engaged in any acts other than therecording of the notice of trustee’s sale on 9-27-12. The FACspecifically alleges that the plaintiff is still in possession of the

property, and the sale has not gone forward.The second cause of action is for Bus. & Prof. Code § 17200. It isbased on a violation of Civ. Code § 2923.6 and falls with the firstcause of action.2 2013-00645261Suchy TrenchingInc vs CarramanTENTATIVE RULING:Defendant’s Demurrer is overruled as to the 1 st (fraud) and 2 nd(conversion) causes of action and sustained as to the 3 rd(constructive trust) and 4 th (unjust enrichment) causes of actionwithout prejudice to plaintiff seeking a constructive trust andrestitution as remedies. Plaintiff may file an amended pleadingwithin 20 days. Plaintiff may amend the pleading to seekrestitution and constructive trust as remedies. No additionalcauses of action may be added.1 st cause of action for fraud: Defendant contends this causeof action is not sufficiently pleaded because plaintiff has notidentified by amount and date the (at least) 139 checks totaling (atleast) $181,702.13 that defendant allegedly forged.Fraud must generally be pleaded with specificity. Thisparticularity requirement necessitates pleading facts which showhow, when, where, to whom, and by what means therepresentations were made. (Small v. Fritz Companies, Inc.(2003) 30 Cal.4th 167, 184.) However, less specificity is requiredwhen it appears from the nature of the allegations that thedefendant must necessarily possess full information concerning thefacts of the controversy. (Quelimane Co. v. Stewart Title GuarantyCo. (1998)19 Cal.4th 26, 47, 960;Alfaro v. Community Housing Imp. System & Planning Ass'n, Inc.(2009) 171 Cal.App.4th 1356, 1384.) And, the relaxed pleadingrule is applicable here as defendant necessarily has knowledge ofany checks she forged. Further details may be sought bydefendant during discovery. The demurrer to the fraud cause ofaction is thus overruled.2 nd cause of action for conversion: Defendant argues thiscause of action does not adequately allege a specific, identifiablesum because the dates and amounts of each of the checks at-issueare not set forth.“Conversion is the wrongful exercise of dominion over theproperty of another. The elements of a conversion are theplaintiff's ownership or right to possession of the property at thetime of the conversion; the defendant's conversion by a wrongfulact or disposition of property rights; and damages. It is notnecessary that there be a manual taking of the property; it is onlynecessary to show an assumption of control or ownership over theproperty, or that the alleged converter has applied the property tohis own use. (Oakdale Village Group v. Fong (1996) 43Cal.App.4th 539, 543-544.) Conversion is also a strict liability tort.Thus, questions of good faith, lack of knowledge and motive areordinarily immaterial. (Id ) Money cannot be the subject of anaction for conversion unless a specific sum capable of identificationis involved. (Weiss v. Marcus (1975) 51 Cal.App.3d 590, 599.)Here, the checks involved represent specific, identifiablesums. Plaintiff has alleged the number of checks and theaggregate total of the checks. That is sufficient at the pleading

stage. The specific amount of each check and the date are mattersfor discovery. The demurrer to the 2 nd cause of action is thusoverruled.3 rd cause of action for constructive trust: Defendantscorrectly point out that “constructive trust” is not a cause of action,it is a remedy. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59,76.) [It is a remedy which may be invoked when one obtainsproperty by fraud or other wrongful act. (GHK Associates v. MayerGroup, Inc. (1990) 224 Cal.App.3d 856, 878-879.) Accordingly,the demurrer to the 3 rd cause of action is sustained withoutprejudice to plaintiff seeking a constructive trust as aremedy. However, constructive trust is not to be asserted as anindependent cause of action in any amended pleading.4 th cause of action for unjust enrichment: Unjustenrichment is not an independent cause of action. It is a generalprinciple underlying various legal theories, doctrines, and remedieswhich is “synonymous with restitution.” (Melchior v. New LineProductions, Inc. (2003) 106 Cal.App.4th 779, 793.) Plaintiff doesnot dispute, in the opposition, that unjust enrichment is not acause of action, but instead argues that that this cause of actionshould be treated as a request for “restitution.” However,“restitution” itself is also just a remedy.“There is no freestanding cause of action for ‘restitution’ inCalifornia. (Citation.) Common law principles of restitutionrequire a party to return a benefit when the retention ofsuch benefit would unjustly enrich the recipient; a typicalcause of action involving such remedy is ‘quasi-contract.’(Citations.) (Munoz v. MacMillan (2011) 195 Cal.App.4th648, 661.)Accordingly, the demurrer to the 4 th cause of action issustained without prejudice to plaintiff seeking restitution as aremedy for its causes of action. Neither unjust enrichment norrestitution are to be pleaded as independent causes of action inany amended pleading.4 2013-00646096AlcaldeAssociates vsMontclair PinesAssociatesTENTATIVE RULING:The court will grant plaintiffs’ unopposed request for judicial noticeof the recorded documents. See Fontenot v. Wells Fargo Bank,N.A., 198 Cal.App.4 th 256 (2011).The court will also grant defendants’ unopposed request for judicialnotice of the Complaint, the motion to strike, and demurrer filed bydefendants Montclair Pines Associates (“MPA”) and Dr. HowardHigholt, as they are records of this court. See Evid. Code §452(d).Plaintiffs Alcalde Associates (“Alcalde”) and 885 Building Ltd.(“885”) seek a preliminary injunction to (1) maintain RESCOProperties, L.P. (“Resco”) as the property manager for the LakesideProperty, and (2) restore Lakeside Center Management (“LCM”) asthe supervisor of the Tenancy-in-Common (“TIC”), until theproperty can be partitioned.The motion is made pursuant to Sections 527 and 872.130 of theCode of Civil Procedure, specifically with respect to plaintiffs’partition cause of action. A preliminary injunction may issue toprevent waste or protect property in partition cases. See Code Civ.

Proc. §872.130(a). Section 872.130 “gives the court authority totake the protective steps described without having torely...upon..the general provisions as to...injunctions.” See LawRev. Comm’n Comments. Thus, plaintiffs need only show that theinjunction sought meets the criteria specified in Section 872.130.Alcalde and 885 have demonstrated that they have ownershipinterests in the property. Alcalde received an undivided 11.96%interest in the property by Grant Deed dated 09/17/86, andrecorded 10/24/86. (See Not. of Lodgment, Ex. A.) MPA receivedan undivided 76.78% interest in the property by Corporation GrantDeed dated 10/09/86, and recorded 10/24/86. (Id., Ex. B.) And885 received an undivided 11.26% interest by Corporation GrantDeed dated 10/09/86, and recorded 10/24/86. The threepartnerships own the property as tenants-in-common. (See Not.of Lodgment, Ex. A; Soderling Decl., Ex. B, p. 1.)“Waste occurs when the market value of property is substantiallyor permanently diminished or depreciated.’ [Citation omitted]‘[W]aste’ can only be proved, with the possible exception of a fewinstances, by evidence of acts which injuriously affect the marketvalue of the property.’ [Citation omitted] The test is applied flexiblyand includes the ‘ ‘quantity or quality of the estate, the nature andspecies of property, [and] the relation to it of the person chargedto have committed the wrong.’ ” See Dieterich International TruckSales, Inc. v. J.S. & J. Servs., Inc., 3 Cal.App.4 th 1601, 1609(1992).RescoPlaintiffs introduce evidence that Resco has been providingproperty management services for the Lakeside Property, a multitenantindustrial complex, since 1991. (Soderling Decl., 9.) Dr.Higholt acknowledges that Resco has served “effectively” in thisrole, but that he has been unable to get Resco to agree on acontract to continue its services. (Higholt Decl., 13, 17-20.) Heintends to retain Unire Real Estate Group to provide supervision,property management, and asset management services. (Id.,22.)Plaintiffs indicate that Resco is willing to enter into a propertymanagement agreement with the TIC, but that it will require theexisting fee structure to remain in place. (Biram Reply Decl.,4.) They contend that Soderling and Biram have maintained theproperty, developed relationships with tenants, and have thus beenable to realize an incredibly profitable return oninvestment. (Soderling Decl., 19.) Plaintiffs fear that Dr.Higholt’s lack of experience with property management will resultin harm to the property and to the investment.Plaintiffs have certainly established that Resco has been aneffective property manager. And they complain that defendantshave not shown that the proposed replacement property manager,Unire, would be as competent or qualified as Resco. But neitherhave plaintiffs demonstrated that Unire would not be as competentor qualified as Resco. Indeed, Dr. Higholt’s declaration indicatesthat he chose Unire based on their experience with managingindustrial properties, and their ability to provide more services in amore efficient, effective way. (See Higholt Decl., 22.)Still, Resco is currently serving as property manager, and allparties appear to be in agreement that it has carried out its dutiesin laudable fashion. Dr. Higholt indicates in his declaration that he

intends to serve a 90-day notice of the transition between propertymanagers should the court deny plaintiffs’ motion. (See HigholtDecl., 20.) Given Resco’s record of success, the disruption likelyto result from the transition to a new property manager, and thependency of this action, the court finds it appropriate to maintainthe status quo with Resco as property manager, until such time asthe partition cause of action is resolved.Lakeside Center ManagementThe TIC Agreement states that the supervisor is to direct Resco asthey deem appropriate. (Soderling Decl., Ex. B, 1(b).) Thisincludes making decisions about approval of leases, landscapemaintenance companies for the Industrial Park, budgets, andcapital improvements. (Ibid.) Mr. Soderling and Mr. Biramoriginally had supervisory responsibilities, but those were assignedto LCM in 2001. (Soderling Decl., 10-12.) Plaintiffs state thatLCM was formed by Mr. Soderling and Mr. Biram to assist them ineffectuating their supervision of the property. (Id., 10.) Mr.Soderling and Mr. Biram have been “active participants” in thesupervision of the property after the assignment of rights andobligations to LCM, up until their removal in February of thisyear. (Id., 11.) None of the MPA partners apparently took issuewith LCM’s supervision of the property, or their compensation, until2011, when Dr. Higholt first raised his concerns. (Id., 13.)LCM’s contract was apparently terminated by the MPA partnershipeffective 03/27/13. (See Higholt Decl., 15; Soderling Decl., Ex.I.) At present, Dr. Higholt is serving as supervisor of theproperty. (Soderling Decl., 17.) According to Mr. Soderling, Dr.Higholt has no real estate management or supervision experience,and Dr. Higholt does not dispute this. (Soderling Decl.,20.) Given the extent of the supervisor’s duties under the TICAgreement and how they are tied to the property manager’sduties, and to prevent potential waste and protect the property,the court will issue an injunction requiring Dr. Higholt to consultwith LCM in carrying out his supervision duties.No bond will be required.Evidentiary Objections:By Defendants:To Biram Declaration:1. Overruled.2. Overruled.To Zecchini Declaration:1. Sustained. Lack of foundation; lack of authentication ofexhibit.To Soderling Declaration: Paragraph 2: Overruled. Paragraph 3: Overruled. Paragraph 4: Overruled. Paragraph 5: Overruled. Paragraph 6: Overruled Paragraph 7: Overruled. Paragraph 9: Overruled. Paragraph 10: Overruled. Paragraph 11: Overruled. Paragraph 12: Overruled. Paragraph 13: Overruled.

Paragraph 14: Overruled.Paragraph 15: Sustained. Document speaks for itself.Paragraph 16: Overruled.Paragraph 17: Overruled.Paragraph 18: Sustained as to 22-23. Legal conclusion asto waiver.Paragraph 19: Overruled.Paragraph 20: Overruled.By Plaintiffs:To Higholt Declaration:I. Overruled.II. Overruled.III. Overruled.IV. Sustained. Document speaks for itself; speculation.V. Sustained. Document speaks for itself.VI. Sustained, consistent with the court’s ruling on Objection V.VII. Overruled.Overruled.IX. Overruled.X. Overruled.XI. Overruled.XII. Overruled.Sustained. Lacks foundation.Overruled.XV. Overruled.Overruled.Overruled.Overruled.Sustained. Lacks foundation.XX. Overruled.Overruled.VIII.XIII.XIV.XVI.XVII.XVIII.XIX.XXI.To Patel Declaration:I. Sustained. Document speaks for itself.II. Sustained. Document speaks for itself.III. Sustained. Document speaks for itself.Sustained. Document speaks for itself.IV.6 2012-00618092Brown vsWaikaremoanaLTD PartnershipTENTATIVE RULING:Defendant Pacific Coast Elevator Corp. dba Amtech ElevatorServices’ (“Amtech’s”) unopposed Motion for Leave to File Cross-Complaint is GRANTED. Amtech’s proposed Cross-Complaintalleges causes of action for express contractual indemnity,declaratory relief, and equitable indemnity against defendantWaikaremoana Ltd. Partnership and third party Robert Larsen,asserting that the indemnity provision in its contract with Mr.Larsen covers this dispute. The proposed Cross-Complaint arisesout of the same transactions or occurrences forming the basis forplaintiff’s Complaint. See Code Civ. Proc. §§426.50 &428.50(c). There is no evidence to suggest to the court thatAmtech acted in bad faith in failing to bring these causes of actionwhen it filed its answer to the Complaint. To the contrary, itappears that plaintiff’s recent responses to Amtech’s discovery ledAmtech to file the present motion. Thus, leave will be granted.Amtech is ordered to file and serve its proposed Cross-Complaintwithin 10 days.

9 2012-00585254CarnegieMortgage LLC vsReal EstateMortgageNetwork, Inc.TENTATIVE RULING:Defendants’ motion to compel further responses to requestsfor production of documents numbers 60-82 and 86-95 iscontinued to 9/4/13. The parties are to further meet and confer,and to file a joint declaration no more than three-pages inlength listing the efforts made, and the requests still at issue. Thejoint declaration must be filed at least seven court days prior to thenext hearing. Moving parties are to give notice.Defendants seek further responses to requests forproduction of documents numbers 60-82 and 86-95.Supplemental responses were served by Icon on 06/18/13,and this motion was timely filed on 07/08/13 within the 45-daydeadline. On 06/25/13, defense counsel sent a meet and conferletter to Icon’s counsel regarding the supplemental responsesasking for a date documents will be produced. Following severalexchanges via email, there was a proposal to further meet andconfer, possibly the week of 07/08/13. Icon’s counsel sent anemail on 07/08/13 asking if defense counsel wanted to still meetand confer. Instead, this motion was filed.It appears there was still room for further meet and conferefforts. Given that the moving parties’ separate statement isalmost 100 pages in length, and that Icon’s counsel’s call to furthermeet and confer went unanswered, the court orders the parties tofurther meet and confer. Both sides are to further meet andconfer, and file a joint declaration stating their efforts, and to listthe requests that are still at issue. The declaration is to be nomore than three-pages in length. The issue of sanctions will beaddressed at the continued hearing. The court notes that thecontinued hearing may force a continuance of the deposition of Mr.Fleming, but that will have to be worked out between the parties.11 2012-00573681Verona CollectionS.R.L. vs BolligTENTATIVE RULING:The motion of defendant Wayne Bollig for an order compelling thePMK of plaintiff to appear for another deposition session andprovide answers to certain questions, compelling production ofdocuments specified in the amended deposition notice and joinder,and imposing a monetary sanction of $4260 against plaintiff and itscounsel is granted in part and denied in part.Documents. Defendant’s separate statement indicates that hewants “further answers” to requests 1, 2, 3, 4, 5, 6, 7, 8, 10, 11,12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 28, 29, 30,31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 50,51, 52, 53, 54, 55, and 56 in the amended joinder to the codefendant’sdeposition notice served by defendant on 4-9-13. (Exhibit C to moving papers.) The “answers” contained inthe separate statement are actually those in the written objectionto the joinder served by plaintiff on 4-18-13. (Exhibit D to themoving papers.) This objection is not the equivalent of a responseto inspection demand under Code Civ. Proc. § 2031.210 et seq.,and is not binding. Rather, objections authorized under subdivision(a) of Code Civ. Proc. § 2025.410 are proper when the depositionnotice does not comply with section 2025.210 et seq., i.e., errors

or irregularities regarding notice, contents of deposition notice,location of deposition, date of deposition, and length ofdeposition. Although objections to production may be servedbefore the deposition, the party may attend the deposition andrefuse to comply with all or some of the request for production,which places the burden on the noticing party to move to compelproduction under Code Civ. Proc. § 2025.480.Subdivision (a) of Code Civ. Proc. § 2025.480 authorizes a motionby the party seeking discovery where a deponent “fails to answerany question or to produce any document, electronically storedinformation, or tangible thing under the deponent’s control that isspecified in the deposition notice or a deposition subpoena.” Here,because the separate statement focuses on the objections givenbefore the deposition rather than was actually produced bywitness, it is impossible for the Court to know what was actuallyproduced and what was not produced. The responding plaintiffcontends that all non-privileged responsive documents have beenproduced, except documents that relate to Black Eagle andPrimestone, and documents sought by requests 24, 25, 29, 47,and 58. However, plaintiff has also submitted a privilege log withthe opposition. (See Exhibit F to opposition.)To the extent that defendant contends that all documents have notbeen produced, counsel for the parties are instructed to furthermeet and confer with respect to the documents. If the matter isnot resolved, the parties are to submit a joint statement regardingthe documents that are still in issue and the Court will schedule afurther hearing.Deposition appearance and further questioning. Defendantcontends that the witness appeared as the plaintiff’s PMK andshould be compelled to return to California for further questioningbecause the deposition was not completed after two days, partiallybecause it was conducted through an Italian interpreter.The amended joinder to the co-defendant’s deposition notice(Exhibit C to the moving papers) confirms that the depositionsought to be taken was that of the plaintiff, which, as anorganization, had an obligation to designate those officers oremployees most qualified to testify on its behalf regarding thesubject areas set forth in the deposition notice. Code Civ. Proc. §2025.230. In that the joinder set forth 36 areas of inquiry for thedeposition, it appears reasonable that the deposition would takelonger than two days to complete, especially where there are twodefendants, and the plaintiff should produce either the samewitness to testify further or another witness. Again, counsel shouldmeet and confer regarding the remaining areas of inquiry. Thedeposition should take place in Orange County. See Code Civ.Proc. § 2025.250(b).The separate statement indicates that defendant wishes furtheranswers to the following eleven questions for which plaintiff gaveobjections and did not respond:1. To your knowledge, has Dr. Chiavegeto ever provided anyservices to PrimeStone? (172:6-173:13.)2. Has Verona Collection, S.R.L. ever transferred slabs toPrimeStone? (227:23-228:1.)3. Are you a director of PrimeStone? (228:3-5.)4. Are you a shareholder of PrimeStone? (228:10-12.)5. Have you ever been a shareholder of PrimeStone? (228:14-16.)6. Have you ever been a director of PrimeStone? (228:18-20.)

7. Have you ever been an administrator of PrimeStone?(228:22-25.)8. Have you ever been a shareholder of Black Eagle? (229:8-11.)9. Have you ever been a director of Black Eagle? (229:13-15.)10. Have you ever been administrator of Black Eagle? (229:17-19.)11. Have you ever told anyone that Black Eagle is the formerVerona Collection S.R.L.? (260:23-261:15.)12. Did you ever tell anyone that Black Eagle had taken overthe accounts of Verona Collection S.R.L.? (261:17-21.)13. Did you ever tell Franz Kriegel words to the effect that BlackEagle is the former Verona Collection S.R.L.? (262:6-10.)With the exception of the second question, these questions do notappear to be asked of the witness as a PMK of the plaintiffcorporation. Rather, they are more properly asked of the witnessas an individual. As such, the motion is denied to the extent itseeks further answers to the questions except for the question asto whether plaintiff has transferred slabs toPrimeStone. Defendant may ask the other questions of the witnesswhen and if it takes his deposition as an individual.Requests for sanctions. All requests for sanctions are denied.Objections. Defendant’s objections to the attorney declarations ofDuccio Mortillaro and Mark Riera are all overruled.13 2012-00590479Macro-ZTechnologyCompany vs LCC-MZT TEAM IVTENTATIVE RULING:Defendant, Cross-Complainant, and Cross-Defendant LarKorConstruction Company’s Motion for Issuance of a Protective Orderis not ruled upon as MOOT. The parties’ papers indicate they havereached a resolution of those issues.Cross-Defendant Larry Landa’s Motion for Issuance of aProtective Order is GRANTED.A party may file a motion to quash a deposition subpoenafor the production of books and records, which may be grantedupon a showing of good cause and in the court’s discretion. [CCP1987.1]Third Party Financial Records are Subject to a Right of PrivacyThe subpoenas in issue have different lists of documentssought. The Motion doesn’t say which Requests it seek aprotective order for. It states as “examples”, subpoenaRequests 1, 3, and 9 from East West Bank. [Motion, p. 5] It statesas an “example” subpoena Request 1 from U.S. Bank. The Noticeasks for a protective order to both subpoenas, without specifyingwhich requests. Therefore it is assumed that it requests aprotective order as to the entire subpoena.Portions of the subpoena fairly can be read as seekingfinancial records and related documents which pertain to thirdparties – all bank statements and cancelled checks. Since bankand financial records are sought, Landa contends they areprotected by privacy rights.Even highly relevant, nonprivileged information may be shielded

from discovery if its disclosure would impair a person’s ‘inalienableright of privacy’ provided by Calif. Const. Art. 1, § 1.TRG, Civil Procedure Before Trial, Chapter 8C-5, Section8:293, citing Britt v. Superior Court (1978) 20 Cal.3d 844, 855-856.However, privacy protections are not absolute, and in eachcase the court must carefully balance the right of privacy againstthe need for discovery, and may order disclosure if a “compellingpublic interest” would be served by doing so. Id. at Section 8:294,citing Britt v. Superior Court, supra, and John B. v. Superior Court(2006) 38 Cal.4th 1177, 1199.When privacy objections are asserted, the party seekingdiscovery must show a “particularized need” for the confidentialinformation sought:The broad “relevancy to the subject matter” standard isnot enough here. The court must be convinced that theinformation is directly relevant to a cause of action ordefense ... i.e., that it is essential to determining the truthof the matters in dispute.TRG, Civil Procedure Before Trial, Chapter 8C-5, Section8:320, citing Britt v. Superior Court, supra at 859–862, andHarris v. Superior Court (1992) 3 Cal.App.4th 661, 665;emphasis added. No “particularized need” has been shownthat would permit Macro/CJW free rein to traipse throughLanda’s bank records which must contain information aboutpayments to and from people and entities that have nothing todo with this litigation. For each category of informationsought, the Court must determine whether a compelling needfor the information outweighs the third party’s privacyinterests, taking to consideration whether less intrusive meansexist to obtain the information. Life Technologies Corp. v.Superior Court (2011) 197 Cal.App.4 th 640, 655Macro/CJW say they need to be able to trace what Landaspent money received from LarKor on. This exercise alsonecessarily implicates the financial affairs of third parties,especially if the money was used for personal expenses. Therecent stipulated protective order doesn’t change thisanalysis. Disclosure of the information, even if limited, is stillan unwarranted disclosure.There is no showing that any less-intrusive means havebeen tried or are unavailable. The parties say LarKor will beproducing financial documents which will show what was paidto Landa. Once this is done, the obvious less-intrusive thing todo would be to depose Landa, asking him where money wasdeposited and what it was spent on. If Landa isn’t ofassistance on this point, a much narrower subpoena might beproper. For example, for information about deposits,subpoenas should be limited to checks from LarKor, nobodyelse.Now the question is whether there should be a protective orderas to all requests or just some. The Notice says this is a globalmotion and it should be treated as such. On this basis, everyrequest implicates third party rights. For example, Request No. 7to East West Bank asks for signature cards on an account. Whilethis may seem innocuous, if Landa is not the only signatory,

others’ privacy rights are impermissibly impaired.14 2012-00582822Molle vs BACHome LoansServicing LPTENTATIVE RULING:Plaintiff’s motion for reconsideration is denied.CCP §1008 states:“(a) When an application for an order has been made to ajudge, or to a court, and refused in whole or in part, orgranted, or granted conditionally, or on terms, any partyaffected by the order may, within 10 days after serviceupon the party of written notice of entry of the order andbased upon new or different facts, circumstances, or law,make application to the same judge or court that made theorder, to reconsider the matter and modify, amend, orrevoke the prior order. The party making the applicationshall state by affidavit what application was made before,when and to what judge, what order or decisions weremade, and what new or different facts, circumstances, orlaw are claimed to be shown.”The burden under §1008 “is comparable to that of a partyseeking a new trial on the ground of newly discovered evidence:the information must be such that the moving party could not, withreasonable diligence, have discovered or produced it at thetrial.” New York Times Co. v. Sup. Ct. (2005) 135 Cal.App.4th206, 212–213. The legislative intent was to restrict motions forreconsideration to circumstances where a party offers the courtsome fact or circumstance not previously considered, and somevalid reason for not offering it earlier. Gilberd v. AC Transit (1995)32 Cal.App.4th 1494, 1500. A party seeking reconsideration of aprior order based on “new or different facts, circumstances or law”must provide a satisfactory explanation for failing to present theinformation at the first hearing; i.e., a showing of reasonablediligence. Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690. Thecourt cannot consider matters presented at the earlierhearing. CCP §1008(f). Counsel's mistake based on ignorance ofthe law is not a proper basis for reconsideration. Pazderka v.Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 670.Here, the ruling on the demurrer to the SAC was made on04/17/13. The notice of ruling was served on 04/18/13 by mail,which means the motion for reconsideration had to have been filedand served by 05/03/13 (10 days plus 5 days formailing). However, this motion was filed on 05/16/13 and isuntimely.Additionally, the court loses jurisdiction to rule on a pendingmotion for reconsideration after entry of judgment. APRI Ins. Co.v. Sup.Ct. (1999) 76 Cal.App.4th 176, 181. Here, judgment wasentered on 05/01/13 and the court does not have jurisdiction torule on this motion.Plaintiff also claims he signed the motion under penalty ofperjury and therefore, met the affidavit requirement. Again, themotion/affidavit fails to state “what application was made before,when and to what judge, what order or decisions were made, andwhat new or different facts, circumstances, or law are claimed tobe shown.”

Notwithstanding the procedural problems, Plaintiff has failedto show any new or different facts or circumstances that wouldwarrant granting this motion. The securitization arguments werealready raised in the FAC to which the court sustained thedemurrer. Therefore, that allegation is not a new or different fact.As for the request for sanctions recoverable under CCP§1008(d), it is denied as the motion does not appear to have beenbrought in bad faith taking into consideration the fact that movingparty is unrepresented.17 2011-00446368CreditorsAdjustmentBureau, Inc. vsEthos RestaurantGroup, Inc.TENTATIVE RULING:It is unclear why the final judgment amount sought in thismotion ($25,272) is different to the amount sought in the priormotion filed 04/26/13 ($23,875.60). Unless Plaintiff can provide avalid explanation at the hearing, the court is inclined to grant themotion in the lesser amount of $23,875.60 since that was theamount sought originally. Moving party is to give notice.Merits: Plaintiff fails to state the authority for themotion. Nevertheless, pursuant to CCP §187, the court hasauthority to amend the judgment:“When jurisdiction is, by the Constitution or this Code, or byany other statute, conferred on a Court or judicial officer, allthe means necessary to carry it into effect are also given;and in the exercise of this jurisdiction, if the course ofproceeding be not specifically pointed out by this Code orthe statute, any suitable process or mode of proceedingmay be adopted which may appear most conformable to thespirit of this code.”This code provision affording trial courts the meansnecessary to carry their jurisdiction into effect and the power toadopt any suitable process or mode of proceeding which mayappear most conformable to the spirit of the Code relates primarilyto procedural matters, typically to control the court's own process,proceedings and orders, but also may relate to situations in whichthe rights and powers of the parties have been established bysubstantive law or court order but workable means by which thoserights may be enforced or powers implemented have not beengranted by statute. Phillips, Spallas & Angstadt, LLP v. Fotouhi(2011) 197 Cal.App.4th 1132, 1142.The “Stipulation for Entry of Judgment” attached as Exhibit1 to Freed’s declaration shows that “judgment shall beimmediately entered for $26,000” upon a default of the paymentson the original amount of $16,000. Therefore, the judgment wassupposed to be in the amount of $26,000, less $728 (receivedfrom the sheriff for a keeper installed at the defendants’ place ofbusiness), bringing the final judgment amount to$25,272. However, the prior motion that was continued statedthat judgment debtors had a credit of $2,124.40, which wouldbring the total judgment to $23,875.60. Why is the final amountnow changed?Unless Plaintiff can explain the discrepancy, the court isinclined to grant the motion in the amount sought by the priormotion, which was $23,875.60 as opposed to $25,272.00.

20 2012-00561387Inter BiltCorporation vsVericrestFinancial, Inc.TENTATIVE RULING:The unopposed motion for judgment of the pleadings byDefendant Bank of America, N.A. (“BofA”) to Plaintiff Inter BiltCorporation, Inc.’s complaint is granted without leave toamend. Moving party is to give notice.The facts are summarized as follows: John and Danna LeeBlair executed a DOT in 2002 secured by the subjectproperty. They grant deeded the property to Ha Quang Pham in2003. Pham executed a DOT in 2006 (2 nd DOT) and another one in2007 (3 rd DOT). The Blair DOT went into default and the propertywas sold in foreclosure in 2009 to Plaintiff Inter Bilt. Then in 2011,lenders (Vericrest and Summit) on the 2 nd DOT foreclosed on theproperty. Plaintiff then filed this action to quiet title against them,and also against BofA as the lender of the 3 rd DOT despite BofAnever foreclosing on the property.1 st COA – Quiet Title: To assert a cause of action to quiettitle, the complaint must be verified and meet the other pleadingrequirements set forth in CCP §761.020: (1) a legal description ofthe property and street address; (2) title of plaintiff and basis oftitle; (3) adverse claims to title of plaintiff; (4) date as of whichdetermination is sought; and (5) a prayer for determination of titleof plaintiff against adverse claims. A party cannot quiet titlewithout discharging his debt. Aguilar v. Bocci (1974) 39Cal.App.3d 475, 477.Here, BofA recorded a notice of reconveyance (see RJN Exh.P) and therefore has no interest in the property. Since it does nothave an adverse interest, this cause of action against it fails. Themotion is granted as to this claim without leave to amend.2 nd COA – Declaratory Relief: A declaratory relief complaintmust specifically allege that an actual, present controversy exists,and must state the facts of the respective claims concerning thedisputed subject matter. City of Cotati v. Cashman (2002) 29Cal.4 th 69, 79. The complaint will be sufficient if it sets forth factsshowing the existence of an actual controversy relating to theparties’ legal rights and duties, and requests the court to adjudgethese rights and duties. Ludgate Ins. Co. v. Lockheed Martin Corp.(2000) 82 Cal.App.4 th 592, 606.For the same reasons stated above, BofA no longer has anyinterest in the property and therefore, there is no actualcontroversy in existence. The motion is granted as to this claimwithout leave to amend.3 rd COA – Injunctive Relief: Injunctive relief is a remedy andnot a cause of action. Guessous v. Chrome Hearts, LLC (2009)179 Cal.App.4th 1177, 1187. The motion is granted as to thisclaim without leave to amend.Request for Judicial Notice: The unopposed RJN of recordeddocuments is granted (Evid. Code §452(h)).

23 2012-00592663City of Anaheimvs Green HealingCenter PatientsAssociationTENTATIVE RULING:Plaintiff’s unopposed motion for judgment on the pleadingsagainst Defendants is granted without leave to amend. Movingparty is to give notice.Since the time this action was filed, the California SupremeCourt issued its opinion on 05/06/13 in City of Riverside v. InlandEmpire Patents Health and Wellness Center, Inc. (2013) 56 Cal.4 th729 that directly affects the issues in this matter. The Court heldthat the CUA and MMP do not pre-empt local bans on medicalmarijuana dispensaries. “We thus conclude that neither the CUAnor the MMP expressly or impliedly preempts the authority ofCalifornia cities and counties, under their traditional land use andpolice powers, to allow, restrict, limit, or entirely exclude facilitiesthat distribute medical marijuana, and to enforce such policies bynuisance actions. Accordingly, we reject defendants' challenge toRiverside's MMD ordinances.” Id. at *19. With this recent holdingin mind, the merits of the motion for JOP are addressed.Judgment on the Pleadings: A motion by plaintiff can bemade on the ground that the complaint states facts sufficient toconstitute a cause of action against the defendant and “the answerdoes not state facts sufficient to constitute a defense to thecomplaint.” CCP §438(c).1 st COA re City Ordinance: City claims Defendants’ activitiesviolated the City Code §18.90.120.020, which provides that anyZoning Code violation is a public nuisance. City Code §4.20specifically bans medical marijuana dispensaries.“[A] nuisance per se arises when a legislative body withappropriate jurisdiction, in the exercise of the police power,expressly declares a particular object or substance, activity, orcircumstance, to be a nuisance.... [T]o rephrase the rule, to beconsidered a nuisance per se the object, substance, activity orcircumstance at issue must be expressly declared to be a nuisanceby its very existence by some applicable law.” City of Claremont v.Kruse (2009) 177 Cal.App.4 th 1153.Here, there are no facts in Defendants’ answer thatconstitute a valid defense against this claim. Rather, Defendantsadmit they were operating a “medical marijuana collective anddispensary.”Per the recent Supreme Court ruling, the motion to thiscause of action is granted without leave to amend.2 nd COA re Civ. Code §3479 and 3 rd COA re H&S Code§11570: Civ. Code §3479 provides, in pertinent part, “Anythingwhich is injurious to health, including, but not limited to, the illegalsale of controlled substances, … is a nuisance.” H&S Code §11570provides, in pertinent part, “Every building used for the purpose ofunlawfully selling, serving, storing, keeping, manufacturing, orgiving away any controlled substance, precursor, or analogspecified in this division, and every building or place wherein orupon which those acts take place, is a nuisance ….” For the samereasons stated above, the operation of the dispensary was notpermitted under the local ordinance and therefore, sufficient factshave been alleged that Defendants’ conduct constituted a nuisanceunder Civ. Code §3479 and H&S Code §11570. Again, Defendantsfail to state any sufficient facts to support a valid defense, and they

admit they were operating a “medical marijuana collective anddispensary.” The motion to these causes of action are grantedwithout leave to amend.Request for Judicial Notice: The unopposed request forjudicial notice of the City Code is granted (Evid. Code §452(b)).

RULINGS ON LAW& MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5231) to notify the courtthat all parties are submitting on the tentative and no appearance will be necessary. The tentative will thenbecome the final ruling.If no one appears at the hearing the tentative will be the final ruling. Either side may appear and argue thecourt’s tentative ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPARE ANORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY ORTHE CASE.TENTATIVE RULINGS ON LAW & MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31Date: Wednesday, August 7, 2013# Case Name2 2013-00643538Smith vs Orange CountyTransportation Authority3 2013-00638998Tuchman vs GenuineScooters LLCTENTATIVE AND ANALYSIS:The demurrer of defendants to the 1st cause ofaction for motor vehicle and the 2 nd cause of action forbreach of statutory duty is sustained with 20-days leaveto amend. The court construes plaintiff’s indication thatplaintiff will be filing an amended complaint as aconcession that the current pleading is not sufficient. Ifplaintiff files a First Amended Complaint prior to thehearing, plaintiff should immediately notify the clerk inC31 and the demurrer will be taken off calendar.TENTATIVE RULING:The demurrers of defendants Genuine Scooters, LLC,Philip McCaleb, Trey Duren, and Carolyn Meyer areSUSTAINED in part and OVERRULED in part, as follows:1. Both parties attach documents to their papers thatare inappropriate for the court’s consideration ondemurrer. The documents are not attached to theComplaint, and neither party requested judicialnotice of them. See Code Civ. Proc.§430.30(a). None of these documents will beconsidered.2. Defendants’ demurrer to the First Cause of Actionis SUSTAINED with leave to amend. Customer listscan be considered trade secrets where the holder“expended time and effort identifying customerswith particular needs or characteristics,” asopposed to “mere identities and locations ofcustomers where anyone could easily identify[them] as potential customers.” See Morlife, Inc.v. Perry, 56 Cal.App.4 th 1514, 1521-1522(1997). Here, plaintiff alleges only that he hadcustomers fill out warranty cards which were thenforwarded to Genuine Scooters. This is not asubstantial investment of time andresources. Moreover, plaintiff attached an exhibitto his Complaint which contained names of severalof his customers. This would undercut his claimthat the customer list was kept confidential.

3. The demurrer to the Second and Third Causes ofAction are SUSTAINED without leave to amend asto defendants McCaleb, Duren, and Meyer,inasmuch as none of these defendants is alleged tohave been a party to the contract at issue.4. Genuine Scooters’ demurrers to the Second andThird Causes of Action are OVERRULED. Genuineis alleged to have signed the 06/28/07 Agreement,even though plaintiff attached an unsigned copy ofthat agreement to the Complaint as Exhibit A. Theagreement also appears to have been GenuineScooters’ own form.5. Plaintiff may file an amended complaint within 15days. However, plaintiff is admonished to refrainfrom attaching documents to his amended pleadingthat compromise the privacy of non-parties.4 2012-00559812Younger vs RamirezTENTATIVE RULING:DemurrerDefendants’ Demurrer is sustained as to the 1 st(fraudulent inducement) and 2 nd (fraud) causes of actionwith 15-days leave to amend, sustained without leave toamend as to the 3 rd cause of action (intentionalmisrepresentation), and overruled as to the 5 th cause ofaction (nuisance). The leave to amend granted is limitedto adding any additional facts to the existing causes ofaction. Plaintiff may not plead any new causes ofaction. Defendants’ Request for Judicial Notice of thecomplaint, first amended complaint, and second amendedcomplaint is denied. The request was not made in aseparate document as required by CRC 3.1113(l). Thecourt further notes that while defendants indicate copiesof the pertinent documents are attached as exhibits(Demurrer; 3), no exhibits are actually attached.The 1 st and 2 nd causes of action for fraudulentinducement and fraud are not adequately pleaded.“The following elements must be pleaded to state a causeof action for fraud: (1) a misrepresentation of a materialfact; (2) knowledge of falsity; (3) intent to deceive andinduce reliance; (4) justifiable reliance on themisrepresentation; and (5) resulting damages.” (CenturySur. Co. v. Crosby Ins., Inc. (2004) 124 Cal.App.4th 116,122.) In addition, fraud must be pleaded withspecificity. General and conclusory allegations do notsuffice. This particularity requirement necessitatespleading facts which show how, when, where, to whom,and by what means the representations weremade. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th167, 184.)Plaintiff alleges he relied upon a misrepresentationmade by Miguel Puente when seeking access to makeplumbing repairs on plaintiff’s property. Plaintiffadequately alleges the how, when, where, to whom, andby what means the representations weremade. However, plaintiff has not adequately alleged whythe moving party defendants are liable for the statementsof Puente. The boilerplate allegations of agency,employment, authority, etc., made in 13 are insufficient

for a fraud cause of action. The allegations areparticularly inadequate as to defendants Cheryl Ramirezand Vista Real Estate Corp. Plaintiff alleges they wereagents of the owners of the property (New Hope) (4AC; 2) and that plaintiff spoke with Ramirez shortly after theprior owner of the defendant’s property died. (4AC; 18) How such facts would warrant holding Ramirez andVista liable for statements made by Puente, a plumber, isnot clear.In short, in order to plead fraud causes of actionagainst defendants, who are not the ones who made theactual representations, plaintiff needs specific factsexplaining the relationships between the parties andshowing why each of the moving party defendants is liablefor the representations made by Puente.The 3 rd cause of action for intentionalmisrepresentation is duplicative of the 2 nd cause of actionfor fraud and is thus unnecessary. An intentionalmisrepresentation cause of action is a fraud cause ofaction. No purpose is served by having this cause ofaction stated twice under different labels.The 5 th cause of action for nuisance is sufficientlystated. Unlike fraud, nuisance need not be pleaded withspecificity. Accordingly, the conclusory agency allegationsin 13 are adequate to plead this cause of action againstall the moving party defendants. In addition, plaintiff hasadequately alleged proof of interference with the use andenjoyment of his property and damages resulting fromthat interference. (CACI 2021) Defendant contendsnuisance is not applicable here because this was a“trespassory” act and that nuisance is a “nontrespassoryinterference with the private use and enjoyment ofland.” (San Diego Gas & Electric Co. v. Superior Court(1996) 13 Cal.4th 893, 937.) However, while the caselaw is clear that a trespass is not required for a nuisancecause of action, there does not appear to be any reason anuisance cause of action cannot be asserted at thepleading state where a trespass has also allegedlyoccurred. The demurrer to this cause of action is thusoverruled.While the pleading at-issue is the Fourth AmendedComplaint, the court will grant plaintiff leave to amend inlight of the fact that this is the 1 st time the court has ruledon the sufficiency of plaintiff’s pleading. However,plaintiff is informed that it is highly unlikely leave toamend will be granted again in the event a demurrer toany subsequent pleading is sustained.Motion to StrikeDefendants’ Motion to Strike is moot as toRequests 1-6 as those allegations are contained in thecauses of action to which the demurrer is sustained. Themotion is granted without leave to amend as to Requests8 and 10 (requests for attorney’s fees in the trespass andnuisance causes of action) and granted with 15-daysleave to amend as to Requests 7, 9, and 11 (punitives).

The requests for attorney’s fees in the 4 th(trespass) and 5 th (nuisance) causes of action (Requests 8and 10) are stricken without leave to amend as plaintiffhas not pleaded any basis for an award of fees in thepleading nor set forth a basis for an award of fees in theopposition to the motion.5 2012-00565096Kenneth Tipton andPamela Tipton Trustees ofthe 2000 Tipton FamilyRevocable Trust vsWarner Bushard LLCThe motion to strike the requests for punitivedamages in the 4 th and 5 th causes of action and the prayeris granted with leave to amend. As noted in thediscussion of the demurrer, the allegations of fraud arenot set forth with sufficient specificity. In particular,plaintiff has not alleged facts sufficient to show that themoving party defendants are liable for themisrepresentations of Puente. The facts alleged are alsonot sufficient to show malice in the actions taken onplaintiff’s property as plaintiff has not sufficiently allegedwhich defendants did what. Lumping all the defendantstogether and vaguely alleging they were all the agents ofthe others is not sufficient to support a claim for punitivedamages. And, with regard to the corporate defendants,plaintiff has not sufficiently alleged they authorized orratified the actions taken. (CC 3294(b))TENTATIVE RULING:MOTIONS 1 AND 21 st COA – Intentional MisrepresentationThe demurrers of defendants WB, McDermottt,Wescombe, Meyer, Meyer LLC, and GTW to the FirstAction are sustained with leave to amend.Fraud claims must be pled with particularity, in order to“furnish the defendant with certain definite charges whichcan be intelligently met.” See Laving v. Jessup, 161Cal.App.2d 59, 69 (1958) (quoted in Committee onChildren’s Television, Inc. v. General Foods Corp., 35Cal.3d 197, 216 (1983)). Every element of the claimmust be pled with specificity. The “particularityrequirement [for fraud] necessitates pleading facts which'show how, when, where, to whom, and by whatmeans the representations were tendered.’” Lazar v. Sup.Ct., 12 Cal.4 th 631, 645 (1996) (emphasis added). And“against a corporation [this] requires the plaintiff to allegethe names of the persons who made the allegedlyfraudulent representations, their authority to speak, towhom they spoke, what they said or wrote, and when itwas said or written.” Tarmann v. State Farm Mut. AutoIns. Co., 2 Cal.App.4th 153, 157 (1991).Plaintiffs have not alleged that any defendant, aside fromWarner Bushard, LLC (“WB”), made any representations,or provided any information. And even the allegationswith respect to the “representations” made by WB areunclear. Plaintiffs allege that WB “provided” them withthe May 2009 rent roll attached to the First AmendedComplaint (“FAC”) as Exhibit A. (See FAC,39.) However, plaintiffs fail to allege who at WBprovided this document, what he/she said, and whathis/her authority was to speak on behalf of WB. Plaintiffsrepeat this vague pleading with respect to the July 2009Rent Statement, which, as defendants point out, postdatesthe signing of the Purchase/Sale Agreement. (SeeFAC, 44; Ex. C.)

The allegations are even less specific with respect to theindividual defendants affiliated with WB. Plaintiffs do notallege that these individuals themselves actually said ordid anything. In fact, plaintiffs’ only allegation about theindividual WB-affiliated defendants is that they “validatedand approved the misrepresentations and omissions ofthe managing members of Warner” and “receiv[ed]distributions prior to” WB’s dissolution at the end ofDecember 2011. (FAC, 32, 79.) But this statement isconclusory. There are no facts to indicate what theseindividual defendants said or did to validate or approveany representations. To the extent that the individualmembers of WB were acting in the scope of their roles asmembers, they cannot be held liable for an obligationarising from contract or tort. See Corp. Code§17101(a). There is no specific allegation that theseindividual defendants personally participated in thealleged tort. See People v. Pacific Landmark, 129Cal.App.4 th 1203, 1216-1217 (2005).2 nd COA – Negligent MisrepresentationThe demurrers are sustained with leave to amend as to allnamed defendants.“The elements of negligent misrepresentation are (1) themisrepresentation of a past or existing material fact, (2)without reasonable ground for believing it to be true, (3)with intent to induce another's reliance on the factmisrepresented, (4) justifiable reliance on themisrepresentation, and (5) resulting damage. While thereis some conflict in the case law discussing the precisedegree of particularity required in the pleading of a claimfor negligent misrepresentation, there is a consensus thatthe causal elements, particularly the allegations ofreliance, must be specifically pleaded.” National UnionFire Ins. Co. of Pittsburgh, PA v. Cambridge IntegratedServices Group, Inc. (2009) 171 Cal.App.4th 35, 50(citations and quotations omitted).As noted above, plaintiffs do not allege who at WB maderepresentations, and what their authority was to makesuch representations. And plaintiffs fail to allege whatany of the individual defendants said or did.3 rd COA – Financial Elder AbuseWB’s demurrer to the Third Cause of Action isoverruled. Financial abuse occurs when a person or entitytakes, secretes, appropriates, obtains, or retains personalproperty of an elder adult, or assists in such taking, withintent to defraud. See Welf. & Inst. Code§15610.30(a)(1). Plaintiffs have alleged that as-yetunidentified representatives of WB induced them topurchase the properties for an inflated value onrepresentations that the rental income from the propertywould be substantially higher.However, the demurrers of defendants McDermott,Wescombe, Meyer, Meyer LLC, and GTW are sustainedwith leave to amend. As stated previously, plaintiffsmake no specific allegations about what any of theseindividual defendants actually did.

5 th – 7 th COA’s – Breach of Contract, Breach of ImpliedCovenant of Good Faith and Fair Dealing, and Breach ofWarrantiesThe demurrers are sustained without leave to amend asto demurring defendants Meyer LLC, GTW, McDermott,Wescombe, and Meyer. None of these individuals is listedas a party to the Purchase/Sale Agreement. Mr.Wescombe is the only one of these defendants whosename appears on the Agreement, but only because heappears to have signed the Agreement on WB’s behalf,and not in his personal capacity.MOTIONS NUMBER 3 and 4:TENTATIVE RULING:TENTATIVE RULING (both motions):Motion No. 3:2 nd COA – Negligent MisrepresentationThe demurrer to the Second Cause of Action is sustainedwith leave to amend for the same reasons articulated withrespect to Motions 1 & 2.3 rd COA – Financial Elder AbuseThe demurrer to the Third Cause of Action isoverruled. Plaintiffs allege that NAI, Steven G. Economos,George P. Economos, and Mr. DeWolf acted as brokersand/or listing agents for the purchase of the properties inquestion. (FAC, 11-14.) Mr. DeWolf is listed as seller’sagent, and NAI is listed as Mr. DeWolf’s agency, on thePurchase/Sale Agreement. Thus, these defendantsexpressly assumed the contractual duty to disclose, andconceivably made a commission on the sale of theproperties. (See FAC, Ex. B.) Plaintiffs allege thatdefendants knew that the actual monthly rental incomefor the properties was substantially less than thatdisclosed on the May 2009 rent roll. (FAC,109.) Additionally, plaintiffs allege that StevenEconomos and George Economos were members ofWB. Although it is not yet clear what each defendants’actual role was in the transaction, a statutory cause ofaction for financial elder abuse is alleged when thedefendant “knew or should have known that [their]conduct is likely to be harmful to the elder or dependentadult.” See Welf. & Inst. Code §15610.30(b). Plaintiffs’allegations, while scanty, are sufficient to withstanddemurrer for this cause of action.4 th COA – Failure to DiscloseThe demurrer to the Fourth Cause of Action is sustainedwith leave to amend.“[T]he elements of an action for fraud and deceit basedon a concealment are: (1) the defendant must haveconcealed or suppressed a material fact, (2) thedefendant must have been under a duty to disclose thefact to the plaintiff, (3) the defendant must haveintentionally concealed or suppressed the fact with theintent to defraud the plaintiff, (4) the plaintiff must havebeen unaware of the fact and would not have acted as hedid if he had known of the concealed or suppressed fact,and (5) as a result of the concealment or suppression ofthe fact, the plaintiff must have sustaineddamage.” Boschma v. Home Loan Center, Inc. 198

Cal.App.4th 230, 248 (2011). Here, it is not clear that alldemurring defendants were under a duty todisclose. Only Mr. DeWolf and NAI are listed on thePurchase/Sale Agreement. It is not clear how StevenEconomos and George Economos were connected to thetransaction, and what the scope of their duty was.In addition, plaintiffs do not allege that defendants failedto make disclosures with the intent to defraud. Rather,plaintiffs appear to allege that the failure to disclose was“negligent,” rather than intentional. (See FAC, 115.)Motion No. 4:Given the court’s ruling on defendants’ demurrer to theFourth Cause of Action, the motion to strike is moot.The court grants 20 days leave to amend.7 2012-00537526Mid-Century InsuranceCompany vs BradfordWhite CorporationTentative Ruling:Cross-Complainant Robert Fischer Plumbing, Inc.’sunopposed motions to deem facts admitted, compelresponses to form and special interrogatories, andrequests for production are granted. Cross-DefendantBradford White Corporation is to provide verifiedresponses without objections to the interrogatories andrequests for production within 30 days after notice of thisruling is served. Cross-Defendant and its counsel are topay sanctions of $320 per motion (or total of $1,280) toCross-Complainant within 30 days. Moving party is togive notice.Cross-Defendant failed to file an opposition to anyof these four motions despite proper notice.Special & Form Rogs: Cross- Complainant hascomplied with the requirements in bringing the motion tocompel responses to Special and Form Rogs per CCP§2030.290 and made a showing that the interrogatorieswere served upon Plaintiff, that the time to respond hadexpired, and that no responses of any kind had beenserved (see Snow Declarations). Leach v. Sup. Ct. (1980)111 Cal.App.3d 902, 905–906. There is no need toinformally resolve the dispute. CCP §2030.290; Leach,supra, at 906. Since Cross-Defendant did not respond, itshas waived its right to object to the interrogatories. CCP§2030.290. Cross-Defendant is ordered to serve verifiedresponses without objection.RFP: Where there has been no timely response toa CCP §2031.010 demand, the first thing the demandingparty must do is to seek an order compelling a response.There is no need to informally resolve the dispute. CCP§2031.300. (TRG, Cal. Prac. Guide, Civ. Proc. Before Trial§§8:1483 and 8:1486.) Here, Cross-Complainant hascomplied with the requirements in bringing this motionand made a showing that the demand for production wasserved upon Cross-Defendant and that it failed torespond. Cross-Defendant must serve verified responseswithout objection.RFAs: Under CCP §2033.280:

“(c) The court shall make this order [to deemmatters admitted], unless it finds that the party towhom the requests for admission have beendirected has served, before the hearing on themotion, a proposed response to the requests foradmission that is in substantial compliance withSection 2033.220. It is mandatory that the courtimpose a monetary sanction . . . on the party orattorney, or both, whose failure to serve a timelyresponse to requests for admission necessitatedthis motion.” (Emphasis added.)No attempt to meet and confer is necessary if noresponses were given. See Demyer v. Costa Mesa MobileHome Estates (1995) 36 Cal.App.4th 393, 395 fn. 4(citing text) (disapproved on other grounds in Wilcox v.Birtwhistle (1999) 21 Cal.4th 973, 983 fn. 12).Here, Cross-Complainant served Cross-Defendantwith Requests for Admission and no response wasgiven. Unless Cross-Defendant makes some kind ofshowing that it served responses prior to the hearing atthe hearing, the court is required to order the matters inthe RFAs to be deemed admitted per CCP §2033.280(c).Sanctions: The court is authorized to awardsanctions for the motions to compel responses to Rogs(CCP §2030.290) and RFPs (CCP §2031.300), and motionto deem matters admitted (CCP §2033.280) against thelosing party. Although the statutes are silent on thematter, the CRC authorize an award of sanctions “eventhough no opposition to the motion was filed, oropposition ... was withdrawn, or the requested discoverywas provided ... after the motion was filed.“ CRC Rule3.1348(a).Here, Attorney Higgins states he spent two hoursat $140/hour and seeks to be reimbursed for six hours oftravel time, plus one hour for the hearing, and a $60 filingfee plus $30 court reporter fee, for each motion. Thisamount is excessive and counsel will not be allowed torecover for travel time, especially since he is duplicatingthe amount for each motion. Sanctions are awarded inthe amount of $320 (2 hours for each motion at$140/hour, plus $60 filing fee) for each motion againstCross-Defendant and its counsel.10 2013-00631800Mkrtychyan vs PorscheCars North America IncTENTATIVE RULING:Plaintiff’s Motion for an Order ReimbursingPlaintiff’s Attorney Fees, Costs, and Expenses is grantedin part. Plaintiff is awarded $12,600 in attorney’s feesand $67.50 in expenses/costs. The $67.50 for costsincurred in filing this motion is in addition to the costssought in the Memorandum of Costs filed 5-21-13.DiscussionCC 1794(d) provides:“(d) If the buyer prevails in an action under thissection, the buyer shall be allowed by the court to

ecover as part of the judgment a sum equal to theaggregate amount of costs and expenses, includingattorney's fees based on actual time expended,determined by the court to have been reasonablyincurred by the buyer in connection with thecommencement and prosecution of such action.”Here, the settlement of the parties provides thatdefendant would pay the fees and costs reasonablyincurred by plaintiff as determined by the court. Plaintiffis thus entitled to his reasonably attorney‘s fees andcosts.Defendant argues the court should award plaintiffno fees citing to Dominguez v. American Suzuki MotorCorp. (2008) 160 Cal.App.4th 53. In Dominguez, thedefendant made a pre-litigation offer to repurchase amotorcycle. The matter was not resolved because plaintiffsought attorney’s fees and penalties and thus the plaintifffiled a complaint. The Dominguez court found thedefendant was entitled to summary judgment on thosefacts because it had complied with its obligations underthe lemon law. The defendant was not required to payattorney’s fees in connection with a pre-litigation offer torepurchase. (Id. at 60.)Defendant contends it made an offer to repurchasethe vehicle prior to the filing of this case and thus thiscase falls under Dominguez. Defendant points to an e-mail from plaintiff’s counsel to defendant’s legaldepartment, dated 2-25-13, in which plaintiff’s attorneyreferenced an offer by defendant to repurchase thevehicle. (Exh. A to Opposition) However, the e-mail alsonoted that the parties still needed to reach an agreementon the “dollar figures.” Moreover, at that point, the actionhad already been filed. [The complaint was filed on 2-19-13.]And, finally, the argument that plaintiff is notentitled to costs and attorney’s fees appears to beinconsistent with the settlement agreement. Theagreement provides that defendant will pay plaintiff’sstatutory costs and expenses “including reasonableattorneys’ fees in the amount determined by the Court tohave been reasonably incurred by Plaintiff in connectionwith the commencement and prosecution of thisaction.” It is difficult to reconcile that language withdefendant’s argument that plaintiff is not entitled to anyfees at all under these circumstances, circumstances thatwere known to defendant when the settlement wasentered. The court is cognizant that defendant’sargument might be characterized as an argument thatplaintiff’s reasonable fees here are zero. But, thelanguage of the settlement agreement providing thatdefendant would pay plaintiff’s reasonable attorney’s feesimplies that plaintiff will get some fees.In short, pursuant to the settlement agreement,plaintiff is entitled to his reasonable costs and fees – withthe determination of the reasonable amount of feescommitted to the discretion of the trial court. In makingthis determination, the trial court considers the nature of

the litigation, its difficulty, the amount involved, the skillrequired in its handling, the skill employed, the attentiongiven, the success or failure, and other circumstances inthe case. (PLCM Group v. Drexler (2000) 22 Cal.4th1084, 1095.)Plaintiff was successful, but this case was notcomplex or difficult. Plaintiff’s attorney’s investigated,talked to their client, looked over the documentation, fileda complaint, negotiated a settlement, and filed thismotion. While there certainly may be lemon law caseswhich warrant billing rates of $475 (attorneys Kane andAnderson), $425 (attorney Kasparian), and $375(attorney Aslanian) per hour, this is not such acase. Given the lack of complexity and difficulty, thecourt finds that the reasonable billing rate here is$300/hour for all the attorneys. In making thatdetermination, the court is not casting doubt on thequalifications and experience of plaintiff’s attorneys. Thecourt is simply finding that in this particular case, a billingrate in excess of $300/hour is not justifiable.The next issue is how much attorney time isreasonable. Plaintiff claims 62.81 hours and hassubmitted detailed time records showing how much timewas spent by each attorney. However, it appears to thecourt that more time was spent by all these differentattorneys on this matter than was warranted. As notedby defendants, the parties were in the process ofnegotiating a settlement when this matter was filed. Inaddition, while the attorneys are free to work together inwhatever manner they deem fit, there appears to havebeen duplication of effort and more hours spent on thematter than was reasonable.In light of the all the circumstances, the court findsthe following to be reasonable:12 hours: Actions taken to commence the lawsuit(meetingwith client; reviewing the underlyingdocuments andfacts; preparing the complaint):20 hours: Negotiating the settlement (reviewing offers;conferring with client; communicating withopposingcounsel; reviewing settlement documents)10 hours: Motion for attorney’s fees (6 hours preparingthemotion; 2 hours for reply; 2 hours forhearing)42 hours: Total hours reasonably spent in thecommencement and prosecution of thisaction.The total amount of reasonable attorney’s fees inthis matter is thus $12,600 [$300 x 42 = $12,600.] Thiscourt will not determine how those fees are to be splitamong the various law firms that representedplaintiff. Plaintiff’s attorney will have to meet and conferon that issue.

11 2011-00443784Olen Commercial RealtyCorp vs Tekon UniversalSciences IncTENTATIVE RULING:The motion of plaintiff and judgment creditor OlenCommercial Realty Corp. for an order amending thejudgment to add Tekon Corporation as a judgment debtoris denied.Plaintiff contends that the judgment should be amendedunder Code Civ. Proc. § 187, which pertains to the Court’sinherent powers, to add Tekon Corporation as anadditional judgment debtor. Plaintiff contends that TekonCorporation is an alter ego of defendant and judgmentdebtor Tekon Universal Sciences because, among otherthings, the two companies have the same address and thewebsite for Tekon Universal Sciences immediately redirectsto www.teckon.com. Plaintiff contends that thisshows that the two companies are one and the same.According to NEC Electronics, Inc. v. Hurt (1989) 208Cal.App.3d 772, 778, the Court has authority to amend ajudgment to add additional judgment debtors. Moreover,judgments are often amended to add additional judgmentdebtors on the ground that a person or entity of theoriginal judgment debtor. Ibid. This is an equitableprocedure based on the theory that the Court is notamending the judgment to add a new defendant but ismerely inserting the correct name of the realdefendant. Ibid.Such a procedure is an appropriate and complete methodby which to bind new individual defendants where it canbe demonstrated that in their capacity as alter ego of thecorporation they in fact had control of the previouslitigation, and thus were virtually represented in thelawsuit. NEC Electronics, Inc. v. Hurt, supra, 208Cal.App.3d 772, 778. In other words, the claim ofindividual liability is made at some later stage in theaction, the judgment can be made individually binding ona person associated with the corporation only if theindividual to be charged, personally or through arepresentative, had control of the litigation and occasionto conduct it with a diligence corresponding to the risk ofpersonal liability that was involved.” Id. at pp. 778-779.Not only has the moving plaintiff and judgment creditorfailed to submit evidence to make the required showing,but Tekon Corporation has submitted evidence showingthat it is not even an alter ego of judgment debtor TekonCorporation. Rather, the declarations of William Woo andAntonio Suarez show that the corporations are completelyseparate despite both having the word “Tekon.”12 2012-00595624Mehl vs ZetrenneTENTATIVE RULING:The Motion for Summary Judgment of defendantsEleonore Zetrenne and Mark Kobayashi is granted.Defendants have submitted evidence establishingthat plaintiffs suspected plaintiff Kristin Mehl she had

suffered an injury as the result of defendants’ negligenceno later than August 2011, more than 1 year prior to thefiling of this action. (Fact 1) Plaintiffs have indicated theydo not oppose the motion and thus have not filed anyopposition raising a triable issue of fact as to whenplaintiffs were on notice of the possible negligence. Theaction is thus barred by the one-year statute oflimitations.“In an action for injury or death against a healthcare provider based upon such person's allegedprofessional negligence, the time for thecommencement of action shall be three years afterthe date of injury or one year after the plaintiffdiscovers, or through the use of reasonablediligence should have discovered, the injury,whichever occurs first….” (CCP 340.5)

RULINGS ON LAW& MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5231) to notify the courtthat all parties are submitting on the tentative and no appearance will be necessary. The tentative will thenbecome the final ruling.If no one appears at the hearing the tentative will be the final ruling. Either side may appear and argue thecourt’s tentative ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPARE ANORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY ORTHE CASE.TENTATIVE RULINGS ON LAW & MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31Date: Wednesday, August 14, 2013# Case Name3 2013-00655840Dement vs Gloria Trust#12761 Southland HomesReal Estate andInvestment as TrusteeNDEx, L.L.C.TENTATIVE RULING:Motion No. 1 – Demurrer: Defendant Gloria Trust#2761, Southland Homes Real Estate and Investment asTrustee (“Trust”)’s unopposed general demurrers to COAs1-6 are sustained. Moving party is to give notice.All of Plaintiff’s claims center around the argumentthat the chain of ownership was defective and therefore,there was never any authority by the foreclosingdefendants to foreclose upon the property, and therefore,the sale should be set aside. Defendant Trust argues thatit is a bona fide purchaser (“BFP”) and the sale cannot beset aside as to it.A BFP for value at a nonjudicial foreclosure salehas the benefit of a conclusive presumption that theforeclosure sale was properly noticed: A recital in thetrustee's deed (executed pursuant to the power of sale) ofcompliance with “all requirements of law” regardingmailing or personal delivery and publication or posting ofthe copies of notice of default and notice of sale “shallconstitute prima facie evidence of compliance with theserequirements and conclusive evidence thereof in favor ofbona fide purchasers and encumbrancers for value andwithout notice.” Civ. Code §2924(c); Bank of America,N.A. v. La Jolla Group II (2005) 129 Cal.App.4th 706,714; Melendrez v. D & I Investment, Inc. (2005) 127Cal.App.4th 1238, 1255.For purposes of the § 2924(c) presumption, a BFPis one who pays value for the property without knowledgeor notice of “the asserted rights of another.” Melendrez v.D & I Investment, Inc., supra, 127 Cal.App.4th at1253. Any fraud by the trustee and/or beneficiary duringthe sale process is not imputed to the BFP and, thus,cannot itself support setting the sale aside. Id. at 1256–1258 [absent evidence BFP knew lender failed to instructtrustee to postpone sale based on repayment agreementbetween borrowers and lender, borrowers could not set

BFP sale aside].Complaint 37 specifically addresses this issue byalleging the Trust is not a BFP because there was no valuepaid for the property since no price was listed on theTrustee’s Deed Upon Sale. However, the allegations inthe Complaint are premised only upon the lack of thepurchase price, but per Trust’s RJN Exh. 2, the recordeddocument shows that the consideration paid for thetransfer was $337,600. BFP status does not requirepayment of the property's fair market value; the buyerneed only part with something of value in exchange forthe property. Melendrez v. D & I Investment, Inc., supra,127 Cal.App.4th at 1251–1252. Plaintiff has not objectedto the RJN. Additionally, there are no facts that the Trustknew of any fraudulent conduct by the foreclosingdefendants. As such, the unopposed demurrers to all 6COAs are sustained without leave to amend.The unopposed request for judicial notice ofrecorded documents and court judgment is granted (Evid.Code §452(d), (h)).Motion No. 2 – Motion to Expunge Lis Pendens: TheTrust’s unopposed motion to expunge lis pendens isgranted, and awarded $790 in attorney’s fees and costsrelating to this motion to be paid within 30 days.In order to grant a motion to expunge a lispendens, a court must find at least one of the following:(1) “the pleading on which the notice is based does notcontain a real property claim.” CCP §405.31; or (2) “theclaimant has not established by a preponderance of theevidence the probable validity of the real propertyclaim.” CCP §405.32.The only difference between the two code sectionsis that a motion brought under §405.31 is reviewed like ademurrer, whereas a motion brought under §405.32requires a judicial evaluation of the merits of theclaimant's case. Kirkeby v. Sup.Ct. (2004) 33 Cal.4th642, 651.“The question whether to expunge or not toexpunge a lis pendens is committed to the sounddiscretion of the superior court.” Sheets v. Sup. Ct.(1978) 86 Cal. App. 3D 68, 70.Unlike most motions, the burden of proof is on theopposing party, i.e., the lis pendensclaimant. CCP§405.30. Under CCP §405.31, it is clearthat there is a real property claim. Under CCP §405.32,however, Plaintiff has failed to prove that the Trust wasnot a BFP by showing that there was no value paid or thatthe Trust had no knowledge of the “falsely” recordeddocuments. Plaintiff has not established any proof ofprevailing on the motion. The motion is granted.The court is required to “direct” an award to theprevailing party of the attorney fees and costs of makingor opposing the motion unless it finds that either:—“the other party acted with substantial

justification”; or—“other circumstances make the imposition ofattorney's fees and costs unjust.” CCP §405.38.Per Attorney Silverstein’s declaration 5, he spent3 hours for the motion at $350/hour, and anticipatesanother 1.5 hours for the hearing plus the $90 filingfee. The request for fees and costs is granted in theamount of $790 ($350/hour x 2 hours (motion had similararguments to demurrer and straight-forward) plus $90filing fee).5 2013-00660100Hetman vs JP MorganChase BankTENTATIVE RULING:Plaintiff’s unopposed motion for preliminaryinjunction is granted. Plaintiff is to make monthlypayments (see below). Plaintiff is to give notice.“The decision to grant or deny a preliminaryinjunction is committed to the discretion of the trial courtafter the court determines (1) the likelihood that theplaintiff will prevail on the merits at trial, and (2) therelative harms suffered by the parties.” Pleasant HillBayshore Disposal, Inc. v. Chip-It Recycling, Inc. (2001)91 Cal. App. 4th 678, 695. Plaintiff has the burden ofproof to show all elements necessary to support theissuance of a preliminary injunction. O’Connell v.Superior Ct. (2006) 141 Cal.App.4th 1452, 1481.Here, the balance of harms favors Plaintiffs, as realproperty is unique and this is a business deal forDefendant. Real property is usually deemed “unique,” sothat injury or loss cannot be compensated in damages,and injunctive relief is therefore readily granted. See Civ.Code §3387.This motion is premised on the 1 st COA for unfairbusiness practices. Plaintiff alleges that Chase isforeclosing upon his property based on a loan that doesnot belong to him. He claims in his declaration that theNOD lists loan number 10756664, and that Chaseconfirmed that no such loan number was ever assigned tohim. Plaintiff’s allegations about being told to default inorder to get a modification, or that he was entitled to aloan under HAMP were not supported by anyevidence. Nevertheless, taking the complaint as a whole,there is sufficient evidence to support a claim for violationof B&P §17200 since the wrongful foreclosure based on a“fake” loan constitutes an unfair, unlawful, and fraudulentbusiness practice.The motion is unopposed and Plaintiff has met hisburden of establishing a probability of prevailing on thisclaim.A bond is required upon granting a preliminaryinjunction. CCP §529. Because the bond requirement ismandatory, defendant's failure to request a bond does notwaive the requirement. Abba Rubber Co. v. Seaquist(1991) 235 Cal.App.3d 1, 10. A court may issue apreliminary injunction upon conditions that protect all—

including the public—whose interests the injunction mayaffect. But to be valid, such conditions must relatedirectly to the interests sought to be protected. County ofInyo v. City of Los Angeles (1976) 61 Cal.App.3d 91,100.Plaintiff is ordered (1) to pay to Defensecounsel/trust account on the 1 st of each and every monththereafter, the amount of the monthly mortgage payment(or other amount agreed upon between the parties), (2)maintain the property in good condition, (3) maintaininsurance on the structure, and (4) keep the propertytaxes and any HOA fees (if applicable) current. Shouldany one of those conditions not be met, Defendant mayapply to the court ex parte, with notice, to have thepreliminary injunction dissolved.6 2012-00601735Colaco vs Cavotec S.A.TENTATIVE RULING:The motion of defendant Cavotec Inet US, Inc.(“Cavotec”) to quash the subpoenas issued by plaintiffsMichael Colaco and Inet Airport Systems, LLC(collectively, “plaintiffs”) will be granted in part, anddenied in part.Cavotec may properly move to quash or modify thesubpoenas as a party to this action. See Code Civ. Proc.§1987.1(b). Cavotec has not asserted a right to privacyunder the California Constitution as to any of the soughtrecords, and there is none apparent here. See Roberts v.Gulf Oil Corp., 147 Cal.App.3d 770, 791 (1983).“[A]ny party may obtain discovery regarding any matter,not privileged, that is relevant to the subject matterinvolved in the pending action...if the matter either isitself admissible in evidence or appears reasonablycalculated to lead to the discovery of admissibleevidence. Discovery may relate to the claim or defense ofthe party seeking discovery or of any other party to theaction.”See Code Civ. Proc. §2017.010.Here, Cavotec challenges two subpoenas: (1) thesubpoena to Citibank, N.A. (the “Citibank Subpoena”),and (2) the subpoena to Jones Lang LaSalle (the “JLLSubpoena”). The court notes that each of thesubpoenaed parties (Citibank, N.A. and Jones LangLaSalle) has agreed to produce responsive documents,and has lodged no objections based on burden orexpense.Citibank SubpoenaThis Subpoena seeks the following documents: all communications between Citibank and Cavotec;and Citibank and other Cavotec-related entities.(Requests 1-6) all statements, deposit records, and cancelledchecks related to Cavotec’s account, including twospecifically identified account numbers. (Requests7-9)Each of these requests is limited to the time periodbetween August 1, 2011 and the present. This time

frame corresponds with the closing of the Asset PurchaseAgreement (“APA”), and is therefore targeting Cavotec’sactivity with respect to contracts and liabilities that wereto have been assigned and/or assumed afterclosing. (See Glassman Reply Decl., Ex. R, 2.7(a) &2.5.)Plaintiffs assert they have received checks made payableto Inet Airport Systems, Inc. (“IAS”) from customers aslate as May 2013. (See Ram Decl., 2-4, Ex. 3.) TheAPA and Guidelines for Contracts contemporaneouslyexecuted clearly contemplate that the parties would bemaking best efforts to get customer consent toassignments of all contracts. (See Glassman Reply Decl.,Ex. R, 2.5 & Ex. S.) The assignment of these contractswas a major aspect of the parties’ agreement. (See id.,Ex. S at 1.) The Complaint alleges that after closing,“even if performed in the name of Inet prior to anyconsent date, the contracts [were to be] administered forthe account of Inet for periods prior to the closing and forthe account of Cavotec for periods on or after theclosing.” (See id. at 3, 7.) To the extent that anyamounts collected from customers by Cavotec afterclosing represented receivables due to Inet, Cavotec wasto reimburse those amounts to Inet. (Id. at7(i).) Because, at least as of May 2013, nearly twoyears after the closing, it appears that some customercontracts had still not been assigned to Cavotec, therequest for Cavotec’s banking records is reasonablycalculated to lead to the discovery of evidence related tobreach of the contract documents.Second, plaintiffs contend that there are still over $2million in receivables due to IAS that have not yet beenpaid. Since plaintiffs have some evidence that Cavotecmay have been depositing amounts payable to IAS, thebanking records are relevant to ascertaining whetherCavotec is in possession of all or part of those receivables.Plaintiffs also claim that they have received invoicesdirected to IAS in 2013 for liabilities incurred byCavotec. (See Ram Decl., Exs. 1 & 2.) Cavotec’s bankingrecords would reflect the vendors to whom it has madepayments, which would allow plaintiffs to extrapolatewhich vendors have not been paid by Cavotec. This toowould be relevant to the breach of contract claim.While defendants’ concern regarding the overbreadth ofthe requests is somewhat understandable, it is unclearhow these requests could be further narrowed. A recordssubpoena must“designate the business records to be produced either byspecifically describing each individual item or byreasonably particularizing each category of item.” SeeCode Civ. Proc. §2020.410(a). As now stated, the courtcannot say that the requests are not reasonablyparticularized; and indeed, Citibank appears prepared toproduce all responsive documents. Because plaintiffs areseeking documents relevant to three issues – unassignedcontracts, unpaid receivables, and unassigned liabilities –there is some concern that further narrowing couldpresent an undue burden for Citibank.

The court will thus DENY the motion as to all requests inthe Citibank Subpoena.JLL SubpoenaThis subpoena seeks the following documents: documents related to IAS, its successor entity, InetAirport Systems, LLC, Inet Europe, Inc., BarbTechnical Services, GEMS Holdings, LLC, GEMSTechnical Services, International Medical Solutions,CDFC Technical Services, Michael Colaco, AprilBarry, or Nancy Mueller between 01/01/11 and thepresent (Requests 1-11). communications with Cavotec (request 12) documents relating to a commercial property leasefor Cavotec (Requests 13-15) communications with Cavotec Dabico US Inc.(Request 16) documents relating to a commercial property leasefor Cavotec Dabico US, Inc. (Requests 17-19) Valuation for the leased property in Fullerton(Request 20) Valuation for the leased property in Cypress(Request 21) documents relating to transactions or anAgreement of Purchase of Real Property betweenGEMS Holdings, LLC, Cavotec Realty USA, LLC,Cavotec, Cavotec US Holdings, Inc., Cavotec, S.A.and Mr. Colaco (Requests 22-24) documents relating to commercial property leasebetween Cavotec and GEMS Holdings, LLC(Requests 25-27) documents relating to Cavotec’s financialstatements from 01/01/11 to the present (Request28) documents relating to Cavotec Dabico US, Inc.’sfinancial statements from 01/01/11 to the present.(Request 29)Plaintiffs allege that Cavotec has leased space previouslyoccupied by IAS in Fullerton, which is owned by GEMSHoldings, LLC. (Compl., 29, Ex. 4.) They contend thatCavotec still owes rent for November 2011. (See BarryDecl., 7.)The Cross-Complaint alleges that GEMS Holdings, LLC iswrongfully retaining Cavotec’s $3.5 million deposit on thepurchase of the Fullerton property pursuant to theliquidated damages provision in the Real Estate PurchaseAgreement. (Cross-Compl., 154-157, Ex. C.)Cavotec Dabico US, Inc. was featured in a recentnewspaper article for a recent industrial lease that wassigned for a facility in Cypress. (See Smith Decl., Ex.14.) The article states that Cavotec will be relocating itsoperations to Cypress from “locations in Costa Mesa andFullerton,” which would seemingly include the Fullertonproperty that is subject of the lease and Real EstatePurchase Agreement. Jones Lang LaSalle is the brokerthat Cavotec used in the lease transaction. (Ibid.)It does not seem from the parties’ meet and confer that

defendants should find Requests 1 through 11problematic, as they seek documents that reference orconcern plaintiffs and cross-defendants and theiraffiliates. As to the requests related to commercialproperty leases and the Real Estate Purchase Agreement(Requests 12-27), these documents would appear to berelevant given the facts that have been presented to thecourt. Cavotec is currently subject to a lease, and theterm does not end until August 2014. (See Compl., Ex.4.) The Real Estate Purchase Agreement for the Fullertonproperty is to close between August 2014 and August2016. (See Cross-Compl., Ex. C at 3(b)(ii).) With theEighteenth Cause of Action in the Cross-Complaint,Cavotec is signaling that it does not intend to close thepurchase on the Fullerton facility, and thus will be inbreach of the Real Estate Purchase Agreement. (SeeCross-Compl., 154-157.) Accordingly, plaintiff isentitled to discovery of communications and otherdocuments regarding the new lease in Cypress, because itis related to issues of liability under the lease and RealEstate Purchase Agreement.However, the court is not convinced of the relevance ofRequests 28 and 29. Plaintiffs do not clearly articulatehow Cavotec or Cavotec Dabico US, Inc.’s financialstatements, provided to its real estate brokers, relate toany of the claims in the Complaint or Cross-Complaint.Thus, the court will GRANT the motion as to Requests 28and 29 in the JLL Subpoena, and DENY the motion as tothe remainder of the requests therein.Sanctions:The court finds that neither the subpoenas nor thepresent motion were brought or opposed in bad faith, orwithout substantial justification. The court finds that theparties made significant efforts to meet and confer oncomplex issues, and were simply unable to come toagreement. The court, in its discretion, will not awardany sanctions. See Code Civ. Proc. §1987.2(a).9 2012-00621102Khosrovian vs CrownRoyal Services, LLCTENTATIVE RULING:The Motion to Be Relieved as Counsel of attorneyMark Plummer is granted. The attorney has satisfied therequirements of CRC 3.1362. The motion was made usingthe required motion form, declaration form, and proposedorder form. The motion was served on the client andopposing counsel. And, the client’s address wasconfirmed within 30-days of the filing of the motion.Note: The proposed order needs the client’saddress/phone number and the date of the FurtherStatus Conference added to it before service onthe client.11 2013-00635690Bavly vs Arden Realty Inc.TENTATIVE RULING (for all three motions):The motions by defendant Arden Realty, Inc. dba NewportIrvine Center to compel plaintiff’s responses to FormInterrogatories (Set One), Special Interrogatories (SetOne), and Request for Production of Documents (Set One)

will be granted.Plaintiff concedes that she has failed to provide responsesto legitimate discovery requests. Therefore, the courtorders that plaintiff provide verified responses, withoutobjections, to the above discovery within 10 days.SanctionsThe Code provides that the court “shall impose amonetary sanction” against a party or attorney whounsuccessfully makes or opposes a motion to compelinterrogatory responses, or responses to requests forproduction of documents, unless the party subject to thesanction acted with substantial justification, or othercircumstances make the imposition of sanctionsunjust. See Code Civ. Proc. §§2030.290(c);2031.300(c).Defendant has properly specified in the notices of motion(1) all parties and attorneys against whom sanctions arebeing sought, (2) the type of sanction sought, and (3) theauthority for the sanctions. See Code Civ. Proc.§2023.040.Because counsel failed to respond to the 06/27/13 meetand confer letter, the court will award sanctions of $880against both plaintiff and her counsel. See Code Civ.Proc. §§2023.010; 2030.290(c); 2031.300(c). Plaintiff orher counsel must pay these sanctions to defendant or itscounsel within 30 days.12 2013-00653191Trenkle vs LurnerTENTATIVE RULING:The motion of defendants David M. Laigaie and DilworthPaxson, LLP, for an order compelling plaintiff Ingrid E.Trenkle, M.D., Inc., to provide responses to serveresponses to the first sets of form and specialinterrogatories, requests for admissions, and requests forproduction and imposing a monetary sanction of $1860against plaintiff Ingrid E. Trenkle, M.D., Inc., is granted inpart and denied in part.It is unclear to the Court what discovery has beenpropounded to the plaintiff(s), what responses have beenreceived by defense counsel, and what remains oncalendar (except for the request for sanctions).The notice of motion seeks orders compelling plaintiffIngrid E. Trenkle, M.D., Inc., and a sanction from thisentity, but Exhibits A-D to the motion are copies ofinterrogatories, requests for admissions, and requests forproduction propounded to individual co-plaintiff Ingrid E.Trenkle, M.D.In addition, attorney Mark L. Gunn has submitted anopposition to the motion indicating that responses to thediscovery have been served and arguing that sanctionsnot be imposed because of these responses. However,there are no responses submitted to this declaration asexhibits.Lastly, moving defendants filed three notices on August 8,

2013 that withdrew various parts of the motion as mootbecause some discovery responses werereceived. However, these notices are contradictory as towhat responses were received, and there is nospecification as to which plaintiff has responded. Onenotice states that a response to the set of requests foradmissions has been received and that the motion iswithdrawn as to it and another notice states thatresponses have been received to everything but the set ofrequests for admissions and the motion is going forwardas to that set.Counsel for the parties is to meet and confer, anddetermine what discovery was served to which plaintiff,and plaintiffs’ counsel is to provide responses to thatdiscovery within 10 days without objection.Due to Plainitffs failure to respond in a timely manner thecourt imposes sanctions of $1080.00 against counsel andplaintiff Ingrid E. Trenkle, M.D.15 2012-00610019Villalpando vs Hidalgo PoolHall, IncTENTATIVE RULING:Application for service by posting.Motion is denied without prejudice.Based on Plaintiff’s declaration filed 8/13/13 the court willallow service by publication in the Orange CountyRegister.19 2011-00532581FX Technology & ProductsUSA, LLC vs White ApronIncTENTATIVE RULING:Defendant Arbor Private Investment Company, LP’sMotion for Summary Judgment is granted.Plaintiff’s objections to the Declaration ofFitzsimmons: Objection 7 is sustained. Objections 6 and8 are sustained as to counsel’s characterization of Exhibits14 and 15 but overruled as to Exhibits 14 and 15themselves. The remaining objections are overruled.Plaintiff’s objections to the Declaration ofZoll: Objections 7, 10, 11, 13, 14, 16, and 17 aresustained. The remaining objections are overruled.Plaintiff’s Objections to the Declaration ofFoster: Objections 3, 8, 10, 17, and 37 aresustained. The remaining objections are overruled.Defendant’s Objection to the Declaration ofReese: Objection 1 is sustained.Defendant’s Objections to the Declaration ofPenning: Objections 4 and 7-11 are sustained. Theremaining objections are overruled.Defendant’s Objection to the Declaration ofVacha: Objection 1 is sustained.Preliminary Note:Moving Party defendant Arbor Private Investment

Company, LP refers to itself as “Arbor Fund” and todefendant Arbor Investments Management, LLC as“Arbor.” This discussion will thus do the same.Alter EgoDefendant Arbor Fund argues it is not liable for thedebt of White Apron because it is not the alter ego ofWhite Apron.“In general, the two requirements for applying thealter ego doctrine are that (1) there is such a unityof interest and ownership between the corporationand the individual or organization controlling it thattheir separate personalities no longer exist, and(2) failure to disregard the corporate entity wouldsanction a fraud or promote injustice.(Citations.) The doctrine is applicable where someinnocent party attacks the corporate form as aninjury to that party's interests. The issue is not somuch whether the corporate entity should bedisregarded for all purposes or whether its verypurpose was to defraud the innocent party, as it iswhether in the particular case presented, justiceand equity can best be accomplished and fraudand unfairness defeated by disregarding thedistinct entity of the corporate form.” (CommunistParty v. 522 Valencia, Inc. (1995) 35 Cal.App.4th980, 993.)Factors used in determining whether there was aunity of interest and ownership include: “commingling offunds and other assets of the two entities, the holding outby one entity that it is liable for the debts of the other,identical equitable ownership in the two entities, use ofthe same offices and employees, and use of one as amere shell or conduit for the affairs of theother.” (Roman Catholic Archbishop v. Superior Court(1971) 15 Cal.App.3d 405, 411.) “Alter ego is an extremeremedy, sparingly used.” (Sonora Diamond Corp. v.Superior Court (2000) 83 Cal.App.4th 523, 539.)Here, Arbor Fund admits that at the relevant timesit was the majority owner of Foundation Foods, of whichWhite Apron was a wholly owned subsidiary. (Facts 30-31] Arbor Fund further admits that all three of WhiteApron’s Board of Directors were also affiliated withit. (Facts 33) However, John Reese, a minority investorin Foundation Foods was primarily responsible for theday-to-day operations of White Apron. (Fact 33; Arbor’sResponse to Special Rog No. 23; Exh. 20 to Declaration ofFitzsimmons)On the other hand, plaintiff does not dispute thatWhite Apron and Arbor Fund had separate payroll records,records for accounts, tax returns, financial information,offices, furniture, equipment, bylaws, meeting, andcorporate minutes. (Facts 38-40 and 42-43) Plaintiff alsodoes not dispute that White Apron always had adequatecapitalization. (See Plaintiff’s Separate Statement ofDisputed Fact; Fact 44)

These facts at sufficient to meet Moving Party’sburden of proof on the issue of alter ego and shift theburden to plaintiff to raise a triable issue of fact.Plaintiff points out that White Apron was asubsidiary of Foundation Foods, of which Arbor Fund wasa majority shareholder, that White Apron’s Board ofDirectors were affiliated with Arbor Fund, and that ArborFund received monies from White Apron’s accountsreceivable after the sale. However, a parent-subsidiaryrelationship and overlapping Board members is notenough. “A parent corporation is not liable for the torts ofits subsidiaries simply because of stock ownership.(Citation.) Liability may be imposed only where the parentcontrols the subsidiary to such a degree as to render thelatter the mere instrumentality of the former.” (Instituteof Veterinary Pathology, Inc. v. California HealthLaboratories, Inc. (1981) 116 Cal.App.3d 111, 119.) “Itis considered a normal attribute of ownership that officersand directors of the parent serve as officers and directorsof the subsidiary.” (Sonora Diamond Corp. v. SuperiorCourt (2000) 83 Cal.App.4th 523, 549.) Thus, such acircumstance, by itself, does not serve to make the parentliable for the acts of the subsidiary. (Id.)Accordingly, while Arbor Fund’s ownership interestin the parent of White Apron and its affiliation with WhiteApron’s Board members are relevant factors to the alterego analysis, they alone do not show alter ego. Plaintiffcontends Arbor Fund’s receipt of monies after the sale viathe assignment by the Bank of its interest in the accountsreceivable of White Apron raises the possibility ofmisconduct by Arbor Fund. But, Arbor Fund hassubmitted evidence that it guaranteed White Apron’s lineof credit with the Bank, that it was called upon to makegood on its guaranty in the sum of $1 million because the$2.3 million received from the sale of White Apron wasnot sufficient to retire its debt to the Bank, and that inconnection with its payment of the $1 million, the Bankassigned its right to “A/R Reserve.”Plaintiff contends that the letter sent by WhiteApron to its creditors, stating that no monies were leftafter the sale for creditors, shows the deal was donenefariously, to cover up the fact that Arbor Fund wasgoing to receive some of the funds. However, if theassignment was legitimate, and done in response to ArborFund’s payment of $1 million pursuant to its guaranty,and plaintiff has no evidence that it was not, there reallywere no funds for the other creditors. This letter, whileperhaps not fully disclosing all the details of thetransaction, was not the cause of any injury to creditorslike plaintiff.Plaintiff also suggests that Arbor Fund has notprovided sufficient details about White Apron’s debt to theBank, Arbor Fund’s obligations under the Guaranty, andthe Bank’s Assignment of its rights to ArborFund. However, Moving Party is not required on summaryjudgment to set forth all possible evidence on the issuesraised. Arbor Fund has provided evidence sufficient toshow that it received the assignment after paying $1

million pursuant to its guaranty. That evidence supportsa finding that there was nothing then improper about theBank assigning to Arbor Fund its rights to the “A/RReserve.” At that point, the burden shifts to plaintiff toprovide conflicting evidence – and plaintiff has not doneso.Plaintiff is correct that the evidence is disputedabout whether plaintiff had notice of White Apron’s severefinancial problems sufficient to negate any finding ofinjustice – a required circumstance for the alter egodoctrine to apply. Penning, plaintiff’s managing partner,disputes that Zoll (Board Member of White Apron) toldhim in September 2011 that White Apron was doing“terrible.” Penning was aware that a sale wascontemplated but whether or not the information he hadwas sufficient to put plaintiff on notice that White Apronwas likely going to default on its debt to plaintiff cannotbe decided as a matter of law in connection with thismotion. However, this conclusion does not preclude thegranting of summary judgment. Alter ego requires both(1) unity of interest; and (2) injustice. As there is notriable issue of fact as to the 1 st factor, it does not matterthat there is a triable issue of fact as to the 2 nd .In short, defendant has met its burden of showingit is not the alter ego of White Apron and plaintiff has notshown that a disputed question of factexists. Accordingly, Defendant Arbor Fund’s Motion forSummary Judgment is granted.As an aside, the court notes that plaintiff’sargument that defendant failed to address whether WhiteApron was actually in breach of its agreement withplaintiff is unavailing. If Arbor Fund is not the alter ego ofWhite Apron, it is not liable even if White Apron was inbreach.Plaintiff’s CapacityIn order to maintain an action in California, aforeign corporation which conducts intrastate businessmust qualify to do business in California. “A foreigncorporation shall not transact intrastate business withouthaving first obtained from the Secretary of State acertificate of qualification….” (Corporations Code§2105(a)) If a foreign corporation transacts businesswithout first obtaining the required certificate ofqualification, the corporation may not maintain an actionuntil it has complied with §2105. (Corporations Code§2105(c))When a non-qualified corporation maintains anaction and then fails to comply with the requirementsafter notice of the problem, the matter is dismissedwithout prejudice. (United Medical Management Ltd. v.Gatto (1996) 49 Cal.App.4th 1732, 1740.) This same ruleapplies to LLC’s like plaintiff. (Corporations Code§17456(a))During the course of this litigation, plaintiff has

maintained three different and inconsistent positions, setforth below, with regard to whether it has or needs acertificate of qualification from the California Secretary ofState:(1) Plaintiff is qualified to do business in California. Inits verified response to Form Interrogatory 3.3 fromdefendant Arbor, plaintiff responded “yes” to the questionof whether it was “qualified to do business in California.”(2) Plaintiff is in the process of rectifying any issue withthe Secretary of State. In response to the prior motionfor summary judgment by defendant Arbor, plaintiff didnot argue that it was not required to qualify to dobusiness in California. Plaintiff’s attorney insteadindicated that plaintiff was in the process of rectifying theissue.(3) Plaintiff is not required to qualify to do business inCalifornia because it does not conduct intrastate businessin California. In response to the pending motion, plaintifffor the first time contends that it is not required toregister with the Secretary of State because it conductsonly interstate, not intrastate, business. Plaintiff makesthis argument without addressing its original discoveryresponse stating that it was qualified to do business inCalifornia or why, in response to the prior motion forsummary judgment, it argued that it was rectifying thesituation rather than contending, as it does now, that noaction with the Secretary of State was required.As the court finds that defendant is entitled tosummary judgment based on the alter ego argument, thecapacity argument is moot. The court thus will not reachthe issue of how to handle plaintiff’s seeminglycontradictory positions on this issue and plaintiff’s failureto explain or even acknowledge that it has takencontradictory positions.Plaintiff’s ObjectionsDeclaration of attorney AmandaFitzsimmons: Objection 7 is sustained. Defense counselis testifying as to the effect of documents produced byplaintiff. Objections 6 and 8 are sustained as to counsel’scharacterization of Exhibits 14 and 15 but overruled as toExhibits 14 and 15 themselves. The remaining objectionsare overruled. Prior discovery conducted between plaintiffand Arbor, while not dispositive on the issues betweenplaintiff and Arbor Fund, is not irrelevant. Information onwhether plaintiff is registered with the Secretary of Stateis not irrelevant given that plaintiff’s status is one of thegrounds for the pending motion and given thecontradictory positions taken by plaintiff in this action withregard to whether it is registered and whether it isrequired to be registered.Declaration of Steven Zoll (Director of WhiteApron): Objection 7 is sustained (lack of personalknowledge). Objections 10, 11, 13, and 14 are sustainedas the emails referenced speak forthemselves. Objections 16 and 17 are sustained for lack

of foundation and lack of personal knowledge. Zoll doesnot have personal knowledge of what plaintiff did or didnot know or what efforts it took. Zoll also has notestablished that as a Director of White Apron, he haspersonal knowledge regarding the details of the ordersplaced by plaintiff with White Apron. The remainingobjections are overruled.Declaration of J. David Foster (CFO of MP ArborFund): Objection 3 is sustained. As CFO of Arbor andArbor Fund, Foster has not laid a foundation sufficient tostate that Arbor provided services to Arbor Fund “inaccordance” with the various agreements. Objection 8 issustained as Foster has not laid a foundation sufficient tostate that services were provided to White Apron “in strictaccordance” with the terms of the Management ServicesAgreement. Objection 10 is sustained as Foster has notlaid a sufficient foundation and has not establishedpersonal knowledge sufficient to testify as to whoexercised day-to-day control over White Apron. Objection17 is sustained. Foster has not laid a sufficient foundationfor stating that White Apron obtained “significant” 3 rdparty funding and that it had adequatecapitalization. These assertions are also improperconclusions. Objection 37 is sustained. Foster has not laida foundation showing that he has personal knowledgesufficient to state that Arbor Fund had no dealings withplaintiff.The remaining objections to the declaration ofFoster are overruled. Foster, CFO of Arbor and ArborFund, has laid a foundation sufficient to testify on theissues of Arbor Fund’s guaranty of White Apron’s debt, thenegotiations with the Bank, the sale of White Apron, ArborFunds’ payment on its guaranty, and the assignment ofrights by the Bank to Arbor Fund.Defendant’s ObjectionsDeclaration of John Reese: Objection 1 issustained. Reese states that he is attaching excerptsfrom his deposition in a related case – but no depositionexcerpts are attached.Declaration of Christiaan Penning: Objection 4 issustained. There is no foundation for Penning’s assertionthat the Statement from White Apron was prepared by itsDirectors. Objection 7 is sustained. Penning’s statementabout what he “came to learn” about White Apron’s salelacks foundation and personal knowledge. Objection 8 issustained. Penning lacks a foundation and personalknowledge about what White Apron’s directors knewconcerning whether White Apron could pay for product.Objection 9 is sustained. Penning has not laid afoundation for how he knows White Apron’s directors triedto use his contacts to find potential buyers unbeknownstto him. Objection 10 is sustained. Penning’s statementregarding inequity is an improper opinion. Objection 11 issustained. Penning lacks personal knowledge regardingwhether Arbor and Arbor Fund were insiders.Declaration of Debbie Vacha: Objection 1 is

sustained. Vacha’s statement that she is “the AccountExecutive” and “officer manager” of plaintiff’s Fremont,Nebraska office is not sufficient to lay a foundation andshow that Vacha has personal knowledge sufficient tostate that plaintiff does not operate its business inCalifornia, has no employees or assets in California, andhas never operated in California.

RULINGS ON LAW& MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5231) to notify the court thatall parties are submitting on the tentative and no appearance will be necessary. The tentative will then become thefinal ruling.If no one appears at the hearing the tentative will be the final ruling. Either side may appear and argue the court’stentative ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPARE ANORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY ORTHE CASE.TENTATIVE RULINGS ON LAW & MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31Date: Wednesday, August 14, 2013# Case Name3 2013-00655840Dement vs Gloria Trust#12761 Southland HomesReal Estate andInvestment as TrusteeNDEx, L.L.C.TENTATIVE RULING:Motion No. 1 – Demurrer: Defendant Gloria Trust#2761, Southland Homes Real Estate and Investment asTrustee (“Trust”)’s unopposed general demurrers to COAs1-6 are sustained. Moving party is to give notice.All of Plaintiff’s claims center around the argumentthat the chain of ownership was defective and therefore,there was never any authority by the foreclosingdefendants to foreclose upon the property, and therefore,the sale should be set aside. Defendant Trust argues thatit is a bona fide purchaser (“BFP”) and the sale cannot beset aside as to it.A BFP for value at a nonjudicial foreclosure salehas the benefit of a conclusive presumption that theforeclosure sale was properly noticed: A recital in thetrustee's deed (executed pursuant to the power of sale) ofcompliance with “all requirements of law” regardingmailing or personal delivery and publication or posting ofthe copies of notice of default and notice of sale “shallconstitute prima facie evidence of compliance with theserequirements and conclusive evidence thereof in favor ofbona fide purchasers and encumbrancers for value andwithout notice.” Civ. Code §2924(c); Bank of America,N.A. v. La Jolla Group II (2005) 129 Cal.App.4th 706,714; Melendrez v. D & I Investment, Inc. (2005) 127Cal.App.4th 1238, 1255.For purposes of the § 2924(c) presumption, a BFPis one who pays value for the property without knowledgeor notice of “the asserted rights of another.” Melendrez v.D & I Investment, Inc., supra, 127 Cal.App.4th at1253. Any fraud by the trustee and/or beneficiary duringthe sale process is not imputed to the BFP and, thus,cannot itself support setting the sale aside. Id. at 1256–1258 [absent evidence BFP knew lender failed to instructtrustee to postpone sale based on repayment agreement

etween borrowers and lender, borrowers could not setBFP sale aside].Complaint 37 specifically addresses this issue byalleging the Trust is not a BFP because there was no valuepaid for the property since no price was listed on theTrustee’s Deed Upon Sale. However, the allegations inthe Complaint are premised only upon the lack of thepurchase price, but per Trust’s RJN Exh. 2, the recordeddocument shows that the consideration paid for thetransfer was $337,600. BFP status does not requirepayment of the property's fair market value; the buyerneed only part with something of value in exchange forthe property. Melendrez v. D & I Investment, Inc., supra,127 Cal.App.4th at 1251–1252. Plaintiff has not objectedto the RJN. Additionally, there are no facts that the Trustknew of any fraudulent conduct by the foreclosingdefendants. As such, the unopposed demurrers to all 6COAs are sustained without leave to amend.The unopposed request for judicial notice ofrecorded documents and court judgment is granted (Evid.Code §452(d), (h)).Motion No. 2 – Motion to Expunge Lis Pendens: TheTrust’s unopposed motion to expunge lis pendens isgranted, and awarded $790 in attorney’s fees and costsrelating to this motion to be paid within 30 days.In order to grant a motion to expunge a lispendens, a court must find at least one of the following:(1) “the pleading on which the notice is based does notcontain a real property claim.” CCP §405.31; or (2) “theclaimant has not established by a preponderance of theevidence the probable validity of the real propertyclaim.” CCP §405.32.The only difference between the two code sectionsis that a motion brought under §405.31 is reviewed like ademurrer, whereas a motion brought under §405.32requires a judicial evaluation of the merits of theclaimant's case. Kirkeby v. Sup.Ct. (2004) 33 Cal.4th642, 651.“The question whether to expunge or not toexpunge a lis pendens is committed to the sounddiscretion of the superior court.” Sheets v. Sup. Ct.(1978) 86 Cal. App. 3D 68, 70.Unlike most motions, the burden of proof is on theopposing party, i.e., the lis pendensclaimant. CCP§405.30. Under CCP §405.31, it is clearthat there is a real property claim. Under CCP §405.32,however, Plaintiff has failed to prove that the Trust wasnot a BFP by showing that there was no value paid or thatthe Trust had no knowledge of the “falsely” recordeddocuments. Plaintiff has not established any proof ofprevailing on the motion. The motion is granted.The court is required to “direct” an award to theprevailing party of the attorney fees and costs of making

or opposing the motion unless it finds that either:—“the other party acted with substantialjustification”; or—“other circumstances make the imposition ofattorney's fees and costs unjust.” CCP §405.38.Per Attorney Silverstein’s declaration 5, he spent3 hours for the motion at $350/hour, and anticipatesanother 1.5 hours for the hearing plus the $90 filingfee. The request for fees and costs is granted in theamount of $790 ($350/hour x 2 hours (motion had similararguments to demurrer and straight-forward) plus $90filing fee).5 2013-00660100Hetman vs JP MorganChase BankTENTATIVE RULING:Plaintiff’s unopposed motion for preliminaryinjunction is granted. Plaintiff is to make monthlypayments (see below). Plaintiff is to give notice.“The decision to grant or deny a preliminaryinjunction is committed to the discretion of the trial courtafter the court determines (1) the likelihood that theplaintiff will prevail on the merits at trial, and (2) therelative harms suffered by the parties.” Pleasant HillBayshore Disposal, Inc. v. Chip-It Recycling, Inc. (2001)91 Cal. App. 4th 678, 695. Plaintiff has the burden ofproof to show all elements necessary to support theissuance of a preliminary injunction. O’Connell v.Superior Ct. (2006) 141 Cal.App.4th 1452, 1481.Here, the balance of harms favors Plaintiffs, as realproperty is unique and this is a business deal forDefendant. Real property is usually deemed “unique,” sothat injury or loss cannot be compensated in damages,and injunctive relief is therefore readily granted. See Civ.Code §3387.This motion is premised on the 1 st COA for unfairbusiness practices. Plaintiff alleges that Chase isforeclosing upon his property based on a loan that doesnot belong to him. He claims in his declaration that theNOD lists loan number 10756664, and that Chaseconfirmed that no such loan number was ever assigned tohim. Plaintiff’s allegations about being told to default inorder to get a modification, or that he was entitled to aloan under HAMP were not supported by anyevidence. Nevertheless, taking the complaint as a whole,there is sufficient evidence to support a claim for violationof B&P §17200 since the wrongful foreclosure based on a“fake” loan constitutes an unfair, unlawful, and fraudulentbusiness practice.The motion is unopposed and Plaintiff has met hisburden of establishing a probability of prevailing on thisclaim.A bond is required upon granting a preliminaryinjunction. CCP §529. Because the bond requirement ismandatory, defendant's failure to request a bond does not

waive the requirement. Abba Rubber Co. v. Seaquist(1991) 235 Cal.App.3d 1, 10. A court may issue apreliminary injunction upon conditions that protect all—including the public—whose interests the injunction mayaffect. But to be valid, such conditions must relatedirectly to the interests sought to be protected. County ofInyo v. City of Los Angeles (1976) 61 Cal.App.3d 91,100.Plaintiff is ordered (1) to pay to Defensecounsel/trust account on the 1 st of each and every monththereafter, the amount of the monthly mortgage payment(or other amount agreed upon between the parties), (2)maintain the property in good condition, (3) maintaininsurance on the structure, and (4) keep the propertytaxes and any HOA fees (if applicable) current. Shouldany one of those conditions not be met, Defendant mayapply to the court ex parte, with notice, to have thepreliminary injunction dissolved.6 2012-00601735Colaco vs Cavotec S.A.TENTATIVE RULING:The motion of defendant Cavotec Inet US, Inc.(“Cavotec”) to quash the subpoenas issued by plaintiffsMichael Colaco and Inet Airport Systems, LLC(collectively, “plaintiffs”) will be granted in part, anddenied in part.Cavotec may properly move to quash or modify thesubpoenas as a party to this action. See Code Civ. Proc.§1987.1(b). Cavotec has not asserted a right to privacyunder the California Constitution as to any of the soughtrecords, and there is none apparent here. See Roberts v.Gulf Oil Corp., 147 Cal.App.3d 770, 791 (1983).“[A]ny party may obtain discovery regarding any matter,not privileged, that is relevant to the subject matterinvolved in the pending action...if the matter either isitself admissible in evidence or appears reasonablycalculated to lead to the discovery of admissibleevidence. Discovery may relate to the claim or defense ofthe party seeking discovery or of any other party to theaction.”See Code Civ. Proc. §2017.010.Here, Cavotec challenges two subpoenas: (1) thesubpoena to Citibank, N.A. (the “Citibank Subpoena”),and (2) the subpoena to Jones Lang LaSalle (the “JLLSubpoena”). The court notes that each of thesubpoenaed parties (Citibank, N.A. and Jones LangLaSalle) has agreed to produce responsive documents,and has lodged no objections based on burden orexpense.Citibank SubpoenaThis Subpoena seeks the following documents: all communications between Citibank and Cavotec;and Citibank and other Cavotec-related entities.(Requests 1-6) all statements, deposit records, and cancelledchecks related to Cavotec’s account, including two

specifically identified account numbers. (Requests7-9)Each of these requests is limited to the time periodbetween August 1, 2011 and the present. This timeframe corresponds with the closing of the Asset PurchaseAgreement (“APA”), and is therefore targeting Cavotec’sactivity with respect to contracts and liabilities that wereto have been assigned and/or assumed afterclosing. (See Glassman Reply Decl., Ex. R, 2.7(a) &2.5.)Plaintiffs assert they have received checks made payableto Inet Airport Systems, Inc. (“IAS”) from customers aslate as May 2013. (See Ram Decl., 2-4, Ex. 3.) TheAPA and Guidelines for Contracts contemporaneouslyexecuted clearly contemplate that the parties would bemaking best efforts to get customer consent toassignments of all contracts. (See Glassman Reply Decl.,Ex. R, 2.5 & Ex. S.) The assignment of these contractswas a major aspect of the parties’ agreement. (See id.,Ex. S at 1.) The Complaint alleges that after closing,“even if performed in the name of Inet prior to anyconsent date, the contracts [were to be] administered forthe account of Inet for periods prior to the closing and forthe account of Cavotec for periods on or after theclosing.” (See id. at 3, 7.) To the extent that anyamounts collected from customers by Cavotec afterclosing represented receivables due to Inet, Cavotec wasto reimburse those amounts to Inet. (Id. at7(i).) Because, at least as of May 2013, nearly twoyears after the closing, it appears that some customercontracts had still not been assigned to Cavotec, therequest for Cavotec’s banking records is reasonablycalculated to lead to the discovery of evidence related tobreach of the contract documents.Second, plaintiffs contend that there are still over $2million in receivables due to IAS that have not yet beenpaid. Since plaintiffs have some evidence that Cavotecmay have been depositing amounts payable to IAS, thebanking records are relevant to ascertaining whetherCavotec is in possession of all or part of those receivables.Plaintiffs also claim that they have received invoicesdirected to IAS in 2013 for liabilities incurred byCavotec. (See Ram Decl., Exs. 1 & 2.) Cavotec’s bankingrecords would reflect the vendors to whom it has madepayments, which would allow plaintiffs to extrapolatewhich vendors have not been paid by Cavotec. This toowould be relevant to the breach of contract claim.While defendants’ concern regarding the overbreadth ofthe requests is somewhat understandable, it is unclearhow these requests could be further narrowed. A recordssubpoena must“designate the business records to be produced either byspecifically describing each individual item or byreasonably particularizing each category of item.” SeeCode Civ. Proc. §2020.410(a). As now stated, the courtcannot say that the requests are not reasonablyparticularized; and indeed, Citibank appears prepared to

produce all responsive documents. Because plaintiffs areseeking documents relevant to three issues – unassignedcontracts, unpaid receivables, and unassigned liabilities –there is some concern that further narrowing couldpresent an undue burden for Citibank.The court will thus DENY the motion as to all requests inthe Citibank Subpoena.JLL SubpoenaThis subpoena seeks the following documents: documents related to IAS, its successor entity, InetAirport Systems, LLC, Inet Europe, Inc., BarbTechnical Services, GEMS Holdings, LLC, GEMSTechnical Services, International Medical Solutions,CDFC Technical Services, Michael Colaco, AprilBarry, or Nancy Mueller between 01/01/11 and thepresent (Requests 1-11). communications with Cavotec (request 12) documents relating to a commercial property leasefor Cavotec (Requests 13-15) communications with Cavotec Dabico US Inc.(Request 16) documents relating to a commercial property leasefor Cavotec Dabico US, Inc. (Requests 17-19) Valuation for the leased property in Fullerton(Request 20) Valuation for the leased property in Cypress(Request 21) documents relating to transactions or anAgreement of Purchase of Real Property betweenGEMS Holdings, LLC, Cavotec Realty USA, LLC,Cavotec, Cavotec US Holdings, Inc., Cavotec, S.A.and Mr. Colaco (Requests 22-24) documents relating to commercial property leasebetween Cavotec and GEMS Holdings, LLC(Requests 25-27) documents relating to Cavotec’s financialstatements from 01/01/11 to the present (Request28) documents relating to Cavotec Dabico US, Inc.’sfinancial statements from 01/01/11 to the present.(Request 29)Plaintiffs allege that Cavotec has leased space previouslyoccupied by IAS in Fullerton, which is owned by GEMSHoldings, LLC. (Compl., 29, Ex. 4.) They contend thatCavotec still owes rent for November 2011. (See BarryDecl., 7.)The Cross-Complaint alleges that GEMS Holdings, LLC iswrongfully retaining Cavotec’s $3.5 million deposit on thepurchase of the Fullerton property pursuant to theliquidated damages provision in the Real Estate PurchaseAgreement. (Cross-Compl., 154-157, Ex. C.)Cavotec Dabico US, Inc. was featured in a recentnewspaper article for a recent industrial lease that wassigned for a facility in Cypress. (See Smith Decl., Ex.14.) The article states that Cavotec will be relocating itsoperations to Cypress from “locations in Costa Mesa and

Fullerton,” which would seemingly include the Fullertonproperty that is subject of the lease and Real EstatePurchase Agreement. Jones Lang LaSalle is the brokerthat Cavotec used in the lease transaction. (Ibid.)It does not seem from the parties’ meet and confer thatdefendants should find Requests 1 through 11problematic, as they seek documents that reference orconcern plaintiffs and cross-defendants and theiraffiliates. As to the requests related to commercialproperty leases and the Real Estate Purchase Agreement(Requests 12-27), these documents would appear to berelevant given the facts that have been presented to thecourt. Cavotec is currently subject to a lease, and theterm does not end until August 2014. (See Compl., Ex.4.) The Real Estate Purchase Agreement for the Fullertonproperty is to close between August 2014 and August2016. (See Cross-Compl., Ex. C at 3(b)(ii).) With theEighteenth Cause of Action in the Cross-Complaint,Cavotec is signaling that it does not intend to close thepurchase on the Fullerton facility, and thus will be inbreach of the Real Estate Purchase Agreement. (SeeCross-Compl., 154-157.) Accordingly, plaintiff isentitled to discovery of communications and otherdocuments regarding the new lease in Cypress, because itis related to issues of liability under the lease and RealEstate Purchase Agreement.However, the court is not convinced of the relevance ofRequests 28 and 29. Plaintiffs do not clearly articulatehow Cavotec or Cavotec Dabico US, Inc.’s financialstatements, provided to its real estate brokers, relate toany of the claims in the Complaint or Cross-Complaint.Thus, the court will GRANT the motion as to Requests 28and 29 in the JLL Subpoena, and DENY the motion as tothe remainder of the requests therein.Sanctions:The court finds that neither the subpoenas nor thepresent motion were brought or opposed in bad faith, orwithout substantial justification. The court finds that theparties made significant efforts to meet and confer oncomplex issues, and were simply unable to come toagreement. The court, in its discretion, will not awardany sanctions. See Code Civ. Proc. §1987.2(a).9 2012-00621102Khosrovian vs CrownRoyal Services, LLCTENTATIVE RULING:The Motion to Be Relieved as Counsel of attorneyMark Plummer is granted. The attorney has satisfied therequirements of CRC 3.1362. The motion was made usingthe required motion form, declaration form, and proposedorder form. The motion was served on the client andopposing counsel. And, the client’s address wasconfirmed within 30-days of the filing of the motion.Note: The proposed order needs the client’saddress/phone number and the date of the FurtherStatus Conference added to it before service on

the client.11 2013-00635690Bavly vs Arden Realty Inc.TENTATIVE RULING (for all three motions):The motions by defendant Arden Realty, Inc. dba NewportIrvine Center to compel plaintiff’s responses to FormInterrogatories (Set One), Special Interrogatories (SetOne), and Request for Production of Documents (Set One)will be granted.Plaintiff concedes that she has failed to provide responsesto legitimate discovery requests. Therefore, the courtorders that plaintiff provide verified responses, withoutobjections, to the above discovery within 10 days.SanctionsThe Code provides that the court “shall impose amonetary sanction” against a party or attorney whounsuccessfully makes or opposes a motion to compelinterrogatory responses, or responses to requests forproduction of documents, unless the party subject to thesanction acted with substantial justification, or othercircumstances make the imposition of sanctionsunjust. See Code Civ. Proc. §§2030.290(c);2031.300(c).Defendant has properly specified in the notices of motion(1) all parties and attorneys against whom sanctions arebeing sought, (2) the type of sanction sought, and (3) theauthority for the sanctions. See Code Civ. Proc.§2023.040.Because counsel failed to respond to the 06/27/13 meetand confer letter, the court will award sanctions of $880against both plaintiff and her counsel. See Code Civ.Proc. §§2023.010; 2030.290(c); 2031.300(c). Plaintiff orher counsel must pay these sanctions to defendant or itscounsel within 30 days.12 2013-00653191Trenkle vs LurnerTENTATIVE RULING:The motion of defendants David M. Laigaie and DilworthPaxson, LLP, for an order compelling plaintiff Ingrid E.Trenkle, M.D., Inc., to provide responses to serveresponses to the first sets of form and specialinterrogatories, requests for admissions, and requests forproduction and imposing a monetary sanction of $1860against plaintiff Ingrid E. Trenkle, M.D., Inc., is granted inpart and denied in part.It is unclear to the Court what discovery has beenpropounded to the plaintiff(s), what responses have beenreceived by defense counsel, and what remains oncalendar (except for the request for sanctions).The notice of motion seeks orders compelling plaintiffIngrid E. Trenkle, M.D., Inc., and a sanction from thisentity, but Exhibits A-D to the motion are copies ofinterrogatories, requests for admissions, and requests forproduction propounded to individual co-plaintiff Ingrid E.

Trenkle, M.D.In addition, attorney Mark L. Gunn has submitted anopposition to the motion indicating that responses to thediscovery have been served and arguing that sanctionsnot be imposed because of these responses. However,there are no responses submitted to this declaration asexhibits.Lastly, moving defendants filed three notices on August 8,2013 that withdrew various parts of the motion as mootbecause some discovery responses werereceived. However, these notices are contradictory as towhat responses were received, and there is nospecification as to which plaintiff has responded. Onenotice states that a response to the set of requests foradmissions has been received and that the motion iswithdrawn as to it and another notice states thatresponses have been received to everything but the set ofrequests for admissions and the motion is going forwardas to that set.Counsel for the parties is to meet and confer, anddetermine what discovery was served to which plaintiff,and plaintiffs’ counsel is to provide responses to thatdiscovery within 10 days without objection.Due to Plainitffs failure to respond in a timely manner thecourt imposes sanctions of $1080.00 against counsel andplaintiff Ingrid E. Trenkle, M.D.15 2012-00610019Villalpando vs Hidalgo PoolHall, IncTENTATIVE RULING:Application for service by posting.Motion is denied without prejudice.Based on Plaintiff’s declaration filed 8/13/13 the court willallow service by publication in the Orange CountyRegister.19 2011-00532581FX Technology & ProductsUSA, LLC vs White ApronIncTENTATIVE RULING:Defendant Arbor Private Investment Company, LP’sMotion for Summary Judgment is granted.Plaintiff’s objections to the Declaration ofFitzsimmons: Objection 7 is sustained. Objections 6 and8 are sustained as to counsel’s characterization of Exhibits14 and 15 but overruled as to Exhibits 14 and 15themselves. The remaining objections are overruled.Plaintiff’s objections to the Declaration ofZoll: Objections 7, 10, 11, 13, 14, 16, and 17 aresustained. The remaining objections are overruled.Plaintiff’s Objections to the Declaration ofFoster: Objections 3, 8, 10, 17, and 37 aresustained. The remaining objections are overruled.Defendant’s Objection to the Declaration ofReese: Objection 1 is sustained.

Defendant’s Objections to the Declaration ofPenning: Objections 4 and 7-11 are sustained. Theremaining objections are overruled.Defendant’s Objection to the Declaration ofVacha: Objection 1 is sustained.Preliminary Note:Moving Party defendant Arbor Private InvestmentCompany, LP refers to itself as “Arbor Fund” and todefendant Arbor Investments Management, LLC as“Arbor.” This discussion will thus do the same.Alter EgoDefendant Arbor Fund argues it is not liable for thedebt of White Apron because it is not the alter ego ofWhite Apron.“In general, the two requirements for applying thealter ego doctrine are that (1) there is such a unityof interest and ownership between the corporationand the individual or organization controlling it thattheir separate personalities no longer exist, and(2) failure to disregard the corporate entity wouldsanction a fraud or promote injustice.(Citations.) The doctrine is applicable where someinnocent party attacks the corporate form as aninjury to that party's interests. The issue is not somuch whether the corporate entity should bedisregarded for all purposes or whether its verypurpose was to defraud the innocent party, as it iswhether in the particular case presented, justiceand equity can best be accomplished and fraudand unfairness defeated by disregarding thedistinct entity of the corporate form.” (CommunistParty v. 522 Valencia, Inc. (1995) 35 Cal.App.4th980, 993.)Factors used in determining whether there was aunity of interest and ownership include: “commingling offunds and other assets of the two entities, the holding outby one entity that it is liable for the debts of the other,identical equitable ownership in the two entities, use ofthe same offices and employees, and use of one as amere shell or conduit for the affairs of theother.” (Roman Catholic Archbishop v. Superior Court(1971) 15 Cal.App.3d 405, 411.) “Alter ego is an extremeremedy, sparingly used.” (Sonora Diamond Corp. v.Superior Court (2000) 83 Cal.App.4th 523, 539.)Here, Arbor Fund admits that at the relevant timesit was the majority owner of Foundation Foods, of whichWhite Apron was a wholly owned subsidiary. (Facts 30-31] Arbor Fund further admits that all three of WhiteApron’s Board of Directors were also affiliated withit. (Facts 33) However, John Reese, a minority investorin Foundation Foods was primarily responsible for theday-to-day operations of White Apron. (Fact 33; Arbor’s

Response to Special Rog No. 23; Exh. 20 to Declaration ofFitzsimmons)On the other hand, plaintiff does not dispute thatWhite Apron and Arbor Fund had separate payroll records,records for accounts, tax returns, financial information,offices, furniture, equipment, bylaws, meeting, andcorporate minutes. (Facts 38-40 and 42-43) Plaintiff alsodoes not dispute that White Apron always had adequatecapitalization. (See Plaintiff’s Separate Statement ofDisputed Fact; Fact 44)These facts at sufficient to meet Moving Party’sburden of proof on the issue of alter ego and shift theburden to plaintiff to raise a triable issue of fact.Plaintiff points out that White Apron was asubsidiary of Foundation Foods, of which Arbor Fund wasa majority shareholder, that White Apron’s Board ofDirectors were affiliated with Arbor Fund, and that ArborFund received monies from White Apron’s accountsreceivable after the sale. However, a parent-subsidiaryrelationship and overlapping Board members is notenough. “A parent corporation is not liable for the torts ofits subsidiaries simply because of stock ownership.(Citation.) Liability may be imposed only where the parentcontrols the subsidiary to such a degree as to render thelatter the mere instrumentality of the former.” (Instituteof Veterinary Pathology, Inc. v. California HealthLaboratories, Inc. (1981) 116 Cal.App.3d 111, 119.) “Itis considered a normal attribute of ownership that officersand directors of the parent serve as officers and directorsof the subsidiary.” (Sonora Diamond Corp. v. SuperiorCourt (2000) 83 Cal.App.4th 523, 549.) Thus, such acircumstance, by itself, does not serve to make the parentliable for the acts of the subsidiary. (Id.)Accordingly, while Arbor Fund’s ownership interestin the parent of White Apron and its affiliation with WhiteApron’s Board members are relevant factors to the alterego analysis, they alone do not show alter ego. Plaintiffcontends Arbor Fund’s receipt of monies after the sale viathe assignment by the Bank of its interest in the accountsreceivable of White Apron raises the possibility ofmisconduct by Arbor Fund. But, Arbor Fund hassubmitted evidence that it guaranteed White Apron’s lineof credit with the Bank, that it was called upon to makegood on its guaranty in the sum of $1 million because the$2.3 million received from the sale of White Apron wasnot sufficient to retire its debt to the Bank, and that inconnection with its payment of the $1 million, the Bankassigned its right to “A/R Reserve.”Plaintiff contends that the letter sent by WhiteApron to its creditors, stating that no monies were leftafter the sale for creditors, shows the deal was donenefariously, to cover up the fact that Arbor Fund wasgoing to receive some of the funds. However, if theassignment was legitimate, and done in response to ArborFund’s payment of $1 million pursuant to its guaranty,and plaintiff has no evidence that it was not, there really

were no funds for the other creditors. This letter, whileperhaps not fully disclosing all the details of thetransaction, was not the cause of any injury to creditorslike plaintiff.Plaintiff also suggests that Arbor Fund has notprovided sufficient details about White Apron’s debt to theBank, Arbor Fund’s obligations under the Guaranty, andthe Bank’s Assignment of its rights to ArborFund. However, Moving Party is not required on summaryjudgment to set forth all possible evidence on the issuesraised. Arbor Fund has provided evidence sufficient toshow that it received the assignment after paying $1million pursuant to its guaranty. That evidence supportsa finding that there was nothing then improper about theBank assigning to Arbor Fund its rights to the “A/RReserve.” At that point, the burden shifts to plaintiff toprovide conflicting evidence – and plaintiff has not doneso.Plaintiff is correct that the evidence is disputedabout whether plaintiff had notice of White Apron’s severefinancial problems sufficient to negate any finding ofinjustice – a required circumstance for the alter egodoctrine to apply. Penning, plaintiff’s managing partner,disputes that Zoll (Board Member of White Apron) toldhim in September 2011 that White Apron was doing“terrible.” Penning was aware that a sale wascontemplated but whether or not the information he hadwas sufficient to put plaintiff on notice that White Apronwas likely going to default on its debt to plaintiff cannotbe decided as a matter of law in connection with thismotion. However, this conclusion does not preclude thegranting of summary judgment. Alter ego requires both(1) unity of interest; and (2) injustice. As there is notriable issue of fact as to the 1 st factor, it does not matterthat there is a triable issue of fact as to the 2 nd .In short, defendant has met its burden of showingit is not the alter ego of White Apron and plaintiff has notshown that a disputed question of factexists. Accordingly, Defendant Arbor Fund’s Motion forSummary Judgment is granted.As an aside, the court notes that plaintiff’sargument that defendant failed to address whether WhiteApron was actually in breach of its agreement withplaintiff is unavailing. If Arbor Fund is not the alter ego ofWhite Apron, it is not liable even if White Apron was inbreach.Plaintiff’s CapacityIn order to maintain an action in California, aforeign corporation which conducts intrastate businessmust qualify to do business in California. “A foreigncorporation shall not transact intrastate business withouthaving first obtained from the Secretary of State acertificate of qualification….” (Corporations Code§2105(a)) If a foreign corporation transacts business

without first obtaining the required certificate ofqualification, the corporation may not maintain an actionuntil it has complied with §2105. (Corporations Code§2105(c))When a non-qualified corporation maintains anaction and then fails to comply with the requirementsafter notice of the problem, the matter is dismissedwithout prejudice. (United Medical Management Ltd. v.Gatto (1996) 49 Cal.App.4th 1732, 1740.) This same ruleapplies to LLC’s like plaintiff. (Corporations Code§17456(a))During the course of this litigation, plaintiff hasmaintained three different and inconsistent positions, setforth below, with regard to whether it has or needs acertificate of qualification from the California Secretary ofState:(1) Plaintiff is qualified to do business in California. Inits verified response to Form Interrogatory 3.3 fromdefendant Arbor, plaintiff responded “yes” to the questionof whether it was “qualified to do business in California.”(2) Plaintiff is in the process of rectifying any issue withthe Secretary of State. In response to the prior motionfor summary judgment by defendant Arbor, plaintiff didnot argue that it was not required to qualify to dobusiness in California. Plaintiff’s attorney insteadindicated that plaintiff was in the process of rectifying theissue.(3) Plaintiff is not required to qualify to do business inCalifornia because it does not conduct intrastate businessin California. In response to the pending motion, plaintifffor the first time contends that it is not required toregister with the Secretary of State because it conductsonly interstate, not intrastate, business. Plaintiff makesthis argument without addressing its original discoveryresponse stating that it was qualified to do business inCalifornia or why, in response to the prior motion forsummary judgment, it argued that it was rectifying thesituation rather than contending, as it does now, that noaction with the Secretary of State was required.As the court finds that defendant is entitled tosummary judgment based on the alter ego argument, thecapacity argument is moot. The court thus will not reachthe issue of how to handle plaintiff’s seeminglycontradictory positions on this issue and plaintiff’s failureto explain or even acknowledge that it has takencontradictory positions.Plaintiff’s ObjectionsDeclaration of attorney AmandaFitzsimmons: Objection 7 is sustained. Defense counselis testifying as to the effect of documents produced byplaintiff. Objections 6 and 8 are sustained as to counsel’scharacterization of Exhibits 14 and 15 but overruled as toExhibits 14 and 15 themselves. The remaining objections

are overruled. Prior discovery conducted between plaintiffand Arbor, while not dispositive on the issues betweenplaintiff and Arbor Fund, is not irrelevant. Information onwhether plaintiff is registered with the Secretary of Stateis not irrelevant given that plaintiff’s status is one of thegrounds for the pending motion and given thecontradictory positions taken by plaintiff in this action withregard to whether it is registered and whether it isrequired to be registered.Declaration of Steven Zoll (Director of WhiteApron): Objection 7 is sustained (lack of personalknowledge). Objections 10, 11, 13, and 14 are sustainedas the emails referenced speak forthemselves. Objections 16 and 17 are sustained for lackof foundation and lack of personal knowledge. Zoll doesnot have personal knowledge of what plaintiff did or didnot know or what efforts it took. Zoll also has notestablished that as a Director of White Apron, he haspersonal knowledge regarding the details of the ordersplaced by plaintiff with White Apron. The remainingobjections are overruled.Declaration of J. David Foster (CFO of MP ArborFund): Objection 3 is sustained. As CFO of Arbor andArbor Fund, Foster has not laid a foundation sufficient tostate that Arbor provided services to Arbor Fund “inaccordance” with the various agreements. Objection 8 issustained as Foster has not laid a foundation sufficient tostate that services were provided to White Apron “in strictaccordance” with the terms of the Management ServicesAgreement. Objection 10 is sustained as Foster has notlaid a sufficient foundation and has not establishedpersonal knowledge sufficient to testify as to whoexercised day-to-day control over White Apron. Objection17 is sustained. Foster has not laid a sufficient foundationfor stating that White Apron obtained “significant” 3 rdparty funding and that it had adequatecapitalization. These assertions are also improperconclusions. Objection 37 is sustained. Foster has not laida foundation showing that he has personal knowledgesufficient to state that Arbor Fund had no dealings withplaintiff.The remaining objections to the declaration ofFoster are overruled. Foster, CFO of Arbor and ArborFund, has laid a foundation sufficient to testify on theissues of Arbor Fund’s guaranty of White Apron’s debt, thenegotiations with the Bank, the sale of White Apron, ArborFunds’ payment on its guaranty, and the assignment ofrights by the Bank to Arbor Fund.Defendant’s ObjectionsDeclaration of John Reese: Objection 1 issustained. Reese states that he is attaching excerptsfrom his deposition in a related case – but no depositionexcerpts are attached.Declaration of Christiaan Penning: Objection 4 issustained. There is no foundation for Penning’s assertion

that the Statement from White Apron was prepared by itsDirectors. Objection 7 is sustained. Penning’s statementabout what he “came to learn” about White Apron’s salelacks foundation and personal knowledge. Objection 8 issustained. Penning lacks a foundation and personalknowledge about what White Apron’s directors knewconcerning whether White Apron could pay for product.Objection 9 is sustained. Penning has not laid afoundation for how he knows White Apron’s directors triedto use his contacts to find potential buyers unbeknownstto him. Objection 10 is sustained. Penning’s statementregarding inequity is an improper opinion. Objection 11 issustained. Penning lacks personal knowledge regardingwhether Arbor and Arbor Fund were insiders.Declaration of Debbie Vacha: Objection 1 issustained. Vacha’s statement that she is “the AccountExecutive” and “officer manager” of plaintiff’s Fremont,Nebraska office is not sufficient to lay a foundation andshow that Vacha has personal knowledge sufficient tostate that plaintiff does not operate its business inCalifornia, has no employees or assets in California, andhas never operated in California.

RULINGS ON LAW& MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5231) to notify the courtthat all parties are submitting on the tentative and no appearance will be necessary. The tentative will thenbecome the final ruling.If no one appears at the hearing the tentative will be the final ruling. Either side may appear and argue thecourt’s tentative ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPARE ANORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY ORTHE CASE.TENTATIVE RULINGS ON LAW & MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31Date: Wednesday, August 14, 2013# Case Name3 2013-00655840Dement vs Gloria Trust#12761 Southland HomesReal Estate andInvestment as TrusteeNDEx, L.L.C.TENTATIVE RULING:Motion No. 1 – Demurrer: Defendant Gloria Trust#2761, Southland Homes Real Estate and Investment asTrustee (“Trust”)’s unopposed general demurrers to COAs1-6 are sustained. Moving party is to give notice.All of Plaintiff’s claims center around the argumentthat the chain of ownership was defective and therefore,there was never any authority by the foreclosingdefendants to foreclose upon the property, and therefore,the sale should be set aside. Defendant Trust argues thatit is a bona fide purchaser (“BFP”) and the sale cannot beset aside as to it.A BFP for value at a nonjudicial foreclosure salehas the benefit of a conclusive presumption that theforeclosure sale was properly noticed: A recital in thetrustee's deed (executed pursuant to the power of sale) ofcompliance with “all requirements of law” regardingmailing or personal delivery and publication or posting ofthe copies of notice of default and notice of sale “shallconstitute prima facie evidence of compliance with theserequirements and conclusive evidence thereof in favor ofbona fide purchasers and encumbrancers for value andwithout notice.” Civ. Code §2924(c); Bank of America,N.A. v. La Jolla Group II (2005) 129 Cal.App.4th 706,714; Melendrez v. D & I Investment, Inc. (2005) 127Cal.App.4th 1238, 1255.For purposes of the § 2924(c) presumption, a BFPis one who pays value for the property without knowledgeor notice of “the asserted rights of another.” Melendrez v.D & I Investment, Inc., supra, 127 Cal.App.4th at1253. Any fraud by the trustee and/or beneficiary duringthe sale process is not imputed to the BFP and, thus,cannot itself support setting the sale aside. Id. at 1256–1258 [absent evidence BFP knew lender failed to instructtrustee to postpone sale based on repayment agreementbetween borrowers and lender, borrowers could not set

BFP sale aside].Complaint 37 specifically addresses this issue byalleging the Trust is not a BFP because there was no valuepaid for the property since no price was listed on theTrustee’s Deed Upon Sale. However, the allegations inthe Complaint are premised only upon the lack of thepurchase price, but per Trust’s RJN Exh. 2, the recordeddocument shows that the consideration paid for thetransfer was $337,600. BFP status does not requirepayment of the property's fair market value; the buyerneed only part with something of value in exchange forthe property. Melendrez v. D & I Investment, Inc., supra,127 Cal.App.4th at 1251–1252. Plaintiff has not objectedto the RJN. Additionally, there are no facts that the Trustknew of any fraudulent conduct by the foreclosingdefendants. As such, the unopposed demurrers to all 6COAs are sustained without leave to amend.The unopposed request for judicial notice ofrecorded documents and court judgment is granted (Evid.Code §452(d), (h)).Motion No. 2 – Motion to Expunge Lis Pendens: TheTrust’s unopposed motion to expunge lis pendens isgranted, and awarded $790 in attorney’s fees and costsrelating to this motion to be paid within 30 days.In order to grant a motion to expunge a lispendens, a court must find at least one of the following:(1) “the pleading on which the notice is based does notcontain a real property claim.” CCP §405.31; or (2) “theclaimant has not established by a preponderance of theevidence the probable validity of the real propertyclaim.” CCP §405.32.The only difference between the two code sectionsis that a motion brought under §405.31 is reviewed like ademurrer, whereas a motion brought under §405.32requires a judicial evaluation of the merits of theclaimant's case. Kirkeby v. Sup.Ct. (2004) 33 Cal.4th642, 651.“The question whether to expunge or not toexpunge a lis pendens is committed to the sounddiscretion of the superior court.” Sheets v. Sup. Ct.(1978) 86 Cal. App. 3D 68, 70.Unlike most motions, the burden of proof is on theopposing party, i.e., the lis pendensclaimant. CCP§405.30. Under CCP §405.31, it is clearthat there is a real property claim. Under CCP §405.32,however, Plaintiff has failed to prove that the Trust wasnot a BFP by showing that there was no value paid or thatthe Trust had no knowledge of the “falsely” recordeddocuments. Plaintiff has not established any proof ofprevailing on the motion. The motion is granted.The court is required to “direct” an award to theprevailing party of the attorney fees and costs of makingor opposing the motion unless it finds that either:—“the other party acted with substantial

justification”; or—“other circumstances make the imposition ofattorney's fees and costs unjust.” CCP §405.38.Per Attorney Silverstein’s declaration 5, he spent3 hours for the motion at $350/hour, and anticipatesanother 1.5 hours for the hearing plus the $90 filingfee. The request for fees and costs is granted in theamount of $790 ($350/hour x 2 hours (motion had similararguments to demurrer and straight-forward) plus $90filing fee).5 2013-00660100Hetman vs JP MorganChase BankTENTATIVE RULING:Plaintiff’s unopposed motion for preliminaryinjunction is granted. Plaintiff is to make monthlypayments (see below). Plaintiff is to give notice.“The decision to grant or deny a preliminaryinjunction is committed to the discretion of the trial courtafter the court determines (1) the likelihood that theplaintiff will prevail on the merits at trial, and (2) therelative harms suffered by the parties.” Pleasant HillBayshore Disposal, Inc. v. Chip-It Recycling, Inc. (2001)91 Cal. App. 4th 678, 695. Plaintiff has the burden ofproof to show all elements necessary to support theissuance of a preliminary injunction. O’Connell v.Superior Ct. (2006) 141 Cal.App.4th 1452, 1481.Here, the balance of harms favors Plaintiffs, as realproperty is unique and this is a business deal forDefendant. Real property is usually deemed “unique,” sothat injury or loss cannot be compensated in damages,and injunctive relief is therefore readily granted. See Civ.Code §3387.This motion is premised on the 1 st COA for unfairbusiness practices. Plaintiff alleges that Chase isforeclosing upon his property based on a loan that doesnot belong to him. He claims in his declaration that theNOD lists loan number 10756664, and that Chaseconfirmed that no such loan number was ever assigned tohim. Plaintiff’s allegations about being told to default inorder to get a modification, or that he was entitled to aloan under HAMP were not supported by anyevidence. Nevertheless, taking the complaint as a whole,there is sufficient evidence to support a claim for violationof B&P §17200 since the wrongful foreclosure based on a“fake” loan constitutes an unfair, unlawful, and fraudulentbusiness practice.The motion is unopposed and Plaintiff has met hisburden of establishing a probability of prevailing on thisclaim.A bond is required upon granting a preliminaryinjunction. CCP §529. Because the bond requirement ismandatory, defendant's failure to request a bond does notwaive the requirement. Abba Rubber Co. v. Seaquist(1991) 235 Cal.App.3d 1, 10. A court may issue apreliminary injunction upon conditions that protect all—

including the public—whose interests the injunction mayaffect. But to be valid, such conditions must relatedirectly to the interests sought to be protected. County ofInyo v. City of Los Angeles (1976) 61 Cal.App.3d 91,100.Plaintiff is ordered (1) to pay to Defensecounsel/trust account on the 1 st of each and every monththereafter, the amount of the monthly mortgage payment(or other amount agreed upon between the parties), (2)maintain the property in good condition, (3) maintaininsurance on the structure, and (4) keep the propertytaxes and any HOA fees (if applicable) current. Shouldany one of those conditions not be met, Defendant mayapply to the court ex parte, with notice, to have thepreliminary injunction dissolved.6 2012-00601735Colaco vs Cavotec S.A.TENTATIVE RULING:The motion of defendant Cavotec Inet US, Inc.(“Cavotec”) to quash the subpoenas issued by plaintiffsMichael Colaco and Inet Airport Systems, LLC(collectively, “plaintiffs”) will be granted in part, anddenied in part.Cavotec may properly move to quash or modify thesubpoenas as a party to this action. See Code Civ. Proc.§1987.1(b). Cavotec has not asserted a right to privacyunder the California Constitution as to any of the soughtrecords, and there is none apparent here. See Roberts v.Gulf Oil Corp., 147 Cal.App.3d 770, 791 (1983).“[A]ny party may obtain discovery regarding any matter,not privileged, that is relevant to the subject matterinvolved in the pending action...if the matter either isitself admissible in evidence or appears reasonablycalculated to lead to the discovery of admissibleevidence. Discovery may relate to the claim or defense ofthe party seeking discovery or of any other party to theaction.”See Code Civ. Proc. §2017.010.Here, Cavotec challenges two subpoenas: (1) thesubpoena to Citibank, N.A. (the “Citibank Subpoena”),and (2) the subpoena to Jones Lang LaSalle (the “JLLSubpoena”). The court notes that each of thesubpoenaed parties (Citibank, N.A. and Jones LangLaSalle) has agreed to produce responsive documents,and has lodged no objections based on burden orexpense.Citibank SubpoenaThis Subpoena seeks the following documents: all communications between Citibank and Cavotec;and Citibank and other Cavotec-related entities.(Requests 1-6) all statements, deposit records, and cancelledchecks related to Cavotec’s account, including twospecifically identified account numbers. (Requests7-9)Each of these requests is limited to the time periodbetween August 1, 2011 and the present. This time

frame corresponds with the closing of the Asset PurchaseAgreement (“APA”), and is therefore targeting Cavotec’sactivity with respect to contracts and liabilities that wereto have been assigned and/or assumed afterclosing. (See Glassman Reply Decl., Ex. R, 2.7(a) &2.5.)Plaintiffs assert they have received checks made payableto Inet Airport Systems, Inc. (“IAS”) from customers aslate as May 2013. (See Ram Decl., 2-4, Ex. 3.) TheAPA and Guidelines for Contracts contemporaneouslyexecuted clearly contemplate that the parties would bemaking best efforts to get customer consent toassignments of all contracts. (See Glassman Reply Decl.,Ex. R, 2.5 & Ex. S.) The assignment of these contractswas a major aspect of the parties’ agreement. (See id.,Ex. S at 1.) The Complaint alleges that after closing,“even if performed in the name of Inet prior to anyconsent date, the contracts [were to be] administered forthe account of Inet for periods prior to the closing and forthe account of Cavotec for periods on or after theclosing.” (See id. at 3, 7.) To the extent that anyamounts collected from customers by Cavotec afterclosing represented receivables due to Inet, Cavotec wasto reimburse those amounts to Inet. (Id. at7(i).) Because, at least as of May 2013, nearly twoyears after the closing, it appears that some customercontracts had still not been assigned to Cavotec, therequest for Cavotec’s banking records is reasonablycalculated to lead to the discovery of evidence related tobreach of the contract documents.Second, plaintiffs contend that there are still over $2million in receivables due to IAS that have not yet beenpaid. Since plaintiffs have some evidence that Cavotecmay have been depositing amounts payable to IAS, thebanking records are relevant to ascertaining whetherCavotec is in possession of all or part of those receivables.Plaintiffs also claim that they have received invoicesdirected to IAS in 2013 for liabilities incurred byCavotec. (See Ram Decl., Exs. 1 & 2.) Cavotec’s bankingrecords would reflect the vendors to whom it has madepayments, which would allow plaintiffs to extrapolatewhich vendors have not been paid by Cavotec. This toowould be relevant to the breach of contract claim.While defendants’ concern regarding the overbreadth ofthe requests is somewhat understandable, it is unclearhow these requests could be further narrowed. A recordssubpoena must“designate the business records to be produced either byspecifically describing each individual item or byreasonably particularizing each category of item.” SeeCode Civ. Proc. §2020.410(a). As now stated, the courtcannot say that the requests are not reasonablyparticularized; and indeed, Citibank appears prepared toproduce all responsive documents. Because plaintiffs areseeking documents relevant to three issues – unassignedcontracts, unpaid receivables, and unassigned liabilities –there is some concern that further narrowing couldpresent an undue burden for Citibank.

The court will thus DENY the motion as to all requests inthe Citibank Subpoena.JLL SubpoenaThis subpoena seeks the following documents: documents related to IAS, its successor entity, InetAirport Systems, LLC, Inet Europe, Inc., BarbTechnical Services, GEMS Holdings, LLC, GEMSTechnical Services, International Medical Solutions,CDFC Technical Services, Michael Colaco, AprilBarry, or Nancy Mueller between 01/01/11 and thepresent (Requests 1-11). communications with Cavotec (request 12) documents relating to a commercial property leasefor Cavotec (Requests 13-15) communications with Cavotec Dabico US Inc.(Request 16) documents relating to a commercial property leasefor Cavotec Dabico US, Inc. (Requests 17-19) Valuation for the leased property in Fullerton(Request 20) Valuation for the leased property in Cypress(Request 21) documents relating to transactions or anAgreement of Purchase of Real Property betweenGEMS Holdings, LLC, Cavotec Realty USA, LLC,Cavotec, Cavotec US Holdings, Inc., Cavotec, S.A.and Mr. Colaco (Requests 22-24) documents relating to commercial property leasebetween Cavotec and GEMS Holdings, LLC(Requests 25-27) documents relating to Cavotec’s financialstatements from 01/01/11 to the present (Request28) documents relating to Cavotec Dabico US, Inc.’sfinancial statements from 01/01/11 to the present.(Request 29)Plaintiffs allege that Cavotec has leased space previouslyoccupied by IAS in Fullerton, which is owned by GEMSHoldings, LLC. (Compl., 29, Ex. 4.) They contend thatCavotec still owes rent for November 2011. (See BarryDecl., 7.)The Cross-Complaint alleges that GEMS Holdings, LLC iswrongfully retaining Cavotec’s $3.5 million deposit on thepurchase of the Fullerton property pursuant to theliquidated damages provision in the Real Estate PurchaseAgreement. (Cross-Compl., 154-157, Ex. C.)Cavotec Dabico US, Inc. was featured in a recentnewspaper article for a recent industrial lease that wassigned for a facility in Cypress. (See Smith Decl., Ex.14.) The article states that Cavotec will be relocating itsoperations to Cypress from “locations in Costa Mesa andFullerton,” which would seemingly include the Fullertonproperty that is subject of the lease and Real EstatePurchase Agreement. Jones Lang LaSalle is the brokerthat Cavotec used in the lease transaction. (Ibid.)It does not seem from the parties’ meet and confer that

defendants should find Requests 1 through 11problematic, as they seek documents that reference orconcern plaintiffs and cross-defendants and theiraffiliates. As to the requests related to commercialproperty leases and the Real Estate Purchase Agreement(Requests 12-27), these documents would appear to berelevant given the facts that have been presented to thecourt. Cavotec is currently subject to a lease, and theterm does not end until August 2014. (See Compl., Ex.4.) The Real Estate Purchase Agreement for the Fullertonproperty is to close between August 2014 and August2016. (See Cross-Compl., Ex. C at 3(b)(ii).) With theEighteenth Cause of Action in the Cross-Complaint,Cavotec is signaling that it does not intend to close thepurchase on the Fullerton facility, and thus will be inbreach of the Real Estate Purchase Agreement. (SeeCross-Compl., 154-157.) Accordingly, plaintiff isentitled to discovery of communications and otherdocuments regarding the new lease in Cypress, because itis related to issues of liability under the lease and RealEstate Purchase Agreement.However, the court is not convinced of the relevance ofRequests 28 and 29. Plaintiffs do not clearly articulatehow Cavotec or Cavotec Dabico US, Inc.’s financialstatements, provided to its real estate brokers, relate toany of the claims in the Complaint or Cross-Complaint.Thus, the court will GRANT the motion as to Requests 28and 29 in the JLL Subpoena, and DENY the motion as tothe remainder of the requests therein.Sanctions:The court finds that neither the subpoenas nor thepresent motion were brought or opposed in bad faith, orwithout substantial justification. The court finds that theparties made significant efforts to meet and confer oncomplex issues, and were simply unable to come toagreement. The court, in its discretion, will not awardany sanctions. See Code Civ. Proc. §1987.2(a).9 2012-00621102Khosrovian vs CrownRoyal Services, LLCTENTATIVE RULING:The Motion to Be Relieved as Counsel of attorneyMark Plummer is granted. The attorney has satisfied therequirements of CRC 3.1362. The motion was made usingthe required motion form, declaration form, and proposedorder form. The motion was served on the client andopposing counsel. And, the client’s address wasconfirmed within 30-days of the filing of the motion.Note: The proposed order needs the client’saddress/phone number and the date of the FurtherStatus Conference added to it before service onthe client.11 2013-00635690Bavly vs Arden Realty Inc.TENTATIVE RULING (for all three motions):The motions by defendant Arden Realty, Inc. dba NewportIrvine Center to compel plaintiff’s responses to FormInterrogatories (Set One), Special Interrogatories (SetOne), and Request for Production of Documents (Set One)

will be granted.Plaintiff concedes that she has failed to provide responsesto legitimate discovery requests. Therefore, the courtorders that plaintiff provide verified responses, withoutobjections, to the above discovery within 10 days.SanctionsThe Code provides that the court “shall impose amonetary sanction” against a party or attorney whounsuccessfully makes or opposes a motion to compelinterrogatory responses, or responses to requests forproduction of documents, unless the party subject to thesanction acted with substantial justification, or othercircumstances make the imposition of sanctionsunjust. See Code Civ. Proc. §§2030.290(c);2031.300(c).Defendant has properly specified in the notices of motion(1) all parties and attorneys against whom sanctions arebeing sought, (2) the type of sanction sought, and (3) theauthority for the sanctions. See Code Civ. Proc.§2023.040.Because counsel failed to respond to the 06/27/13 meetand confer letter, the court will award sanctions of $880against both plaintiff and her counsel. See Code Civ.Proc. §§2023.010; 2030.290(c); 2031.300(c). Plaintiff orher counsel must pay these sanctions to defendant or itscounsel within 30 days.12 2013-00653191Trenkle vs LurnerTENTATIVE RULING:The motion of defendants David M. Laigaie and DilworthPaxson, LLP, for an order compelling plaintiff Ingrid E.Trenkle, M.D., Inc., to provide responses to serveresponses to the first sets of form and specialinterrogatories, requests for admissions, and requests forproduction and imposing a monetary sanction of $1860against plaintiff Ingrid E. Trenkle, M.D., Inc., is granted inpart and denied in part.It is unclear to the Court what discovery has beenpropounded to the plaintiff(s), what responses have beenreceived by defense counsel, and what remains oncalendar (except for the request for sanctions).The notice of motion seeks orders compelling plaintiffIngrid E. Trenkle, M.D., Inc., and a sanction from thisentity, but Exhibits A-D to the motion are copies ofinterrogatories, requests for admissions, and requests forproduction propounded to individual co-plaintiff Ingrid E.Trenkle, M.D.In addition, attorney Mark L. Gunn has submitted anopposition to the motion indicating that responses to thediscovery have been served and arguing that sanctionsnot be imposed because of these responses. However,there are no responses submitted to this declaration asexhibits.Lastly, moving defendants filed three notices on August 8,

2013 that withdrew various parts of the motion as mootbecause some discovery responses werereceived. However, these notices are contradictory as towhat responses were received, and there is nospecification as to which plaintiff has responded. Onenotice states that a response to the set of requests foradmissions has been received and that the motion iswithdrawn as to it and another notice states thatresponses have been received to everything but the set ofrequests for admissions and the motion is going forwardas to that set.Counsel for the parties is to meet and confer, anddetermine what discovery was served to which plaintiff,and plaintiffs’ counsel is to provide responses to thatdiscovery within 10 days without objection.Due to Plainitffs failure to respond in a timely manner thecourt imposes sanctions of $1080.00 against counsel andplaintiff Ingrid E. Trenkle, M.D.15 2012-00610019Villalpando vs Hidalgo PoolHall, IncTENTATIVE RULING:Application for service by posting.Motion is denied without prejudice.Based on Plaintiff’s declaration filed 8/13/13 the court willallow service by publication in the Orange CountyRegister.19 2011-00532581FX Technology & ProductsUSA, LLC vs White ApronIncTENTATIVE RULING:Defendant Arbor Private Investment Company, LP’sMotion for Summary Judgment is granted.Plaintiff’s objections to the Declaration ofFitzsimmons: Objection 7 is sustained. Objections 6 and8 are sustained as to counsel’s characterization of Exhibits14 and 15 but overruled as to Exhibits 14 and 15themselves. The remaining objections are overruled.Plaintiff’s objections to the Declaration ofZoll: Objections 7, 10, 11, 13, 14, 16, and 17 aresustained. The remaining objections are overruled.Plaintiff’s Objections to the Declaration ofFoster: Objections 3, 8, 10, 17, and 37 aresustained. The remaining objections are overruled.Defendant’s Objection to the Declaration ofReese: Objection 1 is sustained.Defendant’s Objections to the Declaration ofPenning: Objections 4 and 7-11 are sustained. Theremaining objections are overruled.Defendant’s Objection to the Declaration ofVacha: Objection 1 is sustained.Preliminary Note:Moving Party defendant Arbor Private Investment

Company, LP refers to itself as “Arbor Fund” and todefendant Arbor Investments Management, LLC as“Arbor.” This discussion will thus do the same.Alter EgoDefendant Arbor Fund argues it is not liable for thedebt of White Apron because it is not the alter ego ofWhite Apron.“In general, the two requirements for applying thealter ego doctrine are that (1) there is such a unityof interest and ownership between the corporationand the individual or organization controlling it thattheir separate personalities no longer exist, and(2) failure to disregard the corporate entity wouldsanction a fraud or promote injustice.(Citations.) The doctrine is applicable where someinnocent party attacks the corporate form as aninjury to that party's interests. The issue is not somuch whether the corporate entity should bedisregarded for all purposes or whether its verypurpose was to defraud the innocent party, as it iswhether in the particular case presented, justiceand equity can best be accomplished and fraudand unfairness defeated by disregarding thedistinct entity of the corporate form.” (CommunistParty v. 522 Valencia, Inc. (1995) 35 Cal.App.4th980, 993.)Factors used in determining whether there was aunity of interest and ownership include: “commingling offunds and other assets of the two entities, the holding outby one entity that it is liable for the debts of the other,identical equitable ownership in the two entities, use ofthe same offices and employees, and use of one as amere shell or conduit for the affairs of theother.” (Roman Catholic Archbishop v. Superior Court(1971) 15 Cal.App.3d 405, 411.) “Alter ego is an extremeremedy, sparingly used.” (Sonora Diamond Corp. v.Superior Court (2000) 83 Cal.App.4th 523, 539.)Here, Arbor Fund admits that at the relevant timesit was the majority owner of Foundation Foods, of whichWhite Apron was a wholly owned subsidiary. (Facts 30-31] Arbor Fund further admits that all three of WhiteApron’s Board of Directors were also affiliated withit. (Facts 33) However, John Reese, a minority investorin Foundation Foods was primarily responsible for theday-to-day operations of White Apron. (Fact 33; Arbor’sResponse to Special Rog No. 23; Exh. 20 to Declaration ofFitzsimmons)On the other hand, plaintiff does not dispute thatWhite Apron and Arbor Fund had separate payroll records,records for accounts, tax returns, financial information,offices, furniture, equipment, bylaws, meeting, andcorporate minutes. (Facts 38-40 and 42-43) Plaintiff alsodoes not dispute that White Apron always had adequatecapitalization. (See Plaintiff’s Separate Statement ofDisputed Fact; Fact 44)

These facts at sufficient to meet Moving Party’sburden of proof on the issue of alter ego and shift theburden to plaintiff to raise a triable issue of fact.Plaintiff points out that White Apron was asubsidiary of Foundation Foods, of which Arbor Fund wasa majority shareholder, that White Apron’s Board ofDirectors were affiliated with Arbor Fund, and that ArborFund received monies from White Apron’s accountsreceivable after the sale. However, a parent-subsidiaryrelationship and overlapping Board members is notenough. “A parent corporation is not liable for the torts ofits subsidiaries simply because of stock ownership.(Citation.) Liability may be imposed only where the parentcontrols the subsidiary to such a degree as to render thelatter the mere instrumentality of the former.” (Instituteof Veterinary Pathology, Inc. v. California HealthLaboratories, Inc. (1981) 116 Cal.App.3d 111, 119.) “Itis considered a normal attribute of ownership that officersand directors of the parent serve as officers and directorsof the subsidiary.” (Sonora Diamond Corp. v. SuperiorCourt (2000) 83 Cal.App.4th 523, 549.) Thus, such acircumstance, by itself, does not serve to make the parentliable for the acts of the subsidiary. (Id.)Accordingly, while Arbor Fund’s ownership interestin the parent of White Apron and its affiliation with WhiteApron’s Board members are relevant factors to the alterego analysis, they alone do not show alter ego. Plaintiffcontends Arbor Fund’s receipt of monies after the sale viathe assignment by the Bank of its interest in the accountsreceivable of White Apron raises the possibility ofmisconduct by Arbor Fund. But, Arbor Fund hassubmitted evidence that it guaranteed White Apron’s lineof credit with the Bank, that it was called upon to makegood on its guaranty in the sum of $1 million because the$2.3 million received from the sale of White Apron wasnot sufficient to retire its debt to the Bank, and that inconnection with its payment of the $1 million, the Bankassigned its right to “A/R Reserve.”Plaintiff contends that the letter sent by WhiteApron to its creditors, stating that no monies were leftafter the sale for creditors, shows the deal was donenefariously, to cover up the fact that Arbor Fund wasgoing to receive some of the funds. However, if theassignment was legitimate, and done in response to ArborFund’s payment of $1 million pursuant to its guaranty,and plaintiff has no evidence that it was not, there reallywere no funds for the other creditors. This letter, whileperhaps not fully disclosing all the details of thetransaction, was not the cause of any injury to creditorslike plaintiff.Plaintiff also suggests that Arbor Fund has notprovided sufficient details about White Apron’s debt to theBank, Arbor Fund’s obligations under the Guaranty, andthe Bank’s Assignment of its rights to ArborFund. However, Moving Party is not required on summaryjudgment to set forth all possible evidence on the issuesraised. Arbor Fund has provided evidence sufficient toshow that it received the assignment after paying $1

million pursuant to its guaranty. That evidence supportsa finding that there was nothing then improper about theBank assigning to Arbor Fund its rights to the “A/RReserve.” At that point, the burden shifts to plaintiff toprovide conflicting evidence – and plaintiff has not doneso.Plaintiff is correct that the evidence is disputedabout whether plaintiff had notice of White Apron’s severefinancial problems sufficient to negate any finding ofinjustice – a required circumstance for the alter egodoctrine to apply. Penning, plaintiff’s managing partner,disputes that Zoll (Board Member of White Apron) toldhim in September 2011 that White Apron was doing“terrible.” Penning was aware that a sale wascontemplated but whether or not the information he hadwas sufficient to put plaintiff on notice that White Apronwas likely going to default on its debt to plaintiff cannotbe decided as a matter of law in connection with thismotion. However, this conclusion does not preclude thegranting of summary judgment. Alter ego requires both(1) unity of interest; and (2) injustice. As there is notriable issue of fact as to the 1 st factor, it does not matterthat there is a triable issue of fact as to the 2 nd .In short, defendant has met its burden of showingit is not the alter ego of White Apron and plaintiff has notshown that a disputed question of factexists. Accordingly, Defendant Arbor Fund’s Motion forSummary Judgment is granted.As an aside, the court notes that plaintiff’sargument that defendant failed to address whether WhiteApron was actually in breach of its agreement withplaintiff is unavailing. If Arbor Fund is not the alter ego ofWhite Apron, it is not liable even if White Apron was inbreach.Plaintiff’s CapacityIn order to maintain an action in California, aforeign corporation which conducts intrastate businessmust qualify to do business in California. “A foreigncorporation shall not transact intrastate business withouthaving first obtained from the Secretary of State acertificate of qualification….” (Corporations Code§2105(a)) If a foreign corporation transacts businesswithout first obtaining the required certificate ofqualification, the corporation may not maintain an actionuntil it has complied with §2105. (Corporations Code§2105(c))When a non-qualified corporation maintains anaction and then fails to comply with the requirementsafter notice of the problem, the matter is dismissedwithout prejudice. (United Medical Management Ltd. v.Gatto (1996) 49 Cal.App.4th 1732, 1740.) This same ruleapplies to LLC’s like plaintiff. (Corporations Code§17456(a))During the course of this litigation, plaintiff has

maintained three different and inconsistent positions, setforth below, with regard to whether it has or needs acertificate of qualification from the California Secretary ofState:(1) Plaintiff is qualified to do business in California. Inits verified response to Form Interrogatory 3.3 fromdefendant Arbor, plaintiff responded “yes” to the questionof whether it was “qualified to do business in California.”(2) Plaintiff is in the process of rectifying any issue withthe Secretary of State. In response to the prior motionfor summary judgment by defendant Arbor, plaintiff didnot argue that it was not required to qualify to dobusiness in California. Plaintiff’s attorney insteadindicated that plaintiff was in the process of rectifying theissue.(3) Plaintiff is not required to qualify to do business inCalifornia because it does not conduct intrastate businessin California. In response to the pending motion, plaintifffor the first time contends that it is not required toregister with the Secretary of State because it conductsonly interstate, not intrastate, business. Plaintiff makesthis argument without addressing its original discoveryresponse stating that it was qualified to do business inCalifornia or why, in response to the prior motion forsummary judgment, it argued that it was rectifying thesituation rather than contending, as it does now, that noaction with the Secretary of State was required.As the court finds that defendant is entitled tosummary judgment based on the alter ego argument, thecapacity argument is moot. The court thus will not reachthe issue of how to handle plaintiff’s seeminglycontradictory positions on this issue and plaintiff’s failureto explain or even acknowledge that it has takencontradictory positions.Plaintiff’s ObjectionsDeclaration of attorney AmandaFitzsimmons: Objection 7 is sustained. Defense counselis testifying as to the effect of documents produced byplaintiff. Objections 6 and 8 are sustained as to counsel’scharacterization of Exhibits 14 and 15 but overruled as toExhibits 14 and 15 themselves. The remaining objectionsare overruled. Prior discovery conducted between plaintiffand Arbor, while not dispositive on the issues betweenplaintiff and Arbor Fund, is not irrelevant. Information onwhether plaintiff is registered with the Secretary of Stateis not irrelevant given that plaintiff’s status is one of thegrounds for the pending motion and given thecontradictory positions taken by plaintiff in this action withregard to whether it is registered and whether it isrequired to be registered.Declaration of Steven Zoll (Director of WhiteApron): Objection 7 is sustained (lack of personalknowledge). Objections 10, 11, 13, and 14 are sustainedas the emails referenced speak forthemselves. Objections 16 and 17 are sustained for lack

of foundation and lack of personal knowledge. Zoll doesnot have personal knowledge of what plaintiff did or didnot know or what efforts it took. Zoll also has notestablished that as a Director of White Apron, he haspersonal knowledge regarding the details of the ordersplaced by plaintiff with White Apron. The remainingobjections are overruled.Declaration of J. David Foster (CFO of MP ArborFund): Objection 3 is sustained. As CFO of Arbor andArbor Fund, Foster has not laid a foundation sufficient tostate that Arbor provided services to Arbor Fund “inaccordance” with the various agreements. Objection 8 issustained as Foster has not laid a foundation sufficient tostate that services were provided to White Apron “in strictaccordance” with the terms of the Management ServicesAgreement. Objection 10 is sustained as Foster has notlaid a sufficient foundation and has not establishedpersonal knowledge sufficient to testify as to whoexercised day-to-day control over White Apron. Objection17 is sustained. Foster has not laid a sufficient foundationfor stating that White Apron obtained “significant” 3 rdparty funding and that it had adequatecapitalization. These assertions are also improperconclusions. Objection 37 is sustained. Foster has not laida foundation showing that he has personal knowledgesufficient to state that Arbor Fund had no dealings withplaintiff.The remaining objections to the declaration ofFoster are overruled. Foster, CFO of Arbor and ArborFund, has laid a foundation sufficient to testify on theissues of Arbor Fund’s guaranty of White Apron’s debt, thenegotiations with the Bank, the sale of White Apron, ArborFunds’ payment on its guaranty, and the assignment ofrights by the Bank to Arbor Fund.Defendant’s ObjectionsDeclaration of John Reese: Objection 1 issustained. Reese states that he is attaching excerptsfrom his deposition in a related case – but no depositionexcerpts are attached.Declaration of Christiaan Penning: Objection 4 issustained. There is no foundation for Penning’s assertionthat the Statement from White Apron was prepared by itsDirectors. Objection 7 is sustained. Penning’s statementabout what he “came to learn” about White Apron’s salelacks foundation and personal knowledge. Objection 8 issustained. Penning lacks a foundation and personalknowledge about what White Apron’s directors knewconcerning whether White Apron could pay for product.Objection 9 is sustained. Penning has not laid afoundation for how he knows White Apron’s directors triedto use his contacts to find potential buyers unbeknownstto him. Objection 10 is sustained. Penning’s statementregarding inequity is an improper opinion. Objection 11 issustained. Penning lacks personal knowledge regardingwhether Arbor and Arbor Fund were insiders.Declaration of Debbie Vacha: Objection 1 is

sustained. Vacha’s statement that she is “the AccountExecutive” and “officer manager” of plaintiff’s Fremont,Nebraska office is not sufficient to lay a foundation andshow that Vacha has personal knowledge sufficient tostate that plaintiff does not operate its business inCalifornia, has no employees or assets in California, andhas never operated in California.

Rulings 1http://www.occourts.org/tentativerulings/fhornrulings.htmPage 1 of 69/5/2013RULINGS ON LAW& MOTION MATTERSJUDGE ROBERT D. MONARCHDEPT C-31APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5231) tonotify the court that all parties are submitting on the tentative and no appearance will benecessary. 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 andargue the court’s tentative ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY andPREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION ISDISPOSITIVE OF A PARTY OR THE CASE.TENTATIVE RULINGS ON LAW & MOTION MATTERSJUDGE ROBERT D. MONARCHDEPT C-31Date: Wednesday, September 4, 2013# Case Name1 2012-00620026Coulson vs Casa De LaFamiliaSUSTAIN DEMURRER TO ALL CAUSES OF ACTION INFIRST AMENDED COMPLAINT WITH 20 DAYS TOAMEND; MOTION TO STRIKE IS MOOT.The Complaint and all of the Causes of Action are vague anduncertain. The typo errors to which plaintiff refers can beresolved in the 2nd amended complaint. The gist of theamended complaint is that plaintiff became psychologicallydisabled as a result of her supervisor’s direction that she actinappropriately or illegally. When she sought medicaltreatment she was advised to apply for WorkersCompensation benefits. When plaintiff requested guidancefrom her employer as to how to apply for such benefits, shewas fired. The allegations support the inference that plaintiffwas fired because of her objections to the directions shereceived from her supervisor, not from an anxiety disability.The general allegation of the complaint incorporated intoeach cause of action are confusing and create uncertainty.Plaintiff does not explain how an interactive process or anaccommodation would have mitigated her anxiety. Even ifplaintiff were reassigned to a supervisor who would directher properly, she would be consenting to continue to workfor an organization that would continue to actinappropriately or illegally. This she alleged was the sourceof her anxiety in the first place. Further, plaintiff allegesthat she complained about illegal behavior to her employerand not to any governmental agency affecting the Whistle-Blowing causes of action. The unfair business causes ofaction depend upon the disability claims and areaccordingly, uncertain.Moving party to give notice.

Rulings 1http://www.occourts.org/tentativerulings/fhornrulings.htmPage 2 of 69/5/20132 2013-00626555Jordan vs TrinovaMedical WasteSolutions, LLC3 2013-00657399Kieu vs QuinalSUSTAIN DEMURRER TO AFFIRMATIVE DEFENSES 2 -11; OVERRULE AS TO 1st AFFIRMATIVE DEFENSE; 15DAYS TO AMEND.Counsel is directed to comply with CRC 2.112 in connectionwith the amended answer. This shall include the appropriatefactual allegations.SUSTAIN DEMURRER WITH 20 DAYS LEAVE TOAMEND.No opposition. The Demurrer is presumed to have merit.Plaintiff has not alleged which parts of the contract are oralor written. Necessary dates and details of the contract aremissing which are significant regarding the Statute ofFrauds and/or the Statute of Limitations. The obligations ofthe parties are not sufficiently described. Fraud is not pledwith the requisite specificity.Moving party to give notice.4 2012-00605005SMS Signature Cars vsDouglas Lopez & RummLLPSUSTAIN DEMURRER TO 2ND, 3RD, 5TH, & 7THCAUSES OF ACTION WITH 20 DAYS LEAVE TO AMEND.Although cross-plaintiffs can allege inconsistent theories,they have still not alleged facts sufficient to establish animplied contract. They have not alleged facts from which thepromise is implied. To the extent they are relying upon anexpress promise (the written contract) this would seem topreclude the establishment if an implied contract. (why isthis cause of action being pursued since cross-defendantshave not demurred to the express contract and twocommon count causes of action?)The breach of covenant of good faith cause of action doesnot state facts showing anything more than a mere failureto pay, which is simply a breach of contract.The open book account cause of action does not show thatcross-plaintiff kept an account of the debits and creditsinvolved.Cross-plaintiffs seem to have conceded that the accountstated cause of action is insufficient. They merely soughtleave to amend.The court is disposed to grant leave to amend, this time,since the previous demurrer went off calendar. The previoustentative ruling was not official.5 2013-00632440Robert M Chavez &Rosemary ChavezTrustees of the ChavezTrust vs SCMR IncGRANT MOTION TO SET ASIDE DEFAULT.The proposed answer is deemed filed and served as toplaintiff as of the date of this hearing. Defense counsel topay $1,290.90 in reasonable attorney’s fees and costs toplaintiff. Moving party to give notice.

Rulings 1http://www.occourts.org/tentativerulings/fhornrulings.htmPage 3 of 69/5/2013The moving party has sufficiently established “attorneyfault” per CCP 473(b). The court finds that there is no basisto impose sanctions.6 2012-00585254Carnegie Mortgage LLCvs Real EstateMortgage Network IncMOTION NO. 1 – COMPEL FURTHER PRODUCTION:REMN’s motion to compel further production of documentsto requests for production (set 3) numbers 60-82 and 86-95is denied in part and granted in part. The request forfurther responses to request numbers 61-69 are granted perthe limitations set forth below in Motion No. 3 (Rushmore’smotion for protective order). Request for further responsesto request number 90 is granted and to the extent anyobjections apply, Icon is to provide a privilege log. Icon isto produce documents it stated it would produce in its priorresponses to request numbers 71, 72, 75, 80, 86, 87, 88,89, and 91-93, but no further responses are required as therequests are overbroad. The requests for further productionas to the remaining requests are denied as they areoverbroad. Further responses/documents are to be servedwithin 20 days. The request for sanctions is denied.Defendants are to give notice.MOTION NO. 2 – COMPEL FURTHER PRODUCTION:REMN and Sherman’s motion to compel further productionof documents (set two) is moot as Icon served supplementalresponses. Although defendants did not respond to Icon’s08/01/13 letter stating it would provide supplementalresponses, those were not served until after the agreedupon08/15/13 deadline to file this motion, which wouldhave required defendants to bring this motion anyway.Prior to that, the parties made reasonable efforts to meetand confer. Therefore, defendants are awarded reasonableattorney’s fees and costs in the amount of $2,500 againstIcon and its attorneys. No declaration that the $550/hourrate is reasonable in the local area as opposed to New Yorkwhere attorney Welzer practices. Further. Attorney’s feesentitlement is mitigated by reason of the requirement thatall counsel had to appear in connection with motions ofdefendants that were denied in substantial part.Defendants are to give notice.MOTION NO. 3 – PROTECTIVE ORDER: NonpartyRushmore’s motion for protective order is granted in part.Rushmore agrees to have documents produced in a limitedfashion. Icon may produce documents pursuant to itsstipulation with REMN to: (1) mark all Rushmore-relateddocuments “Confidential and Attorneys’ Eyes Only”; (2)provide Rushmore with Bates-stamped copy of allRushmore-related documents produced to REMN; and (3)give Rushmore advance written notice before de-designatingor re-designating any Rushmore-related documents. Theproduction is limited to the following: Icon is prohibited fromproducing any documents unrelated to the terms of the saleand the purchase price, which disclose confidential,proprietary and sensitive information of Rushmore.Defendants are to give notice.7 2011-00452206 Continued to 11/13/13

Rulings 1http://www.occourts.org/tentativerulings/fhornrulings.htmPage 4 of 69/5/2013U.S. BancorpEquipment Finance,Inc. Successor byMerger with LyonFinancial Services, Incvs Beenatural Corp8 03CC01065InsuranceCommissioner of theState of California vsPacific NationalInsurance Company9 2011-00500001Rudolph vs NunezGRANT MOTION FOR ORDER APPROVINGREINSURANCE COMMUTATION AND SETTLEMENTAGREEMENT.No opposition. The settlement of the obligations andliabilities between Pacific National and Munich ReinsuranceAmerica, Inc. for a lump sum payment of $435,000,appears to be fair and in compliance with the InsuranceCode. The Commissioner has shown that the commutationis in the best interests of the policy holders and thecreditors of the Pacific National liquidation estate. Thesettlement amount will satisfy Munich’s current and futureobligations to Pacific National under the terms of thereinsurance contracts and will significantly reduceadministrative expenses associated with billing andcollection reinsurance and will allow Pacific National toobtain immediate access to the funds for the liquidationestate.Moving party to give notice.DENY MOTION TO ACCEPT AMENDED ANSWER TOSECOND AMENDED COMPLAINT AND TO ACCEPTAMENDED CROSS-COMPLAINT, WITHOUT PREJUDICE.Although this motion wasn’t timely, this defect was waivedby plaintiff by submitting a substantive opposition. Tate v.Superior Court (1975) 45 Cal.App.3 rd 925. However, themoving party has not complied with CRC 3.1324. theproposed pleading was not attached or filed with themotion. The Second Cross-Complaint was not labeled asamended and it was filed without leave of court. There wasno supporting declaration explaining what allegations arebeing deleted or added. Further, there is no explanation asto why this motion wasn’t filed earlier. There is noexplanation as to how the “new facts” were discovered.There is no explanation regarding “personal losses”.This reasoning applies equally to the request to amend theanswer.GRANT MOTION TO PERMIT DISCOVERY OFDEFENDANT’S FINANCIAL CONDITION.No opposition. The motion is presumed to have merit.Plaintiff has provided sufficient evidence regarding bothdefendants with respect to the alleged causes of action thatthere is a substantial probability she will prevail on her claimfor punitive damages.GRANT MOTION TO STRIKE AMENDED CROSS-COMPLAINT AND AMENDED ANSWER.No opposition. The motion is presumed to have merit.Again, the filing of this amended pleading required leave ofcourt. The answer of Manuel Nunez to the First Amended

Rulings 1http://www.occourts.org/tentativerulings/fhornrulings.htmPage 5 of 69/5/2013Complaint served as the answer to the Second AmendedComplaint in that his pleading only included claims againstother defendants. Accordingly, he cannot file an amendedanswer without leave of court.10 2012-00590404Fischer vs NationalUnion Fire InsuranceCompany of Pittsburgh,PAGRANT MOTION TO AMEND ANSWER TO THE FIRSTAMENDED COMPLAINT.No opposition. Motion is presumed to have merit. The courtfinds that the timeliness defect has been waived. Defendantpromptly moved to amend after learning from plaintiff at hisdeposition in late July that the release, accord andsatisfaction defense was appropriate. Plaintiff has notarticulated any prejudice resulting from the amendment.Defendant shall an amended answer within 5 days. Theanswer shall comply with CRC 3.1324. (The proposedanswer does not comply)MOTION FOR PROTECTIVE ORDER AND MOTION TOCOMPEL DEPOSITION ARE ASSIGNED TO ADISCOVERY REFEREE.The parties appear to agree that a discovery referee is thebest way to resolve the several discovery issues relating tothese motions. The court would add that the referee shouldalso resolve any future discovery disputes. The parties shallshare in the costs of the referee as the referee determines.The parties shall comply with the Code regarding theappointment procedure.11 2012-005995431101 Dove Street vs1101 Dove StreetOwners’ AssociationNO TENTATIVE; THE MOTIONS WILL BE TAKEN UNDERSBUMISSION.The authorities and argument on both sides are persuasive.The court has not had the opportunity to appropriatelyreview the Reply Brief. The court would be inclined to acceptfurther briefing after the hearing. Both sides cite City ofHope v. Genentech, Inc. (2008) 43 Cal.4th 375. The courtinvites further authority/argument as to whether there it isthe duty of the court or the jury to construe the purchaseagreement and/or the CC&R’s considering thecommunications between the parties. Is the Nordberg letterprivileged? Has the privilege been waived? Are “eyebrow”signs and “monument” signs installed/erected on associationproperty or common area? Is there a distinction between“association” property and “common” area? Is there anambiguity in the purchase agreement that would allowextrinsic evidence to aid in interpretation? (The agreementmerely says that the seller is to install signage for plaintiff .Just what kind of sign and where it was to go were not setforth). Are the statements of Garrett hearsay or are they, insubstance, statements of a party (Ev.Code 1222), or arethey contemporaneous statements offered to makeunderstandable the conduct of the seller in negotiating thesale dealing with the sign issue (Ev. Code 1241). It wouldappear to be proper to admit Garrett’s declaration on the

Rulings 1http://www.occourts.org/tentativerulings/fhornrulings.htmPage 6 of 69/5/2013issue of his understanding and intent. The statements wouldbe excluded on the issue of what the language meant.The meaning of the language in the addendum appearsdisputed. This would raise a question of fact. Whether thepurchase agreement and/or addendum gave plaintiff acontractual right to a monument sign appears to bedisputed and seems to raise a question of fact. Whether theinaction by the defendant to plaintiff’s application wasdeemed an approval is disputed and seems to raise aquestion of fact. Whether the approval of the architecturalcommittee is required at all seems to raise a question offact. The language in the agreement appears to beambiguous in this regard.There may be a plethora of other factual questions involvedin interpreting the purchase agreement and addendum andtheir connection/coordination with the CC&Rs. (which wouldbe construed by the court).Sancho Panza had it easy compared to the burdens placedupon counsel in this matter.12 2011-00525220Jupitor CorporationU.S.A. vs OntarioRefrigeration Service,Inc.DENY MOTIONS FOR SUMMARY JUDGMENT ANDSUMMARY ADJUDICATION.There is the same triable issue of material fact with respectto each motion. Whether the valve manufactured by White-Rodgers contributed to the incident resulting in damage tothe property of plaintiff. Ontario Refrigeration has presentedsufficient evidence with the declaration of it's expert, PhilipVan Herle and operations manager Scott Gray to create anissue regarding causation. This is consistent with the court'sinterpretation of Sargon Enterprises, Inc. v. University ofSouthern California (2012) 55Cal.4th 747. The Sargoncourt excluded expert testimony based on a future profitsestimate based on existing businesses that have marketedideas analogous to that of the plaintiff in that case assumingthat this plaintiff's idea would be successful and would beproperly marketed . The lost profits estimate was over abillion dollars. This was deemed speculative and withoutfactual support. The damages depended to a great extenton how innovative a jury found the plaintiff to be. Mr. VanHerle based his opinion on an analysis of the specificallyidentifiable valve. There is no factual dispute that the valvehe examined was a physical part of the mechanism involvedin the fire. The arguments of White-Rodgers are applicableto the weight of the evidence presented by OntarioRefrigeration, not its admissibility. It is inappropriate for thecourt to weigh the evidence in connection a Motion forSummary Judgment/Adjudication.

Rulings 1http://www.occourts.org/tentativerulings/fhornrulings.htmPage 1 of 89/13/2013RULINGS ON LAW& MOTION MATTERSJUDGE ROBERT D. MONARCHDEPT C-31APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5231) tonotify the court that all parties are submitting on the tentative and no appearance will benecessary. 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 andargue the court’s tentative ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY andPREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION ISDISPOSITIVE OF A PARTY OR THE CASE.TENTATIVE RULINGS ON LAW & MOTION MATTERSJUDGE ROBERT D. MONARCHDEPT C-31Date: Wednesday, September 11, 2013# Case Name1 2013-00658788Ramons vs The Bank ofNew York Mellon2 2013-00642153Darwish vs Bank ofAmerica, N.A.SUSTAIN DEMURRER WITH 20 DAYS LEAVE TOAMEND.No opposition. The demurrer is presumed to have merit.SUSTAIN DEMURRER WITH 20 DAYS LEAVE TO AMENDNo opposition. The demurrer is presumed to have merit.3 2011-00532542Tran vs BNY MellonGRANT MOTION TO STRIKE OF NAYANA SHAH, M.D.,WITHOUT LEAVE TO AMEND; SUSTAIN DEMURRER OFSAID DEFENDANT WITHOUT LEAVE TO AMEND.No opposition. The motion and demurrer are presumed tohave merit. Plaintiff was not given permission to addentirely new causes of action against Dr. Shah. CCP 436(b).Accordingly, causes of action 1-7, 10, 11, 13, 14 and 16 arestricken without leave to amend. The 9 th Cause of Action forconspiracy is so unintelligible that the court cannot makeout the allegations against Dr. Shah. There is no informationas to her association with Albert Lin amounted to any typeof wrongful conduct. The 12 th Cause of Action for medicalmalpractice as alleged by plaintiff do not make sense to thecourt. Plaintiff alleges that she never had a physicianpatientrelationship with Dr. Shah (4 th Amended Complaint,par. 267) and that she never consulted with Dr. Shah (4 thAC par. 26). Additionally, plaintiff concedes that the claimsagainst Dr. Shah are based on conjectures (4 th AC par.267). Moving party to give notice.SUSTAIN DEMURRER OF SCOTT & GOLDMAN, INC.,WITHOUT LEAVE TO AMEND.

Rulings 1http://www.occourts.org/tentativerulings/fhornrulings.htmPage 2 of 89/13/2013The allegations against this defendant are extremely vague.Plaintiff admits that the debt collection proceedings were setup and fraudulently brought against persons that sharedplaintiff’s name with 10 DOE defendants. She alleges thatone of the DOEs was intended to direct plaintiff (4 th AC 72).This defendant is named only in Causes of Action 2-4, 6-11and 13, and all are premised on the same claims. None ofthe alleged collection actions are identified in any manner.Further, all of the claims, except malicious prosecution aresubject to the litigation privilege (CC 47(b). There are nospecific allegations establishing that an action commencedor directed by defendant was terminated in her favor, thatsuch action was brought without probable cause and wasinitiated with malice. Bertero v. National General Corp.(1974) 13 Cal.3 rd 43. The demurrer to the 4 th AmendedComplaint is sustained without leave to amend. Movingparty to give notice.4 2013-00644795Freihat vs FordSUSTAIN DEMURRER TO FIRST AMENDED COMPLAINTWITH 20 DAYS LEAVE TO AMEND.Neither plaintiff’s negligent infliction of emotional distressnor intentional infliction of emotional distress claims areseparately articulated. To the extent that the generalallegations are intended to support these causes of action,they fail to state facts sufficient to constitute a cause ofaction.Negligent infliction of emotional distress is not anindependent tort, and emotional distress damages arerecoverable under plaintiff’s negligence claim. SeeMcMahon v. Craig, 176 Cal.App.4 th 1502, 1509 (2009).Intentional infliction of emotional distress only lies wheredefendant’s extreme and outrageous conduct is directed atplaintiff or done with knowledge that plaintiff herself will behurt. See Christensen v. Sup. Ct., 54 Cal.3d 868, 905(1991).The Motion to Strike is moot regarding these issues.DENY MOTION TO STRIKE PORTIONS OF FIRSTAMENDED COMPLAINT.1. The court DENIES defendant’s request for judicialnotice of the forensic volatile examination report.Police reports are not proper subjects of judicialnotice, as their contents are subject to dispute. SeePeople v. Jones, 15 Cal.4 th 119, 171 (1997), overruledon other grounds by People v. Hill, 17 Cal.4 th 800(1998).2. The court GRANTS defendant’s request for judicialnotice of the case search performed of the court’s ownrecords. See Evid. Code §452(d).3. The request to strike “Wrongful Death” from thecaption of the FAC is DENIED, as there is no indicationthat plaintiff actually alleges a wrongful death claim.

Rulings 1http://www.occourts.org/tentativerulings/fhornrulings.htmPage 3 of 89/13/20134. The request to strike reference to negligent inflictionof emotional distress or intentional infliction ofemotional distress is MOOT, in light of the court’sruling on defendant’s demurrer.5. The request to strike paragraph 11 on page 3 isDENIED. Plaintiff need not allege at the pleadingsstage each fact that is the basis for her damagesclaim, so long as she has set forth the factsconstituting her cause of action, and her demand forjudgment. See Code Civ. Proc. §425.10. Defendantis free to explore the basis for her damages claim indiscovery.6. The request to strike paragraph 6 on page 5 isDENIED, in accordance with the court’s ruling ondefendant’s demurrer.The request to strike paragraphs 14(a)(2), and paragraphs2, 3, 4, 5, 8, and 9 on pages 5 and 6 of the FAC is DENIED.Plaintiff alleges that defendant willingly consumed valium tothe point of intoxication, and drove recklessly, includingrunning through a red light. Such conduct can reasonablybe viewed as carried on with a conscious disregard for thesafety of others under the rule stated in Taylor v. SuperiorCourt, 24 Cal.3d 890 (1979). Additionally, such conductcould also be viewed as “despicable” as that term has beendefined. See Lackner v. North, 135 Cal.App.4 th 1188, 1210(2006)5 2013-00643885Deller vs View PointeNorth CommunityAssociationOVERRULE DEMURRER TO ENTIRE 1 ST AMENDEDCOMPLAINT, THE 1 ST , 3 RD , 4 TH , AND 6 TH CAUSES OFACTION; SUSTAIN AS TO 7 TH CAUSE OF ACTION WITH20 DAYS TO AMEND; SUSTAIN AS TO 8 TH CAUSE OFACTION WITHOUT LEAVE TO AMEND.The “chain letter” and “lack of dates arguments lack merit.The complaint is understandable and the specifics may beobtained through discovery.The breach of contract, enforcement of equitable servitudes,breach of CC 1364 and breach of fiduciary duty are notimpermissibly duplicative of each other. No authority is citedregarding CC 1364. The nuisance and negligence causes ofaction express different theories and primary rights.Insufficient facts are pled in connection with the 7 th cause ofaction.The court agrees that the 8 th cause of action is duplicative.Negligent infliction of emotional distress is not an intentionaltort as argued by plaintiff.DENY MOTION TO STRIKE ITEM 1 IN THE NOTICE;GRANT WITH 20 DAYS TO AMEND AS TO ITEMS 4, 5AND 8; GRANT WITHOUT LEAVE TO AMEND AS TOITEMS 2 AND 3; THE MOTION IS MOOT AS TO ITEMS 6AND 7.

Rulings 1http://www.occourts.org/tentativerulings/fhornrulings.htmPage 4 of 89/13/2013Paragraph 38 in the negligence cause of action does notreference punitive damages and as such, is innocuous.Paragraph 57 of the 3 rd cause of action is unclear andconclusory and are based on negligence when read with theother allegations of this claim.Paragraph 75 in the 4 th cause of action seems identical toparagraph 57. It is unclear and is based on negligence.Paragraphs 94 and 107 of the 5 th and 6 th causes of action isalso seems identical to paragraph 57 and are based uponnegligence.Paragraphs 117 and 123 of the 7 th and 8 th causes of actionare moot in light of the ruling in connection with thedemurrer.The motion to strike the request for punitive damages in theprayer is also granted with 20 days leave to amend.6 2013-00669835UNITE HERE Local 11,AFL-CIO vs AnaheimArena Management,LLCDENY MOTION FOR PRELIMINARY INJUNCTIONPlaintiff’s request for a preliminary injunction is denied. Thestatus quo favors defendant. While plaintiff’s members willsuffer harm, the equities appear to be evenly split betweenthe parties given the time and energy spent by defendantrecruiting and hiring new employees before §1063.5 waspassed and the fact that granting an injunction would resultin the new, likely low wage, employees losing work, eventhough defendant is not directly affected. Plaintiff has notestablished a probability of prevailing. Pursuant to LaborCode §1063(c), it appears defendant, comes within thedefinition of “awarding authority”, and therefore, is entitledto replace a contractor’s employees with its own employees.A minor factor considered in connection with the balancingof equities in defendant’s favor is its’ contentions withrespect to the one-subject rule.Defendant’s Objections to Evidence with Moving PapersObjections to Declaration of Lori Condinus: OverruleObjections 1-5Objections to Declaration of Miguel Jauregui:Overrule objections 1-4Objections to Declaration of Jaime Gonzalez:Overrule Objections 1-3Objection to Declaration of Maria Elena Monroy:Overrule Objection 1. The declaration has been effectivelytranslated.Objection to Declaration of Christopher Smith:Overrule Objections 1 and 3. Sustain Objection 4. There isno Objection 2 (defendant skipped from 1 to 3).Plaintiff’s Objections to Evidence in OppObjections to Declaration of Kevin Starkey:Objection to 10 is overruled in part and sustained in part.The statement is admitted as to the fact that a letter wassent to Aramark and as to what the letter said. The

Rulings 1http://www.occourts.org/tentativerulings/fhornrulings.htmPage 5 of 89/13/2013statement is excluded as to Starkey’s legal conclusion thatthe letter served to confirm that defendant advanced thetermination date of the contract with Aramark to 6-24-13.Objection to 19 is sustained. An Article from theSacramento Bee setting forth the writer’s opinion on thecircumstances under which §1063.5 was enacted isinadmissible hearsay. Objection to 20 is sustained. It isan improper legal conclusion. All remaining objections tothe declaration are overruled.Objections to Declaration of Julie Margolin: Allobjections overruled.Objections to Declaration of Jay Scott: All objectionsoverruled.Defendant’s Objections to Evidence in ReplyGeneral Objection to all declarations in replyoverruled.Objections 1-2 and 4 to Declaration of Ada Bricenoare overruled. Objection 3 is sustained (legal conclusion).Objections 1-4 to the Declaration of Lee aresustained. Lee has not laid a sufficient foundation tosupport the conclusions he has reached re what othervenues may fall under §1063.5.Objections 1-4 to the Declaration of Monroy isoverruled.Objections 1-3 to the Declaration of Martin aresustained.Plaintiff’s Requests for Judicial NoticeThe Request for Judicial Notice made with the movingpapers is granted as to Requests 2-5 and denied as toRequest 1. The order of a trial court in the District ofColumbia applying a different statute is not relevant.Plaintiff’s Request for Judicial Notice made with theReply is granted as to Exh. F-H and Requests 1, 2, and 4.Requests 3 and 5 are denied.7 2012-00614922Ramirez vs JulianGRANT MOTION TO COMPEL ARBITRATION.Plaintiff Greg Ramirez’s motion to compel arbitration isGRANTED. Plaintiff indicates that the parties were bothmembers of FINRA, and had agreed to submit all disputesarising from their business activities to arbitration.Defendant does not dispute that he agreed to arbitrate suchclaims. Since defendant is not also an insurance company,he is not covered by the exception provided by FINRA Codeof Arbitration Procedure §13200(b).The delay of plaintiff has not prejudiced or disadvantageddefendant in any cognizable respect.8 2012-00609899Gomez vs CR&R IncMotions are off calendar.

Rulings 1http://www.occourts.org/tentativerulings/fhornrulings.htmPage 6 of 89/13/20139 2013-00668121Middleton vs DoesDENY MOTION TO SERVE SUMMONS BY PUBLICATIONWITHOUT PREJUDICE.Since service by publication is “unlikely to result in actualnotice”, the use of service by publication should be evenmore strictly scrutinized when the identities of defendantsare not ascertained. Olivera v. Olivera (1991) 232Cal.App.3d 32.Plaintiff’s affidavits indicate that she and/or her attorneysserved a subpoena on the websitewww.pissedconsumer.com and on Cox Communications todiscover the identities of the individuals who postedcomments about her. (Exs. A, B.) However, plaintiff’scomplaint indicates that derogatory statements were postedon a number of websites, includingwww.complaintsboard.com, www.iripoff.com, www.pissedoff-rip-off.com,www.scaminformer.com, andwww.ripoffreport.com. (Compl., 8-13.) Plaintiff does notshow evidence that she subpoenaed any of these otherwebsites.Also, there are lingering questions about whether plaintiff’sinvestigation went far enough. Pissed Consumer revealedthat the posts all originated from one IP address assigned toa Cox Communications subscriber. The subscriber was“Tech Center” in Irvine. (See Ex. B.) Plaintiff’s counselclaims that he tried to contact the individual associated withthe account, Doug Cooper, but learned that he was only atechnician setting up the wireless router. (Kelly Decl.,10-12.) After this, plaintiff apparently gave up.Plaintiff does not adequately explain why she cannot furtherinvestigate the Tech Center in Irvine to determine whichtenant may have posted the statements. For one thing, shedoes not provide an affidavit by any computer expert toexplain to us why the existence of one wireless routermakes it impossible to identify the poster in a multi-tenantbuilding. (See Mot. at 3:20-21.) Her counsel makestechnical conclusions that are outside his stated expertise,without giving any basis for them.Also, if plaintiff has isolated this one building in Irvine asbeing the source of the posts, she should be in a betterposition to identify who may have written the statements.She could contact the building manager, and obtain a list oftenants. (Or she could even travel to the building and takea look at the directory.) Obviously, the person writing theseposts has a score to settle with her, and it is likely that sheknows or has dealt with this person in the past. She couldlook at the list of tenants and see if any of the names ring abell, or if she had dealings with any of them.It also appears that the subpoena to Pissed Consumershowed that there was a Hotmail account linked to one of

Rulings 1http://www.occourts.org/tentativerulings/fhornrulings.htmPage 7 of 89/13/2013the posts. (See Ex. B.) Did plaintiff or her counsel attemptto subpoena Hotmail to find out whose name was associatedwith that account?In short, plaintiff still has a lot of work to do to showreasonable diligence. The Complaint was just filed lastmonth. There is no hurry to get service by publication atthis time.10 2012-00588372Vahdati vs St JosephHealthDENY MOTION OF MISSION HOSPITAL REGIONALMEDICAL CENTER FOR SUMMARY JUDGMENT.Plaintiff’s Responses to Special Interrogatories identifyingher Social Security Number should be removed from therecord, the SSN be redacted and the Responses refilled.There is a triable issue of material fact as to whether thedefect was trivial. The evidence is insufficient to establishthat the crack was less than ¾ inch high. The only evidencesubmitted are photographs taken at the parking structureand the declaration of Dr. Sanders. The photographs areblack and white and do not contain any indications ofmeasurement (Exhibit T). Dr. Sanders state, in substancethat he only reviewed the photographs. He did not visit thescene or take measurements himself. Further, there is noevidence to indicate exactly where plaintiff was along thecrack when she fell, where she parked her car and wherethe car was relative to the crack. There is no evidence ofthe trajectory taken by plaintiff from her car to Dr. Gillman’soffice. The photographs show that some portion of thecrack is wider than others.There is a triable issue of material fact as to whether thedanger was so obvious that a person in plaintiff’s positionshould have been expected to see it. While the photographsshow that the crack is clearly visible from certain angles,they do not show that it was visible to plaintiff while shewas walking. Again, there is no showing where plaintiff wasparked relative to the crack. She may have been parked in aspace that obscured the crack as shown in one of thephotographs. Plaintiff testified in her deposition that shewore glasses which is a consideration relevant toobviousness (Exhibit O page 43: 5-17) In any event,whether the crack was obvious to plaintiff is a question offact. Curland v. Los Angeles County Fair Assn. (1953) 118Cal.App.2d 691.Sustain objections to the Sanders declaration numbers 1, 2and 7 for lack of foundation; numbers 3 and 5 for improperlegal opinion; overrule numbers 4, 8 and 9. Overruleobjection to Exhibit T. The remaining objections are notconsidered in that they do not comply with CRC 3.1352 and3.1354. Plaintiff to give notice.11 2012-00595552 GRANT MOTION FOR SUMMARY JUDGMENT.

Rulings 1http://www.occourts.org/tentativerulings/fhornrulings.htmPage 8 of 89/13/2013Jackson vs LosAlamitos MedicalCenterThe motion of Gregory Moreno, M.D., is unopposed and ispresumed to have merit. The uncontroverted declaration ofdefendant’s expert, David Barcay, M.D., established thatdefendant complied with the applicable standard of care asit existed for emergency medical physicians in 2011 andthat nothing the defendant did, did not do or failed to do,caused or contributed to the death of Mr. Jackson.

RULINGS ON LAW& MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5231) to notify the courtthat all parties are submitting on the tentative and no appearance will be necessary. The tentative will thenbecome the final ruling.If no one appears at the hearing the tentative will be the final ruling. Either side may appear and argue thecourt’s tentative ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPARE ANORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY ORTHE CASE.TENTATIVE RULINGS ON LAW & MOTION MATTERSJUDGE FREDERICK P. HORNDEPT C-31Date: Wednesday, September 18, 2013# Case Name1 2013-00641882Mazarei vs RydmanTENTATIVE RULING:MOTION NO. 1 – DEMURRER: The court rules as followson Defendants’ demurrers to all causes of action of theFAC: sustained with 10 days leave to amend as to the 4 thand 6 th causes of action, and overruled as to the 1 st -3 rdand 5 th causes of action.1 st COA – Breach of Express Contract: “A cause ofaction for damages for breach of contract is comprised ofthe following elements: (1) the contract, (2) plaintiff'sperformance or excuse for nonperformance, (3)defendant's breach, and (4) the resulting damages toplaintiff. It is elementary that one party to a contractcannot compel another to perform while he himself is indefault. While the performance of an allegation can besatisfied by allegations in general terms, excuses must bepleaded specifically.” Durell v. Sharp Healthcare (2010)183 Cal.App.4th 1350, 1367 (citations and quotationsomitted).If a contract set out in the complaint (or attachedas an exhibit) is ambiguous, plaintiff's interpretation mustbe accepted as correct in testing the sufficiency of thecomplaint: “[A] general demurrer to the complaint admitsnot only the contents of the instrument but also anypleaded meaning to which the instrument is reasonablysusceptible.” Aragon-Haas v. Family Security Ins.Services, Inc. (1991) 231 Cal.App.3d 232, 239.Exh. A to the FAC is the “true” escrow instructionsper Plaintiff. It states, “furthermore, I will execute anddeliver any instruments and/or funds which this escrowrequires to show title as called for, all of which you areinstructed to use on or before May 205, 2010 providedyou hold a Policy of Title Insurance with the usual titlecompany’s exceptions, with a liability of not less than$116,000.00 […].” The contract is somewhat vague andambiguous as to who “I” and “you” are referringto. Plaintiff also alleges he was charged for a title

insurance policy (FAC 17) and that the contract requiredDefendant to obtain title insurance. For purposes of thisdemurrer, Plaintiff has alleged sufficient facts thatDefendant was required to purchase title insurance underthe “true” escrow instructions.Defendants’ argument that the property wasforeclosed upon and title insurance would not haveprevented it is irrelevant. Plaintiff was not damaged bybeing covered by the title policy. Defendants also arguethat if the lien was recorded prior to closing, it would havebeen an exception to the title policy, but this isspeculative on Defendants’ part.The demurrer to this cause of action is overruled.2 nd COA – Breach of Implied Contract: Civil Codesections 1619–1621 together provide as follows: “Acontract is either express or implied. An express contractis one, the terms of which are stated in words. An impliedcontract is one, the existence and terms of which aremanifested by conduct.” Plaintiff pleads in the alternativehere and claims that Defendant’s agreement to obtain apreliminary title report and for charging for a titleinsurance policy.Defendants claim the contract is integrated andany claims regarding the insurance policy violates theparol evidence rule. However, CCP §1856(g) states therule “does not exclude other evidence of thecircumstances under which the agreement was made or towhich it relates, […] or to explain an extrinsic ambiguityor otherwise interpret the terms of the agreement, or toestablish illegality or fraud.” Based on the discussionabove, the escrow instructions are not entirely clear as towhether Defendant was to obtain a title insurance policy.The demurrer to this alternative cause of action isoverruled.3 rd COA – Negligence: The basic elements of anegligence action are: (1) The defendant had a legal dutyto conform to a standard of conduct to protect theplaintiff, (2) the defendant failed to meet this standard ofconduct, (3) the defendant’s failure was the proximate orlegal cause of the resulting injury, and (4) the plaintiffwas damaged. Ladd v. County of San Mateo (1996) 12Cal.4th 913, 917.The escrow instructions are a contract that theescrow holder is bound to follow as a party to the escrow.Strict compliance is required. If it disburses the propertydeposited in escrow in violation of the instructions orotherwise fails to comply with the instructions, the escrowholder is liable to the injured party for breach ofcontract. Summit Fin'l Holdings, Ltd. v. ContinentalLawyers Title Co. (2002) 27 Cal.4th 705, 711.Parties to the escrow who sue an escrow agent forfailing to perform as specified in the escrow instructionsordinarily cannot sue for tort damages. The“transmutation” of what is essentially a breach of contract

into a tort cause of action has been rejected in favor of ageneral rule precluding tort recovery for noninsurancecontract breaches, at least where bad faith denial of theexistence of, or liability under, the breached contract isnot at issue. Money Store Invest. Corp. v. Southern Calif.Bank (2002) 98 Cal.App.4th 722, 732.Buyers and sellers aggrieved by the escrowholder's breach of duties are not limited to contractdamages. Because the escrow holder is a fiduciary andagent of the parties, it is also exposed to tort liability(e.g., negligence liability for failure to exercise ordinaryskill and diligence in the employment). Amen v. MercedCounty Title Co. (1962) 58 Cal.2d 528, 532; compare Leev. Title Ins. & Trust Co. (1968) 264 Cal.App.2d 160, 163[no breach of fiduciary duty for failure to discloseinformation unrelated to specific escrow instructions].When an escrow holder knows a party to theescrow is relying on it for protection as to facts learned bythe escrow holder, the escrow holder can be held liable ifit does not disclose those facts to the party. Vournas v.Fidelity Nat'l Title Ins. Co. (1999) 73 Cal.App.4th 668,674–675 [no escrow liability for failure to disclose needfor beneficiary consent to trustee's sale of trust propertybecause not part of escrow instructions and no evidenceescrow holder knew trustee was unaware of beneficiaryconsent requirement; Lee v. Title Ins. & Trust Co., supra,264 Cal.App.2d at 163 [no breach of fiduciary duty forfailure to disclose information unrelated to specific escrowinstructions; see Marriage of Cloney (2001) 91Cal.App.4th 429, 440, fn. 10 [in nontort action, escrowholder had duty to disclose to buyer that seller's actualname was different than that on deed].Plaintiff argues that this claim is pled in thealternative if it is held that there is no contract. Sufficientfacts have been set forth alleging Defendant wasnegligent in its handling of the transaction.The demurrer to this cause of action is overruled.4 th COA – Intentional Tort (Forged Contract): It isnot entirely clear if Plaintiff is claiming civil forgery orfraud as he asserts it could be either.Since forgery is not defined in the CommercialCode or otherwise for purposes of civil action, thedefinition from Penal Code § 470 is applicable and theelements are: (1) intent to defraud, (2) making a falseinstrument by signing another's name without authority orthe name of a fictitious person, or knowingly utteringsame, and (3) the instrument on its face be capable ofdefrauding someone who might act upon it as genuine orthe person in whose name it is forged. Wutzke v. Bill ReidPainting Service, Inc. (1984) 151 Cal.App.3d 36.Here, the third element has not been sufficientlypled. Who was Defendants trying to defraud with theforgery? Did a third party, other than Plaintiff, rely on theforged document? This has not been sufficiently pled.

To the extent Plaintiff is alleging fraud, “theplaintiff must prove: (1) the defendant represented to theplaintiff that an important fact was true; (2) thatrepresentation was false; (3) the defendant knew that therepresentation was false when the defendant made it, orthe defendant made the representation recklessly andwithout regard for its truth; (4) the defendant intendedthat the plaintiff rely on the representation; (5) theplaintiff reasonably relied on the representation; (6) theplaintiff was harmed; and, (7) the plaintiff's reliance onthe defendant's representation was a substantial factor incausing that harm to the plaintiff. Each element in a causeof action for fraud must be factually and specificallyalleged. In a fraud claim against a corporation, a plaintiffmust allege the names of the persons who made themisrepresentations, their authority to speak for thecorporation, to whom they spoke, what they said orwrote, and when it was said or written.” Perlas v. GMACMortg., LLC (2010) 187 Cal.App.4th 429, 434 (citationsand quotations omitted).Here, what was Plaintiff’s reliance? Plaintiff did notact differently upon the representations in the “fake”escrow instructions since he asserted from the beginningthat his signature was forged.The demurrer to this cause of action is sustainedwith leave to amend.5 th COA – Money Had and Received: “In thecommon law action of general assumpsit, it is customaryto plead an indebtedness using ‘common counts.’ InCalifornia, it has long been settled the allegation of claimsusing common counts is good against special or generaldemurrers. The only essential allegations of a commoncount are ‘(1) the statement of indebtedness in a certainsum, (2) the consideration, i.e., goods sold, work done,etc., and (3) nonpayment.’ A cause of action for moneyhad and received is stated if it is alleged the defendant ‘isindebted to the plaintiff in a certain sum “for money hadand received by the defendant for the use of the plaintiff.”’ ” Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th445, 460 (internal citations omitted).Here, Plaintiff alleges that $790 was supposed tobe used to purchase a title insurance policy and thatPlaintiff was supposed to be refunded $41, but none ofthese occurred. The claim has been sufficiently pled. Theallegation that Defendant failed to account for almost$30,000 placed in escrow toward the purchase is not abasis for this claim since Plaintiff received title to theproperty.The demurrer to this cause of action is overruled.6 th COA – Conversion: “A conversion can occurwhen a willful failure to return property deprives theowner of possession.” Fearon v. Department ofCorrections (1984) 162 Cal.App.3d 1254, 1257 (internalcitation omitted). “ ‘Money cannot be the subject of acause of action for conversion unless there is a specific,identifiable sum involved, such as where an agent accepts

a sum of money to be paid to another and fails to makethe payment.’ A ‘generalized claim for money [is] notactionable as conversion.’ ” PCO, Inc. v. Christensen,Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007)150 Cal.App.4th 384, 395 (internal citations omitted).Here, this claim argues that the $29,360 given toescrow toward the purchase of the property was not usedfor that purpose. However, that amount was part of thetotal of $59,982.50 for his 50% interest in theproperty. He received title to the property and therefore,has not sufficiently stated that the $29,360 was not usedtoward purchase of the property.The demurrer to this cause of action is sustainedwith leave to amend.MOTION NOS. 2 & 3 – DISCOVERY MOTIONS (DEEMFACTS ADMITTED AND COMPEL RESPONSES TOSPECIAL ROGS): The court never received anyoppositions by Plaintiffs to these discovery motions butthe Replies make references to them. Although Plaintiffsmay have received late discovery responses, without theoppositions, the court cannot make a properdetermination as to the merits of the parties’arguments. The matter is continued to 10/9/13. Theoppositions must be filed by no later than seven courtdays prior to the next hearing date. No other papers areto be filed by the parties. Plaintiffs are to give notice.3 2012-00604605Larsh vs Bank of AmericaNA4 2013-00631698Wittwer vs Estate ofChristina Lubi FioriTENTATIVE RULING:The unopposed general demurrer of defendants Bank ofAmerica, N.A., and Recontrust Company, N.A., to all sixcauses of action in the complaint by plaintiff Delbert Larshis sustained with 30 days’ leave to amend.TENTATIVE RULING:The demurrers to the COAs 2-6 and 8 (erroneouslylabeled 7 th COA) are sustained without leave toamend. The demurrer to the 1 st COA is sustained with 10days leave to amend. For clarification purposes, the courtoverruled the prior demurrer to the 7 th COA for breach ofcontract relating to funeral expenses, and there was nodemurrer here to that claim. The motion to strike ismoot. Moving party is to give notice.1 st COA – Voidance/Rescission of PremaritalAgreement: Plaintiff seeks to void the premaritalagreement because it did not comply with therequirements under Fam. Code §1615(c). Defendantargues that this is an improper declaratory relief claimand does not comply with Civ. Code §1691. Regardless ofthe title, Plaintiff seeks to void the agreement under theFam. Code.Fam. Code §1615(c) states:“(a) A premarital agreement is not enforceable ifthe party against whom enforcement is soughtproves either of the following:[…]

(c) For the purposes of subdivision (a), it shall bedeemed that a premarital agreement was notexecuted voluntarily unless the court finds inwriting or on the record all of the following:(1) The party against whom enforcement issought was represented by independent legalcounsel at the time of signing the agreement or,after being advised to seek independent legalcounsel, expressly waived, in a separate writing,representation by independent legal counsel.(2) The party against whom enforcement issought had not less than seven calendar daysbetween the time that party was first presentedwith the agreement and advised to seekindependent legal counsel and the time theagreement was signed.(3) The party against whom enforcement issought, if unrepresented by legal counsel, was fullyinformed of the terms and basic effect of theagreement as well as the rights and obligations heor she was giving up by signing the agreement,and was proficient in the language in which theexplanation of the party's rights was conductedand in which the agreement was written. Theexplanation of the rights and obligationsrelinquished shall be memorialized in writing anddelivered to the party prior to signing theagreement. The unrepresented party shall, on orbefore the signing of the premarital agreement,execute a document declaring that he or shereceived the information required by thisparagraph and indicating who provided thatinformation.(4) The agreement and the writingsexecuted pursuant to paragraphs (1) and (3) werenot executed under duress, fraud, or undueinfluence, and the parties did not lack capacity toenter into the agreement.(5) Any other factors the court deemsrelevant.”Plaintiff states that he was not represented byindependent counsel, there was no provision relating tospousal support, he lacked sufficient information andbelief regarding Ms. Fiori’s property and financialinformation, he was not provided seven days to reviewthe premarital agreement, and he was not fully informedof the terms and effect of the agreement (FAC 24).However, Fam. Code §1615 uses the language,“The party against whom enforcement is sought.” Here,Plaintiff has not set forth any facts that the premaritalagreement is being enforced against him. This claimappears to be a preemptive strike against the Trust in theevent it may try to enforce the agreement. Moreover, hasthere been any probate action filed? Why was this notfiled in probate instead if there was a probateaction? More facts must be pled to show this claim isripe.The demurrer to this cause of action is sustainedwith leave to amend.

2 nd & 3 rd COAs – Fraud & NegligentMisrepresentation: Civ. Code §43.4 bars actions fordamages based on a fraudulent inducement tomarry. That statute states: “A fraudulent promise tomarry or to cohabit after marriage does not give rise to acause of action for damages.”Under Fam. Code §1613, a premarital agreementbecomes effective upon marriage. Therefore, whetherPlaintiff entered into the agreement months before themarriage is irrelevant since it became effective on thedate of the marriage. Although Plaintiff may seek to voidthe agreement (and may theoretically be entitled toproceeds from Ms. Fiori’s estate), he has not cited to anyauthority that he is entitled to damages, in light of theholdings in In re Marriage of Buckley (1982) 133Cal.App.3d 927 (a husband's action against his wifealleging that she fraudulently induced him to enter into avoid marriage was barred by the statute barring actionsfor damages based on a fraudulent promise to marry or tocohabit after marriage (Civ. Code § 43.4); the husband'saction was essentially a “heart balm' action seeking topunish his wife, and the statute's plain language, coupledwith its legislative history and judicial construction,indicated that the, action was among those prohibited)and Askew v. Askew (1994) 22 Cal.App.4 th 942 (courtsshould not be in the business of probing a suitor's state ofmind and breach of promise suits are fundamentallyincompatible with a statutory scheme of no-fault divorce)cited to by Defendant.The demurrers to these causes of action aresustained without leave to amend.4 th COA – Conversion: “ ‘Money cannot be thesubject of a cause of action for conversion unless there isa specific, identifiable sum involved, such as where anagent accepts a sum of money to be paid to another andfails to make the payment.’ A ‘generalized claim formoney [is] not actionable as conversion.’ ” PCO, Inc. v.Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro,LLP (2007) 150 Cal.App.4th 384, 395.“[T]he law is well settled that there can be noconversion where an owner either expressly or impliedlyassents to or ratifies the taking, use or disposition of hisproperty.” Farrington v. A. Teichert & Son, Inc. (1943) 59Cal.App.2d 468, 474.Here, Plaintiff claims Plaintiff converted thefollowing contributions he made: $375,000 in assets forthe French home, payments for shipments of furnitureand car, $100,000 for furniture and paintings, $40,000 forwedding, $120,000 for household expenses, $50,000 forthe engagement ring, wedding ring and other jewelry,$$2,600 for rental storage, and $75,000 for travelexpenses (FAC 16).Again, this claim runs afoul of Civ. Code §43.4 as itseeks damages based on the alleged fraudulent promiseto marry. Even if the premarital agreement is void, it still

would not alter the applicability of this statute here.The demurrer to this cause of action is sustainedwithout leave to amend.5 th COA – Unjust Enrichment: The elements of anunjust enrichment claim are the “receipt of a benefit and[the] unjust retention of the benefit at the expense ofanother.” Peterson v. Cellco Partnership (2008) 164Cal.App.4th 1583, 1593. Here, Plaintiff claims Ms. Fioriwas unjustly enriched by his contributions set forth in16. However, as already discussed, the claim is barredby Civ. Code §43.4.The demurrer to this cause of action is sustainedwithout leave to amend.6 th COA – Breach of Contract: Plaintiff claims hehad an oral contract with Ms. Fiori during their marriagethat she would repay him for his contributions. Defendantpoints out that in the original complaint at 51, Plaintiffalleged they made the oral agreement on or about06/25/10, the same time as the premarital agreement,whereas in the FAC, Plaintiff alleges the oral agreementwas made within two years of the filing of the complaint(or 07/01/11). Defendant argues it should be considereda sham pleading.Under Fam. Code §1611, a premarital agreementmust be in writing. If the court were to construe thisamended claim to be sham and used the oral agreementformation date of 06/25/10, which is prior to the marriagedate of 08/21/10, then it would be barred by the statuteof frauds.If the court still considered the amended claim,then this allegation of an oral contract would run counterto Plaintiff’s request to void the premarital agreement,since Plaintiff’s contribution would have been to thecommunity property. It appears Plaintiff is blowing bothhot and cold here.Nevertheless, Plaintiff has made no attempt toreconcile the different dates utilized in establishing theformation date of the alleged oral contract and the courtconsiders it a sham pleading (absent a showing of mistakeor other sufficient excuse for changing the facts, theamended pleading may be treated as a sham (VallejoDevelop. Co. v. Beck Develop. Co. (1994) 24 Cal.App.4th929, 946)).Moreover, Civ. Code §43.5(d) bars claims for“breach of promise of marriage.” “In outlawing breach ofpromise actions, section 43.5, subdivision (d), aims atlawsuits in which one party or the other seeks financialcompensation for loss of this group of [marriage]expectations and commitments.” Boyd v. Boyd (1964)228 Cal.App.2d 374. Plaintiff is seeking recompense forcontributions he made as part of his marital relationship,which is not allowed. In Boyd, the court noted thatsection 43.5(d) also applies even if a marriage ceremonytakes place, and is not limited to a situation only involving

an engagement breakup. Id. at 376.The demurrer to this cause of action is sustainedwithout leave to amend.8 th COA – Promissory Estoppel (erroneously labeled7 th COA in FAC): This claim seeks recovery of thecontributions Plaintiff made. However, as alreadydiscussed in the 6 th COA for breach of contract, thisalternate claim is barred by Civ. Code §43.5.The demurrer to this cause of action is sustainedwithout leave to amend.Motion to Strike: The motion is moot in light of theruling on the demurrer. The court notes that thepremarital agreement contains an attorney’s feeprovision.RJN: The unopposed request for judicial notice ofthe original complaint and notice of ruling on thedemurrer is granted (Evid. Code §452(d)).5 2013-00653281Candelaria Ruiz by andthrough her Successor inInterest Luciano Ruiz vsAnaheim HealthcareCenter, LLCTENTATIVE RULING:MOTION NO. 1 –DEMURRER: Defendants AnaheimHealthcare Center, LLC dba Anaheim Healthcare Center,Sun Mar Management Services, and Sun-Mar Health Care,Inc.’s demurrers to all four causes of action (COAs) areoverruled. Moving Defendants are to file an answer within10 days. Plaintiffs are to give notice.1 st COA – Negligence/Willful Misconduct:Defendants argue that CCP §340.5 concerning the statuteof limitations in professional negligence claims governshere.The pertinent provisions of section 340.5 are: “Inan action for injury or death against a health careprovider based upon such person's alleged professionalnegligence, the time for the commencement of actionshall be three years after the date of injury or oneyear after the plaintiff discovers, or through the useof reasonable diligence should have discovered, theinjury, whichever occurs first. In no event shall thetime for commencement of legal action exceed threeyears unless tolled for [fraud, intentional concealment, orpresence in the injured person of a foreign body with notherapeutic or diagnostic purpose].” (Emphasisadded.) Section 340.5 defines both “health careprovider,” and “professional negligence.” “For thepurposes of this section: [] (1) ‘Health care provider’means any person licensed or certified pursuant to[specified statutes]; and any clinic, health dispensary, orhealth facility, licensed pursuant to [specified statutes].[] (2) ‘Professional negligence’ means a negligent act oromission to act by a health care provider in the renderingof professional services, which act or omission is theproximate cause of a personal injury or wrongful death,provided that such services are within the scope ofservices for which the provider is licensed and which are

not within any restriction imposed by the licensing agencyor licensed hospital.”Plaintiffs cite to Benun v. Sup. Ct. (2004) 123Cal.App.4 th 113 for the proposition that a cause of actionfor custodial elder abuse against a health care providerwas subject to the SOL applicable to claims for injury ordeath caused by wrongful act or neglect of another (CCP§335.1 – two year SOL). However, here, this specificclaim concerns negligence, not elder abuse and therefore,CCP §340.5 governs.The issue, then, is when the claim accrued andwhether the one or three year SOL appies.Here, decedent was discovered to have a pressuresore on 02/27/12 when she was first admitted toWAMC. However, there are no facts detailing whether sheknew of it, or whether the other Plaintiffs were notified ofher condition. Additionally, Plaintiffs allege decedent haddementia with difficulty understanding (Complaint 27and 31) and may not have been able to understand hersituation, such that the SOL was tolled (CCP §352; AlcottRehabilitation Hosp. v. Sup. Ct. (2001) 93 Cal.App.4 th94).Further, there were additional pressure sores thatdeveloped between 02/27/12 and the time of decedent’sdeath on 06/04/12, and further failures to properly carefor decedent leading to her death. The allegations are notentirely clear as to when the injuries were discovered byPlaintiffs, but since decedent died on 06/04/12 (assumedlatest date of discovery), this action was timely filed on05/31/13 based on either the one or three year SOL.The demurrer does not argue that the negligenceclaim has not been sufficiently pled. Instead, it avers thatthe willful misconduct claim is insufficiently pled andduplicative.“Three essential elements must be present to raisea negligent act to the level of willful misconduct: (1)actual or constructive knowledge of the peril to beapprehended, (2) actual or constructive knowledge thatinjury is a probable, as opposed to a possible, result ofthe danger, and (3) conscious failure to act to avoid theperil.” Berkley v. Dowds (2007) 152 Cal.App.4th 518,528. The cause of action exists, but it is not a separatetort; rather it is an aggravated form of negligence,differing in quality rather than degree from ordinary lackof care. Id. at 526.Here, decedent was admitted to the care facilityand was to be turned and repositioned every two hours(Complaint 33). The care plan failed to include this untilafter the facility was ordered by a physician to doso. Before admission to WAMC (hospital), she developedulcers on various body parts, including the left firstmetatarsal, sacrum and right clavicle. After beingadmitted to WAMC (where she also obtained new pressuresores), her return to the facility again led to new skinbreakdowns at other metatarsals, toe nails, toes, foot,

and hip (Complaint 52). Nurses were not documentingthe skin breakdowns indicating that decedent was notbeing checked.Plaintiffs allege that Defendants were cited by theHealth Dept. in 2010 for failure to implement a resident’scare plan and were therefore on notice of issues relatingto substandard care in the facility (Complaint 68-74). Given that this is a care facility, that prevention ofpressure sores were part of the care plan, that decedentwas hospitalized on multiple occasions and pressure soreswere noted on admission, there are sufficient facts pled toallege a claim for willful misconduct.The claim is not duplicative as Defendantsargue. Flowers v. Torrance Memorial Hosp. Med. Center(1994) 8 Cal.4 th 992, cited by Defendants, does notaddress “willful misconduct” and there is no propercitation to the Rodriguez v. Campbell Indus. case.The demurrer to this cause of action is overruled.2 nd COA – Elder Abuse: The elements of a cause ofaction for elder abuse and neglect are determined by theElder Abuse and Dependent Adult Civil Protection Act(“EADCPA”). Welf. & Inst. Code § 15600 et seq.; Intrieriv. Sup. Ct. (2004) 117 Cal.App.4th 72, 82.Under the Elder Abuse Act, "abuse of an elder"consists of physical or financial abuse, or neglect. Welf. &Inst. Code §15610.07. "Neglect" as defined under theelder abuse act is "the negligent failure of any personhaving the care or custody of an elder or a dependentadult to exercise that degree of care that a reasonableperson in a like position would exercise." Welf. & Inst.Code §15610.57(a). “‘[N]eglect' includes, but is notlimited to the "failure to provide medical care for physicaland mental needs," and the "failure to protect from healthand safety hazards." Welf. & Inst. Code §15610.57(b).At this stage, in order to plead Elder Abuse andNeglect under Section 15610.57, plaintiffs have to show:1) defendants had care or custody of decedent; 2)decedent was 65 or older; 3) that defendant/defendant’semployee failed to use the degree of care that areasonable person in the same situation would have usedin [grounds for neglect]; 4) decedent was harmed; and 5)defendant/defendant’s employee’s conduct was asubstantial factor in causing decedent’s harm. See CACINo. 3103.Here, Plaintiffs have pled sufficient facts to state aclaim for elder abuse neglect. Defendants rely on thecase of Carter v. Prime Healthcare Paradise ValleyLLC (2011) 198 Cal. App. 4 th 396 for the proposition thatmore than mere negligence must be pled. However, thatcourt affirmed the lower court’s ruling sustaining ahospital’s demurrer to an elder abuse cause of actionbecause there were insufficient facts as alleged to thehospital, and the claims directed at the care facility werenot addressed (see id. at 410). Here, moving Defendantscomprise of the care facility entities. The Carter case is

not on point here.Defendants also rely on Delaney v. Baker (1999)20 Cal.4 th 23 for the proposition that Plaintiffs must allege“reckless, oppressive, fraudulent or malicious”conduct. However, the portions of that case cited to byDefendants addressed only the “enhanced remedies” ofthe elder abuse claim, but not the general pleadingelements for the COA. (See id. at 31; see also CACIVerdict Form 3102.) The “heightened” showing appliesonly if Plaintiffs are seeking enhanced remedies forattorney’s fees and costs, and the decedent’s pre-painand death suffering. Welf. & Inst. Code §15657. Here,the elements for elder abuse are sufficiently pled.A motion to strike, not a general demurrer, is theprocedure to attack an improper claim for punitivedamages or other remedy demanded in the complaint.Reason: A general demurrer challenges only thesufficiency of the cause of action pleaded, and must beoverruled if any valid cause of action is pleaded; ademand for improper relief does not vitiate an otherwisevalid cause of action. Venice Town Council, Inc. v. City ofLos Angeles (1996) 47 Cal.App.4th 1547, 1561–1562. Here, any arguments in the demurrer about theheightened pleading requirement only applies against theenhanced remedies and should be dealt with in theaccompanying Motion to Strike (see infra).The demurrer to this cause of action is overruled(but still subject to the Motion to Strike).3 rd COA – Violation of Patients Bill of Rights:Defendants argue that the state department must takeaction per H&S Code §1430(a) prior to Plaintiffs filing thisclaim. However, this claim is being brought under§1430(b). Subd. (b) allows a current or former residentor patient of a skilled nursing facility to bring a civil actionagainst the licnesee of a facility who violates any rightsunder the Patients Bill of Rights. This subdivision is notcontingent upon subdivision (a) and therefore, statedepartment action is not a prerequisite to the filing of thisclaim. Plaintiffs allege Defendants violated 22 CFR§72527(a)(11) by failing to treat decedent withconsideration, respect and full recognition of dignity incare of personal needs (Complaint 101). This cause ofaction has been sufficiently pled. The one-year SOLargument by Defendants (CCP §340 – action upon statutefor penalty) likewise fails for the same reasons discussedabove since decedent died on 06/04/12 and this actionwas filed on 05/31/13. The demurrer to this cause ofaction is overruled.4 th COA – Wrongful Death: “ ‘The elements of thecause of action for wrongful death are the tort (negligenceor other wrongful act), the resulting death, and thedamages, consisting of the pecuniary loss suffered by theheirs.’ Those pecuniary losses may include ‘(1) the loss ofthe decedent's financial support, services, training andadvice, and (2) the pecuniary value of the decedent'ssociety and companionship.’ The latter form of damages isalso called loss of consortium. A wrongful death plaintiff

may also recover reasonable funeral expenses.” Boekenv. Philip Morris USA, Inc. (2010) 48 Cal.4 th 788, 806(citations omitted).Defendants claim that no causal connection hasbeen pled between any alleged wrongful conduct anddecedent’s death. However, this is an issue that isexpert-driven. At this stage, Plaintiffs have pled that thedeath certificate stated the cause of death to be “acutecardiopulmonary arrest” secondary to congestive heartfailure, hypertension, and hyperlipidemia, but the deathcertificate failed to mention the ulcers or infectionscontracted under the supervision of the defendantphysician who signed off on the death certificate(Complaint 65). For pleading purposes, this is sufficient.The demurrer to this cause of action is overruled.MOTION NO. 2 – MOTION TO STRIKE: Defendants’motion to strike is denied in its entirety. Plaintiffs are togive notice.Punitive Damages: “Malice” means conductintended by the defendant to cause injury to the plaintiffor despicable conduct that is carried on by the defendantwith a willful and conscious disregard for the rights orsafety of others. Civ. Code §3294(c)(1). “Oppression”means despicable conduct that subjects a person to crueland unjust hardship in conscious disregard of thatperson's rights. Civ. Code §3294(c)(2).Civil Code section 3294(b) provides: “An employershall not be liable for damages pursuant to subdivision(a), based upon acts of an employee of the employer,unless the employer had advance knowledge of theunfitness of the employee and employed him or her with aconscious disregard of the rights or safety of others orauthorized or ratified the wrongful conduct for which thedamages are awarded or was personally guilty ofoppression, fraud, or malice. With respect to a corporateemployer, the advance knowledge and consciousdisregard, authorization, ratification or act of oppression,fraud, or malice must be on the part of an officer,director, or managing agent of the corporation.”Whether specific pleading is still required isunclear. The Supreme Court has stated that fraudcomplaints are the “last remaining habitat of the commonlaw notion that a complaint should be sufficiently specificthat the court can weed out nonmeritorious actions on thebasis of the pleadings.” (If so, this would exclude punitivedamage claims.) Committee on Children's Television, Inc.v. General Foods Corp. (1983) 35 Cal.3d 197, 216.Here, Complaint 77-79 alleges that AHC’smanaging agents ratified or participated in the tortiousconduct as the facility’s administrator or other managingagent signed off the statement of deficiencies issued toAHC by the Department of Health Services. The State ofCalifornia requires each facility to have a governing bodyreview every survey, and therefore, Defendant had noticeand knowledge of substandard care and continued to

allow it to continue. Complaint 70 alleges that thefacility was cited in July 2010 for failing to implement aresident’s care plan. Plaintiffs also claim that Defendantswere understaffed and not inadequately trained(Complaint 73).Taking the complaint as a whole, there aresufficient facts pled to support the punitive damages claimas the alleged conduct amounted to malicious oroppressive behavior given the development of decedent’spressure sores arising out of Defendants’ failure toproperly care for her. Moreover, for now, there aresufficient facts to show ratification given the prior citationand Defendants’ alleged failure to train, staff andsupervise the care facility.The motion to strike punitive damages language isdenied.Welf. & Inst. Code §15657 Attorney’s Fees: Welf. &Inst. Code §15657 allows the recovery of enhancedremedies of attorney’s fees and costs and damages forthe decedent’s predeath pain and suffering.“In order to obtain the remedies available insection 15657, a plaintiff must demonstrate by clear andconvincing evidence that defendant is guilty of somethingmore than negligence; he or she must show reckless,oppressive, fraudulent, or malicious conduct. The latterthree categories involve ‘intentional,’ ‘willful,’ or‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’nature. [] ‘Recklessness’ refers to a subjective state ofculpability greater than simple negligence, which has beendescribed as a ‘deliberate disregard’ of the ‘high degree ofprobability’ that an injury will occur. Recklessness, unlikenegligence, involves more than ‘inadvertence,incompetence, unskillfulness, or a failure to takeprecautions’ but rather rises to the level of a ‘consciouschoice of a course of action . . . with knowledge of theserious danger to others involved in it.’ ” Delaney v. Baker(1999) 20 Cal.4th 23, 31–32 (internal citations omitted).“The standards set forth in subdivision (b) ofSection 3294 of the Civil Code regarding the imposition ofpunitive damages on an employer based upon the acts ofan employee shall be satisfied before any damages orattorney’s fees permitted under this section may beimposed against an employer.” Welf. & Inst. Code§15657(c).Since sufficient facts have been pled to supportpunitive damages, there are sufficient facts pled tosupport the claim for attorney’s fees under Welf. & Inst.Code §15657. The motion to strike this language isdenied.H&S §1430 remedies: Defendants argue thatPlaintiffs are not entitled to any of the remedies underH&S §1430 since there was no action taken by the statedepartment. For the reasons stated in the demurreranalysis, this argument fails. The motion to strike theremedies under this statute is denied.

7 2012-00589134UBS AG vs OlenicoffTENTATIVE RULING:The motion of defendants Igor M. Olenicoff, OlenProperties Corp., Julie A. Ault, and Marisa D. Poulos todisqualify attorney Dean J. Kitchens, Esq. and Gibson,Dunn & Crutcher LLP as counsel of record for plaintiff willbe DENIED.“A trial court's authority to disqualify an attorney derivesfrom the power inherent in every court, ‘[t]o control infurtherance of justice, the conduct of its ministerialofficers, and of all other persons in any manner connectedwith a judicial proceeding before it, in every matterpertaining thereto.’” In re Complex Asbestos Litig., 232Cal.App.3d 572, 585 (1991) (quoting Code Civ. Proc.§128(a)(5)). “Disqualification motions implicate severalimportant interests, among them are the clients' right tocounsel of their choice, the attorney's interest inrepresenting a client, the financial burden of replacing adisqualified attorney, and tactical abuse that may underliethe motion. [citation omitted] The ‘paramount’ concern indetermining whether counsel should be disqualified is ‘thepreservation of public trust in the scrupulousadministration of justice and the integrity of the bar.’[citations omitted] It must be remembered, however, thatdisqualification is a drastic course of action that shouldnot be taken simply out of hypersensitivity to ethicalnuances or the appearance of impropriety. [citationomitted].” Roush v. Seagate Technology, LLC, 150Cal.App.4 th 210, 218-19 (2007).Defendants seek disqualification of attorney Dean J.Kitchens, and his law firm, Gibson Dunn & Crutcher LLP(“Gibson Dunn”), based on the so-called “advocatewitnessrule,” encapsulated in California Rule ofProfessional Conduct 5-210, which states as follows:A member shall not act as an advocate before a jurywhich will hear testimony from the member unless:(A) The testimony relates to an uncontested matter; or(B) The testimony relates to the nature and value of legalservices rendered in the case; or(C) The member has the informed, written consent of theclient. If the member represents the People or agovernmental entity, the consent shall be obtained fromthe head of the office or a designee of the head of theoffice by which the member is employed and shall beconsistent with principles of recusal.“Rule 5-210 is intended to apply to situations in which themember knows or should know that he or she ought to becalled as a witness in litigation in which there is ajury.” See Cal. Rule Prof. Conduct 5-210,Discussion. However, it is inapplicable “to circumstancesin which a lawyer in an advocate’s firm will be awitness.” Ibid. “Where a lawyer representing a party intrial is also a witness during the trial, his or her

effectiveness, both as a lawyer and as a witness, may beimpaired in the eyes of the fact finder. Such disadvantageinures to the detriment of the party being represented bythe lawyer serving such a dual function.” See Smith,Smith & Kring v. Sup. Ct., 60 Cal.App.4 th 573, 578(1997). But, “[u]nder the present rule, if a party is willingto accept less effective counsel because of the attorney'stestifying, neither his opponent nor the trial court shouldbe able to deny this choice to the party without aconvincing demonstration of detriment to the opponent orinjury to the integrity of the judicial process.” Id. at 579(quoting Lyle v. Sup. Ct., 122 Cal.App.3d 470, 482(1981)).Here, plaintiff produced Mr. Kitchens as its person mostknowledgeable on a variety of substantive topics,including plaintiff’s contentions and evidence relating toits malicious prosecution claim. (See Wesierski Decl., Ex.A.) Mr. Kitchens testified that no one else at UBS wouldhave more knowledge than he on the subjectcategories. (See Wesierski Decl., Ex. M at 162-163.) There has been no unreasonable delay in bringingthis motion, because defendants aver that they were onlyaware that Mr. Kitchens was to be the PMQ witness forUBS on the day of the deposition in July. Plaintiff doesnot argue that Mr. Kitchens’ testimony would relate to anuncontested matter or to the nature and value of legalservices rendered in this case.However, this is not to say that Mr. Kitchens, Mr. Diulio,Ms. Eber, or Gibson Dunn should be disqualified ascounsel of record in this matter. Rule 5-210 only barscounsel from adopting a dual role “before a jury which willhear testimony” from counsel. UBS indicates that Mr.Kitchens will not be serving as lead trial counsel. Thatrole will go to Attorney Thomas. And there is no need todisqualify Gibson Dunn. The explanatory discussion notesfor Rule 5-210 indicate that the rule is not intended toprohibit an entire firm from representing a client whenone lawyer (not the trial advocate) in the firm will be awitness. This is in stark contrast to Rule 2-111(A)(4),which was analyzed in the Comden case cited bydefendants. See Comden v. Sup. Ct., 20 Cal.3d 906,910-911 (1978). That rule has since been superseded.Moreover, since counsel’s potential dual role worksdetriment to plaintiff, plaintiff’s willingness to consent toGibson Dunn’s dual role is weighty. Unless defendantscan show detriment to them or unless the integrity of thejudicial process would be harmed, plaintiff should bepermitted representation by counsel of its choice. SeeLyle, supra, 122 Cal.App.3d at 482 (noting that trial courtis to “resolve the close case in favor of the client’s right torepresentation by an attorney of his or her choice”.)Defendants have failed to demonstrate that Gibson Dunn’sdual role would work a detriment to their cause. There isno allegation that Gibson Dunn has confidentialinformation about defendants or would have an unfairadvantage during trial. Instead, defendants presentpossible ways in which the jury may interpret the dualrole. Such speculation hardly amounts to a convincing

demonstration of detriment.In assessing the potential harm to the judicial process,the court must consider three factors: (1) the parties’interest in representation by counsel of their choice andavoidance of expense in duplicating efforts of counsel, (2)the possibility that counsel is using disqualification purelyas a litigation tactic, and (3) whether the subjectattorney’s testimony is actually needed. See Smith,Smith & Kring, supra, 60 Cal.App.4 th at 580-581. Here,Gibson Dunn and the subject attorneys have representedplaintiff for several years throughout the underlyinglitigation, and are intimately familiar with the facts of thecase. Requiring plaintiff to find new counsel would requireduplication of efforts. While the court is unable to saythat defendants seek disqualification solely as a litigationtactic, the lack of any clear showing of detriment todefendants is telling.“In determining the necessity of counsel's testimony, thecourt should consider ‘the significance of the matters towhich he might testify, the weight his testimony mighthave in resolving such matters, and the availability ofother witnesses or documentary evidence by which thesematters may be independently established.’ [citationsomitted] The court should also consider whether it is thetrial attorney or another member of his or her firm whowill be the witness.” Smith, Smith & Kring, supra, 60Cal.App.4 th at 581. Mr. Kitchens’ role as PMQ for plaintiffis problematic, and demonstrates that his testimony islikely to be necessary at trial. However, he will not betrial counsel. So long as he does not appear before thejury except as a witness, the court sees no need todisqualify him from the entire case. Mr. Diulio, Ms. Eber,and Ms. Boschee were not designated PMQ’s forUBS. And while they may have significant knowledgeconcerning the conduct of the underlying litigation, it isnot clear that it will be necessary for them to testify inaddition to Mr. Kitchens. Nevertheless, to the extent thatMr. Diulio or Ms. Eber will have any continuing role attrial, they and Gibson Dunn should demonstratesatisfactorily to the court that plaintiff has providedinformed written consent to the potential dualrole. Gibson Dunn indicates that Ms. Boschee no longerworks for the firm anyway, and so, presumably, she willhave no further role in the case.8 2012-00601735Colaco vs Cavotec S.A.TENTATIVE RULING:IMS and CDFC’s motion to bifurcate and stay actionregarding the cross-complaint against it isdenied. Responding parties are to give notice.CCP §1048(b) provides: “The court, in furtheranceof convenience or to avoid prejudice, or when separatetrials will be conducive to expedition and economy, mayorder a separate trial of any cause of action ... or of anyseparate issue or of any number of causes of action orissues ... ”CCP § 598 provides that the court may order

certain issues tried before others “when the convenienceof witnesses, the ends of justice or the economy andefficiency of handling the litigation would be promotedthereby.”“The UFTA permits defrauded creditors to reachproperty in the hands of a transferee.” Mejia v. Reed(2003) 31 Cal.4th 657, 663.In Oiye v. Fox (2012) 211 Cal.App.4 th 1035 citedto by Cavotec, that court stated:Certainly, for purposes of the Uniform FraudulentConveyance Act, a tort claimant before judgment isrendered is a “creditor” within the meaning of CivilCode section 3439.01. It is well settled in this statethat the relationship of debtor and creditor arisesin tort cases the moment the cause of actionaccrues. One having a claim for a tort is a creditorbefore the commencement of an action thereon, aswell as after, and as such creditor, is, uponrecovering judgment, entitled to avoid a fraudulenttransfer antedating the commencement of hisaction.Defendant asserts that he does not meet thedefinition of a “debtor” in Civil Code section 3429.That definition is irrelevant, as the UFTA providesits own broader definition. “Debtor” means aperson who is liable on a claim.” (Civ.Code, §3439.01, subd. (e).)(Citations and quotations omitted.)Therefore, here, Cavotec can be deemed acreditor, and Colaco a debtor, with IMS and CDFC as thetransferees.Allowing bifurcation would cause unnecessary delayin the proceedings, inconvenience witnesses, and wouldnot be in the interests of judicial economy. Movingparties argue that they are not parties to any of thewritten contracts and are barely mentioned in the crosscomplaint.However, they are not mentioned in anycontracts because they are the ones being accused ofreceiving the fraudulently transferred assets.Whether Colaco is owed money by Cavotec, stolefrom Cavotec, or transferred money to sham companies,those issues are interrelated and cannot be parsed out insuch a fashion that would be considered convenient,economical or efficient to the witnesses, parties, jury orthe court. If the action is stayed pending the outcome ofthe other issues, do the moving parties expect the courtto reopen discovery and empanel a second jury? Thatwould be a waste of resources. Moving parties have notprovided any authority supporting bifurcation in thissituation and the court did not find any cases in support oftheir position. The parties unnecessarily provide evidenceregarding culpability, but this is not a summary judgmentmotion and arguments concerning culpability areirrelevant here.

The motion is denied without prejudice in the eventthere is a compelling reason to revisit the issue at thetime of trial.9 2013-00632440Robert M Chavez &Rosemary Chavez,Trustees of the ChavezTrust vs SCMR IncTENTATIVE RULING ON MOTION #1:The application of plaintiffs Robert M. and Rosemary Y.Chavez, as trustees of the Chavez Family Trust datedJune 13, 2004 for a right to attach order and writ ofattachment as to defendant Christopher E. Estrada isgranted. Attachment is for the amount of $ $374,332.34and plaintiffs are to post an undertaking of $10,000.Plaintiff seeks to attach $500,316.00, which includesestimated costs of $5000 and estimated attorneys’ fees of$25,000.Attachment is a prejudgment remedy that allows acreditor to place a lien on the debtor’s assets to secure adebt in default. A prejudgment writ of attachment mustbe based on an express or implied contract and must bereadily ascertainable in an amount greater than$500.00. Code Civ. Proc. § 483.010.Declarations supporting the application for a right toattach order must set forth the facts with particularity andwith personal knowledge.The Court may only issue a right to attach order if itfinds: the claim is based on contract (express or implied) the creditor’s claim is “probably valid” the attachment is not sought for any purpose otherthan securing the creditor’s claim the amount to be secured by the attachment isgreater than zeroCode Civ. Proc. § 484.090.If the Court issues the right to attach order, anundertaking is required to be filed by the creditor. CodeCiv. Proc. § 489.210. The amount of the undertaking isset by statute at $10,000.00, unless the debtor objectsand makes a showing to justify a greater amount. CodeCiv. Proc. § 489.220.If the debtor is a corporation, all corporate property issubject to attachment. Code Civ. Proc. § 487.010(a). Ifthe debtor is a natural person, the property set forth insubdivision (c) of Code Civ. Proc. § 487.010 is subject toattachment.Plaintiffs’ claim against Estrada is based on a personalguaranty entered into on July 9, 2010 and amended onOctober 21, 2010. A copy of this guaranty is submittedwith the moving papers as Exhibit C.As amended, the guaranty provides that Estrada, as theGuarantor, guaranteed to the plaintiffs and theirsuccessors and assigns, “the payment and performanceby Southern California Metal Recycling, Inc., a Californiacorporation (“Debtor”), and by its successors and assigns,

of thirty five and sixty three hundredths percent (35.63%)of any outstanding balance remaining on the SecuredPromissory Note of even date herewith (the “Note”) thatremains payable as of the date of any default on theNote.”Southern California Metal Recycling defaulted on the noteas of January 9, 2013, and plaintiffs took possession ofand sold most of the collateral. Plaintiffs contend thatSCMR owes $1,050,610 on the note. Although 35.63% ofthis amount is $374,332.34, plaintiffs contend thatEstrada owes $470,316 under the guaranty after interest,attorneys’ fees, and costs are added to the amount owedby SCMR. They also want interest, attorneys’ fees, andcosts from Estrada. However, there is nothing tosubstantiate these additional amounts.To the extent that Estrada claims that he is entitled tocertain exemptions, the property subject to attachment isset forth in Code Civ. Proc. § 487.010 and includes: interests in real property except leasehold estateswith unexpired terms of less than one year accounts receivables, chattel papers, and generalintangibles arising out of the conduct by thedefendant of a trade, business, or profession equipmentinventorymoney on the premises where a trade, business, orprofession is conducted by the defendant and,except for the first $1000, money locatedelsewhere than on such premises and depositaccountsnegotiable documents of titleinstruments and securitiesTo the extent that Estrada is an employee and not anowner of the new company, his earnings and propertymay be exempt from attachment under Code Civ. Proc. §487.010.TENTATIVE RULING ON MOTION #2: The motion ofplaintiffs Robert M. and Rosemary Y. Chavez as trusteesof the Chavez Family Trust dated June 13, 2004 for apreliminary injunction is denied.Plaintiffs seek a preliminary injunction that: (1) enjoinsand restrains defendant Christopher E. Estrada and hisagents, etc., from buying scrap metal from any of the 47accounts identified on Schedule A, making anydistributions of money received from the sale or transferof scrap metal received from selling scrap metal to theseaccounts, and selling, transferring, pledging, orencumbering any of the accounts; and (2) directs andrequires Estrada and his agents, etc. to make restitutionto plaintiffs, turn over control of the accounts to plaintiffs,and render an accounting to plaintiff and turn over allmonies received from the accounts since November2011.Plaintiffs contend that they are entitled to the injunctionsought under subdivision (a)(1), (2), or (3) of Code Civ.

Proc. § 526. They also claim that they are likely to prevailat trial and that a balancing of the equities favors them.With regard to the merits of plaintiffs’ complaint, plaintiffshave only asserted causes of action for breach ofcontract. Specifically, the four causes of actionallege: (1) breach of the secured promissory note againstdefendant SCMR; (2) breach of the secured agreementagainst defendant SCMR; (3) breach of the writtenguaranty against defendant Estrada; and (4) breach ofthe pledge agreement against defendant Lopez.With respect to the third cause of action against Estrada,plaintiffs allege that he is “personally liable for thepayment of thirty-five and sixty-three (35.63%) of thetotal outstanding obligation owed to Plaintiff under theNote.” (Complaint, 30.) They allege that, despite theirdemand, Estrada has failed to pay them the amount dueunder the guaranty, which they claim is$470,316. (Complaint, 31.) Thus, plaintiffs contendthat the contracts have already been breached and theyare seeking monetary compensation. As pointed out inthe opposition, an injunction is not appropriate whenmonetary compensation is inadequate. Ajaxo Inc. v.E*Trade Group, Inc. (2005) 135 Cal.App.4th 21, 64, n.44. See also subdivision (b)(5) of Code Civ. Proc. § 526,which states that an injunction cannot be granted “[t]oprevent the breach of a contract the performance of whichwould not be specifically enforced, other than a contractin writing for the rendition of personal services from oneto another where the promised service is of a special,unique, unusual, extraordinary, or intellectual character,which gives it peculiar value, the loss of which cannot bereasonably or adequately compensated in damages in anaction at law….”Moreover, the allegations in the complaint make it clearthat plaintiffs were only indirectly injured by thepurported taking of the accounts from SCMR. Seecomplaint at 15. Estrada cannot be competing withSCMR if it is no longer in business.Lastly, plaintiffs do not have any evidence that Estradaactually took the accounts from SCMR. The allegations inthe complaint to this effect are based on information andbelief, and Estrada submitted a declaration attesting thathis employment was terminated by SCMR and that he leftwith nothing. He also attests that he identified themanufacturers at issue through publicly available sourcesand that the manufacturers are free to deal with anyonein the business. Plaintiffs have not submitted anyevidence showing otherwise.10 2011-00531915Lakes vs Cal-WestNurseries, Inc.TENTATIVE AND ANALYSIS (Motion 1):Plaintiffs’ request for discovery sanctions is grantedagainst defendant Irvine Campus Housing Authority in theamount of $6671. Plaintiff’s request for sanctions againstdefendant’s counsel, Macrae & Edrington, isdenied. Defendant’s request for sanctions in theopposition is denied.

There does not appear to be any question that thedocuments belatedly produced by the defense at trialwere responsive to Requests 46 and 47 which sought allwritings evidencing, referencing, or discussing “the designof the Meadow Path” (Request 46) and “the constructionof the Meadow Path.” And, as to each of these requests,defendant responded:”“This responding party will comply with theparticular request to the extent the requesteditems are within this party’s possession, custody,or control. This party identifies the constructionplans with the responding party’s previousresponses to discovery.”This matter was previously continued to givedefendant a chance to better explain why the documentsbelatedly produced during trial were not produced whenrequested. But, Herndon has still not provided asatisfactory explanation for why the computer was notchecked for documents at the time the responses wereprepared. The documents at-issue were clearly indefendant’s custody, possession, and control – as shownby the fact that they were immediately produced whendefendant was ordered to do so during trial. In short,defendant represented that all documents were producedand that was not the case. This omission may not havebeen in bad faith, but it was an error on the part ofdefendant nonetheless.As to the argument that plaintiffs should havemade a motion to compel further, plaintiffs are right, sucha motion was not warranted. When a responding partysays it will produce everything it has that is responsive,there are no grounds for a motion to compel further. [Apropounding party cannot (successfully) come to courtand state that they just think more documents exist.]In short, sanctions are warranted under CCP2023.010– for failing to (properly) respond to discovery(CCP 2023.010(d)) and for making an evasive(incomplete) response (CCP 2023.010(f))However, while sanctions are warranted againstdefendant, they do not appear to be warranted againstdefense counsel. This is an instance where the mistakewas made by the client, not counsel. Defense counsel hasindicated they were unaware that additional documentsexisted and that assertion is backed up by the client, asHerndon states that he never told his attorneys that plansmight exist on the computer.Plaintiffs initially sought $8479 in sanctions basedon their attorney’s statement that she spent 27.8 hours(at $305/hour) speaking with defense counsel, consultingwith plaintiff’s expert, drafting additional discoveryrequests, and attending the 402 hearing. As that amountseemed high for a discovery problem related to an issuewhich plaintiff ultimately withdrew, the court previouslyindicated it was inclined to award $4575 (15 hours at$305/hour). Plaintiff’s attorney indicates an additional$1861 in attorney’s fees was incurred because of the

continuance (6.1 hours at $305/hour) plus $235 in costs(reporter’s transcript; court call fee). The court thus findsthat $6671 in sanctions is reasonable.TENTATIVE RULING (Motion 2):Plaintiffs’ Motion to Tax is granted in part anddenied in part. It is denied as to the $608.20 sought forthe deposition of Cooper. The expert fees of Tyson arereduced from $25,405 to $25,370. In all other respects,the request to tax the expert fees of Tyson is denied.Preliminary Note: It appears to the court that theMemorandum of Costs referred to by plaintiffs in theirmoving papers and the Memorandum of Costs filed withthe court on 6-27-13 are not the same. The cost memofiled with the court consists of a one page verifiedsummary of the costs sought (totaling $35,469) and atwo-page POS. In the moving papers, however, plaintiffsrefer to “Section 4.e (page 4 of 4)” and Section 8.b – inwhich the specific amounts sought for the Deposition ofCooper and the expert fees of Tyson are apparently setforth. In addition, defendant refers to the “Worksheet” –but no Worksheet is attached to the cost memo filed withthe court. (Opp; 2)There does not appear to be any dispute about theamounts at-issue in the pending motion. Plaintiffs arechallenging the Deposition of Cooper ($608.20) and theexpert fees of Tyson ($25,405). [Total witness feessought are $26,548 – so it appears defendant seeks feesfor witnesses other than Tyson as well – which plaintiffshave not challenged.] And, as the amounts challenged donot appear to be in dispute, the court will go ahead andreach the merits of the motion at this time despite thefact that the cost memo filed with the court appears to bemissing some pages.Deposition of Cooper: Plaintiffs argue that thedeposition was a waste of time because plaintiff hadwaived her claim for loss of future earnings due to delayin obtaining tenure and because Cooper had noknowledge of the specifics of plaintiff’s claims for lostearnings.Pursuant to CCP 1033.5(a)(3), defendant isentitled to recover the cost of “necessarydepositions.” Here, the stipulation re future earnings didnot render Cooper’s knowledge irrelevant as plaintiff alsohad a claim for past lost earnings. Thus, Cooper, as hersupervisor, potentially had relevant information. This costwill thus not be disallowed.Expert Fees: According to plaintiffs, defendant isseeking $25,405 for the fees of Tyson (86 hours at$295/hour). The court begins by noting that 86 x $295 is$25,370, not $25,405.Plaintiffs first contend that defendant cannotrecover any of the expert fees claimed because the CCP998 offers were not attached to the cost memo citing Behr

v. Redmond (2011) 193 Cal.App.4th 517, 538. In Behr,the court reversed an award of expert fees in a matterwhere the respondent did not dispute that the fees wereawarded in error. In reversing, the court stated: “Behrfailed to support her memorandum of costs with a writtenoffer to compromise.” (Id.)Plaintiffs contend the Behr court held that the CCP998 offer must be attached to the cost memo itself. But,Behr does not say that. The Behr court stated that theparty seeking costs had failed to “support” the cost memowith the offer to compromise. That statement does notestablish an absolute rule that any failure to attach theCCP 998 offer means a party cannot recover expert feesas a cost memo may be supported in the opposition to alater filed motion to tax.In general, the verified cost memo establishes thereasonable necessity of the costs claimed. “There is norequirement that copies of bills, invoices, statements, orany other such documents be attached to thememorandum. Only if the costs have been put in issue viaa motion to tax costs must supporting documentation besubmitted.” (Jones v. Dumrichob (1998) 63 Cal.App.4th1258, 1267.) Thus, the submission of the CCP 998 offerswith the opposition is sufficient “support.”That leads to the next issue - whether the feesclaimed are reasonable. Plaintiffs point out that at hisdeposition only 7 days prior to trial, when asked howmany hours he had worked on the case, Tyson responded4 or 5 days “so maybe up to 40 hours, between 30 and 40hours I'd estimate.” (Depo of Tyson; RT 38) Defendantsays Tyson estimated wrong as he had actually spent 58.5hours (including the 5 hours he spent at the depo – whichit does not appear Tyson was counting). And, defendantsay Tyson spent an additional 16.5 hours reviewing hisdepo, meeting with defense counsel, attending pre-trialmotions, and attending trial + 11 hours for“testimony.” Total hours are thus 86.Tyson’s estimate of the time he spent on the caseat his depo was off. It appears he had spentapproximately 53 hours on the case at that time – eventhough he stated at this depo it was “maybe” up to 40hours “I'd estimate.” The key word there is“estimate.” The witness provided an estimation. Thistestimony thus does not preclude defendant from seekingto recover time spent by Tyson in excess of 40hours. And, 58.5 hours up through the deposition seemsreasonable for a case involving a claim for damages in thehundreds of thousands of dollars.In addition, the additional 19.5 hours reviewing thedeposition, conferring with the attorney, and attendingpre-trial motions and trial also appears reasonable asdoes the 11 hours for trial testimony.The fact that plaintiffs’ expert charged significantlyless does not change the analysis. The experts haddifferent backgrounds and credentials and there is norequirement that experts spend the same amount of time

preparing – so long as the amount ultimately sought isreasonable.Accordingly, it appears defendant is entitled to the86 hours at $295/hour it seeks. However, as 86 hours x$295 = $25,370, not $25,405 the expert fees for Tysonare reduced to $25,370.Plaintiffs finally contend that the court shouldreduce the expert fees to take into account the disparatefinancial positions of the parties – asserting that whileplaintiffs have good jobs, the amount of expert feessought is an “enormous” amount of money tothem. Plaintiff’s request that the court “compare” thefinancial resources of the parties is not well-taken giventhat plaintiff has provided no evidence of plaintiffs’financial resources. Plaintiffs have thus not shown thatthe expert fees sought would work a hardship onthem. For this reason alone, the request fails.In addition, the authorities cited by plaintiff appearto be limited to FEHA cases. In Seever v. Copley Press,Inc. (2006) 141 Cal.App.4th 1550, the plaintiff broughtdiscrimination claims under FEHA and lost. The trial courtawarded the prevailing defendant its expert fees underCCP 998 and the plaintiff appealed. The Seever court, inthat FEHA case, found that where the plaintiff loses, indetermining the reasonableness of expert fees, the courthad to take into account the losing party’s economicresources. (Id. at 1561) The court stated:“If the goal of Code of Civil Procedure section 998is to encourage fair and reasonable settlementsandnot settlements at any cost-trial courts inexercising their discretion must ensure theincentives to settle are balanced between the twoparties. Otherwise less affluent parties will bepressured into accepting unreasonable offers justto avoid the risk of a financial penalty they can'tafford. Thus, when two competing parties possessvastly disparate economic resources, this mayrequire the trial courts to ‘scale’ the financialincentives (in this instance the 998 cost awards) tothe parties' respective resources.This is especially important in the context oflitigation under FEHA and similar laws….…. This code section is designed to createeconomic incentives on both parties to settlerather than try their lawsuits. To do so, both sidesmust face some economic consequences if it turnsout they miscalculate and lose. Thus, seldomwould a court properly deny a successful defendantits entire 998 cost award, even in a FEHA case. But… it is entirely appropriate and indeed necessaryfor trial courts to ‘scale’ those awards downward toa figure that will not unduly pressure modest- orlow-income plaintiffs into accepting unreasonableoffers. [Emphasis added.] ” (Id. at 1561-1562)Seever’s analysis was followed in Holman v. Altana

Pharma US, Inc. (2010) 186 Cal.App.4th 262, 284, andthat court indicated that its holding that the losing party’smeans could be considered was limited to the FEHAsituation. “[I]n assessing whether an expert fee award isreasonable in amount, at least in the FEHA context whereother recognized public policy considerations apply, weagree that the court must not only look to whether theexpense was reasonably incurred, but must also considerthe economic resources of the offeree.” (Id.)“We express no opinion as to whether such ananalysis could be required in any circumstancebeyond the context of FEHA litigation. TheLegislature has not included a means test as anelement of determining awards generally underCode of Civil Procedure section 998, and imposingsuch a requirement would alter the settlementincentives provided by Code of Civil Proceduresection 998.” (Id. at 284.)And, finally, there is dicta in a case not cited by theparties that (generally) the court does not consider thelosing party’s financial circumstances in making an awardof costs under CCP 998.“Plaintiffs also maintain that before setting theamount of the award under section 998, the trialcourt should have first considered the award'ssevere financial impact on them. (See Seever v.Copley Press, Inc. …. Plaintiffs did not raise thisissue in the trial court nor have they created afactual record sufficient to resolve it in theirfavor…. Although we nonetheless have discretionto consider the issue, we decline to do so becauseno important question of public policy is involved.(Citation.) In any event, we find no indication thatthe Legislature intended to require courts toconduct a means test as part of determining theamounts to award under section 998. Such a rule,which would alter the settlement incentivesprovided by section 998 in a wide range of cases,should not be mandated by placing a judicial glosson the statute's text. [Emphasis added.] ” (Clarkv. Optical Coating Laboratory, Inc. (2008) 165Cal.App.4th 150, 186.)Here, FEAH claims are not involved and aspreviously noted, there is no showing that a $25,370award of expert fees is beyond the ability of plaintiffs topay or would cause plaintiffs hardship. Accordingly, thecourt will not reduce the award based on the financialpositions of the parties.13 2011-00470302Desoto vs Advance TechPlating IncTENTATIVE RULING:Defendant’s Motion for Summary Judgment isgranted. Defendant’s unopposed Request for JudicialNotice is granted.Defendant’s Objections: Objections 1-4 areoverruled. Objections 5-7 are sustained. Defendant’sobjection to 6 of the Declaration of Sullivan filed 8-16-

13 is sustained as it lacks foundation.An employee’s sole remedy for an injury in thecourse and scope of employment (with a few exceptionsnot applicable here) is with the worker’s compensationsystem. (Labor Code §§ 3600 and 3602) Pursuant toLabor Code §2750.5, when work requires a license andthe worker is unlicensed, there is a rebuttablepresumption that the worker is an employee.“There is a rebuttable presumption affecting theburden of proof that a worker performing servicesfor which a license is required … is an employeerather than an independent contractor….” (LaborCode §2750.5)In plaintiff’s original opposition, plaintiff argueddefendant had not addressed his negligence per se andfailure to warn theories of premises liability and shownthat they too are subject to worker’s compensationpreemption - but there is no reason they would notbe. Plaintiff did not contend that no license wasrequired. In fact, plaintiff appeared to concede on thatissue. “Defendant Advanced Plating, Inc. is trying to shirkits responsibility for causing injuries suffered by anunlicensed contractor ….” (Opposition filed 10-31-12;3) And, plaintiff testified at his deposition that it was hisunderstanding that he needed a license to perform thework at-issue. (Depo of Plaintiff; Exh. B to Request forJudicial Notice; RT 146)Plaintiff also argued in the original opposition andsupplemental opposition filed 7-9-13, that it would beunfair to grant summary judgment on the ground thatplaintiff was an employee because defendant hadpreviously declined to award plaintiff workerscompensation benefits on the ground he was not anemployee. [Letters of 10-26-10 and 2-3-11]This matter has now been continued twice to allowplaintiff to pursue his workers compensation benefits andto inform this court of occurrences in the workerscompensation matter that are relevant to thejurisdictional issue. To date, however, this court knowsonly that a workers compensation matter ispending. Plaintiff has not shown he has no remedy in theworkers compensation forum. The initial letters sent toplaintiff, before the actual workers compensation case wasfiled, asserting plaintiff was not entitled to benefits arenot dispositive on the issue.Now, in the third opposition to the motion filed on8-16-13, plaintiff for the first time argues that nocontractor’s license was required. Contractor is defined inBusiness & Professions Code §7026.1:“The term ‘contractor’ includes all of the following:(a) Any person not exempt under Section 7053who maintains or services air-conditioning,heating, or refrigeration equipment that is a fixedpart of the structure to which it isattached. [Emphasis added.]” (Business &

Professions Code §7026.1(a))Plaintiff argues that he does not fall under thisdefinition because he was installing the unit (UMF # 1),not maintaining or servicing it. However, it appears thedefinition of a contractor in the context of refrigeration isfurther defined by the California Code of Regulations – 16CCR §832.38 (which neither party has cited).“A refrigeration contractor constructs, fabricates,erects, installs, maintains, services and repairsrefrigerators, refrigerated rooms, and insulatedrefrigerated spaces, temperature insulation, airconditioningunits, ducts, blowers, registers,humidity and thermostatic controls for the controlof air, liquid, and/or gas temperatures below fiftydegrees Fahrenheit (50 degrees), or ten degreesCelsius (10 degrees). [Emphasis added.]” (16CCR §832.38)This regulation appears to clarify that installing arefrigeration unit also requires a license.Plaintiff further contends that he does not meet thedefinition of a contractor because the unit was not a fixedpart of the structure. Plaintiff has no admissible evidencethat the unit was not fixed as his attorney’s statement inthe declaration filed 8-16-13 stating that “[i]t is ourunderstanding that he refrigeration unit was not fixed, inthat it simply sat on the roof” (Declaration of Sullivan; 6) lacks foundation. Plaintiff’s attorney is not qualified totestify to the underlying facts. [Defendant’s objection to 6 is sustained.]In addition, plaintiff testified that at the time of theaccident, he was there to hook up or solder and that hewas going to solder four pipes. (Deposition of Plaintiff; RT197) Plaintiff testified that he had been “lining up mypiping.” (Deposition of Plaintiff; RT 199) The writtencontract stated plaintiff was to “run refrigeration linesfrom roof to 1 floor tank.” (Exh. A to Declaration ofGomez) Moreover, as previously noted, plaintiff testifiedthat it was his understanding that a license wasrequired. When these facts are viewed together, theyare sufficient to meet defendant’s burden to show that theunit was a fixed part of the structure such that a licensewas required. And, as plaintiff has not submitted anyadmissible evidence to the contrary, no triable issue offact has been raised.In short, defendant has met its burden of proof andplaintiff has not raised a triable issue of fact. In addition,this motion has previously been continued a total of 10months to give plaintiff the opportunity to establish thathe actually has no remedy in the workers compensationforum and plaintiff has not done so. Accordingly, themotion is granted.In the supplemental reply filed by defendant on 8-30-13, defendant makes multiple objections to thedeclaration of Sullivan submitted with the supplementalopposition filed 8-16-13. The objections do not comply

with the formatting requirements of CRC 3.1354 as theyare not made in a separate document. The court,however, in its discretion will rule on (sustain) theobjection to 6, in which plaintiff’s attorney states that itis their “understanding” that the refrigeration unit was notfixed and simply sat on the roof. No foundation for thestatement has been laid. The court declines to rule on theremaining objections as they do not comply with CRC3.1354 and make no difference to the outcome of themotion.15 2011-00446368Creditors AdjustmentBureau, Inc vs EthosRestaurant Group IncTENTATIVE RULING:Plaintiff’s unopposed motion to amend judgment toreflect a judgment amount of $25,272 is granted. Movingparty is to give notice.Plaintiff fails to state the authority for themotion. Nevertheless, pursuant to CCP §187, the courthas authority to amend the judgment:“When jurisdiction is, by the Constitution or thisCode, or by any other statute, conferred on aCourt or judicial officer, all the means necessary tocarry it into effect are also given; and in theexercise of this jurisdiction, if the course ofproceeding be not specifically pointed out by thisCode or the statute, any suitable process or modeof proceeding may be adopted which may appearmost conformable to the spirit of this code.”This code provision affording trial courts the meansnecessary to carry their jurisdiction into effect and thepower to adopt any suitable process or mode ofproceeding which may appear most conformable to thespirit of the Code relates primarily to procedural matters,typically to control the court's own process, proceedingsand orders, but also may relate to situations in which therights and powers of the parties have been established bysubstantive law or court order but workable means bywhich those rights may be enforced or powersimplemented have not been granted by statute. Phillips,Spallas & Angstadt, LLP v. Fotouhi (2011) 197 Cal.App.4th1132, 1142.The hearing was continued to allow moving partyto submit a supplemental declaration to clarify thedifferences in the original motion to amend judgment(seeking $23,875.60) and the most recent motion(seeking $25,272). The supplemental declaration statesthat the $2,124.40, which was used to calculate the lower$23,875.60, was already included in the stipulated$26,000 judgment, and therefore, was erroneouslycredited twice, causing the discrepancy. The only creditshould be the $728 voucher form the sheriff’s departmentand therefore, the amended judgment should be $26,000less $728, or $25,272. Plaintiff has provided a sufficientexplanation for the error, and the motion is granted.

16 2011-00504723Morales vs Thee Aguila IncTENTATIVE RULING:Defendant’s Motion that Kerry Zeiler be Removedas the Attorney for the Morales’s Due to a Conflict isdenied. Plaintiffs’ Request for Judicial Notice isdenied. The court, in its discretion, has considered theopposition filed 9-6-13 despite the fact that it appears tohave been untimely served. However, the court has notconsidered the Declaration of Thomas Tedesco which wasnot filed until 9-11-13 – the same day the Reply was due.MeritsThe court considers multiple factors when ruling ona motion to disqualify including:the party's right to counsel of choice; the attorney's interest in representing aclient;the financial burden on a client of changingcounsel; any tactical abuse underlying adisqualificationmotion; and the principle that the fair resolution ofdisputesrequires vigorous representation ofpartiesbyindependent counsel. (Rylaarsdam &Edmon,Cal. Prac. Guide: Civ. Pro Before Trial(TheRutter Group 2013), §9:406.8)When successive representation is asserted, ifthere is a substantial relationship between the prior andcurrent representation, disqualification is mandatory.The ‘substantial relationship’ test mediatesbetween two interests that are in tension in such acontext—the freedom of the subsequent client tocounsel of choice, on the one hand, and theinterest of the former client in ensuring thepermanent confidentiality of matters disclosed tothe attorney in the course of the priorrepresentation, on the other. Where the requisitesubstantial relationship between the subjects ofthe prior and the current representations can bedemonstrated, access to confidential informationby the attorney in the course of the firstrepresentation (relevant, by definition, to thesecond representation) is presumed anddisqualification of the attorney's representation ofthe second client is mandatory; indeed, thedisqualification extends vicariously to the entirefirm. [Emphasis Added.]” (Flatt v. Superior Court(1994) 9 Cal.4th 275, 283.)Thee Aguila asserts that it was previously

epresented by attorney Thomas Tedesco in connectionwith the unlawful detainer action filed against Garlinda,Inc., the tenant at the property at-issue. Thee Aguilafurther asserts that Tedesco and attorney Kerry Zeiler arepartners and thus Zeiler, the Morales’s current attorney,must be disqualified. While the prior unlawful detainerlitigation and this case appear to have a substantialrelationship, Thee Aguila is not persuasive thatdisqualification is warranted.As a preliminary matter, Thee Aguila mustestablish that an attorney-client relationship existedbetween it and Thomas Tedesco. Its President, HenryAguila, says that Tedesco referred him to attorney Luebketo represent Thee Aguila in the unlawful detainer actionagainst Garlinda, Inc. Aguila further says that “Tedescodid work for Thee Aguila, Inc. in the unlawful detaineraction against Garlinda, Inc.” Thee Aguila’s attorney,Guinevere Mallory, indicates that at his deposition,Tedesco confirmed that he billed for work done on theunlawful detainer matter by Thee Aguila and againstGarlinda, Inc. – but the invoices attached show that it wasthe Morales’s that were billed for this work - not TheeAguila.Thee Aguila’s evidence does not show that Tedescoactually represented Thee Aguila. At the time the work onthe unlawful detainer action was promised and performed,Tedesco’s clients, the Morales’s, and Thee Aguila werecooperating in getting Garlinda, Inc. removed from theproperty as part of the sale. While it appears Tedescodrafted some pleadings, these pleadings were apparentlyconveyed to Thee Aguila’s actual attorney in the matter,Gaitan. The Morales’s were the ones billed for this workand there is no indication that Tedesco ever appeared forThee Aguila.The attorney-client relationship is created by someform of contract. It may be express or implied, formal orinformal. (Responsible Citizens v. Superior Court (1993)16 Cal.App.4th 1717, 1732.) The facts here are notsufficient to show a contract of any kind between Tedescoand Thee Aguila. Thee Aguila did not pay Tedesco for theservices rendered. Tedesco referred Thee Aguila toanother attorney – who is apparently the one who filedthe unlawful detainer action. While Tedesco took steps toassist Thee Aguila in its unlawful detainer action againstGarlinda, Inc., this appears to have been done to facilitatethe deal and as part of the deal between Thee Aguila andTedesco’s clients (the Morales’s). All of this is consistentwith Tedesco representing the Morales’s, not Thee Aguila.In short, Thee Aguila has not shown an attorneyclientrelationship with Tedesco. Absent such arelationship, there is no conflict and the motion todisqualify fails.The court further notes that plaintiff is notpersuasive that Tedesco and Zeiler are partners. Themere fact that they have offices at the same address, andthat Zeiler has appeared for Tedesco in connection withthis case, is not sufficient to show a partnership.

Request for Judicial NoticeThe court will not take judicial notice of thepleading and judgment rendered in the legal malpracticeaction filed by Thee Aguila against Tedesco. As thejudgment rendered in that case is not yet final (an appealis pending), it has no res judicata or collateral estoppeleffect. The documents are thus irrelevant to the court’sdetermination. The court also notes that the copy of theSecond Amended Complaint provided is not a conformedcopy.Service of OppositionThee Aguila contends that the opposition was nottimely served. Pursuant to the court’s 8-20-13 ordersetting this matter for hearing, the opposition was dueFriday, 9-6-13 and it was filed that date. However, whilethe POS indicates it was serve by overnight mail on thatdate and that responding party asked the court’s e-filevendor to electronically serve moving party’s counsel,moving party’s attorney states that the opposition was notreceived until 9-10-13 and that the USPS web site showsthat the opposition was not actually mailed until Monday,9-9-13.It does appear that something went wrong with theservice on responding party’s end. However, given thehigh stakes involved (the Morales’s right to the attorneyof their choice), the court will consider the oppositiondespite the apparently untimely service. In addition, thecourt notes consideration of the opposition does notchange the outcome as Thee Aguila did not meet itsburden of establishing an attorney-client relationshipbetween itself and Tedesco.Late Filed Declaration of attorney Thomas TedescoResponding parties submitted a declaration inopposition from attorney Tedesco on 9-11-13, the samedate the Reply was due. This declaration was untimelyfiled and has not been considered.17 2012-00576427Becerra vs Law Offices ofSherri S. ShafizadehTENTATIVE RULING:Defendant’s Motion for Judgment on the Pleading(the Second Amended Complaint) is granted with 10-daysleave to amend. Defendant’s Request for Judicial Notice,Requests 1-5, is denied.Request for Judicial Notice: In Requests 1-4,defendant asks the court to take judicial notice ofdiscovery – plaintiffs’ deposition testimony and documentsproduced by plaintiffs in connection with theirdepositions. As with a demurrer, the court considers onlythe face of the pleading and matters which are properlythe subject of judicial notice in ruling on a motion forjudgment on the pleading. (County of Orange v.Association of Orange County Deputy Sheriffs (2011) 192Cal.App.4th 21, 32.) Generally, discovery responses arenot properly the subject of judicial notice in connectionwith a challenge to a pleading. However, there is alimited exception to this general rule - which allows for

judicial notice of plaintiff’s discovery response when thediscovery response contradicts an allegation in theplaintiff’s complaint.“The court will take judicial notice of records such asadmissions, answers to interrogatories, affidavits, andthe like, when considering a demurrer, only where theycontain statements of the plaintiff or his agent whichare inconsistent with the allegations of the pleadingbefore the court. The hearing on demurrer may not beturned into a contested evidentiary hearing throughthe guise of having the court take judicial notice ofaffidavits, declarations, depositions, and other suchmaterial which was filed on behalf of the adverse partyand which purports to contradict the allegations andcontentions of the plaintiff. [Emphasis added.]” (DelE. Webb Corp. v. Structural Materials Co. (1981) 123Cal.App.3d 593, 604-605.)Here, as noted by defendants, plaintiffs admittedin their pleading that the investments at-issue were madeby the LLC’s. (2AC; 20) Thus, the discovery responsesof which defendant seeks judicial notice do not contradictthe factual allegations of the pleading, they simplyprovide further clarification. As a result, the discoveryresponses do not fall in the limited exception allowing thecourt to take judicial notice of the plaintiff’s discoveryresponses in conjunction with an attack on a pleading.Request 5, which seeks judicial notice of “portionsof Ms. Becerra’s bankruptcy filings” in Case No. 2:10-bankruptcy-43587-RK, does not comply with therequirement of CRC 3.1113(l) that any request for judicialnotice list “the specific items for which notice isrequested.” Request 5 appears to contain excerpts frommultiple documents filed in the bankruptcy case which arenot identified by the moving party as required. Simplyidentifying multiple court documents as “portions” of acourt file is not sufficient.Bankruptcy Issue: Because the Request forJudicial Notice of “portions” of the bankruptcy file isdenied, the court will not reach the merits of defendant’scontention that plaintiff Becerra’s claims, if any, belong toher bankruptcy estate.Standing Issue: Even without consideration of thediscovery responses, a standing issue is raised on the faceof the pleading. Plaintiffs allege that defendant failed tonotice that the investments were “made in the name ofLLC’s.” Accordingly, it would appear to be the LLC’s whichsuffered the losses at issue and which have standing topursue the claims against defendants.Plaintiffs respond that defendant drafted theoriginal attorney-client agreement and made plaintiffs theonly ones with standing to bring these claims. However,the “Fee Agreement” attached to the original complaintsof plaintiffs identifies the clients as the individual plaintiffsand SAMA Management, LLC and ArchipelagoInvestments, LLC.The court may consider inconsistent statements

made in earlier pleadings in connection with a challengeto a pleading. (Rylaarsdam & Edmon, Cal. Prac.Guide: Civ. Pro Before Trial (The Rutter Group 2013),§7:47) The copies of the agreement attached to theoriginal complaints were signed only by plaintiff DonnaHessenflow, on her own behalf and on behalf of SAMAManagement, LLC. However, both plaintiffs alleged thatthis was the applicable agreement in their originalcomplaints filed 6-13-12. Accordingly, at a minimum, if itis now plaintiffs’ contention that they were the only onesever represented by defendant, plaintiffs need factsexplaining how this could be given the language of theagreement plaintiffs previously pleaded and attached.In short, plaintiffs’ own allegations indicate that theinvestments were made by the LLC’s. It thus appearsplaintiffs lack standing as it was the LLC’s, and notplaintiffs, that suffered the losses.Leave to amend: While the Second AmendedComplaint is plaintiffs’ 3 rd pleading, as this is the first timedefendant has argued plaintiffs’ lack standing because anyclaim belongs to the LLC’s, the court will grant plaintiffsleave to amend. Plaintiffs are granted leave to eitherplead facts showing that they, as individuals, havesuffered losses for which they have standing to sue or tosubstitute the (alleged) real parties in interest asplaintiffs. (Cloud v. Northrop Grumman Corp. (1998) 67Cal.App.4th 995, 1006.) Plaintiffs are not granted leaveto add any additional causes of action.

# Case Name1 2013-00660798Hebson vs Wells FargoBank, a CorporationTENTATIVE RULING:Defendant Wells Fargo’s unopposed demurrer tothe complaint is sustained. Leave to amend is granted asto causes of action (“COAs”) 1 and 3-8, but denied as tothe 2 nd COA. An amended pleading must be filed andserved within 20 days. Moving party is to give notice.1 st COA – Declaratory Relief: Plaintiff claims thesecuritization of the loan is invalid because it wastransferred after the investment trust was closed that wasgoverned by the Pooling & Servicing Agreement(“PSA”). Therefore, per Plaintiff’s reasoning, theforeclosing parties did not have authority to forecloseupon him since the loan interests never transferred tothem.In the recent case of Glaski v. Bank of America,National Association (2013) 218 Cal.App.4 th 1079, the 5 thDCA held that the plaintiff borrower sufficiently stated aclaim against the foreclosing parties that his loan violatedNY trust law because the loan was not transferred into theinvestment trust prior to its closure, and therefore,void. However, here, Plaintiff is not claiming a violation ofNY trust law, but rather, that it violated the PSA.There are no published state appellate opinions onthis issue (aside from the NY trust law issue), but thefederal courts have addressed it with differingconclusions. However, the “majority position is thatplaintiffs lack standing to challenge noncompliance with aPSA [pooling and servicing agreement] in securitizationunless they are parties to the PSA or third partybeneficiaries of the PSA.” Shkolnikov v. JPMorgan ChaseBank (N.D. Cal. 2012) 2012 WL 6553988 *7. Therefore,Plaintiff cannot rely on this theory for recovery.Moreover, the property was sold to third partyAvenida Salvador Trust #2001 (see RJN Exh. E). A BFPfor value at a nonjudicial foreclosure sale has the benefitof a conclusive presumption that the foreclosure sale wasproperly noticed: A recital in the trustee's deed (executedpursuant to the power of sale) of compliance with “allrequirements of law” regarding mailing or personaldelivery and publication or posting of the copies of noticeof default and notice of sale “shall constitute prima facieevidence of compliance with these requirements andconclusive evidence thereof in favor of bona fidepurchasers and encumbrancers for value and withoutnotice.” Civ. Code §2924(c); Bank of America, N.A. v. LaJolla Group II (2005) 129 Cal.App.4th 706, 714;Melendrez v. D & I Investment, Inc. (2005) 127Cal.App.4th 1238, 1255.For purposes of the § 2924(c) presumption, a BFPis one who pays value for the property without knowledgeor notice of “the asserted rights of another.” Melendrez v.D & I Investment, Inc., supra, 127 Cal.App.4th at1253. Any fraud by the trustee and/or beneficiary during

the sale process is not imputed to the BFP and, thus,cannot itself support setting the sale aside. Id. at 1256–1258 [absent evidence BFP knew lender failed to instructtrustee to postpone sale based on repayment agreementbetween borrowers and lender, borrowers could not setBFP sale aside].There are no facts that the BFP was aware ofPlaintiff’s situation.The demurrer to this cause of action is sustainedwith leave to amend.2 nd COA – Injunctive Relief: Injunctive relief is aremedy and not a cause of action. Guessous v. ChromeHearts, LLC (2009) 179 Cal.App.4th 1177, 1187. Thedemurrer to this cause of action is sustained without leaveto amend.3 rd COA – Violation of HBOR: Plaintiff claims aviolation of Civ. Code §2924(a)(6) that states, “No entityshall record or cause a notice of default to be recorded orotherwise initiate the foreclosure process unless it is theholder of the beneficial interest under the mortgage ordeed of trust, the original trustee or the substitutedtrustee under the deed of trust, or the designated agentof the holder of the beneficial interest. No agent of theholder of the beneficial interest under the mortgage ordeed of trust, original trustee or substituted trustee underthe deed of trust may record a notice of default orotherwise commence the foreclosure process except whenacting within the scope of authority designated by theholder of the beneficial interest.” This section waseffective 01/01/13.Here, the NOD was recorded in 2010 prior toenactment of the statute. Therefore, the statute does notapply here.The demurrer to this cause of action is sustainedwith leave to amend.4 th COA – Negligence: The basic elements of anegligence action are: (1) The defendant had a legal dutyto conform to a standard of conduct to protect theplaintiff, (2) the defendant failed to meet this standard ofconduct, (3) the defendant’s failure was the proximate orlegal cause of the resulting injury, and (4) the plaintiffwas damaged. Ladd v. County of San Mateo (1996) 12Cal.4th 913, 917.Plaintiff claims that Defendants had a duty toensure his loan would have been timely transferred intothe investment trust, or that they should have known itwas not timely transferred and therefore had no right toforeclose upon him. There are no facts supporting thecontention that Defendants owed a duty to Plaintiff in thesituations described above. Moreover, Plaintiff does notdeny defaulting on the loan to sufficiently state a causalconnection between Defendants’ conduct and his default.The demurrer to this cause of action is sustained

with leave to amend.5 th COA – Violation of B&P §17200: This claim ispremised on the previous allegations. The demurrer tothis cause of action is sustained with leave to amend.6 th COA – Slander of Title: The elements toestablish this claim are: (1) a publication, (2) which iswithout privilege or justification, (3) which is false, and(4) which causes direct and immediate pecuniaryloss. Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009)173 Cal.App.4 th 1040, 1051. Without privilege orjustification means the publication must be with malice,express or implied. Howard v. Schaniel (1980) 113Cal.App.3d 256, 264.Here, there are no facts that Defendants actedwith malice other than a conclusory statement that therecordings were made without privilege. The demurrer tothis cause of action is sustained with leave to amend.7 th COA – Cancellation of Written Instruments: Anaction may be brought to cancel a written instrument thatis void or voidable when there is a reasonableapprehension that if it is left outstanding it may cause aserious injury. Civ. Code §3412. For the other reasonsstated above, there is no basis supporting this claim. Thedemurrer to this cause of action is sustained with leave toamend.8 th COA – Accounting: Generally, there is nofiduciary duty between a lender and borrower. Perlas v.GMAC Mortg., LLC (2010) 187 Cal. App. 4th 429,436. Further, Plaintiff (borrower) must allege factsshowing that a balance would be due from the Defendantlender to Plaintiff. St. James Church of Christ Holiness v.Superior Court (1955) 135 Cal. App. 2d 352, 359. Anyother duty to provide an accounting only arises when awritten request for one is made prior to the NTS beingrecorded. Civ. Code §2943(c). Here, Plaintiff has notstated any of these facts. The demurrer to this cause ofaction is sustained with leave to amend.Tender Rule: Given the above discussion, thetender rule did not come into play and was not an issue inthe analysis.RJN: The unopposed request for judicial notice ofthe recorded documents and federal agency documents isgranted (Evid. Code §452(c), (h)).2 2012-00590479Macro-Z Technology vsLCC-MZT Team IVTENTATIVE RULING ON MOTION #1:The general demurrer of cross-defendants Macro-ZTechnology Co., CJW Construction, Inc., Bryan Zatica andCarla Whitehead to all five causes of action in the secondamended cross-complaint by Larkor ConstructionCompany is moot to the extent that the moving partiesclaim that Larry Landa is not a proper party to theSACC. Although the SACC is somewhat ambiguousbecause of the allegations in 2, it appears that Mr.Landa was only asserting the second cause of action forbreach of fiduciary duty, and he voluntarily dismissed that

cause of action through a request for dismissal on June24, 2013.To the extent that responding cross-complainant LarkorConstruction contends that the demurrer is untimelyunder subdivision (f)(2) of CRC 3.1320 and should not beheard on its merits, this contention fails. As pointed outin the reply, Rule 3.1320(f)(2) is not applicable, as itapplies to the situation where a demurrer is sustainedwith leave to amend and the pleading party fails toamend. The applicable rule is in subdivision (a) of CodeCiv. Proc. § 471.5 and gives a party responding to anamended complaint “30 days after service thereof” torespond. The SACC was filed and served by electronicservice on June 17, 2013 and the demurrer was thereaftertimely filed on July 19, 2013.The general demurrer of Macro-Z Technology to the firstcause of action is overruled. The cross-defendantscontend that the cause of action is defective becauseit: (1) does not sufficiently allege the various contractsthat were breached; and (2) one joint venture partnercannot sue its partner for breach of contract until adissolution/accounting of the joint venture is complete,citing Malott v. Seymour (1950) 101 Cal.App.2d 245, 246and Hasking v. Spartan Properties (1969) 275 Cal.App.2d152, 156.With regard to the first argument, the responding crosscomplainantcites Construction Protective Services, Inc. v.TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199; McKell v. Washington Mutual Inc. (2006) 142Cal.App.4th 1457, 1489, for the rule that a contract maybe pled through its legal effect and claims that that iswhat it did here. McKell stated that, to plead a contractby its legal effect, the plaintiff must “’allege the substanceof its relevant terms. This is more difficult, for it requiresa careful analysis of the instrument, comprehensivenessin statement, and avoidance of legalconclusions.’ [Citations.]”Here, the SACC alleges in 22 that Larkor and Macro-ZTechnology formed five separate joint ventures beginningin 2008, LCC-MZT Team, LCC-MZT Team I, LCC-MZTTeam II, LCC-MZT Team III, and LCC-MZT Team IV. Itthen alleges in 23 and 24 that LCC-MZT Team workedon two projects and that the other joint ventures workedon five projects. In 25, the SACC alleges that the jointventure agreements contained “similar provisions” andattaches one agreement as Exhibit C and provides generaldescriptions of the obligations of each party.The SACC alleges in 26 that the joint ventureagreements required Macro-Z Technology to open anoperating account for each joint venture and to deposit allpayments due to the joint ventures be deposited in theoperating account and pay all expenses incurred on thejoint venture protects to be paid from the operatingaccount with each withdrawal from the operating accountrequiring the signed approval of both venturers. Italleges in 28 that the joint venture agreements and thementor/protégé agreement between the parties required

Macro-Z Technology to keep all accounting andadministrative records for the joint ventures at Larkor’soffices and keep a duplicate set at its office.The SACC alleges in 30 that Macro-Z Technologybreached the joint venture agreements by, among otherthings: (1) creating false invoices and using them tocharge Larkor or a joint venture for work done by thecross-defendants or their affiliates; (2) causing Larkor ora joint venture to make dozens of payments to the crossdefendantsor their affiliates; and (3) withholding and/ormisappropriating profits due to Larkor under the jointventure agreements.This pleading is sufficient for Larkor to pass the pleadingstage.With regard to the second argument that a joint venturemay not sue its partner for breach of contract until adissolution/accounting of the joint venture is complete,this is a correct statement of the general rule. SeeCorrales v. Corrales (2011) 198 Cal.App.4th 221, 228,which cites Malott v. Seymour, supra, 101 Cal.App.2d245, 246 However, such dissolution and accounting arebeing sought by the cross-defendants themselves in thesecond amended complaint.Moreover, subdivisions (b)(1) and (3) of Corp. Code §16405 specifically states that “[a] partner may maintainan action against the partnership or another partner forlegal or equitable relief, with or without an accounting asto partnership business” to “[e]nforce the partner’s rightsunder the partnership agreement” and to “[e]nforce thepartner’s right and otherwise protect the interests of thepartner, including rights and interests arisingindependently of the partnership relationship.”The general demurrer of Zatica and Whitehead to thesecond cause of action for breach of fiduciary duty isoverruled. Although the moving cross-defendants claimthat the SACC does not allege the existence of anyfiduciary duty between them and Larkor, the SACC allegesin 34 that these cross-defendants performed “financial,bookkeeping, accounting and government reportingservices for Larkor and the joint ventures.” This issufficient to set forth the existence of a fiduciary dutyunder Wolf v. Superior Court (2003) 107 Cal.App.4th 25,30, which states that “[t]raditional examples of fiduciaryrelationships in the commercial context includetrustee/beneficiary, directors and majority shareholders ofa corporation, business partners, joint adventurers, andagent/principal. [Citations.]”The special demurrer of Macro-Z Technology to thesecond cause of action based on uncertainty isoverruled. Although the cross-defendants contend thatthis cause of action contains confusing allegationsregarding the dates agreements were entered into, thecause of action alleges that Larkor and Macro-ZTechnology entered into the mentor/protégé agreement in2003 and the joint venture agreements after 2008. (SeeSACC at 12, 22, and 35.)

The general demurrer of Macro-Z Technology, Zatica, andWhitehead to the third cause of action for fraud isoverruled. Although the moving papers contend that thecause of action is not pled with specificity and does notshow the elements of intent or reliance, this cause ofaction is based on allegations that the cross-defendantseither forged Landa’s signature on checks or theyinstructed employees to forge the signature. Moreoverthe employees and the checks are identified in theSACC. In addition, the SACC alleges that Larkor relied onMacro-Z Technology to provide the accounting services forthe joint venture and itself.The general demurrer of CJW to the fifth cause of actionfor accounting is sustained with leave to amend. The onlyallegation in this cause of action against CJW is that itentered into a joint venture with Larkor in September2009 to perform the RACON project. (See SACC at 55.)TENTATIVE RULING ON MOTION #2:The motion of cross-defendants Macro-Z Technology Co.,CJW Construction, Inc., Bryan Zatica and Carla Whiteheadis denied in its entirety.The motion seeks to strike 39, 44, and 50 in theirentirety as well as the requests for punitive damages inthe prayers to the second, third, and fourth causes ofaction for breach of fiduciary duty, fraud, andconversion. The cross-defendants contend that there areno facts in any of the three causes of action that cansupport claims for punitive damages.However, there are allegations in each of these causes ofaction that the cross-defendants created false invoices forwork that was not done and that they forged Landa’snames on checks totaling over $1.7 million. Theseallegations show intentional fraudulent conduct on thepart of the cross-defendants that can support the claimsfor punitive damages.The motion seeks to strike the request in the prayer foran award of attorneys’ fees on the ground that there is nocontractual or statutory basis for such anaward. However, the request specifically qualifies itselfby asking for such fees “as permitted by statute.” Thus, itis innocuous and not necessarily improper.3 2013-00660100Herman vs JP MorganChase BankTENTATIVE RULING:Defendant JP Morgan Chase’s demurrer to thecomplaint is overruled. Defendant is to file and serve ananswer within 10 days. Plaintiff is to give notice.1 st COA – Violation of B&P §17200: Plaintiff claimsthat he was told to default in order to be considered for amodification. However, Plaintiff argues HAMP did notrequire a borrower to default in order to be considered fora modification and Chase misrepresented this fact causinghim to default in July 2010. He incurred penalties, feesand interest connected to his mortgage, and ultimatelydenied a modification.

Under the unfair prong, for consumer cases,plaintiff must show the legislative policy, or any publicpolicy “tethered” to any specific constitutional, statutoryor regulatory provision, which was allegedly offended orviolated by defendant. See Bernardo v. PlannedParenthood Fed’n of Amer. (2004) 115 Cal.App.4th 322,353-354.Here, it appears that Plaintiff is tethering the claimto a misrepresentation of HAMP policies, but not an actualviolation of HAMP (for which there is no private right ofaction). Clearly, there is a public policy of notmisrepresenting to borrowers that they must default inorder to obtain a HAMP modification, and there aresufficient facts pled.Additionally, under the fraud prong, the term“fraudulent” as used in section 17200 does not refer tothe common law tort of fraud but only requires a showingthat members of the public are likely to be deceived.Unless the challenged conduct targets a particulardisadvantaged or vulnerable group, it is judged by theeffect it would have on a reasonable consumer. Puentesv. Wells Fargo Home Mortg., Inc. (2008) 160 Cal.App.4th638, 645.Here, Plaintiff has sufficiently pled that in order forhim to be considered for a modification that he wouldhave to be in default. This is sufficient to state a claimunder the fraud prong.Finally as for the unlawful prong, by proscribing“any unlawful” business practice, B&P §17200 “borrows”violations of other laws and treats them as unlawfulpractices that the UCL makes independently actionable.An unlawful business practice under Business andProfessions Code section 17200 is an act or practice,committed pursuant to business activity, that is at thesame time forbidden by law. Virtually any law -federal,state or local - can serve as a predicate for an actionunder Business and Professions Code section 17200. Halev. Sharp Healthcare (2010) 183 Cal. App. 4th 1373,1382-1383.Here, Plaintiff does not specifically state which lawswere violated.Defendant argues that its alleged conduct did notlead to Plaintiff’s default, relying on Jenkins v. JPMorganChase Bank, N.A. (2013) 216 Cal.App.4 th 497. However,in that case, the alleged wrongful acts by the foreclosingdefendants occurred after the plaintiff borrowerdefaulted. Here, the alleged wrongful acts by Defendantoccurred before Plaintiff defaulted based upon Defendant’smisrepresentations.The demurrer to this cause of action is overruled.2 nd COA – Fraud: Plaintiff claims that he was toldon 07/18/12 by Defendant to make one monthly paymenttoward both loans, but alleges the representation wasfalse because the single payment was insufficient to pay

his mortgages. This supposedly led to his default andinitiation of foreclosure proceedings by Defendant againsthim.“To establish a claim for fraudulentmisrepresentation, the plaintiff must prove: (1) thedefendant represented to the plaintiff that an importantfact was true; (2) that representation was false; (3) thedefendant knew that the representation was false whenthe defendant made it, or the defendant made therepresentation recklessly and without regard for its truth;(4) the defendant intended that the plaintiff rely on therepresentation; (5) the plaintiff reasonably relied on therepresentation; (6) the plaintiff was harmed; and, (7) theplaintiff's reliance on the defendant's representation was asubstantial factor in causing that harm to the plaintiff.Each element in a cause of action for fraud must befactually and specifically alleged. In a fraud claim againsta corporation, a plaintiff must allege the names of thepersons who made the misrepresentations, their authorityto speak for the corporation, to whom they spoke, whatthey said or wrote, and when it was said orwritten.” Perlas v. GMAC Mortg., LLC (2010) 187Cal.App.4th 429, 434.Here, the claim has been sufficiently pled. Herelied upon the representation by Chase in making thesingle payment that was insufficient, leading to theforeclosure proceedings. He has set forth the who, when,what and how to meet the heightened pleadingrequirements.The demurrer to this cause of action is overruled.3 rd COA – Unjust Enrichment: Some courtsconsider unjust enrichment as a separate cause ofaction. The elements of an unjust enrichment claim arethe “receipt of a benefit and [the] unjust retention of thebenefit at the expense of another.” Peterson v. CellcoPartnership (2008) 164 Cal.App.4th 1583, 1593.Here, Plaintiff alleges he was assessed extra fees,recording costs, legal expenses and other coststhroughout the modification process. Per the reasoningabove regarding the other claims, Plaintiff has sufficientlyset forth the representation leading to his default in orderto receive a modification may have been wrongful, andany fees and costs paid may constitute an unjustenrichment.The demurrer to this cause of action is overruled.4 th COA – IIED: “A cause of action for intentionalinfliction of emotional distress exists when there is ‘(1)extreme and outrageous conduct by the defendant withthe intention of causing, or reckless disregard of theprobability of causing, emotional distress; (2) theplaintiff’s suffering severe or extreme emotional distress;and (3) actual and proximate causation of the emotionaldistress by the defendant’s outrageous conduct.’ Adefendant’s conduct is ‘outrageous’ when it is so ‘extremeas to exceed all bounds of that usually tolerated in a

civilized community.’ And the defendant’s conduct mustbe ‘intended to inflict injury or engaged in with therealization that injury will result.’ ” Hughes v. Pair (2009)46 Cal.4 th 1035, 1050–1051.Misrepresentation to a borrower that adefault is required in order to be considered for amodification when such representation is false, ormisrepresenting the actual monthly amounts due, may beconsidered extreme and outrageous conduct as it wouldresult in the loss of Plaintiff’s home. Plaintiff suffered“anxiety, deep personal anguish, andembarrassment”. The demurrer to this cause of action isoverruled.Defendant’s RJN: Defendant argues that Plaintiffdefaulted on the second loan and that the NOD was as tothe second loan. This fact is disputed by Plaintiff andtherefore, judicial notice cannot be taken of the recordeddocuments. Therefore, the request for judicial notice ofthe recorded documents are denied since they are subjectto dispute. Herrera v. Deutsche Bank Nat. Trust Co.(2011) 196 Cal.App.4th 1366, 1369-1370.Plaintiff’s RJN: Plaintiff seeks judicial notice of theNOD (referring to the WaMu loan) and a letter fromChase. The NOD was not considered in the analysis forthe purpose set forth by Plaintiff, and the letter fromChase is not a document which the court may judiciallynotice. The request for judicial notice is denied.4 2013-00646096Alcalde Associates vsMontclair Pines AssociatesTENTATIVE RULING:Request for Judicial NoticeThe court will GRANT defendants’ request for judicialnotice as to Items 1 and 3 attached thereto. See Evid.Code §452(d). Defendants withdraw their request as toItem 2.The court will DENY the request for judicial notice as toItem 4. While the court can take judicial notice of its ownrecords, it cannot take judicial notice of the truth ofhearsay statements in the court files, including affidavits,testimony, or statements of fact. See People v. Harbolt,61 Cal.App.4 th 123, 126-127 (1997). Defendants requestjudicial notice of Item 4, a letter from defendant Dr.Howard Higholt to Ronald Soderling and James R. Biramdated 10/27/86, for the purpose of demonstrating thatDr. Higholt had “no quarrel” with paying fees to asupervisor. Dr. Higholt’s statements in the letter are outof-courtstatements offered to prove the truth of thematter asserted.Defendants argue that the letter is referenced andmischaracterized in the First Amended Complaint (“FAC”),but that is not actually the case. Plaintiffs allege that Dr.Higholt had no quarrel with their carried interestpayments under the TIC Agreement. (See FAC, 67,74.) The letter states that Dr. Higholt had “no quarrelwith your fees as set out in the co-tenancyagreement..” (RJN, Item 4.) The court sees no innateinconsistency between the statement in the document andthe allegations referencing the document in the FAC, and

sees no need to take judicial notice of the hearsaydocument for such purpose.1 st COA - Breach of Fiduciary Duty (Soderling Trust v.Higholt Defendants)The demurrer will be OVERRULED.“...[W]hen a partnership is created, the parties acquirerights and duties based on a fiduciary relationship. Apartner is bound to act in the highest good faith to hiscopartner and may not obtain any advantage over him inthe partnership affairs by the slightest misrepresentationor concealment.” Tri-Growth Centre City, Ltd. v. Silldorf,Burdman, Duignan & Eisenberg, 216 Cal.App.3d 1139,1150 (1989). MPA is a California limitedpartnership. (FAC, 7.) Plaintiff Soderling Trust assertsthat it owns a minority interest in MPA, and that theHigholt Defendants own a majority interest. (FAC,100.) Thus, plaintiff and defendants are partners andowe one another a fiduciary duty.Defendants point to plaintiffs’ allegation that the 25%“promotional share” of MPA originally given to Biram andSoderling was eliminated upon signing of the TICAgreement, in order to argue that the Soderling Trust wasno longer a partner as of 1986. (See FAC, 39.) First,the allegation is that Soderling and Biram gave up theirpromotional share in MPA. The allegation says nothingabout the Soderling Trust. Exhibit 1 to the FAC indicatesthat the Soderling Trust is currently a general partnerwith a 10.86% interest in MPA. And indeed, if theSoderling Trust was not a partner in MPA at the time thatthe takeover occurred, there would have been no need fordefendants to remove them as partners. Admittedly, it isnot entirely clear who owned what percentage of MPA atany given time. But these are factual issues that theparties must clarify in discovery.Plaintiff asserts that defendants colluded with codefendantsConnolly and Wertz to remove Soderling Trustas a partner, and institute reforms that detrimentallyimpacted Soderling & Biram’s interests. Even though theremoval of LCM may have benefited the other MPApartners, this does not necessarily mean that plaintiff wasnot impacted differently.3 rd COA – Breach of Fiduciary Duty (Alcalde & 885 v.Higholt Defendants)The demurrer will be OVERRULED.“...[T]he association of two or more persons to carry onas coowners a business for profit forms a partnership,whether or not the persons intend to form apartnership.” See Corp. Code §16202(a). For purposesof Section 16202, a “person” includes a partnership orlimited partnership, which would encompass Alcalde, 885,and MPA. See Corp. Code §16101(13). Tenancy incommon “does not by itself establish a partnership, evenif the coowners share profits made by the use of theproperty.” Id. at subd.(c)(1). But, neither does thetaking of title to land as tenants in common “necessarilypreclude the existence of a partnership between them as

to that property.” See Parmelee v. Brainard, 62Cal.App.2d 182, 184 (1944).Here, the TIC Agreement provides that the parties are totake title to the Lakeside Property as tenants in common,and that each are to receive a certain distribution of thenet cash receipts. (FAC, Ex. 4, p. 1 & 6.) However, theTIC Agreement also states:Montclair, Alcalde and 885 desire to enter intocertain contractual relations, one with the other, inorder to protect their respective interests, to grantcertain rights in the sale and purchase of theirrespective interest, to aid in the management of theIndustrial Park, and to establish a method formaking decisions respecting the Industrial Park.(FAC, Ex. 4, B.) This language suggests that the parties’intent was not simply to passively share profits receivedfrom the Property. The language also suggests a desireto collaborate on a structure by which the parties couldoperate and manage the Property. Furthermore, plaintiffsallege that the parties filed tax returns as apartnership. (FAC, 117.) Defendants dispute thisallegation, but that is a factual issue that cannot beresolved on demurrer.5 th COA – Breach of Contract (LCM v. MPA)The demurrer will be OVERRULED.Plaintiff Lakeside Center Management, Inc. (“LCM”)alleges that in 2001, it was assigned the right to fullyearned carried interest payments under Section 6 of theTIC Agreement. (FAC, 50.) This assignment wasapparently approved by the various tenants in common onor about 03/28/01. (See FAC, Ex. 9.) Under Section 6 ofthe TIC Agreement, such payments were to continue “forso long as any one of the Owners holds an ownershipinterest in the” Lakeside Property. (FAC, Ex. 4, p.4.) There is no allegation that Alcalde, 885, and MPA nolonger hold an ownership interest in theProperty. However, upon terminating LCM’s supervisorycontract in February 2013, LCM alleges that defendantsalso repudiated their right to the carried interestpayments. (FAC, 138.) LCM has thus alleged (1) rightto compensation under a contract, (2) performance of allconditions required for the compensation, (3) breach ofthe contractual obligation, and (4) damages in theamount of the payments not made since the repudiation.6 th COA – Breach of Implied Covenant of Good Faith andFair Dealing (LCM v. MPA)The demurrer will be OVERRULED.“There is an implied covenant of good faith and fairdealing in every contract that neither party will doanything which will injure the right of the other to receivethe benefits of the agreement.” Comunale v. Traders &General Ins. Co., 50 Cal.2d 654, 658 (1958). MPAcontends that LCM has not alleged a breach beyond thebreach of contractual obligations. But this isincorrect. The Fifth Cause of Action alleges that MPA

eached Section 6 of the TIC Agreement by repudiatingLCM’s right to carried interest payments, which had beenfully earned by Soderling & Biram, and assigned toLCM. The Sixth Cause of Action alleges that MPA and itscontrolling members colluded with Connolly, Wertz &Company to replace LCM as supervisor in order to evadeits obligations to make carried interest payments underthe TIC Agreement. This strategy is alleged to have beenpursued in bad faith, and with the purpose of deprivingLCM of its rights under the Agreement.10 th COA – Conversion (LCM v. MPA & Dr. Higholt)The demurrer will be SUSTAINED with leave to amend.“‘Money cannot be the subject of a cause of action forconversion unless there is a specific, identifiable suminvolved, such as where an agent accepts a sum of moneyto be paid to another and fails to make the payment.’ A‘generalized claim for money [is] not actionable asconversion.’ ” PCO, Inc. v. Christensen, Miller, Fink,Jacobs, Glaser, Weil & Shapiro, LLP 150 Cal.App.4th 384,395 (2007). “[A] mere contractual right of payment,without more, will not suffice.” See Farmers Ins.Exchange v. Zerin, 53 Cal.App.4 th 445, 452(1997). Rather, such right of payment only establishesthe measure of damages for breach of contract, unlessthe agreement establishes title to, or a lien upon, themonies involved. See id. (citing Imperial Valley Co. v.Globe Grain and Milling Co., 187 Cal. 352, 353-354(1921)).While it may be possible for LCM at some later point toidentify a specific sum of money converted, the allegedconversion was as to monies for which LCM alleges it hada contractual right of payment. The TIC Agreementestablished no lien or other right to such funds, and thus,the monies withheld should be the measure of damagesfor breach of contract.10 th (11 th ) COA – PartitionThe demurrer will be OVERRULED.The court’s ruling on plaintiffs’ motion for preliminaryinjunction is not to be taken as a disposition of thepartition cause of action on the merits. As stated in theruling, injunctive relief is available in a partition action toprevent waste or protect the property during thependency of the action. See Code Civ. Proc.§872.130(a). The court did not make a ruling onplaintiffs’ likelihood of succeeding on the merits.Plaintiff has the right to partition “unless barred by validwaiver.” See Code Civ. Proc. §872.710(a). An agreementgiving rights of first refusal to the other tenants mayimply waiver, although it does not amount to a permanentwaiver. See LEG Investments v. Boxler, 183 Cal.App.4 th484, 497 (2010). In order to avoid the impact of a “rightof first refusal” provision, the plaintiff seeking partitionmust first show that it complied with the provision. Ibid.Here, the TIC Agreement provides that “[n]o owner maysell or transfer all or any portion of its ownership interest

in the Industrial Park” without first delivering notice inwriting to the other owners about the price, terms, andconditions of the proposed sale and the identity of thetransferee. (FAC, Ex. 4, 5.) At that point, the nonsellingowners have 30 days to reject or accept theoffer. (Ibid.) This provision gives MPA a right of firstrefusal over Alcalde’s and 885’s ability to sell or transfertheir interest, and modifies plaintiffs’ right topartition. See Schwartz v. Shapiro, 229 Cal.App.2d 238,253 (1964).Plaintiffs do not allege that they complied with thisprovision. Rather, they contend that MPA does not havethe financial resources to purchase plaintiffs’ interests inthe Property, and that it does not have the unanimousconsent of its own partnership to finance anypurchase. (FAC, 189.) The court is unaware of – andplaintiffs do not identify any – authority that would permita party to avoid implied waiver of the right to partition byalleging futility. However, the court also acknowledgesthat “[t]he law neither does nor requires idle acts.” SeeCiv. Code §3532. Plaintiffs allege facts indicating thatMPA is unable to purchase their interests in the Property,either with liquid cash or with financing. Defendants maytake issue with these facts, but the court must acceptthese facts for purposes of demurrer.12 th COA – Declaratory Relief (LCM v. MPA)The demurrer will be OVERRULED.“Any person interested under a written instrument....orunder a contract...may, in cases of actual controversyrelating to the legal rights and duties of the respectiveparties” bring a declaratory relief action, “including adetermination of any question of construction or validityarising under the instrument or contract.” See Code Civ.Proc. §1061. Here, LCM alleges that it was assigned theright to carried interest payments under Section 6 of theTIC Agreement, but that MPA has repudiated thatright. LCM desires that the court make a declaration thatit is still entitled to carried interest payments even thoughit no longer functions as supervisor.MPA contends that this cause of action is repetitive of thebreach of contract claims, but it is not. Here, LCM wishesthe court to construe the TIC Agreement to permit carriedinterest payments to continue despite a change insupervisor. There is an actual, justiciable controversyalleged.TENTATIVE RULING MOTION TO STRIKE:Item 1The request to strike the paragraphs cited under Item 1 inthe Motion will be DENIED. The use of the word“repudiate” is not improper.Item 2The request to strike the paragraphs cited under Item 2 inthe Motion will be DENIED. The court will overruledefendants’ demurrers to the 3 rd COA, which alleges apartnership existed between the three tenants incommon. Thus, this item is moot.

Item 3The request to strike the paragraphs cited under Item 3 inthe Motion will be DENIED. There is nothing improperabout these allegations. Even if the exhibits attached tothe FAC do not mention “promote” fees or “carriedinterest” payments, this does not preclude them frombeing characterized as such.Item 4The request to strike paragraphs cited under Item 4 in theMotion will be DENIED. Paragraph G-9 of the “GeneralProvisions to Certificate and Articles of Limited Partnershipof Montclair Pines Associates” does not appear to precludeSoderling & Biram from possessing an interest orbenefiting from an independent venture. (See FAC, Ex.2.) In fact, this paragraph appears to specifically permitthem to hold such interests. Thus, there is nothingcontradictory about these allegations.Item 5The request to strike paragraphs cited under Item 5 in theMotion will be DENIED. None of these allegations areimproper or plainly false.Item 6The request to strike paragraphs cited under Item 6 in theMotion is DENIED. There is nothing improper or plainlyfalse about these allegations.Item 7The request to strike paragraphs cited under Item 7 in theMotion is DENIED. As stated above, paragraph G-9 of theMPA partnership agreement does not appear to contradictthe allegations made in the FAC. There is nothingimproper or plainly false about the allegations.Item 8The request to strike paragraphs cited under Item 8 in theMotion is DENIED. Plaintiffs are not required toauthenticate the factual allegations in their pleading.Item 9The request to strike paragraphs cited under Item 9 in theMotion is DENIED. The paragraphs cited seek punitivedamages in connection with the 1 st , 3 rd , and 10 th Causesof Action. The court will sustain defendants’ demurrer tothe 10 th Cause of Action, so the motion to strike is mootas to paragraph 181.Punitive damages are recoverable when defendantsengage in malicious, fraudulent, or oppressiveconduct. See Civ. Code §3294(a). “Malice” includes“conduct which is intended by the defendant to causeinjury to the plaintiff.” Id. at subd.(c)(1). Plaintiffs allegethat Dr. Higholt colluded with Connolly, Wertz & Companyto deprive Soderling & Biram of their general partnerstatus, and to deprive them of the benefits received underthe TIC arrangement. At relevant times, Dr. Higholt wasapparently acting as a general partner of MPA, and was

purporting to be conducting partnership business, andthus, his wrongful acts bind the partnership. See Corp.Code §15904.03. Plaintiff alleges conduct intended tocause injury, and paragraphs 108 and 123, and item 2 inthe prayer for relief, will not be stricken.Item 10The request to strike paragraphs cited in Item 10 of theMotion is DENIED. The court has already determined thatthe 10/27/86 letter from Dr. Higholt is not inconsistentwith the allegations made in paragraphs 67 and 74 of theFAC.Items 11-13The requests to strike exhibits cited in Items 11 through13 of the Motion are DENIED. These exhibits are notimproper or plainly false. Defendants cite no authority forstriking these documents from the pleadings.5 2013-00644154Leal vs Wells Fargo Bank,A National AssociationTENTATIVE RULING:Defendants Wells Fargo and Bank of America’sdemurrers to the 2 nd and 4 th causes of action of the FirstAmended Complaint are sustained without leave toamend. The demurrer to the 3 rd cause of action isoverruled. The unopposed request for judicial notice isgranted. Defendants are to file and serve an answerwithin 10 days. Moving parties are to give notice.Tender: This action is not seeking to set aside theforeclosure sale, but rather, Plaintiff is seeking to enforcethe settlement agreement for a good faith modificationreview. This was already addressed in the priordemurrer. The tender rule does not come into play here.2 nd COA – Negligence: There is currently noCalifornia appellate or Supreme Court opinion providingguidance on the issue, and the federal courts are split asto whether a duty of care exists with respect to loanmodifications. However, the cases usually refer to a sixparttest, known as the Biakanja factors to determinewhether a financial institution owes a duty of care: (1) theextent to which the transaction was intended to affect theplaintiff, (2) the foreseeability of harm to the plaintiff, (3)the degree of certainty that the plaintiff suffered injury,(4) the closeness of the connection between thedefendant's conduct and the injury suffered, (5) the moralblame attached to the defendant's conduct, and (6) thepolicy of preventing future harm. Jolley v. Chase HomeFinance, LLC (2013) 213 Cal.App.4 th 872, 899.This claim seems to be alleging a negligent breachof contract claim. “Conduct amounting to a breach ofcontract becomes tortious only when it also violates aduty independent of the contract arising from principles oftort law.” Erlich v. Menezes (1999) 21 Cal.4th 543,551. However, Defendants do not argue this but insteadfruitlessly aver that federal courts have held modificationsto be within the scope of lending money. Nevertheless,this claim amounts to nothing more than a negligentbreach of contract and Plaintiff has not set forth any factsthat Defendant breached any duty independent of the

contract. Defendant considered Plaintiff for a modificationas a term of the settlement agreement. The demurrer tothis cause of action is sustained without leave to amend.3 rd COAs – Intentional Misrepresentation: “Toestablish a claim for fraudulent misrepresentation, theplaintiff must prove: (1) the defendant represented to theplaintiff that an important fact was true; (2) thatrepresentation was false; (3) the defendant knew that therepresentation was false when the defendant made it, orthe defendant made the representation recklessly andwithout regard for its truth; (4) the defendant intendedthat the plaintiff rely on the representation; (5) theplaintiff reasonably relied on the representation; (6) theplaintiff was harmed; and, (7) the plaintiff's reliance onthe defendant's representation was a substantial factor incausing that harm to the plaintiff. Each element in a causeof action for fraud must be factually and specificallyalleged. In a fraud claim against a corporation, a plaintiffmust allege the names of the persons who made themisrepresentations, their authority to speak for thecorporation, to whom they spoke, what they said orwrote, and when it was said or written.” Perlas v. GMACMortg., LLC (2010) 187 Cal.App.4th 429, 434 (citationsand quotations omitted).Here, Plaintiff claims he was falsely promised agood faith loan modification in exchange for his dismissalof the prior lawsuit. They “superficially” complied with thesettlement by giving a loan modification review with nochance to succeed and miscalculated his numbers. Thereare damages pled since Plaintiff dismissed hislawsuit. There are sufficient facts and the demurrer tothis cause of action is overruled.4 th COA – Negligent Misrepresentation: “Theelements of negligent misrepresentation are (1) themisrepresentation of a past or existing material fact, (2)without reasonable ground for believing it to be true, (3)with intent to induce another's reliance on the factmisrepresented, (4) justifiable reliance on themisrepresentation, and (5) resulting damage. While thereis some conflict in the case law discussing the precisedegree of particularity required in the pleading of a claimfor negligent misrepresentation, there is a consensus thatthe causal elements, particularly the allegations ofreliance, must be specifically pleaded.” National UnionFire Ins. Co. of Pittsburgh, PA v. Cambridge IntegratedServices Group, Inc. (2009) 171 Cal.App.4th 35, 50(citations and quotations omitted).“[W]e decline to establish a new type of actionabledeceit: the negligent false promise.” Tarmann v. StateFarm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159.Here, Plaintiff is essentially alleging a negligentfalse promise since the misrepresentation is regardingfuture conduct and not a past or existing materialfact. The demurrer to this cause of action is sustainedwithout leave to amend.RJN: The unopposed request for judicial notice of

ecorded documents (DOT, ADOT, SOT, NOD, NOTS,ADOT and TDUS) is granted (Evid. Code §452(h)).8 2013-00662041Elliott vs Visionship, Inc aNevada Corporation9 2012-00572731Aguila vs MoralesTENTATIVE RULING:Defendants’ Demurrer is moot. Plaintiff filed a FirstAmended Complaint on 9-17-13. “Any pleading may beamended once by the party of course, and without costs,at any time before the answer or demurrer is filed, orafter demurrer and before the trial of the issue of lawthereon ….” (CCP 472) As plaintiff exercised his right toamend, the pending demurrer addresses a pleading whichhas been superseded and it is thus moot.TENTATIVE RULING:Plaintiff Henry Aguila’s Motion to Compel FurtherDeposition Responses of David Morales Jr. and to Compelthe Deposition of Thomas J. Tedesco is DENIED.Plaintiff has improperly brought two motions as one. Asto plaintiff’s first motion to compel deposition responsesfrom defendant David Morales, Jr., the request isDENIED. Plaintiff filed his motion more than 60 days from05/22/13, the date of completion of the record of thedeposition. See Code Civ. Proc. §2025.480(b). Inaddition, plaintiff did not lodge a certified copy of thetranscript with the court in compliance with Code of CivilProcedure §2025.480(h). And he did not file a separatestatement as required by California Rule of Court3.1345(a)(4).Plaintiff’s request to compel the deposition of non-partyThomas Tedesco is also DENIED. Because Mr. Tedesco isnot a party to this case, the court cannot compel hisattendance unless he was properly served with a validsubpoena. Plaintiff has not demonstrated to the courtthat he properly subpoenaed Mr. Tedesco.The court will award sanctions to defendant in the amountof $1600, payable by plaintiff within 30 days. See CodeCiv. Proc. §2025.480(j).10 2013-00625072Escobar vs ViramontesTENTATIVE RULING:Motion Nos. 1-4:Plaintiffs Oscar Escobar and Alicia Michelle Gonzalez donot oppose defendants’ motions to compel responses toForm Interrogatories – Set One, Special Interrogatories –Set One, and Demand for Production of Documents – SetOne. Thus, the court will order plaintiffs to provideresponses to said discovery, without objections, within 10days of the date of this order. See Code Civ. Proc.§§2030.290(a) & 2031.300(a.Since plaintiffs have not filed an opposition, the court willaward a total of $495 in sanctions, payable by plaintiffswithin 30 days. See Code Civ. Proc.§§2030.290(c) &2031.300(c).

12 2010-00397873Lopez vs SuperiorAttorney Service LLC14 2012-00609055Ahmed vs JP MorganChase Bank NAPlaintiffs’ Motion for Assignment is off calendar inlight of the parties’ agreement/settlement, which includesa provision that plaintiffs will not execute on the judgmentso long as defendant makes timely payments.TENTATIVE RULING:Defendants JPMorgan Chase Bank and CaliforniaReconveyance Company’s motion for judgment on thepleadings is granted as to the 5 th and 9 th causes ofaction with 20 days leave to amend, and denied as tothe 1 st – 4 th and 6 th causes of action. Moving parties areto give notice.Tender: A borrower attacking a voidable sale mustdo equity by tendering the amount owing under theloan. The tender rule applies to all causes of actionimplicitly integrated with the sale. Arnolds ManagementCorp. v. Eischen (1984) 158 Cal.App.3d 575, 579. Thereare, however, at least four exceptions to the tenderrequirement: “First, if the borrower's action attacks thevalidity of the underlying debt, a tender is not requiredsince it would constitute an affirmation of the debt ...Second, a tender will not be required when the personwho seeks to set aside the trustee's sale has a counterclaimor set-off against the beneficiary ... Third, a tendermay not be required where it would be inequitable toimpose such a condition on the party challenging the sale... Fourth, no tender will be required when the trustor isnot required to rely on equity to attack the deed becausethe trustee's deed is void on its face.” Lona v. Citibank,N.A. (2011) 202 Cal.App.4th 89, 112–113, 134 (citationsomitted).Here, Plaintiff argues that she had entered into atrial period plan (“TPP”) and made payments based uponthe TPP, and after the three month trial was over,continued making $7,000 monthly payments. However,no such facts are pled in the compliant regardingthis. Moreover, the tender rule does not refer toamounts paid, rather, it refers to the defaultedborrower’s payment of the full of amount of thedebt. Lona at 112. However, fraud or deceit in theforeclosure process is ground to set aside thesale. South Bay Bldg. Enterprises, Inc. v. Riviera Lend–Lease, Inc. (1999) 72 Cal.App.4th 1111, 1121. Aforeclosure sale may also be set aside where there hasbeen a mistake of such magnitude “that to allow it tostand would be inequitable to purchaser andparties.” See Bank of America Nat'l Trust & Sav. Ass'nv. Reidy (1940) 15 Cal.2d 243, 248.Here, it is being argued that Plaintiff was told shehad 35 days from the 10/16/12 letter to reinstate herloan, and therefore, it may be inequitable in thisinstance to require her to tender the amount due whenshe was foreclosed upon prior to the noticed deadline forreinstatement. For purposes of this motion, the tenderrule does not bar this action. However, the analysis tothe quiet title action regarding the tender rule differs,see infra.1 st COA – Fraud: “To establish a claim for

fraudulent misrepresentation, the plaintiff must prove: (1)the defendant represented to the plaintiff that animportant fact was true; (2) that representation wasfalse; (3) the defendant knew that the representation wasfalse when the defendant made it, or the defendant madethe representation recklessly and without regard for itstruth; (4) the defendant intended that the plaintiff rely onthe representation; (5) the plaintiff reasonably relied onthe representation; (6) the plaintiff was harmed; and, (7)the plaintiff's reliance on the defendant's representationwas a substantial factor in causing that harm to theplaintiff. Each element in a cause of action for fraud mustbe factually and specifically alleged. In a fraud claimagainst a corporation, a plaintiff must allege the names ofthe persons who made the misrepresentations, theirauthority to speak for the corporation, to whom theyspoke, what they said or wrote, and when it was said orwritten.” Perlas v. GMAC Mortg., LLC (2010) 187Cal.App.4th 429, 434 (citations and quotations omitted).Here, Plaintiff alleges that Chase and CRC maderepeated statements to her that she would not beforeclosed upon on 10/19/12, which was furthersupported by their 10/16/12 letter. Frontier called onher behalf to confirm on October 15, 16, 17 and18. Names of the representatives are set forth in thecomplaint (see 12-18). Plaintiff states she relied onthose statements and refrained from stopping the sale,and the misrepresentations were either madeintentionally or recklessly as it was part of Defendant’spractice to deceive borrowers. She was damages as herhouse was sold.Defendants argue the scienter (knowledge offalsity) element is pled in conclusory fashion. However,considering the circumstances and repeated assurances,it may be reasonable to infer the representations weremade, at least, recklessly.The motion for judgment on the pleadings isdenied as to this cause of action. .2 nd COA – Negligence: The basic elements of anegligence action are: (1) The defendant had a legal dutyto conform to a standard of conduct to protect theplaintiff, (2) the defendant failed to meet this standard ofconduct, (3) the defendant’s failure was the proximate orlegal cause of the resulting injury, and (4) the plaintiffwas damaged. Ladd v. County of San Mateo (1996) 12Cal.4th 913, 917.Defendants argue that this claim arose out of acontract – the DOT and loan. However, there is no termof the DOT or loan that discusses the situation before thecourt regarding postponements of foreclosure sales. Theeconomic loss doctrine does not apply here. This cause ofaction concerns Defendants’ misrepresentation of factregarding the sale date. Defendants aver that they hadno duty as a financial institution. However, thepostponement of the sale did not involve originating aloan as a “mere lender of money.” The cases cited to byDefendants are inapplicable. As for damages, although

Plaintiff supposedly had not paid her mortgage since2009, she was still given the option to reinstate theloan. Sufficient facts have been pled. The motion forjudgment on the pleadings is denied as to this cause ofaction. .3 rd COA – Wrongful Foreclosure: For the reasonsstated above, the motion for judgment on the pleadingsis denied as to this cause of action. .4 th COA – Violation of B&P §17200: There aresufficient facts alleged to state a violation under the“fraudulent prong”: The term “fraudulent” as used insection 17200 does not refer to the common law tort offraud but only requires a showing that members of thepublic are likely to be deceived. Unless the challengedconduct targets a particular disadvantaged or vulnerablegroup, it is judged by the effect it would have on areasonable consumer. Puentes v. Wells Fargo HomeMortg., Inc. (2008) 160 Cal.App.4th 638, 645. AlthoughPlaintiff was already in default, she had the option toreinstate the loan but the property was sold despiterepresentations the sale was postponed. She hasstanding under the statute (B&P §17204). The motionfor judgment on the pleadings is denied as to this causeof action.5 th COA – Breach of GFFD: In order to state acause of action for Breach of the Implied Covenant ofGood Faith and Fair Dealing, a valid contract between theparties must be alleged. The implied covenant cannot beextended to create obligations not contemplated by thecontract. Racine & Laramie v. Dept. of Parks andRecreation (1992) 11 Cal. App. 4 th 1026, 1031-32. “There is an implied covenant of good faith and fairdealing in every contract that neither party will doanything which will injure the right of the other to receivethe benefits of the agreement.” Comunale v. Traders &General Ins. Co. (1958) 50 Cal.2d 654, 658.Here, Plaintiff has not set forth any term in theDOT or promissory note that wasbreached. Additionally, Plaintiff was already in defaultand Plaintiff’s claim is an improper attempt to createobligations beyond the “contract”. The motion forjudgment on the pleadings is granted as to this cause ofaction with leave to amend.6 th COA – Set Aside Trustee’s Sale: For thereasons already stated above, the motion for judgmenton the pleadings is denied as to this cause of action.9 th COA – Quiet Title: To assert a cause of action toquiet title, the complaint must be verified and meet theother pleading requirements set forth in CCP §761.020:(1) a legal description of the property and street address;(2) title of plaintiff and basis of title; (3) adverse claims totitle of plaintiff; (4) date as of which determination issought; and (5) a prayer for determination of title ofplaintiff against adverse claims. A party cannot quiet titlewithout discharging his debt. Aguilar v. Bocci (1974) 39Cal.App.3d 475, 477.

Here, Plaintiff admits the complaint is notverified. Additionally, tender has not been alleged as tothis claim. One cannot expect to own title free and clearwithout “discharging” the debt. The motion for judgmenton the pleadings is granted as to this cause of action withleave to amend.15 2012-00593867Marquez vs OrangeCounty Sheriff’sDepartmentRJN: The unopposed request for judicial notice ofthe recorded documents and the Purchase andAssumption Agreement between the FDIC and Chase isgranted (Evid. Code §452(h)).TENTATIVE RULING:Defendant’s Motion for Summary Judgment andAdjudication Requests Nos. 1-5 are denied. Request forAdjudication No. 6, as to the 6 th cause of action fornegligent hiring, training, and retention, is granted.Defendant’s Objections: Objection 1 issustained. Objection 2 is overruled.Issue 1 – Defendant’s actions were reasonable: Asa preliminary matter, the court notes that Issue 1 is not aproper issue for adjudication. CCP 437c(f)(1) limits thematters which may be summarily adjudicated. A partymay seek adjudication of a cause of action, an affirmativedefense, a claim for damages, or an issue of duty. Issuesof reasonableness are not covered. For this reason alone,Issue 1 must be denied.In addition, there is a triable issue of fact as towhether defendants’ actions were reasonable. The courtanalyzes an officer’s use of force under thereasonableness standard of the Fourth Amendment. “Thequestion is whether a peace officer's actions wereobjectively reasonable based on the facts andcircumstances confronting the peace officer.” (Brown v.Ransweiler (2009) 171 Cal.App.4th 516, 527.) The test ishighly deferential to the police officer's need to protecthimself and others. The reasonableness of a particularuse of force is judged from the perspective of areasonable officer on the scene, not from the perspectiveof 20/20 hindsight. The court looks at whether theofficer’s actions were “objectively reasonable” in light ofthe circumstances. And, the trier of a trier of fact takesinto account that peace officers often must make splitsecondjudgments concerning the amount of forceneeded. (Id. at 527-528.)The encounter between plaintiff and Deputy Agoliaresulted in Agolia’s use of his taser, which plaintiffcontends was an unreasonable use of force. Agoliastates that after he ordered plaintiff and Gunther to sitdown, plaintiff pushed Gunther and approached thedeputy again. Agolia states: “I ordered Marquez to stop,but he charged me and I deployed mytaser.” (Declaration of Agolia; 6) Plaintiff, however,stated at his deposition that after he told the deputy, in a“normal tone” that Schneider was fine, that she did notneed their help, and that “you guys can do,” Agolia askedhim to come over and sit down. Plaintiff asked the deputywhy, and the deputy did not answer. Plaintiff says he

then “went to go down where he told me to and hetasered me.” (Deposition of Plaintiff; RT 128) Plaintiffsaid was not sitting as he was tasered, he just took 1maybe 2 steps and was tasered.Even assuming, as argued by defendant, thatdefendant had reason to detain and arrest plaintiff, it isstill possible that the use of the taser constitutedunreasonable force under plaintiff’s version ofevents. Plaintiff’s testimony creates a triable issue of fact[UMF No. 25] even though plaintiff’s testimony iscontradicted by both Agolia and Gunther as the courtcannot consider credibility in conjunction with a motion forsummary judgment or adjudication.“The trial court may not weigh the evidence in themanner of a factfinder to determine whose versionis more likely true. (Citation.) Nor may the trialcourt grant summary judgment based on thecourt's evaluation of credibility. (Citation.) Nor maythe trial court grant summary judgment for adefendant based simply on its opinion thatplaintiff's claims are ‘implausible,’ if a reasonablefactfinder could find for plaintiff on the evidencepresented. (Citation.) The court must considernot only the bare evidence, but also the reasonableinferences deducible from the evidence (citation),and determine whether the evidence is sufficient tosupport a potential judgment in favor of theopposing party.” (Binder v. Aetna Life Ins. Co.(1999) 75 Cal.App.4th 832, 840-841, 89Cal.Rptr.2d 540, 544.)Issue 1 thus fails procedurally and on themerits.Issue 2 – Plaintiff’s 1 st cause of action for CC 52.1fails because plaintiff’s exercise or enjoyment of his rightswas not interfered with by way of threats, intimidation, orcoercion or attempts thereof. CC 52.1 provides:“(a) If a person or persons, whether or not actingunder color of law, interferes by threats,intimidation, or coercion, or attempts to interfereby threats, intimidation, or coercion, with theexercise or enjoyment by any individual orindividuals of rights secured by the Constitution orlaws of the United States, or of the rights securedby the Constitution or laws of this state, theAttorney General, or any district attorney or cityattorney may bring a civil action ….” (CC 52.1(a))CC 52.1(b) creates a private right of action under§52(a). The essence of a violation of this section is thatthe defendant, by an improper means (threats,intimidation, coercion) tried to or did prevent the plaintifffrom doing something he had a right to do or forced theplaintiff to do something the plaintiff was not required todo. (Shoyoye v. County of Los Angeles (2012) 203Cal.App.4th 947, 955-956.) Defendant contends thatthis cause of action fails as there were no threats,

intimidation, or coercion. Defendant further contendsthere was no interference with a constitutional right.In Shoyoye, the court found a violation of CC 52.1was not shown where a defendant was wrongfullydetained in jail. The defendant had initially been legallydetained but was “over-detained” for 16 days as theresult of a clerical error. The court found thosecircumstances were not sufficient. “[W]here coercion isinherent in the constitutional violation alleged … thestatutory requirements of ‘threats, intimidation, orcoercion’ is not met. The statute requires a showing ofcoercion independent from the coercion inherent in thewrongful detention itself.” (Id. at 959.)Plaintiff counters with Bender v. County of LosAngeles (2013) 217 Cal.App.4th 968, in which the courtfound that allegations of an illegal arrest combined withallegations of the beating and pepper spraying of anunresisting arrestee constituted violations of §52.1. InBender, the evidence at trial showed the plaintiff wasarrested for no good reason and then beaten and peppersprayed even though he was not resisting. He was alsothe subject of racial slurs. Paramedics at the scene saidthe plaintiff should be taken to the hospital but theofficers refused. The Bender court affirmed the verdict infavor of the plaintiff noting that it did not need to decide ifexcessive force alone or an illegal arrest alone could everconstitute a violation of the Bane Act as it was concludingthat the combination of the two could. (Id. at 978.)Defendant contends that Bender does not applybecause it is clear the arrest was not illegal. However,even assuming that is true, it would appear that use ofexcessive force (a taser) could constitute intimidation orcoercion. In addition, there is a material fact indispute. UMF No. 48, that plaintiff was tased for“charging an officer” is disputed by plaintiff, who claimsnot to have charged.Issue 3: Plaintiff’s 2 nd cause of action for assaultand battery fails because the actions of defendant’sdeputies were reasonable: As with Issue 1, there is adispute as to whether plaintiff charged the officer - whichis the officer’s justification for use of the taser. Defendantalso asserts plaintiff’s assault and battery cause of actionfails because plaintiff’s’ conviction for violation of PenalCode §148(a) [willful resisting, delaying, or obstructing apeace officer] prevents plaintiff from arguing that he didnothing to resist, or obstruct the officer prior to the tasingas that would be inconsistent with his conviction. (Yountv. City of Sacramento (2008) 43 Cal.4th 471.)In Yount, the plaintiff tangled with police whileintoxicated. The plaintiff had no recollection of the eventsof his encounter with the police. During a lengthystruggle, an officer meant to taser the subject. However,the officer grabbed his gun by mistake and shot the maninstead. The plaintiff pleaded no contest to violatingPenal Code §148(a) and the court had no information onjust what particular acts in the lengthy struggle were thebasis for the conviction. In a bifurcated trial, the

defendant argued plaintiff’s §1983 and assault/batteryclaims were barred because they constituted an impropercollateral attack on the plaintiff’s prior criminalconviction. The court found that the prior convictionbarred any claim by plaintiff that the officers were notentitled to use any force as the plaintiff’s resistancejustified the use of force. However, the court found thatthe plaintiff’s conviction did not bar his claims challengingthe use of deadly force.Yount is distinguishable in that it was not decidedon summary judgment. The court relied on the testimonyof 7 witnesses as well, as the bare record of the criminalcase, in impliedly finding the criminal convictionencompassed the plaintiff’s resistance up until the time hewas shot. (Id. at 895-896.) In addition, Yount indicatesthat if a defendant resists and the officers respond withexcessive force, the initial resistance of the defendantcould give rise to criminal liability and the excessive forceof the officers could give rise to civil liability. (Id. at 799-800.) The disputed facts here with regard to whetherdefendant charged Deputy Agolia, the basis asserted foruse of the taser, raise such a possibility here.Issue 4: Plaintiff’s 3 rd cause of action for IIED failsbecause the conduct of defendant’s deputies was notoutrageous. The elements of a cause of action for IIEDare: (1) extreme and outrageous conduct by thedefendant with the intention of causing, or recklessdisregard of the probability of causing, emotional distress;(2) the plaintiff's suffering severe or extreme emotionaldistress; and (3) actual and proximate causation of theemotional distress by the defendant's outrageousconduct. To be outrageous, the conduct must be soextreme as to exceed all bounds of that usually toleratedin a civilized society. (Davidson v. City of Westminster(1982) 32 Cal.3d 197, 209.) “While the outrageousnessof a defendant's conduct normally presents an issue offact to be determined by the trier of fact (citation), thecourt may determine in the first instance, whether thedefendant's conduct may reasonably be regarded as soextreme and outrageous as to permit recovery.” (Trericev. Blue Cross of California (1989) 209 Cal.App.3d 878,883.)Plaintiff alleges in his 3 rd cause of action for IIEDthat defendants left him in the back seat of a police carfor hours without regard for his injuries while they maderomantic overtures to his girlfriend. (Complaint; 27) This cause of action thus appears to be based on thefailure to provide medical care rather than the infliction ofthe injuries or the arrest.Defendants assert that plaintiff did not state orindicate any pain or injury. [UMF 71] However, plaintifftestified at his deposition that he told the deputies, whilethe struggle was occurring that they were hurting him,that he needed doctor, and that he needed anambulance. Plaintiff also said he neededhelp. (Deposition of Plaintiff; RT 130; RT 135) Defendantrelies on the fact that plaintiff did not request medicalcare after he was placed in the car and taken to the

station and that he denied being in pain during hismedical screening at the jail. But, plaintiff also testifiedthat once he was tasered, “I was going in and out ofconsciousness.” (Deposition of Plaintiff; RT 133)As previously noted, on summaryjudgment/adjudication, the court does not weighcredibility. Accordingly, plaintiff’s testimony is sufficientto raise a triable issue of fact as to whether defendants’conduct in failing to secure him medical care wasoutrageous.Issue 5: Plaintiff’s 4 th (NIED) and 5 th (Negligence)causes of action fail because defendants’ deputies did notbreach their duties. Defendant asserts that the actions ofits deputies were reasonable and thus there was nobreach of duty. However, there is a triable issue of facton the issue of the reasonableness, as previouslydiscussed in connection with Issue 1.Defendant argues in Reply that plaintiff hasconceded as to the 5 th cause of action for negligencebecause the opposition does not address it. It appears tothe court, however, that plaintiff’s discussion of the 4 thcause of action for NIED also applies to the 5 th cause ofaction for negligence. And, the fact that defendant’scontentions regarding the 4 th and 5 th causes of action areduplicative is established by the fact that both causes ofaction are addressed in the same adjudication request.Issue 6 – Plaintiff’s 6 th cause of action for negligenthiring, training, and retention fails because this is not acognizable claim. Defendant contends this cause of actionfails as a matter of law citing Munoz v. City of Union City(2004) 120 Cal.App.4th 1077 [disapproved on othergrounds in Hayes v. County of San Diego (2013) 57Cal.4th 622, 639 at fn. 1.) In Munoz, the court found noliability on the part of a public agency under a directnegligence theory (as opposed to a vicarious liability)theory because no statute imposes such liability. Theentity was thus not liable for inadequate training andplacement. (Id. at 1112-1113.)Plaintiff does not respond to defendant’s argumentthat this cause of action fails as a matter of law in theopposition P&A's. The court construes plaintiff’s failure torespond as a concession of its merits and this request foradjudication is granted.Objections: (1) Defendant objects to plaintiff’sdeposition testimony that he was “under the limit” whenthey went to the Circle K on the ground plaintiff is notqualified and has not provided a foundation for hisconclusion that he was under the limit. Defendant iscorrect and the objection is sustained.(2) Defendant objects to plaintiff’s response toInterrogatory 6.2 listing his injuries as “left elbow avulsionfracture and permanent nerve damage in the leftarm/elbow. Right arm/hand never damage. Bilateralsprain of hands, headaches, blister burns from the tasergun, Aggravation of pre-existing bulging disk in lumbar

spine, general body aches, and facial and bodycontusions.” Defendant objects on the ground plaintiff isnot qualified to give a medical diagnosis andhearsay. The objection is overruled as a layperson isqualified and may testify that he has suffered headaches,blisters, body aches, and contusions. And, the entirestatement is not objectionable, the objection isoverruled.16 2011-00463858California Bank & Trust vsPacific Breast Care MedicalGroup IncTENTATIVE RULING:The motion of plaintiff California Bank & Trust assuccessor-in-interest to the FDIC, as receiver of AllianceBank, for summary judgment against defendant Rob Shickis granted.Any party may move for summary judgment in any actionor proceeding if it is contended that the action has nomerit or that there is no defense to the action orproceeding. Code Civ. Proc. § 437c(a). A cause of actionhas no merit if either of the following exists: (1) one ormore of the elements of the cause of action cannot beseparately established, even if that element is separatelypleaded; or (2) a defendant establishes an affirmativedefense to that cause of action. Code Civ. Proc. §437c(o).For purposes of motions for summary judgment andsummary adjudication, a plaintiff has met his or herburden of showing that there is no defense to a cause ofaction if that party has proved each element of the causeof action entitling the party to judgment on that cause ofaction. Code Civ. Proc. § 437c(p)(1). Once the plaintiffhas met that burden, the burden shifts to the defendantto show that a triable issue of one or more material factsexists as to that cause of action or a defense thereto.Code Civ. Proc. § 437c(p)(1). The defendant may not relyupon the mere allegations or denials of its pleadings toshow that a triable issue of material fact exists but,instead, shall set forth the specific facts showing that atriable issue of material fact exists as to that cause ofaction or a defense thereto. Code Civ. Proc. §437c(p)(1).Although the complaint is asserted against severaldefendants and contains 34 causes of action, alldefendants have been defaulted or dismissed except fordefendant Shick on the sixth, fourteenth, twenty-fifth, andthirty-fourth for breach of guaranty. Plaintiff has shown,through the declaration of Matthew Mara and the exhibitssubmitted by plaintiff and discussed in the Maradeclaration, that Pacific Breast Care Medical Groupdefaulted on four obligations to plaintiff’s predecessor-ininterest,Alliance Bank, that were guaranteed by Shickand that Shick has defaulted on his guaranties. Plaintiffhas also shown that, as of March 7, 2013, it was owed atotal of $3,418,947.13 on the four obligations, consistingof principal of $2,024,674.16 and interest of$1,394,272.97 and that interest has accrued at a totaldaily rate of $640.01 after that date.The evidence submitted by the plaintiff is sufficient for it

to meet its burden on the motion, and the burden shifts toShick to show that there is a triable issue of material fact.Although Shick submitted an opposition, it was untimelyserved and filed under subdivision (b)(2) of Code Civ.Proc. § 437c, which requires any opposition to be servedand filed 14 days before the hearing. Shick’s oppositionwas not filed until September 17, 2013.In addition, the opposition provides little assitance. Itconsists of one page of incomplete argument, followed byunsigned document entitled “declaration of Lynda Frye,”excerpts of what purports to be Lynda Frye’s deposition,and a declaration by defendant Shick. None of thispurported evidence has any value; in fact, Shick merelyattests that it would be unfair for him to be responsiblefor any “deficiency judgment” because he is now divorcedfrom one of the principals of the business and inretirement.Further, the opposition does not include a responsiveseparate statement as required by subdivision (b)(3) ofCode Civ. Proc. § 437c. The failure to submit a separatestatement with an opposition “may constitute a sufficientground, in the court’s discretion, for granting themotion.”Thus, Shick has not met his responsive burden on themotion.

# Case Name1 2013-00656164Yu vs Uni-Caps, LLCTENTATIVE RULING:The general demurrer of defendants Uni-Caps, LLC, SujinJung, and Sang H. Kim to the first and second causes ofaction in the complaint of plaintiff Hana Yu is sustainedwith 20 days’ leave to amend. The general demurrer tothe third and fourth cause of action is overruled, as is thespecial demurrer to the entire complaint.The first and second causes of action are for harassmentand retaliation under FEHA.In the first cause of action, plaintiff alleges that she washarassed by defendant Jung, who was her supervisor, asa result of her “age, nationality, and maritalstatus.” (Complaint, 11.) The complaint alleges thatdefendant Jung treated her disrespectfully, called her“young and stupid,” and talked about her personal life infront of others without her permission (complaint, 10). However, the complaint also alleges that plaintiffwas 26 years old, unmarried, and Korean and that theindividual defendants were 36 and 55 years old, married,and Korean. Simply because she was younger than thedefendants and not married does not mean that theconduct amounts to illegal harassment underFEHA. Further, the term “age” is defined in FEHA to mean“the chronological age of any individual who has reachedhis or her 40th birthday.” Gov. Code § 12926(b).In the second cause of action, plaintiff alleges that shewas terminated from the company because shethreatened to sue Jang personally and Jang told Kim thatplaintiff threatened to sue the company. (Complaint, 17 and 18.) Plaintiff contends that this constitutes illegalretaliation under subdivision (h) of Gov. Code § 12940.However, as stated in the moving papers, these facts donot constitute retaliation under subdivision (h) of section12940 because plaintiff had only made a threat of takinglegal action and had not already taken such action at thetime of the termination. Subdivision (h) makes it anillegal practice for an employer to “discharge, expel, orotherwise discriminate against any person because theperson has opposed any practices forbidden under thispart or because the person has filed a complaint, testified,or assisted in any proceeding under this part.” (Emphasisadded.)The third cause of action is for breach of the impliedcovenant of good faith and fair dealing. In this cause ofaction, plaintiff alleges that, at the time she was hired,defendant Kim and the company made a verbalagreement that she “would not be terminated as long asshe performed adequately her tasks.” (Complaint, 20.) Plaintiff also alleges that she was terminated in badfaith and for reasons extraneous to thecontract. (Complaint, 23.)Although the defendants contend that this cause of action

does not contain sufficient facts, the facts alleged aresufficient to withstand the attack. To the extent that thedefendants contend that plaintiff was fired for poorperformance, these facts are not contained in thecomplaint. As such, the demurrer to this cause of actionis overruled.The fourth cause of action is for IIED. In this cause ofaction, plaintiff alleges that the defendants caused twoBrea police officers to come to her residence “to force andintimidate her into dismissing her forthcoming lawsuitagainst the Defendants.” (Complaint, 25.) She allegesthat the officers told her that she should not be suing thedefendants for $120,000 and that she defrauded thecompany by working during her lunch timebreak. (Complaint, 25.)The defendants contend that this cause of action isdefective because they are not responsible for the policeconducting an investigation. That is true; however, thatis not what this cause of action is alleging. The demurrerto this cause of action is overruled.5 2010-00424326Casas vs Carpenters UnionLocal #209TENTATIVE RULING:Motion #1:Motion for Order Imposing Issue, Evidentiary,Terminating, and Monetary Sanctions:This matter should have been handled by the previouslyappointed discovery referee.All parties are ordered to return to the discovery refereefor a determination of compliance, meet and confers, andrecommendations on sanctions.Motion # 2 and #3:TENTATIVE RULING:The court adopts the discovery referee’s rulingswith regard to Defendants’ motions to compel furtherresponses to special interrogatories and to compel furtherproduction. Interrogatory responses must be servedwithin 15 days, and documents are to be produced within10 days. The discovery cut-off date was vacated at the05/08/13 hearing and any objection based on the originalcut-off date is invalid. The requests for monetary andissue sanctions are denied. Any sanctions relating tofailure to comply with the court order may be sought in alater motion or by motion in limine. Defendants are togive notice.9 2009-00333233Reilly vs InquestTechnologyTENTATIVE RULING:The unopposed motion of plaintiff Peter Reilly under CodeCiv. Proc. § 664.6 for an order vacating the judgmentsentered against defendant Dave Singhal on the juryverdict and awards of costs and attorneys’ fees andentering a new judgment based on the settlement ofAugust 27, 2012 is granted. The settlement providesthat Singhal is to pay plaintiff $250,000 within one dayafter the day that that the Bankruptcy Court approves theborrowing motion described in the settlement agreement.

# Case Name1 2012-00609055Ahmed vs JP MorganChase Bank NATENTATIVE RULING:Defendants’ motion to deem facts admitted and tocompel responses to form and special interrogatories isgranted. Plaintiff is to provide responses within 20days. The court awards sanctions against Plaintiff in theamount of $864. Moving parties are to give notice.Special & Form Rogs: Defendants have compliedwith the requirements in bringing the motion to compelresponses to Special and Form Rogs per CCP §2030.290and made a showing that the interrogatories were servedupon Plaintiff, that the time to respond had expired, andthat no responses of any kind had been served (see SnowDeclarations). Leach v. Sup. Ct. (1980) 111 Cal.App.3d902, 905–906. There is no need to informally resolve thedispute. CCP §2030.290; Leach, supra, at 906. SincePlaintiff did not respond, she has waived her right toobject to the interrogatories. CCP §2030.290. Plaintiff isordered to serve verified responses without objection.RFAs: Under CCP §2033.280:“(c) The court shall make this order [to deemmatters admitted], unless it finds that the party towhom the requests for admission have beendirected has served, before the hearing on themotion, a proposed response to the requests foradmission that is in substantial compliance withSection 2033.220. It is mandatory that the courtimpose a monetary sanction . . . on the party orattorney, or both, whose failure to serve a timelyresponse to requests for admission necessitatedthis motion.” (Emphasis added.)No attempt to meet and confer is necessary if noresponses were given. See Demyer v. Costa Mesa MobileHome Estates (1995) 36 Cal.App.4th 393, 395 fn. 4(citing text) (disapproved on other grounds in Wilcox v.Birtwhistle (1999) 21 Cal.4th 973, 983 fn. 12).Here, Defendants served Plaintiff with Requests forAdmission and no response was given. Unless Plaintiffmakes some kind of showing that she served responsesprior to the hearing at the hearing, the court is requiredto order the matters in the RFAs to be deemed admittedper CCP §2033.280(c).Sanctions: The court is authorized to awardsanctions for the motions to compel responses to Rogs(CCP §2030.290) and motion to deem matters admitted(CCP §2033.280) against the losing party. Although thestatutes are silent on the matter, the CRC authorize anaward of sanctions “even though no opposition to themotion was filed, or opposition ... was withdrawn, or therequested discovery was provided ... after the motion wasfiled.“ CRC Rule 3.1348(a). Considering the motion issimple, straightforward and unopposed, the court awardssanctions in the amount of $864 (2 hours at $402/hour

plus $60 filing fee) against Plaintiff.2 2013-00657958Abad Foam, Inc vs SAPAmerican IncTENTATIVE RULING:MOTION NO. 1 – DEMURRER (Vision 33): Vision 33’sdemurrers COAs 2 and 4-10 of the complaint areoverruled. Vision 33 is to file and serve an answer within10 days. Plaintiff is to give notice.Statute of Limitations: Where the dates alleged inthe complaint show the action is barred by the statute oflimitations, a general demurrer lies. See Saliter v. PierceBros. Mortuaries (1978) 81 Cal.App.3d 292, 300. Thedemurrer lies only where the dates in question are shownon the face of the complaint. If they are not, there is noground for general demurrer (dates not being essential tothe cause of action). See Union Carbide Corp. v. Sup. Ct.(1984) 36 Cal.3d 15, 25. Allegations that an eventoccurred “on or about” the crucial date for statute oflimitations purposes overcome a general demurrer. It isenough that the claim may be timely. (If it is not,defendant can move for summary judgment.) Childs v.State of Calif. (1983) 144 Cal.App.3d 155, 160.Equitable tolling is a judge-made doctrine “whichoperates independently of the literal wording of the Codeof Civil Procedure to suspend or extend a statute oflimitations as necessary to ensure fundamentalpracticality and fairness.” Lantzy v. Centex Homes (2003)31 Cal.4th 363, 370.To the extent Plaintiff wishes to rely on the delayeddiscovery rule, Plaintiff must plead the specific factsshowing (1) the time and manner of discovery and (2) theinability to have made earlier discovery despitereasonable diligence.” Fox v. Ethicon Endo-Surgery, Inc.(2005) 35 Cal.4th 797, 808.Here, Defendant Vision 33 argues that the two andthree year statute of limitations (CCP §§ 339 and 338(d))began to accrue in 2009 with respect to the tort claims fornegligence, negligent and intentional misrepresentation,concealment (COAs 4, 8, 9 and 10, respectively).The complaint refers to October 2009 as the timein which Plaintiff’s CEO had trouble finding costs forcertain items and then notified Vision 33 around January2010 about the problems. In 2011, Plaintiff thenpurchased several servers to run the software per Vision33’s advice. However, that did not fix theproblems. Finally, Vision 33 admitted the software did notwork.The dates are vague as to when Vision 33 admittedthe software did not work. Also, it is unclear why therewas such a large time gap between January 2010 to 2011when nothing was done. However, given that Plaintiff wasacting upon Vision 33’s instructions in 2011 to purchasethe servers and to be continually dragged along theimplementation process, it would be unfair to Plaintiff in

this situation after allowing Vision 33 to attempt to correctthe system to bar their claims.Vision 33 improperly attempts to introduceextrinsic evidence to show that Plaintiff approved eachphase of the software implementation. The court cannotconsider it in its analysis.The demurrers to the tort-based claims based onthe statute of limitations are overruled.Economic Loss Rule: Conduct amounting to abreach of contract becomes tortious only when it alsoviolates a duty independent of the contract arising fromprinciples of tort law. Erlich v. Menezes (1999) 21 Cal.4th543, 551. In summary, the economic loss rule allows aplaintiff to recover in strict products liability in tort when aproduct defect causes damage to ‘other property,’ that is,property other than the product itself. RobinsonHelicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4 th 979,989.Plaintiff’s claim for negligence, at first glance,appears to be a tortious breach of contract claim allegingthe software did not work the way it was supposedto. However, Plaintiff argues that Vision 33 causedPlaintiff to lose a large amount of data, which is sufficientto show damage to “other property.” As for the negligentmisrepresentation cause of action, Plaintiff alleges it reliedupon Vision 33’s representation as to the capability andfunctionality of the software to purchase it.The demurrers to the 4 th COA for negligence and8 th COA for negligent misrepresentation based on thistheory are overruled.Breach of Contract & Express Warranty: “A causeof action for damages for breach of contract is comprisedof the following elements: (1) the contract, (2) plaintiff'sperformance or excuse for nonperformance, (3)defendant's breach, and (4) the resulting damages toplaintiff. It is elementary that one party to a contractcannot compel another to perform while he himself is indefault. While the performance of an allegation can besatisfied by allegations in general terms, excuses must bepleaded specifically.” Durell v. Sharp Healthcare (2010)183 Cal.App.4th 1350, 1367 (citations and quotationsomitted). A written contract may be pleaded either inhaec verba (word for word) or generally “according to itslegal intendment and effect” (e.g., “Defendant agreed tosell the described property to Plaintiff for$100,000”). Construction Protective Services, Inc. v. TIGSpecialty Ins. Co. (2002) 29 Cal.4 th 189, 198–199(plaintiff may plead the legal effect of the contract ratherthan its precise language).Here, the 2 nd and 5 th COAs alleged breaches ofcontract and express warranty, respectively. Plaintiffstates in the Complaint 62 that Vision 33 “failed toproperly integrate the Software so that Plaintiff could usethe Software for its business purposes as defined as KeyPerformance Indicators in the Purchase

Agreement.” Section 2.1 of the Purchase Agreement (akaProject Charter Agreement – Exh. 3 to Complaint) statesthe following Key Performance Indicators (“KPI”):“The following factors are considered critical to thesuccess of the project:1. Improve accuracy of accounting system2. Improve the visibility of the system data3. Be able to make informed business decisionsbased on data from the systema. Are we making money on this itemb. Profitability by customer or product line4. Implement a fully integrated system which willenable an increase in efficiencyThese KPIs have been provided to Vision33 by theClient [Plaintiff] as the benchmarks by which thesuccess s of this project will be determined.”Defendant Vision 33 argues that the KPIs were notcontractual requirements. However, the purpose of thecontract was to reach those goals, and Plaintiff allegesVision 33 failed. The rest of Section 2 of the PurchaseAgreement contains requirements for “deliverables.” Forexample, the Purchase Contract included softwarecapability allowing Plaintiff to input pricing and iteminformation, but it had difficulty doing that.For the same reasons, the claim for expresswarranty is sufficiently pled.The demurrers to these two causes of action areoverruled.Breach of Implied Warranties: Vision 33 arguesthat the Item 13 of Section 4.1 of the Purchase Contractconspicuously denied all implied warranties with thefollowing statement: “Vision 33 does not warranty SAPBusiness One Software against defects.”“Language in the body of a form is ‘conspicuous' ifit is in larger or other contrasting type or color.” Dormanv. International Harvester Co. (1975) 46 Cal.App.3d 11,18 (interpreting Com. Code §2316). Here, the disclaimerof warranties by Vision 33 is not conspicuous as it is thesame size, font and color of the other items beforeit. This is the only ground upon which Vision 33’sdemurrers rely. Therefore, the demurrers to the 6 th and7 th COAs for implied warranties are overruled.MOTION NO. 2 – JOINDER (SAP): SAP’s joinder toVision 33’s demurrer is denied since the arguments andgrounds for demurrer are different. Plaintiff is to givenotice.MOTION NO. 3 – DEMURRER (SAP): SAP’s demurrersto COAs 3 and 6-8 of the complaint are sustained withoutleave to amend as to COAs 6 and 7, but overruled as toCOAs 3 and 8. SAP is to file and serve an answer within10 days. Plaintiff is to give notice.

Implied Warranties: The 6 th and 7 th COAs allegeSAP breached the implied warranty of merchantability andfitness for a particular purpose. Under Com. Code §2316,any disclaimer of the implied warranty of merchantabilitymust mention the word merchantability and beconspicuous, and any disclaimer of the implied warrantyof fitness for a particular purpose must be in writing andconspicuous. As already addressed in Vision 33’sdemurrer analysis, “Language in the body of a form is‘conspicuous' if it is in larger or other contrasting type orcolor.” Dorman v. International Harvester Co. (1975) 46Cal.App.3d 11, 18. Plaintiff acknowledges that is thecourt’s role to decide whether the disclaimer isconspicuous (Com. Code §1201(10)). Here, the LicensingAgreement (Complaint Exh. 1) is four pages. On page 3,§7.2 states:Express Disclaimer. SAP AND ITS LICENSORSDISCLAIM ALL OTHER WARRANTIES EXPRESS ORIMPLIED, INCLUDING WITHOTU LIMITATION, ANYIMPLIED WARRANTIES OF MERCHANTABILITY ORFITNESS FOR A PARTICULAR PURPOSE EXCEPT TOTHE EXTENT THAT ANY WARRANTIES IMPLIED BYLAW CANNOT BE VALIDLY WAIVED.The disclaimer clearly stands out from the rest ofthe body of the agreement is it is in capitalized font, whilethe other sections above and below it are in lower casefont. Considering the Licensing Agreement is only fourpages, this provision is not buried in an overly-lengthyagreement. Taking all of the factors into account, thecourt finds that the disclaimer of the implied warranties isconspicuous.The demurrers to these causes of action aresustained without leave to amend.Economic Loss Rule: For the same reasons setforth in the analysis to Vision 33’s demurrer, thedemurrers to the 3 rd and 8 th COAs for negligence andnegligent misrepresentation, respectively, are overruled.MOTION NO. 4 – PRO HAC VICE (Tully): Movingattorney failed to state whether he had made repeatedappearances in the State, not just in the prior twoyears. CRC Rule 9.40(b) states, “Absent specialcircumstances, repeated appearances by any personunder this rule is a cause for denial of anapplication.” Without such information, the court cannotmake a full determination whether there is cause fordenial of the application in this instance. The motion iscontinued to 11/6/13 or another date selected by movingparty, to allow moving attorney to provide a supplementaldeclaration to address this issue. The declaration must befiled at least 7 court days prior to the continuedhearing. Moving attorney is to give notice.MOTION NO. 5 – PRO HAC VICE (Star): Thisapplication fails for the same reasons stated above. Themotion is continued to 11/6/13 or another date selectedby moving party, to allow moving attorney to provide asupplemental declaration to address the CRC Rule 9.40(b)

issue. The declaration must be filed at least 7 court daysprior to the continued hearing. Moving attorney is to givenotice.4 2013-00641882Mazarei vs RydmanTENTATIVE RULING:The court never received any oppositions by Plaintiff tothese discovery motions but the Replies make referencesto them. It appears Defendants received late discoveryresponses. The court continued this matter to allowPlaintiff to file the oppositions, but to date, no oppositionshave been filed. Since Defendants state in their Repliesthat late responses were served, the motions are mootand any dispute regarding the sufficiency of thoseresponses should be raised via motion to compel furtherresponses. The court awards sanctions in the totalamount of $1,060 (covering both motions) againstPlaintiff. Moving parties are to give notice.5 2013-00639166Bird vs Ford MotorCompanyTENTATIVE RULING:Ford's demurrer to the 1 st -4 th causes of action is sustainedwithout leave to amend, as the statute of limitations hasrun for each cause of action. The Court finds that, in lightof plaintiff’s allegations of fraud, misrepresentation andconcealment the gravamen of his claims is fraud and notsubject to CCP 337(3). Plaintiff is not barred from seekingrescission pursuant to his instant claims, nor does theavailability of this remedy in contract establish acontractual claim.The doctrine of cross-jurisdictional or equitable tolling hasbeen repeatedly rejected, with only narrow exceptionpermitted. The overwhelming authority supports theapplication of California statutes of limitation in its ownjurisdiction, regardless of the status of federal classactions.Because the gravamen of the 1 st three causes ofaction is fraud/concealment, not breach of contractor fraud within the contract itself, the claims aresubject to the three-year statute of limitations forfraud under CCP 338CCP 337 provides, in relevant part:“3. An action based upon the rescission of a contract inwriting. The time begins to run from the date upon whichthe facts that entitle the aggrieved party to rescindoccurred. Where the ground for rescission is fraud ormistake, the time does not begin to run until thediscovery by the aggrieved party of the facts constitutingthe fraud or mistake.”No matter how captioned or pleaded, the court will,however, look to the gravamen to the complaint todetermine the nature of the claim. (San Filippo v. Griffiths(1975) 51 Cal.App.3d 640.) Although the issues werereversed in San Filippo, it remainsinstructive. Subsequent to written settlement in an actionfor dissolution, wife discovered property that the husband

had concealed. She filed suit more than three, but fewerthan four years after discovery. The husband’s contentionthat her claim was barred by CCP 338 was rejected by thecourt, as the contract included an express provisionapplicable to additional properties identified afterexecution of the agreement. Because the properties wereidentified post- agreement, the husband’s failure to makepayment or to disclose the properties was premised uponhis contractual obligation. Accordingly, the four-yearstatute of limitations applied.Again, in Galen v. Mobil Oil (C.D. Cal.1996) 922 F.Supp.318, where a purchaser of land sought to recover underthe rescission/fraud exception, the court found that actualor constructive knowledge of the facts barred a claimunder CCP 337(3):“Because Levinson had actual or constructive knowledgeof the facts allegedly constituting fraud by April 1989,section 337(3)'s fraud exception does not save therescission claim. To rescind the contract on fraud grounds,he had to file suit by April 1993. He failed to do so. Thus,the claim is time-barred.”Here, plaintiff repeatedly alleges that he was misled,deceived, that misrepresentations were made and thatfacts were concealed—all to induce him to purchase thevehicle. The gravamen of the first three causes of actionis thus fraud, which is subject to a three-year statute oflimitations.Plaintiff is not entitled to cross-jurisdictional/equitable tollingEquitable tolling applies where more than one legalremedy is available to a plaintiff and the plaintiff relies ingood faith upon one option—here, the filing of classactions in connection with Navistar enginedefects. Centaur Classic Convertible Arbitrage Fund Ltd.v. Countrywide Financial Corp. (C.D.Cal.2011) 878F.Supp.2d 1009, cited by defendant, provides thatalthough a federal claim may be tolled when a class actionis pending, it does not extend the time for filing a stateclaim. “While commencement of a putative class actiontolls the running of the statute of limitations on federalclaims asserted for all purported members of class whomake timely motions to intervene, or who pursue thesame claims in anew action, after the court has found thesuit inappropriate for class action status; state law claims,on the other hand are not necessarily tolled, but insteadare governed by state law statutes of limitation and statelaw tolling principles.”Plaintiff’s reliance upon American Pipe & Construction v.Utah (1974) 414 U.S. 538 is also misplaced, as the matterwas filed in federal court and involved violation of federallaw. The matter included alleged violations of the ClaytonAct, which specifically provides that “the running of thestatutes of limitations be ‘suspended’ by the institution ofa Government antitrust suit based on the same subjectmatter.”In San Francisco Unified School v. W. R. Grace & Co.(1995) 37 Cal.App.4 th 1318, the court was asked to

determine when plaintiff was placed on notice as to itsstrict liability claim for installed asbestos, which was alsothe subject of a federal class action. The court found that,until the date of injury had been determined, the statuteof limitations for strict liability remained a triable issue offact and that summary judgment had been improperlygranted. At the request of plaintiff, the court alsoaddressed the effect of the class action on the statute oflimitations.In addressing the concept of cross-jurisdictional tolling,the court explained: “Under the supremacy clause, thesedecisions have the force of law in California if the classaction was filed in federal court. (See U.S. Const., art. VI,cl. 2.) At least one federal district court has noted that notone of the three key United States Supreme Court caseson tolling has “limited its holding to federal statutes oflimitations.” [Citations] California has adopted somewhatdifferent state class action rules and thus only considersfederal decisions about federal rules to be persuasive tothe extent that state and federal rules parallel each otherand state policy considerations are similar to thoseunderlying the federal rules. [Citations] However, in bothJolly and Becker, the underlying class actions and thesubsequent individual actions were brought in statecourt.”Although the court ultimately found that the presence ofasbestos in schools issue warranted a narrow exception tothe rule against cross-jurisdictional tolling and opted totoll the statute of limitations, the case also notes: “[T]heCalifornia Supreme Court discussed these United StatesSupreme Court cases. It stated that it was not bound bythese cases, but considered their applicability. [Citations]Then, Jolly declined to “extend” the United StatesSupreme Court cases to a mass-tort class action situationpresented by a prescription drug litigation case.”As to plaintiff’s notice, the court determined: “[W]e holdthat in an asbestos-in-building case, the mere presence ofasbestos constitutes only a threat of future harm.Contamination by friable asbestos is the physical injuryand the actual, appreciable harm that must exist before aproperty owner's strict liability or tort cause of actionagainst an asbestos manufacturer accrues and thelimitations period commences.”The remaining cases relied upon by plaintiff provide himno greater assistance and cases decided during the nearly30 years following San Francisco Unified reinforceCalifornia’s rejection of cross-jurisdictional tolling. By wayof example, in Clemens v. Daimler Chrysler Corp. (2008)534 F.3d 1017 the court stated: “Accordingly, the weightof authority and California's interest in managing its ownjudicial system counsel us not to import the doctrine ofcross-jurisdictional tolling into California law. The rule ofAmerican Pipe—which allows tolling within the federalcourt system in federal question class actions—does notmandate cross-jurisdictional tolling as a matter of stateprocedure. We therefore conclude that the filing of theIllinois action did not toll the statute, and Clemens's CivilCode fraud claim is barred by the three-year statute oflimitations.”

Again, in Centaur Classic Convertible Arbitrage Fund Ltdv. Countrywide (C.D. Cal. 2011) 878 F.Supp.2d 1009, thecourt explained: “This Court is persuaded that crossjurisdictionaltolling, as discussed by the Ninth Circuit inClemens and Hatfield, includes all situations where a classaction is filed outside the California state court system,irrespective of whether the class claims are made underCalifornia law.”Accordingly, the law overwhelmingly weighs againsttolling plaintiff’s fraud claims.The 4 th cause of action for violation of the CLRAisbarredCC 1783, applicable to plaintiff’s CLRA claim, sets forththe statute of ‘imitations:“Any action brought under the specific provisions ofsection 1770 shall be commenced not more than threeyears from the date of the commission of such method,act, or practice.”Pursuant to the judicial admission in plaintiff’s complaint,listing notice as 12/09, the statute had run as of 12/12,rendering the CLRA claim untimely.7 2013-00661340AFT Creations Inc vsAnaJet, LLCTENTATIVE RULING:Defendant’s Motion to Strike the requests fordamages and attorney’s fees ( 31 and 1 and 4 of theprayer for the 4 th cause of action) is granted with 20-daysleave to amend.Request for damages in the 4 th cause of action forviolation of Business & Professions Code §17200: Plaintiffrequests “damages in excess of $30,524” in connectionwith its Business & Professions Code §17200 cause ofaction. However, damages are not recoverable. “Privateplaintiffs suing under the UCL may seek only injunctiveand restitutionary relief ….” (Rose v. Bank of America,N.A. (2013) 57 Cal.4th 390, 399.) Plaintiff argues in theopposition that the amount of damages and the amount ofrestitution are the same. However, plaintiff has pleadeddamages – and damages are not properly sought inconnection with this cause of action.Request for Attorney’s Fees in the 4 th cause ofaction for violation of Business & Professions Code§17200: Attorney fees are not authorized by§17200. “[T]he UCL does not authorize attorneyfees.” (Id.) Plaintiff responds that it is entitled to requestfees under the private attorney general doctrine. (CCP1021.5)CCP 1021.5 provides in pertinent part:“Upon motion, a court may award attorneys' feesto a successful party … in any action which hasresulted in the enforcement of an important rightaffecting the public interest if: (a) a significantbenefit, whether pecuniary or nonpecuniary, has

een conferred on the general public or a largeclass of persons, (b) the necessity and financialburden of private enforcement, or of enforcementby one public entity against another public entity,are such as to make the award appropriate, and(c) such fees should not in the interest of justicebe paid out of the recovery, if any….”Private attorney general fees are only warrantedwhen the litigation (1) served to vindicate an importantpublic right; (2) conferred a significant benefit on thegeneral public or a large class of persons; and (3)imposed a financial burden on plaintiffs which was out ofproportion to their individual stake in the matter.(California Licensed Foresters Assn. v. State Bd. ofForestry (1994) 30 Cal.App.4th 562, 569.) None of thesefactors are established by the facts pleaded in thecomplaint. The allegations indicate this is a disputebetween a vendor and a customer over allegedly defectiveequipment. There are no facts showing a significantbenefit to the general public or a large class of personswill be conferred if plaintiff prevails.8 2013-00639248Walker vs Frandeli GroupLLCTENTATIVE RULING:Defendant’s Motion to Compel Arbitration isgranted. Defendant is to pay all costs of arbitration. Thearbitrator must issue a written decision. The parties shallmeet and confer on who to appoint as an arbitrator and ifthey cannot agree, a motion seeking appointment of anarbitrator may be filed. (CCP 1281.6) Plaintiff’s Requestfor Judicial Notice is denied. This case is stayed pendingcompletion of arbitration.Request for Judicial Notice: Plaintiff’s Request forJudicial Notice of the 11-27-12 minute order in Vega v.Frandeli Group, LLC is denied. The discussion of thearbitration provisions in the order in the Vega case showthat the issues in that case differ significantly from theissues here. The order is thus irrelevant to this court’sdetermination.The opposition has been considered: Defendantargues that the opposition was untimely served because itwas not served in a manner sufficient to ensure next-daydelivery and thus asks that the court disregarded theopposition. However, defendant has replied on themerits, thus waiving any service objection. (Carlton v.Quint (2000) 77 Cal.App.4th 690, 697.) The oppositionhas accordingly been considered.The parties entered an agreement toarbitrate. The third page of the 3-page EmploymentApplication executed by plaintiff contains an arbitrationprovision which provides:“I hereby agree to submit to binding arbitration ofall disputes and claims arising out of thesubmission of this application. I further agree, inthe event that I am hired by Frandeli, that alldisputes that cannot be resolved by informalinternal resolution which might arise out of myemployment with the company, whether during or

after that employment, will be submitted tobinding arbitration pursuant to the company’sdispute resolution policy.”Plaintiff’s claim of racial discrimination arose fromhis submission of the application and the arbitrationprovision is thus applicable. By contrast, because plaintiffwas never hired, the language regarding the company’sdispute resolution policy was not triggered. Accordingly,the language stating plaintiff agreed to binding arbitrationconstitutes the entire arbitration provision. No details onhow the arbitration was to be conducted are set forth inthe agreement.Plaintiff contends that the arbitration agreement isnot enforceable because there was no consideration fromdefendant. However, defendant’s consideration of theapplication for employment would appear to constituteconsideration. In addition, the mutuality of theagreement to arbitrate also constitutes consideration.Plaintiff argues the “I agree” language of thearbitration provision establishes that the provision lacksmutuality – that plaintiff was required to arbitrate anyclaims he might bring while defendant was not sorequired. However, the provision applies to “all disputesand claims.” And, language effectively indistinguishablefrom this has been found to create a mutual agreement toarbitrate.In Roman v. Superior Court (2009) 172Cal.App.4th 1462, 1466, the court found that a provisioncontained in the employee’s employment applicationstating: “I agree, in the event I am hired by thecompany, that all disputes and claims that might arise outof my employment with the company will be submitted tobinding arbitration” required that both the employee andthe employer arbitrate. (Roman v. Superior Court (2009)172 Cal.App.4th 1462, 1466.)“Absent some indicia in the agreement thatarbitration is limited to the employee's claimsagainst the employer, the use of the ‘I agree’language in an arbitration clause that expresslycovers ‘all disputes’ creates a mutual agreement toarbitrate all claims arising out of the applicant'semployment. Accordingly, whatever elements ofprocedural unconscionability may be present inemployment adhesion contracts, the agreement toarbitrate does not lack mutuality of obligation soas it [sic] make it substantivelyunconscionable.” (Roman v. Superior Court(2009) 172 Cal.App.4th 1462, 1466.)Thus, pursuant to the language of the agreement,defendant also agreed to arbitrate and that constitutesconsideration.Plaintiff also objects that the arbitration provisionlacks sufficiently certain terms. However, as is discussedbelow, terms in compliance with Armendariz are implied.

And, plaintiff argues the agreement is notenforceable because it contains contradictory terms onwhether or not it is a contract – pointing out that theEmployment Application states:“I understand that nothing in this employmentapplication, the granting of an interview, or mysubsequent employment with Frandeli Group isintended to create an employment contractbetween myself and Frandeli Group under whichmy employment could be terminated only forcause. On the contrary, I understand and agreethat, if hired, my employment will be terminable atwill, and may be terminated by me or by FrandeliGroup at any time and for any reason. Iunderstand that no person has any authority toenter into an agreement contrary to theforegoing.”This language does not contradict the arbitrationprovision. It provides that no employment contract whichrequires cause for termination is being formed. Anagreement to arbitrate disputes is not inconsistent withthis provision.Unconscionability: Plaintiff argues the agreementis unenforceable because it is unconscionable. Anarbitration agreement may be unenforceable if it is bothprocedurally and substantively unconscionable. Thestronger the showing of substantive unconscionability, theless the showing of procedural unconscionability required,and vice versa. (Armendariz v. Foundation HealthPsychcare Services, Inc. (2000) 24 Cal.4th 83, 113-114.)Procedural Unconscionability: “Proceduralunconscionability addresses the manner in whichagreement to the disputed term was sought or obtained,such as unequal bargaining power between the partiesand hidden terms included in contracts ofadhesion.” (Szetela v. Discover Bank (2002) 97Cal.App.4th 1094, 1099-1100.) Proceduralunconscionability exists where the weaker party ispresented with the clause in a take it or leave it mannerwithout the opportunity for meaningful negotiation. (Id.at 1100.) Thus, an arbitration agreement that is anessential part of a “take it or leave it” employmentcondition, is generally procedurallyunconscionable.” (Martinez v. Master Protection Corp.(2004) 118 Cal.App.4th 107, 114.)Here, the arbitration provision has some proceduralunconscionability. Plaintiff, the weaker party, had noopportunity to negotiate its terms. The clause was nothighlighted in any fashion and was included among astring of unrelated clauses. In addition, plaintiff wasverbally told that part of the form concerned authorizationfor defendant to do a background check and contactplaintiff’s references. However, plaintiff did separatelyinitial the arbitration clause. Thus, while some proceduralunconscionability is present, this is not a case where theprocedural unconscionability is particularly strong.

Substantive Unconscionability: Substantiveunconscionability exists when the agreement is overlyharsh and unfairly one-sided. E.g., an agreement may besubstantively unconscionable if it requires arbitration ofclaims of the weaker party only. (Fitz v. NCR Corp.(2004) 118 Cal.App.4th 702, 713.) However, while lackof mutuality may create substantive unconscionability, asdiscussed above, the language in this agreement createda mutual obligation.Provisions of an arbitration agreement which donot comply with the requirements for arbitration of FEHAclaims may also render an agreement substantivelyunconscionable. FEHA claims may be subject to arbitrationif certain requirements are met. “[T]he arbitration mustmeet certain minimum requirements, including neutralityof the arbitrator, the provision of adequate discovery, awritten decision that will permit a limited form of judicialreview, and limitations on the costs ofarbitration.” (Armendariz v. Foundation Health PsychcareServices, Inc. (2000) 24 Cal.4th 83, 91.) Adequatediscovery must be allowed and the employer must pay thearbitration costs. (Id. at 103-104 and 111.)Here, the arbitration provision has no languagewhich expressly violates the requirements of Armendarizas it does not set out the procedures which will beutilized. Plaintiff contends this lack of terms means theagreement violates Armendariz and thus that itis unconscionable. Defendant responds that theagreement’s silence on the details impliedly incorporatesthe requirements of Armendariz.CCP 1281.6 sets forth a procedure for choosing aneutral arbitrator when the agreement does provide amethod. The Code also takes care of the requirementthat a written decision be issued. “The award shall be inwriting and signed by the arbitrators concurring therein. Itshall include a determination of all the questionssubmitted to the arbitrators the decision of which isnecessary in order to determine the controversy.” (CCP1283.4) And, the agreement’s silence on remedies isconstrued as “implicitly” complying with the requirementof Armendariz that all types of relief available in court willbe afforded. (Fittante v. Palm Springs Motors, Inc. (2003)105 Cal.App.4th 708, 717.)As to discovery, defendant contends that CCP1283.05 guarantees plaintiff the right to discovery. [CCP1283.05 sets forth broad discovery rights for parties inarbitration.] However, CCP 1283.05 only applies to theextent provided by CCP 1283.1 – which says CCP 1283.05is incorporated into every agreement to arbitrate claimsarising from an injury or death to a person caused by awrongful act or neglect. (CCP 1281.3(a)) In all othercases, CCP 1283.05’s discovery provisions are notincorporated into the agreement as a matter of law. (CCP1283.1(b)) And, this is not a personal injurycase. However, the Armendariz court stated, whendiscussing discovery rights in FEHA arbitrations:“We further infer that when parties agree to

arbitrate statutory claims, they also implicitly agree,absent express language to the contrary, to suchprocedures as are necessary to vindicate thatclaim.” (Armendariz, 24 Cal.4th 83, 106.)Plaintiff points out that the agreement at-issue inArmendariz incorporated the Act, which includes CCP1283.05. But the Armendariz court did not indicate itsfinding there was an implicit agreement for sufficientdiscovery – so long as the agreement does not provide tothe contrary – requires that the agreement incorporatethe Act. Accordingly, here too, the right to adequatediscovery is implied.Similarly, the employer’s obligation to pay thecosts of arbitration is implied. “[A] mandatoryemployment arbitration agreement that contains within itsscope the arbitration of FEHA claims impliedly obliges theemployer to pay all types of costs that are unique toarbitration. Accordingly, we interpret the arbitrationagreement in the present case as providing, consistentwith the above, that the employer must bear thearbitration forum costs. The absence of specific provisionson arbitration costs would therefore not be grounds fordenying the enforcement of an arbitrationagreement.” (Armendariz, 24 Cal.4th at113.) Accordingly, a requirement that the employer paythe costs of arbitration is implied into this agreement.In short, while there is some proceduralunconscionability, the agreement is not substantivelyunconscionable and the agreement is thus enforceable.This action is stayed. Defendant asks this court todismiss the action. Plaintiff responds that if arbitration isordered, the action should be stayed. (CCP 1281.4) And,a stay is the better approach. In the event the arbitrationfails to go forward (e.g., if the employer were to fail topay the arbitration fees), this case could proceed. Inaddition, if a motion to confirm, vacate, or correct anyarbitration award rendered is needed, such requests maybe filed in this case.9 2008-00110725Century 21 Chamberlain &Associates vs First TeamReal Estate of OrangeCountyTENTATIVE RULING:Motion Nos. 2 & 3 – Compel Production: The motionsto compel production are denied. Plaintiffs are to givenotice.These motions are brought pursuant to CCP§1987(c), which requires an opposing party to appear attrial and to produce certain documents.The notice must: (1) be served on the party fromwhom production is sought at least 20 days before thedate attendance is required (unless an order shorteningtime is granted); and (2) state the exact materials orthings desired and that the party or person has them inhis or her possession or control. CCP §1987(c) (emphasisadded).The party or person of whom the request is mademay challenge the notice by serving written objections

and a statement of grounds (e.g., privilege). Unless thecourt otherwise extends time, the objection must beserved within 5 days after service of the notice to produce(extended 5 days if served by mail; see CCP§1013(a)). CCP §1987(c). The burden is then on therequesting party to file a noticed motion for production ofthe items sought, “accompanied by a showing of goodcause and of materiality” to the issues in the case.Production may be ordered unless the objecting partyestablishes good cause for nonproduction or for imposinglimits or conditions on the production. CCP §1987(c).On 01/02/13, Judge Claster ordered Plaintiffs toproduce the following documents (see Opp. Decl. Exh. A):Audited and unadudited financial statements, incomestatements of stockholder equity from 2005-2012, allunderlying documents used to prepare profit and lossstatements, cash flow statements and balance sheets,gross sales documents and any business or financialrecords that evidence sales, net profits and/or claimeddamages. Here, Defendant has not stated why any ofthose documents are insufficient in providing theinformation sought from his CCP §1987(c) notices andany requests for tax documents violates the parties’ rightsto privacy. No good cause has been shown.Also, for discovery purposes, a party may compeldocument production by reasonably describing a categoryof documents (e.g., “all correspondence between Jonesand Smith relating to the XYZ transaction”). CCP§2031.030(c)(1). But to obtain production at trial, thedescription must be “exact” (e.g., “letter dated June 21,1990, written by Harry A. Jones to Paula Smith, captioned‘Re XYZ’ and marked as Exhibit ‘A’ in Smith'sdeposition“). This prevents parties from using a “notice toproduce” for discovery purposes after discovery isclosed. See TRG, Civ. Trials and Evid. §§1:115-1:115.1.Here, all of the requests in the subject CCP§1987(c) notices at issue here do not state the exactdocuments sought to be produced at trial and areimproper attempts to seek discovery of documents pastthe discovery cut-off deadline. Therefore, the motions tocompel production are denied.Motion No. 4 – Quash Subpoena: The motion to quashor modify the subpoena is denied. Plaintiffs are to givenotice.A deposition subpoena may be attacked forseeking records not within the permissible scope ofdiscovery, e.g., not relevant to the subject matter. SeeTRG, Civ. Proc. Before Trial, §8:598.“Character evidence” is evidence of a person'spropensity or tendency to act in a certain way undercertain circumstances. People v. McAlpin (1991) 53Cal.3d 1289, 1305.Logically, character evidence might be relevant inalmost any case as tending to show a party's propensity

to act in a certain manner. But, character evidence is“inadmissible when offered to prove his or her conduct ona specified occasion.” Evid. Code §1101(a).By statute, character evidence is admissible in thefollowing cases: (1) Character itself at issue (Evid. Code§1100); (2) Credibility at issue (Evid. Code §§786-790,1101(c)); (3) Past acts admissible to prove somethingother than propensity to act (knowledge, intent, plan,motive, etc.) (Evid. Code §1101(b)).Here, Mathias argues that the information soughtby Plaintiffs is irrelevant and an improper attempt tointroduce character evidence (Evid. Code §787). Thedeposition subpoena seeks the following:1. Any and all ethics complaints made regarding orconcerning Joseph Orville Mathias from January 1,2005, to the present.2. Any and all complaints regarding disputes oncommissions made by or against Joseph OrvilleMathias from January 1, 2005, to the present.3. Any and all complaints made regarding claims offraud based on the actions of Joseph OrvilleMathias from January 1, 2005, to the present.4. Any and all records concerning complaintsrelated to monetary disputes, real estate listingdisputes, real estate commission disputes, pastarbitrations, current arbitrations, disputes betweenlicensed real estate agents and any othercomplaints or arbitrations made against JosephOrville Mathias from January 1, 2005 to thepresent.5. Any and all records concerning complaints madeagainst Joseph Orville Mathias for sexualharassment or the improper treatment of otherreal estate agents and brokers from January 1,2005 to the present.6. Any and all ethical rules or guidelines imposed,published, and/or enforced by the Pacific WestRealty Group and/or the Pacific West Association ofRealtors, which address a member's duty orobligation to refrain from making false,disparaging, derogatory, slanderous, defamatory,or damaging statements about other real estateagents or brokers.7. Any and all records regarding the CaliforniaCode of Ethics and Arbitration Manual in effect withthe Pacific West Association of Realtors fromJanuary 1, 2008 to the present.8. Any and all Articles set forth in the Code ofEthics enforced by the Pacific West Association ofRealtors which in any way involve or relate themaking of false, disparaging, defamatory,slanderous or damaging statements by membersof the Pacific West Association of Realtors aboutother real estate agents or brokers.9. Any and all documents regarding or reflectingany complaints filed against or concerning JosephOrville Mathias based on a claim made by amember of the Pacific West Association of Realtorsthat Joseph Orville Mathias made false,

disparaging, derogatory, slanderous, defamatory,or damaging statements about other real estateagents or brokers.10. Any and all documents which reflect orevidence that Joseph Orville Mathias has beenreprimanded, warned, admonished, sanctioned,penalized, or otherwise punished by the PacificWest Association of Realtors and/or its BoardMembers for any improper, unethical, or tortiousconduct from January 1, 2005 to the present.Here, Plaintiff is clearly seeking evidence of specificinstances of Mathias’ conduct to attack his credibility,which is inadmissible. However, the evidence sought maylead to disclosure of opinion or reputation evidence, whichis allowed. Any objections to specific evidence may bemade at trial or via motions in limine. The motion toquash the subpoena is denied.10 2013-00653281Candelaria Ruiz, by andthrough her Successor inInterest Luciano Ruiz vsAnaheim HealthcareCenter, LLCTENTATIVE RULING (Demurrer):Defendant’s demurrer to the 1 st and 4 th causes ofaction is overruled. The demurrer to the 2 nd cause ofaction for Elder Abuse is sustained with 20-days leave toamend.Uncertainty: Demurrers for uncertainty aredisfavored. It is only “where the complaint is so bad thatthe defendant cannot reasonably respond; i.e., he or shecannot reasonably determine what issues must beadmitted or denied, or what counts or claims are directedagainst him or her” that a demurrer for uncertainty iswarranted. (Weil & Brown, Cal. Prac. Guide: Civ. ProBefore Trial (The Rutter Group 2013), §7:85.)Defendant contends all the causes of action areuncertain because each incorporates prior paragraphs.However, while there is authority that this practice isdisfavored (Uhrich v. State Farm Fire & Cas. Co. (2003)109 Cal.App.4th 598, 605), in this case no uncertainty iscreated as the facts in support of the 1 st , 2 nd , and 4 thcauses of action are the same.1 st (negligence/willful misconduct) and 4 th(wrongful death) causes of action: Plaintiff contendsthese causes of action are uncertain because they mustbe construed as causes of action for professionalnegligence. However, even assuming these areessentially claims for professional negligence (and itappears they are), it does not render the causes of actionuncertain. If plaintiff seeks remedies which are notavailable in a cause of action for professional negligence,defendant’s remedy is a motion to strike thoseremedies.Defendant also asserts the allegations areuncertain because of the extensive list of fact pleadedspecifically as to the entity defendants and the relativelack of detail as to him. However, while the allegationsappear to be insufficient to plead an Elder Abuse cause ofaction against defendant, they are not uncertain.

2 nd cause of action for Elder Abuse: The Welfare &Institutions Code defines Elder Abuse as follows:“’Abuse of an elder or a dependent adult’ meanseither of the following:(a) Physical abuse, neglect, financial abuse,abandonment, isolation, abduction, or othertreatment with resulting physical harm or pain ormental suffering.(b) The deprivation by a care custodian of goods orservices that are necessary to avoid physical harmor mental suffering.” (Welfare and InstitutionsCode §15610.07)Neglect under this section is defined broadly:“(b) Neglect includes, but is not limited to, all ofthe following:(1) Failure to assist in personal hygiene, or in theprovision of food, clothing, or shelter.(2) Failure to provide medical care for physical andmental health needs. No person shall be deemedneglected or abused for the sole reason that he orshe voluntarily relies on treatment by spiritualmeans through prayer alone in lieu of medicaltreatment.(3) Failure to protect from health and safetyhazards.(4) Failure to prevent malnutrition or dehydration.(5) Failure of an elder or dependent adult to satisfythe needs specified in paragraphs (1) to (4),inclusive, for himself or herself as a result of poorcognitive functioning, mental limitation, substanceabuse, or chronic poor health.” (W&I Code§15610.57.)MP is correct that more than ordinary negligence isneeded for an elder abuse claim. “In order to obtain theremedies available in section 15657, a plaintiff mustdemonstrate by clear and convincing evidence thatdefendant is guilty of something more than negligence; heor she must show reckless, oppressive, fraudulent, ormalicious conduct. The latter three categories involve‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing of a‘despicable’ or ‘injurious’ nature.(Delaney v. Baker (1999) 20 Cal.4th 23, 31.)Defendant contends this cause of action failsbecause plaintiff has alleged, at most, professionalnegligence, citing Carter v. Prime Healthcare ParadiseValley, LLC (2011) 198 Cal.App.4th 396, in which thecourt found a hospital’s failure to carry out a physician’sorders re treatment of a patient’s ulcers and infusions wasnot “neglect” as that term is meant in the Elder Abuse

Act. The court further found the falsification of a deathcertificate was not elder abuse as the patient was notinjured by this conduct. The Carter court thus affirmedthe trial court’s order sustaining the defendant’s demurrerwithout leave to amend.In finding the allegations of negligence insufficient,the Carter court stated that the enhanced remediesavailable for elder require acts of “egregious abuse.” (Id.at 405.) The Carter court found that 5 factors must bepresent for conduct to constitute Elder Abuse:(1) The defendant had responsibility for meeting the basicneeds of the elder like nutrition, hydration, hygiene, ormedical care.(2) The defendant knew of conditions that made the elderunable to provide for her own basic needs.(3) The defendant denied or withheld goods or servicesnecessary to meet the elder’s basic needs, either withknowledge injury was substantially certain or withconscious disregard of the high probability of suchinjury.(4) The neglect caused the elder to suffer physical harm,pain, or mental suffering.(5) The facts constituting the neglect must be pleadedwith particularity. (Id. at 406-407.)In finding the allegations in Carter insufficient, thecourt noted that while plaintiff alleged that pressure soresdeveloped, plaintiff had not alleged how the defendantcaused the ulcers. The court also noted that plaintiff hadalleged the hospital did things for the decedent – whichindicated the hospital had not denied services. The courtstated that any failures to infuse proper antibiotics and tohave the proper tube available were matters ofprofessional negligence, not Elder Abuse. (Id. at 408.)MP defendant suggests that he is not liablebecause he did not provide custodial care for thedecedent. But custodial care is not required. A treatingphysician whose negligence is sufficiently egregious cancommit actionable “neglect” as that term is meant in theAct. (Mack v. Soung (2000) 80 Cal.App.4th 966, 973-975.)Thus, the key question is whether the facts allegedare sufficient to show egregious/recklessconduct. Reckless conduct is conduct which shows adeliberate disregard of the high degree of probability thatan injury will occur. Unlike negligence, recklessnessrequires more than inadvertence, incompetence,unskillfulness, or a failure to take precautions. Theremust be a conscious choice of a course of action withknowledge of the serious danger to others. (Id. at 972.)Defendant correctly notes that most of the verydetailed allegations regarding the problems with thedecedent’s treatment concern what the facility defendants

did, or did not, do. Plaintiff’s allegations are more sparsewith regard to defendant Shams. Plaintiffs allege thedecedent was admitted on 12-14-11 but defendant didnot see her until 2-6-12. Plaintiffs allege defendant’snurse practitioner saw the decedent on 2-16, a transferwas not ordered, and her family was not notified. Despitenotification that the decedent was refusing medicationand food, no transfer order was made on 2-26-12. And,on 6-1-12, the decedent was non-responsive to verbalstimuli during a visit with her physician.In addition, 66 of the Complaint allegesdefendant was the decedent’s treating physician duringthe entire relevant time period and that he breached hisduty to plaintiff by failing to see her within the required72-hours from admission and by failing to take adequateaction to ensure the decedent received proper care.The facts pleaded as to the moving partydefendant are sufficient to plead professionalnegligence. However, they do not appear sufficient toplead reckless conduct sufficient to support an ElderAbuse cause of action. In Mack v. Soung (2000) 80Cal.App.4th 966, 973-975, cited by plaintiff, thedefendant physician opposed a needed transfer to anacute care hospital and then abandoned the patient asshe was dying causing her family to have to take extrememeasures to get her care. (Id. at 970.) The facts allegedhere, as to the moving party, do not rise to that level.What appears to be lacking are specific allegationsabout what it is plaintiff’s defendant should have done,when it should have been done, and how the decedentwas injured by defendant’s actions or failure to act. Thedemurrer to the 2 nd cause of action is thus sustained withleave to amend.Given the large number of details contained in thepleading, most of which concern the entity defendants,the court notes that it would be helpful in any amendedpleading, if plaintiff included a section where theallegations against moving party defendant were clearlyset forth.TENTATIVE RULING (Motion to Strike):Defendant’s Motion to Strike is granted with 20-days leave to amend as to Requests 2 and 3 (as to the 1 stcause of action only) and Requests 5(a) - (f) and 5(i) –(k). Requests 4 and 5(g) – (h) are denied. Requests 1, 2and 3 (as to the 2 nd cause of action), and Requests 5(l) –(r) are moot as a result of the court’s ruling sustaining thedemurrer to the 2 nd cause of action.Service of Motion: Plaintiff contends that theMotion to Strike was not properly served. Defensecounsel says plaintiff was served by e-mail and thatplaintiff’s attorney failed to open the e-mail. However, asplaintiff filed an opposition on the merits, the objection toservice, even assuming plaintiff's version of events iscorrect, is waived. (Carlton v. Quint (2000) 77Cal.App.4th 690, 697.) In addition, as defendant filed a

timely Reply on the merits, the court will consider theopposition even though it was untimely filed.Request 1 (pain in suffering allegations in 93and 97): This request is moot as the demurrer to thiscause of action is sustained.Request 2 (attorney fees pursuant to Welfare andInstitutions Code §15657): The request for fees is madeas to the 1 st and 2 nd causes of action. As to the 2 nd causeof action the request to strike is moot as a result of theruling on the demurrer. As to the 1 st cause of action, therequest to strike is granted. Absent facts showing elderabuse, there is no basis for an award of attorney’s fees.Request 3 (punitive damages for 1 st and 2 nd causesof action): The request is moot as to the 2 nd cause ofaction as a result of the ruling on the demurrer. Therequest is granted as to the 1 st cause of action. Factssufficient to show malice, oppression, or fraud are notpleaded as to the moving party defendant. As noted inthe discussion of the demurrer to the Elder Abuse causeof action, further specifics about this defendant areneeded.Request 4 (“abuse and neglect” in 4 th cause ofaction): This request is denied. Plaintiff may characterizethe negligence alleged in this cause of action as abuseand neglect.Request 5: Plaintiff seeks to strike 18 portions ofthe complaint which refer to him.Requests 5(a) and 5(f) are granted. The factsalleged are not sufficient to show moving party was partof a joint enterprise with the other defendants such thathe should be liable for their actions.Request 5(b) is granted. The facts alleged are notsufficient to show reckless conduct and that defendantknew he was violating state and federal regulations anddefendants’ own policies.Request 5(c) is granted. The facts alleged are notsufficient to show defendant acted with willful disregard.Request 5(d) is granted. The facts alleged are notsufficient to show defendant acted with malice,oppression, or fraud.Request 5(e) is granted. The facts alleged are notsufficient to show defendant acted in concert with theentity defendants to maximize profits by understaffing thefacility.Request 5(g) is denied. While the facts are notsufficient to show defendant acted recklessly, thisparagraph also alleges negligence – for which the factsare sufficient.Request 5(h) is denied. The allegation thatdefendants knew if they failed to provide adequate care,

supervision, evaluation, and monitoring, the decedentwould likely sustain serious injury is warranted by thefacts and circumstances alleged.Request 5(i) is granted. The allegations thatdefendant acted intentionally and with consciousdisregard and that defendant’s actions constitute“neglect” and “physical abuse” as those terms are definedin the Welfare and Institutions Code are not supported bythe facts pleaded.Request 5(j) is granted. The allegations thatdefendant engaged in a profit scheme with the otherdefendants are not sufficient supported.Request 5(k) is granted. The allegations are notsufficient to show defendant acted with malice,oppression, or fraud.Requests 5(l) through 5(r) are moot as a result ofthe court’s ruling sustaining the demurrer to the 2 nd causeof action.12 2013-00656514Cali Beauty Supply Inc vsEZ Nails IncTENTATIVE RULING ON MOTIONS #1 AND 2: Thegeneral demurrer of cross-defendant Cali Beauty Nails,Inc., to the first, second, third, fourth, fifth, sixth, andeighth causes of action in the first amended crosscomplaintof cross-complainant EZ Nails is sustained with20 days’ leave to amend.The challenged causes of action do not contain any factsto support the required elements of the claims. Insteadof setting forth facts, the purported causes of action refergenerally to causes of action contained in thecomplaint. As such, the purported causes of action areincomplete and read like affirmative defenses that ask foraffirmative relief in the alternative.The cross-complaint must stand on its own, as the causesof action pled in a cross-complaint are independent ofthose pled in the complaint and the issues are “completelyseverable.” Moreover, the rules on format and content ofpleadings demanding relief are the same for complaintsand cross-complaints.Thus, the cross-complaint should set forth the details ofthe transactions between the parties, including the termsof any contracts, and pertinent dates.The motion to strike is moot.13 2012-00572731Aguila vs MoralesTENTATIVE RULING:Plaintiff Henry Aguila’s Motion to Compel FurtherDeposition Responses of David Morales Jr. and to Compelthe Deposition of Thomas J. Tedesco is DENIED in partand GRANTED in part, as follows:1. The court concludes that plaintiff was properly andtimely served with defendant’sOpposition. Defendant was permitted to file andserve his opposition at least 9 court days prior tothe 08/28/13 hearing. See Code Civ. Proc.

§1005(b). He did so. The proof of serviceindicates that plaintiff was served on 08/15/13 viaovernight delivery, which is a method reasonablycalculated to ensure delivery to plaintiff by thefollowing business day. See id. at subd.(c).2. Plaintiff’s request to compel deposition responsesfrom defendant David Morales, Jr. isDENIED. Plaintiff admits that he filed his motionmore than 60 days from 05/22/13, the date ofcompletion of the record of the deposition. SeeCode Civ. Proc. §2025.480(b). There is noauthority under Section 2025.480 to “toll” or“extend” the time period for filing a motion tocompel answers at a deposition. In addition,plaintiff did not lodge a certified copy of thetranscript with the court in compliance with Codeof Civil Procedure §2025.480(h). He did not file aseparate statement as required by California Ruleof Court 3.1345(a)(4).3. The court will award sanctions to defendant in theamount of $1600, payable by plaintiff within 30days. See Code Civ. Proc. §2025.480(j).4. Plaintiff’s request to compel the deposition of nonpartydeponent Thomas Tedesco is GRANTED, onthe condition that plaintiff restrict his questioningto topics directly relevant to the allegations madein the First Amended Complaint. See Code Civ.Proc. §1987.1(a). The court understands that Mr.Tedesco has already been questioned at length byplaintiff in the related case, and those lines ofquestioning should not be repeated here unlessdirectly relevant to the facts alleged in the FirstAmended Complaint.

# Case Name1 2012-00609055Ahmed vs JP MorganChase Bank NATENTATIVE RULING:Defendants’ motion to deem facts admitted and tocompel responses to form and special interrogatories isgranted. Plaintiff is to provide responses within 20days. The court awards sanctions against Plaintiff in theamount of $864. Moving parties are to give notice.Special & Form Rogs: Defendants have compliedwith the requirements in bringing the motion to compelresponses to Special and Form Rogs per CCP §2030.290and made a showing that the interrogatories were servedupon Plaintiff, that the time to respond had expired, andthat no responses of any kind had been served (see SnowDeclarations). Leach v. Sup. Ct. (1980) 111 Cal.App.3d902, 905–906. There is no need to informally resolve thedispute. CCP §2030.290; Leach, supra, at 906. SincePlaintiff did not respond, she has waived her right toobject to the interrogatories. CCP §2030.290. Plaintiff isordered to serve verified responses without objection.RFAs: Under CCP §2033.280:“(c) The court shall make this order [to deemmatters admitted], unless it finds that the party towhom the requests for admission have beendirected has served, before the hearing on themotion, a proposed response to the requests foradmission that is in substantial compliance withSection 2033.220. It is mandatory that the courtimpose a monetary sanction . . . on the party orattorney, or both, whose failure to serve a timelyresponse to requests for admission necessitatedthis motion.” (Emphasis added.)No attempt to meet and confer is necessary if noresponses were given. See Demyer v. Costa Mesa MobileHome Estates (1995) 36 Cal.App.4th 393, 395 fn. 4(citing text) (disapproved on other grounds in Wilcox v.Birtwhistle (1999) 21 Cal.4th 973, 983 fn. 12).Here, Defendants served Plaintiff with Requests forAdmission and no response was given. Unless Plaintiffmakes some kind of showing that she served responsesprior to the hearing at the hearing, the court is requiredto order the matters in the RFAs to be deemed admittedper CCP §2033.280(c).Sanctions: The court is authorized to awardsanctions for the motions to compel responses to Rogs(CCP §2030.290) and motion to deem matters admitted(CCP §2033.280) against the losing party. Although thestatutes are silent on the matter, the CRC authorize anaward of sanctions “even though no opposition to themotion was filed, or opposition ... was withdrawn, or therequested discovery was provided ... after the motion wasfiled.“ CRC Rule 3.1348(a). Considering the motion issimple, straightforward and unopposed, the court awardssanctions in the amount of $864 (2 hours at $402/hourplus $60 filing fee) against Plaintiff.

2 2013-00657958Abad Foam, Inc vs SAPAmerican IncTENTATIVE RULING:MOTION NO. 1 – DEMURRER (Vision 33): Vision 33’sdemurrers COAs 2 and 4-10 of the complaint areoverruled. Vision 33 is to file and serve an answer within10 days. Plaintiff is to give notice.Statute of Limitations: Where the dates alleged inthe complaint show the action is barred by the statute oflimitations, a general demurrer lies. See Saliter v. PierceBros. Mortuaries (1978) 81 Cal.App.3d 292, 300. Thedemurrer lies only where the dates in question are shownon the face of the complaint. If they are not, there is noground for general demurrer (dates not being essential tothe cause of action). See Union Carbide Corp. v. Sup. Ct.(1984) 36 Cal.3d 15, 25. Allegations that an eventoccurred “on or about” the crucial date for statute oflimitations purposes overcome a general demurrer. It isenough that the claim may be timely. (If it is not,defendant can move for summary judgment.) Childs v.State of Calif. (1983) 144 Cal.App.3d 155, 160.Equitable tolling is a judge-made doctrine “whichoperates independently of the literal wording of the Codeof Civil Procedure to suspend or extend a statute oflimitations as necessary to ensure fundamentalpracticality and fairness.” Lantzy v. Centex Homes (2003)31 Cal.4th 363, 370.To the extent Plaintiff wishes to rely on the delayeddiscovery rule, Plaintiff must plead the specific factsshowing (1) the time and manner of discovery and (2) theinability to have made earlier discovery despitereasonable diligence.” Fox v. Ethicon Endo-Surgery, Inc.(2005) 35 Cal.4th 797, 808.Here, Defendant Vision 33 argues that the two andthree year statute of limitations (CCP §§ 339 and 338(d))began to accrue in 2009 with respect to the tort claims fornegligence, negligent and intentional misrepresentation,concealment (COAs 4, 8, 9 and 10, respectively).The complaint refers to October 2009 as the timein which Plaintiff’s CEO had trouble finding costs forcertain items and then notified Vision 33 around January2010 about the problems. In 2011, Plaintiff thenpurchased several servers to run the software per Vision33’s advice. However, that did not fix theproblems. Finally, Vision 33 admitted the software did notwork.The dates are vague as to when Vision 33 admittedthe software did not work. Also, it is unclear why therewas such a large time gap between January 2010 to 2011when nothing was done. However, given that Plaintiff wasacting upon Vision 33’s instructions in 2011 to purchasethe servers and to be continually dragged along theimplementation process, it would be unfair to Plaintiff in

this situation after allowing Vision 33 to attempt to correctthe system to bar their claims.Vision 33 improperly attempts to introduceextrinsic evidence to show that Plaintiff approved eachphase of the software implementation. The court cannotconsider it in its analysis.The demurrers to the tort-based claims based onthe statute of limitations are overruled.Economic Loss Rule: Conduct amounting to abreach of contract becomes tortious only when it alsoviolates a duty independent of the contract arising fromprinciples of tort law. Erlich v. Menezes (1999) 21 Cal.4th543, 551. In summary, the economic loss rule allows aplaintiff to recover in strict products liability in tort when aproduct defect causes damage to ‘other property,’ that is,property other than the product itself. RobinsonHelicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4 th 979,989.Plaintiff’s claim for negligence, at first glance,appears to be a tortious breach of contract claim allegingthe software did not work the way it was supposedto. However, Plaintiff argues that Vision 33 causedPlaintiff to lose a large amount of data, which is sufficientto show damage to “other property.” As for the negligentmisrepresentation cause of action, Plaintiff alleges it reliedupon Vision 33’s representation as to the capability andfunctionality of the software to purchase it.The demurrers to the 4 th COA for negligence and8 th COA for negligent misrepresentation based on thistheory are overruled.Breach of Contract & Express Warranty: “A causeof action for damages for breach of contract is comprisedof the following elements: (1) the contract, (2) plaintiff'sperformance or excuse for nonperformance, (3)defendant's breach, and (4) the resulting damages toplaintiff. It is elementary that one party to a contractcannot compel another to perform while he himself is indefault. While the performance of an allegation can besatisfied by allegations in general terms, excuses must bepleaded specifically.” Durell v. Sharp Healthcare (2010)183 Cal.App.4th 1350, 1367 (citations and quotationsomitted). A written contract may be pleaded either inhaec verba (word for word) or generally “according to itslegal intendment and effect” (e.g., “Defendant agreed tosell the described property to Plaintiff for$100,000”). Construction Protective Services, Inc. v. TIGSpecialty Ins. Co. (2002) 29 Cal.4 th 189, 198–199(plaintiff may plead the legal effect of the contract ratherthan its precise language).Here, the 2 nd and 5 th COAs alleged breaches ofcontract and express warranty, respectively. Plaintiffstates in the Complaint 62 that Vision 33 “failed toproperly integrate the Software so that Plaintiff could usethe Software for its business purposes as defined as KeyPerformance Indicators in the Purchase

Agreement.” Section 2.1 of the Purchase Agreement (akaProject Charter Agreement – Exh. 3 to Complaint) statesthe following Key Performance Indicators (“KPI”):“The following factors are considered critical to thesuccess of the project:1. Improve accuracy of accounting system2. Improve the visibility of the system data3. Be able to make informed business decisionsbased on data from the systema. Are we making money on this itemb. Profitability by customer or product line4. Implement a fully integrated system which willenable an increase in efficiencyThese KPIs have been provided to Vision33 by theClient [Plaintiff] as the benchmarks by which thesuccess s of this project will be determined.”Defendant Vision 33 argues that the KPIs were notcontractual requirements. However, the purpose of thecontract was to reach those goals, and Plaintiff allegesVision 33 failed. The rest of Section 2 of the PurchaseAgreement contains requirements for “deliverables.” Forexample, the Purchase Contract included softwarecapability allowing Plaintiff to input pricing and iteminformation, but it had difficulty doing that.For the same reasons, the claim for expresswarranty is sufficiently pled.The demurrers to these two causes of action areoverruled.Breach of Implied Warranties: Vision 33 arguesthat the Item 13 of Section 4.1 of the Purchase Contractconspicuously denied all implied warranties with thefollowing statement: “Vision 33 does not warranty SAPBusiness One Software against defects.”“Language in the body of a form is ‘conspicuous' ifit is in larger or other contrasting type or color.” Dormanv. International Harvester Co. (1975) 46 Cal.App.3d 11,18 (interpreting Com. Code §2316). Here, the disclaimerof warranties by Vision 33 is not conspicuous as it is thesame size, font and color of the other items beforeit. This is the only ground upon which Vision 33’sdemurrers rely. Therefore, the demurrers to the 6 th and7 th COAs for implied warranties are overruled.MOTION NO. 2 – JOINDER (SAP): SAP’s joinder toVision 33’s demurrer is denied since the arguments andgrounds for demurrer are different. Plaintiff is to givenotice.MOTION NO. 3 – DEMURRER (SAP): SAP’s demurrersto COAs 3 and 6-8 of the complaint are sustained withoutleave to amend as to COAs 6 and 7, but overruled as toCOAs 3 and 8. SAP is to file and serve an answer within10 days. Plaintiff is to give notice.

Implied Warranties: The 6 th and 7 th COAs allegeSAP breached the implied warranty of merchantability andfitness for a particular purpose. Under Com. Code §2316,any disclaimer of the implied warranty of merchantabilitymust mention the word merchantability and beconspicuous, and any disclaimer of the implied warrantyof fitness for a particular purpose must be in writing andconspicuous. As already addressed in Vision 33’sdemurrer analysis, “Language in the body of a form is‘conspicuous' if it is in larger or other contrasting type orcolor.” Dorman v. International Harvester Co. (1975) 46Cal.App.3d 11, 18. Plaintiff acknowledges that is thecourt’s role to decide whether the disclaimer isconspicuous (Com. Code §1201(10)). Here, the LicensingAgreement (Complaint Exh. 1) is four pages. On page 3,§7.2 states:Express Disclaimer. SAP AND ITS LICENSORSDISCLAIM ALL OTHER WARRANTIES EXPRESS ORIMPLIED, INCLUDING WITHOTU LIMITATION, ANYIMPLIED WARRANTIES OF MERCHANTABILITY ORFITNESS FOR A PARTICULAR PURPOSE EXCEPT TOTHE EXTENT THAT ANY WARRANTIES IMPLIED BYLAW CANNOT BE VALIDLY WAIVED.The disclaimer clearly stands out from the rest ofthe body of the agreement is it is in capitalized font, whilethe other sections above and below it are in lower casefont. Considering the Licensing Agreement is only fourpages, this provision is not buried in an overly-lengthyagreement. Taking all of the factors into account, thecourt finds that the disclaimer of the implied warranties isconspicuous.The demurrers to these causes of action aresustained without leave to amend.Economic Loss Rule: For the same reasons setforth in the analysis to Vision 33’s demurrer, thedemurrers to the 3 rd and 8 th COAs for negligence andnegligent misrepresentation, respectively, are overruled.MOTION NO. 4 – PRO HAC VICE (Tully): Movingattorney failed to state whether he had made repeatedappearances in the State, not just in the prior twoyears. CRC Rule 9.40(b) states, “Absent specialcircumstances, repeated appearances by any personunder this rule is a cause for denial of anapplication.” Without such information, the court cannotmake a full determination whether there is cause fordenial of the application in this instance. The motion iscontinued to 11/6/13 or another date selected by movingparty, to allow moving attorney to provide a supplementaldeclaration to address this issue. The declaration must befiled at least 7 court days prior to the continuedhearing. Moving attorney is to give notice.MOTION NO. 5 – PRO HAC VICE (Star): Thisapplication fails for the same reasons stated above. Themotion is continued to 11/6/13 or another date selectedby moving party, to allow moving attorney to provide asupplemental declaration to address the CRC Rule 9.40(b)

issue. The declaration must be filed at least 7 court daysprior to the continued hearing. Moving attorney is to givenotice.4 2013-00641882Mazarei vs RydmanTENTATIVE RULING:The court never received any oppositions by Plaintiff tothese discovery motions but the Replies make referencesto them. It appears Defendants received late discoveryresponses. The court continued this matter to allowPlaintiff to file the oppositions, but to date, no oppositionshave been filed. Since Defendants state in their Repliesthat late responses were served, the motions are mootand any dispute regarding the sufficiency of thoseresponses should be raised via motion to compel furtherresponses. The court awards sanctions in the totalamount of $1,060 (covering both motions) againstPlaintiff. Moving parties are to give notice.5 2013-00639166Bird vs Ford MotorCompanyTENTATIVE RULING:Ford's demurrer to the 1 st -4 th causes of action is sustainedwithout leave to amend, as the statute of limitations hasrun for each cause of action. The Court finds that, in lightof plaintiff’s allegations of fraud, misrepresentation andconcealment the gravamen of his claims is fraud and notsubject to CCP 337(3). Plaintiff is not barred from seekingrescission pursuant to his instant claims, nor does theavailability of this remedy in contract establish acontractual claim.The doctrine of cross-jurisdictional or equitable tolling hasbeen repeatedly rejected, with only narrow exceptionpermitted. The overwhelming authority supports theapplication of California statutes of limitation in its ownjurisdiction, regardless of the status of federal classactions.Because the gravamen of the 1 st three causes ofaction is fraud/concealment, not breach of contractor fraud within the contract itself, the claims aresubject to the three-year statute of limitations forfraud under CCP 338CCP 337 provides, in relevant part:“3. An action based upon the rescission of a contract inwriting. The time begins to run from the date upon whichthe facts that entitle the aggrieved party to rescindoccurred. Where the ground for rescission is fraud ormistake, the time does not begin to run until thediscovery by the aggrieved party of the facts constitutingthe fraud or mistake.”No matter how captioned or pleaded, the court will,however, look to the gravamen to the complaint todetermine the nature of the claim. (San Filippo v. Griffiths(1975) 51 Cal.App.3d 640.) Although the issues werereversed in San Filippo, it remainsinstructive. Subsequent to written settlement in an actionfor dissolution, wife discovered property that the husband

had concealed. She filed suit more than three, but fewerthan four years after discovery. The husband’s contentionthat her claim was barred by CCP 338 was rejected by thecourt, as the contract included an express provisionapplicable to additional properties identified afterexecution of the agreement. Because the properties wereidentified post- agreement, the husband’s failure to makepayment or to disclose the properties was premised uponhis contractual obligation. Accordingly, the four-yearstatute of limitations applied.Again, in Galen v. Mobil Oil (C.D. Cal.1996) 922 F.Supp.318, where a purchaser of land sought to recover underthe rescission/fraud exception, the court found that actualor constructive knowledge of the facts barred a claimunder CCP 337(3):“Because Levinson had actual or constructive knowledgeof the facts allegedly constituting fraud by April 1989,section 337(3)'s fraud exception does not save therescission claim. To rescind the contract on fraud grounds,he had to file suit by April 1993. He failed to do so. Thus,the claim is time-barred.”Here, plaintiff repeatedly alleges that he was misled,deceived, that misrepresentations were made and thatfacts were concealed—all to induce him to purchase thevehicle. The gravamen of the first three causes of actionis thus fraud, which is subject to a three-year statute oflimitations.Plaintiff is not entitled to cross-jurisdictional/equitable tollingEquitable tolling applies where more than one legalremedy is available to a plaintiff and the plaintiff relies ingood faith upon one option—here, the filing of classactions in connection with Navistar enginedefects. Centaur Classic Convertible Arbitrage Fund Ltd.v. Countrywide Financial Corp. (C.D.Cal.2011) 878F.Supp.2d 1009, cited by defendant, provides thatalthough a federal claim may be tolled when a class actionis pending, it does not extend the time for filing a stateclaim. “While commencement of a putative class actiontolls the running of the statute of limitations on federalclaims asserted for all purported members of class whomake timely motions to intervene, or who pursue thesame claims in anew action, after the court has found thesuit inappropriate for class action status; state law claims,on the other hand are not necessarily tolled, but insteadare governed by state law statutes of limitation and statelaw tolling principles.”Plaintiff’s reliance upon American Pipe & Construction v.Utah (1974) 414 U.S. 538 is also misplaced, as the matterwas filed in federal court and involved violation of federallaw. The matter included alleged violations of the ClaytonAct, which specifically provides that “the running of thestatutes of limitations be ‘suspended’ by the institution ofa Government antitrust suit based on the same subjectmatter.”In San Francisco Unified School v. W. R. Grace & Co.(1995) 37 Cal.App.4 th 1318, the court was asked to

determine when plaintiff was placed on notice as to itsstrict liability claim for installed asbestos, which was alsothe subject of a federal class action. The court found that,until the date of injury had been determined, the statuteof limitations for strict liability remained a triable issue offact and that summary judgment had been improperlygranted. At the request of plaintiff, the court alsoaddressed the effect of the class action on the statute oflimitations.In addressing the concept of cross-jurisdictional tolling,the court explained: “Under the supremacy clause, thesedecisions have the force of law in California if the classaction was filed in federal court. (See U.S. Const., art. VI,cl. 2.) At least one federal district court has noted that notone of the three key United States Supreme Court caseson tolling has “limited its holding to federal statutes oflimitations.” [Citations] California has adopted somewhatdifferent state class action rules and thus only considersfederal decisions about federal rules to be persuasive tothe extent that state and federal rules parallel each otherand state policy considerations are similar to thoseunderlying the federal rules. [Citations] However, in bothJolly and Becker, the underlying class actions and thesubsequent individual actions were brought in statecourt.”Although the court ultimately found that the presence ofasbestos in schools issue warranted a narrow exception tothe rule against cross-jurisdictional tolling and opted totoll the statute of limitations, the case also notes: “[T]heCalifornia Supreme Court discussed these United StatesSupreme Court cases. It stated that it was not bound bythese cases, but considered their applicability. [Citations]Then, Jolly declined to “extend” the United StatesSupreme Court cases to a mass-tort class action situationpresented by a prescription drug litigation case.”As to plaintiff’s notice, the court determined: “[W]e holdthat in an asbestos-in-building case, the mere presence ofasbestos constitutes only a threat of future harm.Contamination by friable asbestos is the physical injuryand the actual, appreciable harm that must exist before aproperty owner's strict liability or tort cause of actionagainst an asbestos manufacturer accrues and thelimitations period commences.”The remaining cases relied upon by plaintiff provide himno greater assistance and cases decided during the nearly30 years following San Francisco Unified reinforceCalifornia’s rejection of cross-jurisdictional tolling. By wayof example, in Clemens v. Daimler Chrysler Corp. (2008)534 F.3d 1017 the court stated: “Accordingly, the weightof authority and California's interest in managing its ownjudicial system counsel us not to import the doctrine ofcross-jurisdictional tolling into California law. The rule ofAmerican Pipe—which allows tolling within the federalcourt system in federal question class actions—does notmandate cross-jurisdictional tolling as a matter of stateprocedure. We therefore conclude that the filing of theIllinois action did not toll the statute, and Clemens's CivilCode fraud claim is barred by the three-year statute oflimitations.”

Again, in Centaur Classic Convertible Arbitrage Fund Ltdv. Countrywide (C.D. Cal. 2011) 878 F.Supp.2d 1009, thecourt explained: “This Court is persuaded that crossjurisdictionaltolling, as discussed by the Ninth Circuit inClemens and Hatfield, includes all situations where a classaction is filed outside the California state court system,irrespective of whether the class claims are made underCalifornia law.”Accordingly, the law overwhelmingly weighs againsttolling plaintiff’s fraud claims.The 4 th cause of action for violation of the CLRAisbarredCC 1783, applicable to plaintiff’s CLRA claim, sets forththe statute of ‘imitations:“Any action brought under the specific provisions ofsection 1770 shall be commenced not more than threeyears from the date of the commission of such method,act, or practice.”Pursuant to the judicial admission in plaintiff’s complaint,listing notice as 12/09, the statute had run as of 12/12,rendering the CLRA claim untimely.7 2013-00661340AFT Creations Inc vsAnaJet, LLCTENTATIVE RULING:Defendant’s Motion to Strike the requests fordamages and attorney’s fees ( 31 and 1 and 4 of theprayer for the 4 th cause of action) is granted with 20-daysleave to amend.Request for damages in the 4 th cause of action forviolation of Business & Professions Code §17200: Plaintiffrequests “damages in excess of $30,524” in connectionwith its Business & Professions Code §17200 cause ofaction. However, damages are not recoverable. “Privateplaintiffs suing under the UCL may seek only injunctiveand restitutionary relief ….” (Rose v. Bank of America,N.A. (2013) 57 Cal.4th 390, 399.) Plaintiff argues in theopposition that the amount of damages and the amount ofrestitution are the same. However, plaintiff has pleadeddamages – and damages are not properly sought inconnection with this cause of action.Request for Attorney’s Fees in the 4 th cause ofaction for violation of Business & Professions Code§17200: Attorney fees are not authorized by§17200. “[T]he UCL does not authorize attorneyfees.” (Id.) Plaintiff responds that it is entitled to requestfees under the private attorney general doctrine. (CCP1021.5)CCP 1021.5 provides in pertinent part:“Upon motion, a court may award attorneys' feesto a successful party … in any action which hasresulted in the enforcement of an important rightaffecting the public interest if: (a) a significantbenefit, whether pecuniary or nonpecuniary, has

een conferred on the general public or a largeclass of persons, (b) the necessity and financialburden of private enforcement, or of enforcementby one public entity against another public entity,are such as to make the award appropriate, and(c) such fees should not in the interest of justicebe paid out of the recovery, if any….”Private attorney general fees are only warrantedwhen the litigation (1) served to vindicate an importantpublic right; (2) conferred a significant benefit on thegeneral public or a large class of persons; and (3)imposed a financial burden on plaintiffs which was out ofproportion to their individual stake in the matter.(California Licensed Foresters Assn. v. State Bd. ofForestry (1994) 30 Cal.App.4th 562, 569.) None of thesefactors are established by the facts pleaded in thecomplaint. The allegations indicate this is a disputebetween a vendor and a customer over allegedly defectiveequipment. There are no facts showing a significantbenefit to the general public or a large class of personswill be conferred if plaintiff prevails.8 2013-00639248Walker vs Frandeli GroupLLCTENTATIVE RULING:Defendant’s Motion to Compel Arbitration isgranted. Defendant is to pay all costs of arbitration. Thearbitrator must issue a written decision. The parties shallmeet and confer on who to appoint as an arbitrator and ifthey cannot agree, a motion seeking appointment of anarbitrator may be filed. (CCP 1281.6) Plaintiff’s Requestfor Judicial Notice is denied. This case is stayed pendingcompletion of arbitration.Request for Judicial Notice: Plaintiff’s Request forJudicial Notice of the 11-27-12 minute order in Vega v.Frandeli Group, LLC is denied. The discussion of thearbitration provisions in the order in the Vega case showthat the issues in that case differ significantly from theissues here. The order is thus irrelevant to this court’sdetermination.The opposition has been considered: Defendantargues that the opposition was untimely served because itwas not served in a manner sufficient to ensure next-daydelivery and thus asks that the court disregarded theopposition. However, defendant has replied on themerits, thus waiving any service objection. (Carlton v.Quint (2000) 77 Cal.App.4th 690, 697.) The oppositionhas accordingly been considered.The parties entered an agreement toarbitrate. The third page of the 3-page EmploymentApplication executed by plaintiff contains an arbitrationprovision which provides:“I hereby agree to submit to binding arbitration ofall disputes and claims arising out of thesubmission of this application. I further agree, inthe event that I am hired by Frandeli, that alldisputes that cannot be resolved by informalinternal resolution which might arise out of myemployment with the company, whether during or

after that employment, will be submitted tobinding arbitration pursuant to the company’sdispute resolution policy.”Plaintiff’s claim of racial discrimination arose fromhis submission of the application and the arbitrationprovision is thus applicable. By contrast, because plaintiffwas never hired, the language regarding the company’sdispute resolution policy was not triggered. Accordingly,the language stating plaintiff agreed to binding arbitrationconstitutes the entire arbitration provision. No details onhow the arbitration was to be conducted are set forth inthe agreement.Plaintiff contends that the arbitration agreement isnot enforceable because there was no consideration fromdefendant. However, defendant’s consideration of theapplication for employment would appear to constituteconsideration. In addition, the mutuality of theagreement to arbitrate also constitutes consideration.Plaintiff argues the “I agree” language of thearbitration provision establishes that the provision lacksmutuality – that plaintiff was required to arbitrate anyclaims he might bring while defendant was not sorequired. However, the provision applies to “all disputesand claims.” And, language effectively indistinguishablefrom this has been found to create a mutual agreement toarbitrate.In Roman v. Superior Court (2009) 172Cal.App.4th 1462, 1466, the court found that a provisioncontained in the employee’s employment applicationstating: “I agree, in the event I am hired by thecompany, that all disputes and claims that might arise outof my employment with the company will be submitted tobinding arbitration” required that both the employee andthe employer arbitrate. (Roman v. Superior Court (2009)172 Cal.App.4th 1462, 1466.)“Absent some indicia in the agreement thatarbitration is limited to the employee's claimsagainst the employer, the use of the ‘I agree’language in an arbitration clause that expresslycovers ‘all disputes’ creates a mutual agreement toarbitrate all claims arising out of the applicant'semployment. Accordingly, whatever elements ofprocedural unconscionability may be present inemployment adhesion contracts, the agreement toarbitrate does not lack mutuality of obligation soas it [sic] make it substantivelyunconscionable.” (Roman v. Superior Court(2009) 172 Cal.App.4th 1462, 1466.)Thus, pursuant to the language of the agreement,defendant also agreed to arbitrate and that constitutesconsideration.Plaintiff also objects that the arbitration provisionlacks sufficiently certain terms. However, as is discussedbelow, terms in compliance with Armendariz are implied.

And, plaintiff argues the agreement is notenforceable because it contains contradictory terms onwhether or not it is a contract – pointing out that theEmployment Application states:“I understand that nothing in this employmentapplication, the granting of an interview, or mysubsequent employment with Frandeli Group isintended to create an employment contractbetween myself and Frandeli Group under whichmy employment could be terminated only forcause. On the contrary, I understand and agreethat, if hired, my employment will be terminable atwill, and may be terminated by me or by FrandeliGroup at any time and for any reason. Iunderstand that no person has any authority toenter into an agreement contrary to theforegoing.”This language does not contradict the arbitrationprovision. It provides that no employment contract whichrequires cause for termination is being formed. Anagreement to arbitrate disputes is not inconsistent withthis provision.Unconscionability: Plaintiff argues the agreementis unenforceable because it is unconscionable. Anarbitration agreement may be unenforceable if it is bothprocedurally and substantively unconscionable. Thestronger the showing of substantive unconscionability, theless the showing of procedural unconscionability required,and vice versa. (Armendariz v. Foundation HealthPsychcare Services, Inc. (2000) 24 Cal.4th 83, 113-114.)Procedural Unconscionability: “Proceduralunconscionability addresses the manner in whichagreement to the disputed term was sought or obtained,such as unequal bargaining power between the partiesand hidden terms included in contracts ofadhesion.” (Szetela v. Discover Bank (2002) 97Cal.App.4th 1094, 1099-1100.) Proceduralunconscionability exists where the weaker party ispresented with the clause in a take it or leave it mannerwithout the opportunity for meaningful negotiation. (Id.at 1100.) Thus, an arbitration agreement that is anessential part of a “take it or leave it” employmentcondition, is generally procedurallyunconscionable.” (Martinez v. Master Protection Corp.(2004) 118 Cal.App.4th 107, 114.)Here, the arbitration provision has some proceduralunconscionability. Plaintiff, the weaker party, had noopportunity to negotiate its terms. The clause was nothighlighted in any fashion and was included among astring of unrelated clauses. In addition, plaintiff wasverbally told that part of the form concerned authorizationfor defendant to do a background check and contactplaintiff’s references. However, plaintiff did separatelyinitial the arbitration clause. Thus, while some proceduralunconscionability is present, this is not a case where theprocedural unconscionability is particularly strong.

Substantive Unconscionability: Substantiveunconscionability exists when the agreement is overlyharsh and unfairly one-sided. E.g., an agreement may besubstantively unconscionable if it requires arbitration ofclaims of the weaker party only. (Fitz v. NCR Corp.(2004) 118 Cal.App.4th 702, 713.) However, while lackof mutuality may create substantive unconscionability, asdiscussed above, the language in this agreement createda mutual obligation.Provisions of an arbitration agreement which donot comply with the requirements for arbitration of FEHAclaims may also render an agreement substantivelyunconscionable. FEHA claims may be subject to arbitrationif certain requirements are met. “[T]he arbitration mustmeet certain minimum requirements, including neutralityof the arbitrator, the provision of adequate discovery, awritten decision that will permit a limited form of judicialreview, and limitations on the costs ofarbitration.” (Armendariz v. Foundation Health PsychcareServices, Inc. (2000) 24 Cal.4th 83, 91.) Adequatediscovery must be allowed and the employer must pay thearbitration costs. (Id. at 103-104 and 111.)Here, the arbitration provision has no languagewhich expressly violates the requirements of Armendarizas it does not set out the procedures which will beutilized. Plaintiff contends this lack of terms means theagreement violates Armendariz and thus that itis unconscionable. Defendant responds that theagreement’s silence on the details impliedly incorporatesthe requirements of Armendariz.CCP 1281.6 sets forth a procedure for choosing aneutral arbitrator when the agreement does provide amethod. The Code also takes care of the requirementthat a written decision be issued. “The award shall be inwriting and signed by the arbitrators concurring therein. Itshall include a determination of all the questionssubmitted to the arbitrators the decision of which isnecessary in order to determine the controversy.” (CCP1283.4) And, the agreement’s silence on remedies isconstrued as “implicitly” complying with the requirementof Armendariz that all types of relief available in court willbe afforded. (Fittante v. Palm Springs Motors, Inc. (2003)105 Cal.App.4th 708, 717.)As to discovery, defendant contends that CCP1283.05 guarantees plaintiff the right to discovery. [CCP1283.05 sets forth broad discovery rights for parties inarbitration.] However, CCP 1283.05 only applies to theextent provided by CCP 1283.1 – which says CCP 1283.05is incorporated into every agreement to arbitrate claimsarising from an injury or death to a person caused by awrongful act or neglect. (CCP 1281.3(a)) In all othercases, CCP 1283.05’s discovery provisions are notincorporated into the agreement as a matter of law. (CCP1283.1(b)) And, this is not a personal injurycase. However, the Armendariz court stated, whendiscussing discovery rights in FEHA arbitrations:“We further infer that when parties agree to

arbitrate statutory claims, they also implicitly agree,absent express language to the contrary, to suchprocedures as are necessary to vindicate thatclaim.” (Armendariz, 24 Cal.4th 83, 106.)Plaintiff points out that the agreement at-issue inArmendariz incorporated the Act, which includes CCP1283.05. But the Armendariz court did not indicate itsfinding there was an implicit agreement for sufficientdiscovery – so long as the agreement does not provide tothe contrary – requires that the agreement incorporatethe Act. Accordingly, here too, the right to adequatediscovery is implied.Similarly, the employer’s obligation to pay thecosts of arbitration is implied. “[A] mandatoryemployment arbitration agreement that contains within itsscope the arbitration of FEHA claims impliedly obliges theemployer to pay all types of costs that are unique toarbitration. Accordingly, we interpret the arbitrationagreement in the present case as providing, consistentwith the above, that the employer must bear thearbitration forum costs. The absence of specific provisionson arbitration costs would therefore not be grounds fordenying the enforcement of an arbitrationagreement.” (Armendariz, 24 Cal.4th at113.) Accordingly, a requirement that the employer paythe costs of arbitration is implied into this agreement.In short, while there is some proceduralunconscionability, the agreement is not substantivelyunconscionable and the agreement is thus enforceable.This action is stayed. Defendant asks this court todismiss the action. Plaintiff responds that if arbitration isordered, the action should be stayed. (CCP 1281.4) And,a stay is the better approach. In the event the arbitrationfails to go forward (e.g., if the employer were to fail topay the arbitration fees), this case could proceed. Inaddition, if a motion to confirm, vacate, or correct anyarbitration award rendered is needed, such requests maybe filed in this case.9 2008-00110725Century 21 Chamberlain &Associates vs First TeamReal Estate of OrangeCountyTENTATIVE RULING:Motion Nos. 2 & 3 – Compel Production: The motionsto compel production are denied. Plaintiffs are to givenotice.These motions are brought pursuant to CCP§1987(c), which requires an opposing party to appear attrial and to produce certain documents.The notice must: (1) be served on the party fromwhom production is sought at least 20 days before thedate attendance is required (unless an order shorteningtime is granted); and (2) state the exact materials orthings desired and that the party or person has them inhis or her possession or control. CCP §1987(c) (emphasisadded).The party or person of whom the request is mademay challenge the notice by serving written objections

and a statement of grounds (e.g., privilege). Unless thecourt otherwise extends time, the objection must beserved within 5 days after service of the notice to produce(extended 5 days if served by mail; see CCP§1013(a)). CCP §1987(c). The burden is then on therequesting party to file a noticed motion for production ofthe items sought, “accompanied by a showing of goodcause and of materiality” to the issues in the case.Production may be ordered unless the objecting partyestablishes good cause for nonproduction or for imposinglimits or conditions on the production. CCP §1987(c).On 01/02/13, Judge Claster ordered Plaintiffs toproduce the following documents (see Opp. Decl. Exh. A):Audited and unadudited financial statements, incomestatements of stockholder equity from 2005-2012, allunderlying documents used to prepare profit and lossstatements, cash flow statements and balance sheets,gross sales documents and any business or financialrecords that evidence sales, net profits and/or claimeddamages. Here, Defendant has not stated why any ofthose documents are insufficient in providing theinformation sought from his CCP §1987(c) notices andany requests for tax documents violates the parties’ rightsto privacy. No good cause has been shown.Also, for discovery purposes, a party may compeldocument production by reasonably describing a categoryof documents (e.g., “all correspondence between Jonesand Smith relating to the XYZ transaction”). CCP§2031.030(c)(1). But to obtain production at trial, thedescription must be “exact” (e.g., “letter dated June 21,1990, written by Harry A. Jones to Paula Smith, captioned‘Re XYZ’ and marked as Exhibit ‘A’ in Smith'sdeposition“). This prevents parties from using a “notice toproduce” for discovery purposes after discovery isclosed. See TRG, Civ. Trials and Evid. §§1:115-1:115.1.Here, all of the requests in the subject CCP§1987(c) notices at issue here do not state the exactdocuments sought to be produced at trial and areimproper attempts to seek discovery of documents pastthe discovery cut-off deadline. Therefore, the motions tocompel production are denied.Motion No. 4 – Quash Subpoena: The motion to quashor modify the subpoena is denied. Plaintiffs are to givenotice.A deposition subpoena may be attacked forseeking records not within the permissible scope ofdiscovery, e.g., not relevant to the subject matter. SeeTRG, Civ. Proc. Before Trial, §8:598.“Character evidence” is evidence of a person'spropensity or tendency to act in a certain way undercertain circumstances. People v. McAlpin (1991) 53Cal.3d 1289, 1305.Logically, character evidence might be relevant inalmost any case as tending to show a party's propensity

to act in a certain manner. But, character evidence is“inadmissible when offered to prove his or her conduct ona specified occasion.” Evid. Code §1101(a).By statute, character evidence is admissible in thefollowing cases: (1) Character itself at issue (Evid. Code§1100); (2) Credibility at issue (Evid. Code §§786-790,1101(c)); (3) Past acts admissible to prove somethingother than propensity to act (knowledge, intent, plan,motive, etc.) (Evid. Code §1101(b)).Here, Mathias argues that the information soughtby Plaintiffs is irrelevant and an improper attempt tointroduce character evidence (Evid. Code §787). Thedeposition subpoena seeks the following:1. Any and all ethics complaints made regarding orconcerning Joseph Orville Mathias from January 1,2005, to the present.2. Any and all complaints regarding disputes oncommissions made by or against Joseph OrvilleMathias from January 1, 2005, to the present.3. Any and all complaints made regarding claims offraud based on the actions of Joseph OrvilleMathias from January 1, 2005, to the present.4. Any and all records concerning complaintsrelated to monetary disputes, real estate listingdisputes, real estate commission disputes, pastarbitrations, current arbitrations, disputes betweenlicensed real estate agents and any othercomplaints or arbitrations made against JosephOrville Mathias from January 1, 2005 to thepresent.5. Any and all records concerning complaints madeagainst Joseph Orville Mathias for sexualharassment or the improper treatment of otherreal estate agents and brokers from January 1,2005 to the present.6. Any and all ethical rules or guidelines imposed,published, and/or enforced by the Pacific WestRealty Group and/or the Pacific West Association ofRealtors, which address a member's duty orobligation to refrain from making false,disparaging, derogatory, slanderous, defamatory,or damaging statements about other real estateagents or brokers.7. Any and all records regarding the CaliforniaCode of Ethics and Arbitration Manual in effect withthe Pacific West Association of Realtors fromJanuary 1, 2008 to the present.8. Any and all Articles set forth in the Code ofEthics enforced by the Pacific West Association ofRealtors which in any way involve or relate themaking of false, disparaging, defamatory,slanderous or damaging statements by membersof the Pacific West Association of Realtors aboutother real estate agents or brokers.9. Any and all documents regarding or reflectingany complaints filed against or concerning JosephOrville Mathias based on a claim made by amember of the Pacific West Association of Realtorsthat Joseph Orville Mathias made false,

disparaging, derogatory, slanderous, defamatory,or damaging statements about other real estateagents or brokers.10. Any and all documents which reflect orevidence that Joseph Orville Mathias has beenreprimanded, warned, admonished, sanctioned,penalized, or otherwise punished by the PacificWest Association of Realtors and/or its BoardMembers for any improper, unethical, or tortiousconduct from January 1, 2005 to the present.Here, Plaintiff is clearly seeking evidence of specificinstances of Mathias’ conduct to attack his credibility,which is inadmissible. However, the evidence sought maylead to disclosure of opinion or reputation evidence, whichis allowed. Any objections to specific evidence may bemade at trial or via motions in limine. The motion toquash the subpoena is denied.10 2013-00653281Candelaria Ruiz, by andthrough her Successor inInterest Luciano Ruiz vsAnaheim HealthcareCenter, LLCTENTATIVE RULING (Demurrer):Defendant’s demurrer to the 1 st and 4 th causes ofaction is overruled. The demurrer to the 2 nd cause ofaction for Elder Abuse is sustained with 20-days leave toamend.Uncertainty: Demurrers for uncertainty aredisfavored. It is only “where the complaint is so bad thatthe defendant cannot reasonably respond; i.e., he or shecannot reasonably determine what issues must beadmitted or denied, or what counts or claims are directedagainst him or her” that a demurrer for uncertainty iswarranted. (Weil & Brown, Cal. Prac. Guide: Civ. ProBefore Trial (The Rutter Group 2013), §7:85.)Defendant contends all the causes of action areuncertain because each incorporates prior paragraphs.However, while there is authority that this practice isdisfavored (Uhrich v. State Farm Fire & Cas. Co. (2003)109 Cal.App.4th 598, 605), in this case no uncertainty iscreated as the facts in support of the 1 st , 2 nd , and 4 thcauses of action are the same.1 st (negligence/willful misconduct) and 4 th(wrongful death) causes of action: Plaintiff contendsthese causes of action are uncertain because they mustbe construed as causes of action for professionalnegligence. However, even assuming these areessentially claims for professional negligence (and itappears they are), it does not render the causes of actionuncertain. If plaintiff seeks remedies which are notavailable in a cause of action for professional negligence,defendant’s remedy is a motion to strike thoseremedies.Defendant also asserts the allegations areuncertain because of the extensive list of fact pleadedspecifically as to the entity defendants and the relativelack of detail as to him. However, while the allegationsappear to be insufficient to plead an Elder Abuse cause ofaction against defendant, they are not uncertain.

2 nd cause of action for Elder Abuse: The Welfare &Institutions Code defines Elder Abuse as follows:“’Abuse of an elder or a dependent adult’ meanseither of the following:(a) Physical abuse, neglect, financial abuse,abandonment, isolation, abduction, or othertreatment with resulting physical harm or pain ormental suffering.(b) The deprivation by a care custodian of goods orservices that are necessary to avoid physical harmor mental suffering.” (Welfare and InstitutionsCode §15610.07)Neglect under this section is defined broadly:“(b) Neglect includes, but is not limited to, all ofthe following:(1) Failure to assist in personal hygiene, or in theprovision of food, clothing, or shelter.(2) Failure to provide medical care for physical andmental health needs. No person shall be deemedneglected or abused for the sole reason that he orshe voluntarily relies on treatment by spiritualmeans through prayer alone in lieu of medicaltreatment.(3) Failure to protect from health and safetyhazards.(4) Failure to prevent malnutrition or dehydration.(5) Failure of an elder or dependent adult to satisfythe needs specified in paragraphs (1) to (4),inclusive, for himself or herself as a result of poorcognitive functioning, mental limitation, substanceabuse, or chronic poor health.” (W&I Code§15610.57.)MP is correct that more than ordinary negligence isneeded for an elder abuse claim. “In order to obtain theremedies available in section 15657, a plaintiff mustdemonstrate by clear and convincing evidence thatdefendant is guilty of something more than negligence; heor she must show reckless, oppressive, fraudulent, ormalicious conduct. The latter three categories involve‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing of a‘despicable’ or ‘injurious’ nature.(Delaney v. Baker (1999) 20 Cal.4th 23, 31.)Defendant contends this cause of action failsbecause plaintiff has alleged, at most, professionalnegligence, citing Carter v. Prime Healthcare ParadiseValley, LLC (2011) 198 Cal.App.4th 396, in which thecourt found a hospital’s failure to carry out a physician’sorders re treatment of a patient’s ulcers and infusions wasnot “neglect” as that term is meant in the Elder Abuse

Act. The court further found the falsification of a deathcertificate was not elder abuse as the patient was notinjured by this conduct. The Carter court thus affirmedthe trial court’s order sustaining the defendant’s demurrerwithout leave to amend.In finding the allegations of negligence insufficient,the Carter court stated that the enhanced remediesavailable for elder require acts of “egregious abuse.” (Id.at 405.) The Carter court found that 5 factors must bepresent for conduct to constitute Elder Abuse:(1) The defendant had responsibility for meeting the basicneeds of the elder like nutrition, hydration, hygiene, ormedical care.(2) The defendant knew of conditions that made the elderunable to provide for her own basic needs.(3) The defendant denied or withheld goods or servicesnecessary to meet the elder’s basic needs, either withknowledge injury was substantially certain or withconscious disregard of the high probability of suchinjury.(4) The neglect caused the elder to suffer physical harm,pain, or mental suffering.(5) The facts constituting the neglect must be pleadedwith particularity. (Id. at 406-407.)In finding the allegations in Carter insufficient, thecourt noted that while plaintiff alleged that pressure soresdeveloped, plaintiff had not alleged how the defendantcaused the ulcers. The court also noted that plaintiff hadalleged the hospital did things for the decedent – whichindicated the hospital had not denied services. The courtstated that any failures to infuse proper antibiotics and tohave the proper tube available were matters ofprofessional negligence, not Elder Abuse. (Id. at 408.)MP defendant suggests that he is not liablebecause he did not provide custodial care for thedecedent. But custodial care is not required. A treatingphysician whose negligence is sufficiently egregious cancommit actionable “neglect” as that term is meant in theAct. (Mack v. Soung (2000) 80 Cal.App.4th 966, 973-975.)Thus, the key question is whether the facts allegedare sufficient to show egregious/recklessconduct. Reckless conduct is conduct which shows adeliberate disregard of the high degree of probability thatan injury will occur. Unlike negligence, recklessnessrequires more than inadvertence, incompetence,unskillfulness, or a failure to take precautions. Theremust be a conscious choice of a course of action withknowledge of the serious danger to others. (Id. at 972.)Defendant correctly notes that most of the verydetailed allegations regarding the problems with thedecedent’s treatment concern what the facility defendants

did, or did not, do. Plaintiff’s allegations are more sparsewith regard to defendant Shams. Plaintiffs allege thedecedent was admitted on 12-14-11 but defendant didnot see her until 2-6-12. Plaintiffs allege defendant’snurse practitioner saw the decedent on 2-16, a transferwas not ordered, and her family was not notified. Despitenotification that the decedent was refusing medicationand food, no transfer order was made on 2-26-12. And,on 6-1-12, the decedent was non-responsive to verbalstimuli during a visit with her physician.In addition, 66 of the Complaint allegesdefendant was the decedent’s treating physician duringthe entire relevant time period and that he breached hisduty to plaintiff by failing to see her within the required72-hours from admission and by failing to take adequateaction to ensure the decedent received proper care.The facts pleaded as to the moving partydefendant are sufficient to plead professionalnegligence. However, they do not appear sufficient toplead reckless conduct sufficient to support an ElderAbuse cause of action. In Mack v. Soung (2000) 80Cal.App.4th 966, 973-975, cited by plaintiff, thedefendant physician opposed a needed transfer to anacute care hospital and then abandoned the patient asshe was dying causing her family to have to take extrememeasures to get her care. (Id. at 970.) The facts allegedhere, as to the moving party, do not rise to that level.What appears to be lacking are specific allegationsabout what it is plaintiff’s defendant should have done,when it should have been done, and how the decedentwas injured by defendant’s actions or failure to act. Thedemurrer to the 2 nd cause of action is thus sustained withleave to amend.Given the large number of details contained in thepleading, most of which concern the entity defendants,the court notes that it would be helpful in any amendedpleading, if plaintiff included a section where theallegations against moving party defendant were clearlyset forth.TENTATIVE RULING (Motion to Strike):Defendant’s Motion to Strike is granted with 20-days leave to amend as to Requests 2 and 3 (as to the 1 stcause of action only) and Requests 5(a) - (f) and 5(i) –(k). Requests 4 and 5(g) – (h) are denied. Requests 1, 2and 3 (as to the 2 nd cause of action), and Requests 5(l) –(r) are moot as a result of the court’s ruling sustaining thedemurrer to the 2 nd cause of action.Service of Motion: Plaintiff contends that theMotion to Strike was not properly served. Defensecounsel says plaintiff was served by e-mail and thatplaintiff’s attorney failed to open the e-mail. However, asplaintiff filed an opposition on the merits, the objection toservice, even assuming plaintiff's version of events iscorrect, is waived. (Carlton v. Quint (2000) 77Cal.App.4th 690, 697.) In addition, as defendant filed a

timely Reply on the merits, the court will consider theopposition even though it was untimely filed.Request 1 (pain in suffering allegations in 93and 97): This request is moot as the demurrer to thiscause of action is sustained.Request 2 (attorney fees pursuant to Welfare andInstitutions Code §15657): The request for fees is madeas to the 1 st and 2 nd causes of action. As to the 2 nd causeof action the request to strike is moot as a result of theruling on the demurrer. As to the 1 st cause of action, therequest to strike is granted. Absent facts showing elderabuse, there is no basis for an award of attorney’s fees.Request 3 (punitive damages for 1 st and 2 nd causesof action): The request is moot as to the 2 nd cause ofaction as a result of the ruling on the demurrer. Therequest is granted as to the 1 st cause of action. Factssufficient to show malice, oppression, or fraud are notpleaded as to the moving party defendant. As noted inthe discussion of the demurrer to the Elder Abuse causeof action, further specifics about this defendant areneeded.Request 4 (“abuse and neglect” in 4 th cause ofaction): This request is denied. Plaintiff may characterizethe negligence alleged in this cause of action as abuseand neglect.Request 5: Plaintiff seeks to strike 18 portions ofthe complaint which refer to him.Requests 5(a) and 5(f) are granted. The factsalleged are not sufficient to show moving party was partof a joint enterprise with the other defendants such thathe should be liable for their actions.Request 5(b) is granted. The facts alleged are notsufficient to show reckless conduct and that defendantknew he was violating state and federal regulations anddefendants’ own policies.Request 5(c) is granted. The facts alleged are notsufficient to show defendant acted with willful disregard.Request 5(d) is granted. The facts alleged are notsufficient to show defendant acted with malice,oppression, or fraud.Request 5(e) is granted. The facts alleged are notsufficient to show defendant acted in concert with theentity defendants to maximize profits by understaffing thefacility.Request 5(g) is denied. While the facts are notsufficient to show defendant acted recklessly, thisparagraph also alleges negligence – for which the factsare sufficient.Request 5(h) is denied. The allegation thatdefendants knew if they failed to provide adequate care,

supervision, evaluation, and monitoring, the decedentwould likely sustain serious injury is warranted by thefacts and circumstances alleged.Request 5(i) is granted. The allegations thatdefendant acted intentionally and with consciousdisregard and that defendant’s actions constitute“neglect” and “physical abuse” as those terms are definedin the Welfare and Institutions Code are not supported bythe facts pleaded.Request 5(j) is granted. The allegations thatdefendant engaged in a profit scheme with the otherdefendants are not sufficient supported.Request 5(k) is granted. The allegations are notsufficient to show defendant acted with malice,oppression, or fraud.Requests 5(l) through 5(r) are moot as a result ofthe court’s ruling sustaining the demurrer to the 2 nd causeof action.12 2013-00656514Cali Beauty Supply Inc vsEZ Nails IncTENTATIVE RULING ON MOTIONS #1 AND 2: Thegeneral demurrer of cross-defendant Cali Beauty Nails,Inc., to the first, second, third, fourth, fifth, sixth, andeighth causes of action in the first amended crosscomplaintof cross-complainant EZ Nails is sustained with20 days’ leave to amend.The challenged causes of action do not contain any factsto support the required elements of the claims. Insteadof setting forth facts, the purported causes of action refergenerally to causes of action contained in thecomplaint. As such, the purported causes of action areincomplete and read like affirmative defenses that ask foraffirmative relief in the alternative.The cross-complaint must stand on its own, as the causesof action pled in a cross-complaint are independent ofthose pled in the complaint and the issues are “completelyseverable.” Moreover, the rules on format and content ofpleadings demanding relief are the same for complaintsand cross-complaints.Thus, the cross-complaint should set forth the details ofthe transactions between the parties, including the termsof any contracts, and pertinent dates.The motion to strike is moot.13 2012-00572731Aguila vs MoralesTENTATIVE RULING:Plaintiff Henry Aguila’s Motion to Compel FurtherDeposition Responses of David Morales Jr. and to Compelthe Deposition of Thomas J. Tedesco is DENIED in partand GRANTED in part, as follows:1. The court concludes that plaintiff was properly andtimely served with defendant’sOpposition. Defendant was permitted to file andserve his opposition at least 9 court days prior tothe 08/28/13 hearing. See Code Civ. Proc.

§1005(b). He did so. The proof of serviceindicates that plaintiff was served on 08/15/13 viaovernight delivery, which is a method reasonablycalculated to ensure delivery to plaintiff by thefollowing business day. See id. at subd.(c).2. Plaintiff’s request to compel deposition responsesfrom defendant David Morales, Jr. isDENIED. Plaintiff admits that he filed his motionmore than 60 days from 05/22/13, the date ofcompletion of the record of the deposition. SeeCode Civ. Proc. §2025.480(b). There is noauthority under Section 2025.480 to “toll” or“extend” the time period for filing a motion tocompel answers at a deposition. In addition,plaintiff did not lodge a certified copy of thetranscript with the court in compliance with Codeof Civil Procedure §2025.480(h). He did not file aseparate statement as required by California Ruleof Court 3.1345(a)(4).3. The court will award sanctions to defendant in theamount of $1600, payable by plaintiff within 30days. See Code Civ. Proc. §2025.480(j).4. Plaintiff’s request to compel the deposition of nonpartydeponent Thomas Tedesco is GRANTED, onthe condition that plaintiff restrict his questioningto topics directly relevant to the allegations madein the First Amended Complaint. See Code Civ.Proc. §1987.1(a). The court understands that Mr.Tedesco has already been questioned at length byplaintiff in the related case, and those lines ofquestioning should not be repeated here unlessdirectly relevant to the facts alleged in the FirstAmended Complaint.

# Case Name1 2013-00643538Smith vs Orange CountyTransportation AuthorityTENTATIVE RULING ON MOTIONS #1 AND 2:The general demurrer of defendants Orange CountyTransportation Authority and Juan Valencia Lazcano to thefirst and second causes of action in the first amendedcomplaint of plaintiff Xavier Smith is sustained with 20days’ leave to amend.The first cause of action for “motor vehicle” based onnegligence is completely devoid of any facts other thanthe date and location of the accident and the fact thatdefendant Lazcano was employed by defendant OrangeCounty Transportation and operated a vehicle owned byit. Any and all facts are contained in the second cause ofaction and are not incorporated by reference into the firstcause of action. Moreover, a cause of action fornegligence may not generally be maintained against apublic entity and this cause of action does not specify anystatutory violations.The second cause of action for breach of statutory dutyappears to contain more than one theory, and theopposition confirms that it is based on three separate anddistinct theories: (1) dangerous condition of publicproperty under Gov. Code §§ 835 and 830 based onfailure to maintain, inspect, and repair the bus; (2) injuryfrom operation of a motor vehicle by a public entityemployee under Vehicle Code §§ 17001, 17002, and17150; and (3) failure to use utmost care under Civ. Code§§ 2100, 2101, 2102, 2013, and 2168 and Public UtilitiesCode § 211.If plaintiff wishes to assert all three theories, they shouldall be asserted in distinct causes of action. See CRC2.112. Additionally, plaintiff should set forth factssupporting the various theories. The only facts alleged inthe second cause of action are that defendant Lozanopulled the bus away from the bus stop and collided withanother vehicle while plaintiff was still in the process offinding his seat. While these facts may be sufficient to setforth a claim under Civ. Code § 2100, they may not besufficient under the other theories.Moving defendants’ motion to strike is moot.2 2013-00669371Patients Associatin for theChronically Ill vs City of LaHabraTENTATIVE RULING:City of La Habra’s demurrers to the first, second,third, fifth and sixth causes of action are sustained. Thecourt denies leave to amend as to the second and sixthcauses of action, and grants 20 days leave to amend as tothe first, third and fifth causes of action. There was nodemurrer to the fourth cause of action. Moving party is togive notice.The Compassionate Use Act (“CUA”) was approvedby voters as a ballot initiative in 1996 and is codified atH&S Code §11362.5. City of Claremont v. Kruse, 177 Cal.App. 4 th 1153, 1169 (2009). The CUA provides a limited

defense from prosecution for cultivation and possession ofmarijuana. Id. at 1170.In 2003, the Medical Marijuana Program (“MMP”),H&S Code §11362.7 et seq., was enacted. Id. at 1171. Itcreated a voluntary program for the issuance ofidentification cards to qualified patients and primarycaregivers. Id. It provides qualified patients, primarycaregivers, and holders of valid identification cards anaffirmative defense to certain enumerated penal sanctionsthat would otherwise apply to transporting, processing,administering, or giving away marijuana to qualifiedpersons for medical use. Id. It also provides anaffirmative defense for qualified patients, caregivers, andholders of valid identification cards who collectively orcooperatively cultivate marijuana. Id.In May 2013, the California Supreme Court issuedits opinion in City of Riverside v. Inland Empire PatentsHealth and Wellness Center, Inc. (2013) 2013 56 Cal.4 th729 (Riverside). The Court held that the CUA and MMPdid not pre-empt local bans on medical marijuanadispensaries. “We thus conclude that neither the CUA northe MMP expressly or impliedly preempts the authority ofCalifornia cities and counties, under their traditional landuse and police powers, to allow, restrict, limit, or entirelyexclude facilities that distribute medical marijuana, and toenforce such policies by nuisance actions. Accordingly,we reject defendants' challenge to Riverside's MMDordinances.” Id. at 762.Here, Plaintiffs contest the validity of theordinances banning medical marijuana dispensaries in theCity of La Habra claiming that such a ban amounts todisability discrimination in violation of the CaliforniaDisabled Persons Act (“DPA”). They claim the Riversidecase only addressed pre-emption, and not discrimination,issue. Plaintiffs have not stated any right to medicalmarijuana as the courts have ruled that the CUA andMMPA merely provide protection against criminalprosecution for qualified participants. Plaintiffs cannotargue discrimination based on the City’s refusal to permitunlawful conduct. Their arguments are without merit, andthe claims fail for the reasons stated below.RJN: The unopposed request for judicial notice ofthe ordinances is granted (Evid. Code §452(b), (h)).1 st COA – Violation of DPA (Civ. Code §55): As Citycorrectly points out, this statute only provides amechanism for persons aggrieved by a violation of Civ.Code §54 or 54.1 to bring an action to enjoin the violationand entitles the prevailing party to recover attorney’sfees.The only section Plaintiffs claim was violated wasCiv. Code §54(c) (Complaint 36 [note: although Civ.Code §51(f) of the Unruh Civil Rights Act is mentioned inthe Complaint, this cause of action does not apply to thatstatute), which states, “A violation of the right of anindividual under the [ADA] also constitutes a violation ofthis section.”

Plaintiffs have failed to provide any authority that“medical” marijuana is an approved substance underfederal law, as it is considered illegal under 21 USC §812(schedule 1 (c)(10)). “Congress has made clear,however, that the ADA defines ‘illegal drug use’ byreference to federal, rather than state, law, and federallaw does not authorize the plaintiffs' medical marijuanause. We therefore necessarily conclude that the plaintiffs'medical marijuana use is not protected by theADA.” James v. City of Costa Mesa (9 th Cir. 2012) 700F.3d 394, 397.The demurrer to this cause of action is sustainedwith leave to amend.2 nd COA – Violation of DPA (Civ. Code §52.1): Civ.Code §52.1 allows an individual to bring a claim against aperson that interferes by threats, intimidation, or coercionwith the exercise or enjoyment of federal or stateconstitutional rights. No such facts are set forth that Citythreatened, intimidated or coerced Plaintiffs. Instead, thecomplaint merely states that the ordinance is “faciallydiscriminatory in that it targets only people who areprotected by the [DPA]” and therefore violates theCalifornia Constitution. Plaintiffs do not address thedemurrer to this claim and the court construes it asabandoned. The demurrer to this cause of action issustained without leave to amend.3 rd COA – Violation of Gov. Code §11135: Thisstatute states, in pertinent part: “(a) No person in theState of California shall, on the basis of race, nationalorigin, ethnic group identification, religion, age, sex,sexual orientation, color, genetic information, or disability,be unlawfully denied full and equal access to the benefitsof, or be unlawfully subjected to discrimination under, anyprogram or activity that is conducted, operated, oradministered by the state or by any state agency, isfunded directly by the state, or receives any financialassistance from the state.”Plaintiffs fail to state what state-funded activity orservice is being denied by the City. The complaint merelyalleges that “Defendant MUNICIPALITY receives statefunding” (Complaint 95) and has “discriminated againstPlaintiff in violation” of this statute (Complaint 96).Also, Plaintiff Association has not established anyauthority that it has standing to sue as it cannot claimdisability discrimination as an entity. See Blumhorst v.Jewish Family Services of Los Angeles (2005) 126Cal.App.4 th 993 regarding standing.The demurrer to this cause of action is sustainedwith leave to amend.5 th COA – Injunctive Relief (CCP §526a): CCP§526a states, in pertinent part: “An action to obtain ajudgment, restraining and preventing any illegalexpenditure of, waste of, or injury to, the estate, funds,or other property of a county, town, city or city and

county of the state, may be maintained against any officerthereof, or any agent, or other person, acting in its behalf,either by a citizen resident therein, or by a corporation,who is assessed for and is liable to pay, or, within oneyear before the commencement of the action, has paid, atax therein.”Plaintiffs argue that the City improperly “expendedtaxpayer money to contact the federal government andrequest that the federal government close [theassociation], as evidenced by the raid conducted by theDEA.” (Complaint 112.)The Complaint cites to Printz v. U.S. (1997) 521U.S. 898 for the proposition that that under the 10 thAmendment, “the federal government may not compelStates to implement, by legislation or executive action,federal regulatory programs.” The problem here, is thatthere are no facts alleged that the City was “compelled”by the federal government to implement any federalstatutes or programs. Moreover, as discussed inRiverside, the City is not required to permit medicalmarijuana dispensaries as the CUA and MMPA onlyallowed protection to participants from criminalprosecution. Those statutes did not create a "right" tomedical marijuana. The ordinances are valid regulationsand there are no facts that they were passed tospecifically effectuate a federal law. The ordinances citeto the Health and Safety Code and the Riverside case insupport of the ordinances. The demurrer to this cause ofaction is sustained with leave to amend.6 th COA – Violation of 42 USC §1983: Plaintiffsclaim the City is infringing upon its right to assembleunder the First Amendment. However, they do notoppose the demurrer to this cause of action and the courtdeems it the claim abandoned. There are no facts allegedthat the City violated Plaintiffs’ right of intimateassociation, expressive association or right to peaceablyassemble. The demurrer to this cause of action issustained without leave to amend.Other Issues: City notes that Plaintiffs challengethe moratorium on its face but this is not in regard to anyspecific cause of action, and therefore, it will not beaddressed.City also argues that Plaintiffs have no standingsince they argue the ordinances do not apply tothem. This appears to be in regard to the 4 th cause ofaction for declaratory and injunctive relief. No demurrerto this cause of action was brought by City and itsattempt to address it in the Reply is improper.5 2013-00638998Tuchman vs GenuineScooters, LLCTENTATIVE RULING:MOTIONS 2 and 4TENTATIVE RULING:The motion by defendants Genuine Scooters, LLC(“Genuine”), Philip McCaleb, Trey Duren, and CarolynMeyer to strike Exhibit A to the First Amended Complaint

(“FAC”), and the joinder thereto by defendants LeeMatigian and Sheri Matigian, will be DENIED.As a procedural matter, the court notes that defendantsdid not file the required memorandum of points andauthorities as required by Rule of Court 3.1112(a).On the merits, while the court may strike out “anyirrelevant, false, or improper matter inserted in anypleading,” “[t]he grounds for a motion to strike shallappear on the face of the challenged pleading or from anymatter of which the court is required to take judicialnotice.” See Code Civ. Proc. §§436(a) & 437(a).There are no grounds for striking Exhibit A to the FAC thatare discernible from the face of the pleading or from anymatter of which the court must take judicialnotice. Defendants attach what they contend to be theactual agreement faxed by plaintiff in 2007. However,defendants do not request judicial notice of thisdocument. Nor is the court required to take judicial noticeof it.Defendants’ citation to In re BCBG Overtime Cases, 163Cal.App.4 th 1293 (2008), is unavailing. BCBG dealt with amotion to strike class allegations in a class-actioncomplaint. As such, the court observed, the motion “wasnot an attack on the pleadings, like a traditional motion tostrike; rather, it was a request to initiate the classcertification process.” See In re BCBG, supra, 163Cal.App.4 th at 1298. Defendants’ motion, in contrast, is atraditional motion to strike, and is therefore governed bythe strictures of Code of Civil Procedure Sections 435-437.MOTIONS 1 AND 3Defendants did not submit the required memorandum ofpoints and authorities in support of their demurrer, inviolation of Rule of Court 3.1112(a).1 st COA – Violation of California Trade Secrets ActThe demurrer to the First Cause of Action will beoverruled. Based on the allegations of the FAC, thecustomer list could potentially be a trade secret. See Civ.Code §3426.1(d).“Trade secret” means information, including a formula,pattern, compilation, program, device, method, technique,or process, that:(1) Derives independent economic value, actual orpotential, from not being generally known to the public orto other persons who can obtain economic value from itsdisclosure or use; and(2) Is the subject of efforts that are reasonable under thecircumstances to maintain its secrecy.”Civ. Code 3426.1(d).“The test for trade secrets is whether the matter soughtto be protected is information (1) which is valuable

ecause it is unknown to others and (2) which the ownerhas attempted to keep secret.” See Whyte v. SchlageLock Co., 101 Cal.App.4 th 1443, 1454 (2002).Customer lists can be considered trade secrets where theholder “expended time and effort identifying customerswith particular needs or characteristics,” as opposed to“mere identities and locations of customers where anyonecould easily identify [them] as potential customers.” SeeMorlife, Inc. v. Perry, 56 Cal.App.4 th 1514, 1521-1522(1997). Here, plaintiff claims that he engaged insubstantial marketing efforts over the course of six yearsto gather the customers on his list. He alleges that hecreated a website and worked on search engineoptimization for the website. (FAC, 20.) He participatedin regular community education programs to gather morecustomers who might be interested in the product. (FAC,25.) He advertised in local print and online media, andparticipated in local trade shows; and he garnered clientsthrough word of mouth from other customers. (Id., 26-27.)The customer list here was valuable to plaintiff because itwas not known to defendants Lee and Shari Matigian, whowere plaintiff’s direct competitors. Plaintiff alleges that heunderstood that the warranty information he provided toGenuine would only be used for warranty purposes. (FAC,34.) The logical inference from this allegation is that,while plaintiff provided Genuine with his customers’names, he had an expectation that the names would beused for a set purpose, and would not be proliferated tohis direct competitors. There is no provision in theagreement attached as Exhibit A to the FAC which wouldhave explicitly permitted Genuine to use this informationfor any other purpose. Plaintiff also alleges that he keptthe list “under lock and key,” though it is not entirelyclear what this entails. (Id., 43.) These allegations aresufficient to withstand demurrer.Defendants claim that plaintiff has not alleged that heservices the scooters. Thus, they argue, he would haveno damages from the dissemination of the list. However,plaintiff alleges that his customers come to him forservicing work. (FAC, 43.) He also alleged that “servicework” was an aspect of his business that began todiminish in 2012 as a result of the Matigians’business. (Id., 32.) Thus, while plaintiff does notexplicitly state that he operated a service business, this isthe inference from the sum total of theallegations. Defendants may take issue with theseallegations and the reasonable inferences to be drawntherefrom, but the court is bound to accept them as truefor purposes of demurrer.2 nd COA – Breach of ContractThe demurrer to this cause of action by Genuine will beoverruled. As the court has previously ruled, theunsigned nature of the 2007 Agreement is irrelevant towhether a contract has properly been alleged. Plaintiffalleges that he filled out the information solicited byGenuine on the form sent to him by Genuine, and that hefaxed the form back, as Genuine instructed. (FAC,

9.) This allegation is sufficient to establish that he andGenuine entered into the contract.The court must accept plaintiff’s allegations as true, solong as they do not conflict with an exhibit to thecomplaint or a document of which the court is required totake judicial notice. See Barnett v. Fireman’s Fund Ins.Co., 90 Cal.App.4 th 500, 505 (2001); see also Blank v.Kirwan, 39 Cal.3d 311, 318 (1985). The court has notbeen requested to take judicial notice of the documentdefendants attach to their motion to strike, nor is thecourt required to do so. Even if the court was to considerthat document, it is in no position to opine as to whichdocument is the actual agreement. Nor is the court in aposition to make a conclusion as to whether the 25-mileexclusivity provision was, in fact, an agreed-upon term inthe parties’ contract. These are issues that the partiesmay explore as discovery progresses.However, the court will sustain the Matigians’ joinder tothis demurrer. The Matigians are not alleged to havebeen parties to the contracts between plaintiff andGenuine.3 rd COA – Breach of the Implied Covenant of Good Faithand Fair DealingThe demurrer to the Third Cause of Action is premised onthe argued failure to allege a cause of action for breach ofcontract. As the demurrer to the breach of contract claimis overruled as to Genuine, and sustained as to theMatigians, the demurrer to the Third Cause of Action willbe overruled and sustained accordingly.4 th COA – Interference with Prospective EconomicRelationsThe demurrer to this cause of action will beoverruled. “...[A] plaintiff seeking to recover for allegedinterference with prospective economic relations has theburden of pleading and proving that the defendant'sinterference was wrongful ‘by some measure beyond thefact of the interference itself.’” Della Penna v. ToyotaMotor Sales USA, Inc., 11 Cal.4 th 376, 392-393(1995). Plaintiff alleges that defendants facilitated theopening of a competing dealership within plaintiff’sallegedly exclusive territory. (FAC, 63.) To the extentthat Genuine had agreed that it would not establishanother dealership within such territory, that conduct wasindependently wrongful, because it was a violation of theparty’s contract. Plaintiff further alleges that he believesthat defendants have intentionally withheld parts inretaliation for his filing a protest with the New MotorVehicle Board. (FAC, 64.) Such conduct has interferedwith his ability to service hiscustomers. (Ibid.) Defendants claim that this conduct isnot “separate and apart” from the interference itself. Thisis a misinterpretation of the “independently wrongful act”requirement. Plaintiff need not plead an act that was“separate and apart” from the interference. He need onlyplead an act that was independently wrongful, and thathad the effect of interfering. He has done so.

The demurrers of defendants Genuine Scooters, LLC,Philip McCaleb, Trey Duren, and Carolyn Meyer, and thejoinders thereto by defendants Lee Matigian and ShariMatigian, are SUSTAINED in part and OVERRULED in part,as follows:1. The demurrers to the First Cause of Action areOVERRULED as to all defendants. Plaintiff hasalleged the improper dissemination of a potentialtrade secret to a direct competitor. Plaintiffoutlines the efforts he made to attract thecustomers on his list. He also alleges that he keptthe list secret, and that he understood thatGenuine would only use the names on the list forthe purpose of servicing warranties. The Matigiansare alleged to have procured and used plaintiff’slist with the knowledge that it was obtainedthrough wrongful means.2. The demurrers to the Second and Third Causes ofAction are OVERRULED as to Genuine. As thecourt previously ruled, Genuine is alleged to haveentered into the 06/28/07 Agreement. The courtis in no position at this stage to make a conclusionas to whether Exhibit A constitutes the parties’actual agreement. The parties are free to explorethis issue in discovery.3. The Matigians’ joinders to the demurrers to theSecond and Third Causes of Action are SUSTAINEDinasmuch as the Matigians are not alleged to havebeen parties to any of the contracts in question.4. The demurrers by Genuine, McCaleb, Duren, andMeyer to the Fourth Cause of Action areOVERRULED. Plaintiff alleges that defendantsfacilitated the opening of the Matigians’ competingdealership. This conduct would be independentlywrongful to the extent it constitutes a violation ofplaintiff’s contract.5. Defendants are ordered to file their answers within10 days of service of the notice of this ruling.

# Case Name1 2013-00670488Johnson vs Bank ofAmerica NATENTATIVE RULING:The court rules as follows on Defendants’ demurrerto the complaint: sustained with leave to amend as to the1 st COA and overruled as to COAs 2-4. Plaintiffs must fileand serve an amended pleading within 20 days. Movingparties are to give notice.Challenge Standing to Foreclose: Defendants arguethat Plaintiffs do not have a right to challenge Defendants’standing to foreclose, but Plaintiffs are not making anyclaims for wrongful foreclosure or violation of Civ. Code§2924 (initiation of foreclosure proceedings)claims. Defendants’ demurrer on this ground fails.Tender Rule: Defendants aver that Plaintiffs mustallege tender of the loan amount and arrearages in orderto bring this action. However, the property has not beensold, and requiring tender would vitiate a homeowner’srights under the statutory claims (e.g., Civ. Code §2923.6requiring the lender/mortgage servicer to meet certainrequirements before foreclosing). Additionally, requiringtender would invalidate the five-day presale right toreinstatement (Civ. Code §2924c(e)). Therefore, thetender rule does not apply.1 st COA – Negligence: The cases usually refer to asix-part test, known as the Biakanja factors to determinewhether a financial institution owes a duty of care: “[1]the extent to which the transaction was intended to affectthe plaintiff, [2] the foreseeability of harm to him, [3] thedegree of certainty that the plaintiff suffered injury, [4]the closeness of the connection between the defendant'sconduct and the injury suffered, [5] the moral blameattached to the defendant's conduct, and [6] the policy ofpreventing future harm.” Biakanja v. Irving (1958) 49Cal.2d 647, 650; see also Jolley v. Chase Home Finance,LLC (2013) 213 Cal.App.4 th 872, 899.“[A]s a general rule, a financial institution owes noduty of care to a borrower when the institution'sinvolvement in the loan transaction does not exceed thescope of its conventional role as a mere lender ofmoney.” Nymark v. Heart Fed. Savings & Loan Assn.(1991) 231 Cal.App.3d 1089, 1096.Here, Defendants argue that there was no duty ofcare owed to the Plaintiffs arising out of Defendants’conventional role as a lender/servicer. Defendants cite toRagland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4 th182 for the proposition that the issue of loan modificationfalls within the scope of their conventional role as a lenderof money (borrower was told by lender to default on loanin order to receive a modification). Plaintiffs have noresponse to the finding in the Ragland case. The claimshere are a bit more extensive as they are allegingDefendants were negligent throughout the entire loanmodification process beginning in 2011, when Defendantskept asking for the same financial documents, dragging

out the review, causing fees to accrue due to the delays,and giving wrong information leading toconfusion. Plaintiffs rely on the Biakanja factors citedabove to establish a duty of care, but based on Ragland,the loan modification discussions fall within the scope ofthe Defendants’ conventional role of lending money.The demurrer to this cause of action is sustainedwith leave to amend.2 nd COA – Violations of Civ. Code §2923.6: Civ.Code §2923.6 (post-2013 version) prohibits alender/servicer from foreclosing on a borrower’s propertywhile a loan modification is pending. However, if multipleloan modifications have already been submitted and fullyreviewed, the lender/servicer has no obligation to reviewother modification applications unless there has been amaterial change in the borrower’s financial circumstances(Civ. Code §2923.6(g)), and no further foreclosureactivity may take place until a review is completed.Defendants argue that Plaintiffs cannot claim aviolation of the HBOR (homeowners bill of rights) becausethe statute was enacted after the NOD was recorded in2011. There is no such limiting language in the statute,and as Plaintiffs point out, they notified Defendants of amaterial change in their financial circumstances on08/20/13 (1 day prior to the filing of this action), asPlaintiffs have an increased income, and significantly lessdebt (see Complaint 90).The argument by Defendants that Civ. Code§2923.6 does not provide a private right of action ismisplaced since that holding applied to the pre-2013version of the statute. Further arguments by Defendantsthat Civ. Code §2923.6 does not obligate them to modifythe loan are irrelevant here since the main issue is reevaluationof the loan modification application.The demurrer to this cause of action is overruled.3 rd COA – Violations of B&P §17200: By proscribing“any unlawful” business practice, Business andProfessions Code section 17200 “borrows” violations ofother laws and treats them as unlawful practices that theUCL makes independently actionable. An unlawfulbusiness practice under Business and Professions Codesection 17200 is an act or practice, committed pursuantto business activity, that is at the same time forbidden bylaw. Virtually any law -federal, state or local - can serveas a predicate for an action under Business andProfessions Code section 17200. Hale v. SharpHealthcare (2010) 183 Cal. App. 4th 1373, 1382-1383(citations and quotations omitted).Here, since Plaintiffs have alleged a violation ofCiv. Code §2923.6, that claim serves as a basis for the“unlawful” prong of this cause of action.Defendants aver that Plaintiffs lack standing underB&P §17204 because there is no allegation of any loss ofmoney or property was caused by Defendants. The

Complaint fails to show any damage caused byDefendants from the violation of Civ. Code §2923.6 as thealleged wrongful conduct occurred after Plaintiffsdefaulted. Therefore, the foreclosure proceedings wouldhave occurred regardless. Additionally, no sale has takenplace.However, Plaintiffs do allege they were chargedunwarranted fees and “marked-up” costs of the services,Complaint 108 states “Plaintiffs would have disputed thecharges, not paid them.” Therefore, this is sufficient toshow that Plaintiffs have lost money or property to assertstanding under B&P §17204. “The term ‘fraudulent’ asused in section 17200 does not refer to the common lawtort of fraud but only requires a showing that members ofthe public are likely to be deceived. Unless the challengedconduct targets a particular disadvantaged or vulnerablegroup, it is judged by the effect it would have on areasonable consumer.” Puentes v. Wells Fargo HomeMortg., Inc. (2008) 160 Cal.App.4th 638, 645.Therefore, sufficient facts have been pled to showa violation of B&P §17200 under the fraudulentprong. The demurrer to this cause of action is overruled.4 th COA – Accounting: A cause of action for anaccounting requires a showing that a relationship existsbetween the plaintiff and defendant that requires anaccounting, and that some balance is due the plaintiff thatcan only be ascertained by an accounting. Teselle v.McLoughlin (2009) 173 Cal.App.4 th 156, 179. Any otherduty to provide an accounting only arises when a writtenrequest for one is made prior to the notice of trustee’ssale being recorded. Civ. Code §2943(c). Here, Plaintiffsare claiming they were charged excessive and marked-upfees and cannot determine the actual amounts of theimproper fees and arrearages without anaccounting. Teselle does not require a fiduciaryrelationship, as argued by Defendants, in order forPlaintiffs to make this claim. Although Plaintiffs are indefault, that does not mean they cannot obtaininformation regarding the amounts actually owed or thatcould be an offset to the defaulted amount. The demurrerto this cause of action is overruled.RJN: Defendants seek judicial notice of therecorded documents (DOT, ADOT, SOT, NOD, and twoNOTSs). Plaintiffs object on the ground that thetruthfulness and interpretation of the documentssubmitted are in dispute, but do not set forth anyarguments as to how they are in dispute. Nothing in theopposition raised the issue that they were falsely recordedor that the foreclosing parties had no standing toforeclose. The request for judicial notice is granted (Evid.Code §452(h); Jenkins v. JP Morgan Chase Bank, N.A.(2013) 216 Cal.App.4 th 497, 536-537).2 2013-00640132Morgenson vs AuroraBank FSBTENTATIVE RULING:The court rules as follows on Defendants’ demurrerto the FAC: overruled as to COAs 1-3 and 10, andsustained without leave to amend as to COAs 4-

9. Defendants are to file an answer within 10days. Moving parties are to give notice.Securitization: Plaintiff claims that his loan was notproperly transferred to the investment trust because itwas closed prior to the transfer date, and therefore, voidunder New York law. As a result, he claims that anysubsequent transfers of his loan are also void since therewas never any authority to make the assignments. Thisallegation is being made in light of the recent holding inGlaski v. Bank of America, National Association (2013)218 Cal.App.4 th 1079. The 5 th DCA (published 08/08/13)held that the plaintiff borrower sufficiently stated a claimagainst the foreclosing parties that his loan violated NYtrust law because the loan was not transferred into theinvestment trust prior to its closure, and therefore, void.But Defendants cite to Jenkins v. JP Morgan ChaseBank (2013) 216 Cal.App.4 th 497 (4/3 DCA published06/12/13), which held that a borrower did not have theright to bring a preemptive judicial action to determinethe defendants’ standing to foreclose on the property.Plaintiff tries to draw a distinction between the twocases and argue the Jenkins case does not apply because,unlike that case, he is claiming that the securitization wasvoid, and is not seeking to enforce any agreement as athird party. But Jenkins involved the same issue as thatplaintiff was not seeking to enforce an agreement, butwas arguing the subsequent transfers of the loan wereinvalid based on the failure to timely transfer the loan intothe investment trust. Although the FAC in this actioncontains more facts, the underlying issue remains thesame.This issue will eventually have to be fleshed out bythe Court of Appeal (and possibly Supreme Court), butgiven that this court sits in the same DCA as the Jenkinscourt, the Jenkins decision will be followed here.To the extent Plaintiff clais that no assignment ofthe DOT was recorded at the time the loan wastransferred into the trust. However, California law doesnot require the assignment to be recorded each time thenote is transferred. Calvo v. HSBC Bank USA, N.A. (201)199 Cal.App.4 th 118, 122 (Civ. Code §2932.5 requiringrecordation of assignments does not apply to DOTs).With these discussions in mind, the individualclaims will be addressed below.1 st COA – Civ. Code §2924.12: This statute allowsa borrower to seek damages for violations of otherstatutes, including Civ. Code §§2923.6 and 2924.10,which have been sufficiently pled (see infra). Thedemurrer to this cause of action is overruled.2 nd COA – Violation of Civ. Code §2923.6: Thissection prohibits a lender/servicer from engaging in anyforeclosure activity while a “complete” loan modificationapplication has been submitted for review. Here, Plaintiff

claims that he submitted the application in February 2013(FAC Exh. 8), but Defendants sold his property in March2013 in violation of the statute. Defendants argue thathis application was not “complete” because it onlyconsisted of a one-page financial statement. Under Civ.Code §2923.6(h), a borrower submits a “complete”application when he supplies the servicer with alldocuments required by servicer within the reasonabletimeframes specified by the servicer. It is a factualdispute as to whether the one-page fax sent by Plaintiffconstitutes a “complete” application because the serviceronly asked for that information in order to start theprocess (FAC Exh. 7). Therefore, sufficient facts havebeen pled and the demurrer to this cause of action isoverruled.3 rd COA – Violation of Civ. Code §2924.10: Thisstatute sets forth certain responses that a servicer mustprovide after receiving a modification application,including sending a notice of acknowledgement, whichDefendants supposedly failed to do. The demurrer to thiscause of action is overruled.4 th COA – Violation of Civ. Code §2924.17: Thisstatute states that any declarations filed in support offoreclosure documents must be accurate andcomplete. Here, Plaintiff states the declarations recordedin support of the foreclosure documents were false basedon the securitization argument and therefore, none of theassignments of the loan or substitutions of trustees wereaccurate. However, as already discussed above, thesecuritization argument fails. The demurrer to this causeof action is sustained without leave to amend.5 th COA – Violation of Civ. Code §2924: Civ. Code§2924(a)(6) states that no entity may record a NODunless it is the holder of the beneficial interest under theDOT, trustee or designated agent. Again, this claim ispremised on the securitization argument. The demurrerto this cause of action is sustained without leave toamend.6 th COA – Cancel Instrument (Civ. Code §3412):Plaintiff seeks to cancel the recorded documents, such asthe ADOT, NOD, SOT, NOTS and TDUS. Again, this claimis premised on the securitization argument. The demurrerto this cause of action is sustained without leave toamend.7 th COA – Declaratory Relief: The court maysustain a demurrer without leave to amend if itdetermines that a judicial declaration is not “necessary orproper at the time under all the circumstances.” CCP§1061; DeLaura v. Beckett (2006) 137 Cal.App.4 th 542,545. Also, a claim for declaratory relief is not “proper” ifthe dispute has crystallized into a cause of action underother theories asserted in other causes of action in thecomplaint. Cardellini v. Casey (1986) 181 Cal.App.3d389, 397-398. Here, this claim is seeking the same reliefsought in the other causes of action, namely, whether thesecuritization of the loan was valid. The demurrer to thiscause of action is sustained without leave to amend.

8 th COA – Conversion: “In order to establish aconversion, the plaintiff ‘must show an intention orpurpose to convert the goods and to exercise ownershipover them, or to prevent the owner from takingpossession of his property.’” Collin v. American EmpireInsurance Co. (1994) 21 Cal.App.4th 787, 812.Plaintiff alleges that monies paid to the Defendantsover the years amounts to conversion since they were nottrue owners of the note. However, there are no facts thatDefendants wrongfully converted the money because thefunds were used to pay the loan. There are no facts thatthe funds were not directed toward paying the loan. Thedemurrer to this cause of action is sustained without leaveto amend.9 th COA – Fraud and Concealment: To establish aclaim for fraudulent misrepresentation, the plaintiff mustprove: (1) the defendant represented to the plaintiff thatan important fact was true; (2) that representation wasfalse; (3) the defendant knew that the representation wasfalse when the defendant made it, or the defendant madethe representation recklessly and without regard for itstruth; (4) the defendant intended that the plaintiff rely onthe representation; (5) the plaintiff reasonably relied onthe representation; (6) the plaintiff was harmed; and, (7)the plaintiff's reliance on the defendant's representationwas a substantial factor in causing that harm to theplaintiff. Each element in a cause of action for fraud mustbe factually and specifically alleged. In a fraud claimagainst a corporation, a plaintiff must allege the names ofthe persons who made the misrepresentations, theirauthority to speak for the corporation, to whom theyspoke, what they said or wrote, and when it was said orwritten.” Perlas v. GMAC Mortg., LLC (2010) 187Cal.App.4th 429, 434 (citations and quotations omitted).Here, Plaintiff claims he was defrauded withrespect to the identity of the actual noteholder. He alsoalleges that the recorded documents were false. Again,these arguments are based on the securitizationtheory. There are no facts alleging any reasonablereliance or damages. Plaintiff’s default was not caused bysecuritization but his failure to pay his loan.The demurrer to this cause of action is sustainedwithout leave to amend.10 th COA – B&P §17200: By proscribing “anyunlawful” business practice, Business and ProfessionsCode section 17200 “borrows” violations of other lawsand treats them as unlawful practices that the UCLmakes independently actionable. An unlawful businesspractice under Business and Professions Code section17200 is an act or practice, committed pursuant tobusiness activity, that is at the same time forbidden bylaw. Virtually any law -federal, state or local - can serveas a predicate for an action under Business andProfessions Code section 17200. Hale v. SharpHealthcare (2010) 183 Cal. App. 4th 1373, 1382-1383(citations and quotations omitted).

Here, Plaintiff has pled violations of Civ. Code§§2923.6 and 2924.10. He has shown standing underB&P §17204 since the property was sold. The demurrerto this cause of action is overruled.Tender Rule: Given the above rulings, the tenderrule does not apply to the remaining statutory claimssince they specifically provide relief for violations evenafter the property has been sold.RJN: Defendants seek judicial notice of severaltypes of documents: Complaint in the dismissedMorgenson v. Aurora Bank FSB case (12-598362), docketreport in that case, and recorded documents (DOT, ADOT,NOD, SOT, NOTS, TDUS, ADOT). These were not takeninto consideration during the analysis. The request isdenied.3 2011-00530644Kulkarni vs CaliforniaCapital InsuranceCompanyTENTATIVE RULING:Motion No. 1 – Demurrer: Defendant’s demurrers to theFAC and all three causes of action areoverruled. Defendant is to file a responsive pleadingwithin 10 days. Plaintiff is to give notice.The issue here is interpretation of Plaintiff Kulkani’shomeonwers insurance policy and whether DefendantCalifornia Capital Insurance Company (“Ins. Co.”) wasobligated under the terms of the policy to provide adefense to the underlying action (Avinash Kulkarni v.Mera Puasani, Case No. 09-322804).Here, the policy provided the following definitions:5. “Occurrence” means an accident, includingcontinuous or repeated exposure to substantiallythe same general harmful conditions, whichresults, during the policy period, in:a. Bodily injury; orb. Property damage.Then by additional premium payment, coverage would beprovided for “personal injury,” which would be included inthe meaning of bodily injury, and meant “injury arisingout of one or more of the following offenses: 1. Falsearrest, detention or imprisonment, or maliciousprosecution; 2. Libel, slander or defamation of character;or 3. Invasion of privacy, wrongful eviction or wrongfulentry.” (Emphasis added.)The underlying action accused Plaintiff of aidingand abetting in the abduction of Avinash’s son when shedrove the mother and son to LAX for their flight toIndia. The statute supposedly violated was Civ. Code§49(a), which states that the rights of personal relationsforbid the “abduction or enticement of a child from aparent, or from a guardian entitled to its custody.” Therewere also claims for negligence per se based on the samestatute, and IIED and NIED. Plaintiff Sunila was found notliable following a nonsuit motion, which was affirmed onappeal.

The interpretation of an insurance policy is aquestion of law. Waller v. Truck Ins. Exch., Inc. (1995)11 Cal.4th 1, 18. Therefore, it is the court's responsibilityto determine coverage issues. It is error to leave policyinterpretation to the jury. Evid. Code §310 (a); Garcia v.Truck Ins. Exch. (1984) 36 Cal.3d 426, 439.The insurer “must defend a suit which potentiallyseeks damages within the coverage of the policy.” Grayv. Zurich Ins. Co. (1966) 65 Cal.2d 263, 275. The insurer“has a duty to defend when the policy is ambiguous andthe insured would reasonably expect the insurer to defend... against the suit based on the nature and kind of riskcovered by the policy.” Foster–Gardner, Inc. v. NationalUnion Fire Ins. Co. (1998) 18 Cal.4th 857, 869.Defendant Ins. Co. relies upon Lyons v. Fire Ins.Exchange (2008) 161 Cal.App.4 th 880 for the propositionthat the “personal injury” must be a result of an“occurrence”. “Personal injury”, in that case, was definedas false arrest, imprisonment anddetention. “Occurrence” was also defined as an“accident”. The facts of that case involved the maleplaintiff having grabbed a female’s wrist and taking her toa more private part of a hallway, asking her to exposeherself. The male and female dispute the facts leading upto the incident with the female claiming she was falselyimprisoned and sexually assaulted. She sued the maleand obtained a judgment. Male sued his insurer for failingto defend the action, but the reviewing court found infavor of the insurer stating that there was no “accident”because the parties did not dispute that male intended hisact but merely misinterpreted female’s consent.Here, Plaintiff was not liable for aiding and abettingin the abduction following a nonsuit in the underlyingaction.Lyons provides the following definition for“accident”: “An ‘accident’ requires unintentional acts orconduct. ‘Accidental’ means ‘arising from extrinsic causes;occurring unexpectedly or by chance; or happeningwithout intent or through carelessness. An accidentoccurs when the event leading to the injury was‘unintended by the insured and a matter offortuity.’” Lyons, supra, at 887 (quotations and citationsomitted, emphasis added). Given that Plaintiff wascleared of any liability, then her act of transporting thechild and mother was aiding and abetting an abductionwithout intent. Under Lyons, here, the unintendedabduction was an accident per the policy and should havebeen covered.The Lyons court raised the scenario of a negligentfalse imprisonment and here, Defendant Ins. Co. statesthe policy is not ambiguous by including intentional torts,such that, the term occurrence also applies to “personalinjury.” If negligent false imprisonment is possible, so toocan negligent aiding and abetting abduction (negligenceper se claimed in the underlying action). This soundsridiculous, but applying the logic from that reasoning,

such an outcome may occur, and therefore, would becovered under the policy.The California Supreme Court has relied on anarrower definition of “accident.” “[A]n accident is anunexpected, unforeseen, or undesigned happening orconsequence from either a known or an unknowncause.” Delgado v. Interinsurance Exh. of AutomobileClub of Southern Calif.(2009) 47 Cal.4 th 302, 308(quotations omitted). Given this definition, then therecan be no such thing as a negligent false imprisonment,for example, since it requires an intentional act resultingin confinement. Therefore, such language in the policylimiting personal injuries arising out of intentional tortscaused by an accident may render it illusory.Delgado involved the denial of an insured’s claimfor defense when he was sued for assault and battery. Hedid not dispute that he caused the assault and battery,but that it was for purposes of self-defense. Therefore,that court held it was not an “accident” and not coveredunder the policy since he acted with intent, which was notdisputed. Additionally, the insured was held liable in thatunderlying action. Here, again, there was no intent onthe part of Plaintiff Sunila. Moreover, Ins. Code §533(insurer not liable for willful act of insured) would notapply.Under the policy, Ins. Co. had a duty to defendclaims even if the suit is groundless, false or fraudulent(FAC 7).Defendant does not address the sufficiency of eachclaim pled other than mentioning that the underlyingcomplaint is not attached and that there are noallegations to support a breach of contract cause ofaction. Sufficient claims have been pled as Plaintiff hasstated that she had a policy with Ins. Co. that contained aprovision that it would defend Plaintiff, but failed to do sowhen she tendered defense, and she suffered damages byhaving to pay for her own attorney.The demurrers to the entire FAC and all threecauses of action are overruled.Motion No. 2 – Motion to Strike: Defendant’s motion tostrike punitive damages language and attorney’s fees (1 stcause of action) are denied. Plaintiff is to give notice.Punitive Damages: “Malice” means conductintended by the defendant to cause injury to the plaintiffor despicable conduct that is carried on by the defendantwith a willful and conscious disregard for the rights orsafety of others. Civ. Code §3294(c)(1) (emphasesadded). “Oppression” means despicable conduct thatsubjects a person to cruel and unjust hardship inconscious disregard of that person's rights. Civ. Code§3294(c)(2). It is not entirely clear if punitive damagesclaims must be specifically pled (see Committee onChildren's Television, Inc. v. General Foods Corp. (1983)35 Cal.3d 197, 216; see also Quelimane Co. V. StewartTitle Guaranty Co. (1998) 19 Cal.4 th 26, 46-47 (cited to

y Plaintiff)).At the pleading stage, Plaintiff is not required toprovide clear and convincing evidence that punitivedamages should be awarded. That is what trial is for.Per the demurrer analysis, sufficient facts havebeen pled to support the bad faith claim, and denial of theinsurance claim may be considered malicious oroppressive (see FAC 34 for supporting facts). Themotion to strike punitive damages is denied.4 2013-00626555Jordan vs Trinova MedicalWaste Solutions LLCAttorney’s Fees: Plaintiff seeks “attorney’s fees” forthe 1 st cause of action for breach of contract as a part ofdamages, and not attorney’s fees in this action forlitigation of that claim. Therefore, the motion to strike isdenied.TENTATIVE RULING:The general demurrer of cross-complainant TOCA, LLC, tothe third through tenth affirmative defenses in the firstamended answer of cross-complainant Navigator Sales &Marketing is sustained with 20 days’ leave to amend. Thegeneral demurrer to the eleventh affirmative defense issustained without leave to amend. The general demurrerto the first and second affirmative defenses is overruled.Although they are numbered, none of the elevenaffirmative defenses in the first amended answer providetitles that set forth their nature as required by CRC2.112. However, they appear to be as follows:1. failure to state a cause of action2. statute of limitations3. comparative fault/liability4. apparent authority to contract5. estoppel6. failure to mitigate damages7. knowing participation8. fraud9. laches and offset10. unclean hands11. reservation of rights to assert affirmative defensesThe first affirmative defense is a standard legal defenseand does not require any supporting facts. The secondaffirmative defense references several statutes oflimitation and is sufficient.6 2013-00646096Alcalde Associates vsMontclair Pines AssociatesThe third through tenth affirmative defenses reference theallegations from 2-6 in the introductory portion of thefirst amended answer. However, it is not clear to theCourt which facts pertain to which affirmativedefense. Nor is it clear how the facts in 2-6 relate tothe cross-complainant, as most of them relate to AbsoluteGraphic Technologies. If, as the opposition appears tocontend, cross-complainant TOCA was to pay the crossdefendantTENTATIVE RULING:The court will grant plaintiffs’ motion to disqualify Mozingo& Patel, APC (“Mozingo”) from representation ofdefendant Montclair Pines Associates (“MPA”).

The court notes that Mozingo has filed no less than threesubstitutions of attorney as to MPA, but this fact does notrender the present motion moot. All three substitutionspurport to substitute defendant Higholt as attorney ofrecord for MPA. This is improper. Higholt is not anattorney, and MPA cannot represent itself in propriapersona. See Clean Air Transport Systems v. San MateoCounty Transit Dist., 198 Cal.App.3d 576, 578-579(1988).California Rule of Professional Conduct 3-310(c) provides,in pertinent part:A member shall not, without the informed written consentof each client:(1) Accept representation of more than one client in amatter in which the interests of the clients potentiallyconflict; or(2) Accept or continue representation of more than oneclient in a matter in which the interests of the clientsactually conflict...In considering conflicts of interest in a concurrentrepresentation, the court must focus on the attorney’sduty of loyalty. See Sharp v. Next Entertainment, Inc.,163 Cal.App.4 th 410, 428 (2008). “One of the principalobligations which bind an attorney is that of fidelity, themaintaining inviolate the confidence reposed in him bythose who employ him, and at every peril to himself topreserve the secrets of his client. [Citations.] Thisobligation is a very high and stringent one. It is also anattorney's duty to protect his client in every possible way,and it is a violation of that duty for him to assume aposition adverse or antagonistic to his client without thelatter's free and intelligent consent given after fullknowledge of all the facts and circumstances. [Citation.]By virtue of this rule an attorney is precluded fromassuming any relation which would prevent him fromdevoting his entire energies to his client's interests. Nordoes it matter that the intention and motives of theattorney are honest. The rule is designed not alone toprevent the dishonest practitioner from fraudulentconduct, but as well to preclude the honest practitionerfrom putting himself in a position where he may berequired to choose between conflicting duties, or be led toattempt to reconcile conflicting interests, rather than toenforce to their full extent the rights of the interest whichhe should alone represent.” See Anderson v. Eaton, 211Cal.113, 116 (1930)(quoted in Flatt v. Sup. Ct., 9 Cal.4 th275, 289 (1994)).MPA’s presence in this litigation appears to be premisedon acts carried out or orchestrated by Higholt. Some ofthese acts were carried out with the assistance ofMozingo. As such, MPA could conceivably seekindemnification from Higholt if it incurs liability on theThird, Fifth and Sixth Causes of Action. Further, plaintiffsindicate that actual conflicts are certain to arise in thecourse of discovery, as MPA’s persons mostknowledgeable on many topics relevant to the lawsuit are

plaintiffs Soderling and/or Biram. This state of affairsrenders MPA’s and Higholt’s interests adverse, andconstitutes an actual conflict for which Mozingo shouldhave sought informed written consent from thepartnership before undertaking representation.“Additionally, the Rules of Professional Conduct recognizethat there may be a conflict of interest where… a thirdparty is paying for the attorney to represent anotherperson or entity. ‘[W]hen a third party pays for a lawyer'sservice to a client ... there is [a] danger that the lawyerwill tailor his [or her] representation to please the payorrather than the client. [Citations.] The distraction canbecome more pronounced if the lawyer hopes to berehired by the same payor on a recurrent basis.’” Sharp,supra, 163 Cal.App.4 th at 428-429. Here, Higholt aversthat he alone has been paying for Mozingo’srepresentation of MPA. (See Higholt Decl., 10 &13.) There is thus an incentive on Mozingo’s part to tailorits representation to fit Higholt’s interests. And it appearsthat this incentive may already be working in Higholt’sfavor. There is no indication that MPA will pursue anypotential cross-claims against Higholt, although Mozingohas indicated that it will pursue cross-claims againstSoderling and Biram.Neither Higholt nor Mozingo provides any evidence thatthe partnership even approved Mozingo’s representationof MPA in this litigation, let alone waived any conflict ofinterest. The partnership documents are not entirely clearon the procedure for approval of retention ofattorneys. However, the documents indicate (a) that “thepartnership” may engage outside legal services atpartnership expense, (see Soderling Decl., Ex. C, 5), and(b) the general partners’ control of partnership business islimited as provided in the limited partnership law of thisstate. (See Soderling Decl., Ex. A, General Provisions, G-9.) The limited partnership law provides that the limitedpartners have the right to vote on transactions in whichthe general partners have an actual or potential conflict ofinterest with the limited partners. See Corp. Code§15636(f)(1)(e). Mozingo’s failure to obtain appropriateapprovals and waivers renders it susceptible to automaticdisqualification as counsel of record for MPA. See Flatt,supra, 9 Cal.4 th at 284.Plaintiffs also request that the court disqualify Mozingo ascounsel of record for Higholt in any capacity. This requestis based on the prohibition in California Rule ofProfessional Conduct 3-310(E), which states: “A membershall not, without the informed written consent of theclient or former client, accept employment adverse to theclient or former client where, by reason of therepresentation of the client or former client, the memberhas obtained confidential information material to theemployment.” The motion in this respect will be denied.The court first notes that plaintiffs did not ask forMozingo’s disqualification as counsel of record for Higholtin their moving papers. Rather, the request was firstmade in the reply brief, which is improper. See BalboaIns. Co. v. Aguirre, 149 Cal.App.3d 1002, 1010(1983). Substantively, however, the argument also lacks

merit. Plaintiffs are unable to identify any specificconfidential information that Mozingo obtained about MPAby reason of its representation of MPA. Rather, it appearsthat any information about MPA that Mozingo may havereceived came through its representation ofHigholt. Thus, it does not appear that Rule 3-310(E)would prohibit Mozingo from continuing to representHigholt as an individual. See Forrest v. Baeza, 58Cal.App.4 th 65, 82 (1997).7 2011-00504723Morales vs Thee Aguila IncOf course, to the extent that Mozingo intendsnevertheless to seek withdrawal from its representation ofHigholt, as was indicated to the court on 10/10/13 at theex parte hearing, it is free to do so.MOTION TO DISQUALIFY COUNSELTENTATIVE RULING:Defendant’s Motion that Kerry Zeiler be Removedas the Attorney for the Morales’s Due to a Conflict isdenied. Plaintiffs’ Request for Judicial Notice isdenied. The court, in has considered the opposition filed9-6-13 despite the fact that it appears to have beenuntimely served for the original hearing date.MeritsThe court considers multiple factors when ruling ona motion to disqualify including:the party's right to counsel of choice; the attorney's interest in representing aclient;the financial burden on a client of changingcounsel; any tactical abuse underlying adisqualificationmotion; and the principle that the fair resolution ofdisputesrequires vigorous representation ofpartiesbyindependent counsel. (Rylaarsdam &Edmon,Cal. Prac. Guide: Civ. Pro Before Trial(TheRutter Group 2013), §9:406.8)When successive representation is asserted, ifthere is a substantial relationship between the prior andcurrent representation, disqualification is mandatory.The ‘substantial relationship’ test mediatesbetween two interests that are in tension in such acontext—the freedom of the subsequent client tocounsel of choice, on the one hand, and theinterest of the former client in ensuring thepermanent confidentiality of matters disclosed tothe attorney in the course of the prior

epresentation, on the other. Where the requisitesubstantial relationship between the subjects ofthe prior and the current representations can bedemonstrated, access to confidential informationby the attorney in the course of the firstrepresentation (relevant, by definition, to thesecond representation) is presumed anddisqualification of the attorney's representation ofthe second client is mandatory; indeed, thedisqualification extends vicariously to the entirefirm. [Emphasis Added.]” (Flatt v. Superior Court(1994) 9 Cal.4th 275, 283.)Thee Aguila asserts that it was previouslyrepresented by attorney Thomas Tedesco in connectionwith the unlawful detainer action filed against Garlinda,Inc., the tenant at the property at-issue. Thee Aguilafurther asserts that Tedesco and attorney Kerry Zeiler arepartners and thus Zeiler, the Morales’s current attorney,must be disqualified. While the prior unlawful detainerlitigation and this case appear to have a substantialrelationship, Thee Aguila is not persuasive thatdisqualification is warranted.As a preliminary matter, Thee Aguila mustestablish that an attorney-client relationship existedbetween it and Thomas Tedesco. Its President, HenryAguila, says that Tedesco referred him to attorney Luebketo represent Thee Aguila in the unlawful detainer actionagainst Garlinda, Inc. Aguila further says that “Tedescodid work for Thee Aguila, Inc. in the unlawful detaineraction against Garlinda, Inc.” Thee Aguila’s attorney,Guinevere Mallory, indicates that at his deposition,Tedesco confirmed that he billed for work done on theunlawful detainer matter by Thee Aguila and againstGarlinda, Inc. – but the invoices attached show that it wasthe Morales’s that were billed for this work - not TheeAguila.Thee Aguila’s evidence does not show that Tedescoactually represented Thee Aguila. At the time the work onthe unlawful detainer action was promised and performed,Tedesco’s clients, the Morales’s, and Thee Aguila werecooperating in getting Garlinda, Inc. removed from theproperty as part of the sale. While it appears Tedescodrafted some pleadings, these pleadings were apparentlyconveyed to Thee Aguila’s actual attorney in the matter,Gaitan. The Morales’s were the ones billed for this workand there is no indication that Tedesco ever appeared forThee Aguila.The attorney-client relationship is created by someform of contract. It may be express or implied, formal orinformal. (Responsible Citizens v. Superior Court (1993)16 Cal.App.4th 1717, 1732.) The facts here are notsufficient to show a contract of any kind between Tedescoand Thee Aguila. Thee Aguila did not pay Tedesco for theservices rendered. Tedesco referred Thee Aguila toanother attorney – who is apparently the one who filedthe unlawful detainer action. While Tedesco took steps toassist Thee Aguila in its unlawful detainer action againstGarlinda, Inc., this appears to have been done to facilitate

the deal and as part of the deal between Thee Aguila andTedesco’s clients (the Morales’s). All of this is consistentwith Tedesco representing the Morales’s, not Thee Aguila.In short, Thee Aguila has not shown an attorneyclientrelationship with Tedesco. Absent such arelationship, there is no conflict and the motion todisqualify fails.The court further notes that plaintiff is notpersuasive that Tedesco and Zeiler are partners. Themere fact that they have offices at the same address, andthat Zeiler has appeared for Tedesco in connection withthis case, is not sufficient to show a partnership.Request for Judicial NoticeThe court will not take judicial notice of thepleading and judgment rendered in the legal malpracticeaction filed by Thee Aguila against Tedesco. As thejudgment rendered in that case is not yet final (an appealis pending), it has no res judicata or collateral estoppeleffect. The documents are thus irrelevant to the court’sdetermination. The court also notes that the copy of theSecond Amended Complaint provided is not a conformedcopy.Service of OppositionThee Aguila contends that the opposition was nottimely served for the original hearing date. Pursuant tothe court’s 8-20-13 order setting this matter for hearing,the opposition was due Friday, 9-6-13 and it was filedthat date. However, while the POS indicates it was serveby overnight mail on that date and that responding partyasked the court’s e-file vendor to electronically servemoving party’s counsel, moving party’s attorney statesthat the opposition was not received until 9-10-13 andthat the USPS web site shows that the opposition was notactually mailed until Monday, 9-9-13.It does appear that something went wrong with theservice on responding party’s end. However, given thehigh stakes involved (the Morales’s right to the attorneyof their choice), the court will consider the oppositiondespite the apparently untimely service. In addition, thecourt notes consideration of the opposition does notchange the outcome as Thee Aguila did not meet itsburden of establishing an attorney-client relationshipbetween itself and Tedesco.MOTION FOR SANCTIONS PER CCP 128.7TENTATIVE RULING:Plaintiffs’ Motion for Sanctions Per CCP 128.7 isdenied. Defendant’s request for sanctions for having tooppose the motion is denied. Defendant’s Request forJudicial Notice is granted.CCP 128.7:

CCP 128.7 provides in pertinent part:“(b) By presenting to the court, whether bysigning, filing, submitting, or later advocating, apleading, petition, written notice of motion, orother similar paper, an attorney or unrepresentedparty is certifying that to the best of the person'sknowledge, information, and belief, formed afteran inquiry reasonable under the circumstances, allof the following conditions are met:(1) It is not being presented primarily for animproper purpose, such as to harass or to causeunnecessary delay or needless increase in the costof litigation.(2) The claims, defenses, and other legalcontentions therein are warranted by existing lawor by a nonfrivolous argument for the extension,modification, or reversal of existing law or theestablishment of new law.(3) The allegations and other factual contentionshave evidentiary support or, if specifically soidentified, are likely to have evidentiary supportafter a reasonable opportunity for furtherinvestigation or discovery.(4) The denials of factual contentions arewarranted on the evidence or, if specifically soidentified, are reasonably based on a lack ofinformation or belief.”If the court finds that section (b) has been violated,the court may impose monetary or non-monetarysanctions. However, whether to impose sanctions underCCP 128.7 is discretionary. “Section 128.7, subdivision(c) does not require the imposition of monetary sanctionsupon the finding of a violation of section 128.7,subdivision (b); rather, it gives the trial court discretion toimpose sanctions based on such a finding.” (Kojababianv. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408,422-423.)Here, defendant’s motion to disqualify attorneyKerry Zeiler is unmeritorious. Defendant’s evidence is notsufficient to show that Tedesco represented defendant inconnection with the prior unlawful detaineraction. Defendant’s evidence is also insufficient to showthat Zeiler and Tedesco are partners or should be treatedas partners.However, while the evidence in support of themotion was insufficient, the motion was not entirelywithout evidentiary support. Defendant established thatplaintiffs’ attorney, Tedesco, worked in conjunction withdefendant’s attorney to evict the tenant on the propertyby preparing a complaint and notice to quit. In addition,while plaintiffs point out that the motion was brought onthe eve of trial, the timing was necessitated by the factthat Zeiler substituted into the case on the eve of trial(which was previously set for 9-23-13). And, defendant’s

legal malpractice case against Tedesco, which wasresolved against defendant on demurrer, is not conclusiveon the issue of whether Tedesco represented defendant asthat judgment is on appeal.In sum, while the court has concluded thatdefendant did not meet its burden on the motion todisqualify, the facts and circumstances are not sufficientlyegregious to warrant imposition of sanctions under CCP128.7.Defendant’s request for sanctions for having tooppose the motion for sanctions is also denied.11 2011-00509016Tabibnia vs ShaerzadehTENTATIVE RULING:Defendants’ Motion for Attorney’s Costs isdenied.There is a service problem – as the motion andNotice of Continuance were not served on defendantSharam Tabibnia - one of the three defendants againstwhom defendants appear to be seeking the attorney’sfees.Plaintiffs were all originally represented by attorneyEdgar Pease. On 3-13-13, on the same day the dismissalwas filed, Substitutions of Attorney were filed for plaintiffsAshkan Tabibnia and Seven Elephants. No substitutionwas filed as to plaintiff Sharam Tabibnia. She thusremains represented by attorney Edgar Pease.The motion was served only on defendant AshkanTabibnia. Service on Ashkan Tabibnia is sufficient toserve plaintiff Seven Elephants – as the substitution filedlisted Ashkan Tabibnia as the person to be served forSeven Elephants. However, service on Ashkan Tabibnia isnot sufficient to serve Sharam Tabibnia.Motion is UntimelyParties seeking contractual or statutory attorney’sfees must file their motion within the time for filing anotice of appeal.“(1) Time for motionA notice of motion to claim attorney's fees forservices up to and including the rendition ofjudgment in the trial court--including attorney'sfees on an appeal before the rendition of judgmentin the trial court--must be served and filed withinthe time for filing a notice of appeal under rules8.104 and 8.108 in an unlimited civil case or underrules 8.822 and 8.823 in a limited civilcase. [Emphasis added.]” (CRC 3.1702(a))In an unlimited civil case like this one, a notice ofappeal must be filed within 60-days of service of notice ofentry of judgment or, if no such notice is given, no laterthan 180 days after judgment. (CRC 8.104(a))“(1) Unless a statute or rule 8.108 providesotherwise, a notice of appeal must be filed on or

efore the earliest of:(A) 60 days after the superior court clerk serves onthe party filing the notice of appeal a documententitled ‘Notice of Entry’ of judgment or a filestampedcopy of the judgment, showing the dateeither was served;(B) 60 days after the party filing the notice ofappeal serves or is served by a party with adocument entitled ‘Notice of Entry’ of judgment ora file-stamped copy of the judgment, accompaniedby proof of service; or(C) 180 days after entry of judgment.” (CRC8.104(a))A voluntary dismissal is treated as a judgment forpurposes of determining the time in which a motion forattorney’s fees must be filed. (Sanabria v. Embrey(2001) 92 Cal.App.4th 422, 427.) Here, as no officialnotice of entry of judgment/order was sent out,defendants had 180 days from the dismissal on 3-13-13to file their motion. 180 days from 3-13-13 was 9-9-13. However, the motion was not filed until 9-16-13, oneweek late.The 5- day extension for service by mail, whichapplies to some deadlines, does not apply. CCP 1013(a)provides:“Service is complete at the time of the deposit, butany period of notice and any right or duty to doany act or make any response within any period oron a date certain after service of the document,which time period or date is prescribed by statuteor rule of court, shall be extended five calendardays …. but the extension shall not apply toextend the time for filing notice of intention tomove for new trial, notice of intention to move tovacate judgment pursuant to Section 663a, ornotice of appeal.” (CCP 1013(a))In short, it appears defendants failed to timely filetheir motion and it is denied for that reason.MeritsMP defendants claim atty fees pursuant to CC3426.4 which provides:“If a claim of misappropriation is made in bad faith… or willful and malicious misappropriation exists,the court may award reasonable attorney's feesand costs to the prevailing party….” (CC 3426.4)CC 3426.4 authorizes an award of fees only whenthe plaintiff has made a claim for misappropriation of atrade secret in bad faith. If the complaint cannot be read

as alleging such a claim, fees cannot beawarded. (Cytodyn, Inc. v. AmerimmunePharmaceuticals, Inc. (2008) 160 Cal.App.4th 288,291.) Thus, in Cytodyn, the court reversed an award ofattorney fees even though the plaintiff had erroneouslysought damages under the Uniform Trade Secrets Act asthere was no actual violation of the Trade Secrets Actalleged.Here, plaintiffs had no cause of action for violationof the Trade Secrets Act. Defendants point out thatplaintiffs’ §17200 cause of action references trade secrets– and it does. There is a passing reference to CC 3426 at 110 of the 4AC – where plaintiffs listed all the statutesthey contended defendants violated. Plaintiffs also usedthe term “trade secrets” at 117 of the 4AC. However,the §17200 claim is not solely, or even mostly, tradesecret based. A large portion of this claim was based ondefendants’ alleged misuse of plaintiffs’ packaging,advertising, promotions, logo, and naming. (4AC; 100) Plaintiffs also alleged defendants attached awarranty to their products which had plaintiffstrademarked named (Konaki) on it – leading consumers tobelieve plaintiffs were warranting defendants’product. These were dilution of tradename/trademark/consumer fraud claims.Given the lack of an express cause of action forviolation of CC 3426, et seq., a claim for atty fees underthe Trade Secrets Act does not appear warranted. Inaddition, even assuming the passing reference to CC 3426in the 4AC was enough to entitle defendants to seek feesunder CC 3426.4, defendants have not sustained theirburden of persuasion of showing bad faith on the part ofplaintiffs. Bad faith requires both objective speciousnessand subjective bad faith in bringing or maintaining aclaim. (SASCO v. Rosendin Elec., Inc. (2012) 207Cal.App.4th 837, 845.) In considering whether an actionis objectively specious, the court may consider theplaintiffs’ lack of evidence. (Id. at 848.)Defendants argue plaintiffs lacked any evidenceand point the court to plaintiffs’ responses to discoveryrequests (Form Interrogatories; Requests for Admission)which are attached to the motion. Defendants fail todiscuss the specific substance of these responses or whythey show a lack of evidence. In these responses,plaintiffs asserted that defendants used confidentialinformation obtained from their former employees andthey list the customers they lost. These responses do notappear to be sufficient, by themselves to show bothobjective speciousness and subjective bad faith.12 2011-00525220Jupitor Corporation USAvs Ontario RefrigerationService IncTENTATIVE RULING:The motion of defendant, cross-complainant, and crossdefendantCarrier Corp. for an order finding that thesettlement of the claims against it by plaintiffs JupitorCorporation U.S.A. and Sumitomo Marine & Fire InsuranceCo. was made in good faith is denied.Carrier moves for an order determining that itssettlement with the plaintiffs is in good faith. The

settlement is for a payment of $20,000 (up from $5,000from prior motion) and a mutual waiver of costs.Whether a settlement is within the “good faithballpark” is to be evaluated on the basis of informationavailable at the time of settlement under the followingfactors: the amount paid in settlement a rough approximation of plaintiff’s total recoveryand the settlor’s proportionate liability a recognition that the settlor should pay less insettlement than if found liable after a trial evidence of any collusion, fraud, or tortiousconduct between the settlor and the plaintiffsaimed at making the non-settling parties pay morethan their fair shareTech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38Cal.3d 488, 499.A settlement is in good faith if it is within the“reasonable range,” i.e., within the ballpark, of thesettling tortfeasor’s share of liability for the plaintiff’sinjuries, taking into consideration the facts andcircumstances of the particular case. Tech-Bilt, Inc. v.Woodward-Clyde & Associates, supra, 38 Cal.3d 488,499.A determination by the Court that the settlementwas made in good faith will bar any other joint tortfeasoror co-obligor from any further claims against the settlingtortfeasor or co-obligor for equitable comparativecontribution or partial or comparative indemnity based oncomparative negligence or comparative fault. CCP§877.6(c).Any party objecting to a proposed settlement hasthe burden to prove an absence of good faith. CCP§877.6(d). The objecting party must prove that thesettlement is “so far out of the ballpark” in comparison tothe Tech-Bilt factors that it is inconsistent with theequitable objectives and purposes of section 877.6.The motion is opposed by co-defendant and crosscomplainantOntario Refrigeration Services, who has alsosettled with the plaintiffs, but for $475,000, and has apending cross-complaint against Carrier. If the motion isgranted, Ontario would be barred from pursuing its crosscomplaintagainst Carrier.Ontario has carried its burden on the motion byshowing that the settlement between plaintiffs and CarrierCorp. is not within the ballpark and therefore not in goodfaith.The moving papers show that plaintiffs areclaiming property damages of $510,068.88 from the firearising from the HVAC unit. While Carrier (and theplaintiffs) contend that the malfunction was due toimproper installation of the unit, Ontario submitteddeclarations by its operations manager, Scott Gray, andretained mechanical engineer, Philip Van Herle, in which

they attest that the fire resulted from mechanical and/ordesign defects and not the failure to install the unit withthe fourteen inches minimum guidelines. Specifically,both witnesses attest that other factors, including a gascontrol valve that was stuck in the open position anddesign features of the unit (lack of adequate baseinsulation), caused or contributed to the fire. Mr. VanHerle also points out in his declaration that the unit hadbeen functional for over three years as installed with noindications of overheating, which further supports a failureof the gas valve as the cause of themalfunction. Additionally, he states that the installation14-inch clearance requirement only pertains to verticalinstallation air duct construction purposes.The evidence submitted by Carrier with the movingpapers includes deposition testimony by witnesses,including Messrs. Van Herle and Gray, to show that unitwas not installed with the 14-inch clearance and placed onplywood. It also submits written discovery responses anda declaration of expert witness, Adam Bainbridge, anelectrical engineer, and Robert Miller, a fireinvestigator. Mr. Bainbridge and Mr. Miller attest that thefire was caused by the improper installation of the unitdirectly on combustible material with no clearance. Mr.Miller also attests that the gas valve was not the cause ofthe fire.Carrier also seeks to preclude admission of VanHerle and Gray’s declarations on the grounds that thereare no bases for their opinions, and that they directlycontradict their deposition testimonies.Van Herle admits in his deposition that he has notdone any testing to confirm his theories. Even if Mr.Gray’s declaration is disregarded for foundationalproblems, the evidence shows that there is conflictingevidence regarding the cause of the fire that is the subjectof the action, and a jury could find either Carrier orOntario completely responsible for the fire. It makes nodifference that the plaintiffs do not believe that Carrier isnot responsible for the fire, because a defendant canassert a claim for comparative negligence against anotherparty. As such, a settlement of $20,000 does not reflectthe potential liability of Carrier for the damages, and themotion is denied.13 2012-00590479Macro-Z TechnologyCompany vs LCC-MZTTEAM IVTENTATIVE RULING ON MOTION #1:The motion by cross-defendants Larkor Construction andLarry Landa for judgment on the pleadings as to the firstthree causes of action in the cross-complaint of crosscomplainantCJW Construction is granted in part anddenied in part. The motion is granted as to the secondcause of action with 30 days’ leave to amend. It is deniedas to the first and third causes of action.The Court declines to take judicial notice of the discoveryresponses submitted with the moving papers.Procedural IssuesThe opposing cross-complainant contends that the motion

for JOP is procedurally improper under subdivision (g)(1)of Code Civ. Proc. § 438 because the cross-defendantspreviously brought a demurrer that challenged the samecauses of action that was overruled by the Court on 7-3-13. However, although the Court stated in its minuteorder that the demurrer was of “questionable merit,” theCourt did not rule on the merits of the demurrer andoverruled it on procedural grounds. Thus, it would not befair to the moving cross-defendants to not hear the meritsof the motion.In addition, the moving cross-defendants ask for judicialnotice of the cross-complainant’s discovery responses toshow that the loans referenced in the cross-complaintwere repayable “upon demand.” They argue that theCourt may properly take judicial notice of the discoveryresponses under Del E. Webb Corp. v. Structural MaterialsCo. (1981) 123 Cal.App.3d 593, 604.However, what the Webb court actually said about judicialnotice, which is at pp. 604-605, is as follows:As a general rule in testing a pleading against ademurrer the facts alleged in the pleading aredeemed to be true, however improbable they maybe. [Citation.] The courts, however, will not closetheir eyes to situations where a complaint containsallegations of fact inconsistent with attacheddocuments, or allegations contrary to facts whichare judicially noticed. [Citations.] Thus, apleading valid on its face may nevertheless besubject to demurrer when matters judiciallynoticed by the court render the complaintmeritless. In this regard the court passing uponthe question of the demurrer may look to affidavitsfiled on behalf of plaintiff, and the plaintiff'sanswers to interrogatories [citation], as well as tothe plaintiff's response to request for admissions.[Citation.]The court will take judicial notice of records suchas admissions, answers to interrogatories,affidavits, and the like, when considering ademurrer, only where they contain statements ofthe plaintiff or his agent which are inconsistentwith the allegations of the pleading before thecourt. [Citation.] The hearing on demurrer may notbe turned into a contested evidentiary hearingthrough the guise of having the court take judicialnotice of affidavits, declarations, depositions, andother such material which was filed on behalf ofthe adverse party and which purports to contradictthe allegations and contentions of the plaintiff.[Citation.]Here, the Court will follow the instructions in the lastsentence of the above passage and deny the request forjudicial notice of the discovery responses, especiallybecause the moving cross-defendants have not specifiedspecific answers in those responses.First Cause of Action for Breach of Oral Contract

The first cause of action is for breach of oral contract, andthe moving cross-defendants contend that it is untimelyunder the two year limitations period in Code Civ. Proc. §339. They contend that because the loans were to berepaid “upon demand,” any claims based on them accrueat the time of the making of the loans and that the lastloan was made in 2-11.The opposition argues that the loans were not alleged tobe payable upon demand but when the debtors were ableto repay the loan. As such, the claim for breach wouldnot accrue for purposes of the limitations period until suchtime as the debtor attains the ability to repay the loans.Here, the cross-complaint alleges that, “[c]ommencing inor about November 2006, Cross-Complainant agreed toloan and/or advance to Cross-Defendants LARKOR,LANDA, and ZOES 1 through 20 the funds to help sustainsaid Cross-Defendants’ business, and fund projects inwhich said Cross-Defendants had obtained with thegovernment.” (Cross-complaint, 9.) It then allegesthat, under the terms of the oral agreement, the crossdefendants“agreed to repay the loans to Cross-Complainant upon demand from Cross-Complainant.” (Cross-complaint, 10; emphasisadded.) Thus, the moving defendants are correct to theextent that they claim that the loans are payable ondemand.However, the loans would not necessarily be time-barredeven if they accrued at the time of making, because thiscause of action does not explicitly state when the last loanwas made. (The allegation that the loans were madebetween 11-06 and 2-11 is contained in 19, which is inthe second cause of action, and not a part of this cause ofaction.) At best, the first cause of action alleges that theloans were made “over the course of severalyears.” (Cross-complaint, 12.)Thus, the Court denies the motion as to the first cause ofaction.Second Cause of Action for ConversionThe second cause of action is for conversion. In thiscause of action, the cross-complaint alleges that, between11-06 and 2-11, the cross-complainant loaned andadvanced to cross-defendant Larkor Construction moneyto meet its debts and show a profit for bonding and otherpurposes. (Cross-complaint, 19.) It alleges that thecross-defendants took $969,545.75 from the crosscomplainantby converting the loan proceeds and usingthem to pay non-corporate related expenses. (Crosscomplaint, 20.)This does not constitute conversion. To state a claim forconversion, the plaintiff (or cross-complainant) mustallege the plaintiff’s ownership or right to possession ofproperty, the defendant’s wrongful act toward ordisposition of the property that interferes with theplaintiff’s possession, and damages to the plaintiff. PCO,

Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil &Shapiro, LLP (2007) 150 Cal.App.4th 384, 395. Here, theplaintiff did not own or have a right to possess the moneyat the time of the alleged conversion because it hadloaned the money to the cross-defendants. Moreover, “ageneralized claim for money [is] not actionable asconversion.” Vu v. California Commerce Club, Inc. (1997)58 Cal.App.4th 229, 235.Thus, the Court grants the motion as to this cause ofaction with leave to amend.Third Cause of Action for Unjust EnrichmentThe third cause of action for unjust enrichment allegesthat the cross-defendants have been unjustly enriched totheir benefit from the cross-complainant because theytook loans from the cross-complainant and did not pay itback.The moving cross-defendants contend that there is nocause of action for unjust enrichment. The respondingcross-complainant disputes that contention, citingPeterson v. Cellco Partnership (2008) 164 Cal.App.4th1583, 1593. It adds that, even if unjust enrichment is nota recognizable cause of action, the cause of action stillsets forth an actionable claim.In Peterson, the court said that the elements of an unjustenrichment claim are the receipt of a benefit and theunjust retention of the benefit at the expense ofanother. 164 Cal.App.4th at p.1593. However, it alsostated that the mere fact that one person benefits anotheris not of itself sufficient to require the other to makerestitution therefor and that there is no equitable reasonfor involving restitution when the plaintiff gets theexchange that he or she expected. Ibid.The claim is really nothing more than a restated claim forbreach of contract, and the Court denies the motion as tothis cause of action.TENTATIVE RULING ON MOTION #2:The motion of defendant Larkor Construction Co., Inc. forsummary adjudication of the sixth cause of action in thesecond amended complaint by plaintiff Macro-ZTechnology Co., is denied, as there are triable issues ofmaterial fact regarding the performance of the partiesunder the mentor/protégé agreement. The motion forsummary adjudication of the seventh cause of action isgranted.All of the plaintiff’s objections are overruled, as they werenot addressed to evidence but to facts in the movingdefendant’s separate statement.The first four objections of the defendant aresustained. The fifth objection is overruled.Procedural Issues

The moving defendant did not submit any evidence withits moving papers but instead asked the Court to refer toand use the same evidence that it submitted in connectionwith an earlier motion for summary adjudication filed on5-30-13, including an attorney declaration by Robert M.Gilchrest and the exhibits thereto. This is not the bestpractice.Sixth Cause of Action for Breach of ContractThe sixth cause of action is for breach of contract and isbased on the mentor/protégé agreement that the partiesentered into in 8-03 and extended several times through8-24-11. The sixth cause of action contains the followingallegations of breach in 42 and 43:42. Defendant LarKor breached theMentor/Protégé Agreement by failing to makereasonable efforts to: (1) limit the scope ofPlaintiff’s duties under the Mentor/ProtégéAgreement to “assistance”; (2) develop a businessbase and infrastructure that would allow DefendantLarKor to become viable and self-sufficient; and(3) develop self-sustaining administrative,accounting, contract administration, bonding,bidding and related operations. Defendant LarKoralso breached the Mentor/Protégé Agreement byfailing to act in accordance with the impliedcovenant of good faith and fair dealing, for thereasons set forth above.43. As a direct and proximate result of thebreaches by Defendant LarKor, Plaintiff was forcedto perform all or substantively all of theadministrative, accounting, contractadministration, bonding and bidding functions forLarKor instead of just assisting it. Plaintiff hastherefore suffered damages in a sum not yet fullyascertained and according to proof at trial, plusinterest at the maximum legally permissible rate.The moving defendant contends that the mentor/protégéagreement did not require it to do anything except workwith Macro-Z Technology to prepare a submission to theSBA for approval of the relationship outlined in theagreement. Fact 9 in the moving defendant’s separatestatement is to the effect that there is no provision in thementor/protégé agreement that requires the movingdefendant to (1) limit the scope of Macro-Z Technology’sduties under the agreement to “assistance;” (2) develop abusiness base and infrastructure that would allow it tobecome viable and self-sufficient; or (3) develop selfsustainingadministrative, accounting, contractadministration, bonding; bidding, and relatedoperations. As evidentiary support for fact 9, the movingdefendant cites Exhibit A to the Gilchrest declarationsubmitted on 5-30-13, which is the response of Macro-ZTechnology to defendant’s first set of requests forproduction at pp. RTL RPD 000001-000005, i.e., thementor/protégé agreement in general.However, this agreement contains the following provisions

at pp. 1-2:THEREFORE, consistent with these goals and therequirement of the SBA Mentor/Protégé Program,the parties agree to the following:1. Assessment of the Protégé’s Needs. As an 8(a)company seeking to develop a business base andinfrastructure to successfully participate andgraduate from the 8(a) program as a viablecompany, the Protégé requires assistance in thefollowing area (discuss those that apply):(A) Management and technical assistance: toassist in developing a viable general contractorthat will produce top quality, precision and valueas it pertains to the Federal Government’sconstruction needs/requirements(B) Financial assistance: to better understand therole of sureties and other guarantors when biddingon Government construction activities(C) Business development assistance: to betterunderstand how the U.S. Government marketsopportunities via FED BusinessOps; network/participate using the SBA’s valuableresources; strategize for growth in varyinggeographic regions(D) General assistance: to better understandvarious Government accounting/reportingprocedures as required by the FARS/DFARSregulations so as to ensure compliance as requiredby different Government customers2. Assistance to Protégé. Mentor agrees toprovide Protégé with the following assistance(discuss those that apply):(A) Management and technical assistance: willmonitor Protégé’s development to ensure that thequality/value being striven for consistently meetsor exceeds the Government’srequirements/expectations(B) Financial assistance: will introduce Protégé tosurety basics needed in order to secureappropriate bonding capability(C) Business development assistance: willintroduce Protégé to the various ways/means theGovernment advertises and provides opportunityto 8(a) companies(D) General assistance: will monitor/auditProtégé’s accounting capabilities on an as requiredbasis to ensure compliance with the FARS/DFARSregulationsPlaintiff argues that these terms require it only to provide“assistance” to the defendant protégé and that thedefendant breached the agreement by demandingservices that went above and beyond “assistance,” i.e., by

expecting plaintiff to provide the actual services. Thus,this is not a question of interpretation of the contractterms but a question of performance. As such, it is afactual question that cannot be resolved on summaryadjudication.Seventh Cause of Action for Unjust EnrichmentThe seventh cause of action is for unjust enrichment. Itbasically seeks damages for the “administrative,accounting, contract administration, bonding and biddingfunctions” it performed under the mentor/protégéagreement that went beyond the “assistance” it wasobligated to provide. (See SAC at 45.)Moving defendant contends that the plaintiff cannotmaintain this cause of action as a matter of law becauseof the contract between the parties, citing Klein v.Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342,1388. That case stated the following at p. 1388:On appeal, plaintiffs argue that although they maynot ultimately recover for both breach of the salesagreement and unjust enrichment, they arenonetheless entitled to pursue both claims at thisstage in the proceedings. It is true that modernrules of pleading generally permit plaintiffs to “setforth alternative theories in varied and inconsistentcounts.” [Citations.] Thus, if a plaintiff wasuncertain as to whether the parties had enteredinto an enforceable agreement, the plaintiff wouldbe entitled to plead inconsistent claims predicatedon both the existence and absence of such anagreement. [Citations.]A plaintiff may not, however, pursue or recover ona quasi-contract claim if the parties have anenforceable agreement regarding a particularsubject matter. For example, in Hedging Concepts,Inc. v. First Alliance Mortgage Co. (1996) 41Cal.App.4th 1410, 49 Cal.Rptr.2d 191 (HedgingConcepts), the trial court determined that althoughthe parties had “formed a contract,” the plaintiffhad failed to perform a required contingency andwas therefore ineligible to recover for breach ofcontact. [Citation.] Despite this finding, the trial“went on to award [plaintiff] a quantum meruitrecovery for the reasonable value of servicesperformed plus costs.” [Citation.]The appellate court reversed the award, explainingthat “[a] quantum meruit or quasi-contractualrecovery rests upon the equitable theory that acontract to pay for services rendered is implied bylaw for reasons of justice. [Citations.] However, itis well settled that there is no equitable basis foran implied-in-law promise to pay reasonable valuewhen the parties have an actual agreementcovering compensation.... [] ... [] The trial courtviolated the rule that equitable entitlement to aquantum meruit payment is not implied where the

parties have actual contract terms coveringpayment.... [] When parties have an actualcontract covering a subject, a court cannot—noteven under the guise of equity jurisprudence—substitute the court's own concepts of fairnessregarding that subject in place of the parties' owncontract.” [Citation.]Klein added the following at pp. 1389-1390:Although a plaintiff may plead inconsistent claimsthat allege both the existence of an enforceableagreement and the absence of an enforceableagreement, that is not what occurred here.Instead, plaintiffs' breach of contract claim pleadedthe existence of an enforceable agreement andtheir unjust enrichment claim did not deny theexistence or enforceability of that agreement.Plaintiffs are therefore precluded from asserting aquasi-contract claim under the theory of unjustenrichment. [Citations.]Here, the seventh cause of action alleges the existence ofa contract between the parties. As such, it is barred bythe authority cited above, and the moving defendant isentitled to summary adjudication of the seventh cause ofaction in its favor.14 2012-00607406Badraun vs GanatraTENTATIVE RULING :1. The Motion for Summary Judgment ofdefendants RSM Dental Corp. and Rinesh Ganatra, D.D.S.is denied. Plaintiffs’ Objections 1-6 and 8-11 areoverruled. Objections 1, 2, and 4 are overruled on themerits. The remaining objections are overruled becausethey are improperly made to the Facts in defendants’separate statement rather than to evidence. Objection 7is sustained. The medical records were not certified bythe entity which responded to the subpoena. The affidavitattached to the records provided to the court as Exh. Cwas not signed by the custodian. It was signed only bythe photocopier.2. The Joinder of defendant Chonway Tram isdenied. Plaintiffs’ objections 1, 4, and 8 aresustained. The remaining objections are overruled.Operative Pleading: Plaintiff points out that themotion for summary judgment addresses a cause ofaction (battery) which was omitted from the operativepleading, the First Amended Complaint. Plaintiff alsocontends that the wrong pleading (the original complaint)was provided by the moving party defendants in supportof this motion. However, while there was clearly an erroron the party of the moving parties in addressing a causeof action which is not contained in the First AmendedComplaint, this error did not prejudice plaintiff. The courtwill simply evaluate the merits of the motion as it pertainsto the cause of action which is asserted against themoving party defendants – dental malpractice.As to the fact that the original complaint wasprovided with the motion, this pleading is not irrelevant as

its filing date is relevant to the statute of limitationsargument made. And, it is not required that the movingparty provide the court with a copy of the operativepleading. The court has the operative pleading.There is a triable issue of fact as to when plaintiff’sdental malpractice cause of action accrued. CCP 340.5sets forth the applicable SOL and it provides in pertinentpart:“In an action for injury or death against a healthcare provider based upon such person's allegedprofessional negligence, the time for thecommencement of action shall be three years afterthe date of injury or one year after the plaintiffdiscovers, or through the use of reasonablediligence should have discovered, the injury,whichever occurs first. [Emphasis added.]”Pursuant to CCP 340.5, the one-year SOL tolls untilthe plaintiff is aware of his injury and its negligentcause. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103,1109.) However, a reasonable suspicion of wrongdoing isenough. It is not necessary that the plaintiff have all thefacts and evidence to prove wrongdoing to start the SOLrunning.“A plaintiff need not be aware of the specific ‘facts’necessary to establish the claim; that is a processcontemplated by pretrial discovery. Once theplaintiff has a suspicion of wrongdoing, andtherefore an incentive to sue, she must decidewhether to file suit or sit on her rights. So long asa suspicion exists, it is clear that the plaintiff mustgo find the facts; she cannot wait for the facts tofind her.” (Id. at 1111.)On the other hand, the fact that an operation orprocedure does not produce the anticipated results doesnot, by itself, show negligence and start the SOL running- as the best treatments sometimes fail without anynegligence. (Kitzig v. Nordquist (2000) 81 Cal.App.4th1384, 1391-1392.) In addition, as noted by plaintiff, acontinuing relationship with the medical provider whoprovides a non-negligent explanation for the patient’sissues lessen the plaintiff’s duty of investigation. Thus, inUnjian v. Berman (1989) 208 Cal.App.3d 881, where theplaintiff revoked an agreement to arbitrate a few weeksafter a face-lift, because he thought his face lookedworse, the court found the trial court erred in grantingsummary judgment on SOL grounds. Following thesurgery, the doctor and patient discussed possible reasonsfor the less-than hoped for result and the doctor proposedseveral reasons that did not include his ownnegligence. In finding the SOL had not started when thepatient revoked the arbitration agreement, the courtstated:“Where, as here, the injury is obvious but there isnothing to connect that injury to defendant'snegligence it cannot be said as a matter of law the

plaintiff's failure to make an earlier discovery offault was unreasonable. (Citation.) This isespecially true in cases such as the one before uswhere the plaintiff continues under the doctor'scare, does inquire about the cause of his apparentinjury and is given an explanation calculated toallay any suspicion of negligence on the doctor'spart.” (Id. at 885.)Plaintiff testified at his deposition that he neverreturned to defendants because he “felt something waswrong when I was getting the root canal,” that he “justknew something was wrong,” and that he thoughtdefendant Tram “was a hack.” Plaintiff further testifiedthat he knows other people who have had root canals andthey “never experienced what I experienced.” Plaintifftestified he had a feeling something was wrong during andafter the procedure. (Plaintiff’s Deposition; RT39) However, plaintiff also stated “it’s very hard for meto explain, I've never experienced anything like that in mylife,” and “I can’t explain it, and it was reallypainful.” Plaintiff stated: “I don’t think he treated it theway it was supposed to be treated. But, I'm not a dentist– you know – I was just in a lot of pain … It didn’t seemlike it was the way it was supposed to go.” (Plaintiff’sDeposition; RT 36-37)Those statements certainly suggest plaintiff had asuspicion of wrongdoing on the day of theprocedure. However, those statements have to be viewedin context. And, in response to an inquiry from plaintiffthe day after the root canal as to whether his level of painwas common, defendants’ office staff told plaintiff that hejust had surgery and it was going to be sore. (Plaintiff’sDeposition; RT 34) Further, during the procedure, whenplaintiff complained of terrible pain, defendant Tram tolddefendant that he might have a “black nerve” – that itwas possible plaintiff cannot get numb. (Deposition ofPlaintiff; RT 22)Given all these circumstances, plaintiff’s feelingthat something had gone wrong during and after theprocedure does not entitle defendants to judgment as amatter of law based on the statute of limitations. Thestatements made by defendants during the procedure andthe day after the procedure served to assure plaintiff thatthe pain he was feeling was normal and make the issue ofwhen the statute of limitations began to run a triableissue of fact. Accordingly, the motion for summaryjudgment and the joinder in it are denied.

\# Case Name1 2013-00660645Kim vs RecontrustCompanyTENTATIVE RULING:Motion No. 1 – Demurrer: Defendants Green TreeServicing LLC and MERS’s unopposed demurrer may bemooted by the filing of the First Amended Complaint perPlaintiff’s Notice of Intent to File the AmendedComplaint. In the event no such pleading is filed, thedemurrer to the complaint is sustained with 10 days leaveto amend. Moving parties are to give notice.Motion No. 2 – Demurrer: Defendants CountrywideHome Loans, Inc., Bank of America, N.A., ReconTrustcompany, N.A., Bank of New York Mellon, and MERS’unopposed demurrer may be mooted by the filing of theFirst Amended Complaint per Plaintiff’s Notice of Intent toFile the Amended Complaint. In the event no suchpleading is filed, the demurrer to the complaint issustained with 10 days leave to amend. Moving partiesare to give notice.6 2013-00653000Hermanns vs Hurley7 2012-00615561R & RManagement, LLC vs LeTENTATIVE RULING:Proof of service must be filed at least 5 court daysprior to the hearing (CRC Rule 3.1300(c)). Here, no proofof service was attached to the moving papers orseparately filed. Since no notice was given to Plaintiff, themotion is denied without prejudice. Moving party is togive notice.TENTATIVE RULING:MOTION NO. 1: Motion to Compel Responses toSpecial Interrogatories and Requests forProduction.Plaintiff R&R Management, LLC’s unopposed motion tocompel further responses to Special Interrogatories andRequests for Production is GRANTED in part and DENIEDin part, as follows:1. The motion is GRANTED as to SpecialInterrogatories 40, 41, 42, 43, and 46.2. The motion is GRANTED as to Requests forProduction 13, 14, 15, 16, 17, and 18. Whereprivileged documents are withheld, a privilege logshould be provided.3. The motion is DENIED as to Request for Production40, for lack of good cause shown.4. No sanctions will be awarded because plaintiff’smotion should have been filed as two motions,each separately seeking sanctions.Motion No. 2: Motion to Compel Further RPD’sDefendant Nga Le’s unopposed motion to compel furtherresponses to, and compliance with, Requests forProduction, Set Two, is GRANTED in part, and DENIED inpart, as follows:1. The request to overrule all General Objections inthe responses is GRANTED. Such objections arenot specific, and are improper, and must be

stricken. See Code Civ. Proc. §2031.210(a)(3).2. The motion is GRANTED as to Requests 49 and57. Plaintiff is ordered to provide furtherresponses to these requests within 10 days.3. The motion is also GRANTED as to Requests 26,27, 28, 30, 35, 36, 40, 42, 46, 52, 54, 55, and56. Plaintiff is ordered to comply with itsstatement of compliance, and produce responsivedocuments within 20 days. See Code Civ. Proc.§2031.320. Where privileged documents arewithheld, a privilege log should be provided.4. The motion is DENIED as to Requests 29, 31, 50,and 58. Defendant does not meet her burden ofdemonstrating good cause for the production ofthese documents. See Code Civ. Proc.§2031.310(b)(1).5. Sanctions are imposed against plaintiff in theamount of $1560, payable within 30 days.9 2013-00673365Alagna vs RoepkeTENTATIVE RULING:Plaintiff’s unopposed motion to consolidate thepresent case with the U/D action (13-669725) isgranted. This case (2013-00673365 ) is to be designatedthe lead case. Moving party is to give notice.Procedural considerations: CRC 3.350 sets forththe procedural requirements for a motion toconsolidate. Per CRC 3.350(a)(1), the notice of motionmust:A. List all named parties in each case, the namesof all those who have appeared, and thenames of their respective attorneys of record;B. Contain the captions of all cases sought to beconsolidated, with the lowest numbered caseshown first;C. Be filed in each case sought to beconsolidated.Per CRC 3.350(a)(2), the motion to consolidate:A. Is deemed a single motion…but memorandums,declarations, and other supporting papers mustbe filed only in the lowest number case;B. Be served on all attorneys of record and allnon-represented parties; andC. Have a proof of service filed as part of themotion.Here, moving party has complied with each of the aboverequirements except the following:The captions do not list both cases: CRC 3.350states that the “notice of motion to consolidate must . . .[c]ontain the captions of all the cases sought to beconsolidated, with the lowest numbered case shownfirst”. CRC.3.350(a)(1)(B). Here, moving party has listedonly the instant case in the caption. However, this is aminor error and will not deter the court from ruling on themerits discussed below.

Lower Numbered Case: The U/D action is the lowernumbered case, however, since that court cannotadjudicate the issues in this unlimited action, the motionis properly before this court.Merits: Defendant seeks an order consolidatingthe instant action with U/D case, apparently for allpurposes. Both actions relate to the property located inWestminster.CCP § 1048(a) provides: “When actions involving acommon question of law or fact are pending before thecourt, it may order a joint hearing or trial of any or all ofthe matters in issue in the actions, it may order all theactions consolidated, and it may make such ordersconcerning proceedings therein as may tend to avoidunnecessary costs or delay” (emphasis added). All thatthe moving party need show is that the issues in eachcase are basically the same, and that “economy andconvenience” would be served by a joint trial. See JudWhitehead Heater Co. v. Obler (1952) 111 Cal.App.2d861, 867. The granting or denial of the motion toconsolidate rests in the sound discretion of the trial court,and will not be reversed except upon a clear showing ofabuse of discretion. Fellner v. Steinbaum (1955) 132Cal.App.2d 509, 511.In the recently published case of Martin-Bragg v.Moore (2013) 219 Cal.App.4 th 367 relied upon by Plaintiff,that court stated, “[A] successful claim of title by thetenant would defeat the landlord's right topossession.” Id. at 385. It held: “The [lower] court hadbefore it allegations demonstrating a complex factualscenario under which the unlawful detainer plaintiff mightnot hold title sufficient to justify an unlawful detainerjudgment in her favor, and that the unlawful detainerdefendant and others might well be entitled to quiet titleto the property. Faced with these circumstances, the trialcourt's trial and implicit determination of the ownershipissue within the summary unlawful detainer proceeding,and refusal to permit trial of the issue of title outside ofthose summary procedures, was an abuse of discretionrequiring the judgment's reversal and remand to the trialcourt for determination of the parties' rights to legal andbeneficial title to the property, and their respective rightsto possession based on that determination.” Id.at 395.Here, Alagna is claiming title as co-owner of theproperty, and if found true, would defeat Roepke’s claimfor possession. The U/D action does not involve a thirdparty (e.g., foreclosure cases where a bona fide purchaserbought the property in a trustee’s sale and is seeking toevict the prior homeowner). Consolidation of theproceedings in this instance would avoid unnecessarycosts and delay, and serves economy andconvenience. The motion is granted.10 2013-00622332Harold Green, Trustee ofthe Green Family Trust vsLeeds Mattress Stores,Inc.TENTATIVE RULING:Plaintiff’s Motion to Enforce Terms of SettlementAgreement Pursuant to CCP 664.6 is granted. Judgmentwill be entered for plaintiff for $110,000 in principal,

$1650 in attorney’s fees, and $151.90 in costs.CCP 664.6 provides: “If parties to pendinglitigation stipulate, in a writing signed by the partiesoutside the presence of the court or orally before thecourt, for settlement of the case, or part thereof, thecourt, upon motion, may enter judgment pursuant to theterms of the settlement.” The settlement enteredbetween the parties here is in writing and signed by bothparties. It is thus properly enforced pursuant to CCP664.6 and judgment will be entered for the balance owedof $110,000.The settlement agreement provides at 1(C) thateach party will bear its own costs and attorney’sfees. However, 2(B) provides that in the event of anylitigation involving the settlement agreement, “theprevailing party shall be entitled to an award of attorney’sfees and costs.” Reading these two sections together,plaintiff, as the prevailing party on this motion, is entitledto the attorney’s fees and costs incurred in bringing thismotion, but not to the attorney’s fees and costs incurredprior to the settlement.Plaintiff seeks $2145 in attorney’s fees: 3 hours forthe motion; 1.5 hours for any reply; and 2 hours for thehearing; at $330/hour. This amount is reduced by $495(1.5 hours at $330/hour) because no reply wasfiled. Total attorney’s fees are thus $1650.11 2012-00601036CACH, LLC vs KardishPlaintiff seeks $661.90 in costs. Costs incurred inconnection with this motion ($66.90 for service; $60 filingfee; $25 e-filing fee) are properly awarded. However, theinitial appearance fee of $435 and $75 in e-filing fees forthe summons, POS for the summons, and the dismissalwere not costs incurred in bringing this motion and arethus not properly recovered. Total awardable costs are$151.90.TENTATIVE RULING:Defendants Motion to Set Aside and Vacate VoidDefault and Default Judgment is denied.The motion was not properly served on plaintiff’scounsel of record. Throughout this case, plaintiff hasbeen represented by attorney Michael Sipes. Sipes filedthe complaint on 9-26-12, filed opposition to the priormotion to set aside default filed by defendant AndrewKardish, and filed a Memorandum of Costs on 8-12-12. However, defendants served this motion on plaintiffdirectly, rather than on its attorney of record. And, whena party is represented by counsel, service must be madeon the attorney. (CCP 1015) The motion was thus notproperly served on plaintiff.Defendants have not established that the judgmentis void. Defendants contend the judgment is void on itsface because they were not served and had no notice ofthe action until plaintiff sent a copy of the defaultjudgment. CCP 473(d) authorizes the court to set aside avoid judgment. When determining whether a judgment isvoid on its face, the court looks only at the court’srecord. “This does not hinge on evidence: A void

judgment's invalidity appears on the face of the record,including the proof of service.” (Trackman v. Kenney(2010) 187 Cal.App.4th 175, 181.)Here, the judgment is not void on itsface. When personal service cannot, withreasonable diligence, be accomplished, a summonsand complaint may be properly served by substituteservice. (CCP 415.20(b0) And, the proofs ofservice submitted by the process server show thesummons and complaint were substitute served incompliance with the requirements of CCP415.20(b). The process server established that thesummons and complaint could not be personallyserved on defendants with reasonablediligence. The process server attempted personalservice 8 times before resorting to substituteservice. That is more than sufficient to showreasonable diligence. In addition, substitute servicemay be made by leaving the papers with acompetent member of the household and thenmailing them. The proofs of service indicate theprocess server gave the documents to an adult manleaving the defendants’ residence and mailed themto defendants afterwards. The proofs of servicethus show proper substitute service. Accordingly,the default and default judgment are not void ontheir face.In addition, defendants’ contentions that theywere not served and lacked notice are not supportedby sufficiently specific evidence. Defendants havenot disputed that they reside at the residence wheresubstitute service was accomplished. Whiledefendants claim they lacked notice, they have notspecifically denied receiving copies of the summonsand complaint from the man given copies by theprocess server or in the mail. Vague assertions thatthey lacked notice and were not served are notsufficient to rebut the details regarding servicecontained in the proofs of service.13 2013-00673995City of Anaheim vs GoodKarma CollectiveTENTATIVE RULING:City of Anaheim’s motion for preliminary injunctionis granted. City is to give notice.In City of Riverside v. Inland Empire Patents Healthand Wellness Center, Inc. (2013) 56 Cal.4 th 729, theCalifornia Supreme Court held that the CUA and MMP donot pre-empt local bans on medical marijuanadispensaries. “We thus conclude that neither the CUA northe MMP expressly or impliedly preempts the authority ofCalifornia cities and counties, under their traditional landuse and police powers, to allow, restrict, limit, or entirelyexclude facilities that distribute medical marijuana, and toenforce such policies by nuisance actions. Accordingly,we reject defendants' challenge to Riverside's MMDordinances.” Id. at *19.1 st COA re City Ordinance: City claims Defendants’activities violated the City Code §18.90.120.020, which

provides that any Zoning Code violation is a publicnuisance. City Code §4.20 specifically bans medicalmarijuana dispensaries.“[A] nuisance per se arises when a legislative bodywith appropriate jurisdiction, in the exercise of the policepower, expressly declares a particular object orsubstance, activity, or circumstance, to be a nuisance....[T]o rephrase the rule, to be considered a nuisance per sethe object, substance, activity or circumstance at issuemust be expressly declared to be a nuisance by its veryexistence by some applicable law.” City of Claremont v.Kruse (2009) 177 Cal.App.4 th 1153.Per the supporting declarations of officers ShaneCarringer and Jesse Penunuri, City has shown thatDefendants are operating a medical marijuana dispensaryin violation of its ordinance banning such dispensaries.2 nd COA re Civ. Code §3479 and 3 rd COA re H&SCode §11570: Civ. Code §3479 provides, in pertinentpart, “Anything which is injurious to health, including, butnot limited to, the illegal sale of controlled substances, …is a nuisance.” H&S Code §11570 provides, in pertinentpart, “Every building used for the purpose of unlawfullyselling, serving, storing, keeping, manufacturing, or givingaway any controlled substance, precursor, or analogspecified in this division, and every building or placewherein or upon which those acts take place, is anuisance ….” For the same reasons stated above, theoperation of the dispensary was not permitted under thelocal ordinance and therefore, sufficient evidence hasbeen provided showing that Defendants’ conductconstituted a nuisance under Civ. Code §3479 and H&SCode §11570.Balance of Harms: The balance of harm clearly tipsin favor of City as Defendants’ operation of the medicalmarijuana is in direct violation of the ordinance andstatutes.Bond/Undertaking: A bond is not required sincethe plaintiff is a governmental entity (CCP §529(b)(3)).18 2013-00623054Tran vs Allstate InsuranceCompanyTENTATIVE RULING:Defendants’ unopposed Motion for SummaryJudgment is granted. Defendant’ unopposed Request forJudicial Notice is granted.Defendant bears the burden of proving plaintiffscannot establish an element of their causes ofaction. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4 th826, 853.) If defendant meets this burden, the burdenshifts to plaintiffs to establish a triable issue offact. (Saelzler v. Advanced Group 400 (2001) 25Cal.4 th 763, 780-781.)Defendant has established that plaintiffs had noinsurable interest in the real property at-issue as theproperty was sold at a foreclosure sale prior to theloss. (UMF Nos. 3-6) Defendants have also establishedthat plaintiffs have no evidence of a loss based on their

living expenses. (UMF Nos. 18-19) Defendant has thusmet its burden of showing there was no breach ofcontract. And, as there was no breach of contract, itfollows there was also no breach of the covenant of goodfaith and fair dealing. No triable issue of fact has beenraised as plaintiffs have not filed opposition.

HON. GREGORY HORRELL LEWISSuperior Court of Orange CountyBorn: 1938, Long Beach, CaliforniaUndergraduate: Long Beach City College, 1963Law School: Western State, 1973Admitted to Practice: 1973Appointed to the Bench: 1998Appointed by: Prop. 220Career as an AttorneyAssistant Deputy District Attorney, Orange County, California, (May-June, 1965)Partner, Hagee & Lewis (civil litigation), Long Beach, California, 1979-88Other CareerPetroleum Industry, 1964-88, (Vice-President, Hagee Lewis PetroleumCorporation, 1979-88)Other Judicial OfficeJudge, Municipal Court, Central Orange County Judicial District,Orange County, California, 1994Relevant Organizational AffiliationsMember:California Judges Association, 1988Former Member:Long Beach Bar Association, 1979-88Association of Trial Lawyers of America, 1981-88California Trial Lawyers Association, 1984-88Los Angeles Trial Lawyers, 1984-88Orange County Bar Association, 1986-88West Orange County Bar Association, 1986-88 (Trustee, 1988)Chair, Lawyer Referral Services Committee, 1986-88

Other InformationMilitary Service:Private to Sergeant, 1 st Class, U.S. Army, 1956-1964 (Germany, 11 th AirborneDivision, Paratroopers, (Recipient, Good Conduct Medal)Political/Religious Affiliation:Republican/ ProtestantAdmissions:U.S. District Court, Central District, California, 1979

NOTICELAW AND MOTION PROCEDURES FOR DEPARTMENT C26THE HONORABLE GREGORY H. LEWISLAW & MOTION IS HEARD ON MONDAYS AT 10:30 A.M.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings by 12:00 p.m. Friday before the Monday date. The rulings will also beposted outside the courtroom on the bulletin board for those counsels without internet access, no laterthan 8:30 a.m. on the day of the scheduled motion.The Law & Motion hearings are scheduled on Monday at 10:30 a.m. and all arguments will be heard atthat time. No supplemental or additional papers will be allowed to be submitted following posting of theruling on the internet, nor will the Court entertain a request for continuance once the ruling has beenposted.****** SUBMITTING ON THE COURT’S TENTATIVE RULING*****Notice to be given to the Court and opposing counsel no later than 3:00 p.m. the Friday beforethe Monday date.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. Ifyou intend to submit on the tentative and do not want oral argument, please call the clerk by calling (657)622-5226 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate per CRC391.NOTICE TO COUNSEL: Upon filing of motion, moving party shall provide a copy of this procedural noticeto opposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because ofmoving party’s failure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailingparty shall give notice of the ruling. Prevailing party shall prepare and Order/Judgment for the Court’ssignature if the motion is dispositive of the cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or courtroom assistant for clarification ofrulings or additional information. If you are moving party and do not have internet access, you may callthe clerk or courtroom assistant after 1:30 p.m. on the Friday before the scheduled hearing and the rulingwill be read to you.WHEN A CASE MANAGEMENT CONFERENCE IS ALSO SET THE DAY OF A LAW AND MOTIONMATTER, UNLESS SPECIFICALLY ADDRESSED OTHERWISE IN THE TENTATIVE RULING, BOTHMATTERS WILL BE HEARD AT 10:30 A.M.TELECONFERENCE APPEARANCESAppearances for Law & Motion and all other hearings except Trial, MSC and VSC hearings are allowedthrough Court Call.LAW AND MOTION CALENDAR5-20-13#1 11-522416CUMMINS & WHITEVS PARSIMotion: To Compel Special Interrogatories. Moving Party Cross-Complainant Reza Ray Parsi. Responding Party Cross-Defendant JamesWakefield. Ruling: Cross-complainant Parsi’s motion to compel furtherresponses to Special Interrogatories Numbers 373, 377, 381, 385, 389,393, 397, 401 and 405 by cross-defendant Wakefield is GRANTED. C.C.P.§ 2033.300(a). Cross-defendant Wakefield is ordered to provide such furtherresponses within 14 days. Absent a protective order, a party is permitted to use

overlapping discovery methods and referring a party to other discoveryresponses is generally improper. See, Deyo v. Kilbourne (1978) 84 Cal.App.3d771, 783 to 784 and Coy v. Superior Court (1962) 58 Cal.2d 210, 217 to 218.Cross-defendant Wakefield did not file a motion for any protective order. Also,the court finds that these special interrogatories are each tailored to a specificaffirmative defense and not necessarily fully encompassed within Form Rog. No.15.1. Relatedly, cross-defendant Wakefield did not carry his burden ofdemonstrating that these special interrogatories were necessarily duplicative orunduly burdensome. See, Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4 th245, 255 [burden on party raising objections to justify objections in response toa motion to compel further responses.] Moving party to give notice.Cross-Defendant Wakefield’s Request for Judicial Notice: Cross-defendantWakefield requested that the court take judicial notice of the followingdocuments: Exhibit 1, Cross-defendant Wakefield’s Further SupplementalResponses to Form Interrogatories Set No. One, Exhibit 2, Exhibit 2, Cross-Complainant Parsi’s Motion to Compel Responses to Form Interrogatory 15.1 andassociated Separate Statement in Support, Exhibit 3, Court Transcript from 1-7-13 hearing on Cross-defendant Parsi’s Motion to Compel Responses to FormInterrogatory No. 15.1, Exhibit 4, Cross-defendant Parsi’s Specially PreparedInterrogatories, Set No. Three, to Cross-defendant Wakefield, Exhibit 5,Cummins & White LLP and Wakefield’s Answer to First Amended Crosscomplaint,and Exhibit 6, Cross-Defendant Wakefield’s Responses to SpecialInterrogatories, Set No. Three. Cross-defendants Wakefield’s requests forjudicial notice are granted in part and denied in part. DENIED as toExhibits 1, 4, and 6, as these are evidentiary exhibits not subject tojudicial notice. GRANTED as to Exhibits 2, 3 and 5, but such notice islimited to the filing of these pleadings with the court or the transcriptbeing a court transcript but not as to the truth of any claims orcontentions set forth in these documents. See, Evidence Code § 452(d) andDay v. Sharp (1975) 50 Cal.App.3d 904, 914.2 11-528939MARTIN VS KLINGMotion: Demurrer. Moving Party Cross-Defendant Robert Martin. RespondingParty Cross-Plaintiff John Kling. Ruling: Mr. Martin’s Demurrer to the 1stthrough 6th causes of action of the 2d Amended Complaint isSUSTAINED with 20 days leave to amend. His demurrer to the 7th causeof action is SUSTAINED without leave to amend.1st cause of action: Breach of contract. The 2 year statute of limitations ofCCP §339(1) applies. The alleged contracts are not attached to the 2d AmendedComplaint but the Court takes judicial notice of Ex.A to the 1st AmendedComplaint. Neither written contract concerns the duties that Mr. Kling allegeswere breached in this case. Therefore, his claim is based solely on oralcontracts. He cites no authority that merely alleging that they were“modifications” of the written contract permits application of the 4 year statuteof limitations.The Court ruled on 3/11/13 that to plead late discovery, Cross-complainant mustallege facts establishing his reason for failure to discover the claim sooner.Berendsen v. McIver (1954) 126 Cal.App.2d 347, 352. However, Mr. Martinfailed to give notice of this ruling. Therefore, Mr. Kling is given one morechance to plead specific facts showing how he discovered each of the allegedbreaches and why he failed to discover them sooner.2d cause of action: Fraud regarding usury. It is unclear whether thealleged representations are statements made to Mr. Kling or the interest rateshown on the notes. As the rate of interest was on the face of the notes, Mr.Kling had all the facts he needed to discover that it was usurious at the time thenotes were given. Therefore, any claims based on the first three notes are timebarred under CCP §338(d). The 4th note was given less than 3 years before thecomplaint was filed. If the cross-complaint relates back to that date, the claim is

not time barred. If there is another demurrer, the parties are to brief this issue.However, the pleading of the oral representations is vague as to what they were,when they were made, and why it was reasonable to rely on them, particularlywhen the rate of interest was apparent on the face of the note. Mr. Kling mustplead specific facts, not mere conclusions.3d cause of action: Fraud regarding tax work. Plaintiff alleges that he wasaudited but fails to state when the audits took place and why he was unable todiscover that the tax returns were inaccurate until 3 years prior to the filing ofthe complaint (if the relation back doctrine applies) or the cross-complaint (if itdoes not).4th cause of action: Conversion. Mr. Kling must allege with specificity whattangible personal property he was deprived of (Olschewski v. Hudson (1927)84 Cal.App.2d 282, 288) and facts to show that the deprivation was not merely atemporary interference with his right to possess it (Maheu v. CBS, Inc. (1988)201 Cal.App.3d 662, 672). The Court does not believe that denial of access todata on a computer constitutes conversion of tangible property, but is willing toreconsider this issue if Mr. Kling can cite authority concerning this or similartypes of property.5th cause of action: Misappropriation. Mr. Kling must allege with specificitywhat was misappropriated and how it was misappropriated. In addition,Mr. Kling is relying on late discovery; therefore he must plead how and when hediscovered the misappropriation and why he was unable to discover itsooner. He has apparently dropped his claim for statutory misappropriation; hisclaim is expressly based on common law. Thus, the applicable statute oflimitations is two years for a claim not based on a written contract. CCP§339(1). Mr. Kling cites no authority that a three-year statute of limitationsapplies to a non-statutory claim.6th cause of action: Negligence. Mr. Kling’s claims are the same as in hisbreach of contract cause of action. A negligence claim is not founded on awritten contract; it is a tort claim. CCP §339(1) applies. Again, Mr. Kling mustplead specific facts showing how he discovered each of the alleged breaches andwhy he failed to discover them sooner.4 12-552997THE VILLA BALBOACOMMUNITYASSOCIATION VSRAUSCH5 12-562973LOPEZ VSBARTLETT7th cause of action: Usury. The alleged notes were interest only notes. Thus,Mr. Kling’s cause of action accrued when he made any payment at all onthem. See Garver v. Brace (1996) 47 Cal.App.4th 995, 1000; Shirley v. Britt(1957) 152 Cal.App.2d 666, 669-670, and Westman v. Dye (1931) 214 Cal.28. The last note was given in 2008. The statute of limitations is 2 years underStock v. Meek (1950) 35 Cal.2d 809, 817. Plaintiff does not allege that anypayments were made after 2009, so the claim is time barred.Motion: Leave to File Cross-Complaint. Moving Party Defendant KimRausch. Responding Party Plaintiff Villa Balboa CommunityAssociation. Ruling: The motion for leave to file a cross-complaint isTaken Under Submission. It will be granted if Defendant lodges herproposed cross-complaint within five court days and serves notice oflodging on Plaintiff at the same time. The time to respond to the crosscomplaintwill run from the effective date of notice of lodging. If the crosscomplaintis timely field, trial will be continued to 9-30-13. Discovery will bereopened in part, i.e., to permit Plaintiff to conduct discovery regarding thecross-complaint.Motion: Demurrer to Second, Third and Fourth Causes of Action in FirstAmended Complaint. Moving Party Defendants Joel C. Bartlett, M.D., TalbertMedical Group, Inc. and Healthcare Partners Medical Group, Inc. RespondingParty Plaintiff David Lopez, individually and as personal representative of theEstate of Marsha Lopez. RULING: Plaintiff Lopez dismissed his fourth

cause of action for elder abuse in his first amended complaint againstdefendants Dr. Bartlett, Talbert Medical Group and Healthcare PartnersMedical Group without prejudice, so defendants’ demurrer to plaintiff’sfourth cause of action for elder abuse is MOOT. As to plaintiff Lopez’ssecond cause of action for fraudulent concealment and third cause ofaction for breach of fiduciary duty, the demurrer by defendants Dr.Bartlett, Talbert Medical Group and Healthcare Partners Medical Group isOVERRULED. Plaintiff Lopez has pled sufficient facts to state a cause of actionfor fraudulent concealment against defendants Dr. Bartlett, Talbert MedicalGroup and Healthcare Partners Medical Group. (See, FAC, 23, 31, 53, 55 and56.) Also, a cause of action for fraud can be stated against a physician asphysicians owe a fiduciary duty to their patients. See, Nelson v. v. Gaunt (1981)125 Cal.App.3d 623, 636. The fact that Nelson involved claims of intentionalmisrepresentation rather than concealment does not change the nature of theduty owed by a physician. As to plaintiff Lopez’s third cause of action for breachof fiduciary duty, a cause of action for breach of fiduciary duty can be stated inthe context of a claim for lack of informed consent with resulting damages. See,Jameson v. Desta (4 th Dist. 2013) 215 Cal.App.4 th 1144 and Moore v. Regents ofUniversity of California (1990) 51 Cal.3d 120. Plaintiff Lopez has thus pledsufficient facts as to a fiduciary duty owed, breach of that fiduciary duty basedon lack of informed consent in regard to the prescription of metoclopramide overan extended period time, and resulting damage of permanent injuries includingtardive dyskinesia. Finally, plaintiff has alleged sufficient facts to apprisedefendants of the nature of his claims for fraudulent concealment and breach offiduciary duty such that defendants can respond. See, Khoury v. Maly’s ofCalifornia, Inc. (1993) 14 Cal.App.4 th 612, 616. Defendants Dr. Bartlett, TalbertMedical Group and Healthcare Partners Medical Group are ordered to answerplaintiff Lopez’s first amended complaint within 10 days. Moving parties to givenotice.Plaintiff Lopez’s Request for Judicial Notice: Plaintiff Lopez requestedthat the court take judicial notice of the following documents: Exhibit 1,3-18-13 Minute Order granting plaintiff’s motion for leave to file firstamended complaint, and (2) defendant’s notice of demurrer anddemurrer filed 4-8-13. GRANTED as to Exhibits 1 and 2, but such noticeas to Exhibit 2 is limited to the filing of this notice of demurrer with thecourt but not as to the truth of any claims or contentions set forththerein. See, Evidence Code § 452(d) and Day v. Sharp (1975) 50 Cal.App.3d904, 914.Other Matter: On 5-3-13, the case management conference was continued to5-20-13 to be heard in conjunction with Defendants’ Demurrer to Plaintiff’s FirstAmended Complaint. Plaintiff Lopez requested a jury trial and provided a 12 to14 day trial estimate. Defendants have not filed a Case Management Statement.8 12-570737LEVESQUE VSAIRTOUCHCELLULAR9 12-572462ROS VS CHAOMotion: To Compel Production Moving partyJana Levesque. RespondingParty Airtouch Cellular. Ruling: Plaintiff’s motion to compel production isdenied. The Court cannot order Defendant to produce the document demandedby Plaintiff, as Defendant states that it does not exist. Both parties’ requestsfor sanctions are denied.Motion: To Compel Deposition Moving Party Defendant Cynthia Chao.Responding Party Plaintiffs Somaly Ros and Nathan Ros. Ruling: The courtorders this matter continued to 7-15-13, at 10:30 a.m., inDepartment C-26, or a later date convenient to the Court’s Civilcalendar, and with Plaintiffs to produce a privilege log as to alldocuments by attorney Steven Brandwein being withheld under a claimof privilege, excluding any letters by attorney Brandwein to anyconsulting experts. See, Hernandez v. Superior Court (2003) 112 Cal.App.4 th285, 290 and Schreiber v. Estate of Kiser (1999) 22 Cal.4 th 31, 37. While thecourt cannot review the actual documents to determine whether they areprivileged or not, the purpose of a privilege log is to assist the court in makingsuch a determination without review of the actual documents. See, Hernandez,

at 290. This privilege log shall be served on all parties by 6-7-13. Counsel for theRos Plaintiffs and Defendant Dr. Chao are then ordered to meet and conferfurther once this privilege log has been produced. The court notes that dates ofmeetings are not privileged. See, Coy v. Superior Court (1962) 58 Cal.2d 210,219 to 220. Also, correspondence between attorney Brandwein and defendantDr. Chao’s insurer would not be privileged. Further, at the discovery stage,relevance is broad and includes matters likely to lead to the discovery ofadmissible evidence. See, Lipton v. Superior Court (1996) 48 Cal.App.4 th 1599,1611. Whether deposition questions attempting to determine whether attorneyBrandwein followed his custom and practice in regard to his representation of theRos Plaintiffs invades the attorney client or attorney work product doctrine wouldhave to be determined at deposition based on the questions asked. Finally, as toany matters remaining in dispute following the meet and confer after productionof the privilege log, defendant Dr. Chao is to file a supplemental brief of no morethan 5 pages detailing the further meet and confer and any matters that remainin dispute 9 court days before the continued hearing date, and the Ros plaintiffsare to file a supplemental brief of no more than 5 pages 5 court days before thecontinued hearing date on the same issues. Moving party to givenotice.11 12-596480AMEZCUA VSNGUYENMotion: Demurrer and Motion to Strike. Moving Party Defendant Century21 Real Estate LLC. Responding Party Plaintiff DonaAmezcua. Opposition: None. Ruling: The Demurrer is Sustained with 20days leave to amend due to lack of opposition. Judicial Notice is Deniedfor lack of foundation. The motion to strike is Off Calendar(moot). Defendant is to give notice. The Court notes that even if Defendantwas not licensed in California, that does not prove it was not the broker for theproperty; it could have been operating without a license.12 12-596784 Motion: Discharge Receiver. Moving Party Receiver PatrickGalentine. Responding Party None. Opposition: None. Ruling: The motionUS BANK NATIONAL to discharge the Receiver, approve his final account and exonerate theASSOCIATION VSsureties is Granted. The Receiver is to give notice. The receiver is to submit aEL TORO SHOPPINGCENTERproposed order that includes the caption, case number, etc. for this case.14 12-613001BAUER VS WHITEMotion: Deem RFAs Admitted. Moving Party Plaintiff Sandra L. Bauer, dbaBauer & Associates. Responding Party Defendants Jim B. White and Kathy L.White. Opposition: None. Ruling: Unless proper responses to plaintiffBauer’s requests for admission are served before the hearing on 5-20-13, then the Court will Grant plaintiff Bauer’s motion to deem herrequests for admission to defendant Jim White and defendant KathyWhite admitted. CCP 2033.280(b). Also, Grant plaintiff Bauer’s request forsanctions in the amount of $1,141.45 payable by defendants Jim White andKathy White. CCP 2033.280(c).15 12-615024PEDERSEN VS RES-CAREMotion: Demurrer to First Amended Complaint and Motion toStrike. Moving Party Defendants Res-Care, Inc., RSCR California, Inc. and KeithScheessele. Responding Party Plaintiffs James Pedersen, an individual, by andthrough his Guardian ad Litem Gloria Pedersen; and Gloria Pedersen, anIndividual. Ruling: The demurrer to the First and Third causes of actionin the First Amended Complaint on grounds of failure to state isSustained, in part, and Overruled, in part, as follows: Overruled as tothe First cause of action for Neglect. Sustained as to the Third cause ofaction for Negligent Infliction of Emotional Distress. The Third cause ofaction is duplicative of plaintiffs’ Second and Fifth causes of action. Themotion to strike portions of the First Amended Complaint is granted asto: 1) paragraph 3 of the prayer at page 13, line 16; 2) paragraph 4 of

the prayer at page 13, line 17. Plaintiffs failed to allege facts supporting theirclaim for heightened remedies under @&I 15657, and for punitive damagesunder CC 3294. Plaintiffs also failed to allege facts showing compliance with CC3294(b). Plaintiffs failed to allege a contractual or statutory basis to supporttheir claim for attorneys’ fees. Plaintiffs are granted 15 days leave toamend. Counsel for moving party to give notice.16 13-632436JOHNSON VSCOSBY17 13-647243MANLEY’S BOILERVS ANTHONYMotion: Demurrer to Cross-Complaint and Joinder in Black’s Demurrer.Moving Party 1) Cross-Defendant Robin J. Black. Moving Party 2) Cross-Defendant Robert G. Johnson. Responding Party 1) & 2) Cross-Plaintiff DesireeE. Cosby. Ruling: 1) Cross-defendant black’s Demurrer to Cosby’s crosscomplaintis Sustained with 15 days leave to amend, because crosscomplainantCosby has not attached any judicial council cause of action forms toher cross-complaint as required. Moving Party to give notice. 2) CrossdefendantJohnson’s joinder in cross-defendant Black’s Demurrer isgranted, with cross-complainant Cosby having leave to amend for the reasonsnoted above.Motion for Preliminary Injunction. Moving Party Plaintiff Manley’sBoiler. Responding Party Defendants Charles Anthony, Genaro Canseco andCanseco Boiler Services. Ruling: The Motion for Preliminary Injunction isDENIED. There is insufficient admissible evidence to support Plaintiff’s claims ofmisappropriation; Plaintiff has not met its initial burden.In addition, assuming without deciding that the purported trade secrets aresufficiently defined, the Canseco and Anthony declarations establish by apreponderance of the evidence that they have not been appropriated or used.There is no admissible evidence that Canseco Boiler is suspended. Even if it is,the Anthony opposition can be considered and it refutes Plaintiff’s claims.Defendants’ objections:Escamillia declaration:Objection #1 is SUSTAINEDObjection #2 is OVERRULEDSeymour declarationObjection #1 is SUSTAINEDObjections ## 2 & 3 are OVERRULEDManley declaration:Objection # 4 is OVERRULEDAll other objections are SUSTAINEDCharleston declaration:All objections are SUSTAINEDPlaintiff’s objections:Plaintiff has thrown out the same boilerplate objections to nearly everyparagraph in Defendants’ declarations without specifying what particularlanguage is objected to. The Court finds that these objections are made in badfaith and declines to review the declarations to determine independently what, ifanything is actually objectionable. It will not rule on the objections.

NOTICELAW AND MOTION PROCEDURES FOR DEPARTMENT C26THE HONORABLE GREGORY H. LEWISLAW & MOTION IS HEARD ON MONDAYS AT 10:30 A.M.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings by 12:00 p.m. Friday before the Monday date. The rulings will also beposted outside the courtroom on the bulletin board for those counsels without internet access, no laterthan 8:30 a.m. on the day of the scheduled motion.The Law & Motion hearings are scheduled on Monday at 10:30 a.m. and all arguments will be heard atthat time. No supplemental or additional papers will be allowed to be submitted following posting of theruling on the internet, nor will the Court entertain a request for continuance once the ruling has beenposted.****** SUBMITTING ON THE COURT’S TENTATIVE RULING*****Notice to be given to the Court and opposing counsel no later than 3:00 p.m. the Friday beforethe Monday date.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. Ifyou intend to submit on the tentative and do not want oral argument, please call the clerk by calling (657)622-5226 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate per CRC391.NOTICE TO COUNSEL: Upon filing of motion, moving party shall provide a copy of this procedural noticeto opposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because ofmoving party’s failure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailingparty shall give notice of the ruling. Prevailing party shall prepare and Order/Judgment for the Court’ssignature if the motion is dispositive of the cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or courtroom assistant for clarification ofrulings or additional information. If you are moving party and do not have internet access, you may callthe clerk or courtroom assistant after 1:30 p.m. on the Friday before the scheduled hearing and the rulingwill be read to you.WHEN A CASE MANAGEMENT CONFERENCE IS ALSO SET THE DAY OF A LAW AND MOTIONMATTER, UNLESS SPECIFICALLY ADDRESSED OTHERWISE IN THE TENTATIVE RULING, BOTHMATTERS WILL BE HEARD AT 10:30 A.M.TELECONFERENCE APPEARANCESAppearances for Law & Motion and all other hearings except Trial, MSC and VSC hearings are allowedthrough Court Call.LAW AND MOTION CALENDAR6-10-13#3 2012-566173BOHM, MATSEN, KEGEL &AGUILAERA VS BONILLAMotion: Order Charging Judgment Debtor’s Interest inPartnership. Moving Party Plaintiff Bohm Matsen Kegel &Aguilera. Responding Party Defendant Jose Bonilla. Opposition: None.Ruling: The Motion for an Order Charging the Judgment Debtor’sInterest in the Partnership is granted. In addition, the courtappoints Bellann Raile, the Receiver in Bonilla v Bonilla, 07CC04418,to monitor the collection of the Judgment in a fair and equitable

5 2012-570734LEVESQUE VS AIRTOUCHCELLULAR6 2012-571969MATTHEWS DIEDIVISION VS WEIBELTmanner consistent with the other outstanding obligations of thepartnership. “A motion for a charging order may be combined with amotion to appoint a receiver to collect the judgment debtor’s share ofpartnership or LLC profits and any other moneys due, or to become due, thedebtor from the partnership or LLC.” Ahart, California PracticeGuide: Enforcing Judgments and debts (Rutter Group) 6: 1467. Corp. CodeSec 16504 (a) On application by a judgment creditor of a partner or of apartner’s transferee, a court having jurisdiction may charge the transferableinterest of the judgment debtor to satisfy the judgment. The court mayappoint a receiver of the share of the distributions due or to become due tothe judgment debtor in respect of the partnership and make all other orders,directions, accounts, and inquiries the judgment debtor might have made orthat the circumstances of the case may require. Phillips, Spallas & Angstadt,LLP v Fotouhi (2011) 197 Cal App 4 th 1132, 1141.Motion: Summary Adjudication. Moving Party Defendant AirtouchCellular dba Verizon Wireless, Inc. Responding Party Plaintiff JanaLevesque. Opposition: None.Ruling: Defendant Airtouch Cellular’s Motion for SummaryAdjudication on the issue of punitive damages is Granted. CCP437c(f)(1). On summary adjudication, the court reviews the evidence onthe matter of punitive damages under the “clear and convincing” standard ofproof. Under this evidentiary standard, defendant carried its burden ofdemonstrating that there was no authorization or ratification of anypurported wrongful conduct by an office, director or managing agent ofdefendant Moving Party. Additionally, defendant carried its burden that thereis no evidence of any malice, fraud or oppression, and in particular anydespicable conduct, to support a claim of punitive damages againstdefendant Moving Party. Further, Plaintiff Levesque filed no opposition oradmissible evidence to demonstrate that any triable issue of material factexists on the issue of punitive damages.Motion: Summary Judgment/Summary Adjudication. Moving PartyDefendant/Plaintiff Bruce A. Weibelt. Responding Party Plaintiff/Cross-Defendant Matthews Die Division and Cross-Defendants David Reynolds, USCutting Dies LLC and US Graphics Inc.Ruling: The motion for summary judgment on the complaint isGranted. Defendant’s objections to the Reynolds Declaration areSustained. Plaintiff’s request for leave to amend is Denied. TheMotion for Summary Adjudication of the affirmative defenses to thecross-complaint is Denied without prejudice to bring motions inlimine as to the specific defenses. Defendant is to give notice. Plaintiffadmits that Sec 15.14 of the Operating Agreement only applies if Se 12.2applies. Plaintiff also admits that Sec 12.2(a) has been eliminated and12.2(b) is inapplicable. This leaves only the provisions regarding the right offirst refusal in case of a sale of a member’s interest. However, to apply theseterms to a sale to the company itself creates an absurdity; how can thecompany have a right of first refusal on a sale to itself? Plaintiff fails toexplain how this language can possibly be interpreted. It admits that theright of first refusal is inapplicable; essentially it argues that the provisionapplies because it is inapplicable. The statements that Defendant objects toin the Reynolds declaration are inadmissible for the reasons briefed bydefendant. Under Mission Valley East Inc. v County of Kern (1981) 120 CalApp 3d 89, 98, parol evidence to interpret a contract is admissible only if itsupports a meaning to which the language is susceptible. Plaintiff has notshown how it can amend to state a viable cause of action. Not only does itsrequest fail to comply with CRC 3.13.24, this case is already a year old, trialis only four months away, and Plaintiff is seeking to create a wholly newcomplaint that is unrelated to anything alleged previously without giving anyindication of the facts that it would plead. Because 1) the cross-complaintwas amended after the motion was filed, 2) notice of motion doesn’t state

what affirmative defenses are challenged, and 3) the points andauthorities do not attempt to explain how defendant’s contentions areapplicable to the specific defenses, the Court cannot rule on the challenges tothe cross-complaint. However, the Court notes that this ruling will be law ofthe case and it may be possible to eliminate affirmative defenses by meansof motions in limine. Judgment will not be entered at thistime. Because the cross-complaint is still pending, such a judgm3ent wouldbe interlocutory only and violate the “one final judgment rule” rule. Angell vSuperior Court (1999) 73 cal App 4 th 691, 697-698.7 2012-590726BECK VS CITY OF SEALBEACHMotion: Demurrer to Second Amended Complaint. Moving PartyDefendant City of Seal Beach. Responding Party Plaintiffs Robert and NancyBeck.Ruling: Respondent’s Request for Judicial Notice is Denied. TheDemurrer to the Petition is Overruled. Within fifteen (15) days,Respondent City of Seal Beach shall file an Answer to the Petition. “Itis not the ordinary function of a demurrer to test the truth of the plaintiff’sallegations or the accuracy with which he describes the defendant’sconduct. A Demurrer test only the legal sufficiency of the pleadings.” Berg &berg Enterprises, LLC v Boyle (2009) 178 Cal App 4 th 1020, 1034. ThePetition is a fact-based pleading that raises due process argumentsconcerning the Ordinance and its exemptions. CCP 1094.5(b) provides that“The inquiry in such a case shall extend to the questions whether therespondent has proceeded without, or in excess of, jurisdiction; whetherthere was fair trial; and whether there was any prejudicial abuse ofdiscretion. Abuse of discretion is established if the respondent has notproceeded in the manner required by law, the order or decision is notsupported by the findings, or the findings are not supported by theevidence.” The Motion to Strike is Denied. The City seeks to strike portionsof the Petition that may or may not be valid request for relief. “The Motion toStrike should be cautious and sparing. “ PH II, Inc. v Superior Court (1995)33 Cal App 4 th 1680, 1683. The City seeks to strike portions of the Petitionthat may or may not be a valid request for relief.8 2012-591702Motion: Compel Responses to Deposition DocumentDemands. Moving Party Defendant Pedro Arturo Bermeo. Responding PartyHAMMOUDEH VS BERMEO Plaintiff Muhammad Hammoudeh. Opposition: None.9 2012-597715SWEENEY VS PUR DETOXRuling: Defendant Bermeo Motion to Compel Plaintiff’s Response toDefendant Bermeo’s Deposition Document demands is Granted. CCP2025.450(a) provides that such documents should be produced at aresumed deposition so the parties are ordered to meet and confer and selecta date for the resumed deposition to be completed by 6-28-13 and plaintiffHammoudehis ordered to produce all responsive documents, withoutobjection, at this resumed deposition that are responsive to defendant’sdeposition documents requests. Finally, defendant Bermeo is awardedsanctions of $450.00, pursuant to CCP 2025.480(j), payable by plaintiffHammoudeh only.Motion: Compel Further Responses. Moving Party Defendant AllanSosin, MD. Responding Party Plaintiff William Sweeney. Opposition: None.Ruling: The motion to compel further responses to forminterrogatories 8.3 and 8.4 is Granted. Responses are to be servedwithin 10 days. Even though Plaintiff is not making a claim for pastearning, he is making a claim for future earnings. When he last worked andwhat he earned at the time of the incident are relevant to create a basis forcomparison. In addition, the motion is unopposed. Sanctions of $620.00 areawarded to Defendant against Plaintiff and his attorney, jointly andseverally. Defendant can submit on the tentative; there is no need for anappearance.

10 2012-603820THE MELTON BACON ANDKATHERINE L. BACONFAMILYTRUST VS CALIFORNIASTATE LANDSCOMMISSION13 2012-618788SYSTEMSOLDING VS WHITLEYMotion: Demurrer to First Amended Complaint. Moving Party DefendantState Lands Commission. Responding Party Plaintiff The Melton & KatherineBacon Trust.Ruling: The Request for Judicial Notice is Granted. However, the courtwill not take judicial notice of the truth of contents of exhibit A andB. Herrera v Deutsche Bank National Trust Co. (2011) 196 Cal App 4 th 1366,1375. The Demurrer to the First, Second, Third and Fourth causes ofAction is Overruled. “It is not the ordinary function of a demurrer to testthe truth of the plaintiff’s allegations or the accuracy with which he describesthe defendant’s conduct. A Demurrer tests only the legal sufficiency of thepleading.” Berg v Berg enterprises, LLC v Boyle (2009) 178 Cal App 4 th1020, 1034. Plaintiffs allege that the Trust owned an express easement forthe Coral Cay Property. Without expert testimony, the court is not positionedto determine the truth of these allegations. Plaintiff alleged that the State’sactions created the elements for promissory estoppel and the taking ofvested rights. These issues must be decided by the trier of fact. TheDemurrer to the Fifth Cause of Action for Declaratory reliefPermanent Injunction is Sustained without leave to amend. “Aninjunction is a remedy, not a cause of action.” Marlin v Aimco Venezia, LLC(2007) 154 Cal App 4 th 154, 162. Pursuant to CCP 1061, “The court mayrefuse to exercise the power granted by this chapter in any case where itsdeclaration or determination is not necessary or proper at the time under allthe circumstances.” The California State Lands Commission shall Answer theComplaint within fifteen (15) days.Motion: Demurrer to Second Amended Complaint. Moving PartyDefendants Antonio Bernard Whitley and BW Capital Solutions,Inc. Responding Party Plaintiff System Solding (USA), Inc. Ruling: TheDemurrer by Defendants Whitley and BW Capital Solutions, Inc. toPlaintiff System Solding’s second amended complaint is Sustainedwith conditional leave to amend. Plaintiff has not pled its fraud causes ofaction with specificity and particularity as to all elements. Stansfield vStarkey (1990) 220 Cal App 3d 59, 73 and Tarmann v State Farm MutualAuto Ins. Co. (1991) 2 Cal App 4 th 153, 157. As to Plaintiff’s first cause ofaction for fraud, Plaintiff is granted conditional leave to amend, pursuant toCCP 472a©, if Plaintiff can allege facts as to some alleged intentionalmisrepresentation by Defendant Whitley or a representative of Defendant BWCapital Solutions, Inc., and/or facts as to some concealment, a duty todisclose, and facts as to how defendants Whitley and/or BW CapitalSolutions, Inc. were associated with any alleged concealment. MarketingWest, Inc. v Sanyo Fischer (USA) Corp. (1992) 6 Cal App 4 th 603, 612 to613. As to Plaintiff’s second cause of action for negligentmisrepresentation, Plaintiff is granted conditional leave to amend ifPlaintiff can allege facts as to some alleged negligent, affirmativemisrepresentation(s) by Defendant Whitley and/or BW CapitalSolutions, Inc., as well as facts as to causally related damagesassociated with any such alleged negligentmisrepresentations. Residential Capital, LLC v Cal-Western ReconveyanceCorp. (2-003) 108 Cal App 4 th 8907, 828. As to Plaintiff’s third cause ofaction for declaratory relief, Plaintiff is granted conditional leave toamend if Plaintiff can allege facts as to some written agreementbetween System Solding and Defendants Whitley and/or BW CapitalSolutions, Inc. and facts as to some actual controversy in regard toany such written agreement.

NOTICELAW AND MOTION PROCEDURES FOR DEPARTMENT C26THE HONORABLE GREGORY H. LEWISLAW & MOTION IS HEARD ON MONDAYS AT 10:30 A.M.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings by 12:00 p.m. Friday before the Monday date. The rulings will also be postedoutside the courtroom on the bulletin board for those counsels without internet access, no later than 8:30 a.m.on the day of the scheduled motion.The Law & Motion hearings are scheduled on Monday at 10:30 a.m. and all arguments will be heard at that time.No supplemental or additional papers will be allowed to be submitted following posting of the ruling on theinternet, nor will the Court entertain a request for continuance once the ruling has been posted.****** SUBMITTING ON THE COURT’S TENTATIVE RULING*****Notice to be given to the Court and opposing counsel no later than 3:00 p.m. the Friday before theMonday date.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. If youintend to submit on the tentative and do not want oral argument, please call the clerk by calling (657) 622-5226and the prevailing party will give Notice of Ruling or prepare an Order if appropriate per CRC 391.NOTICE TO COUNSEL: Upon filing of motion, moving party shall provide a copy of this procedural notice toopposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because of moving party’sfailure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailing party shall give noticeof the ruling. Prevailing party shall prepare and Order/Judgment for the Court’s signature if the motion isdispositive of the cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or courtroom assistant for clarification of rulings oradditional information. If you are moving party and do not have internet access, you may call the clerk orcourtroom assistant after 1:30 p.m. on the Friday before the scheduled hearing and the ruling will be read toyou.WHEN A CASE MANAGEMENT CONFERENCE IS ALSO SET THE DAY OF A LAW AND MOTION MATTER,UNLESS SPECIFICALLY ADDRESSED OTHERWISE IN THE TENTATIVE RULING, BOTH MATTERS WILL BEHEARD AT 10:30 A.M.TELECONFERENCE APPEARANCESAppearances for Law & Motion and all other hearings except Trial, MSC and VSC hearings are allowed throughCourt Call.LAW AND MOTION CALENDAR6-24-13#111-490622Motion: Augment Costs. Moving Party Defendant LV Development. RespondentParty Plaintiff Alicia Guzman, Jose Cervantes & Martha Cervantes.GUZMAN VS LVDEVELOPMENTRuling: The prevailing party is not required to file a motion for approval torecover expert witness fees. The court will treat this motion as Plaintiff’sMotion to Strike and/or Tax Costs. As such, the motion is Denied. Pursuant toCCP 998©(1), the court finds that Defendant’s expert witness fees were actuallyincurred, reasonably necessary and reasonable in the amount requested. Defendant

is entitled to recover the expert fees set forth on its Memorandum of Costs.4 12-585711LIM VS IMPERIALSPA FULLERTONMotion: Compel Site Inspection. Moving Party Plaintiff Chan Lim. RespondenParty Defendant Imperial Spa Fullerton, LLC.Ruling: Plaintiff Lim’s motion to compel site inspection, and relateddiscovery, is MOOT.The stipulation for discovery executed by plaintiff’s counsel and defendant ImperiaSpa’s prior counsel, and submitted to the court on 6-6-13, with an order thereon on6-13-13, is enforceable. CCP 283 and Linsk v Linsk (1969) 70 Cal 2d 272, 276277. If defendant now seeks to violate the terms of the court’s order of 6-13-13plaintiff Lim may seek to enforce the terms of the discovery stipulation as ordered on6-13-13.Moving party to give notice.5 12-586065GLUCKSTEINFOUNTAIN VALLEYPLAZA VSVUMotion: Summary Judgment/Summary Adjudication. Moving Party PlaintifGluckstein Fountain Valley Plaza, LP. Respondent Party Defendant Long D. Vu andDiep N. Vu. Opposition: None.RULING: Plaintiff Gluckstein Fountain Valley Plaza, LP’s motion for summaryjudgment/summary adjudication is GRANTED. C.C.P. § 437c(p)(1), and Hunterv. Pacific Mechanical Corp. (1995) 37 Cal.App.4 th 1282, 1287. Plaintiff GlucksteinFountain Valley Plaza, LP carried its initial burden of demonstrating breach of the leasebased on abandonment, failure to maintain continuous operations and failure to payrent, with damages of $111,820.28. [Plaintiff GFVP’s UMF Nos. 1, 2, 3, 4, 5, 6, 7, 8, 910, 11, 12 and 13.] Defendants Long Vu and Diep Vu have not filed any oppositionand/or presented evidence that any triable issue or issues of material fact exist. C.C.P§ 437c(p)(1), and Green v. Ralee Engineering Co. (1998) 19 Cal.4 th 66, 72. Plaintiffhas no burden of negating affirmative defenses when seeking summary judgment.See, Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4 th 454, 468. Also, plaintifGluckstein Fountain Valley Plaza, LP’s requests for admission were deemed admittedand the Vu defendants admitted that they have no evidence in support of any of theiraffirmative defenses. [Plaintiff GFVP’s UMF No. 13.] Thus plaintiff GlucksteinFountain Valley Plaza, LP’s motion for summary judgment/summaryadjudication is granted with judgment rendered in favor of plaintiffGluckstein Fountain Valley Plaza, LP’s against defendants Long D. Vu andDiep N. Vu in the sum of $111,820.28. Plaintiff Gluckstein Fountain ValleyPlaza, LP’s is ordered to give notice and submit a proposed judgment within14 days.7 12-610472THAI VS GRANATOIMotion: Strike Punitive Damages. Moving Party Defendant FrankGranato. Respondent Party Plaintiffs Hoang Hoa Thai and Sarah Phan Thai.Ruling: Defendant Granato’s motion to strike the Thai plaintiffs’ claims forpunitive damages is Denied.Bird, Marella, Boxer & Wolpert v Superior Court (2003) 106 Cal App 4 th 419, 431 andRule 4-200. Similarly, Cal Jur notes that: “As a fiduciary, an attorney must refrainfrom using undue influence and must be committed to the most scrupulous goodfaith.” 7 cal. Jr. 3d Attorneys at Law sec 176. At this pleading stage, the Thaplaintiffs have now alleged sufficient facts as to alleged overbilling, billing at improperrates, and alleged undue influence by defendant for plaintiffs to incur the costs of anappeal. (FAC, para 12.) Whether defendant Granato can pierce the pleading by wayof a dispositive motion under the applicable clear and convincing standard as topunitive damages is not before the court at this time.Moving Party to give notice.

9 13-625475J.M. VS CAPISTRANOUNIFIED SCHOOLDISTRICTMotion: Demurrer to First Amended Complaint. Moving Party DefendanStephanie Black dba Young Rembrandts. Responding Party Plaintiff J.M., a minor byand through his guardian ad litem, Juline Bennett.Ruling: Defendant Stephanie Black, dba Young Rembrandts’ demurrer toplaintiff J.M.’s first amended complaint is SUSTAINED.The court notes that plaintiff J.M. has not properly explained his deletion in his firstamended complaint of the alleged sexual assault occurring before he reported toYoung Rembrandts. In Mercury Casualty Co. v. Superior Court (1986) 179 Cal.App.3d1027, the Mercury Casualty court noted that: “Despite plaintiff's attempt to pleadmore generally in the first amended complaint, he cannot ignore allegations in theoriginal complaint which defeat his claim. (5 Witkin, Cal. Procedure (3d ed. 1985)Pleading, § 1117, p. 533, and cases cited therein.)” Mercury Casualty, at 1035, fn. 6.Hence the court considered this allegation from plaintiff’s original complaint in rulingon defendant’s demurrer to plaintiff J.M.’s first amended complaint. Next, simpleallegations of duty are conclusions of law. Daar v. Yellow Cab Co. (1967) 67 Cal.2d666, 672. While a school district and its employees have a duty to supervise thegeneral premises and restrooms at the school, pursuant to Education Code § 44087and established case law, no such duty as to a private entity operating an after schoolprogram on the school premises is cited. The duties to set policies and procedures,and to supervise the overall premises, including the boy’s restroom, reside with theschool district and its employees. Also, the operator of an after school program cannotleave other children unattended to go locate a child who has simply failed to timelyreport. Relatedly, a telephone call to a parent if such a child does not report does notestablish any causal connection to preventing the harm suffered. In Zumbrun v.University of California (1972) 25 Cal.App.3d 1, the court explained that as tonegligence a plaintiff must establish that there is a causal connection betweendefendant’s negligence and plaintiff’s injury. Id., at 12, citing Boomer v. Southern Cal.Edison Co. (1928) 91 Cal.App. 382, 385. Finally, what duty an after school programmight have to a child who has reported to the after school program and then goes touse the restroom on the school’s premises is not before the court on the factsasserted in plaintiff J.M.’s complaint. Unless plaintiff J.M. can articulate additional factsas to some duty that could be owned by defendant Stephanie Black, dba YoungRembrandts, the Demurrer by Defendant Stephanie Black, dba YoungRembrandts to plaintiff J.M.’s First Amended Complaint is sustained withoutleave to amend.12 13-639060STEELE VS ARGYMotion: Demurrer to Complaint. Moving Party Defendant Vincent Argy, CPAindividually, and dba Argy & Company, CPA. Respondent Party Plaintiff Carrie Steele.Ruling: Defendant’s Request for Judicial Notice is Granted. Defendant’sDemurrer is overruled. The parties agree that the issue to be decided is when thecauses of action for accountant malpractice accrued. The Court concludes thainternational Engine Parts, Inc. v Feddersen & Co. (1995) 9 Cal 4 th 606 controls onthat issue. Under the holding in that decision, while the Notice of deficiency may haveprovided notice of accountant negligence, the statute of limitation did not accrue untithere was also actual injury. In the case of accountant malpractice based on aclaimed tax deficiency, the Court held that a cause of action does not accrue until thetaxing authority issues an “assessment”, at which time the taxpayer’s tax obligation isfinal. Id. pp. 615-616. Applying Feddersen’s holding, no “assessment” is alleged andthe Court does not locate one in the numerous documents judicially noticed. Basedupon the pleadings and matters judicially noticeable, the Court concludes that thiscase was filed within the applicable statute of limitation. Defendant to answerwithin 10 days.

13 PLAZA POINTEOWNERSASSOCIATION VS MSSPROPERTIES SPECIALPURPOSE IIMotion: Quash for Lack of Service. Moving Party Defendant MSS PropertiesSpecial Purpose II, LLC. Respondent Party Plaintiff Plaza Pointe Owners Association.Ruling: Defendant MSS’s motion to quash service of summons is Denied anddefendant MSS is ordered to answer plaintiff Plaza Pointe’s complaint within 10days, At the TRO hearing, Jim Karras represented to this Court that: First of all, I’mnot an attorney; I’m the defendant. We’re not represented at thispoint.” (Opposition, Exhibit A, Transcript, 3: 13 to 14.) Mr. Karras further respondedto inquires with a “we” and “our,” which reasonably implied he was an agent odefendant MS authorized to accept service of process. Second, service on anostensible agent has been held sufficient. Pasadena Medi-Center Associates vSuperior Court (1973) 9 Cal 3d 773, 775. Mr. Karras’ representations before thiscourt would lead plaintiff Plaza Point to reasonably conclude he was an agent odefendant MSS, or at a minimum, an ostensible agent. The amended proof of servicedemonstrated service of the summons and complaint on Mr. Karras on behalf odefendant MSS at the court following the TRO hearing. Third, a general appearancewaives any defect as to service CCP 415.50(a). Defendant MSS filed a writtenopposition to plaintiff’s application for a preliminary injunction, and appeared tooppose this application on the merits, before its motion to quash service of summonswas filed on 5-17-13. Thus such opposition with an appearance by counsel on behalof defendant MSS constitutes a general appearance. Serrano v Stefan Merli PlasteringCo., Inc. (2008) 162 Cal App 4 th 1014, 1029.14 13-646391BESEN VSSUNCOAST NOVA15 12-569968BONAS VSPAVILIONSMotion: Order to Transfer Action, Consolidate and Stay. Moving PartyPlaintiff Bekir Bensen. Respondent Party Defendant Suncoast NovaLLC. Opposition: None.Ruling: The Motion to Transfer, Consolidate and Stay is Denied. The UnlawfuDetainer action has resulted in a Judgment, which is on appeal. There is no basis totransfer and consolidate. Moving Party should seek a Stay of the Judgment in theUnlawful Detainer case.Motion: Summary Judgment. Moving Party Defendant The Vons CompaniesInc. Respondent Party Plaintiff Kimberly Bonas.Ruling: The Motion for Summary Judgment is Denied.CCP 437c(p)(2), Defendant failed to meet its burden to show Plaintiff cannot establishone or more elements of the cause of action for Premises Liability/GeneraNegligence. “Whether a dangerous condition has existed long enough for areasonably prudent person to have discovered it is a question of fact for the jury, andthe cases do not impose exact time limitations. Each accident must be viewed in lighof its own unique circumstances.” Ortega v Kmart Corp. (2001) 26 Cal 4 th 12001207. Even though Defendant has substantial evidence supporting that there was areasonable inspection, l there is still a triable issue of material fact on thaissue. There is a disp8te whether defendant’s employee performed an adequateimnsp3ection. The surveillance video may have sown debris on the floor in the areaof the accident. Disputed Facts include No. 5, 15, 16, 17, 20 and 27. Plaintiff’sObjections to Evidence are Overruled.16 12-542091AMERICAN EXPRESSCENTURIONI BANK,UTAH STATECHARTEREDBANK VS STOOPMotion: Vacate Default and Default Judgment. Moving Party Defendant EricStoop. Respondent Party Plaintiff American Express Centurian bank.Ruling: The motion to vacate the default and default judgment againstdefendant under CCP 473(d) is Granted.The proposed answer attached to the moving papers is deemed filed andserved this date. A Case Management Conference is Set for 7-29-13, 8:30 a.m. C26. Case Management Statements are ordered to be filed with the court no later thanone week before the hearing.

NOTICELAW AND MOTION PROCEDURES FOR DEPARTMENT C26THE HONORABLE GREGORY H. LEWISLAW & MOTION IS HEARD ON MONDAYS AT 10:30 A.M.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings by 12:00 p.m. Friday before the Monday date. The rulings will also be postedoutside the courtroom on the bulletin board for those counsels without internet access, no later than 8:30 a.m.on the day of the scheduled motion.The Law & Motion hearings are scheduled on Monday at 10:30 a.m. and all arguments will be heard at that time.No supplemental or additional papers will be allowed to be submitted following posting of the ruling on theinternet, nor will the Court entertain a request for continuance once the ruling has been posted.****** SUBMITTING ON THE COURT’S TENTATIVE RULING*****Notice to be given to the Court and opposing counsel no later than 3:00 p.m. the Friday before theMonday date.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. If youintend to submit on the tentative and do not want oral argument, please call the clerk by calling (657) 622-5226and the prevailing party will give Notice of Ruling or prepare an Order if appropriate per CRC 391.NOTICE TO COUNSEL: Upon filing of motion, moving party shall provide a copy of this procedural notice toopposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because of moving party’sfailure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailing party shall give noticeof the ruling. Prevailing party shall prepare and Order/Judgment for the Court’s signature if the motion isdispositive of the cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or courtroom assistant for clarification of rulings oradditional information. If you are moving party and do not have internet access, you may call the clerk orcourtroom assistant after 1:30 p.m. on the Friday before the scheduled hearing and the ruling will be read toyou.WHEN A CASE MANAGEMENT CONFERENCE IS ALSO SET THE DAY OF A LAW AND MOTION MATTER,UNLESS SPECIFICALLY ADDRESSED OTHERWISE IN THE TENTATIVE RULING, BOTH MATTERS WILL BEHEARD AT 10:30 A.M.TELECONFERENCE APPEARANCESAppearances for Law & Motion and all other hearings except Trial, MSC and VSC hearings are allowed throughCourt Call.LAW AND MOTION CALENDAR7-01-13#2 11-522416CUMMINS & WHITEVS PARSIMotion: Further Responses to Special Rogs. Moving Party Cross DefendantsCummins & White, LLP and James R. Wakefield. Respondent Party Cross Plaintiff RezaRay Parsi.Ruling: Cross-defendants’ motion to compel further responses to their fifthset of special interrogatories by cross-complainant Parsi is Denied becausethese special interrogatories are not full and complete in themselves but requirecross-complainant Parsi to consult depositions or trial transcripts in order to

espond. CCP 2030.060(d) and Catanese v Superior Court (1996) 46 Cal App 4 t1159. The Coy case is distinguishable as the objections were relevancy, materialityand contending that interrogatory had already been answered at the party’sdeposition. In contrast, cross-complainant Parsi has raised 2030.060(d) and (f), thathese interrogatories are compound, as well as burdensome and oppressive, whichwere not at issue in Coy. Finally, cross-complainant Parsi’s request forsanctions is Granted in the sum of $1,080, pursuant to CCP 2031.310(d), payableby cross-defendants C&W and Wakefield and their counsel of record. The court notesthat cross-complainant cited the Catanese decision in detail in his meet and conferletter yet cross-defendants still proceeded with their motion to compel furtheresponses. Also, Rutter clearly sets forth that requiring a party to consult othesources to answer interrogatories is improper. Rutter, Civil Procedure Before TrialSection 8:979.5.Moving party to give notice.3 12-539911PLUMLEY VS KIM4 12-608958GUY VS SUNTRUSTMORTGAGE6 12-615994CISNEROS VS ALLENMotion: Summary Judgment/Summary Adjudication: Moving Party DefendanMolly Mackin. Respondent Party Plaintiff Charles Plumley.Ruling: The motion for summary judgment or adjudication is Denied. There isa question of fact whether Plaintiff was genuinely ignorant of Ms. Mackin’s name at thetime that the complaint was filed. Plaintiff testified that he had not looked at the backof the card containing Ms. Mackin’s name. (Deposition, p. 63). The fact that he calledthe insurer does not establish his knowledge of the back of the card becauseinsurance information was on the front of the card. (Plaintiff’s Ex A). Defendant hasstill not provided the Court with any authority that an attorney’s knowledge is imputedto a plaintiff for purposes of CCP 474. None of the agency or imputed knowledgecases cited concern CCP 474. On the contrary, the plaintiff’s actual knowledge will nodeprived him of his CCP 474 remedy. Sobeck & Associates Inc. v B&R InvestmentsNo. 24 (1989) 215 Cal App 3d 861, 867. No issues for summary adjudication arestated or discussed. Plaintiff’s objections Nos. 1, 2 and 4 are Sustained. ObjectionsNos. 3 and 5 are Overruled.Motion: Expunge Lis Pendens. Moving Party Defendant Bank ofAmerica. Respondent Party Plaintiff Tony Guy. Opposition: None.Ruling: The Motion to Expunge the Lis Pendens is Granted. Since thecomplaint and appeal were dismissed, there is no real property claim pending.Motion: 1) Compel Further Responses to Form Rogs, 2) Compel FurtherResponses to Request for Production of Documents. Moving Party DefendantEnterprise Rent-A-Car Company Los Angeles, LLC. Respondent Party Plaintiff IleanaCisneros. Opposition: None.Ruling: ) Defendant Enterprise’s motion to compel further responses to FormRog. Nos. 6.4, 6.6, 6.7, 7.1, 7.2, 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 9.1, 10.1,10.2, 11.1 and 20.2 by plaintiff Ileana Cisneros is GRANTED. As to Form Rog.No. 10.2, plaintiff’s response can be limited to the physical and emotional conditionsthat she has placed at issue in this action against defendant Enterprise. Plaintiff IleanaCisneros is to provide such supplemental responses within 14 days of service of anotice of ruling by defendant Enterprise. Finally, defendant Enterprise’s requestfor sanctions in the sum of $1,960.00 is DENIED because defendant Enterprisefailed to identify the person, entity and/or attorney against whom sanctions weresought as required by C.C.P. § 2023.040.Moving party to give notice.2) Defendant Enterprise’s motion to compel further RFPD responses byplaintiff Ileana Cisneros is granted in part granted in part with limitations,and denied in part. GRANTED as to RFPD Nos. 1, 3, 4, 5, 6, 9, 10, 11, 13, 16and 17. As to RFPD No. 2, defendant’s motion is GRANTED but limited to suchmedical records and medical bills relating to prognosis for conditions plaintiff

7 13-629262DE SANDIES VSSAXON MORTGAGESSERVICES8 13-630222GREENBERG VSBROADCOMCORPORATIONattributes to the accident involving defendant Enterprise. As to RFPD No. 14,defendant’s motion is GRANTED but limited to medical conditions that plaintiffhas placed at issue in this case and for which she received medical treatment within 2years before the vehicular accident that forms the basis of her current lawsuit. PlaintifIleana Cisneros is ordered to provide supplemental RFPD responses within 14 days ofservice of a notice of ruling by defendant Enterprise. DENIED as to RFPD No. 7, as thisrequest for scene photographs is overly broad and “good cause” is not shown asdefendant Enterprise can take or obtain photographs of the scene.Moving party to give notice.Motion: Dismiss Action for Failure to Amend. Moving Party Defendants 1) SaxonMortgages Services; 2) Ocwen Loan Servicing. Respondent Party Plaintiff S. Patois DeSandies. Opposition: None.Ruling: The Joinder of Defendant Ocwen Loan Servicinget al is Granted. Pursuant to CCP 581 (f)(2), the action is dismissed as to allDefendants.Motion: Demurrer. Moving Party Defendant Broadcom Corporation. RespondentParty Plaintiff Daniel Greenberg.Ruling: The demurrer to the 5th and 8th causes of action is SUSTAINEDwithout leave to amend. Defendant is to answer within 20 days. Plaintiff isto give notice.Under Janken v. GM Hughes Elec. (1996) 46 Cal.App.4th 55, 63-65, harassment isconduct outside the scope of necessary supervisory functions. The court expresslyincluded job assignments, performance evaluations and layoffs. Id. at 64-65.Increased workload and shortened deadlines, giving time off for vacations andholidays, criticizing work, investigating claims of retaliation, and termination ofemployment are all supervisory acts. Plaintiff admits that the emails he complains ofregarded his work and work deadlines, so they too are supervisory, as is investigatingclaims of harassment and termination of employment.The style of performing these tasks does not make them actionableharassment. Plaintiff does not allege that there were any slurs related to his medicalcondition or religion. That emails were “hostile in tone” or “harshly worded” does nottake them outside normal employment activities, particularly as Plaintiff is unable tostate what they said that made them “hostile” or “harsh,” despite Court instructions toprovide more specificity.For the same reasons, the complained-of acts are a normal part of the employmentrelationship and will not support a claim for intentional infliction of emotionaldistress. Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1492,quoting Cole v. Fair Oaks Fire District Protection (1987) 43 Cal.3d 148.Plaintiff was ordered to amend to provide more specificity, but all he did was slightlyparticularize the facts surrounding his termination. Otherwise, his allegations arewholly unchanged. He does not indicate how he can change the complaint to avoidthis ruling and therefore leave to amend can be denied. Goodman v. Kennedy(1976) 18 Cal.3d 335, 349.10 13-636798TRUONG VS EASTWEST BANKMotion: Demurrer to Complaint. Moving Party Defendant East Westbank. Respondent Party Plaintiffs Peter Truong and LannieTruong. Opposition: None.Ruling: Defendant East West Bank’s demurrer to the Truong plaintiffs’verified complaint is SUSTAINED. As to plaintiffs’ first cause of action forcancellation of written instruments, the Truong plaintiffs have not alleged facts as toany fraud in the inducement in regard to the initial promissory note, and plaintiffs

have not alleged facts as to an ability to tender all benefits received to supportcancellation. Civil Code § 3412 and Fleming v. Kagan (1961) 189 Cal.App.2d 791,796. Plaintiff is granted leave to amend their first cause of action. As to plaintiffs’second cause of action for violation of Bus. & Prof. Code § 17200, the Truong plaintiffshave not alleged sufficient facts as to any unlawful, unfair or fraudulentconduct. Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4 th 612, 619. Thecourt ignores conclusions of fact and law on demurrer., Daar v. Yellow Cab Co. (1967)67 Cal.2d 666, 672. The allegation that Angela Lee was not a vice-president of theFDIC based on attachment D, a Linked-In printout limited to the San Francisco BayArea is simply insufficient. As to plaintiffs’ third cause of action for declaratory relief,this cause of action is simply duplicative of the claims set forth in the Truong plaintiffsmain action in regard to past events. California Ins. Guarantee Ass’n v. SuperiorCourt (1991) 231 Cal.App.3d 1617, 1623 to 1624. The Truong plaintiffs are grantedconditional leave to amend, pursuant to C.C.P. § 472a(c), if plaintiffs can allege factsas to an actual controversy over future rights that are not encompassed in the Truongplaintiffs’ main action and claims. As to plaintiffs’ fourth cause of action for wrongfulforeclosure and fifth cause of action to quiet title, the Truong plaintiffs have notalleged an ability to tender or sufficient facts as to one of the exceptions set forth inLona v. Citibank, N.A. (2011) 202 Cal.App.4 th 89. The Truong plaintiffs are grantedconditional leave to amend as to these two causes of action, pursuant to C.C.P. §472a(c), if plaintiffs can allege a tender of the debt due under the deed of trust orfurther facts to state an exception to the general rule requiring tender under one ofthe exceptions discussed in Lona v. Citibank, N.A. (2011) 202 Cal.App.4 th 89.Defendant East West Bank’s Request for Judicial Notice: Defendant East WestBank requested that the court take judicial notice of the following documents: ExhibitA, Limited Power of Attorney recorded 10-3-11, Exhibit B, Petition for Relief UnderChapter 11 by Plaintiff Lannie Truong, Exhibit C, Order Granting Relief from Stayentered on 3-18-12, Exhibit D, Bankruptcy Court Docket in First Bankruptcy Case,Exhibit E, Trustee’s Deed Upon Sale recorded 4-1-13, Exhibit F, Notice of Lis Pendensrecorded 3-19-13, Exhibit G, Petition for Relief Under Chapter 11 by Plaintiff PeterTruong, Exhibit H, Petition for Relief Under Chapter 11 of the Bankruptcy Code filed byPlaintiff Peter Truong on 2-11-13. GRANTED as to Exhibits A, B, C, D, E, F, G and H,but such notice as to Exhibits A, B, D, E, F, G and H I limited to the filing of thesedocuments with the county recorder’s office and legal effect but not as to the truth ofthe matters set forth therein. Evidence Code § 452(d) or (h) and Fontenot v. WellsFargo Bank, N.A. (2011) 198 Cal.App.4 th 256, 265.Defendant East West Bank’s motion to expunge lis pendens is GRANTED. Thecourt is required to expunge a lis pendens if the court finds that the claimant has notestablished by a preponderance of the evidence the probable validity of a realproperty claim. See, C.C.P. § 405.32, and Kirkeby v. Superior Court (2004) 33 Cal.4 th642, 651. The Truong plaintiffs have not met their burden as they filed no oppositionpresenting admissible evidence establishing the probable validity of any real propertyclaim. C.C.P. § 405.30. Finally, defendant East West Bank is awarded reasonableattorney’s fees and cost in the sum of $2,218.00, pursuant to C.C.P. § 405.38,payable by plaintiffs.Moving party to give notice.13 12-545149ANGELES VS JPMORGAN CHASEBANKMotion; Demurrer to Second Amended Complaint. Moving Party Defendant JPMorgan Chase Bank. Respondent Party Plaintiff Ofelia Angeles.Ruling: The Demurrer to the Second Amended Complaint is SUSTAINEDwithout leave to amend as to the First, Second, Third, Fourth, Fifth, Sixth andEighth Causes of Action. The Demurrer is OVERRULED as to the SeventhCause of Action for Accounting.The First Cause of Action for Declaratory Relief fails to state a cause of action,because there is no actual controversy pending between the parties. Ratcliff Architects

v. Vanir Construction Management (2001) 88 Cal. App.4 th 595, 601. The statutebroadly allows a trustee, mortgagee, beneficiary, or any of their agents to initiatenon-judicial foreclosure.” Debrunner v. Deutsche Bank Nat. Trust Co. (2012) 204Cal.App.4th 433, 441.The Second Cause of Action for Negligence fails to state a cause of action,because a financial lender in its traditional role does not owe a duty of care to theborrower. Oaks Management Corp. v. Superior Court (2006) 145 Cal. App. 4 th 453,466.The Third Cause of Action for Quasi-Contract fails to state a cause of action,because Defendants have not been unjustly enriched. “[A] quasi-contract action forunjust enrichment does not lie where, as here, express binding agreements exist anddefine the parties' rights.” California Medical Ass'n, Inc. v. Aetna U.S. Healthcare ofCalifornia, Inc. (2001) 94 Cal.App.4th 151, 172.The Fourth Cause of Action for Violation of 12 U.S.C. 2605 fails to state a causeof action, because the purported Qualified Written Report was not attached to theComplaint. Plaintiff failed to describe the QWR in sufficient detail to determine if itcomplied with requirements.The Fifth Cause of Action for Violation of 15 U.S.C. 1692 fails to state a cause ofaction, because Defendants are not “debt collectors” as defined by the statute.The Sixth Cause of Action for Fraudulent Business Practices fails to state acause of action, because Plaintiff has not identified an unlawful, unfair or fraudulentbusiness practice.In the Seventh Cause of Action for Accounting, Plaintiff alleged that there was afiduciary relationship and that she was owed a balance of $75,000.00. Therefore, theDemurrer is overruled as to the Seventh Cause of Action only. “A cause of action foran accounting requires a showing that a relationship exists between the plaintiff anddefendant that requires an accounting, and that some balance is due the plaintiff thatcan only be ascertained by an accounting.” Teselle v. McLoughlin (2009) 173Cal.App.4th 156, 179.The Eighth Cause of Action for Quiet Title fails to state a cause of action, becausePlaintiff failed to tender the indebtedness. Gaffney v. Downey Savings & Loan (1988)200 Cal. App. 4 th 1154, 1165. “The cloud upon his title persists until the debt is paid.. . . He is entitled to remain in possession, but cannot clear his title without satisfyinghis debt.” Aguilar v. Bocci (1974) 39 Cal.App.3d 475, 477 -478.14 12-583639SIEGEL VS PATELMotion: Demurrer to Second Amended Complaint. Moving Party DefendantsRajendra Patel, Kativa Patel & Yogiraj Milan, Inc. Respondent Party Plaintiff RonaldSiegel.Ruling: The demurrer of Defendants is Sustained without leave to amend asto the First and Seventh Causes of Action. Neither Defendants, Kativa Patel &Yogiraj Milan executed the sublease or the settlement agreement. As alleged agentstheir principal was disclosed. “’Where the signature as agent and not as a principaappears on the face of the contract, the principal is liable and not the agent.’” Filippoindus., Inc. v Sun ins. Co. of New York (1999) 74 Cal App 4 th 1429. In this case, thealleged agents did not even sign the documents. As alleged agents, Plaintiff hasalleged sufficient facts against defendants, Kativa Patel & Yogiraj Milan on theremaining causes of action. The demurrer to the Second, Fourth, Fifth and Eighthcauses of action as to Defendant Rajendra Patel is Overruled. Plaintiff has alleged asufficient factual basis for misrepresentation. Within fifteen (15) days, defendantsshall file an Answer to the Complaint.

16 13-631442MIN VS KANGMotion: Demurrer to First Amended Complaint. Moving Party Defendant Duk HeKang. Respondent Party Plaintiff Byung Young Min.Ruling: Defendants’ Demurrer is Overruled as to each cause of action, exceptas to the 9 th cause of action for wrongful termination, which is Sustained with15 days leave to amend. Defendants repeat the same argument as to each cause oaction—that there can be no finding of wrongdoing because they are married, plaintiffknew they were married and thus, could have acted in concert anyway to terminateplaintiff. How they could have acquired over half of this stock for $1, absent thedeceptive loan/stock collateral transaction remains unexplained.

NOTICELAW AND MOTION PROCEDURES FOR DEPARTMENT C26THE HONORABLE GREGORY H. LEWISLAW & MOTION IS HEARD ON MONDAYS AT 10:30 A.M.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings by 12:00 p.m. Friday before the Monday date. The rulings will also be postedoutside the courtroom on the bulletin board for those counsels without internet access, no later than 8:30 a.m.on the day of the scheduled motion.The Law & Motion hearings are scheduled on Monday at 10:30 a.m. and all arguments will be heard at that time.No supplemental or additional papers will be allowed to be submitted following posting of the ruling on theinternet, nor will the Court entertain a request for continuance once the ruling has been posted.****** SUBMITTING ON THE COURT’S TENTATIVE RULING*****Notice to be given to the Court and opposing counsel no later than 3:00 p.m. the Friday before theMonday date.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. If youintend to submit on the tentative and do not want oral argument, please call the clerk by calling (657) 622-5226and the prevailing party will give Notice of Ruling or prepare an Order if appropriate per CRC 391.NOTICE TO COUNSEL: Upon filing of motion, moving party shall provide a copy of this procedural notice toopposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because of moving party’sfailure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailing party shall give noticeof the ruling. Prevailing party shall prepare and Order/Judgment for the Court’s signature if the motion isdispositive of the cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or courtroom assistant for clarification of rulings oradditional information. If you are moving party and do not have internet access, you may call the clerk orcourtroom assistant after 1:30 p.m. on the Friday before the scheduled hearing and the ruling will be read toyou.WHEN A CASE MANAGEMENT CONFERENCE IS ALSO SET THE DAY OF A LAW AND MOTION MATTER,UNLESS SPECIFICALLY ADDRESSED OTHERWISE IN THE TENTATIVE RULING, BOTH MATTERS WILL BEHEARD AT 10:30 A.M.TELECONFERENCE APPEARANCESAppearances for Law & Motion and all other hearings except Trial, MSC and VSC hearings are allowed throughCourt Call.LAW AND MOTION CALENDAR7-08-13#1 10-437051MONTPELLIER VSWELLS FARGO BANKMotion: Demurrer. Moving Party Defendant Times investment LLC. Respondent PaPlaintiff Richard Montpellier. Opposition: None.Ruling: The Demurrer of Times Investment, LLC will be Sustained. Its requesfor judicial notice will be Granted. Plaintiff will have fifteen (15) days leave toamend. All of the claims in the present pleading are against Wells Fargo Bank and arebased on its alleged wrongdoing in connection with a modification request. Wells Farghas been dismissed with prejudice, creating a collateral estoppel as to the claims base

on the facts alleged against it. Alpha Mechanical, Heating & Air Conditioning Inc. vTravelers Casualty & Surety Co. of America (2005) 133 Cal App 4 th 1319, 1328. Nodefect in the foreclosure sale proceeding is alleged that would invalidate the sale as tobona fide purchaser. Nor are there any facts at all alleging wrongdoing by Mr. Ngo orthe moving party or suggesting that it was not a bona fide purchaser. There is nothingat all in the present pleading that even suggests an ability to state a cause of actionagainst the moving party. Therefore, the burden is on Plaintiff to show “in what mannhe can amend his complaint and how that amendment will change the legal effect of hpleading.” Goodman v Kennedy (1976) 18 Cal 3d 335, 349.2 12-574060NEHRING VSCORINTHIANCOLLEGESMotion: Summary Judgment/Summary Adjudication. Moving Party DefendantsCorinthian Colleges, Inc. and Titan Schools, Inc. Responding Party Plaintiff EmilyNehring. Ruling: : The Corinthian Defendants’ Motion for Summary JudgmentSummary Adjudication is DENIED. [Plaintiff Nehring’s Response to Defendants’ UMNos. 3, 10, 11, 18, 23, 24, 28, 35, 36, 39, 40, 41, 42, 45, 52, 53, 54, 57, 59, 62, 68,69, 70 and 73.] Plaintiff Nehring carried her burden of establishing that she was amember of various protected classes, namely a person taking family leave and hermother having a medical disability, that she was performing her job competently, thatshe was terminated, and that there is sufficient evidence of some discriminatory motivgiven the close proximity of her termination when she just returned from her secondfamily leave and that the Corinthian Defendants discharged more individuals who wereon medical/family leave and still retained 8 employees in the West Region afterdischarging plaintiff and another employee who took leave and worked in this region.Guz v. Bechtel National, Inc. (2000) 24 Cal.4 th 317 and Nanty v. Barrows Co. (9 th Cir.1981) 660 F.2d 1327. Next, even assuming the Corinthian Defendants carried theirburden of establishing a legitimate, non-discriminatory business reason forplaintiff Nehring’s termination, plaintiff Nehring has submitted sufficient evidence tocreate triable issues of material fact as to pre-text. First, plaintiff Nehring presentedevidence that it was she and another employee who utilized family/medical leave whowere terminated by Ms. Varon as part of the claimed reduction in force, but the WestRegion retained 8 employees as before even after plaintiff Nehring and this otheremployee were terminated. (Plaintiff’s Evidence, Exhibit H, Deposition of ChristinaVaron, 57: 22 to 25, 58: 1 to 12, and 24: 11 to 22, and Exhibit B, RIF Chart.) Second,plaintiff Nehring presented expert statistical evidence that her termination was selectivThird, plaintiff Nehring presented evidence that she had more seniority in the WestRegion than several members of that team and was willing to transfer to anotherterritory in order to keep her job. (Nehring Declaration, 15.) Fourth, plaintiff Nehrinpresented evidence that her job performance for the Corinthian Defendants was morethan satisfactory. (Nehring Declaration, 6, 7, 8 and 10.) These triable issues ofmaterial fact on plaintiff Nehring causes of action for violation of the CFRA andassociational discrimination support her third cause of action for failure to preventdiscrimination and her fourth cause of action for wrongful termination in violation ofpublic policy. Gov’t Code § 12940(k) and Nelson v. United Technologies (1999) 74Cal.App.4 th 597. In addition, plaintiff Nehring presented evidence to support a claimbased on disparate impact, and the Corinthian Defendants have not negated such aclaim. Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4 th 640. Movingparties to give notice.Plaintiff Nehring’s Evidentiary Objections: Defendant’s Separate Statement ofFacts: OVERRULED as to Objection Nos. 1, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12.SUSTAINED as to Objection Nos. 2, 13 and 14. Declaration of Christina Varon:OVERRULED as to Objection No. 16. SUSTAINED as to Objection No. 15.4 12-609681SHAHABPOUR VSKILVA ENTERPRISESMotion: Strike First Amended Complaint. Moving Party Defendant KilvaEnterprises, Inc. dba Amber Property Management. Respondent Party PlaintiffsMohammed S. Shahabpour and Mojdeh Shahabpour.Ruling: Defendant KEC’s Motion to Strike Plaintiff’s First Amended ComplaintGranted because Plaintiffs’ First Amended Complaint was filed beyond the time thecourt granted leave to amend on 3-4-13. CCP 435 and 436, and Leader v Health

Industries of America, Inc. (2001) 89 Cal App 4 th 603, 612-613. The ShahabpourPlaintiffs are granted 21 days leave to amend to e-file and serve a Second AmendedComplaint.5 13-624006HASAN VS KIMCase Management Conference is continued to 9-9-13.Motion: Compel Further Responses to 1) Demand for Production of Documen2) Special interrogatories, 3) Form Interrogatories, and 4) FoInterrogatories. Moving Party Defendants Honnie & Sung Kim. Respondent PaPlaintiffs (5 of them) Iftijar Salamah (42 female driver), Sabha Salmah (73 yearfemale), Zeena Hasan (20 year old female), Ahmad Hasan (11 year old male), HamHasan (12 year old male). Opposition: None.6 13-630678GROVER VS BANK OFAMERICARuling: The Motion to Compel Further Responses to the Demand for Producti(Set One) is Granted. Within twenty (20) days, each Plaintiff shall respond withoobjection to Nos. 4, 5, 7, 8, 9, 10, 11 & 13. The Motion to Compel FurthResponses to the Special interrogatories (Set One) is Granted as to Nos. 2, 34. The Motion is Denied as to Nos. 7, 8, 9 & 10, because this would be an invasof privacy. Within twenty (20) days, each Plaintiff shall respond without objectionNos. 2, 3 & 4. The Motion to Compel Further Responses to the FoInterrogatories (Set One) to Plaintiffs Iftijar Salamah and Sabha SalmahGranted. Within twenty (20) days, Plaintiffs Iftijar Salamah and SabASalmah shall respond without objection to Nos. 2.13, 4.1, 6.3, 6.4 to 7.3, 89.1 to 1.2 & 20.8 is Granted. Within twenty (20) days, Plaintiffs Zeena Hasan, AhmHasan & Hamza Hasan shall respond without objection to Nos. 2,13, 4.1, 6.3. 6.4 to 78.1, 9.1 to 1.2 & 20.8. [The Notice of Motion did not include Nos. 2.5, 2.6, 2.8, 22.10 & 2.11, which were listed in the Separate Statement.] Within twenty (20) daPlaintiffs Iftijar Salamah, Sabha Salmah, Zeens Hasan, Ahmad Hasan & Hamza Hasand their attorney, Martin E. Jerisat, shall pay sanction in the sum of $1,144.00 (tofor all motions).Motion: Demurrer to First Amended Complaint. Moving Party Defendant BankAmerica, N.A. Responding Party Plaintiff Patrick J. Grover. Ruling: Defendant Baof America’s Demurrer to Plaintiff Patrick Grover’s First Amended ComplaintSustained, on the ground of failure to join a necessary party. CCP 389(a) and BankCalifornia National Ass’n. v Superior Court (1940) 16 Cal 2d 516, 521-522. The deedtrust evidences that Josephina Mora Grover was a party to the purchase of the subjLadera Ranch property. (Defendant Bank of America’s RJN, Exhibit A, Deed of Trust, aFirst Amended Complaint para 7, Exhibit 1 deed of Trust.) Plaintiff Patrick Grovergranted leave to amend to either add Josephina Mora Grover as a party Plaintiff, explwhy Josephina Mora Grover no longer has an interest in the subject Ladera Ranproperty despite her being on the deed of trust, or to name Josephina Mora Grover anominal defendant in this action if she still has an interest in the subject Ladera RanProperty but elects not to consent to be a party plaintiff in this litigation. CCP 389and 382. Plaintiff Patrick Grover is granted twenty-one (21) days leaveamend. Moving Party to give notice.7 13-634504KOSHAK VS 10675 S.ORANGE PARKBOULEVARDMotion: Demurrer to Complaint and Motion to Strike. Moving Parties 1) 10675Orange Park Boulevard, LLC; 2) & 3) PLM Lender Services, Inc. Responding PaPlaintiff Norman Koshak. Ruling: Pursuant to California Rules of Court Ru3.300, the court finds that this case is related to Koshak v 10675 S Orange PaBoulevard, LLC, 30-2012-00590786. This case was assigned to Judge GregoMunoz in C13. All pending hearings will be reset set in that Department.8 13-635908LOPEZ VS MARISCOSY TAQUERIAMotion: Demurrer to Complaint. Moving Party Defendants Mariscos Y TaqueriaJuquilita, Inc., Steve James Ramirez and Antonio Ramirez. Respondent Party PlaintiffsInes Bello Lopez and Ana C. Palacios.

JUQUILITA10 12-577646JORDAN VSNATIONSTARMORTGAGE11 13-643821STEPP VS BANK OFAMERICARuling: The Demurrer to the Complaint is Sustained with fifteen (15) days leato amend. The allegations concerning the contract are uncertain. “in an action baseda written contract, a Plaintiff may plead the legal effect of the contract rather than itsprecise language.” Construction Protective Services, Inc. v TIG Specialty Ins. Co. (20029 Cal 4 th 189, 199. Even so, the scope and terms of the contract are unclear. Plaintifailed to allege fraud with sufficient specificity. “in California, fraud must be pledspecifically; general and conclusory allegations do not suffice…The Plaintiff must ‘allegthe names of the persons who made the allegedly fraudulent representations, theirauthority to speak, to whom they spoke, what they said or wrote, and when it was saiwritten.’” Lazar v Superior Court (1996) 12 Cal 4 th 631, 645. Plaintiffs have sued theindividual defendants on each of the causes of action. Since the contract was with thecorporation, Plaintiffs have not alleged actionable conduct for the First Cause of ActionRelief based on Rescission and the Third Cause of Action for Money Hand and ReceivedMotion: Demurrer to Second Amended Complaint. Moving Party DefendNationstar Mortgage, LLC. Respondent Party Plaintiff Nicholas P. JordOpposition: None.Ruling: Defendant Nationstar’s Demurrer to Plaintiff Jordan’s Second AmendeComplaint is SUSTAINED without leave to amend. As to Plaintiff’s first cause ofaction for wrongful foreclosure, California law does not support a cause of action todetermine if a party is authorized to conduct a non-judicial foreclosure and/or toestablish chain of ownership. Gomes v. Countrywide Home Loans, Inc. (2011) 192Cal.App.4 th 1149, 1155 and Roque v. Suntrust Mortgage Inc. 2010 WL 546986 (N.D. C2010). Also, even assuming some irregularities in the foreclosure process, no substantprejudice has been alleged by plaintiff Jordan. Knapp v. Doherty (2004) 123 Cal.App.76, 93. In addition, no foreclosure sale has occurred, so any cause of action for wrongforeclosure is premature. Rosenfeld v. J.P. Morgan Chase Bank, N.A. (N.D. Cal. 2010)732 F.Supp.2d 952. As to Plaintiff’s second cause of action for declaratory relief,declaratory relief does not lie to determine the authority of a party to initiate a nonjudicialforeclosure. Gomes, at 1155. Also, Plaintiff’s cause of action for declaratoryrelief is duplicative of his first cause of action for wrongful foreclosure. Pacific Elec. Ry.Co. v. Dewey (1949) 95 Cal.App.2d 69, 71. Finally, if a party cannot amend to state avalid cause of action, or the party opposing the demurrer cannot state how a valid cauof action can be pled, which the opposing party has the burden of proof on, then thedemurrer should be sustained without leave to amend. Hendy v. Losse (1991) 54 Cal.723, 742. Plaintiff Jordan has not filed any opposition or explained how he can amendstate a proper cause of action for wrongful foreclosure and/or declaratory relief despitebeing given three opportunities to do so, so defendant Nationstar’s demurrer to PlaintiJordan’s Second Amended Complaint is sustained without leave to amend.Defendant Nationstar’s Request for Judicial Notice: Defendant Nationstarrequested that the Court take Judicial Notice of the following documents: Exhibit A, Deof Trust recorded 4-23-04, Exhibit B, Substitution of Trustee recorded 9-19-11, ExhibiC, Notice of Default recorded 9-19-11, Exhibit D, Notice of Sale recorded 12-21-11,Exhibit E, Bankruptcy Court Docket in Case No. 8:11-bk-14612-ES filed on 3-31-11,Exhibit F, Bankruptcy Schedules in Case No. 8:11-bk-14612-ES filed on 3-31-11, andExhibit G, Amended Statement of Financial Affairs for Case No. 8:11-bk-14612-ES fileon 5-26-11. GRANTED as to Exhibits A, B, C, D, E, F and G, but such notice as toExhibits A, B, C and D is limited to the filing of these documents with the countyrecorder’s office and legal effect but not as to the truth of the matters set forththerein. Evidence Code § 452(h) and Fontenot v. Wells Fargo Bank, N.A. (2011) 198Cal.App.4 th 256, 265. Also, as to Exhibits E, F and G, such notice is limited to thebankruptcy docket being a trust and correct docket and the filing of these pleadings bunot as to the truth of any claims or contentions set forth therein. Evidence Code §452(d) and Day v. Sharp (1975) 50 Cal.App.3d 904, 914.Motion: Demurrer. Moving Party Defendants Bank of America, N.A., ReconTrustCompany, NA. Responding Party Plaintiffs David & MicheleStepp. Ruling: Defendants’ demurrer to Plaintiffs’ Complaint is SUSTAINED inits entirety. The Court stays this action and all foreclosure proceedings for threemonths to permit the parties to engage in modification negotiations under CC§2923.6. The Court sets a status conference for October 7, 2013 at 8:30, at which ti

the Court will consider whether the parties need more time to negotiate and, if they donot, whether Plaintiff should be given leave to file an amended and supplementalcomplaint. However, the Demurrer to the 3d cause of action for negligence isSUSTAINED without leave to amend.There has been no violation of CC §2923.6. Under sub§(g), a mortgage servicer’s dutto reevaluate is not triggered until the borrower provides documentation of a change icircumstances. Counsel’s 4/15/13 letter included no documentation (e.g., paycheckstubs or an employment agreement showing that Mr. Stepp has obtainedemployment).However, the Court interprets sub§(h) as requiring the servicer, once suchdocumentation is provided, to advise the borrower of what documentation it is“required” for a complete application and to set a reasonable time frame in which toprovide it.As to Plaintiffs’ other claim, of improper default fees, Plaintiffs have not paid any suchfees and have not alleged that, but for the improper fees, they would have been able tcure the default. The facts alleged (that Mr. Stepp was unemployed and the Plaintiffs’savings had been exhausted) show that they are unable to allege this.Without actionable wrongdoing, Plaintiffs’ other claims fail. However, the Court notesthat a tender is not required to state a violation of CC §2923.6 for the same reasons thit was not required to state a violation of former CC §2923.5. See Mabry v. SuperiorCourt (2010) 185 Cal.App.4th 208, 225-225, legislative comment (b) regarding the Hand legislative comment (d) regarding its predecessor.A Demurrer is an improper procedure to use to attack the pleading regarding theNational Mortgage Settlement; even if Defendants are correct, their standing contentiowill not wholly defeat any cause of action. The proper remedy is a motion to strike.The negligence cause of action fails because Bank of America did not owe a duty toPlaintiffs. It did not exceed its conventional role as lender. Nymark v. Heart Fed.Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1095. This role includes loanmodification negotiations. Armstrong v. Chevy Chase Bank FSB (ND Cal. Oct. 3,2012) 2012 WL 4747165 * 4. The reasoning of Armstrong is persuasive; there was noreasoning stated for the holding of the trial court in Ansanelli v. JP Morgan ChaseBank NA (ND Cal. March 28, 2011) 2011 WL 1134451, *7. Jolley v. Chase HomeFinance, LLC (2013) 213 Cal.App.4th 872, 901, which distinguished residential homeloans from construction loans that impose a duty.In addition, the Court notes that CC 2923.6 and its predecessor evidence a Legislativeintent that loan modification be considered part of the relationship created by residenthome loans.Defendant is to give notice.12 13-623184MAHAFFA VS STATEOF CALIFORNIA,LABORCOMMISSIONERMotion: Demurrer to First Amended Complaint. Moving Party Defendant StateCalifornia. Respondent Party Plaintiff Judith Mahaffa.Ruling: Plaintiff’s Request for Judicial Notice is Granted. The Demurrer to tFirst Cause of Action for Negligence is Sustained without leave to amend. Tclaim does not allege any misconduct on the part of Defendant Gomez that would leadliability. After the Judgment had lapsed, he allegedly stated that the Judgment was svalid. This statement caused no damage to Plaintiff, because it already occurred. UndGov. Code 950.2, both the State and Gomez cannot be liable for this conduct. TDemurrer to the Second Cause of Action for Respondent Superior and the Thcause of Action for Breach of Mandatory Duty is Sustained with fifteen (1leave to amend. In order to state sufficient facts for these causes of action, Plainmust allege that she sustained actual damages as result of the Labor Commissionfailing to renew the ten year old Judgment. Similar to a legal malpractice actiPlaintiff must allege that “’careful management of the case-within-a-case would haresulted in a favorable judgment ‘and collection of same…’” Garretson v Harold I. Mi

(2002) 99 Cal App 4 th 563, 569. The Complaint must allege that the Judgment wcollectible. Regarding the Second cause of Action, Gov. Code 821.6 does not provimmunity. The potential liability arises out of the failure to take action to renew tjudgment, not “instituting or prosecuting any judicial nor administratiProceeding.” Regard the Third Cause of Action, the court agrees that the LabCommission has discretion on how to collect the Judgment. However, the actrenewing a Judgment is similar to complying with the statute of limitations. The LabCommissioner had one choice available on that matter. Therefore, it was a mandatduty.

NOTICELAW AND MOTION PROCEDURES FOR DEPARTMENT C26THE HONORABLE GREGORY H. LEWISLAW & MOTION IS HEARD ON MONDAYS AT 10:30 A.M.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings by 12:00 p.m. Friday before the Monday date. The rulings will also beposted outside the courtroom on the bulletin board for those counsels without internet access, no laterthan 8:30 a.m. on the day of the scheduled motion.The Law & Motion hearings are scheduled on Monday at 10:30 a.m. and all arguments will be heard atthat time. No supplemental or additional papers will be allowed to be submitted following posting of theruling on the internet, nor will the Court entertain a request for continuance once the ruling has beenposted.****** SUBMITTING ON THE COURT’S TENTATIVE RULING*****Notice to be given to the Court and opposing counsel no later than 3:00 p.m. the Friday beforethe Monday date.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. Ifyou intend to submit on the tentative and do not want oral argument, please call the clerk by calling (657)622-5226 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate per CRC391.NOTICE TO COUNSEL: Upon filing of motion, moving party shall provide a copy of this procedural noticeto opposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because ofmoving party’s failure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailingparty shall give notice of the ruling. Prevailing party shall prepare and Order/Judgment for the Court’ssignature if the motion is dispositive of the cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or courtroom assistant for clarification ofrulings or additional information. If you are moving party and do not have internet access, you may callthe clerk or courtroom assistant after 1:30 p.m. on the Friday before the scheduled hearing and the rulingwill be read to you.WHEN A CASE MANAGEMENT CONFERENCE IS ALSO SET THE DAY OF A LAW AND MOTIONMATTER, UNLESS SPECIFICALLY ADDRESSED OTHERWISE IN THE TENTATIVE RULING, BOTHMATTERS WILL BE HEARD AT 10:30 A.M.TELECONFERENCE APPEARANCESAppearances for Law & Motion and all other hearings except Trial, MSC and VSC hearings are allowedthrough Court Call.LAW AND MOTION CALENDAR7-08-13#1 10-437051MONTPELLIER VSWELLS FARGO BANKMotion: Demurrer. Moving Party Defendant Times investment LLC. RespondentParty Plaintiff Richard Montpellier. Opposition: None.Ruling: The Demurrer of Times Investment, LLC will be Sustained. Itsrequest for judicial notice will be Granted. Plaintiff will have fifteen (15) daysleave to amend. All of the claims in the present pleading are against Wells FargoBank and are based on its alleged wrongdoing in connection with a modification

equest. Wells Fargo has been dismissed with prejudice, creating a collateralestoppel as to the claims based on the facts alleged against it. Alpha Mechanical,Heating & Air Conditioning Inc. v Travelers Casualty & Surety Co. of America(2005) 133 Cal App 4 th 1319, 1328. No defect in the foreclosure sale proceedingis alleged that would invalidate the sale as to a bona fide purchaser. Nor arethere any facts at all alleging wrongdoing by Mr. Ngo or the moving party orsuggesting that it was not a bona fide purchaser. There is nothing at all in thepresent pleading that even suggests an ability to state a cause of action againstthe moving party. Therefore, the burden is on Plaintiff to show “in what mannerhe can amend his complaint and how that amendment will change the legal effectof his pleading.” Goodman v Kennedy (1976) 18 Cal 3d 335, 349.2 12-574060NEHRING VSCORINTHIANCOLLEGESMotion: Summary Judgment/Summary Adjudication. Moving PartyDefendants Corinthian Colleges, Inc. and Titan Schools, Inc. Responding PartyPlaintiff Emily Nehring. Ruling: : The Corinthian Defendants’ Motion forSummary Judgment/Summary Adjudication is DENIED. [Plaintiff Nehring’s Response to Defendants’UMF Nos. 3, 10, 11, 18, 23, 24, 28, 35, 36, 39, 40, 41, 42, 45, 52, 53, 54, 57, 59,62, 68, 69, 70 and 73.] Plaintiff Nehring carried her burden of establishing that shewas a member of various protected classes, namely a person taking family leaveand her mother having a medical disability, that she was performing her jobcompetently, that she was terminated, and that there is sufficient evidence ofsome discriminatory motive given the close proximity of her termination when shejust returned from her second family leave and that the Corinthian Defendantsdischarged more individuals who were on medical/family leave and still retained 8employees in the West Region after discharging plaintiff and another employeewho took leave and worked in this region. Guz v. Bechtel National, Inc. (2000) 24Cal.4 th 317 and Nanty v. Barrows Co. (9 th Cir. 1981) 660 F.2d 1327. Next, evenassuming the Corinthian Defendants carried their burden of establishing alegitimate, non-discriminatory business reason for plaintiff Nehring’s termination,plaintiff Nehring has submitted sufficient evidence to create triable issues ofmaterial fact as to pre-text. First, plaintiff Nehring presented evidence that it wasshe and another employee who utilized family/medical leave who were terminatedby Ms. Varon as part of the claimed reduction in force, but the West Regionretained 8 employees as before even after plaintiff Nehring and this otheremployee were terminated. (Plaintiff’s Evidence, Exhibit H, Deposition of ChristinaVaron, 57: 22 to 25, 58: 1 to 12, and 24: 11 to 22, and Exhibit B, RIF Chart.)Second, plaintiff Nehring presented expert statistical evidence that her terminationwas selective. Third, plaintiff Nehring presented evidence that she had moreseniority in the West Region than several members of that team and was willing totransfer to another territory in order to keep her job. (Nehring Declaration, 15.)Fourth, plaintiff Nehring presented evidence that her job performance for theCorinthian Defendants was more than satisfactory. (Nehring Declaration, 6, 7, 8and 10.) These triable issues of material fact on plaintiff Nehring causes of actionfor violation of the CFRA and associational discrimination support her third cause ofaction for failure to prevent discrimination and her fourth cause of action forwrongful termination in violation of public policy. Gov’t Code § 12940(k) andNelson v. United Technologies (1999) 74 Cal.App.4 th 597. In addition,plaintiff Nehring presented evidence to support a claim based on disparate impact,and the Corinthian Defendants have not negated such a claim. Life TechnologiesCorp. v. Superior Court (2011) 197 Cal.App.4 th 640. Moving parties to givenotice.Plaintiff Nehring’s Evidentiary Objections: Defendant’s SeparateStatement of Facts: OVERRULED as to Objection Nos. 1, 3, 4, 5, 6, 7, 8, 9, 10,11 and 12. SUSTAINED as to Objection Nos. 2, 13 and 14. Declaration ofChristina Varon: OVERRULED as to Objection No. 16. SUSTAINED as toObjection No. 15.

4 12-609681SHAHABPOUR VSKILVA ENTERPRISES5 13-624006HASAN VS KIM6 13-630678GROVER VS BANKOF AMERICAMotion: Strike First Amended Complaint. Moving Party Defendant KilvaEnterprises, Inc. dba Amber Property Management. Respondent Party PlaintiffsMohammed S. Shahabpour and Mojdeh Shahabpour.Ruling: Defendant KEC’s Motion to Strike Plaintiff’s First AmendedComplaint is Granted because Plaintiffs’ First Amended Complaint was filedbeyond the time the court granted leave to amend on 3-4-13. CCP 435 and 436,and Leader v Health Industries of America, Inc. (2001) 89 Cal App 4 th 603, 612-613. The Shahabpour Plaintiffs are granted 21 days leave to amend to e-file andserve a Second Amended Complaint.Case Management Conference is continued to 9-9-13.Motion: Compel Further Responses to 1) Demand for Production ofDocuments, 2) Special interrogatories, 3) Form Interrogatories, and 4)Form Interrogatories. Moving Party Defendants Honnie & SungKim. Respondent Party Plaintiffs (5 of them) Iftijar Salamah (42 female driver),Sabha Salmah (73 year old female), Zeena Hasan (20 year old female), AhmadHasan (11 year old male), Hamza Hasan (12 year old male). Opposition: None.Ruling: The Motion to Compel Further Responses to the Demand forProduction (Set One) is Granted. Within twenty (20) days, each Plaintiff shallrespond without objection to Nos. 4, 5, 7, 8, 9, 10, 11 & 13. The Motion toCompel Further Responses to the Special interrogatories (Set One) isGranted as to Nos. 2, 3,& 4. The Motion is Denied as to Nos. 7, 8, 9 & 10,because this would be an invasion of privacy. Within twenty (20) days, eachPlaintiff shall respond without objection to Nos. 2, 3 & 4. The Motion to CompelFurther Responses to the Form Interrogatories (Set One) to PlaintiffsIftijar Salamah and Sabha Salmah is Granted. Within twenty (20) days,Plaintiffs Iftijar Salamah and Sabha ASalmah shall respond withoutobjection to Nos. 2.13, 4.1, 6.3, 6.4 to 7.3, 8.1, 9.1 to 1.2 & 20.8 isGranted. Within twenty (20) days, Plaintiffs Zeena Hasan, Ahmad Hasan &Hamza Hasan shall respond without objection to Nos. 2,13, 4.1, 6.3. 6.4 to 7.3,8.1, 9.1 to 1.2 & 20.8. [The Notice of Motion did not include Nos. 2.5, 2.6, 2.8,2.9, 2.10 & 2.11, which were listed in the Separate Statement.] Within twenty(20) days, Plaintiffs Iftijar Salamah, Sabha Salmah, Zeens Hasan, Ahmad Hasan &Hamza Hasan and their attorney, Martin E. Jerisat, shall pay sanction in the sum of$1,144.00 (total for all motions).Motion: Demurrer to First Amended Complaint. Moving Party DefendantBank of America, N.A. Responding Party Plaintiff Patrick J.Grover. Ruling: Defendant Bank of America’s Demurrer to Plaintiff PatrickGrover’s First Amended Complaint is Sustained, on the ground of failure tojoin a necessary party. CCP 389(a) and Bank of California National Ass’n. vSuperior Court (1940) 16 Cal 2d 516, 521-522. The deed of trust evidences thatJosephina Mora Grover was a party to the purchase of the subject Ladera Ranchproperty. (Defendant Bank of America’s RJN, Exhibit A, Deed of Trust, and FirstAmended Complaint para 7, Exhibit 1 deed of Trust.) Plaintiff Patrick Grover isgranted leave to amend to either add Josephina Mora Grover as a party Plaintiff,explain why Josephina Mora Grover no longer has an interest in the subject LaderaRanch property despite her being on the deed of trust, or to name Josephina MoraGrover as a nominal defendant in this action if she still has an interest in thesubject Ladera Ranch Property but elects not to consent to be a party plaintiff inthis litigation. CCP 389(c) and 382. Plaintiff Patrick Grover is granted twenty-one(21) days leave to amend. Moving Party to give notice.7 13-634504KOSHAK VS 10675 S.ORANGE PARKBOULEVARDMotion: Demurrer to Complaint and Motion to Strike. Moving Parties 1)10675 S Orange Park Boulevard, LLC; 2) & 3) PLM Lender Services,Inc. Responding Party Plaintiff Norman Koshak. Ruling: Pursuant to CaliforniaRules of Court Rule 3.300, the court finds that this case is related to

Koshak v 10675 S Orange Park Boulevard, LLC, 30-2012-00590786. Thiscase was assigned to Judge Gregory Munoz in C13. All pending hearingswill be reset set in that Department.8 13-635908LOPEZ VSMARISCOS YTAQUERIAJUQUILITA10 12-577646JORDAN VSNATIONSTARMORTGAGEMotion: Demurrer to Complaint. Moving Party Defendants Mariscos Y TaqueriaJuquilita, Inc., Steve James Ramirez and Antonio Ramirez. Respondent PartyPlaintiffs Ines Bello Lopez and Ana C. Palacios.Ruling: The Demurrer to the Complaint is Sustained with fifteen (15) daysleave to amend. The allegations concerning the contract are uncertain. “in anaction based on a written contract, a Plaintiff may plead the legal effect of thecontract rather than its precise language.” Construction Protective Services, Inc. vTIG Specialty Ins. Co. (2002) 29 Cal 4 th 189, 199. Even so, the scope and terms ofthe contract are unclear. Plaintiffs failed to allege fraud with sufficientspecificity. “in California, fraud must be pled specifically; general and conclusoryallegations do not suffice…The Plaintiff must ‘allege the names of the persons whomade the allegedly fraudulent representations, their authority to speak, to whomthey spoke, what they said or wrote, and when it was said or written.’” Lazar vSuperior Court (1996) 12 Cal 4 th 631, 645. Plaintiffs have sued the individualdefendants on each of the causes of action. Since the contract was with thecorporation, Plaintiffs have not alleged actionable conduct for the First Cause ofAction for Relief based on Rescission and the Third Cause of Action for Money Handand Received.Motion: Demurrer to Second Amended Complaint. Moving Party DefendantNationstar Mortgage, LLC. Respondent Party Plaintiff Nicholas P. Jordan.Opposition: None.Ruling: Defendant Nationstar’s Demurrer to Plaintiff Jordan’s SecondAmended Complaint is SUSTAINED without leave to amend. As to Plaintiff’sfirst cause of action for wrongful foreclosure, California law does not support acause of action to determine if a party is authorized to conduct a non-judicialforeclosure and/or to establish chain of ownership. Gomes v. Countrywide HomeLoans, Inc. (2011) 192 Cal.App.4 th 1149, 1155 and Roque v. Suntrust MortgageInc. 2010 WL 546986 (N.D. Cal. 2010). Also, even assuming some irregularities inthe foreclosure process, no substantial prejudice has been alleged by plaintiffJordan. Knapp v. Doherty (2004) 123 Cal.App.4 th 76, 93. In addition, noforeclosure sale has occurred, so any cause of action for wrongful foreclosure ispremature. Rosenfeld v. J.P. Morgan Chase Bank, N.A. (N.D. Cal. 2010) 732F.Supp.2d 952. As to Plaintiff’s second cause of action for declaratory relief,declaratory relief does not lie to determine the authority of a party to initiate anon-judicial foreclosure. Gomes, at 1155. Also, Plaintiff’s cause of action fordeclaratory relief is duplicative of his first cause of action for wrongful foreclosure.Pacific Elec. Ry. Co. v. Dewey (1949) 95 Cal.App.2d 69, 71. Finally, if a partycannot amend to state a valid cause of action, or the party opposing the demurrercannot state how a valid cause of action can be pled, which the opposing party hasthe burden of proof on, then the demurrer should be sustained without leave toamend. Hendy v. Losse (1991) 54 Cal.3d 723, 742. Plaintiff Jordan has not filedany opposition or explained how he can amend to state a proper cause of actionfor wrongful foreclosure and/or declaratory relief despite being given threeopportunities to do so, so defendant Nationstar’s demurrer to Plaintiff Jordan’sSecond Amended Complaint is sustained without leave to amend.Defendant Nationstar’s Request for Judicial Notice: Defendant Nationstarrequested that the Court take Judicial Notice of the following documents: Exhibit A,Deed of Trust recorded 4-23-04, Exhibit B, Substitution of Trustee recorded 9-19-11, Exhibit C, Notice of Default recorded 9-19-11, Exhibit D, Notice of Salerecorded 12-21-11, Exhibit E, Bankruptcy Court Docket in Case No. 8:11-bk-14612-ES filed on 3-31-11, Exhibit F, Bankruptcy Schedules in Case No. 8:11-bk-14612-ES filed on 3-31-11, and Exhibit G, Amended Statement of Financial Affairsfor Case No. 8:11-bk-14612-ES filed on 5-26-11. GRANTED as to Exhibits A, B,C, D, E, F and G, but such notice as to Exhibits A, B, C and D is limited to the

11 13-643821STEPP VS BANK OFAMERICAfiling of these documents with the county recorder’s office and legal effect but notas to the truth of the matters set forth therein. Evidence Code § 452(h) andFontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4 th 256, 265. Also, as toExhibits E, F and G, such notice is limited to the bankruptcy docket being a trustand correct docket and the filing of these pleadings but not as to the truth of anyclaims or contentions set forth therein. Evidence Code § 452(d) and Day v. Sharp(1975) 50 Cal.App.3d 904, 914.Motion: Demurrer. Moving Party Defendants Bank of America, N.A., ReconTrustCompany, NA. Responding Party Plaintiffs David & MicheleStepp. Ruling: Defendants’ demurrer to Plaintiffs’ Complaint isSUSTAINED in its entirety. The Court stays this action and all foreclosureproceedings for three months to permit the parties to engage in modificationnegotiations under CC §2923.6. The Court sets a status conference for October 7,2013 at 8:30, at which time the Court will consider whether the parties need moretime to negotiate and, if they do not, whether Plaintiff should be given leave to filean amended and supplemental complaint. However, the Demurrer to the 3dcause of action for negligence is SUSTAINED without leave to amend.There has been no violation of CC §2923.6. Under sub§(g), a mortgage servicer’sduty to reevaluate is not triggered until the borrower provides documentation of achange in circumstances. Counsel’s 4/15/13 letter included no documentation(e.g., paycheck stubs or an employment agreement showing that Mr. Stepp hasobtained employment).However, the Court interprets sub§(h) as requiring the servicer, once suchdocumentation is provided, to advise the borrower of what documentation it is“required” for a complete application and to set a reasonable time frame in whichto provide it.As to Plaintiffs’ other claim, of improper default fees, Plaintiffs have not paid anysuch fees and have not alleged that, but for the improper fees, they would havebeen able to cure the default. The facts alleged (that Mr. Stepp was unemployedand the Plaintiffs’ savings had been exhausted) show that they are unable to allegethis.Without actionable wrongdoing, Plaintiffs’ other claims fail. However, the Courtnotes that a tender is not required to state a violation of CC §2923.6 for the samereasons that it was not required to state a violation of former CC §2923.5. SeeMabry v. Superior Court (2010) 185 Cal.App.4th 208, 225-225, legislativecomment (b) regarding the HBR and legislative comment (d) regarding itspredecessor.A Demurrer is an improper procedure to use to attack the pleading regarding theNational Mortgage Settlement; even if Defendants are correct, their standingcontention will not wholly defeat any cause of action. The proper remedy is amotion to strike.The negligence cause of action fails because Bank of America did not owe a duty toPlaintiffs. It did not exceed its conventional role as lender. Nymark v. HeartFed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1095. This roleincludes loan modification negotiations. Armstrong v. Chevy Chase Bank FSB(ND Cal. Oct. 3, 2012) 2012 WL 4747165 * 4. The reasoning of Armstrong ispersuasive; there was no reasoning stated for the holding of the trial court inAnsanelli v. JP Morgan Chase Bank NA (ND Cal. March 28, 2011) 2011 WL1134451, *7. Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872,901, which distinguished residential home loans from construction loans thatimpose a duty.In addition, the Court notes that CC 2923.6 and its predecessor evidence aLegislative intent that loan modification be considered part of the relationshipcreated by residential home loans.Defendant is to give notice.

12 13-623184MAHAFFA VS STATEOF CALIFORNIA,LABORCOMMISSIONERMotion: Demurrer to First Amended Complaint. Moving Party DefendantState of California. Respondent Party Plaintiff Judith Mahaffa.Ruling: Plaintiff’s Request for Judicial Notice is Granted. The Demurrer tothe First Cause of Action for Negligence is Sustained without leave toamend. The claim does not allege any misconduct on the part of DefendantGomez that would lead to liability. After the Judgment had lapsed, he allegedlystated that the Judgment was still valid. This statement caused no damage toPlaintiff, because it already occurred. Under Gov. Code 950.2, both the State andGomez cannot be liable for this conduct. The Demurrer to the Second Cause ofAction for Respondent Superior and the Third cause of Action for Breach ofMandatory Duty is Sustained with fifteen (15) leave to amend. In order tostate sufficient facts for these causes of action, Plaintiff must allege that shesustained actual damages as result of the Labor Commissioner failing to renew theten year old Judgment. Similar to a legal malpractice action, Plaintiff must allegethat “’careful management of the case-within-a-case would have resulted in afavorable judgment ‘and collection of same…’” Garretson v Harold I. Miller (2002)99 Cal App 4 th 563, 569. The Complaint must allege that the Judgment wascollectible. Regarding the Second cause of Action, Gov. Code 821.6 does notprovide immunity. The potential liability arises out of the failure to take action torenew the judgment, not “instituting or prosecuting any judicial nor administrative.Proceeding.” Regard the Third Cause of Action, the court agrees that the LaborCommission has discretion on how to collect the Judgment. However, the act ofrenewing a Judgment is similar to complying with the statute of limitations. TheLabor Commissioner had one choice available on that matter. Therefore, it was amandatory duty.

NOTICELAW AND MOTION PROCEDURES FOR DEPARTMENT C26THE HONORABLE GREGORY H. LEWISLAW & MOTION IS HEARD ON MONDAYS AT 10:30 A.M.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings by 12:00 p.m. Friday before the Monday date. The rulings will also beposted outside the courtroom on the bulletin board for those counsels without internet access, no laterthan 8:30 a.m. on the day of the scheduled motion.The Law & Motion hearings are scheduled on Monday at 10:30 a.m. and all arguments will be heard atthat time. No supplemental or additional papers will be allowed to be submitted following posting of theruling on the internet, nor will the Court entertain a request for continuance once the ruling has beenposted.****** SUBMITTING ON THE COURT’S TENTATIVE RULING*****Notice to be given to the Court and opposing counsel no later than 3:00 p.m. the Friday beforethe Monday date.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. Ifyou intend to submit on the tentative and do not want oral argument, please call the clerk by calling (657)622-5226 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate per CRC391.NOTICE TO COUNSEL: Upon filing of motion, moving party shall provide a copy of this procedural noticeto opposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because ofmoving party’s failure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailingparty shall give notice of the ruling. Prevailing party shall prepare and Order/Judgment for the Court’ssignature if the motion is dispositive of the cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or courtroom assistant for clarification ofrulings or additional information. If you are moving party and do not have internet access, you may callthe clerk or courtroom assistant after 1:30 p.m. on the Friday before the scheduled hearing and the rulingwill be read to you.WHEN A CASE MANAGEMENT CONFERENCE IS ALSO SET THE DAY OF A LAW AND MOTIONMATTER, UNLESS SPECIFICALLY ADDRESSED OTHERWISE IN THE TENTATIVE RULING, BOTHMATTERS WILL BE HEARD AT 10:30 A.M.TELECONFERENCE APPEARANCESAppearances for Law & Motion and all other hearings except Trial, MSC and VSC hearings are allowedthrough Court Call.LAW AND MOTION CALENDAR7-08-13#1 10-437051MONTPELLIER VSWELLS FARGO BANKMotion: Demurrer. Moving Party Defendant Times investment LLC. RespondentParty Plaintiff Richard Montpellier. Opposition: None.Ruling: The Demurrer of Times Investment, LLC will be Sustained. Itsrequest for judicial notice will be Granted. Plaintiff will have fifteen (15) daysleave to amend. All of the claims in the present pleading are against Wells FargoBank and are based on its alleged wrongdoing in connection with a modification

equest. Wells Fargo has been dismissed with prejudice, creating a collateralestoppel as to the claims based on the facts alleged against it. Alpha Mechanical,Heating & Air Conditioning Inc. v Travelers Casualty & Surety Co. of America(2005) 133 Cal App 4 th 1319, 1328. No defect in the foreclosure sale proceedingis alleged that would invalidate the sale as to a bona fide purchaser. Nor arethere any facts at all alleging wrongdoing by Mr. Ngo or the moving party orsuggesting that it was not a bona fide purchaser. There is nothing at all in thepresent pleading that even suggests an ability to state a cause of action againstthe moving party. Therefore, the burden is on Plaintiff to show “in what mannerhe can amend his complaint and how that amendment will change the legal effectof his pleading.” Goodman v Kennedy (1976) 18 Cal 3d 335, 349.2 12-574060NEHRING VSCORINTHIANCOLLEGESMotion: Summary Judgment/Summary Adjudication. Moving PartyDefendants Corinthian Colleges, Inc. and Titan Schools, Inc. Responding PartyPlaintiff Emily Nehring. Ruling: : The Corinthian Defendants’ Motion forSummary Judgment/Summary Adjudication is DENIED. [Plaintiff Nehring’s Response to Defendants’UMF Nos. 3, 10, 11, 18, 23, 24, 28, 35, 36, 39, 40, 41, 42, 45, 52, 53, 54, 57, 59,62, 68, 69, 70 and 73.] Plaintiff Nehring carried her burden of establishing that shewas a member of various protected classes, namely a person taking family leaveand her mother having a medical disability, that she was performing her jobcompetently, that she was terminated, and that there is sufficient evidence ofsome discriminatory motive given the close proximity of her termination when shejust returned from her second family leave and that the Corinthian Defendantsdischarged more individuals who were on medical/family leave and still retained 8employees in the West Region after discharging plaintiff and another employeewho took leave and worked in this region. Guz v. Bechtel National, Inc. (2000) 24Cal.4 th 317 and Nanty v. Barrows Co. (9 th Cir. 1981) 660 F.2d 1327. Next, evenassuming the Corinthian Defendants carried their burden of establishing alegitimate, non-discriminatory business reason for plaintiff Nehring’s termination,plaintiff Nehring has submitted sufficient evidence to create triable issues ofmaterial fact as to pre-text. First, plaintiff Nehring presented evidence that it wasshe and another employee who utilized family/medical leave who were terminatedby Ms. Varon as part of the claimed reduction in force, but the West Regionretained 8 employees as before even after plaintiff Nehring and this otheremployee were terminated. (Plaintiff’s Evidence, Exhibit H, Deposition of ChristinaVaron, 57: 22 to 25, 58: 1 to 12, and 24: 11 to 22, and Exhibit B, RIF Chart.)Second, plaintiff Nehring presented expert statistical evidence that her terminationwas selective. Third, plaintiff Nehring presented evidence that she had moreseniority in the West Region than several members of that team and was willing totransfer to another territory in order to keep her job. (Nehring Declaration, 15.)Fourth, plaintiff Nehring presented evidence that her job performance for theCorinthian Defendants was more than satisfactory. (Nehring Declaration, 6, 7, 8and 10.) These triable issues of material fact on plaintiff Nehring causes of actionfor violation of the CFRA and associational discrimination support her third cause ofaction for failure to prevent discrimination and her fourth cause of action forwrongful termination in violation of public policy. Gov’t Code § 12940(k) andNelson v. United Technologies (1999) 74 Cal.App.4 th 597. In addition,plaintiff Nehring presented evidence to support a claim based on disparate impact,and the Corinthian Defendants have not negated such a claim. Life TechnologiesCorp. v. Superior Court (2011) 197 Cal.App.4 th 640. Moving parties to givenotice.Plaintiff Nehring’s Evidentiary Objections: Defendant’s SeparateStatement of Facts: OVERRULED as to Objection Nos. 1, 3, 4, 5, 6, 7, 8, 9, 10,11 and 12. SUSTAINED as to Objection Nos. 2, 13 and 14. Declaration ofChristina Varon: OVERRULED as to Objection No. 16. SUSTAINED as toObjection No. 15.

4 12-609681SHAHABPOUR VSKILVA ENTERPRISES5 13-624006HASAN VS KIM6 13-630678GROVER VS BANKOF AMERICAMotion: Strike First Amended Complaint. Moving Party Defendant KilvaEnterprises, Inc. dba Amber Property Management. Respondent Party PlaintiffsMohammed S. Shahabpour and Mojdeh Shahabpour.Ruling: Defendant KEC’s Motion to Strike Plaintiff’s First AmendedComplaint is Granted because Plaintiffs’ First Amended Complaint was filedbeyond the time the court granted leave to amend on 3-4-13. CCP 435 and 436,and Leader v Health Industries of America, Inc. (2001) 89 Cal App 4 th 603, 612-613. The Shahabpour Plaintiffs are granted 21 days leave to amend to e-file andserve a Second Amended Complaint.Case Management Conference is continued to 9-9-13.Motion: Compel Further Responses to 1) Demand for Production ofDocuments, 2) Special interrogatories, 3) Form Interrogatories, and 4)Form Interrogatories. Moving Party Defendants Honnie & SungKim. Respondent Party Plaintiffs (5 of them) Iftijar Salamah (42 female driver),Sabha Salmah (73 year old female), Zeena Hasan (20 year old female), AhmadHasan (11 year old male), Hamza Hasan (12 year old male). Opposition: None.Ruling: The Motion to Compel Further Responses to the Demand forProduction (Set One) is Granted. Within twenty (20) days, each Plaintiff shallrespond without objection to Nos. 4, 5, 7, 8, 9, 10, 11 & 13. The Motion toCompel Further Responses to the Special interrogatories (Set One) isGranted as to Nos. 2, 3,& 4. The Motion is Denied as to Nos. 7, 8, 9 & 10,because this would be an invasion of privacy. Within twenty (20) days, eachPlaintiff shall respond without objection to Nos. 2, 3 & 4. The Motion to CompelFurther Responses to the Form Interrogatories (Set One) to PlaintiffsIftijar Salamah and Sabha Salmah is Granted. Within twenty (20) days,Plaintiffs Iftijar Salamah and Sabha ASalmah shall respond withoutobjection to Nos. 2.13, 4.1, 6.3, 6.4 to 7.3, 8.1, 9.1 to 1.2 & 20.8 isGranted. Within twenty (20) days, Plaintiffs Zeena Hasan, Ahmad Hasan &Hamza Hasan shall respond without objection to Nos. 2,13, 4.1, 6.3. 6.4 to 7.3,8.1, 9.1 to 1.2 & 20.8. [The Notice of Motion did not include Nos. 2.5, 2.6, 2.8,2.9, 2.10 & 2.11, which were listed in the Separate Statement.] Within twenty(20) days, Plaintiffs Iftijar Salamah, Sabha Salmah, Zeens Hasan, Ahmad Hasan &Hamza Hasan and their attorney, Martin E. Jerisat, shall pay sanction in the sum of$1,144.00 (total for all motions).Motion: Demurrer to First Amended Complaint. Moving Party DefendantBank of America, N.A. Responding Party Plaintiff Patrick J.Grover. Ruling: Defendant Bank of America’s Demurrer to Plaintiff PatrickGrover’s First Amended Complaint is Sustained, on the ground of failure tojoin a necessary party. CCP 389(a) and Bank of California National Ass’n. vSuperior Court (1940) 16 Cal 2d 516, 521-522. The deed of trust evidences thatJosephina Mora Grover was a party to the purchase of the subject Ladera Ranchproperty. (Defendant Bank of America’s RJN, Exhibit A, Deed of Trust, and FirstAmended Complaint para 7, Exhibit 1 deed of Trust.) Plaintiff Patrick Grover isgranted leave to amend to either add Josephina Mora Grover as a party Plaintiff,explain why Josephina Mora Grover no longer has an interest in the subject LaderaRanch property despite her being on the deed of trust, or to name Josephina MoraGrover as a nominal defendant in this action if she still has an interest in thesubject Ladera Ranch Property but elects not to consent to be a party plaintiff inthis litigation. CCP 389(c) and 382. Plaintiff Patrick Grover is granted twenty-one(21) days leave to amend. Moving Party to give notice.7 13-634504KOSHAK VS 10675 S.ORANGE PARKBOULEVARDMotion: Demurrer to Complaint and Motion to Strike. Moving Parties 1)10675 S Orange Park Boulevard, LLC; 2) & 3) PLM Lender Services,Inc. Responding Party Plaintiff Norman Koshak. Ruling: Pursuant to CaliforniaRules of Court Rule 3.300, the court finds that this case is related to

Koshak v 10675 S Orange Park Boulevard, LLC, 30-2012-00590786. Thiscase was assigned to Judge Gregory Munoz in C13. All pending hearingswill be reset set in that Department.8 13-635908LOPEZ VSMARISCOS YTAQUERIAJUQUILITA10 12-577646JORDAN VSNATIONSTARMORTGAGEMotion: Demurrer to Complaint. Moving Party Defendants Mariscos Y TaqueriaJuquilita, Inc., Steve James Ramirez and Antonio Ramirez. Respondent PartyPlaintiffs Ines Bello Lopez and Ana C. Palacios.Ruling: The Demurrer to the Complaint is Sustained with fifteen (15) daysleave to amend. The allegations concerning the contract are uncertain. “in anaction based on a written contract, a Plaintiff may plead the legal effect of thecontract rather than its precise language.” Construction Protective Services, Inc. vTIG Specialty Ins. Co. (2002) 29 Cal 4 th 189, 199. Even so, the scope and terms ofthe contract are unclear. Plaintiffs failed to allege fraud with sufficientspecificity. “in California, fraud must be pled specifically; general and conclusoryallegations do not suffice…The Plaintiff must ‘allege the names of the persons whomade the allegedly fraudulent representations, their authority to speak, to whomthey spoke, what they said or wrote, and when it was said or written.’” Lazar vSuperior Court (1996) 12 Cal 4 th 631, 645. Plaintiffs have sued the individualdefendants on each of the causes of action. Since the contract was with thecorporation, Plaintiffs have not alleged actionable conduct for the First Cause ofAction for Relief based on Rescission and the Third Cause of Action for Money Handand Received.Motion: Demurrer to Second Amended Complaint. Moving Party DefendantNationstar Mortgage, LLC. Respondent Party Plaintiff Nicholas P. Jordan.Opposition: None.Ruling: Defendant Nationstar’s Demurrer to Plaintiff Jordan’s SecondAmended Complaint is SUSTAINED without leave to amend. As to Plaintiff’sfirst cause of action for wrongful foreclosure, California law does not support acause of action to determine if a party is authorized to conduct a non-judicialforeclosure and/or to establish chain of ownership. Gomes v. Countrywide HomeLoans, Inc. (2011) 192 Cal.App.4 th 1149, 1155 and Roque v. Suntrust MortgageInc. 2010 WL 546986 (N.D. Cal. 2010). Also, even assuming some irregularities inthe foreclosure process, no substantial prejudice has been alleged by plaintiffJordan. Knapp v. Doherty (2004) 123 Cal.App.4 th 76, 93. In addition, noforeclosure sale has occurred, so any cause of action for wrongful foreclosure ispremature. Rosenfeld v. J.P. Morgan Chase Bank, N.A. (N.D. Cal. 2010) 732F.Supp.2d 952. As to Plaintiff’s second cause of action for declaratory relief,declaratory relief does not lie to determine the authority of a party to initiate anon-judicial foreclosure. Gomes, at 1155. Also, Plaintiff’s cause of action fordeclaratory relief is duplicative of his first cause of action for wrongful foreclosure.Pacific Elec. Ry. Co. v. Dewey (1949) 95 Cal.App.2d 69, 71. Finally, if a partycannot amend to state a valid cause of action, or the party opposing the demurrercannot state how a valid cause of action can be pled, which the opposing party hasthe burden of proof on, then the demurrer should be sustained without leave toamend. Hendy v. Losse (1991) 54 Cal.3d 723, 742. Plaintiff Jordan has not filedany opposition or explained how he can amend to state a proper cause of actionfor wrongful foreclosure and/or declaratory relief despite being given threeopportunities to do so, so defendant Nationstar’s demurrer to Plaintiff Jordan’sSecond Amended Complaint is sustained without leave to amend.Defendant Nationstar’s Request for Judicial Notice: Defendant Nationstarrequested that the Court take Judicial Notice of the following documents: Exhibit A,Deed of Trust recorded 4-23-04, Exhibit B, Substitution of Trustee recorded 9-19-11, Exhibit C, Notice of Default recorded 9-19-11, Exhibit D, Notice of Salerecorded 12-21-11, Exhibit E, Bankruptcy Court Docket in Case No. 8:11-bk-14612-ES filed on 3-31-11, Exhibit F, Bankruptcy Schedules in Case No. 8:11-bk-14612-ES filed on 3-31-11, and Exhibit G, Amended Statement of Financial Affairsfor Case No. 8:11-bk-14612-ES filed on 5-26-11. GRANTED as to Exhibits A, B,C, D, E, F and G, but such notice as to Exhibits A, B, C and D is limited to the

11 13-643821STEPP VS BANK OFAMERICAfiling of these documents with the county recorder’s office and legal effect but notas to the truth of the matters set forth therein. Evidence Code § 452(h) andFontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4 th 256, 265. Also, as toExhibits E, F and G, such notice is limited to the bankruptcy docket being a trustand correct docket and the filing of these pleadings but not as to the truth of anyclaims or contentions set forth therein. Evidence Code § 452(d) and Day v. Sharp(1975) 50 Cal.App.3d 904, 914.Motion: Demurrer. Moving Party Defendants Bank of America, N.A., ReconTrustCompany, NA. Responding Party Plaintiffs David & MicheleStepp. Ruling: Defendants’ demurrer to Plaintiffs’ Complaint isSUSTAINED in its entirety. The Court stays this action and all foreclosureproceedings for three months to permit the parties to engage in modificationnegotiations under CC §2923.6. The Court sets a status conference for October 7,2013 at 8:30, at which time the Court will consider whether the parties need moretime to negotiate and, if they do not, whether Plaintiff should be given leave to filean amended and supplemental complaint. However, the Demurrer to the 3dcause of action for negligence is SUSTAINED without leave to amend.There has been no violation of CC §2923.6. Under sub§(g), a mortgage servicer’sduty to reevaluate is not triggered until the borrower provides documentation of achange in circumstances. Counsel’s 4/15/13 letter included no documentation(e.g., paycheck stubs or an employment agreement showing that Mr. Stepp hasobtained employment).However, the Court interprets sub§(h) as requiring the servicer, once suchdocumentation is provided, to advise the borrower of what documentation it is“required” for a complete application and to set a reasonable time frame in whichto provide it.As to Plaintiffs’ other claim, of improper default fees, Plaintiffs have not paid anysuch fees and have not alleged that, but for the improper fees, they would havebeen able to cure the default. The facts alleged (that Mr. Stepp was unemployedand the Plaintiffs’ savings had been exhausted) show that they are unable to allegethis.Without actionable wrongdoing, Plaintiffs’ other claims fail. However, the Courtnotes that a tender is not required to state a violation of CC §2923.6 for the samereasons that it was not required to state a violation of former CC §2923.5. SeeMabry v. Superior Court (2010) 185 Cal.App.4th 208, 225-225, legislativecomment (b) regarding the HBR and legislative comment (d) regarding itspredecessor.A Demurrer is an improper procedure to use to attack the pleading regarding theNational Mortgage Settlement; even if Defendants are correct, their standingcontention will not wholly defeat any cause of action. The proper remedy is amotion to strike.The negligence cause of action fails because Bank of America did not owe a duty toPlaintiffs. It did not exceed its conventional role as lender. Nymark v. HeartFed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1095. This roleincludes loan modification negotiations. Armstrong v. Chevy Chase Bank FSB(ND Cal. Oct. 3, 2012) 2012 WL 4747165 * 4. The reasoning of Armstrong ispersuasive; there was no reasoning stated for the holding of the trial court inAnsanelli v. JP Morgan Chase Bank NA (ND Cal. March 28, 2011) 2011 WL1134451, *7. Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872,901, which distinguished residential home loans from construction loans thatimpose a duty.In addition, the Court notes that CC 2923.6 and its predecessor evidence aLegislative intent that loan modification be considered part of the relationshipcreated by residential home loans.Defendant is to give notice.

12 13-623184MAHAFFA VS STATEOF CALIFORNIA,LABORCOMMISSIONERMotion: Demurrer to First Amended Complaint. Moving Party DefendantState of California. Respondent Party Plaintiff Judith Mahaffa.Ruling: Plaintiff’s Request for Judicial Notice is Granted. The Demurrer tothe First Cause of Action for Negligence is Sustained without leave toamend. The claim does not allege any misconduct on the part of DefendantGomez that would lead to liability. After the Judgment had lapsed, he allegedlystated that the Judgment was still valid. This statement caused no damage toPlaintiff, because it already occurred. Under Gov. Code 950.2, both the State andGomez cannot be liable for this conduct. The Demurrer to the Second Cause ofAction for Respondent Superior and the Third cause of Action for Breach ofMandatory Duty is Sustained with fifteen (15) leave to amend. In order tostate sufficient facts for these causes of action, Plaintiff must allege that shesustained actual damages as result of the Labor Commissioner failing to renew theten year old Judgment. Similar to a legal malpractice action, Plaintiff must allegethat “’careful management of the case-within-a-case would have resulted in afavorable judgment ‘and collection of same…’” Garretson v Harold I. Miller (2002)99 Cal App 4 th 563, 569. The Complaint must allege that the Judgment wascollectible. Regarding the Second cause of Action, Gov. Code 821.6 does notprovide immunity. The potential liability arises out of the failure to take action torenew the judgment, not “instituting or prosecuting any judicial nor administrative.Proceeding.” Regard the Third Cause of Action, the court agrees that the LaborCommission has discretion on how to collect the Judgment. However, the act ofrenewing a Judgment is similar to complying with the statute of limitations. TheLabor Commissioner had one choice available on that matter. Therefore, it was amandatory duty.

NOTICELAW AND MOTION PROCEDURES FOR DEPARTMENT C26THE HONORABLE ROBERT D. MONARCHLAW & MOTION IS HEARD ON MONDAYS AT 10:30 A.M.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings by 12:00 p.m. Friday before the Monday date. The rulings will also beposted outside the courtroom on the bulletin board for those counsels without internet access, no laterthan 8:30 a.m. on the day of the scheduled motion.The Law & Motion hearings are scheduled on Monday at 10:30 a.m. and all arguments will be heard atthat time. No supplemental or additional papers will be allowed to be submitted following posting of theruling on the internet, nor will the Court entertain a request for continuance once the ruling has beenposted.****** SUBMITTING ON THE COURT’S TENTATIVE RULING*****Notice to be given to the Court and opposing counsel no later than 3:00 p.m. the Friday beforethe Monday date.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. Ifyou intend to submit on the tentative and do not want oral argument, please call the clerk by calling (657)622-5226 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate per CRC391.NOTICE TO COUNSEL: Upon filing of motion, moving party shall provide a copy of this procedural noticeto opposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because ofmoving party’s failure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailingparty shall give notice of the ruling. Prevailing party shall prepare and Order/Judgment for the Court’ssignature if the motion is dispositive of the cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or courtroom assistant for clarification ofrulings or additional information. If you are moving party and do not have internet access, you may callthe clerk or courtroom assistant after 1:30 p.m. on the Friday before the scheduled hearing and the rulingwill be read to you.WHEN A CASE MANAGEMENT CONFERENCE IS ALSO SET THE DAY OF A LAW AND MOTIONMATTER, UNLESS SPECIFICALLY ADDRESSED OTHERWISE IN THE TENTATIVE RULING, BOTHMATTERS WILL BE HEARD AT 10:30 A.M.TELECONFERENCE APPEARANCESAppearances for Law & Motion and all other hearings except Trial, MSC and VSC hearings are allowedthrough Court Call.LAW AND MOTION CALENDAR7-29-13#2 12-538090NEGRETE-ROMEROVS PROVIDENTFUNDING GROUPMotion: To Set Aside Default. Moving Party Defendant Provident FundingGroup. Responding Party Plaintiffs Agripin Romero and Josephine Negrete-Romero. Opposition: None.Ruling: Motion to Set Aside Default is Granted. The motion is presumed to havemerit. Service of summons and First Amended Complaint did not comply with therequirements of CCP 416.40, rendering the entry of default void and is herebyvacated. Request for Judicial Notice is Granted.

3 12-578774SWAN VS KINDREDHOSPITAL5 13-639935SHABESTARY VSAMERICANS BUYAMERICAN1) Motion: For Summary Judgment. Moving Party Defendant Farhan Khabaz,MD Responding Party Plaintiffs Cari S. Swan, Thomas M. Swan, Jodi L. Swan,Emily A. Swan, a minor by her guardian ad litem, Cari S. Swan and the Estateof Thomas A. Swan.2) Motion: For Summary Judgment. Moving Party Defendant Dean Ba Ngo,MD. Responding Party Plaintiffs Cari S. Swan, Thomas M. Swan, Jodi L. SwanEmily A. Swan, a minor by her guardian ad litem, Cari S. Swan and the Estateof Thomas A. Swan.Ruling: Motions for Summary Judgment are Granted. Motions presumed to hamerit. Each Defendant carried their burden regarding standard of care and causationthrough the declarations of their experts. Moving parties to give notice and submit aJudgment within 21 days.Motion: Demurrer to Complaint. Moving Party Defendant Central EscrowInc. Responding Party Plaintiff Muzayan Shabestary.Ruling: The Demurrer is Sustained to all Causes of Action Without Leave toAmend. Plaintiff admits that she was not a party to the Escrow and she voluntarildeposited funds into Escrow with an expressed intent to benefit the buyer. Iappears undisputed that defendant did nothing to induce her to wire thfunds. Shaefer v. Manufacturers Bank (1980) 264 Cal.App. 3 rd 70 and Seigel vFidelity National Title Co. 46 Cal.App4th 1181, reflect the law applicable to thimatter. The duty of an escrow is limited to the duty to comply with escrowinstructions. Exceptional circumstances that might result in an exception to thiprinciple do not exist in this matter. To hold otherwise would discouragereasonable person from ever acting as an escrow.

NOTICELAW AND MOTION PROCEDURES FOR DEPARTMENT C26THE HONORABLE ROBERT D. MONARCHLAW & MOTION IS HEARD ON MONDAYS AT 10:30 A.M.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings by 12:00 p.m. Friday before the Monday date. The rulings will also beposted outside the courtroom on the bulletin board for those counsels without internet access, no laterthan 8:30 a.m. on the day of the scheduled motion.The Law & Motion hearings are scheduled on Monday at 10:30 a.m. and all arguments will be heard atthat time. No supplemental or additional papers will be allowed to be submitted following posting of theruling on the internet, nor will the Court entertain a request for continuance once the ruling has beenposted.****** SUBMITTING ON THE COURT’S TENTATIVE RULING*****Notice to be given to the Court and opposing counsel no later than 3:00 p.m. the Friday beforethe Monday date.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. Ifyou intend to submit on the tentative and do not want oral argument, please call the clerk by calling (657)622-5226 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate per CRC391.NOTICE TO COUNSEL: Upon filing of motion, moving party shall provide a copy of this procedural noticeto opposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because ofmoving party’s failure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailingparty shall give notice of the ruling. Prevailing party shall prepare and Order/Judgment for the Court’ssignature if the motion is dispositive of the cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or courtroom assistant for clarification ofrulings or additional information. If you are moving party and do not have internet access, you may callthe clerk or courtroom assistant after 1:30 p.m. on the Friday before the scheduled hearing and the rulingwill be read to you.WHEN A CASE MANAGEMENT CONFERENCE IS ALSO SET THE DAY OF A LAW AND MOTIONMATTER, UNLESS SPECIFICALLY ADDRESSED OTHERWISE IN THE TENTATIVE RULING, BOTHMATTERS WILL BE HEARD AT 10:30 A.M.TELECONFERENCE APPEARANCESAppearances for Law & Motion and all other hearings except Trial, MSC and VSC hearings are allowedthrough Court Call.LAW AND MOTION CALENDAR8-5-13#1 12-538959CALIFORNIA STATELANDS COMMISSIONVS FRANK M. SINGERMotion: Demurrer to Third Amended Cross-Complaint. Moving Party Plaintiff/CDefendants, State lands Commission, John Chiang, Gavin Newsom and AnaMatosantos. Responding Party Defendants/Cross-Complainants, Frank M. Singer, RoSinger and Huntington Beach Property Owners.Ruling: DEMURRER TO THIRD AMENDED CROSS-COMPLAINT IS SUSTAINED WLEAVE TO AMEND AS TO THE FIRST THROUGH FIFTH CAUSES OF ACTION.Cross-Defendant’s Request for Judicial Notice is Granted.

First Cause of Action: Proposition 26: This demurrer is unopposed and is presummerit. Proposition 26 does not apply given the existence of a lease. (Exhibit D of theJudicial Notice and Article 13A, Section 3(b)(4)).Second Cause of Action: Promissory Estoppel: Cross-Complainants have failed(1) the specific promise made; (2) the action taken by the Commission that violate thand (3) reasonable reliance by the Plaintiff on the promise.While Cross-Complainants contend that the promise was one for free rent and that thto charge rent breached this promise and/or agreement, there is no allegation or conthere was a promise of continued or indefinite free rent. There are no allegations dethe timeline of the promise or an indication by Cross-Complainants that reliance on infree rent was reasonable. Further, the Commission did provide free rent for a numbesupporting the position that there was no breach.Third Cause of Action: Taking of Vested Rights: The bare assertion that Cross-Cacquired vested property rights and that the Commission cannot “renege” on the freeprovided, is insufficient to state this claim. The recorded lease specifically provides frestoration of the property upon the termination of the lease. (Exhibit D of Request fNotice page 9 paragraph 12). Accordingly, Cross-Complainants have not shown howspecifically prevented by contract could “vest”. The allegation that the cantilevered dprivate property and the requirement to pay rent for the deck or to reconstruct it, cotaking of the vested right, is insufficient.Fourth Cause of Action: Imposing Contract of Adhesion: Pursuant to Governme911.2(a), a claim against a public entity “relating to any other cause of action shall bpresented…not later than one year after the accrual of the cause of action”. This claimhave accrued upon execution of the contract which Exhibit D shows was executed on10, 2010. No allegations have been presented that there was compliance with the reof Government Code 911.2(a). The Court infers from the Cross-Complainants statem“no written claim was necessary”, as an admission that a claim was not presented. Athe claim appears to be barred.Further, this section is not limited to claims seeking “money and damages” and woulthe claims asserted by Cross-Complainants.Fifth Cause of Action: Denial of Civil Rights under the Federal Civil Rights Accause of action arises from Cross-Complainants’ allegations supporting their other caaction. Since these causes of action fail, so does this one.With respect to all causes of action, the burden is on Cross-Complainants to show thewhich they may amend and how the amendment will change the legal effort of thepleading. Goodman vs. Kennedy (1976) 18Cal.3d 335. This has not been shown. InCross-Complainants appear to have copied the allegations from Second Amended CroComplaint and have not demonstrated any ability to amend.2 12-4630PAHNOS VS CITY OFLAGUNA BEACHMotion: To Correct Administrative Record. Moving Party Petitioners David PahnoStephens. Responding Party Respondent City of Laguna Beach.Ruling: GRANT MOTION TO AUGMENT RECORDThe Court finds that the motion identifies relevant evidence (including evidence of atenforcement) that could not have been produced or was improperly excluded at the thearing on 3/22/11. The Court will consider this evidence per CCP 1094. Accordinglydocuments attached to the declaration of Mr. Millis are made part of this record.Prior attempts at enforcement are relevant to petitioner’s contention that the ruling ois too unclear to be enforced.The Court finds that a remand to the City for consideration of the new evidence woulAccordingly, the Court will consider this evidence at the hearing in this matter per CC

1094.5(e)6 13-624763LAM VS HUANGMotion: Demurer to Complaint. Moving Party Defendants Residential Credit SoluQuality Loan Service Corporation. Responding Party Plaintiff Trung Lam.Ruling: SUSTAIN DEMURRER TO COMPLAINT AND THE FIRST THROUGH FOURCAUSES OF ACTION WITHOUT LEAVE TO AMENDNo opposition. The demurrer is presumed to have merit.Claims related to obtaining an adjustable mortgage are barred by the Statute of LimiPlaintiff was aware of the alleged fraud when the loan adjusted.CC 2932.5 does not apply to deeds of trust. Jenjins v. J.P. Morgan Chase Bank (2013Cal.App.4 th 497.Claims based on defects in the sale must be accompanied by facts showing that plainpay the entire debt if the sale were set aside otherwise it would be futile to set it asidManagement Corp. v. Eishen (1984) 158 Cal.App.3d 575. Further, plaintiff has not alfacts to show that Huang was not a bona fide purchaser.8 13-647299MEDICI VSNEWPORT COASTAUTOMotion: To Compel Arbitration. Moving Party Defendant Newport Coast Auto. ReParty Plaintiff Jeanne S. Medici.Ruling: GRANT MOTION TO COMPEL ARBITRATION: DEMURRER AND MOTIOSTRIKE ARE MOOTDefendant carried its initial burden of demonstrating a written agreement including afor arbitration that covers the claims raised by plaintiff. Rosenthal v. Great Western FSecurities Corp. (1996) 14 Cal.4 th 394.This arbitration provision was shown to be procedurally unconscionable as it was partcontract of adhesion. Stirlin v. Supercuts, Inc. (1997) 51 Cal.app.4 th 1519. However,also has the burden to demonstrate substantive unconscionability and has not met thThis case differs from Vargas v. SAI Monrovia B, Inc. (2013) 216 Cal.App. 4 th 1269, iVargas agreement contained provisions for a 3 panel arbitration review by the losingdamages exceeded $100,000), an appeal was permitted if the award included injuncthe costs of the panel were to be determined by the arbitrators and repossession wasfrom arbitration. These provisions are not contained in plaintiff’s agreement.Plaintiff has not shown that the arbitral fee provision in her agreement is unconscionaGutierrez v. Autowest, Inc. (2003) 114 Cal.App.4 th 77, the court stated that: “Thedetermination that arbitral fees in consumer cases are unreasonable should be madecase-by-case basis, with the consumer carrying the burden of proof.” Id, at 97. Plaincarry her burden.The civil action is stayed pending completion of this arbitration. CCP 1281.4. An arbireview hearing is set for Monday, February 10, 2014, at 8:30 a.m., in Dept. C9 12-575821BASSETT VS BANKOF AMERICAMotion: Demurrer to First Amended Complaint and Motion To Strike PortionsAmended Complaint. Moving party Defendants Bank of America and ReconTrustCompany. Responding Party Plaintiff Theresa Bessett.Ruling: SUSTAIN DEMURRER TO ALL CAUSES OF ACTION WITH 20 DAYS TO ARequest for judicial notice is granted.The First Cause of Action seems to be based solely on fraud in connection with loaorigination. All such claims, including unconscionability, are time barred per CCP 338337(1) and 13 USC 1640.

The relevant documents were signed on or about 3/5/05. The provision in the Rider s3/5/05 resulting in the increased monthly payment took effect on or about 11/05/06months). The original complaint was filed in or about 6/12. Accordingly, the time betdate Plaintiff admits she had notice of the harm or detriment incurred and the date oin excess of 5 years, well beyond any applicable Statute of Limitations. Plaintiff has nauthority that unconscionability survives a Statute of Limitations challenge. ArmendaFoundation Health Psychcare Services Inc. was concerned with the enforcement of anarbitration provision, not loan circumstance such as this. A case is not authority forpropositions that the court did not consider. Chevron usa, inc., vs. Workers Comp. Ap(1999) 19 Cal.4 th 1182.Plaintiff has not pled specific facts to enable her to escape the tender requirements, esince she has lived at the property payment free for a period of years.The Second Cause of Action for breach of contract seems to be primarily related toorigination. It is uncertain if the alleged modification agreement was separate from thorigination agreement. It is uncertain if the agreement(s) were oral or written. It is uwhat consideration was given or detriment suffered that outweighed the benefit of livhome for years without paying on her loan.The Third and Fourth Causes of Action are also uncertain in that they seem to remodification and how plaintiff detrimentally relied on any promises.The Fifth Cause of Action per B&P 17200 claim fails for lack of description of an uncause of action. She has not alleged facts that entitle her to either restitionary or injurelief.

NOTICELAW AND MOTION PROCEDURES FOR DEPARTMENT C26THE HONORABLE ROBERT D. MONARCHLAW & MOTION IS HEARD ON MONDAYS AT 10:30 A.M.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings by 12:00 p.m. Friday before the Monday date. The rulings will also be postedoutside the courtroom on the bulletin board for those counsels without internet access, no later than 8:30 a.m.on the day of the scheduled motion.The Law & Motion hearings are scheduled on Monday at 10:30 a.m. and all arguments will be heard at that time.No supplemental or additional papers will be allowed to be submitted following posting of the ruling on theinternet, nor will the Court entertain a request for continuance once the ruling has been posted.****** SUBMITTING ON THE COURT’S TENTATIVE RULING*****Notice to be given to the Court and opposing counsel no later than 3:00 p.m. the Friday before theMonday date.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. If youintend to submit on the tentative and do not want oral argument, please call the clerk by calling (657) 622-5226and the prevailing party will give Notice of Ruling or prepare an Order if appropriate per CRC 391.NOTICE TO COUNSEL: Upon filing of motion, moving party shall provide a copy of this procedural notice toopposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because of moving party’sfailure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailing party shall give noticeof the ruling. Prevailing party shall prepare and Order/Judgment for the Court’s signature if the motion isdispositive of the cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or courtroom assistant for clarification of rulings oradditional information. If you are moving party and do not have internet access, you may call the clerk orcourtroom assistant after 1:30 p.m. on the Friday before the scheduled hearing and the ruling will be read toyou.WHEN A CASE MANAGEMENT CONFERENCE IS ALSO SET THE DAY OF A LAW AND MOTION MATTER,UNLESS SPECIFICALLY ADDRESSED OTHERWISE IN THE TENTATIVE RULING, BOTH MATTERS WILL BEHEARD AT 10:30 A.M.TELECONFERENCE APPEARANCESAppearances for Law & Motion and all other hearings except Trial, MSC and VSC hearings are allowed throughCourt Call.LAW AND MOTION CALENDAR8-12-13#4 12-538090NEGRETE-ROMERO VSPROVIDENT FUNDINGGROUPMotion: Leave to File Second Amended Complaint. Moving Party Plaintiffs JosephRomero and Agripin Romero. Responding Party Defendants Provident Funding Group,Funding Associates, LP, Federal Home Loan Mortgage Corporation, Inc., Steven DouglaAmy Lynn Ekstrom.Ruling: DENY MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT WPREJUDICEPlaintiffs have not submitted a proposed Second Amended Complaint per CCP 3.1324(No new parties or causes of action are sought to be added. Leave to amend is not requ

evidentiary matters that might support Plaintiff’s motion.Plaintiffs have not filed a declaration per CCP 3.1324(b) establishing why the amendmnecessary, when facts giving rise to this amendment were discovered and why this mofiled earlier.Moving party to give notice.5 12-539262THI LE VS US BANKNATIONALASSOCIATIONMotion: (1) Demurrer to Third Amended Complaint and (2) Motion to StrikeDefendants U.S. Bank, National Association and Wells Fargo Bank. Responding PaChan Thi Le.Ruling: : SUSTAIN DEMURRER TO THIRD AMENDED COMPLAINT WITHOUT LEAMEND.The request for Judicial Notice is Granted.The objection to Exhibit A is Sustained. The exhibit is not part of the complaint ansubject matter for judicial notice.The specificity required by California law is absent. Plaintiff has not alleged with sufficithe names of the persons making the allegedly fraudulent statements, their authoritywhom they spoke, what was said or wrote and when it was said or written. Lazar v. S(1996) 12 Cal.4 th 631.Plaintiff has failed to sufficiently allege justifiable reliance in connection with the First CSuch reliance on a representation must be an immediate cause of Plaintiff’s conduct, wlegal relations and that absent such representation, he would not have entered into a ltransaction. Conroy v. Regents of the University of Cal. (2009) 43 Cal.4 th 1244.Plaintiff has failed to sufficiently allege a fiduciary relationship in connection with the SThird Causes of Action. An arms length loan transaction does not give rise to a fiduciarbetween borrower and lender. Perlas v. GMAC Mortgage, LLC (2010) 187 Cal.App.4 thPlaintiff has not shown in what manner the complaint can be amended to allege a viabaction. Goodman v. Kennedy (1976) 18 Cal.3d 335.6 12-540121TRAN VS NGUYENMotion: For Summary Judgment/Summary Adjudication. Moving Party DefendaEscrow, Inc., Julie Dao and Tammy Ngo. Responding Party Plaintiff Janine Tran.Ruling: DENY MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONAs to Summary Adjudication, Defendants failed to set forth any issues and/or causes oNotice with such issues and/or causes of action carried over into the Separate Statemeby Rule 3.1350(b) and (d). Therefore defendant’s motion is treated as a Motion for SuJudgment.There is a triable issue as to a material facts as to whether an employee of a corporatiNgo) may be held liable for conduct undertaken within the course and scope of her emPMC, Inc. v. Kasisha (2000) 78 Cal.App.4 th 1368, the Court cited the more recognizedagent is liable for his or her own acts, regardless of whether the principal is also liable.not met her burden to preclude liability as an employee/agent.Defendant Dao concedes that she may be liable as an officer or director for acts in whipersonally participated. The evidence showed that she did in fact participate in some atransaction involving plaintiff. Frances T. v. Village Green Owners Association (1986) 4There is a question of material fact as to whether she knew or reasonably should havesome condition or activity under her control could injure Plaintiff and she negligently faorder appropriate action to avoid the harm. This could include procedures requiring the

signatures on escrow instructions.There is a material issue with respect to whether the exculpatory clauses in these escrare against public policy. Akin v. Business Title Corp. (1968) 264 Cal.App.2 nd 153. Theissue as to whether Defendants have carried their burden to negate Plaintiff’s theory othey failed to verify her signature before disbursing escrow funds.There is also a triable issue of material fact as to whether the 9-23-11 document wascreated and/or forged. Plaintiff testified that her signature appeared on this documentnever saw the document before.7 12-552997THE VILLA BALBOACOMMUNITYASSOCIATION VSRAUSCHMotion: Demurrer to Cross-Complaint. Moving Party Cross-Defendant Villa BalboaAssociation. Responding Party Cross-Plaintiffs Kim Rausch and Gary Rausch, Jr.Ruling: SUSTAIN DEMURRER TO CROSS-COMPLAINT WITH 20 DAYS LEAVE TOThe Cross-Complaint is uncertain.It cannot be determined in Gary Rausch, Jr. is a minor or an adult. In any event, eithethe pleading or a guardian must sign on his behalf, Unless Kim Rausch is an attorney,been established.The causes of action must be numbered sequentially. The uncertainty is enhanced by dputting the case number in the spaces provided in the form pleading for the causes ofIt is uncertain as to whether the claim of defendants for declaratory relief is forward loaccordingly, can be stated in a cause of action for Declaratory Relief. This cause of actbasis to seek damages for past injuries.It is uncertain as to what cause of action is being pled in par. 10 of the form Cross-Comnegligence, breach of contract or some other type of claim?It is uncertain as to when the damages claimed by defendants were discovered. The spdates must be alleged, as some of the claims could be barred by the applicable statutelimitations. The dates are material Corum v. Hartford Acc. & Ind. Co. (1945) 67 Cal.ApProof of Service must comply with CCP 1013(a).Plaintiff/Cross-Defendant to give notice.8 12-562884CHAO VS SHEPPARD9 12-557400OLEA VS HONDAMOTOR COMPANYMotion: To Compel IME and Sanctions. Moving Party Defendant Gail Sheppard. RParty Dwight Chao and Linna Chao.Ruling: GRANT MOTION TO COMPEL IME OF DWIGHT CHAO; GRANT REQUESTSANCTIONS FOR FAILURE TO APPEAR AT APPOINTMENTS; DENY REQUEST FOMONETARY OR TERMINATING SANCTIONS.The parties are directed to meet and confer regarding a new examination date taking iconsideration the trial date. Linna Chao shall pay $600 and Dwight Chao shall pay $1,8appointments to counsel for defendant within 90 days. Other requests for sanctions arfailure to comply with CCP 2023.040. The Notice of Motion fails to specify the person oagainst whom sanctions are sought and what specific evidence and/or terminating sansought.Motion: For Summary Judgment/Summary Adjudication. Moving Party DefendanHonda Motor Co., Honda R&D Americas and Norm Reeves. Responding Party Plaintiff AAlfonso Vera, Noel Vera, a minor through his guardian ad litem, Ana M. Olea, Misael Vthrough his guardian ad litem, Ana M. Olea, Johnny Vera, a minor through his guardiaM. Olea.Ruling: : DENY MOTION FOR SUMMARY JUDGMENT/ADJUDICATION.

While defendants have carried their initial burden on manufacturing defect, there are tmaterial fact in regard to whether critical undercarriage steering and suspension vehiccomponents were sufficiently protected from being compromised by a forseeable road(Declaration of Gerald Rosenbluth setting forth probable theories of liability. He sets fodiscovery matters that need to be completed before he could finalize his opinions. Whithe opinions are deemed sufficient to raise a triable issue of material fact as to whethecaused Mr. Aniceto to be unable to drive his 2010 Honda Fit out of the fast lane onto tthe 91 Freeway after striking debris. (Undisputed Material Facts Numbers 7 & 11).There is a triable issue of material fact as to whether co-defendant Alvarado was drivinMalibu at a rate of speed that would result in her actions being a superseding cause. (PResponse to Honda’s Undisputed Material Facts Numbers 14, 30, 66 and 69). Was herunusual or extraordinary, not reasonably likely to happen and hence not foreseeable btraveling at an extraordinary high rate of speed or was it reasonably foreseeable if sheat or about the speed limit? The cases cited by defendants involve criminal acts and ardistinguishable. Further, even if she were traveling at a high rate of speed, it does notstriking the disables Honda highly unusual or extraordinary such as to be a supersedinDefendants have not established that plaintiffs cannot reasonably obtain evidence thatbeen established as shown by the preliminary opinion of plaintiff’s expert, Gerald RoseDefendant’s evidentiary objections are OVERRULED. Objections must be to the ethe separate statements. Defendants have not objected to the evidence as required by3.1354(b) nor are they numbered as required by this Rule.Moving parties to give notice.10 12-572462ROS VS CHAOMotion: To Compel Deposition of Attorney Brandwein. Moving Party Defendant CD.O. Responding Party Plaintiffs Somaly Ros and Nathan Ros and Attorney Steven I. BRuling: MOTION TO COMPEL DEPOSITION IS MOOTAttorney Brandwein appeared for his deposition on 6-24-13 and produced a privilegerenders the pending motion moot. Defendant now seeks to compel further answers froBrandwein. This requires another separate motion in compliance with CCP 2025.480(ahas not complied with the procedural requirements for such motion including a noticedmeet and confer declaration and a separate statement per Rule 3.1354(a)(4) and (c).Moving party to give notice.11 12-579906LIZZA VS PLATTMotion: Summary Judgment or Adjudication. Moving Party Defendants Catalina Iand Warren Platt. Responding Party Plaintiff Tibero Lizza.Ruling: GRANT MOTION FOR SUMMARY JUDGMENT; MOTION FOR SUMMARYADJUDICATION IS MOOT.Defendants have met their initial burden to establish the elements of CC 47(c), privilegcommunications between interested persons without malice: 1) Defendants had an insending the letter to explain their refusal to comply with the clubs’ reciprocity agreemeCatalina’s long-standing relationship with St. Francis. (Platt declaration paragraphs 2,St. Francis had an interest in the reasons that reciprocity was not extended because itenforce the reciprocity agreement by introducing Plaintiff. (Platt declaration paragraphin Plaintiff’s behavior at Defendants’ club is evident because of Plaintiff’s judicial admissuspended his membership for two years based on the letter. (Complaint, paragraph 1Defendants had non-malicious reasons for sending the letter and a belief that the persfor the facts stated therein were credible, trustworthy and reliable. (Platt declaration pand 11). Plaintiff presents no evidence that Mr. Platt or any member of the board of D

12 12-591407SECAREA VS IRVINEREGIONAL HOSPITALAND MEDICALCENTERof any bias on the part of the witness they relied upon. Mr. Platt testified that he didn’Plaintiff when he wrote the letter and had no ill will toward him. (Platt declaration paraTherefore, there is admissible evidence establishing that the letter is privileged. Plaintipresented evidence to raise a question of fact regarding these elements. Further, priviaddressed in the opposition.Defendants’ objections 1-5 are Overruled. No ruling is required on objections in astatement. Hodjat v. State Farm Mut. Auto. Ins. Co.(2012) 211 Cal.App.4 th 1.Motion: Demurrer to First Amended Complaint and Motion to Strike. Moving PaIrvine Regional Hospital. Responding party Plaintiff Valer Secarea.Ruling: SUSTAIN DEMURRER TO FIFTH CAUSE OF ACTION TO FIRST AMENDEDCOMPLAINT WITHOUT LEAVE TO AMEND. GRANT MOTION TO STRIKE ONLY ITPRAYER WITHOUT LEAVE TO AMEND.Request for Judicial Notice is Granted.The court has exercised its discretion to consider the Demurrer and Motion to Strike. J(2011) 192 Cal.App.4 th 742.Wanton and Reckless Misconduct is not a separate cause of action, but is an aggravatenegligence. Plaintiff has not sufficiently alleged the elements of this form of negligenceDowds (2007) 152 Cal.App.4 th 518. It appears that Plaintiff has redrafted paragraphs 1Fifth Cause of Action without significant changes. Negligence has already been pled inof Action.CCP 425.13 is inapplicable in these proceedings. The purpose of storage of the deceaswas not to provide, or related to the provision, of medical care.It appears that the claim for punitive damages is bases on discovery responses in themalpractice action. Trial tactics and litigation conduct may not be used to impose punia tort action. De Anza Santa Cruz Mobile Estates Homeowners Assn. v. De Anza SantaEstates (2001) 94 Cal.App.4 th 890.Plaintiff did not sufficiently allege the requirements for corporate responsibility for punCCP 3294(b). Conclusory characterization of defendant’s conduct as intentional, willfulis patently insufficient to establish oppression, fraud or malice. Brosseau v. Jarrett (19Cal.App.3d 864.The Motion to Strike items 1 – 8, is DENIED. The use of the motion to strike shouand sparing. The courts do not intend to create a procedural line item veto for civil defInc. v. Superior Court (1995) 33 Cal.App.4 th 1680.Defendant shall file an Answer to the First Amended Complaint within 15 days13 12-596260CLARK VSRICHARDSONMotion: Permit Representation. Moving Party Non-Party Marie Prince. RespondingRuling: DENY MOTION FOR PERMISSION TO ACT AS PERSONAL REPRESENTATWITHOUT PREJUDICEThe addendum to the motion filed on 7/11/13, establishes that Marie Prince is NOT a bthe Buddy Clark trust. The 7/16/13, amendment refers to Ms. Prince as a trustee andExhibit 1, referred to in the addendum which might clarify the ambiguity was not attacthis addendum identifies the decedent’s daughter, Katie Clark, who might be the residbeneficiary and would have standing to act as personal representative. At this time, thMs. Prince as to her status is conclusory and refuted by the addendum.It appears that the only paper served on defendant was the addendum and perhaps at

address.This denial is without prejudice to move in the Probate Court to be appointed Guarif Katie Clark is a minor or incompetent.14 13-643234Motion for Reconsideration to be heard by Temporary Judge James Loveder.PLAZA POINTEOWNERSASSOCIATION VSMSS PROPERTIESSPECIAL PURPOSE IIMotion: Sanctions. Moving Party Plaintiff Plaza Point Owners Association. RespondinDefendants MSS Properties Special Purpose II.Ruling: DENY MOTION FOR SANCTIONS.CCP 128.7 appears to be the sole basis for the request for sanctions. This is not authoaward of sanctions for the failure to obey departmental rules. The alleged violation waprovide a copy of the Rules in connection with the filing of the Motion to Quash. The dRule with respect to submitting on the tentative ruling does not provide the basis for sSanctions are provided for in the NOTICE TO COUNSEL, which requires the moving para copy of this procedural notice to opposing counsel”. In short, the requirement to proprocedural notice is substantively different from the directive regarding submission onruling. Further, there is no showing that plaintiff was injured by the failure to serve no26’s Rules.Procedurally, per CCP 128.7(c), the moving party must serve the sanction motion 21 dfiling it. The motion was served on 6/26/13 and filed on 6/27/13. This is another basimotion.

NOTICELAW AND MOTION PROCEDURES FOR DEPARTMENT C26THE HONORABLE ROBERT D. MONARCHLAW & MOTION IS HEARD ON MONDAYS AT 10:30 A.M.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings by 12:00 p.m. Friday before the Monday date. The rulings will also be postedoutside the courtroom on the bulletin board for those counsels without internet access, no later than 8:30 a.m.on the day of the scheduled motion.The Law & Motion hearings are scheduled on Monday at 10:30 a.m. and all arguments will be heard at thattime. No supplemental or additional papers will be allowed to be submitted following posting of the ruling on theinternet, nor will the Court entertain a request for continuance once the ruling has been posted.****** SUBMITTING ON THE COURT’S TENTATIVE RULING*****Notice to be given to the Court and opposing counsel no later than 3:00 p.m. the Friday before theMonday date.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. If youintend to submit on the tentative and do not want oral argument, please call the clerk by calling (657) 622-5226 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate per CRC 391.NOTICE TO COUNSEL: Upon filing of motion, moving party shall provide a copy of this procedural notice toopposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because of movingparty’s failure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailing party shallgive notice of the ruling. Prevailing party shall prepare and Order/Judgment for the Court’s signature if themotion is dispositive of the cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or courtroom assistant for clarification of rulings oradditional information. If you are moving party and do not have internet access, you may call the clerk orcourtroom assistant after 1:30 p.m. on the Friday before the scheduled hearing and the ruling will be read toyou.WHEN A CASE MANAGEMENT CONFERENCE IS ALSO SET THE DAY OF A LAW AND MOTION MATTER,UNLESS SPECIFICALLY ADDRESSED OTHERWISE IN THE TENTATIVE RULING, BOTH MATTERS WILLBE HEARD AT 10:30 A.M.TELECONFERENCE APPEARANCESAppearances for Law & Motion and all other hearings except Trial, MSC and VSC hearings are allowed throughCourt Call.LAW AND MOTION CALENDAR8-5-13#1 12-538959CALIFORNIA STATELANDS COMMISSIONVS FRANK M. SINGER2 12-4630PAHNOS VS CITY OFLAGUNA BEACHMotion: To Correct Administrative Record. Moving Party Petitioners David PahnosStephens. Responding Party Respondent City of Laguna Beach.Ruling: GRANT MOTION TO AUGMENT RECORDThe Court finds that the motion identifies relevant evidence (including evidence of atte

enforcement) that could not have been produced or was improperly excluded at the tihearing on 3/22/11. The Court will consider this evidence per CCP 1094. Accordingly,documents attached to the declaration of Mr. Millis are made part of this record.Prior attempts at enforcement are relevant to petitioner’s contention that the ruling ofunclear to be enforced.The Court finds that a remand to the City for consideration of the new evidence wouldAccordingly, the Court will consider this evidence at the hearing in this matter per CCP6 13-624763LAM VS HUANGMotion: Demurer to Complaint. Moving Party Defendants Residential Credit SQuality Loan Service Corporation. Responding Party Plaintiff Trung Lam.Ruling: SUSTAIN DEMURRER TO COMPLAINT AND THE FIRST THROUGH FOUROF ACTION WITHOUT LEAVE TO AMENDNo opposition. The demurrer is presumed to have merit.Claims related to obtaining an adjustable mortgage are barred by the Statute of Limitawas aware of the alleged fraud when the loan adjusted.CC 2932.5 does not apply to deeds of trust. Jenjins v. J.P. Morgan Chase Bank (2013)Cal.App.4 th 497.Claims based on defects in the sale must be accompanied by facts showing that plaintthe entire debt if the sale were set aside otherwise it would be futile to set it aside. ArManagement Corp. v. Eishen (1984) 158 Cal.App.3d 575. Further, plaintiff has not alleshow that Huang was not a bona fide purchaser.8 13-647299MEDICI VSNEWPORT COASTAUTOMotion: To Compel Arbitration. Moving Party Defendant Newport Coast Auto. ResPlaintiff Jeanne S. Medici.Ruling: GRANT MOTION TO COMPEL ARBITRATION: DEMURRER AND MOTIONARE MOOTDefendant carried its initial burden of demonstrating a written agreement including a parbitration that covers the claims raised by plaintiff. Rosenthal v. Great Western FinanCorp. (1996) 14 Cal.4 th 394.This arbitration provision was shown to be procedurally unconscionable as it was partof adhesion. Stirlin v. Supercuts, Inc. (1997) 51 Cal.app.4 th 1519. However, plaintiff aburden to demonstrate substantive unconscionability and has not met this burden. Thfrom Vargas v. SAI Monrovia B, Inc. (2013) 216 Cal.App. 4 th 1269, in that the Vargascontained provisions for a 3 panel arbitration review by the losing party (if damages e$100,000), an appeal was permitted if the award included injunctive relief, the costs owere to be determined by the arbitrators and repossession was exempt from arbitratioprovisions are not contained in plaintiff’s agreement.Plaintiff has not shown that the arbitral fee provision in her agreement is unconscionabGutierrez v. Autowest, Inc. (2003) 114 Cal.App.4 th 77, the court stated that: “The detthat arbitral fees in consumer cases are unreasonable should be made on a case-by-cathe consumer carrying the burden of proof.” Id, at 97. Plaintiff did not carry her burdeThe civil action is stayed pending completion of this arbitration. CCP 1281.4. An arbitreview hearing is set for Monday, February 10, 2014, at 8:30 a.m., in Dept. C-9 12-575821BASSETT VS BANKOF AMERICAMotion: Demurrer to First Amended Complaint and Motion To Strike PortionsAmended Complaint. Moving party Defendants Bank of America and ReconTrustCompany. Responding Party Plaintiff Theresa Bessett.Ruling: SUSTAIN DEMURRER TO ALL CAUSES OF ACTION WITH 20 DAYS TO A

Request for judicial notice is granted.The First Cause of Action seems to be based solely on fraud in connection with loanAll such claims, including unconscionability, are time barred per CCP 338(d), CCP 337(USC 1640.The relevant documents were signed on or about 3/5/05. The provision in the Rider si3/5/05 resulting in the increased monthly payment took effect on or about 11/05/06.The original complaint was filed in or about 6/12. Accordingly, the time between the dadmits she had notice of the harm or detriment incurred and the date of filing is in excyears, well beyond any applicable Statute of Limitations. Plaintiff has not cited authoriunconscionability survives a Statute of Limitations challenge. Armendariz vs. FoundatPsychcare Services Inc. was concerned with the enforcement of an arbitration provisiocircumstance such as this. A case is not authority for propositions that the court did noChevron usa, inc., vs. Workers Comp. Appeals Bd. (1999) 19 Cal.4 th 1182.Plaintiff has not pled specific facts to enable her to escape the tender requirements, esshe has lived at the property payment free for a period of years.The Second Cause of Action for breach of contract seems to be primarily related toorigination. It is uncertain if the alleged modification agreement was separate from thorigination agreement. It is uncertain if the agreement(s) were oral or written. It is unconsideration was given or detriment suffered that outweighed the benefit of living inyears without paying on her loan.The Third and Fourth Causes of Action are also uncertain in that they seem to relamodification and how plaintiff detrimentally relied on any promises.The Fifth Cause of Action per B&P 17200 claim fails for lack of description of an undof action. She has not alleged facts that entitle her to either restitionary or injunctive

NOTICELAW AND MOTION PROCEDURES FOR DEPARTMENT C26THE HONORABLE ROBERT D. MONARCHLAW & MOTION IS HEARD ON MONDAYS AT 10:30 A.M.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings by 12:00 p.m. Friday before the Monday date. The rulings will also be postedoutside the courtroom on the bulletin board for those counsels without internet access, no later than 8:30 a.m. onthe day of the scheduled motion.The Law & Motion hearings are scheduled on Monday at 10:30 a.m. and all arguments will be heard at that time.No supplemental or additional papers will be allowed to be submitted following posting of the ruling on theinternet, nor will the Court entertain a request for continuance once the ruling has been posted.****** SUBMITTING ON THE COURT’S TENTATIVE RULING*****Notice to be given to the Court and opposing counsel no later than 3:00 p.m. the Friday before theMonday date.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. If you intendto submit on the tentative and do not want oral argument, please call the clerk by calling (657) 622-5226 and theprevailing party will give Notice of Ruling or prepare an Order if appropriate per CRC 391.NOTICE TO COUNSEL: Upon filing of motion, moving party shall provide a copy of this procedural notice toopposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because of moving party’sfailure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailing party shall give notice ofthe ruling. Prevailing party shall prepare and Order/Judgment for the Court’s signature if the motion is dispositiveof the cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or courtroom assistant for clarification of rulings oradditional information. If you are moving party and do not have internet access, you may call the clerk orcourtroom assistant after 1:30 p.m. on the Friday before the scheduled hearing and the ruling will be read to you.WHEN A CASE MANAGEMENT CONFERENCE IS ALSO SET THE DAY OF A LAW AND MOTION MATTER,UNLESS SPECIFICALLY ADDRESSED OTHERWISE IN THE TENTATIVE RULING, BOTH MATTERS WILL BEHEARD AT 10:30 A.M.TELECONFERENCE APPEARANCESAppearances for Law & Motion and all other hearings except Trial, MSC and VSC hearings are allowed throughCourt Call.LAW AND MOTION CALENDAR8-19-13#1 11-453341FIRST BANK VSPACIFIC PARADISENURSERYTENTATIVE: GRANT MOTION TO APPROVE RECEIVER’S FINAL ACCOUNT AND RAPPROVE RECEIVER’S FEES, DISTRIBUTE FUNDS, DISCHARGE RECEIVER ANDRECEIVER’S BOND.No opposition. The receiver as acted pursuant to the stipulation.The Receiver shall lodge and serve an order in the form of the current proposed ordershall reflect Robert D. Monarch as the presiding judicial officer and that no opposition hreceived. If electronically served, proof of service must reflect the attorneys served an

email numbers/designations.3 12-590920PARK VS KIM4 12-615024PEDERSEN VSRESCARE5 13-623929RIOS VS KERR6 13-625475 JM VSCAPISTRANO UNIFIEDSCHOOL DISTRCTTENTATIVE: GRANT MOTION TO COMPEL DEPOSITION OF MOON SOO KIM; DETO COMPEL DEPOSITION OF M&S PAINTING MAINTENANCE, INC., WITHOUT PGRANT SANCTIONS AGAINST MOON SOO KIM IN THE SUM OF $1,000; DENY RFURTHER SANCTIONS.The Substitution of Attorney filed on 3/28/13, purporting to substitute defendant M&SMAINTENANCE, INC., in pro per in place of attorney John A. Axtell of J.J. KIM & ASSOChereby stricken. As shown on the face of the substitution a corporation may NOT act aattorney. J.J. KIM & ASSOCIATES, PC, remains as attorney of record for this defendantsubstitution is filed. Mr. Axtell of J.J. KIM & ACCOCIATES, PC, appears to recognize thishis filing, on 7/26/13, a Request For Dismissal of the First Amended Cross-Complaint pKIM & ASSOCIATES, PC, on behalf of said corporate defendant.Since the substitution was ineffective, so was the service of the corporation at the addthe invalid substitution. Any further motions involving this defendant must be served oASSOCIATES, PC, until a proper substitution is established. Plaintiff was aware of the eto withdraw shortly after the deposition notice was served, there was no attempt to coprior to the deposition to confirm his appearance or confirm an alternate date. It doesthere was a need to hire a reporter and obtain an affidavit of non-appearance. Counsewould have been sufficient. Of note is that neither of the Reporter’s Affidavits are signeunclear why it was necessary to set two depositions when it was clear from the circumcase that Mr. Kim was the PMK for the corporation. His deposition should have been taPMK deposition set for a later time only if there were facts to show that some other peknowledgeable about some aspect of the case.Defendant shall give notice to J.J. KIM & ASSOCIATES, PC.CASE MANAGEMENT CONFERENCETENTATIVE: GRANT REQUEST FOR JUDICIAL NOTICE; GRANT MOTION OF RESAND RSCR CALIFORNIA TO STRIKE IN ITS ENTIRETY WITHOUT LEAVE TO AMEMOTION OF MR. SCHEESSELE TO STRIKE WITH 30 DAYS TO AMEND.Plaintiffs have not complied with the pleading requirements of CC 3294(b). Punitive darespect to the corporations have not been sufficiently alleged. Since this is the third atplaintiffs, the motion is granted without leave to amend. (Welf. & Inst. Code 15657(c))would also apply to Mr. Scheessele and Ms. Vargo as employees. Since Mr. Scheesselethe issue of lack of pleadings regarding him, plaintiffs will be given another opportunityrespect to him alone. Facts have been alleged to support a claim for punitive damagesindividual liability, but there were no facts alleged to show that Mr. Scheessele was invthe alleged actions.The contentions of defendants regarding CCP 425.13 is rejected. The statute does notElder/Dependant Adult Abuse. (Covenant Care v. Superior Court (2004) 32 Cal.4 th 771TENTATIVE: GRANT MOTION TO WITHDRAW AS COUNSEL; DENY MOTION TODEPOSITION WITHOUT PREJUDICE; DENY REQUESTS FOR SANCTIONS.No opposition to the motion to withdraw. Accordingly, the motion is presumed to haveDefendant Kerr’s Notice of Deposition, which included a Request for Production of Docuinclude a declaration setting forth facts demonstrating “good cause” for such productioCCP 2025.420(b)(1). However, defendant had substantial justification for bring the monotwithstanding the procedural defect. The fact that plaintiff Rios has returned to Mexgrounds for failing to stay in contact with his lawyer and/or failing to respond to discovlitigation he commenced in this court.The court orders that the Case Management Conference be CONTINUED to Monday, 9-a.m. in Department C-26. Plaintiff Rios is ordered to appear or appear by newly retainethis Case Management Conference. Defendant Kerr to give notice to plaintiff Hector Riknown address as set forth in plaintiff counsel’s Notice of Motion to Withdraw.TENTATIVE: SUSTAIN DEMURRER TO FIRST AMENDED COMPLAINT WITH 20 DTO AMEND.Plaintiff has not established a causal connection between the alleged negligence of this

7 13-628124CENTRAL MEDICALDIAGNOSTICLABORATORY VSPATCHETTdefendant and the injuries sustained by plaintiff resulting from a sexual assault, on a dJanuary, 2012, when plaintiff was allegedly to report to Brain Builders rather than somschool program. Defendant is entitled to greater specificity at the pleading stage to enaproperly answer or otherwise plead. On what date did plaintiff arrive at defendant’s aftprogram? Zumbrun v. University of California (1972) 25 Cal.App.3d 1. Also, the allegawas a duty owed plaintiff because he was a minor in conclusory. Daar v. Yellow Cab CoCal.2d 666. Finally, plaintiff has cited no authority that a private company operating aprogram that it has a general duty such as is imposed upon school employees and theper Education Code 44087, to supervise the school premises. What is the basis to impothis defendant before plaintiff arrived at the after school program?Moving party to give notice.CASE MANAGEMENT CONFERENCETENTATIVE: SUSTAIN DEMURER TO 3 RD , 4 TH , 5 TH , 6 TH , 8 TH AND 9 TH CAUSES OF20 DAYS TO AMEND; OVERRULE DEMURRER TO 1 ST ,2 nd , 7 TH AND 10 TH CAUSES OCauses of Action 1,2,4,5,6,7,8 and 9 are not preempted by The California Uniform TradThe 1 st and 2 nd Causes of Action are based on contract and the others do not involve thof facts as trade secret misappropriation. K.C. Multimedia, Inc. v. Bank of America TecOperations, Inc. (2009) 171 Cal.App.4 th 263.With respect to the 1 st Cause of Action, Plaintiff is apparently relying upon delayed discalleged breach of contract and merely alleges, “within the last four years”. Plaintiff mutime and manner of discovery and the inability to have made earlier discovery despitediligence.The 2 nd Cause of Action is sufficiently alleged. The client data base was sufficiently allesecret. (cf. 10 th Cause of Action)The 3 rd Cause of Action also appears to rely upon delayed discovery.With respect to the 4 th and 6 th Causes of Action, (Intentional Interference With Contrasufficient allegations regarding unlawful action are missing. Metro Traffic Control, Inc.Traffic Network (1994) 22 Cal.App.4 th 853.With respect to the 5 th and 6 th Causes of Action (Interference With Contractual RelationInterference With Prospective Economic Advantage) there is no sufficient showing of anwrongful act. San Jose Const. Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4 th 1528.The 7 th Cause of Action for an Accounting is sufficiently alleged. Fiduciary relationship wthat requires an accounting; that the balance due to misappropriation can only be asceaccounting. Teselle v. Mc Loughlin (2009) 173 Cal.App.4 th 156.With respect to the 8 th Cause of Action, Constructive Trust is a remedy, not a cause ofdemurrer to this alleged Cause of Action is sustained without leave to amend. Stansfie(1990) 220 Cal.App.3 rd 59.With respect to the 9 th Cause of Action for Unfair Practices, the plaintiff must allege thereasonable particularity to support the statutory elements of the violation. Conclusorythe acts of defendant were unfair, unlawful and/or fraudulent are insufficient. Khoury vCalifornia, Inc.(1993) 14 Cal.App.4 th 612.Plaintiff has sufficiently alleged the 10 th Cause of Action for Misappropriation of Trade Salleges that the data base was accrued over a long period of time at substantial cost, iconfidential to certain employees, it was unavailable to the public and would be of greacompetitiors. Morlife, Inc. v. Perry (1997) 56 Cal.App.4 th 1514.8 13-632436JOHNSON VS COSBYCASE MANAGEMENT CONFERENCETENTATIVE: SUSTAIN DEMURRER TO FIRST AMENDED COMPLAINT WITH 20 DAMEND; GRANT MOTION FOR JOINDER.Grant defendant Black’s Request for Judicial Notice with respect to the documents idenfor the truth of the matter asserted therein.Cross-complainant has failed to comply with the provisions of the Minute Order entered20-13, requiring cross-complainant to comply with item 8 of the Judicial Council Form“The following causes of action are attached and the statements above apply to each (must have one or more causes of action attached): There were no causes of action attinfers from her opposition that Ms. Cosby has relevant documentation in her possessiowill finally file a proper cross-complaint. In light of the joinder, the demurrer is sustain

9 13-638323COSBY VS JOHNSON10 13-641101FIRE INSURANCEEXCHANGE VSFLUIDMASTER11 13-645927MOTA VS NATIONALUNION FIREINSURANCECOMPANY OFPITTSBURGH,PENNSYLVANIAto both cross-defendants.In light of the above ruling, the Case Management Conference is continued to 10-28-1Dept. C-26. Moving parties to give notice.Defendant Black shall give notice.CASE MANAGEMENT CONFERENCETENTATIVE: SUSTAIN DEMURRER WITHOUT LEAVE TO AMEND; GRANT MOTIOJOINDER.Respondent Black filed a civil action for Declaratory Relief on 2-21-13, which is less thaservice of the arbitrator’s award on 1-24-13. The filing of such civil action serves a trianon-binding attorney’s fees arbitration award. Bus. & Prof. Code 6204(c). Accordinglyaward has been vacated and this matter should proceed to trial in the related civil actioLosse (1991) 54 Cal.3 rd 723.ADR-104 and ADR-105 provide that use of judicial council forms to implement a trial doptional and not mandatory.Any agreement between and attorney and client to binding arbitration of a fee disputeafter the fee dispute has arisen. In this matter, the fee dispute agreement was entereddispute arose. Accordingly, under Rules 5 of the Orange County Bar Association, RulesMandatory Fee Arbitration, the arbitration award is not binding notwithstanding a contrthe retainer agreement.The Requests for Judicial Notice are granted per Evidence Code 452(d) and Day v. ShaCal.App.3 rd 904, however, these documents are not received as to the truth of the mattherein.In light of the joinder, the demurrer is sustained without leave to amend as to both deThe Case Management Conference is continued to 10-28-13, at 8:30a.m., in Dept. C-2with the related case.Respondent Black shall give notice.TENTATIVE: OVERRULE DEMURRER; RESPONSIVE PLEADINGS TO BE FILED WDAYS.The court agrees with defendants that the circumstances of this case are more closelyAnaya v. Superior Court (1984) 160 Cal.App.3 rd 228, than in the cases relied upon byAnderson (2012) 207 Cal.App.4 th 826; Coleman v. Twin Coast Newspaper, Inc. (1959)650). Plaintiff’s sufficiently allege a common defect injuring all four insureds. Althoughin the complaint may require liberal construction, the substance of the complaint relateinherent in a plastic coupling nut that resulted in the circumferential fracturing of this pdamage to all four properties. In the event discovery uncovers substantially different cdefendant may move for appropriate relief. The procedural aspects involved in this litigmore prejudicial to defendant than four separate lawsuits.TENTATIVE: GRANT MOTION TO SET ASIDE ENTRY OF DEFAULT; THE PROPOSIS DEEMED FILED AND SERVED.The court has exercised its discretion to consider late filed documents. Plaintiff may haa Sur-Reply if she wishes. In the event plaintiff elects to file a Sur-Reply, this motion wunder submission. Plenger v. Alza Corp. (1992) 11 Cal.App.4 th 349.As indicated in the Tentative Ruling, the court is inclined to grant the motion based upopolicy to allow matters to proceed on their merits. Elston v. City of Turlock (1985) 38 Cdeclarations, in their entirety, indicate that there was excusable neglect. Upon learningNational Union acted diligently under the circumstances. Henderson v. Pacific Gas and(2010) 187 Cal.App.4 th 215.If plaintiff elects to file a Sur-Reply this motion will be continued for two weeks. If not,give notice of the hearing date for the demurrer.

as provided for by Civil Code § 3295(c). Moving party to give notice.Plaintiff’s Evidentiary Objections: Plaintiff Lopez filed evidentiary objections to decsubmitted in opposition to plaintiff’s motion for leave to conduct punitive damages disDeclaration of Dr. Joel Bartlett: OVERRULED as to Objection Nos. 1, 4 and 5. SUSTObjection Nos. 2, 3, 6 and 7. Declaration of Dr. William Klein: OVERRULED as to O6 and 7. SUSTAINED as to Objection Nos. 2, 3, 4, 5 and 8.3 Wood v. Mitchell TENTATIVE: GRANT MOTIONS TO COMPEL DISCOVERY; SANCTIONS OF $975AWARDED AGAINST PLAINTIFF.The Motion to Compel Further Responses to Form Interrogatories is GRANTED. Withindays, Plaintiff shall respond without objection. The term “Incident” shall be defined aand subsequent performance of the lighting product.” This interrogatory is not vagueThe Motion to Compel Further Responses to Special Interrogatories No. 1, 2 & 8 isGRANTED. Within twenty (20) days, Plaintiff shall respond without objection. These SInterrogatories are routine. Information concerning manufacturer, wholesaler and warelevant. Plaintiff failed to establish trade secret or confidential business information.The Motion to Compel Further Responses to Request for Production of Documents Nos16, 17 & 21 is GRANTED. Within twenty (20) days, Plaintiff shall respond without objeProduction is limited to documents, which relate to the type of Lighting Product involvlitigation. This information is relevant or could lead to admissible evidence.5 Bajorek v. PNC Bank,N.A., et al.Within twenty (20) days, Plaintiff shall pay sanctions in the sum of $975.00.TENTATIVE: SUSTAIN DEMURRER TO SECOND AMENDED COMPLAINT WITHOUAMEND; GRANT MOTION TO STRIKE PROVISIONS OF THE SECOND AMENDEDWITHOUT LEAVE TO AMEND.No opposition. Demurrer and Motion are presumed to have merit. Despite being advispleading defects, plaintiffs have not addressed the defects in the amended pleading.As to the Bajorek plaintiffs first and second causes of action for breach of written agreplaintiffs have again not pled sufficient facts as to why their breaches of the DOT andexcused. See, Durell v. Sharp Healthcare (2010) 183 Cal.App.4 th 1350, 1367 (excusesspecifically.) As to the Bajorek plaintiffs’ third cause of action for fraud, plaintiffs haveas to actual and justifiable reliance. In Goldrich v. Natural Y Surgical Specialties (1994Cal.App.4 th 772, the court re-affirmed that: “To withstand a demurrer, the facts constelement of the fraud must be alleged with particularity, and the claim cannot be salvareferences to the general policy favoring liberal construction of pleadings. (Citations omat 782. The Bajorek plaintiffs have not alleged sufficient facts as to the alleged misrepwho made them, when, the method of communication and similar facts. Also, in WilhePrice, Williams & Russell (1986) 186 Cal.App.3d 1324, the court stated that: “Plaintiffs‘actual’ reliance, i.e., that the representation was an ‘immediate cause’ that altered threlations. (Citations omitted.)” Id., at 1331 to 1332. The Bajorek plaintiffs have not plany actual and/or justifiable reliance. Further, the Bajorek plaintiffs have not filed anyand/or set forth additional facts that they can plead to state proper causes of action focontract and/or fraud as it is plaintiffs’ burden to do to support leave to amend. See, H(1991) 54 Cal.3d 723, 742. Thus the demurrer by defendants PNC Bank and DeutscheBajorek plaintiffs’ second amended complaint is sustained without leave to amend.62) The motion to strike the Bajorek plaintiffs’ claims for punitive damages in plaintiffs’amended complaint by defendant PNC Bank and Deutsche Bank is GRANTED without lamend. Plaintiffs’ contract causes of action will not support a claim for attorney’s fees.Building Industries, Ltd. v . Interface Technology, Inc. (1993) 13 Cal.App.4 th 949, 960fraud cause of action can support a claim for punitive damages, plaintiffs have not allefacts with particularity to support such a claim. See, Smith v. Superior Court (1992) 11033, 1041 to 1042. Hence no cause of action has been stated to support a claim for pdamages.

7 Schmidt v. ING BankFSBTENTATIVE: SUSTAIN DEMURRER TO COMPLAINT WITH 20 DAYS LEAVE TO ANo opposition. Demurrer is presumed to have merit.10 Noble v. FirstChristian ChurchDefendant Capital One’s demurrer to plaintiff Schmidt’s complaint is SUSTAINED.As to plaintiff Schmidt’s first cause of action for fraud, second cause of action for wronforeclosure and fourth cause of action for violation of Bus. & Prof. Code § 17200, plaingranted only conditional leave to amend, pursuant to C.C.P. § 472a(c), if plaintiff canthat he or the Harrisons restored everything of value to ING Bank to effect an actual rthe debt secured by the deed of trust.Rescission of a deed of trust requires restoration of all of the benefits received. See, C1691(b) and Burgess v. Security-First Nat. Bank of Los Angeles (1941) 44 Cal.App.2dSimply sending a letter claiming fraud and a right to rescind does not cause any rescisdebt secured by a deed of trust. Also, plaintiff needs to plead facts as to purportedmisrepresentations by defendant Capital One and facts as to actual and justifiable reliaplaintiff with casually related damages. See, Goldrich v. Natural Y Surgical SpecialtiesCal.App.4 th 772, 782 to 783. Further, with no facts evidencing a proper rescission, plahas not alleged facts as to defendant Capital One lacking authority to foreclose. See, GCountrywide Home Loans, Inc. (2011) 192 Cal.App.4 th 1149, 1155. Finally, defendantdemurrer to plaintiff Schmidt’s third cause of action for civil conspiracy is sustained, wamend, because civil conspiracy is a doctrine and not a cause of action. See, See, AppEquipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4 th 503, 510 to 511. Relatedfacts as to some conspiracy between defendant Capital One and co-defendant IntegraServices have not been stated with the specificity and particularity required. See, FaviMuchin Roseman LLP (2010) 188 Cal.App.4 th 189, 211. Moving party to give notice.TENTATIVE: DENY MOTION FOR PROTECTIVE ORDERPlaintiff has complied with CCP 2034.210 and related statutes. CCP 2034.250 provideslimitation of employed or retained experts. Defendant cites no authority that specificalthe court to order plaintiff to unilaterally limit the number of non-retained expert witnpre-trial stage. In Kaluba v. Gray (2002) 95 Cal.App.4 th 1416, cited by defendant, thethe number of non-retained experts only because the plaintiff failed to designate thesebefore trial. Schreiber v. Estate of Kiser (1999) 22 Cal.4 th 31, refers to plaintiff’s reliandiscovery responses to identify witnesses. It is not analogous to the circumstances ofPlaintiff has complied with CCP 2034.260 by listing the name and address of all 18 ofretained experts expected to testify at trial.Defendant cannot presume to limit the witnesses identified by plaintiff because it disagplaintiff’s trial strategy before the court knows what the evidence is. Defendant reliesconclusions, not specific facts, to support its request. Defendant’s arguments are morebrought to the attention of the court through Motions in Limine or trial objections as pEvidence Code 723.

Rulings 1http://www.occourts.org/tentativerulings/glewisrulings.htmPage 1 of 69/5/2013NOTICELAW AND MOTION PROCEDURES FOR DEPARTMENT C26THE HONORABLE ROBERT D. MONARCHLAW & MOTION IS HEARD ON MONDAYS AT 10:30 A.M.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings by 12:00 p.m. Friday before the Monday date. The rulings willalso be posted outside the courtroom on the bulletin board for those counsels without internetaccess, no later than 8:30 a.m. on the day of the scheduled motion.The Law & Motion hearings are scheduled on Monday at 10:30 a.m. and all arguments will beheard at that time. No supplemental or additional papers will be allowed to be submittedfollowing posting of the ruling on the internet, nor will the Court entertain a request forcontinuance once the ruling has been posted.****** SUBMITTING ON THE COURT’S TENTATIVE RULING*****Notice to be given to the Court and opposing counsel no later than 3:00 p.m. the Fridaybefore the Monday date.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for thehearing. If you intend to submit on the tentative and do not want oral argument, please call theclerk by calling (657) 622-5226 and the prevailing party will give Notice of Ruling or prepare anOrder if appropriate per CRC 391.NOTICE TO COUNSEL: Upon filing of motion, moving party shall provide a copy of thisprocedural notice to opposing counsel. If opposing counsel appears at the scheduled hearingunnecessarily because of moving party’s failure to provide this notice, sanctions may beimposed. Upon posting of ruling prevailing party shall give notice of the ruling. Prevailing partyshall prepare and Order/Judgment for the Court’s signature if the motion is dispositive of thecause of action, a party or the case.The Court requests your cooperation in not calling the clerk or courtroom assistant forclarification of rulings or additional information. If you are moving party and do not have internetaccess, you may call the clerk or courtroom assistant after 1:30 p.m. on the Friday before thescheduled hearing and the ruling will be read to you.WHEN A CASE MANAGEMENT CONFERENCE IS ALSO SET THE DAY OF A LAW ANDMOTION MATTER, UNLESS SPECIFICALLY ADDRESSED OTHERWISE IN THE TENTATIVERULING, BOTH MATTERS WILL BE HEARD AT 10:30 A.M.TELECONFERENCE APPEARANCESAppearances for Law & Motion and all other hearings except Trial, MSC and VSC hearings areallowed through Court Call.LAW AND MOTION CALENDAR9-9-13#1 2009-121283

Rulings 1http://www.occourts.org/tentativerulings/glewisrulings.htmPage 2 of 69/5/2013RESHAD VS IVIINTERNATIONAL2 2011-528939To be posted by noon on 9-6-13MARTIN VS KLING Motion: Demurrer and Motion to Strike. Moving Party CrossDefendant Robert Martin. Respondent Party Cross Plaintiff JohnKling.Ruling: The demurrer to the 3 rd Amended cross-complaintis Sustained without leave to amend. The Court takesjudicial notice of the 1 st and 2d Amended Cross-Complaintsand the Court’s rulings of 3-11-13 and 5-29-13 on thedemurrers to those pleadings. Plaintiff/Cross-defendant isto give notice. When a Plaintiff cannot specify after threepleadings how he will amend to cure the defects that remain, acourt may deny further leave to amend. See Goodman v Kennedy(1976) 18 Cal 3d 335, 349.3 2011-529564FARAH VS ZEEBMotion: OSC re: Judgment. Moving Party Plaintiff SamuelFarah. Respondent Party Defendant Kamal Zeeb and ZeebBrothers.Ruling: The Court will execute the proposed Judgment thatDefendant submitted. The Special Verdict and the evidence donot support an award for punitive damages. CC 3294(a) providesfor punitive damages “In an action for the breach of an obligationnot arising from contract.” Plaintiff’s success on the breach ofcontract action does not support punitive damages. Plaintiff mustprove compensatory tort damages to support tort damages.Additionally, Plaintiff did not introduce evidence of defendant’sfinancial condition. See Simon v san Paolo U.S. Holding Co., Inc.(2009) 35 Cal 4 th 1159, 1185. Without this evidence the jurycannot calculate a proper award of punitive damages.4 2012-554630PAHNOS VS CITYOF LAGUNABEACH5 12-562973CONTINUED TO 9-16-13 ON THE COURT’S OWN MOTIONLOPEZ VSBARTLETT6 12-588601LOPEZ VS MORALESTo be posted by noon on 9-6-13Motion: Demurrer to Complaint. Moving Party Defendant TheFishel Company. Respondent Party Plaintiff Marco Lopez.Opposition: None.Ruling: Defendant The Fishel Company’s demurrer toplaintiff Lopez’s complaint is Sustained because plaintiff’scomplaint is barred under worker’s compensation exclusivityas facts, as to any exception, have not been pled. Labor Code3601 and Bagatti v Department of Rehabilitation (2002) 97 Cal App4 th 344, 363-364. Plaintiff Lopez conceded in his application for

Rulings 1http://www.occourts.org/tentativerulings/glewisrulings.htmPage 3 of 69/5/2013workers’ compensation that the accident on 8j-j4-10 occurredwhile he was in the course and scope of his employment. (see,Defendant’s RJN, exhibit B, Plaintiff’s Application for Adjudication ofWork Related Injury.) Admissions of material facts in the opposingparty’s pleadings constitute judicial admissions. Valerio v AndrewYoungquist Construction (20020 103 Cal App 4 th 1264, 1271.Plaintiff Lopez is granted conditional leave to amend, pursuant toCCP 472a©, if plaintiff can properly allege that defendant The FishelCompany lacks workers’ compensation coverage so that heexception provides for by Labor Code 3706 is applicable. Plaintiff isgranted 15 days leave to amend. Moving Party to give notice and, ifplaintiff dos not amend, defendant The Fishel Company is ordered tosubmit a proposed judgment of dismissal within 21 days.7 12-607066Motions: 1) Compel Form Interrogatories, 2) SpecialROPER VS VEOLIA Interrogatories, 3) Request for Production and 4) RequestsTRANSPORTATION for Admission to be Deemed Admitted. Moving PartySERVICES Defendant Veolia Transportation Services. Respondent PartyPlaintiff Karen Roper.Ruling: In light of Plaintiff serving the Response, theMotion is Moot, except for the issue of sanctions. Pursuantto CCP 2033.280©, it is mandatory that the court imposemonetary sanctions for failing to respond timely to the Request forAdmissions. The court awards reasonable sanctions in the sum of$645.00 ($195.00 per hour X 3 hours) + $60.00 filing fee. Thereis no need for imposing attorney’s fees for an appearance. Within20 days, Plaintiff and her attorney shall pay sanctions of $645.00.8 13-628124CENTRALMEDICALDIAGNOSTICLABORATORY VSPATCHETTMotion: Demurrer to First Amended Complaint. MovingParty Defendants Brian Patchett, etc. Respondent Party PlaintiffCentral Medical Diagnostic Laboratory.Ruling: The Court finds that the Fourth, Fifth and seventhcauses of Action were NOT preempted. These causes ofaction do not involve “the same nucleus of facts as tradesecret misappropriation.”… K.C. Multimedia, Inc. v Bank ofAmerica Technology & Operations, Inc. (2009) 171 Cal App4 th 939, 963. The demurrer to Fourth cause of Action forIntentional Interference with Contractual Relations and theFifth cause of Action for Intentional Interference withContractual Relations are Overruled. The current view ofpleading a contract is that Plaintiff may only plead the legal effectof the contract. “In an action based on a written contract, aplaintiff may plead the legal effect of the contract rather than itsprecise language.” Construction Protective services, Inc. v TIGSpecialty Ins. Co (20020 29 Cal 4 th 189, 199. “’To state a causeof action for breach of contract, it is absolutely essential to pleadthe terms of the contract either in haec verba or according to legaleffect.’” Progressive West ins Co v Yolo County Superior Court(2005) 135 Cal App 4 th 263, 270. The Demurrer to the Seventhcause of Action for Accounting/Inventory is Overruled as to theindividual defendants, Brian Patchett and Michael Lumkin. Theavailability of discovery does not bar this cause of action. “Acause of action for an accounting requires a showing that a

Rulings 1http://www.occourts.org/tentativerulings/glewisrulings.htmPage 4 of 69/5/2013relationship exist between the plaintiff and defendant that requiresan accounting, and that some balance is due the plaintiff that canonly be ascertained by an accounting.” Teselle v McLoughlin(2009) 173 Cal App 4 th 156, 179. The demurrer to Seventh causeof Action is Sustained without leave to amend as to DefendantCalifornia Laboratory Sciences LLC dba West on Pacific Medicallaboratory. There is not fiduciary relationship between westPacific and Plaintiff.9 13-628445ROBINSON VSSELECTPORTFOLIOSERVICINGMotion: Demurrer to First Amended Complaint. MovingParty Defendants Select Portfolio Servicing, Inc. and Deutschebank National Trust Company, as Trustee for Long beach MortgageLoan trust 2003-1. Respondent Party Plaintiffs Benjamin B.Robinson, II, Margaret E. Robinson, and the Robinson Family Trustestablished 9-20-04.RULING: The demurrer by defendants Select Portfolio andDeutsche Bank to the Robinson plaintiffs’ first amendedcomplaint is overruled in part and sustained in part.OVERRULED as to plaintiffs’ third cause of action forviolation of Civil Code §§ 2923.6 and 2924.12. The courtcannot take judicial notice of the evidentiary exhibits submitted bydefendants as Exhibits H and I. A demurrer challenges the defectsappearing on the face of the pleading or from other mattersproperly subject to judicial notice. Blank v. Kirwan (1985) 39Cal.3d 311, 318. Based on the face of the complaint, and itemssubject to judicial notice, the Robinson plaintiffs have allegedsufficient facts as to a change in financial circumstances and thatthey submitted a new application for a loan modification todefendant Select Portfolio on or about 4-15-13, and thatdefendants have not denied or otherwise responded to thisapplication for a loan modification. With an allegedly completeapplication, defendants have an obligation to process and eithergrant or deny the request for a loan modification, and if denied, tocomply with Civil Code § 2923.6(f). Whether defendants SelectPortfolio and Deutsche Bank will be able to pierce the pleadings byway of a motion for summary judgment and establish thatplaintiffs’ April 2013 application for loan modification was notcomplete is not before the court at this time. SUSTAINED as to theRobinson plaintiffs first cause of action for negligentmisrepresentation, second cause of action for breach of theimplied covenant of good faith and fair dealing, and fifth cause ofaction for declaratory relief. As to plaintiffs’ first cause of action fornegligent misrepresentation, plaintiffs have not alleged facts as toany negligent misrepresentation by representatives of defendantSelect Portfolio and/or defendant Deutsche Bank, or facts as toany successor liability by these moving defendants for allegedmisrepresentations by representatives of JP Morgan Chase Bank.See, Winner Chevrolet, Inc. 2008 WL 2693741 (E.D. Cal. 2008),and the California cases cited therein. Plaintiff is granted leave toamend to allege representations made by representatives ofdefendant Select Portfolio and/or defendant Deutsche Bank, or toallege facts with sufficient specificity to state a claim for successorliability by these defendants for conduct by representatives ofdefendant JP Morgan Chase Bank. As to plaintiffs’ second cause of

Rulings 1http://www.occourts.org/tentativerulings/glewisrulings.htmPage 5 of 69/5/2013action for breach of the implied covenant of good faith and fairdealing, plaintiffs have not alleged sufficient facts as to anycontact that would give rise to an implied covenant at this time.McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4 th 784, 799.Paragraphs 21 to 24 of plaintiffs’ first amended complaint does notstate sufficient facts as to any contract between the Robinsonplaintiffs and JP Morgan Chase Bank in regard to an agreement forany loan modification. Also, even assuming facts as to somecontract between the Robinson plaintiffs and JP Morgan Chase fora loan modification can eventually be stated, plaintiffs have notalleged facts with sufficient specificity as to any successor liabilityby these defendants for any contract entered into between theRobinson plaintiffs and JP Morgan Chase Bank. Plaintiff is grantedleave to amend to allege a contract entered into with defendantSelect Portfolio and/or defendant Deutsche Bank, or to allege factswith sufficient specificity to state a claim for successor liability bythese defendants for some contract entered into between theRobinson plaintiffs and JP Morgan Chase Bank. As to plaintiffs’ fifthcause of action for declaratory relief, plaintiff’s claims fordeclaratory relief are encompassed in plaintiffs’ main action so noaction for declaratory relief is stated. See, California Ins.Guarantee Ass’n v. Superior Court (1991) 231 Cal.App.3d 1617,1623 to 1624. The Robinson plaintiffs are granted conditionalleave to amend their fifth cause of action for declaratory relief ifthey can set forth some actual controversy not alreadyencompassed in their other causes of action.10 13-634850SPIKER VSMERCURYINSURANCECOMPANY11 13-643280MGA HEALTHCARECALIFORNIA VSPACIFIC HEALTHCORPORATION12 13-655064CONTINUED TO 9-23-13 ON THE COURT’S OWN MOTIONMotion: Demurrer to Complaint. Moving Party DefendantPacific Health Corporation. Respondent Party Plaintiff MGAHealthcare.Ruling: The demurrer to the Complaint is Sustained withtwenty (20) days leave to amend. The Exhibits to theComplaint prevail over the allegations of the Complaint. Brakke vEconomic Concepts, Inc. (2013) 213 Cal App 4th 761. 768. Theexhibits indicate that the contract was only between Plaintiff andAnaheim General. Plaintiff may allege a cause of action forquantum meruit without alleging a contract. There must be someunderstanding between the parties that compensation will bepaid. Huskinson & Brown, LLP v Wolf (2004) 32 CAL 4 TH 453,458. The demurrer for uncertainty is Overruled. “A demurrer foruncertainty is strictly construed, even where a complaint is insome respects uncertain, because ambiguities can be clarifiedunder modern discoveryprocedures.” Khoury v Maly’s of California, Inc (1993) 14 Cal App4 th 612,616.

Rulings 1http://www.occourts.org/tentativerulings/glewisrulings.htmPage 6 of 69/5/2013SCHWENDEL VSVAHILMotion: Strike Claim for Attorney Fees. Moving PartyDefendant Lilly Vahil. Respondent Party Plaintiffs Paul & and GinaSchwendel. Opposition: None.Ruling: The motion to strike attorney fees is denied.Respondent Party Per Litigants, whether or not they are attorneys,may recovery attorney fees if they hire someone to assist them.Mix v. Tunzanjan (2002) 102 Cal App 4 th 1318, 1324. Until thisaction is resolved, it is unknown whether Plaintiffs will require orhave obtained the assistance of counsel. Defendant’s claims canbe preserved through an affirmative defense. Whether or not thePlaintiff lost a right to attorney fees because they failed or refusedto arbitrate is an evidentiary issue, not a pleading issue.Defendant present no evidence in support of this contention. Ifthe parties have settled this case in connection with the smallclaims action, a notice of settlement should be filed. Defendant isto give notice.13 12-618017WILSON VSSCOTTCONTINUED TO 10-7-1314 12-606025BAJOREK VS PNCBANKRULING: 1 & 2) The demurrer and motion to strike bydefendants PNC Bank and Deutsche Bank in response to theBajorek plaintiffs’ second amended complaint isCONTINUED to 9-16-13 for hearing because of the late-filedopposition by the Bajorek plaintiffs. Defendants may file a reply toplaintiffs’ late-filed opposition by noon on Tuesday, 9-10-13, inresponse to this late-filed opposition.Moving parties to give notice.

Rulings 1http://www.occourts.org/tentativerulings/glewisrulings.htmPage 1 of 89/13/2013NOTICELAW AND MOTION PROCEDURES FOR DEPARTMENT C26THE HONORABLE GREGORY H. LEWISLAW & MOTION IS HEARD ON MONDAYS AT 10:30 A.M.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings by 12:00 p.m. Friday before the Monday date. The rulings willalso be posted outside the courtroom on the bulletin board for those counsels without internetaccess, no later than 8:30 a.m. on the day of the scheduled motion.The Law & Motion hearings are scheduled on Monday at 10:30 a.m. and all arguments will beheard at that time. No supplemental or additional papers will be allowed to be submittedfollowing posting of the ruling on the internet, nor will the Court entertain a request forcontinuance once the ruling has been posted.****** SUBMITTING ON THE COURT’S TENTATIVE RULING*****Notice to be given to the Court and opposing counsel no later than 3:00 p.m. the Fridaybefore the Monday date.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for thehearing. If you intend to submit on the tentative and do not want oral argument, please call theclerk by calling (657) 622-5226 and the prevailing party will give Notice of Ruling or prepare anOrder if appropriate per CRC 391.NOTICE TO COUNSEL: Upon filing of motion, moving party shall provide a copy of thisprocedural notice to opposing counsel. If opposing counsel appears at the scheduled hearingunnecessarily because of moving party’s failure to provide this notice, sanctions may beimposed. Upon posting of ruling prevailing party shall give notice of the ruling. Prevailing partyshall prepare and Order/Judgment for the Court’s signature if the motion is dispositive of thecause of action, a party or the case.The Court requests your cooperation in not calling the clerk or courtroom assistant forclarification of rulings or additional information. If you are moving party and do not have internetaccess, you may call the clerk or courtroom assistant after 1:30 p.m. on the Friday before thescheduled hearing and the ruling will be read to you.WHEN A CASE MANAGEMENT CONFERENCE IS ALSO SET THE DAY OF A LAW ANDMOTION MATTER, UNLESS SPECIFICALLY ADDRESSED OTHERWISE IN THE TENTATIVERULING, BOTH MATTERS WILL BE HEARD AT 10:30 A.M.TELECONFERENCE APPEARANCESAppearances for Law & Motion and all other hearings except Trial, MSC and VSC hearings areallowed through Court Call.LAW AND MOTION CALENDAR9-16-13#1 11-485610PLTF COUNSEL: DOLORES CONTRERAS

Rulings 1http://www.occourts.org/tentativerulings/glewisrulings.htmPage 2 of 89/13/2013RUIZ VS TIAJUANAMANAGEMENTMTN TO BE RELIEVED AS COUNSELDENY MOTION TO BE RELIEVED AS COUNSEL WITHOUTPREJUDICE.It does not appear from the file that notice was given to the clientor that proper service was made on the opposing party.2 12-597258RIGGS VSMASLOBODSKYDFTS: EDWARD MASLOBODSKY, ANNA MASLOBODSKY ANDPACIFICA ROYALE ASSISTED LIVING COMMUNITY1. MTN TO COMPEL PRODUCTION OF DOCUMENTS ANDSANCTIONS2. MTN TO COMPEL ADMISSIONS DEEMED ADMITTED ANDSANCTIONS3. MTN TO COMPEL PRODUCTION OF DOCUMENTS ANDSANCTIONS4. MTN TO COMPEL FORM INTERROGATORIES ANDSANCTIONS5. MTN TO COMPEL SPECIAL INTERROGATORIES ANDSANCTIONS6. MTN TO COMPEL SPECIAL INTERROGATORIES ANDSANCTIONS7. MTN TO COMPEL FORM INTERROGATORIES ANDSANCTIONS8. MTN TO COMPEL PRODUCTION OF DOCUMENTS ANDSANCTIONS9. MTN TO COMPEL ADMISSIONS DEEMED ADMITTED ANDSANCTIONS10. MTN TO COMPEL ADMISSIONS DEEMED ADMITTED ANDSANCTIONS11. MTN TO COMPEL SPECIAL INTERROGATORIES ANDSANCTIONS12. MTN TO DISMISSDENY MOTION TO DISMISSWhile plaintiff did not comply with the ruling to file the AmendedComplaint with the court in a timely manner, she apparently senta copy of this document to defendants resulting in a demurrer tothis pleading. Since the First Amended Complaint has finally beenfiled, the court is exercising its’ discretion to deny Motion toDismiss since defendants have had notice and opportunity torespond. Defendants are granted until 10-11-13 to formallyrespond to this pleading.GRANT DISCOVERY MOTIONS.1) Defendant Anna Maslobodsky’s motion to compel RFPDresponses by plaintiff Patricia Riggs is GRANTED, with plaintiffRiggs to provide responses, without objections, within 14 days ofservice of a notice of ruling by moving party. See, C.C.P. §2031.300(b). Also, defendant Anna Maslobodsky is awardedsanctions of $247.00, pursuant to C.C.P. § 2031.300(c), payableby plaintiff Patricia Riggs. Moving party to give notice.

Rulings 1http://www.occourts.org/tentativerulings/glewisrulings.htmPage 3 of 89/13/20132) Defendant Anna Maslobodsky’s motion to compel responses toher special interrogatories by plaintiff Patricia Riggs is GRANTED,with plaintiff Riggs to provide responses, without objections,within 14 days of service of a notice of ruling by moving party.C.C.P. § 2030.290(b). Also, defendant Anna Maslobodsky isawarded sanctions of $247.00, pursuant to C.C.P. § 2030.290(c),payable by plaintiff Patricia Riggs. Moving party to give notice.3) Unless plaintiff Riggs files proper responses to defendant AnnaMaslobodsky’s requests for admission before the hearing on 9-16-13, defendant Anna Maslobodsky’s motion to deem her requestsfor admission to plaintiff Riggs admitted is GRANTED. C.C.P. §2033.280(b). Also, GRANT defendant Anna Maslobodsky’s requestfor sanctions in the amount of $485.00, pursuant to C.C.P. §2033.280(c), payable by plaintiff Patricia Riggs. Moving party togive notice.4) Defendant Edward Maslobodsky’s motion to compel RFPDresponses by plaintiff Patricia Riggs is GRANTED, with plaintiffRiggs to provide responses, without objections, within 14 days ofservice of a notice of ruling by moving party. C.C.P. § 2031.300(b). Also, defendant Edward Maslobodsky is awarded sanctions of$247.00, pursuant to C.C.P. § 2031.300(c), payable by plaintiffPatricia Riggs. Moving party to give notice.5) Defendant Edward Maslobodsky’s motion to compel responsesto his form interrogatories by plaintiff Patricia Riggs is GRANTED,with plaintiff Riggs to provide responses, without objections,within 14 days of service of a notice of ruling by moving party.See, C.C.P. § 2030.290(b). Also, defendant Edward Maslobodskyis awarded sanctions of $247.00, pursuant to C.C.P. § 2030.290(c), payable by plaintiff Patricia Riggs. Moving party to givenotice.6) Defendant Edward Maslobodsky’s motion to compel responsesto his special interrogatories by plaintiff Patricia Riggs isGRANTED, with plaintiff Riggs to provide responses, withoutobjections, within 14 days of service of a notice of ruling bymoving party. See, C.C.P. § 2030.290(b). Also, defendant EdwardMaslobodsky is awarded sanctions of $247.00, pursuant to C.C.P.§ 2030.290(c), payable by plaintiff Patricia Riggs. Moving party togive notice.7) Unless plaintiff Riggs files proper responses to defendantEdward Maslobodsky’s requests for admission before the hearingon 9-16-13, defendant Edward Maslobodsky’s motion to deem hisrequests for admission to plaintiff Riggs admitted is GRANTED.C.C.P. § 2033.280(b). Also, GRANT defendant EdwardMaslobodsky’s request for sanctions in the amount of $485.00,pursuant to C.C.P. § 2033.280(c), payable by plaintiff PatriciaRiggs. Moving party to give notice.8) Defendant Pacifica Royale’s motion to compel RFPD responsesby plaintiff Patricia Riggs is GRANTED, with plaintiff Riggs toprovide responses, without objections, within 14 days of service ofa notice of ruling by moving party. C.C.P. § 2031.300(b). Also,

Rulings 1http://www.occourts.org/tentativerulings/glewisrulings.htmPage 4 of 89/13/2013defendant Pacifica Royale is awarded sanctions of $247.00,pursuant to C.C.P. § 2031.300(c), payable by plaintiff PatriciaRiggs. Moving party to give notice.9) Defendant Pacifica Royale’s motion to compel responses to itsform interrogatories by plaintiff Patricia Riggs is GRANTED, withplaintiff Riggs to provide responses, without objections, within 14days of service of a notice of ruling by moving party. C.C.P. §2030.290(b). Also, defendant Pacifica Royale is awarded sanctionsof $247.00, pursuant to C.C.P. § 2030.290(c), payable by plaintiffPatricia Riggs. Moving party to give notice.10) Defendant Pacifica Royale’s motion to compel responses to itsspecial interrogatories by plaintiff Patricia Riggs is GRANTED, withplaintiff Riggs to provide responses, without objections, within 14days of service of a notice of ruling by moving party. C.C.P. §2030.290(b). Also, defendant Pacifica Royale is awarded sanctionsof $247.00, pursuant to C.C.P. § 2030.290(c), payable by plaintiffPatricia Riggs. Moving party to give notice.11) Unless plaintiff Riggs files proper responses to defendantPacifica Royale’s requests for admission before the hearing on9-16-13, defendant Pacific Royale’s motion to deem its requestsfor admission to plaintiff Riggs admitted is GRANTED. C.C.P. §2033.280(b). Also, GRANT defendant Pacifica Royale’s request forsanctions in the amount of $485.00, pursuant to C.C.P. §2033.280(c), payable by plaintiff Patricia Riggs.Moving party to give notice.3 12-603399COASTALINTERNATIONALVS PARRISPLTF: COASTAL INTERNATIONALMTN TO COMPEL FURTHER RESPONSES TO PRODUCTION OFDOCUMENTSGRANT MOTION FOR FURTHER RESPONSES.Defendant shall provide a further response to Request forProduction #6 stating that she will produce all responsivedocuments, and is to produce the documents within 2 daysthereafter. Defendant did not state an objection based on theprivilege against self-incrimination. Even if her response could beinterpreted to be such an objection, it was waived by failure totimely respond to the production request. CCP §2031.300(a).4 12-606025BAJOREK VS PNCBANKDefendant is to give notice.DFTS: PNC BANK AND DEUTSCHE BANK NATIONAL TRUST1. DEMURRER TO SECOND AMENDED COMPLAINT2. MTN TO STRIKE PORTIONS OF SECOND AMENDEDCOMPLAINT3. MTN FOR SUMMARY JUDGMENT AND/OR ADJUDICATIONSUSTAIN DEMURRER OF PNC BANK AND DEUTSCHE BANKTO SECOND AMENDED COMPLAINT WITHOUT LEAVE TO

Rulings 1http://www.occourts.org/tentativerulings/glewisrulings.htmPage 5 of 89/13/2013AMEND; GRANT MOTION TO STRIKE WITHOUT LEAVE TOAMEND.1) The demurrer by defendants PNC Bank and Deutsche Bank tothe Bajorek plaintiffs’ second amended complaint is SUSTAINEDwithout leave to amend. As to the Bajorek plaintiffs first andsecond causes of action for breach of written agreement, plaintiffshave again not pled sufficient facts as to why their breaches of theDOT and note were excused. Durell v. Sharp Healthcare (2010)183 Cal.App.4 th 1350, 1367 (excuses must be pled specifically.) Asto the Bajorek plaintiffs’ third cause of action for fraud, plaintiffshave not pled facts as to actual and justifiable reliance. In Waltersv. Marler (1978) 83 Cal.App.3d 1, the Walters court explained thatone element of fraud is that: “The plaintiff must have beenunaware of the falsity of the representation; he must have actedin reliance upon the truth of the representation and he must havebeen justified in relying upon the representation.” Id., at 17. TheBajorek plaintiffs have pled facts that they never believeddefendants’ claims that they were in default and consistentlydemanded accountings contending the banks were in error. Also,the Bajorek plaintiffs have not alleged sufficient facts as to thealleged misrepresentations, who made them, when, the method ofcommunication and similar facts. Further, in Wilhelm v. Pray,Price, Williams & Russell (1986) 186 Cal.App.3d 1324, the courtstated that: “Plaintiffs must show ‘actual’ reliance, i.e., that therepresentation was an ‘immediate cause’ that altered their legalrelations. (Citations omitted.)” Id., at 1331 to 1332. Hence, theBajorek plaintiffs have not pled facts as to any actual and/orjustifiable reliance and causally related damages. Finally, theBajorek plaintiffs have not set forth what additional facts that theycan plead to state proper causes of action for breach of contractand/or fraud as it is plaintiffs’ burden to do to support leave toamend. Hendy v. Losse (1991) 54 Cal.3d 723, 742. In regard tofraud, any such additional facts to support reliance wouldcontradict plaintiffs’ allegations in their earlier complaints.Therefore the demurrer by defendants PNC Bank and DeutscheBank to the Bajorek plaintiffs’ second amended complaint issustained without leave to amend. Moving party to give notice.2) The motion to strike the Bajorek plaintiffs’ claims for punitivedamages in plaintiffs’ second amended complaint by defendantPNC Bank and Deutsche Bank is GRANTED without leave toamend. Plaintiffs’ contract causes of action will not support a claimfor attorney’s fees. Myers Building Industries, Ltd. v . InterfaceTechnology, Inc. (1993) 13 Cal.App.4 th 949, 960. While a fraudcause of action can support a claim for punitive damages, plaintiffshave not alleged sufficient facts with particularity to support sucha claim. Smith v. Superior Court (1992) 10 Cal.App.4 th 1033, 1041to 1042. Also, plaintiffs have not pled facts as to actual relianceand causally related damages. Walters v. Marler (1978) 83Cal.App.3d 1, 17. Thus no cause of action has been stated tosupport a claim for punitive damages, and facts to support leaveto amend as to fraud have not been stated. Moving party to givenotice.

Rulings 1http://www.occourts.org/tentativerulings/glewisrulings.htmPage 6 of 89/13/2013The Motion for Summary Judgment/Adjudication appears moot inlight of the rulings in connection with the Demurrer and Motion toStrike.5 12-607066ROPER VS VEOLIATRANSPORTATIONSERVICESDFT: VEOLIA TRANSPORTATION SERVICES1. DEMURRER TO FIRST AMENDED COMPLAINT2. MTN TO STRIKE FIRST AMENDED COMPLAINTOVERRULE DEMURRER TO FIRST AMENDED COMPLAINT;DENY MOTION TO STRIKE.Even though Plaintiff’s Opposition was filed and served late,Defendant was able to file a Reply. This filing waives theirregularity. Carlton v .Quint (2000) 77 Cal.App.4th 690, 697.On its own motion, the court takes judicial notice of the CCMSHistory for this case that shows the Complaint was electronicallyfiled on October 22, 2012 at 4:36 p.m. The court also takesjudicial notice of the Amended Administrative Order No. 12/06with required electronic filing.The Demurrer to the First Amended Complaint is OVERRULED. Thecourt finds that the Complaint was filed before the “close ofbusiness” on the last day before the running of the statute oflimitations.C.C.P. § 1010.6 (b) (3) provides that “Any document that iselectronically filed with the court after the close of business on anyday shall be deemed to have been filed on the next court day.“Close of business,” as used in this paragraph, shall mean 5 p.m.or the time at which the court would not accept filing at the court'sfiling counter, whichever is earlier.”The exception to the 5:00 p.m. as “close of business” does notapply to the filing of personal injury complaints after the Orderwas issued. Based on Amended Administrative Order No. 12/06,there was no time during the day that the Complaint could havebeen accepted at the filing counter. Therefore, the 4:36 p.m.electronic filing was timely.The First and Second Causes of Action adequately plead thatPlaintiff was denied full and equal access to transportation. Fulland equal access should include placing her in a position of safetyfollowing the completion of her trip.The Motion to Strike Attorney Fees is DENIED. Civ. Code § 55authorizes recovery of attorney fees.6 12-615196PLTF: CITY OF LANCASTER1. DEMURRER TO CROSS-COMPLAINT

Rulings 1http://www.occourts.org/tentativerulings/glewisrulings.htmPage 7 of 89/13/2013CITY OFLANCASTER VSHOUSINGAUTHORITY OF THECOUNTY OF LOSANGELES2. MTN FOR SLAPPDENY SPECIAL MOTION TO STRIKE CROSS-COMPLAINT;OVERRULE DEMURRER TO CROSS-COMPLAINT; DENYREQUEST FOR ATTORNEYS FEES.Cross-Defendant City of Lancaster failed to establish “the initialburden of demonstrating that the challenged cause of action arisesfrom protected activity.” Seltzer v. Barnes (2010) 182 Cal.App.4th953, 961-962. “A cause of action may be ‘triggered by’ orassociated with a protected act, but it does not necessarily meanthe cause of action arises from that act.” Kolar v. Donahue,McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1538.“”In deciding whether an action is a SLAPP, the trial court shoulddistinguish between (1) speech or petitioning activity that is mereevidence related to liability and (2) liability that is based onspeech or petitioning activity.’” City of Alhambra v.D'Ausilio (2011) 193 Cal.App.4th 1301, 1307. In D'Ausilio, theCourt of Appeal held that “the City's declaratory relief claiminvolves an actual dispute between the parties regarding thevalidity of a contract provision and the parties' rights andobligations under that contract provision. The declaratory reliefclaim arises from a contract dispute; it does not arise from actionstaken by appellant in furtherance of his constitutional rights.” . . .Ibid, 1309.Although the controversy over Section 8 recipients and civil rightsis obviously protected activity, the contractual dispute overpayment of fees and costs is not. Because the first prong was notestablished, the court does not need to consider the second prong,whether HACOLA could prove the allegations of the Crosscomplaint.Cross-Complainant HOCOLA’s Request for Attorney Fees isDENIED. C.C.P. § 425.16 (c)(1) provides that “Except asprovided in paragraph (2), in any action subject to subdivision (b),a prevailing defendant on a special motion to strike shall beentitled to recover his or her attorney's fees and costs. If the courtfinds that a special motion to strike is frivolous or is solelyintended to cause unnecessary delay, the court shall award costsand reasonable attorney's fees to a plaintiff prevailing on themotion, pursuant to Section 128.5.”The standard for awarding fees for failing on an Anti-SLAPP actionis whether “any reasonable attorney would agree that the motionis totally devoid of merit.” Chitsazzadeh v. Kramer &Kaslow (2011) 199 Cal.App.4th 676, 684. The court finds thisstandard has not been met.The Demurrer to the Cross-Complaint is OVERRULED.HACOLA has alleged the necessary elements of each of the causesof action. HACOLA properly alleged that the City breached theindemnity clause of the MOU. On this Demurrer, the court cannotdetermine whether this allegation can be proven.

Rulings 1http://www.occourts.org/tentativerulings/glewisrulings.htmPage 8 of 89/13/2013OBJECTIONS: Cross-Complainant HACOLA’s Objections toEvidence: Nos. 1 to 7: SUSTAINED.Declaration of Emilio Salas: Cross-Defendant City of Lancaster’sObjections to Evidence: Nos. 1 to 29: SUSTAINED.Declaration of Nicole Davis Tinkham: Cross-Defendant City ofLancaster’s Objections to Evidence: Nos. 1 to 4: SUSTAINED.7 13-650289KAY VS ELUCIAOFF CALENDAR PER MP8 13-652286KEFFALAS VSWELLS FARGOBANK9 13-665489SOUTHERNCOUNTIES OIL VSSTERLINGENERGY GROUPCONTINUED TO 10/28/13PLTF: SOUTHERN COUNTIES OILMTN FOR PROTECTIVE ORDERDENY MOTIONS FOR RIGHT TO ATTACH ORDER WITHOUTPREJUDICE.The court can’t determine of proper service of the motion wasaccomplished. There was no attempt to serve Sterling at the LongBeach address. The declaration states that a publically determinedaddress was obtained for Sona, but she was not served at thataddress. There is confusion with regard to the Rocklin, Californiaand Dana point addresses and the address used to effect servicethrough the postal service.If the motions are re-filed, the supporting declaration shouldcontain evidence of how the proper addresses for service wereobtained.Sterling Energy Group was not served with the summons andcomplaint so this Court has not acquired jurisdiction over it.10 2-554630PAHNOS VS CITYOF LAGUNABEACHNotice of hearing to Sona Mikayelyan incorrectly states that thehearing is set for 9/23/13. Thus, proper notice of the actual hearingdate of 9/16/13 was not given. In addition, she was not served atthe address that Mr. Hickman declared was a “publically determinedaddress.”DFT: CITY OF LAGUNA BEACHMTN FOR JUDGMENT ON THE PLEADINGS

NOTICELAW AND MOTION PROCEDURES FOR DEPARTMENT C26THE HONORABLE GREGORY H. LEWISLAW & MOTION IS HEARD ON MONDAYS AT 10:30 A.M.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings by 12:00 p.m. Friday before the Monday date. The rulings will also be postedoutside the courtroom on the bulletin board for those counsels without internet access, no later than 8:30 a.m.on the day of the scheduled motion.The Law & Motion hearings are scheduled on Monday at 10:30 a.m. and all arguments will be heard at thattime. No supplemental or additional papers will be allowed to be submitted following posting of the ruling on theinternet, nor will the Court entertain a request for continuance once the ruling has been posted.****** SUBMITTING ON THE COURT’S TENTATIVE RULING*****Notice to be given to the Court and opposing counsel no later than 3:00 p.m. the Friday before theMonday date.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. If youintend to submit on the tentative and do not want oral argument, please call the clerk by calling (657) 622-5226 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate per CRC 391.NOTICE TO COUNSEL: Upon filing of motion, moving party shall provide a copy of this procedural notice toopposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because of movingparty’s failure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailing party shallgive notice of the ruling. Prevailing party shall prepare and Order/Judgment for the Court’s signature if themotion is dispositive of the cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or courtroom assistant for clarification of rulings oradditional information. If you are moving party and do not have internet access, you may call the clerk orcourtroom assistant after 1:30 p.m. on the Friday before the scheduled hearing and the ruling will be read toyou.WHEN A CASE MANAGEMENT CONFERENCE IS ALSO SET THE DAY OF A LAW AND MOTION MATTER,UNLESS SPECIFICALLY ADDRESSED OTHERWISE IN THE TENTATIVE RULING, BOTH MATTERS WILLBE HEARD AT 10:30 A.M.TELECONFERENCE APPEARANCESAppearances for Law & Motion and all other hearings except Trial, MSC and VSC hearings are allowed throughCourt Call.LAW AND MOTION CALENDAR9-23-13#2 12-588299PROM KING LLC VS ABSORPTIONPHARMACEUTICALS LLCMotion: Petition for Writ of Mandate. Moving PartyPetitioner/Plaintiffs Prom King LLC, John Makoff. RespondingParty Responding /Defendants Absorption Pharmaceuticals LLC,Jeffery Abraham.Ruling: Prior to the hearing on this Petition, the parties have not meetand conferred. The issues before the court have not beenclarified. Both sides concede that records should be produced;Respondent claims the contrary. Pursuant to CCP 639 (a) (5), thecourt finds it necessary to appoint a referee to hear and determine anyand all disputes relevant to the Petition and to report findings and

make a recommendation thereon. Within seven (7) days, the partiesmay submit the name of an agreed upon referee. If there is notagreement, the court will select one. The issue of award attorney feesunder Corp. Code 17106 (g) has been taken under submission until thereferee’s report is received.4 12-610472THAI VS GRANATOMotion: Summary Adjudication. Moving Party Defendant FrankGranato. Responding Party Plaintiffs Hoang Hoa Thai and SarahPhan Thai.Ruling: Defendant Granato’s motion for summary adjudication isDENIED. As to the Thai plaintiffs’ claim for punitive damages,defendant Granato did not carry his burden of demonstrating thatplaintiffs cannot reasonably obtain evidence to support their claim forpunitive damages. Gaggero v. Yura (2003) 108 Cal.App.4 th 884, 891to 893. Of note, defendant Granato’s deposition was not taken untilAugust 2013, while plaintiffs’ responses to defendant Granato’s specialinterrogatories were served back in March 2013. In addition, the Thaiplaintiffs presented sufficient evidence of facts to support theircontentions of alleged overbilling and excessive billing by defendantGranato. In particular, the Thai plaintiffs’ responses to Special Rog.Nos. 3 and 23 set forth that basis of their claims and set forthexamples of alleged overbilling and/or excessive billing. As to the Thaiplaintiffs’ claim for damages based on the initial retainer agreementbeing time-barred, the evidence cited by defendant Granato does notsupport that plaintiffs suspected excessive billing by attorney Granatohalfway through the litigation, but only that defendant Granato hadexceeded his initial estimate that it would cost approximately$100,000.00 to defendant the underlying action. Also, the Thaiplaintiffs presented evidence creating a triable issue of material fact asto when they knew, or reasonably should have known, of anyoverbilling/excessive billing by defendant Granato. [, Plaintiffs’ UMFNos. 23, 24 and 25.] The discovery rule is applicable to the claims ofbreach of contract and breach of fiduciary duty in the context of thiscase. April Enterprises, Inc. v. KTTV (19830 147 Cal.App.3d 805, 831to 832 and Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6Cal.3d 176, 189.Moving party to give notice.Defendant Granato’s Evidentiary Objections: Defendant Granatoobjected to various portions of the declarations submitted in support ofthe Thai plaintiffs’ opposition. Declaration of Hoang Hoa Thai:OVERRULED as to Objection Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,13 and 14. The statements attributed to defendant Granato by plaintiffHoang Hao Thai constitute admissions of a party opponent.Declaration of Sarah Thai: OVERRULED as to Objection Nos. 15, 16,17, 18, 19, 20, 22 and 23. SUSTAINED as to Objection No. 21 based onthe on mediation privilege.5 12-620262GENERAL ELECTRIC CAPITAL VSSAM KHOLI ENTERPRISESMotion: 1) Motion to Compel Further Responses to InitialDiscovery. Moving Party Plaintiff General Electric CapitalCorporation. Responding Party Defendant Payrolling.comCorp. Opposition: None.Ruling: Plaintiff G.E. Capital’s consolidated motion to compel furtherresponses by defendant Payrolling.com Corp. to plaintiff’s forminterrogatories, special interrogatories, request for documents, andrequests for admission is Denied because plaintiff’s motion isprocedurally defective for lack of any supporting separate statement or

6 13-652103KIM VS PREEMINENTINVESTMENT CORPORATIONseparate statements, Rule 3.1345(a).Motion: 2) To Be Relieved as Counsel of Record. Moving PartyHamilton & McInnis, LLP. Responding Party DefendantPayrolling.com Corp.Ruling: Defense Counsel’s motion to withdraw as counsel of record fordefendant Payrolling.comp Corp., is granted.Moving Party to give notice.Motion: Demurrer to Complaint. Moving Party DefendantPreeminent Investment Corp. Responding Party Plaintiffs YangJai Kim and Sook Hee Kim. Opposition: None.Ruling: The Request for Judicial Notice is Granted. The Demurrer tothe First cause of Action for Quiet Title is Sustained without leave toamend. CCP 761.020(b) requires that Plaintiffs allege that they havetitle and the basis of the title. “[A] mortgagor of real property cannot,without paying his debt, quiet his title against the mortgagee.” Miller vProvost (19940 26 Cal App 4 th 1703, 1707. The demurrer to theSecond Cause of Action for wrongful Foreclosure is Sustained withoutleave to amend. Pursuant to CC 2924 (c), the Trustee’s Deed Uponsale is “prima facie evidence of compliance with these requirementsand conclusive evidence thereof in favor of bona fide purchasers andencumbrancers for value and without notice.” Defendant was a bonafide purchaser. “The elements of bona fide purchaser are payment ofvalue, in good faith, and without actual or constructive notice ofanother’s rights.” Melendez v D & I Investment, Inc. (2005) 127 calApp 4 th 1238, 1251. The Demurrer to the Ninth cause of Action forDeclaratory relief is Sustained without leave to amend. There is noactual controversy pending between the parties. Ratcliff Architects vVanir Construction Management (2001) 88 Cal App 4 th 595, 601.7 13-657443CLARK VS HOAG MEMORIALHOSPITAL PRESBYTERIANMotion: Demurrer to Complaint. Moving Party Defendants HoagMemorial Hospital Presbyterian, Proview global US, Inc., andProview Administrators, LLC. Responding Party Plaintiff RogeneClark.Ruling: The demurrer by defendants Hoag, Proview Global andProview Administrators to plaintiff Clark’s complaint as to plaintiffsfourth cause of action for violation of the CFRA and seventh cause ofaction for invasion of privacy is OVERRULED. As to plaintiff Clark’sfourth cause of action for violation of the CFRA against defendant Hoag,defendant has not established that its six-month leave policyencompassed leave under the CFRA based on the face of the complaintand items subject to judicial notice. A no-fault leave policy by anemployer does not encompass leave under the CFRA. Avila v.Continental Airlines, Inc. (2008) 165 Cal.App.4 th 1237, 1253 to 1254.As to plaintiff Clark’s seventh cause of action for invasion of privacy,defendants have not established that this cause of action is necessarilytime-barred as a cause of action for invasion of privacy is nowgoverned by the two year statute of limitations set forth at C.C.P. §335.1. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4 th1397, 1403 (burden on demurrer to establish that cause of action isnecessarily time-barred not that it may be time-barred.) Also, whiledefendants Hoag, Proview Global and Proview Administrators arecorrect that a common law claim for invasion of privacy requirespublication of private facts to a large group of individuals, plaintiff Clarkhas alleged sufficient facts to state a cause of action for invasion of her

state constitutional right of privacy. Porten v. University of SanFrancisco (1976) 64 Cal.App.3d 825, 832 to 833. Plaintiff’s right toprivacy in her medical information is protected by her stateconstitutional right of privacy. Board of Medical Quality Assurance v.Gherardini (1979) 93 Cal.App.3d 669, 679. Defendants Hoag, ProviewGlobal and Proview Administrators are ordered to e-file an answer inresponse to plaintiff Clark’s complaint within 14 days.Moving party to give notice.10 13-634850SPIKER VS MERCURYINSURANCE COMPANYMotion: Demurrer and Motion to Strike. Moving Party DefendantMercury Casualty Insurance Co. Responding Party Plaintiff KenSpiker and Associates, Inc.Ruling: The demurrer to the 1st cause of action for breach of contractis SUSTAINED w/ 10 days leave to amend. The demurrer to theremaining causes of action is SUSTAINED without leave toamend. The motion to strike is OFF CALENDAR (moot).Defendant is to give notice.1st C/A: Breach of contract: Contractual interpretation is a question oflaw unless the meaning is dependent on the credibility of extrinsicevidence. Nungaray v. Litton Loan Servicing, LP (2011) 200Cal.App.4th 1499, 1504. Plaintiffs do not allege that any terms of theagency contract were breached; they rely on terms in a letter from oneof Mercury’s vice presidents.However, these terms are clearly not promises for the benefit of theagents; they are terms to which Mercury asks “Mercury agent/brokersto subscribe” and warnings to agents of possible discipline againstthem if the terms are violated. Terms that Plaintiffs do not quoteclearly are intended to benefit Mercury, e.g., the provisions prohibitingcompeting with another Mercury broker in order to place insurance withanother company and prohibiting advertising using Mercury’s name orlogo without its approval.Given the clear import of the letter, in order to be able to allege thatany of these terms were intended by Mercury to benefit the Plaintiffs,Plaintiffs must plead additional facts sufficient to support a finding by atrier of fact that this was the Mercury’s intent. It will not be enough toallege intent in conclusory terms.2d cause of action: Intentional interference with contract. Actualdisruption of a contractual relationship is an element of thetort. Korea Supply Co. v. Lockheed Martin Co. (2003) 29 Cal.4th1134, 1153. The opposition makes clear that the contract interferedwith is Plaintiffs’ contract with NOVA. However, neither disruption ofthe relationship nor breach of the contract by NOVA is alleged. All thatis alleged is that the contract has resulted in less income to Plaintiffsthan before.In addition, Mercury is not a “stranger” or “interloper” who has “nolegitimate interest” in this relationship. PM Group Inc. v. Stewart(2007) 154 Cal.App.4th 55, 65. The case is directly on point. Thecourt stated that because the subcontracts at issue provided for theDefendant’s performance, he could not be liable. Id. In this case, thecontract with NOVA requires Mercury’s performance for Plaintiffs tobenefit from it; therefore it cannot be liable for interfering with it.3d and 4th causes of action for intentional and negligent interference

with prospective economic advantage. To be actionable, theDefendant’s conduct must be “proscribed by some constitutional,statutory, regulatory, common law, or other determinable legalstandard.” Korea Supply, 29 Cal.4th @ 1158-1159. In opposing themotion, Plaintiffs fail to say what standard is violated.Plaintiffs argue that Mercury participated in a fraud. However, evenassuming their competitors were joined, Plaintiffs cannot state a causeof action for fraud. They cannot allege that they relied to theirdetriment on any false misrepresentations made to them. The allegedrepresentations were made to Mercury. It cannot conspire to commitfraud against itself.

#1 12-538090NEGRETE-ROMERO VSPROVIDENTFUNDING GROUPMotion: Demurrer to First Amended Complaint. Moving Party DefendantProvident Funding Associates, L.P. Responding Party Plaintiffs Agripin Romero andJosephine Negrete-Romero. Opposition: None.RULING: Defendant Provident’s demurrer to the Romero plaintiffs’ firstamended complaint is SUSTAINED. SUSTAINED, without leave to amend, as toplaintiffs’ first cause of action for breach of contract and sixth cause of action fordeclaratory relief. As to plaintiffs’ first cause of action for breach of contract, theallegations of plaintiff’s claim for breach are negated by the letters attached andincorporated into plaintiff’s first amended complaint. Also, an oral promise to notforeclose during a loan modification review is barred by the statute offrauds. Secrest v. Security National Mortgage Loan Trust 2002-2 (4 th Dist. 2008)167 Cal.App.4 th 544. As to plaintiffs’ sixth cause of action for declaratory relief,plaintiffs are suing based on past acts involving a completed foreclosure sale soany claims are encompassed within their cause of action for wrongfulforeclosure. Canova v. Trustees of Imperial Irr. Dist. Employee Pension Plan(2007) 150 Cal.App.4 th 1487, and California Ins. Guarantee Ass’n v. Superior Court(1991) 231 Cal.App.3d 1617. SUSTAINED, with 21 days final leave to amend, as toplaintiffs’ second cause of action for wrongful foreclosure, third cause of action fornegligence, fourth cause of action for negligent misrepresentation and fifth cause ofaction for fraud. As to plaintiffs’ cause of action for wrongful foreclosure, thealleged oral promise is barred under the statute of frauds, the alleged violation ofCivil Code § 2924g(c)(1) is negated by the letters attached and incorporated intoplaintiffs’ first amended complaint, plaintiffs are not third party beneficiaries of theSPA agreement between the federal government and certain banks, and Civil Code§ 2923.6 does not provide for a private cause of action. Lucia v. Wells Fargo Bank,N.A., 798 F.Supp.2d 1059 (N.D. Cal. 2011) and Mabry v. Superior Court (4 th Dist.2010) 185 Cal.App.4 th 208. As to plaintiffs’ causes of action for negligentmisrepresentation and fraud, these causes of action are not pled with thespecificity and particularity required. Stansfield v. Starkey (1990) 220 Cal.App.3d59. Also, facts as to justifiable reliance have not been pled, particularly with theletter of 10-19-11 that was attached and incorporated into plaintiffs’ first amendedcomplaint. Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1.The court notes that this was the first challenge by defendant Provident to theRomero plaintiffs’ pleading on the merits, which supports leave to amend as tothese causes of action.Moving party to give notice.2 12-585711LIM VS IMPERIALSPA FULLERTONMotion: Terminating, Evidentiary or Issue Sanctions. Moving Party PlaintiffChan Lim. Responding Party Defendant Imperial Spa Fullerton, LLC.RULING: Plaintiff Lim’s motion for a terminating sanctions and the strikingof defendant Imperial Spa’s answer is DENIED. Defendant Imperial Spa hascomplied in part as to the court’s 6-13-13 by producing a person mostknowledgeable for deposition and produced some documents. But plaintiff Lim’smotion is GRANTED as to defendant Imperial Spa’s failure to produce responsivedocuments, and defendant Imperial Spa is ordered to produce all responsivedocuments to plaintiff Lim’s Request for Production of Documents, Set No. One,within 30 days. See, C.C.P. § 2031.310(i). As to the Request for Production ofDocuments, Set No. One, such production shall be in compliance with C.C.P. §2031.280(a). In addition, any responsive documents not produced within 30 days,absent a showing of very good cause, will be excluded from production at any trialof this civil action. Finally, plaintiff Lim is awarded sanctions of $2,335.00, pursuantto C.C.P. § 2031.310(i), payable by defendant Imperial Spa and its counsel ofrecord.

3 12-606859VONGRUKSUKDIVS 24 HOURFITNESSMotion: Leave to File Cross-Complaint. Moving Party Defendant 24 HourFitness Inc. Responding Party None. Opposition: None.Ruling: The motion to file a cross-complaint is Granted. The cross-complaintarises from the same occurrence as the complaint. CCP 428.10(b). The crosscomplaintis to be served on Star Trac, Inc. no later than October 15, 2013 absentfurther order of the Court.Defendant is to give notice.4 12-609541SANCHEZ VSBREWERCOMPANY5 12-618937DELA CRUZ VSNATIONSTARMORTGAGEMotion: Leave to Withdraw. Moving Party Attorney Arnoldo Casillas, GregoryW. Moreno & Associates. Responding Party Plaintiff Jose David Sanchez,DDS. Opposition: None.Ruling: The motion of Gregory W. Moreno & Associates [The Firm] to withdraw isDenied without prejudice. The motion of Arnoldo Casillas to withdraw is Deniedwith prejudice. Neither the form motion nor the more detained motion states anaddress of record for the client. Nor is there a proposed order. As Mr. Casillas isnot attorney of record, he does not need leave of court to withdraw. Should theFirm move again to withdraw, the motion should be on judicial council forms only.Motion: Demurrer to Complaint. Moving Party Defendants Nationstar MortgageLLC, Aurora Bank FSB and Mortgage Electronic Registration Systems, Inc.Ruling: The demurrer by defendants Nationstar, Aurora and MERS to theDela Cruz plaintiffs’ first amended complaint is CONTINUED to 10-28-13,at 10:30 a.m., in Department C-26. Plaintiffs are ordered to serve theiropposition to defendants’ demurrer to their first amended complaint by fax and e-mail on counsel for defendants by the end of business on 10-3-13. Defendants mayfile a reply on the merits 5 court days before the continued hearing date. Nofurther briefing by plaintiffs. In addition, the OSC re: Dismissal is continued to 10-28-13, at 10:30 a.m., in Department C-26. Finally, plaintiff’s counsel is ordered toreview C.C.P. § 1014 and serve all further pleadings in this civil action on counselfor defendants as well as filing such pleadings with this court.Moving parties to give notice.8 13-647243MANLEY’SBOILER VSANTHONYMotion: Strike Costs and Motion to Tax Costs. Moving Party Plaintiff Manley’sBoiler, Inc. Responding Party Defendants Charles Anthony, Genaro Canseco andCanseco Boiler Services, Inc.RULING: Plaintiff’s motion to strike costs is DENIED. Its motion to taxcosts is GRANTED as to the $9.95 fee for electronic filing of Statement ofNo Opposition Received. It is DENIED in all other respects.Plaintiff is to give notice.11 13-666338DEL R.GALLARDO VS XLSPECIALTYINSURANCEMotion: Demurrer to Complaint and Motion to Strike. Moving PartyDefendants XL Specialty Insurance Co., Rainbow Disposal Co. Inc and David PerezSandoval. Responding Party Plaintiff Maraia Del R. Gallardo. Opposition: None.Ruling: The Demurrer to Complaint is Sustained with fifteen (15) daysleave to amend. Plaintiff did not allege facts supporting a Complaint againstdefendant XL Specialty Insurance Co. There are restrictions against suing a thirdpartyliability insurance carrier under these circumstance. See Ins Code 11580(b)(2), Ins Code 790.03 and Moradi Shalal v Fireman’s Fund Ins. Companies

(1988) 46 Cal 3d 287. The Motion to Strike is Granted with fifteen (15) days leaveto amend. Plaintiff merely alleged punitive damages without asserting a properbasis. “Not only must there be circumstances of oppression, fraud or malice, butfacts must be alleged in the pleading to support such a claim.” Grieves v SuperiorCourt (1984) 157 Cal App 3d 159, 166.

#1 11-510449BOHM VS LIVENATIONWORLDWIDEMotion: Strike Cost Memorandum of Costs in its Entirety; Alternatively,Tax Costs of Defendants of Live Nation Worldwide, Inc. and The IrvineCompany, LLC. Moving Party Plaintiff David Henry Bohm. Responding PartyDefendants Live Nation Worldwide, Inc. and The Irvine Company, LLC.Ruling: Plaintiff Bohm’s Motion to Tax Costs is Denied. This is not a properpost-judgment motion. A Judgment of Dismissal was signed by the Court on 4-11-13, and served on plaintiff’s counsel. A memorandum of Costs was filed on 4-23-13, and served on plaintiff’s counsel. No Motion to Strike or Tax the memorandumof Costs was received with the time period permitted by CRC 3.1700. An AmendedJudgment of Dismissal, including a judgment for costs, was signed by the Court on8-29-13. At this point, the Court cannot rule on this Motion. The Court does notconstrue this as a Motion to vacate the judgment since none of the necessarygrounds for relief are established. If there are grounds for vacating the judgment,they must be presented to the Court through the proper motion.3 12-574060NEHRING VSCORINTHIANCOLLEGESMotion: Stay Deposition and Quash Deposition. Moving Party Plaintiff EmilyNehring. Responding Party Defendants Corinthian Colleges, Inc. and Titan Schools,Inc.Ruling: Plaintiff Nehring’s motion to stay and quash the CorinthianDefendants’ deposition notice of 9-6-13 is DENIED because discovery onplaintiff’s new claim is permitted under the terms of the stipulationgranting plaintiff leave to file her second amended complaint. As part of thejoint ex parte application, attorney James Johnston, as counsel for plaintiffNehring, declared: “I spoke with counsel for Defendants on July 15, 2013. Weagreed that if Plaintiff is permitted to file a Second Amended Complaint,Defendants should have the right to take discovery as to the new matter and thenew claim, as well as to be able to file a motion for summary judgment as to theSecond Amended Complaint.” A second deposition of plaintiff Nehring, limited toher new “disparate impact” claim, is clearly encompassed within this stipulation.This second deposition of plaintiff Nehring, excluding breaks sought by plaintiff,shall be limited to two hours and to the new “disparate impact” claim asserted inplaintiff’s second amended complaint.Moving party to give notice.4 12-596260CLARK VSRICHARDSONMotion: Permit Representation. Moving Party Non-party MariePrince. Responding Party Defendant James Richardson.Ruling: The motion of Marie Prince to act as the personal representativeof the deceased Plaintiff is Denied without prejudice. She has not shownthat she is a beneficiary entitled to inherit the decedent’s property or successor ininterest to the cause of action under the trust instrument. CCP 377.11. Herevidence shows that she is only a successor trustee charged with administering theestate and not a beneficiary entitled to its assets. The Court raised this issuepreviously and it has not been addressed. In order to show that she has standingas a trustee administering the trust assets, the moving party must show that thislawsuit is an asset of the trust. She has not attached the trust document orotherwise shown that the proceeds or accounts receivable from Mr. Clark’s lawpractice are trust assets. Nor has the moving party shown that this lawsuit is atrust asset. Because Mr. Clark sued under his own name, unless the lawsuit isproperty of the trust, the decedent’s daughter is the proper plaintiff. It is notnecessary at this time to address whether the lawsuit is brought by the wrongplaintiff. Defendant has presented evidence that the law practice is a separateentity, which may be an issue for summary judgment in the future but is unrelatedto this motion.

Defendant is to give notice.5 12-615527YOUHANA VSWEST COASTSTORM, INC.6 12-618017WILSON VSSCOTTMotion: Compel Discovery Responses. Moving Party Defendants West CoastStorm, Inc., Traffic Control Service, Inc., Pablo Tabia. Responding PartyPlaintiff Basim Youhana. Opposition: None.Ruling: Defendants’ motion to compel responses to form and specialinterrogatories and production requests is Granted. Responses withoutobjections are due in fifteen (15) days. As there is no need for a reply orappearance, sanctions of $612.50 are awarded to Defendants against Plaintiffpayable within 30 days.Defendants are to give notice.Motion: Compel Further Discovery Responses. Moving Party Plaintiff RobertWilson. Responding Party Defendant Scott-Love Equities, Inc.The motion to compel further responses to written discovery is offcalendar [moot] as supplemental responses have beenreceived. Sanctions of $3405 are awarded against the respondingparty. The motion to compel further responses to deposition questions isDENIED.Plaintiff is to give notice.Written discovery: The motion was necessary. At the time it was filed, the trialdate was 9/30/13 and Defendant’s attorney had only promised to “consider” afurther response. Delshad declaration, 17.Although supplemental responses were prepared on 8/28, they were not served till8/30. Fong declaration, 19 & 20. There is no evidence that Defendants’ attorneystold Mr. Delshad they were coming. Even though they were delivered before themotion was filed, there is no evidence that Plaintiff’s attorney knew that theresponses were being supplemented before this motion was sent out for e-filing.Deposition objections: The Court declines to issue Plaintiff’s proposed orderregarding deposition questions. The order is too indefinite to enforce. Plaintiff isessentially asking for an advisory opinion regarding whether an instruction not toanswer a question that might be asked in the future is proper under someundefined circumstances. Without the specific questions to be answered, the issueis not ripe. There must be sufficient information “to permit a particularisticdetermination rather than a broad pronouncement rooted inabstractions.” O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1451.The PMK designation includes all issues raised by the complaint and answer. Todetermine whether a question is outside the scope of this designation, the Courtwould have to examine all the pleadings and determine whether the specificquestion is relevant to them.The Court notes that, given the similarity between Fed. Rules of Civ. Proc. Rule30(b)(6) and CCP §2025.230, the Court will be willing to consider federalauthorities, including Paparelli v. The Prudential Insurance Company ofAmerica (D. Mass. 1985) 108 FRD 727, should the issue become ripe.Documents to be produced in deposition are not mentioned in the notice of motionor the separate statement, so the Court makes no ruling as to them.

8 13-634569LINVILLE VS BSIFINANCIALSERVICESMotion: Application for Preliminary Injunction. Moving Party PlaintiffsRonny E. Linville and Jean M. Linville. Responding Party Defendant BSI FinancialServices, Inc.Ruling: The Linville plaintiffs’ application for a preliminary injunction isDENIED. The Linville plaintiffs presented sufficient evidence the Yorba Lindaproperty is their personal residence so irreparable harm is presumed. See, CivilCode § 3387, Jessen v. Keystone Sav. & Loan Ass’n (1983) 142 Cal.App.3d 454,458. But even with irreparable harm clearly established, the Linville plaintiffs stillhave the burden of demonstrating a possibility of prevailing on one or more of theircauses of action based on admissible evidence. See, Butt v. State of California(1992) 4 Cal.4 th 668, 678 and Continental Baking Co. v. Katz (1968) 68 Cal.2d512, 527. The Linville plaintiffs did not meet their burden of demonstrating somepossibility of prevailing on any of their causes of action based on admissibleevidence. As to plaintiffs’ first cause of action for violation of Civil Code § 2923.6,defendant BSI presented evidence of a loan modification offer that the Linvilleplaintiffs failed to respond to within 14 days. See, Civil Code § 2923.6(c)(2).Plaintiffs have no right to any appeal since defendant BSI did not deny theirrequest for a loan modification. See, Civil Code § 2923.6(d). As to plaintiffs’ secondcause of action for violation of Civil Code § 2924(a)(6), defendant BSI’s RJN,Exhibit A, established that Cal-Western had properly been substituted in as trustee.As to plaintiffs’ third cause of action for violation of Bus. & Prof. Code § 17200, theclaims based on Civil Code §§ 2923.6 and 2924 lack merit for the reasons notedabove. Also, defendants had authority to foreclose. Further, the other allegationsare not sufficiently definite to state a UCL cause of action. See, Khoury v. Maly’s ofCalifornia, Inc. (1993) 14 Cal.App.4 th 612, 619. Relatedly, the evidence the Linvilleplaintiffs did submit was as to alleged misrepresentations by representatives ofCitibank and plaintiffs have dismissed their claims against defendant CitiMortgagewithout prejudice. As to plaintiffs’ fourth cause of action for negligence, the claimsof negligence set forth in Paragraph 133 are negated by the evidence presented bydefendant BSI of a loan modification being considered, offered, not responded towithin 14 days, and then rejected by plaintiffs. Also, co-defendant Cal-Western wasproperly substituted in as trustee and thus had authority to foreclose. Further,plaintiffs have not presented evidence of any dual tracking by defendant BSI aftergiving notice of their claim of a change in financial circumstances. As to plaintiffs’fifth cause of action for an accounting, an accounting requires that some balancebe due to plaintiffs. See, Brea v. McGlashan (1934) 3 Cal.App.2d 454, 460. TheLinville plaintiffs have not presented evidence that some balance might be owed tothem by defendant BSI. Thus the Linville plaintiffs’ application for a preliminaryinjunction is denied.Moving parties to give notice

1 11-510449BOHM VS LIVENATIONWORLDWIDEMotion: Strike Cost Memorandum of Costs in its Entirety; Alternatively,Tax Costs of Defendants of Live Nation Worldwide, Inc. and The IrvineCompany, LLC. Moving Party Plaintiff David Henry Bohm. Responding PartyDefendants Live Nation Worldwide, Inc. and The Irvine Company, LLC.Ruling: Plaintiff Bohm’s Motion to Tax Costs is Denied. This is not a properpost-judgment motion. A Judgment of Dismissal was signed by the Court on 4-11-13, and served on plaintiff’s counsel. A memorandum of Costs was filed on 4-23-13, and served on plaintiff’s counsel. No Motion to Strike or Tax the memorandumof Costs was received with the time period permitted by CRC 3.1700. An AmendedJudgment of Dismissal, including a judgment for costs, was signed by the Court on8-29-13. At this point, the Court cannot rule on this Motion. The Court does notconstrue this as a Motion to vacate the judgment since none of the necessarygrounds for relief are established. If there are grounds for vacating the judgment,they must be presented to the Court through the proper motion.3 12-574060NEHRING VSCORINTHIANCOLLEGESMotion: Stay Deposition and Quash Deposition. Moving Party Plaintiff EmilyNehring. Responding Party Defendants Corinthian Colleges, Inc. and Titan Schools,Inc.Ruling: Plaintiff Nehring’s motion to stay and quash the CorinthianDefendants’ deposition notice of 9-6-13 is DENIED because discovery onplaintiff’s new claim is permitted under the terms of the stipulationgranting plaintiff leave to file her second amended complaint. As part of thejoint ex parte application, attorney James Johnston, as counsel for plaintiffNehring, declared: “I spoke with counsel for Defendants on July 15, 2013. Weagreed that if Plaintiff is permitted to file a Second Amended Complaint,Defendants should have the right to take discovery as to the new matter and thenew claim, as well as to be able to file a motion for summary judgment as to theSecond Amended Complaint.” A second deposition of plaintiff Nehring, limited toher new “disparate impact” claim, is clearly encompassed within this stipulation.This second deposition of plaintiff Nehring, excluding breaks sought by plaintiff,shall be limited to two hours and to the new “disparate impact” claim asserted inplaintiff’s second amended complaint.Moving party to give notice.4 12-596260CLARK VSRICHARDSONMotion: Permit Representation. Moving Party Non-party MariePrince. Responding Party Defendant James Richardson.Ruling: The motion of Marie Prince to act as the personal representativeof the deceased Plaintiff is Denied without prejudice. She has not shownthat she is a beneficiary entitled to inherit the decedent’s property or successor ininterest to the cause of action under the trust instrument. CCP 377.11. Herevidence shows that she is only a successor trustee charged with administering theestate and not a beneficiary entitled to its assets. The Court raised this issuepreviously and it has not been addressed. In order to show that she has standingas a trustee administering the trust assets, the moving party must show that thislawsuit is an asset of the trust. She has not attached the trust document orotherwise shown that the proceeds or accounts receivable from Mr. Clark’s lawpractice are trust assets. Nor has the moving party shown that this lawsuit is atrust asset. Because Mr. Clark sued under his own name, unless the lawsuit isproperty of the trust, the decedent’s daughter is the proper plaintiff. It is notnecessary at this time to address whether the lawsuit is brought by the wrongplaintiff. Defendant has presented evidence that the law practice is a separateentity, which may be an issue for summary judgment in the future but is unrelatedto this motion.Defendant is to give notice.

5 12-615527YOUHANA VSWEST COASTSTORM, INC.6 12-618017WILSON VSSCOTTMotion: Compel Discovery Responses. Moving Party Defendants West CoastStorm, Inc., Traffic Control Service, Inc., Pablo Tabia. Responding PartyPlaintiff Basim Youhana. Opposition: None.Ruling: Defendants’ motion to compel responses to form and specialinterrogatories and production requests is Granted. Responses withoutobjections are due in fifteen (15) days. As there is no need for a reply orappearance, sanctions of $612.50 are awarded to Defendants against Plaintiffpayable within 30 days.Defendants are to give notice.Motion: Compel Further Discovery Responses. Moving Party Plaintiff RobertWilson. Responding Party Defendant Scott-Love Equities, Inc.The motion to compel further responses to written discovery is offcalendar [moot] as supplemental responses have beenreceived. Sanctions of $3405 are awarded against the respondingparty. The motion to compel further responses to deposition questions isDENIED.Plaintiff is to give notice.Written discovery: The motion was necessary. At the time it was filed, the trialdate was 9/30/13 and Defendant’s attorney had only promised to “consider” afurther response. Delshad declaration, 17.Although supplemental responses were prepared on 8/28, they were not served till8/30. Fong declaration, 19 & 20. There is no evidence that Defendants’ attorneystold Mr. Delshad they were coming. Even though they were delivered before themotion was filed, there is no evidence that Plaintiff’s attorney knew that theresponses were being supplemented before this motion was sent out for e-filing.Deposition objections: The Court declines to issue Plaintiff’s proposed orderregarding deposition questions. The order is too indefinite to enforce. Plaintiff isessentially asking for an advisory opinion regarding whether an instruction not toanswer a question that might be asked in the future is proper under someundefined circumstances. Without the specific questions to be answered, the issueis not ripe. There must be sufficient information “to permit a particularisticdetermination rather than a broad pronouncement rooted inabstractions.” O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1451.The PMK designation includes all issues raised by the complaint and answer. Todetermine whether a question is outside the scope of this designation, the Courtwould have to examine all the pleadings and determine whether the specificquestion is relevant to them.The Court notes that, given the similarity between Fed. Rules of Civ. Proc. Rule30(b)(6) and CCP §2025.230, the Court will be willing to consider federalauthorities, including Paparelli v. The Prudential Insurance Company ofAmerica (D. Mass. 1985) 108 FRD 727, should the issue become ripe.Documents to be produced in deposition are not mentioned in the notice of motionor the separate statement, so the Court makes no ruling as to them.

7 12-618788SYSTEMSOLDING VSWHITLEYMotion: Demurrer to Third Amended Complaint. Moving Party DefendantEngs Commercial Finance Co. formerly known as Engs Motor Truct Co. RespondingParty Plaintiff System Solding (USA), Inc.Ruling: Defendant Engs Motor’s demurrer to plaintiff System Solding’sthird amended complaint is SUSTAINED. SUSTAINED, with 14 days leave toamend, as to plaintiff’s first cause of action for intentional misrepresentation andsecond cause of action for negligent misrepresentation. Plaintiff has not pled factsas to alleged misrepresentations by any authorized person of defendant Engs Motorwith specificity and particularity required to state these fraud causes ofaction. Tarmann v. State Farm Mutual Auto Ins. Co. (1991) 2 Cal.App.4 th 153,157.Also, plaintiff has not alleged sufficient facts as to actual and justifiable reliance onany purported misrepresentations by defendant Engs Motor. , Goldrich v. Natural YSurgical Specialties (1994) 25 Cal.App.4 th 772, 782 to 783. In particular, plaintiffSystem Solding has alleged fraudulent conduct on the part of co-defendant Whitleybut no similar a facts as to defendant Engs Motor. ( TAC, 61, 66, 67, 68 and 69,109, 110, 115, 116, 117, 118 and 119.) Plaintiff is granted leave to amend toallege sufficient facts to satisfy the standards set forth in Tarmann as to acorporate entities, and justifiable reliance as discussed in Goldrich. SUSTAINED,without leave to amend, as to plaintiffs’ sixth cause of action for declaratory reliefbecause plaintiff System Solding’s claims relate to past acts and/or such claims areencompassed within its other substantive causes of action. Osseous Tech. ofAmerica v. DiscoveryOrtho Partners (4 th Dist. 2010) 191 Cal.App.4 th 357, 367 andCalifornia Ins. Guarantee Ass’n v. Superior Court (1991) 231 Cal.App.3d 1617,1623 to 1624.In reviewing the court’s docket, defendants Whitley and BW Capital answeredplaintiff System Solding’s complaint on 8-5-13. But on 8-7-13, the default ofdefendant Bernard Whitley was entered by the court’s computer system. (Facesheet from Answer filed 8-5-13 and the Request for Entry of Judgment filed 8-7-13.) The glitch is that plaintiff sued Bernard Whitley, but this defendantanswered as Antonio Bernard Whitley. The court wishes to confirm that “BernardWhitley” is the same person as “Antonio Bernard Whitley,” and if so, the default ofBernard Whitley entered on 8-7-13 should be set aside.Moving party to give notice.8 13-634569LINVILLE VS BSIFINANCIALSERVICESMotion: Application for Preliminary Injunction. Moving Party PlaintiffsRonny E. Linville and Jean M. Linville. Responding Party Defendant BSI FinancialServices, Inc.Ruling: The Linville plaintiffs’ application for a preliminary injunction isDENIED. The Linville plaintiffs presented sufficient evidence the Yorba Lindaproperty is their personal residence so irreparable harm is presumed. See, CivilCode § 3387, Jessen v. Keystone Sav. & Loan Ass’n (1983) 142 Cal.App.3d 454,458. But even with irreparable harm clearly established, the Linville plaintiffs stillhave the burden of demonstrating a possibility of prevailing on one or more of theircauses of action based on admissible evidence. See, Butt v. State of California(1992) 4 Cal.4 th 668, 678 and Continental Baking Co. v. Katz (1968) 68 Cal.2d512, 527. The Linville plaintiffs did not meet their burden of demonstrating somepossibility of prevailing on any of their causes of action based on admissibleevidence. As to plaintiffs’ first cause of action for violation of Civil Code § 2923.6,defendant BSI presented evidence of a loan modification offer that the Linvilleplaintiffs failed to respond to within 14 days. See, Civil Code § 2923.6(c)(2).Plaintiffs have no right to any appeal since defendant BSI did not deny theirrequest for a loan modification. See, Civil Code § 2923.6(d). As to plaintiffs’ secondcause of action for violation of Civil Code § 2924(a)(6), defendant BSI’s RJN,Exhibit A, established that Cal-Western had properly been substituted in as trustee.As to plaintiffs’ third cause of action for violation of Bus. & Prof. Code § 17200, the

claims based on Civil Code §§ 2923.6 and 2924 lack merit for the reasons notedabove. Also, defendants had authority to foreclose. Further, the other allegationsare not sufficiently definite to state a UCL cause of action. See, Khoury v. Maly’s ofCalifornia, Inc. (1993) 14 Cal.App.4 th 612, 619. Relatedly, the evidence the Linvilleplaintiffs did submit was as to alleged misrepresentations by representatives ofCitibank and plaintiffs have dismissed their claims against defendant CitiMortgagewithout prejudice. As to plaintiffs’ fourth cause of action for negligence, the claimsof negligence set forth in Paragraph 133 are negated by the evidence presented bydefendant BSI of a loan modification being considered, offered, not responded towithin 14 days, and then rejected by plaintiffs. Also, co-defendant Cal-Western wasproperly substituted in as trustee and thus had authority to foreclose. Further,plaintiffs have not presented evidence of any dual tracking by defendant BSI aftergiving notice of their claim of a change in financial circumstances. As to plaintiffs’fifth cause of action for an accounting, an accounting requires that some balancebe due to plaintiffs. See, Brea v. McGlashan (1934) 3 Cal.App.2d 454, 460. TheLinville plaintiffs have not presented evidence that some balance might be owed tothem by defendant BSI. Thus the Linville plaintiffs’ application for a preliminaryinjunction is denied.Moving parties to give notice

#1 11-485610RUIZ VS TIA JUANAMANAGEMENT4 12-609541SANCHEZ VS THEBREWERCOMPANYMotion: Motion to be Relieved as Counsel. Moving Party Boyd ContrerasAPC. Responding Party Plaintiff Rodrigo Ruiz. Opposition: None.Ruling: The Motion to be Relieved as Counsel of Record is Granted uponthe Order to be Relieved being served upon the client.Motion: 1) Compel Response to Special Interrogatory, and 2) CompelResponse to Request for Production of Documents, Set Two. Moving PartyDefendant Henry Schein, Inc. Responding Party Plaintiff Jose DavidSanchez. Opposition: None.Ruling: As to Motion 1): Grant defendant Henry Schein’s motion tocompel a response to its special interrogatory by plaintiff Sanchez, withoutobjections, within 15 days of service of a notice of ruling. CCP2030.290(b). Also, Grant defendant Henry Schein’s request for sanctionsin the amount of $622.50, pursuant to 2030.290(c), payable by plaintiffSanchez only.Moving party to give notice.As to Motion 2): Grant defendant Henry Schein’s motion to compel aresponse to it’s Requests for Production of Documents, Set No. Two, byplaintiff Sanchez, without objections, within 15 days of service of a noticeof ruling. 2031.300(b). Also, Grant defendant Henry Schein’s request forsanctions in the amount of $510.00, pursuant to 2031.300(c), payable byplaintiff Sanchez only.Moving party to give notice.5 13-636615HOFFMAN VSHEINTZ8 12-594845HENDERSON VSBROADYMotion: Strike Punitive Damages. Moving Party Defendant KirkHeintz. Responding Party Plaintiff Richard Hoffman.Ruling: The Motion to Strike is Granted without leave to amend. Defendantshall file an Answer to the Complaint within fifteen (15 days). The Complaintalleges a “garden variety” traffic accident without any allegations of driving underthe influence. Conclusory characterization of defendant’s conduct at intentional,willful and fraudulent is a patently insufficient statement of “oppression, fraud, ormalice” within meaning of Civil Code 3294. Brousseau v Jarrett (1977) 73 Cal App3d 864, 872.Motion: Consolidate Actions. Moving Party Plaintiff DollyHenderson. Responding Party None. Opposition: None.Ruling: The motion to consolidate it taken under submission. Once proof isprovided to the Court that a copy of the motion has been filed in case 2013 649930as required by CRC 3.350(a)(1)(C), the motion will be granted pursuant to thestipulation. The Court deems any other defects in the motion to be waived by thestipulation to consolidate. The trial date remains. The parties are expected toconclude any additional discovery within the statutory period.9 13-644733 Motion: Order Authorizing Service Upon Corporation Through ServiceUpon Secretary of State. Moving Party Plaintiff Red Bull Distributor Co.,RED BULLDISTRIBUTIONInc. Responding Party Defendant T Danieli Holdings. POS: None. Opposition:None.COMPANY INC VS TDANIELIRuling: The Motion for Order Authorizing Service Upon CorporationHOLDINGS INC Through Service Upon Secretary of State is Granted.CASE MANAGEMENT CONFERENCE

11 13-660641ESQUIVIAS VSORANGE COUNTYIMMUNEINSTITUTEMotion: Demurrer to First Amended Complaint. Moving Party DefendantsOrange County Immune Institute, LLC [“OCII’]; Iraj Kiani; RoshiAkbarpour. Responding Party Plaintiff Luisa Esquivias.Ruling: Defendants’ demurrers to the 2 nd and 9 th causes of action of theFirst Amended Complaint are Sustained on the ground of failure to state acause of action. CCP 430.10(e). Plaintiff is granted 15 days leave toamend. The 2 nd cause of action for Harassment does not allege the required“severe and pervasive” conduct necessary to state a cause of action. CACI 2522A;2425. The 9 th cause of action for Intentional Infliction of Emotional Distress doesnot allege the required “outragous” conduct. CACI 1600; 1602.

#1 10-427198PAEZ VS NUNEZMotion: Demurrer to Complaint. Moving Party Defendant HoushangEsfahani. Responding Party Plaintiff Antonio Paez. Opposition: None.Ruling: The court should first confirm that defendant HoushangEsfahani’s bankruptcy has been discharged and that this civil matter cannow proceed as to this defendant who filed notice of stay on 10-28-11based his filing for bankruptcy. Plaintiff claims that bankruptcy filed bydefendant Esfahani was discharged on 3-7-13. (Plaintiff Paez’s CaseManagement Statement, p. 2 of 5.)On the merits, defendant Esfahani’s demurrer to plaintiff Paez’s complaint isoverruled in part and sustained in part. OVERRULED as to plaintiff’s fourthcause of action for premises liability. At this pleading stage plaintiff has allegedsufficient facts that defendant Esfahani was the owner of the property, had actualor constructive notice of a dangerous condition, failed to warn plaintiff of thisdangerous condition, and as a result plaintiff was injured. CACI § 1003 and Rutter,Personal Injury, Section 2:846. SUSTAINED, without leave to amend, as toplaintiff’s first cause of action for failure to obtain workers’ compensationinsurance, third cause of action for indemnification pursuant to Labor Code § 2802,fifth cause of action for peculiar risk, and seventh cause of action for breach ofcontract.As to plaintiff’s first cause of action for failure to obtain workers’ compensationinsurance, a landowner has no such obligation, and a landowner also has no dutyto ascertain whether an independent contractor has obtained suchcoverage. Lopez v. C.G.M. Development, Inc. (2004) 101 Cal.App.4 th 430, 444 to445.As to plaintiff’s third cause of action for indemnification pursuant to Labor Code §2802, plaintiff has alleged that co-defendant Trinidad Nunez was his employer, notdefendant Esfahani. (Complaint, 9 and 57.) Section 2802 provides forindemnification by an employer, and defendant Esfahani is not plaintiff Paez’semployer.As to plaintiff’s fifth cause of action for peculiar risk, the employer of anindependent contractor cannot assert a claim based on the peculiar risk doctrineagainst a hirer or landowner even if his employer has failed to secure workers’compensation insurance. Bell v. Greg Agee Construction, Inc. (2004) 125Cal.App.4 th 453, 466 to 467.As to plaintiff’s seventh cause of action for breach of contract, plaintiff Paez hasalleged that he orally contracted with co-defendant Trinidad Nunez and was hisemployee. (Complaint, 9 and 57.) Plaintiff has not alleged facts as to anycontract being entered into with defendant Esfahani and the terms thereof.2 12-617241HERIGSTAD VSANTONEMoving party to give notice.CASE MANAGEMENT CONFERENCEMotion: Quash Subpoena. Moving Party Defendants Candid and Duraid SAntone. Opposition: None.Ruling: Defendants’ motion to quash subpoenas served by Plaintiff on theBank of America, E-Trade Securities and Wells Fargo bank in connectionwith this case is Granted. The subpoenas are hereby quashed. Private financialrecords are irrelevant to a traffic accident case and punitive damages have not beenrequested or supported as required by CC 3295©. No sanctions are awardedbecause they were not requested in notice of motion.Defendants are to give notice.

3 12-618937DELA CRUZ VSNATIONSTARMORTGAGEMotion: Demurrer to First Amended Complaint. Moving Party DefendantsNationstar Mortgage LLC, Aurora Bank FSB and Mortgage Electronic RegistrationSystems. Responding Party Plaintiffs Jimmy Dela Cruz and Lydia Dela Cruz.Ruling: The demurrer by defendants Nationstar, Aurora and MERS to theDela Cruz plaintiffs’ first amended complaint is SUSTAINED without leaveto amend. The court notes that plaintiffs’ have essentially re-pled the same causesof action and not addressed the defects set forth in the court’s order of 9-30-13when defendants’ demurrer to plaintiffs’ complaint was sustained. The court thusassumes that the Dela Cruz plaintiffs have pled the strongest case that they canplead. As to plaintiffs’ first cause of action for negligent and recklessmisrepresentations, plaintiffs have not pled this cause of action with the specificityand particularity required. Tarmann v. State Farm Mutual Auto Ins. Co. (1991) 2Cal.App.4 th 153, 157. As to plaintiffs’ second cause of action for unfair businesspractices, plaintiffs have not pled sufficient facts as to any unlawful, unfair orfraudulent conduct on the part of defendants at this time. Khoury v. Maly’s ofCalifornia, Inc. (1993) 14 Cal.App.4 th 612, 619. Also, plaintiffs have not pled factsas to a proper remedy as damages are not recoverable in a UCL cause of action.Moses v. GMAC Mortgage, LLC, 2010 WL 2775634 (S.D. Cal. 2010) and Bus. &Prof. Code § 17203. As to plaintiffs’ third cause of action for declaratory relief andto quiet title, sufficient facts as to any actual controversy have not been pled. TheDela Cruz plaintiffs elected to enter into a loan modification so facts as toprocedural unconscionability have not been pled. Nyulassy v. Lockheed MartinCorp. (2004) 120 Cal.App.4 th 1267, 1280 to 1281. Also, an agreement must beboth procedurally and substantively unconscionable to permit the court to refuse toenforce the agreement or a given clause as unconscionable. Stirlen v. Supercuts,Inc. (1997) 51 Cal.App.4 th 1519, 1533. Next, plaintiffs presented no authority thatthey do not have to make payments on their outstanding debt because such lossesare allegedly covered by credit default swap insurance. Finally, a complaintasserting a claim to quiet title must be verified, and plaintiffs’ first amendedcomplaint is not verified. C.C.P. § 761.020. In addition, plaintiffs have failed toallege tender that is required to maintain a cause of action to quiet title. Kays v.Bundy (1949) 92 Cal.App.2d 497, 500.A demurrer should be sustained without leave when a party cannot articulate factsto demonstrate that a proper cause of action or causes of action can be pled.Hendy v. Losse (1991) 54 Cal.3d 723, 742. As noted above, since the Dela Cruzplaintiffs have essentially re-pled their same causes of action for negligence andreckless misrepresentation, violation of Bus. & Prof. Code § 17200, and fordeclaratory relief and to quiet title in plaintiffs’ first amended complaint, so thecourt presumes that the Dela Cruz plaintiffs have pled their strongest case. Hencethe demurrer by defendants Nationstar, Aurora and MERS to the causes of action inthe Dela Cruz’s first amended complaint is sustained without leave to amend.Moving party to give notice.5 13-631442MIN VS KANGCASE MANAGEMENT CONFERENCEOSC RE: DISMISSALMotion: Demurrer to Second Amended Complaint. Moving Party DefendantsDuk Hee Kang & Kwan Woo Lim. Responding Party Plaintiff Byung Young Min.Ruling: The Demurrer to the Second Amended Complaint isOverruled. Defendants shall file an Answer to the Second Amended Complaintwithin fifteen (15) days. The Second Amended Complaint consists of the ninecauses of action that this court previously upheld on July 1, 2013. Plaintiff onlydeleted the Ninth Cause of Action for Wrongful Termination, which had beensustained with leave to amend. Moving party filed an identical Demurrer to thesecond Amended Complaint. The only change was to refer to the First AmendedComplaint instead of the Second Amended Complaint. Of course, it was unnecessaryto demurer to the Ninth cause of Action for Wrongful Termination. There are no newfacts or arguments. A Judge is “foreclosed from rendering a new determination onthe viability of those claims unless some new facts or circumstances were brought tohis attention.” Bennett v Suncloud (1997) 56 Cal App 4 th 91, 97. It would be a

waste of time for the court to revisit the same facts and issues determined in theprevious Demurrer.6 13-632436JOHNSON VSCOSBYRELATED CASE 13-638323CROSBY VS JOHNSONMotion: Attorney’s Fee Award. Moving Party Responding/Plaintiff/CrossDefendant Robin J. Black. Responding Party Petitioner/Defendant/Cross PlaintiffDesiree E. Cosby.Ruling: Respondent Black’s motion for attorney’s fees is DENIED. Bus. &Prof. Code § 6203(c) is limited in scope to a party who prevails on a motion toconfirm, correct or vacate an arbitration award. Law Offices of David S. Karton v.Segreto (2009) 176 Cal.App.4 th 1, 7. Respondent Black has not prevailed on apetition to confirm, correct or vacate an arbitration award. Instead, respondentBlack prevailed on petitioner Cosby’s related petition to confirm the arbitrationaward. The court notes that at this time there is only an order sustainingrespondent Black’s demurrer without leave to amend, and that no judgment ofdismissal has been entered in Cosby v. Johnson, et al., O.C.S.C. Case No. 30-2013-00638323 in regard to that petition. With a trial de novo having beenconcluded to have been timely filed, respondent Black’s claim for attorney’s fees isgoverned by Bus. & Prof. Code § 6204(d). Section 6204(d) requires thatrespondent Black, as plaintiff in the civil action of Johnson, et al. v. Cosby,O.C.S.C. Case No. 30-2013-00632436, obtain a judgment more favorable than thatprovided by the attorney fee arbitration to be entitled to a potential award ofattorney’s fees in the discretion of the court. But no such judgment exists at thistime.Moving party to give notice.CASE MANAGEMENT CONFERENCE7 13-635908LOPEZ VSMARISCOS YTAQUERIAJUQUILITAMotion: Demurrer to First Amended Complaint and Motion toStrike. Moving Party Defendants Mariscos Y Taqueria Juquilita, Inc., SteveRamirez & Antonio Ramirez. Responding Party Plaintiffs Ines bellow Lopez & AnaC. Palacios. Opposition: None.Ruling: The Demurrer to the Complaint is SUSTAINED without leave toamend.The allegations concerning the contract are uncertain. Plaintiff did not correct thedefects in the original Complaint. No Opposition was filed.On the First Cause of Action for Relief Based on Rescission, Plaintiffs failed tocomply with Civil Code § 1691. Plaintiffs allegedly discovered the true facts onSeptember 19, 2011. (Page 9, lines 13- 14). Instead of seeking rescission at thattime, they remained in possession and sued 1 ½ years later. This delay causedsubstantial prejudice to Defendants.For the Second Cause of Action for Damages for Fraud,Plaintiffs failed to allege fraud with sufficient specificity. “In California, fraud mustbe pled specifically; general and conclusory allegations do not suffice. . . .[T]heplaintiff must ‘allege the names of the persons who made the allegedly fraudulentrepresentations, their authority to speak, to whom they spoke, what they said orwrote, and when it was said or written.’” Lazar v. Superior Court (1996) 12 Cal.4th631, 645On the Third Cause of Action for Money Had and Received, the money was notgiven to Defendants for Plaintiffs’ benefit As stated in “CACI No. 370, the plaintiffmust prove that the defendant received money ‘intended to be used for the benefitof [the plaintiff],’ that the money was not used for the plaintiff's benefit, and thatthe defendant has not given the money to the plaintiff.” Avidor v. Sutter's Place,

Inc. (2013) 212 Cal.App.4th 1439, 1454.The Motion to Strike is moot.8 13-639935SHABESTARY VSAMERICANS BUYAMERICAN9 13-652286KEFFALAS VSWELLS FARGOBANKMotion: File Cross-Complaint. Moving Party Defendant JenniferFarzami. Responding Party Plaintiff Muzayan Shabestary. Opposition: None.Ruling: The motion to file a cross-complaint is Granted pursuant to CCP426.50. The proposed cross-complaint is compulsory as it relates to thetransaction the complaint is based upon. Defendant is to electronically file andserve the cross-complaint within 5 court days.Motion: Application for a Preliminary Injunction. Moving Party Plaintiff JohnS. Keffalas. Responding Party Defendants wells Fargo bank, N.A., HSBC Bank USANational Association as Trustee for Wells Fargo Asset Securities Corporation,Mortgage Pass-Through Certificates Series 2007-2, and Northwest TrusteeServices, Inc.Ruling: Plaintiff Keffalas’ application for a preliminary injunction isGRANTED on condition that plaintiff first post a bond in the sum of$65,000.00. C.C.P. §§ 526(a)(3) and 529. Plaintiff Keffalas has presentedevidence that the subject Mission Viejo property is his personal residence soirreparable harm is presumed. Civil Code § 3387 and Jessen v. Keystone Sav. &Loan Ass’n (1983) 142 Cal.App.3d 454.Next, with irreparable harm clearly established, plaintiff Keffalas only needed todemonstrate some possibility of prevailing on some of his causes of action. See,Butt v. State of California (1992) 4 Cal.4 th 668, 678. Plaintiff Keffalas presentedevidence that he was not contacted before the Notice of Default was recorded on 1-25-13. (See, Keffalas Declaration, 3, 4 and 5.) The court notes that there wasno declaration by Frederick Gaston who executed the Declaration of Complianceattached to the Notice of Default recorded 1-25-13, and that Alisha Mulder’sdeclaration does not adequately address that contact was made and optionsexplored before the notice of default was filed.The court further notes that Paragraphs 5, 6, 7 and 8 of Ms. Mulder’s declarationwere not filed with the court. Thus plaintiff Keffalas has demonstrated somepossibility of prevailing on his causes of action for violation of Civil Code § 2923.5and violation of Bus. & Prof. Code § 17200 based on a claim for injunctive relief.Relatedly, C.C.P. § 529 requires plaintiff to post a bond as a condition for issuanceof an injunction. Such a bond is to include reasonable attorney’s fees to be incurredby a defendant or defendants to have the injunction removed. Abba Rubber Co. v.Seaquist (1991) 235 Cal.App.3d 1, 10. Reasonable attorney’s fees would be in therange of $40,000.00, and defendants are likely to incur unpaid mortgage paymentsin the range of $25,000.00. Past due sums of $48,780.94 would not be incurred asa result of the injunction. Hence, as a condition for issuance of a preliminaryinjunction, plaintiff Keffalas must post a bond of $65,000.00.Finally, plaintiff’s request for attorney’s fees of $3,310.00 under theHIBOR is DENIED without prejudice at this time.Request for Judicial Notice by Defendants Wells Fargo and HSBC Bank, asTrustee: Defendants Wells Fargo and HSBC Bank requested that the court takejudicial notice of the following documents: Exhibit 1, Deed of Trust filed 8-31-06,Exhibit 2, Assignment of Deed of Trust recorded 4-12-11, Exhibit 3, Notice ofDefault and Election to Sell Under Deed of Trust recorded 3-17-11, Exhibit 4,Notice of Election to Sell Under Deed of Trust recorded 1-25-13, and Exhibit 5,Notice of Trustee’s Sale recorded 5-3-13. GRANTED as to Exhibits 1 through 5, butsuch notice is limited to the filing of these documents with the county recorder’soffice and legal effect but not as to the truth of the matters set forththerein. Evidence Code § 452(h) and Fontenot v. Wells Fargo Bank, N.A. (2011)198 Cal.App.4 th 256, 265.

Moving party to give notice.12 13-644793MELENDEZ VSBAC HOME LOANSERVICINGMotion: Demurrer to First Amended Complaint. Moving Party Defendant Bankof America Home Loan Servicing, LP. Responding Party Plaintiff Robert and LorraineMelendez.Ruling: Defendant’s demurrer to the First and Second Causes of Action isSustained with 15 days leave to amend. Plaintiffs list a string of statutesallegedly violated by defendants, but fail to offer facts as to the individual statutoryviolations. There is no HBOR violation, as plaintiffs acknowledge that they neversubmitted a complete modification application and the records submitteddemonstrate that default was recorded in March of 2-012. Any viability as to theBusiness and Profession claim is dependent upon plaintiffs’ ability to establishstatutory claim sufficient to provide standing. As to the Third and Fourth Causes ofAction, the demurrer is sustained without leave, as defendant owes no duty toplaintiffs in this context—fiduciary or otherwise.

#1 12-572462ROS VS CHAOMotion: To Compel Further Responses to Deposition Questions. MovingParty Defendant Cynthia W. Chao, D.O. Responding Party Plaintiffs Somaly Rosand Nathan Ros and Third party deponent attorney Steven I. Brandwein.3 13-625475JM VSCAPISTRANOUNIFIED SCHOOLDISTRICTRuling: Defendant Dr. Chao’s motion to compel a further response by thirdparty attorney Steven Brandwein to various deposition questions isgranted in part and denied in part. GRANTED as to Question Nos. 1, 2, 3and 4, but DENIED as to Question Nos. 5, 6 and 7. The court notes thatdefendant Dr. Chao’s motion was filed within 60 days of the transcript beingcompleted and that a sufficient meet and confer occurred. C.C.P. § 2025.480(b).Also, a selection of the relevant deposition testimony was lodged, as well as acertified copy of the deposition transcript submitted, as required. C.C.P. §2025.480(h). As to Question No. 1, the court notes that this is a foundationalquestion that can simply be answered “Yes” or “No” by attorney Brandwein as towhether he knows if the March 17 letter to the Gibbs Law Firm was copied toplaintiffs or not. The question of whether attorney Brandwein actually copiedplaintiffs on this March 17 letter was not presented. However, to prevent the needfor further motions, and because the parties have briefed this issue, the court findsthat whether the Rose plaintiffs were actually copied with this March 17 letterwould constitute privileged information as it would be a communication between anattorney and client. Evidence Code § 952 and City & County of San Francisco v.Superior Court (1951) 37 Cal.2d 227, 235 to 236. As to Question Nos. 2, 3 and 4,attorney Brandwein’s general custom and practice relating to settlement demandauthorizations and communications of a response is sufficiently relevant asattorney Brandwein made a settlement demand on behalf of the Rose plaintiffs.Also, this would not involve privileged communications or attorney work productbecause these questions are not tied specifically to plaintiffs. As to Question No. 5,as to attorney Brandwein’s general custom and practice in concluding hisrepresentation, this question is not relevant as it does not bear on the standard ofcare, settlement demands or the statute of limitations issue. In addition, the courtfinds that attorney Brandwein sufficiently answered this general inquiry. AttorneyBrandwein testified that: “All I’m going to say is, I’m obligated --- I am obligated,in every case with every client, to inform them that I am no longer representingtheir interests, period. That’s all I can say.” [Lodged Deposition Transcript onAttorney Steven I. Brandwein, 44: 4 to 15.] Question No. 6 inquired whetherattorney Brandwein followed his general custom and practice in regard to the Roseplaintiffs. This question now seeks inquiry into the specific case of the Roseplaintiffs and thus constitutes privileged information. Question No. 7 as to whetherattorney Brandwein entered into some fee splitting arrangement with the GibbsLaw Firm is not relevant to any issue of the standard of care or statute oflimitations in this case. Finally, there was no request by either party for sanctions.In any event, proper issues as to the scope of the attorney client privilege and theattorney work product doctrine were at issue. Defense counsel is ordered to meetand confer with plaintiff’s counsel and attorney Brandwein to seek a mutuallyagreeable date for a further deposition of attorney Brandwein with such depositionto be completed on or before 11-27-13. Moving party to give notice.Motion: Demurrer to First Amended Complaint. Moving Party Defendant Kid’sFactory, a Program of the City of Mission Viejo. Responding Party Plaintiff J.M., aminor, by and through his Guardian Ad Litem, Juline Bennett.Ruling:Defendant Kid’s Factory’s Demurrer to Plaintiff J.M.’s FirstAmended Complaint is Sustained without leave to amend. As an elementaryschool related program, the school district in the City of Mission Viejo is the properdefendant. Education Code 35162. Plaintiff has already been granted conditionalleave to amend if discovery reveals a basis for a claim against defendant City ofMission Viejo and/or defendant Saddleback Valley Unified School District. (4-15-13Minute Order.) Such leave would encompass Kid’s factory as a program sponsored

y the City of Mission Viejo and operated by Saddleback Unified Schooldistrict. Moving party to give notice.4 13-635752McNULTY VSTHOMPSONNATIONALPROPERTIESMotion: Summary Judgment/Summary Adjudication. Moving Party PlaintiffNelson D. McNulty. Responding Party Defendants Thompson national Propertiesand Anthony W. Thompson.Ruling: Plaintiff’s motion for summary judgment is DENIED. In hiscomplaint, Plaintiff prays for interest but presents no evidence concerning howmuch interest has accrued and is owing. Therefore, he has not met his initialburden to prove ALL the damages sought. It is not necessary to consider theopposition or reply.In addition, as co-obligee on the $200,000, Marlene Hassel is an indispensableparty. [Plaintiff’s Ex. A] Family Code §910 relates to debts owed by the maritalcommunity; Plaintiff cites no authority that it has any relevance to debts owed tothe community.The loan on its face is usurious as Plaintiff is an individual and not one of the typesof persons or entities to which usury law does not apply under Cal. Const. Art. XV,§1(c). To come within the exception of Corp. Code §25211.5, Plaintiff mustpresent competent evidence that each defendant that he seeks by this motion tohold liable is a licensed securities broker.There is no evidence that Thompson National Properties, LLC is a licensedsecurities broker; apparently Plaintiff does not contend that it is. Nor is there anycompetent evidence that Mr. Thompson is a licensed broker. There is no showingthat the FINRA website is meets the requirements of Evidence Code §452(h), i.e.,is an authority of reasonably indisputable accuracy.Nor has Plaintiff complied with §453; his evidence is presented in a reply to asummary judgment motion with no notice and opportunity torespond. Consideration of such evidence would violate Defendants’ due processrights. San Diego Watercrafts Inc. v. Wells Fargo Bank, N.A. (2002) 102Cal.App.4th 308, 316.5 13-636306 Motion: 1) Compel Site Inspection, and 2) Compel Compliance withBAKMAN VS MRS. Request For Production of Documents, Set No. One. Moving Party PlaintiffGOOCH’S Thomas Bakman. Responding Party Defendant Mrs. Gooch’s Natural Food Markets,NATURAL FOODInc. dba Whole Foods Market.MARKETSRuling: 1) Plaintiff Bakman’s motion to compel site inspection atdefendant Whole Foods Market is DENIED. First, inspection of the videomonitors and video-surveillance equipment at the Whole Foods Market in Tustin isnot encompassed within the demand for site inspection served by plaintiff Bakmanon 7-1-13 in this case. The “property that is the subject of this litigation” is thearea of the store where plaintiff allegedly slipped and fell, and not the videomonitors and video-surveillance system. Second, plaintiff Bakman failed to conducta proper meet and confer before filing his motion to compel site inspection. C.C.P.§ 2031.310(b)(2). Finally, defendant Whole Foods Market is awarded sanctions of$1,250.00, pursuant to C.C.P. § 2031.310(h), payable by plaintiff Bakman and hiscounsel of record. This is without prejudice to plaintiff propounding a properdemand for inspection of the video-surveillance system in compliance with C.C.P. §2031.030(c)(1). Moving party to give notice.Defendant Whole Foods Market’s Evidentiary Objections: Declaration ofAttorney Melanie R. Harris: OVERRULED as to Objection Nos. 1, 2, 3, 4 and5. [NOTE: Even though defendant’s objections are not numbered, they wereaddressed in numerical sequence.]Defendant Whole Foods Market’s Request for Judicial Notice: Defendant

Whole Foods Market requests that the court take judicial notice of Exhibit A,Plaintiff Bakman’s Complaint in this civil action. GRANTED as to Exhibit A, butsuch notice is limited to the filing of this pleading with the court and not as to thetruth of any claims or contentions set forth therein. Evidence Code § 452(d) andDay v. Sharp (1975) 50 Cal.App.3d 904, 914.2) Plaintiff Bakman’s motion to compel compliance, actually a motion tocompel further Request For Production of Documents responses, isDENIED. C.C.P. § 2031.310(a). First, plaintiff’s motion to compel further RequestFor Production of Documents responses is untimely. C.C.P. § 2031.310(c) andSexton v. Superior Court (1997) 58 Cal.App.4 th 1403, 1410. Second, plaintiffBakman’s motion is procedurally defective for lack of a supporting separatestatement as required. Rule 3.1345(a)(3.) Finally, defendant Whole Foods Marketis awarded sanctions of $750.00, pursuant to C.C.P. § 2031.310(h), payable byplaintiff Bakman and his counsel of record. Moving party to give notice.7 13-652103KIM VSPREEMINENTINVESTMENTCORPORATIONMotion: Demurrer to Complaint. Moving Party Defendants One West Bank andDeutsche Bank. Responding Party Plaintiffs Yang Jai Kim and Sook HeeKim. Opposition: None.Ruling: The Request for Judicial Notice is GRANTED.The Demurrer to the First Cause of Action for Quiet Title is SUSTAINEDwithout leave to amend. C.C.P. § 761.020 (b) requires that Plaintiffs allege thatthey has title and the basis of the title. “[A] mortgagor of real property cannot,without paying his debt, quiet his title against the mortgagee.” Miller v. Provost(1994) 26 Cal.App.4th 1703, 1707.The Demurrer to the Second Cause of Action for Wrongful Foreclosure isSUSTAINED without leave to amend.The Demurrer to the Third Cause of Action for Fraud- Concealment &Suppression of Fact & Sixth Cause of Action for NegligentMisrepresentation is SUSTAINED without leave to amend.“In California, fraud must be pled specifically; general and conclusory allegationsdo not suffice. . . . ‘Thus the policy of liberal construction of the pleadings ... willnot ordinarily be invoked to sustain a pleading defective in any material respect.“This particularity requirement necessitates pleading facts which 'show how, when,where, to whom, and by what means the representations were tendered.' . . . Aplaintiff's burden in asserting a fraud claim against a corporate employer is evengreater. In such a case, the plaintiff must ‘allege the names of the persons whomade the allegedly fraudulent representations, their authority to speak, to whomthey spoke, what they said or wrote, and when it was said or written.’” Lazar v.Superior Court (1996) 12 Cal.4th 631, 645.The Demurrer to the Fourth Cause of Action for Intentional Infliction ofEmotional Distress is SUSTAINED without leave to amend.‘Outrageous conduct” is conduct that is intentional or reckless and so extreme as toexceed all bounds of decency in a civilized community.’” Ragland v. U.S. Bank Nat.Assn. (2012) 209 Cal.App.4th 182, 204. The mere act of foreclosure does notqualify. Without successfully alleging other wrongful acts, the cause of action fails.The Demurrer to the Fifth Cause of Action for Negligence is SUSTAINEDwithout leave to amend.A financial lender in its traditional role does not owe a duty of care to the borrower.Oaks Management Corp. v. Superior Court (2006) 145 Cal. App. 4 th 453,466. There are no allegations that Defendants exceeded the role of a traditionallender.

The Demurrer to the Seventh Cause of Action for Violation of RosenthalFair Debt Collection Act is SUSTAINED without leave to amend.“Foreclosing on a property pursuant to a deed of trust is not the collection of a debtwithin the meaning of the FDCPA.” Izenberg v. ETS Services, LLC 589 F.Supp.2d1193, 1199 (C.D.Cal., 2008).The Demurrer to the Eighth Cause of Action for Violation of Fair DebtCollection Act [Business & Professions Code § 17200] is SUSTAINEDwithout leave to amend.Plaintiff failed to allege unfair, illegal or fraudulent conduct. “A plaintiff allegingunfair business practices under these statutes must state with reasonableparticularity the facts supporting the statutory elements of the violation.” Khoury v.Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.The Demurrer to the Ninth Cause of Action for Declaratory Relief isSUSTAINED without leave to amend. There is no actual controversy pendingbetween the parties. Ratcliff Architects v. Vanir Construction Management (2001)88 Cal. App.4 th 595, 601.“Plaintiff must show in what manner he can amend his complaint and how thatamendment will change the legal effect of his pleading.” Goodman v.Kennedy (1976) 18 Cal.3d 335, 349. Therefore, leave to amend is denied.Case Management Conference continued to 12-16-13 at 8:30 a.m.8 13-652469BERRETH VSBUENA PARKELEMENTARYSCHOOLDISTRICTMotion: Demurrer to Complaint. Moving Party Defendant Buena ParkElementary School District. Responding Party Plaintiff TedBerreth. Opposition: None.Ruling: Defendant Buena Park Elementary School District’s Demurrer toPlaintiff Berreth’s Complaint is SUSTAINED. Sustained, with leave to amend,as to plaintiff’s first cause of action for discrimination based on race. PlaintiffBerreth has not alleged sufficient facts with the specificity required, particularlyfacts as to some alleged discrimination based on race, to state this cause of actionagainst a governmental entity. Searcy v. Hemet Unified School District (1986) 177Cal.App.3d 792, 802. SUSTAINED, without leave to amend, as to plaintiff’ssecond cause of action for wrongful termination in violation of public policybecause this common law cause of action cannot be asserted against agovernmental entity. Gov’t Code § 815 and Miklosy v. Regents of the University ofCalifornia (2008) 44 Cal.4 th 876, 899 to 900. Moving party to give notice.Case Management Conference continued to 12-16-13 at 8:30 a.m.9 13-661652CITY OFANAHEIM VSANAHEIMPATIENT GROUPMotion: OSC re: Preliminary Injunction. Moving Party Plaintiff City ofAnaheim. Responding Party Defendants Anaheim Patient Group, Ana Herrera,Brandy Stings, Edward Chen and Julie Chen.Ruling: The Request for Judicial Notice is Granted. The PreliminaryInjunction is Granted as to Defendants Anaheim Patient group, AnaHerrera, Edward Chen and Julie Chen. The Preliminary Injunction isDenied without prejudice as to Brandy Strings. The City established that apublic nuisance occurred, because of violation of Anaheim Municipal Code section4.20.030. The City has authority to ban marijuana dispensaries. City of Riversidev Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal 4 th729. The Declarations of Jesse Penunuri and Shane Carringer established thatDefendant Anaheim Patient group operates a marijuana dispensary at 1676 W.Lincoln in Anaheim. The Grant Deed established Defendants Edward Chen andJulie Chen owned and leased the real property. (Exhibit C of Declaration of

10 13-663046KELLSTROM VSOCWEN FINANCIALCORPORATIONChristopher Whyte). The letters from Edward Chen to Ana Herrera established thatshe was the tenant at 1676 W Lincoln in Anaheim. (Exhibit C of Declaration ofJesse Penunuri). Since the City of Anaheim failed to introduce any evidenceconcerning defendant Brandy string, the Preliminary Injunction is denied withoutprejudice as to that person.Motion: Demurrer to Complaint. Moving Party Defendants Ocwen LoanServicing, LLC and Litton Loan Servicing, LP. Responding Party Plaintiff ChrisKellstrom. Opposition: None.Ruling: Defendants’ Demurrer to the 1st and 2d causes of action of theComplaint is SUSTAINED without leave to amend. The demurrer to the 3rdCause of Action is SUSTAINED with 15 days’ leave to amend. Defendant isto give notice.Plaintiff admits that the foreclosure has taken place. Therefore, Plaintiff no longerhas an enforceable right under CC §2923.5. Mabry v. Superior Court (2010) 185Cal.App.4th 208, 223, 225. The §17200 cause of action is based on the sameallegations and fails for the same reason.In amending the 3rd cause of action, Plaintiff must allege with specificity whatrepresentations of past or existing facts were made. A cause of action fornegligent misrepresentation cannot be based on a false promise or a prediction offuture events. Tarmann v. State Farm Mutual Auto. Ins. Co. (1991) 2 Cal.App.4th153, 158-159. Plaintiff must allege with specificity what the representations were,who made them, and how he detrimentally relied upon them. Were the trialmodification payments more than the rental value of the property? Plaintiff admitsthe default; how could Plaintiff have redeemed the property if not for therepresentations?A second unopposed demurrer will be sustained without leave to amend. Herzbergv. County of Plumas (2005) 133 Cal.App.4th 1, 20.12 13-673268GLOBALOPTIONSVS BUTLERMotion: Deposit Funds With The Court And For Award Of Attorneys’ Feesand Costs. Moving Party Plaintiff GlobalOptions, Inc. Responding Party DefendantSteven S. Butler.Ruling: The motion by Plaintiff to interplead funds in the amount of$26,944.49 with the court is Granted. Upon plaintiff’s deposit of the disputedfunds with the clerk of the court, plaintiff is to be discharged. Plaintiff is awardedattorneys’ fees and costs in the amount of $8,084.01, to be paid from thedeposited funds. Counsel for moving party to prepare an Order and give notice.

#1 12-572462ROS VS CHAOMotion: To Compel Further Responses to Deposition Questions. MovingParty Defendant Cynthia W. Chao, D.O. Responding Party Plaintiffs Somaly Rosand Nathan Ros and Third party deponent attorney Steven I. Brandwein.3 13-625475JM VSCAPISTRANOUNIFIED SCHOOLDISTRICTRuling: Defendant Dr. Chao’s motion to compel a further response by thirdparty attorney Steven Brandwein to various deposition questions isgranted in part and denied in part. GRANTED as to Question Nos. 1, 2, 3and 4, but DENIED as to Question Nos. 5, 6 and 7. The court notes thatdefendant Dr. Chao’s motion was filed within 60 days of the transcript beingcompleted and that a sufficient meet and confer occurred. C.C.P. § 2025.480(b).Also, a selection of the relevant deposition testimony was lodged, as well as acertified copy of the deposition transcript submitted, as required. C.C.P. §2025.480(h). As to Question No. 1, the court notes that this is a foundationalquestion that can simply be answered “Yes” or “No” by attorney Brandwein as towhether he knows if the March 17 letter to the Gibbs Law Firm was copied toplaintiffs or not. The question of whether attorney Brandwein actually copiedplaintiffs on this March 17 letter was not presented. However, to prevent the needfor further motions, and because the parties have briefed this issue, the court findsthat whether the Rose plaintiffs were actually copied with this March 17 letterwould constitute privileged information as it would be a communication between anattorney and client. Evidence Code § 952 and City & County of San Francisco v.Superior Court (1951) 37 Cal.2d 227, 235 to 236. As to Question Nos. 2, 3 and 4,attorney Brandwein’s general custom and practice relating to settlement demandauthorizations and communications of a response is sufficiently relevant asattorney Brandwein made a settlement demand on behalf of the Rose plaintiffs.Also, this would not involve privileged communications or attorney work productbecause these questions are not tied specifically to plaintiffs. As to Question No. 5,as to attorney Brandwein’s general custom and practice in concluding hisrepresentation, this question is not relevant as it does not bear on the standard ofcare, settlement demands or the statute of limitations issue. In addition, the courtfinds that attorney Brandwein sufficiently answered this general inquiry. AttorneyBrandwein testified that: “All I’m going to say is, I’m obligated --- I am obligated,in every case with every client, to inform them that I am no longer representingtheir interests, period. That’s all I can say.” [Lodged Deposition Transcript onAttorney Steven I. Brandwein, 44: 4 to 15.] Question No. 6 inquired whetherattorney Brandwein followed his general custom and practice in regard to the Roseplaintiffs. This question now seeks inquiry into the specific case of the Roseplaintiffs and thus constitutes privileged information. Question No. 7 as to whetherattorney Brandwein entered into some fee splitting arrangement with the GibbsLaw Firm is not relevant to any issue of the standard of care or statute oflimitations in this case. Finally, there was no request by either party for sanctions.In any event, proper issues as to the scope of the attorney client privilege and theattorney work product doctrine were at issue. Defense counsel is ordered to meetand confer with plaintiff’s counsel and attorney Brandwein to seek a mutuallyagreeable date for a further deposition of attorney Brandwein with such depositionto be completed on or before 11-27-13. Moving party to give notice.Motion: Demurrer to First Amended Complaint. Moving Party Defendant Kid’sFactory, a Program of the City of Mission Viejo. Responding Party Plaintiff J.M., aminor, by and through his Guardian Ad Litem, Juline Bennett.Ruling:Defendant Kid’s Factory’s Demurrer to Plaintiff J.M.’s FirstAmended Complaint is Sustained without leave to amend. As an elementaryschool related program, the school district in the City of Mission Viejo is the properdefendant. Education Code 35162. Plaintiff has already been granted conditionalleave to amend if discovery reveals a basis for a claim against defendant City ofMission Viejo and/or defendant Saddleback Valley Unified School District. (4-15-13Minute Order.) Such leave would encompass Kid’s factory as a program sponsored

y the City of Mission Viejo and operated by Saddleback Unified Schooldistrict. Moving party to give notice.4 13-635752McNULTY VSTHOMPSONNATIONALPROPERTIESMotion: Summary Judgment/Summary Adjudication. Moving Party PlaintiffNelson D. McNulty. Responding Party Defendants Thompson national Propertiesand Anthony W. Thompson.Ruling: Plaintiff’s motion for summary judgment is DENIED. In hiscomplaint, Plaintiff prays for interest but presents no evidence concerning howmuch interest has accrued and is owing. Therefore, he has not met his initialburden to prove ALL the damages sought. It is not necessary to consider theopposition or reply.In addition, as co-obligee on the $200,000, Marlene Hassel is an indispensableparty. [Plaintiff’s Ex. A] Family Code §910 relates to debts owed by the maritalcommunity; Plaintiff cites no authority that it has any relevance to debts owed tothe community.The loan on its face is usurious as Plaintiff is an individual and not one of the typesof persons or entities to which usury law does not apply under Cal. Const. Art. XV,§1(c). To come within the exception of Corp. Code §25211.5, Plaintiff mustpresent competent evidence that each defendant that he seeks by this motion tohold liable is a licensed securities broker.There is no evidence that Thompson National Properties, LLC is a licensedsecurities broker; apparently Plaintiff does not contend that it is. Nor is there anycompetent evidence that Mr. Thompson is a licensed broker. There is no showingthat the FINRA website is meets the requirements of Evidence Code §452(h), i.e.,is an authority of reasonably indisputable accuracy.Nor has Plaintiff complied with §453; his evidence is presented in a reply to asummary judgment motion with no notice and opportunity torespond. Consideration of such evidence would violate Defendants’ due processrights. San Diego Watercrafts Inc. v. Wells Fargo Bank, N.A. (2002) 102Cal.App.4th 308, 316.5 13-636306 Motion: 1) Compel Site Inspection, and 2) Compel Compliance withBAKMAN VS MRS. Request For Production of Documents, Set No. One. Moving Party PlaintiffGOOCH’S Thomas Bakman. Responding Party Defendant Mrs. Gooch’s Natural Food Markets,NATURAL FOODInc. dba Whole Foods Market.MARKETSRuling: 1) Plaintiff Bakman’s motion to compel site inspection atdefendant Whole Foods Market is DENIED. First, inspection of the videomonitors and video-surveillance equipment at the Whole Foods Market in Tustin isnot encompassed within the demand for site inspection served by plaintiff Bakmanon 7-1-13 in this case. The “property that is the subject of this litigation” is thearea of the store where plaintiff allegedly slipped and fell, and not the videomonitors and video-surveillance system. Second, plaintiff Bakman failed to conducta proper meet and confer before filing his motion to compel site inspection. C.C.P.§ 2031.310(b)(2). Finally, defendant Whole Foods Market is awarded sanctions of$1,250.00, pursuant to C.C.P. § 2031.310(h), payable by plaintiff Bakman and hiscounsel of record. This is without prejudice to plaintiff propounding a properdemand for inspection of the video-surveillance system in compliance with C.C.P. §2031.030(c)(1). Moving party to give notice.Defendant Whole Foods Market’s Evidentiary Objections: Declaration ofAttorney Melanie R. Harris: OVERRULED as to Objection Nos. 1, 2, 3, 4 and5. [NOTE: Even though defendant’s objections are not numbered, they wereaddressed in numerical sequence.]Defendant Whole Foods Market’s Request for Judicial Notice: Defendant

Whole Foods Market requests that the court take judicial notice of Exhibit A,Plaintiff Bakman’s Complaint in this civil action. GRANTED as to Exhibit A, butsuch notice is limited to the filing of this pleading with the court and not as to thetruth of any claims or contentions set forth therein. Evidence Code § 452(d) andDay v. Sharp (1975) 50 Cal.App.3d 904, 914.2) Plaintiff Bakman’s motion to compel compliance, actually a motion tocompel further Request For Production of Documents responses, isDENIED. C.C.P. § 2031.310(a). First, plaintiff’s motion to compel further RequestFor Production of Documents responses is untimely. C.C.P. § 2031.310(c) andSexton v. Superior Court (1997) 58 Cal.App.4 th 1403, 1410. Second, plaintiffBakman’s motion is procedurally defective for lack of a supporting separatestatement as required. Rule 3.1345(a)(3.) Finally, defendant Whole Foods Marketis awarded sanctions of $750.00, pursuant to C.C.P. § 2031.310(h), payable byplaintiff Bakman and his counsel of record. Moving party to give notice.7 13-652103KIM VSPREEMINENTINVESTMENTCORPORATIONMotion: Demurrer to Complaint. Moving Party Defendants One West Bank andDeutsche Bank. Responding Party Plaintiffs Yang Jai Kim and Sook HeeKim. Opposition: None.Ruling: The Request for Judicial Notice is GRANTED.The Demurrer to the First Cause of Action for Quiet Title is SUSTAINEDwithout leave to amend. C.C.P. § 761.020 (b) requires that Plaintiffs allege thatthey has title and the basis of the title. “[A] mortgagor of real property cannot,without paying his debt, quiet his title against the mortgagee.” Miller v. Provost(1994) 26 Cal.App.4th 1703, 1707.The Demurrer to the Second Cause of Action for Wrongful Foreclosure isSUSTAINED without leave to amend.The Demurrer to the Third Cause of Action for Fraud- Concealment &Suppression of Fact & Sixth Cause of Action for NegligentMisrepresentation is SUSTAINED without leave to amend.“In California, fraud must be pled specifically; general and conclusory allegationsdo not suffice. . . . ‘Thus the policy of liberal construction of the pleadings ... willnot ordinarily be invoked to sustain a pleading defective in any material respect.“This particularity requirement necessitates pleading facts which 'show how, when,where, to whom, and by what means the representations were tendered.' . . . Aplaintiff's burden in asserting a fraud claim against a corporate employer is evengreater. In such a case, the plaintiff must ‘allege the names of the persons whomade the allegedly fraudulent representations, their authority to speak, to whomthey spoke, what they said or wrote, and when it was said or written.’” Lazar v.Superior Court (1996) 12 Cal.4th 631, 645.The Demurrer to the Fourth Cause of Action for Intentional Infliction ofEmotional Distress is SUSTAINED without leave to amend.‘Outrageous conduct” is conduct that is intentional or reckless and so extreme as toexceed all bounds of decency in a civilized community.’” Ragland v. U.S. Bank Nat.Assn. (2012) 209 Cal.App.4th 182, 204. The mere act of foreclosure does notqualify. Without successfully alleging other wrongful acts, the cause of action fails.The Demurrer to the Fifth Cause of Action for Negligence is SUSTAINEDwithout leave to amend.A financial lender in its traditional role does not owe a duty of care to the borrower.Oaks Management Corp. v. Superior Court (2006) 145 Cal. App. 4 th 453,466. There are no allegations that Defendants exceeded the role of a traditionallender.

The Demurrer to the Seventh Cause of Action for Violation of RosenthalFair Debt Collection Act is SUSTAINED without leave to amend.“Foreclosing on a property pursuant to a deed of trust is not the collection of a debtwithin the meaning of the FDCPA.” Izenberg v. ETS Services, LLC 589 F.Supp.2d1193, 1199 (C.D.Cal., 2008).The Demurrer to the Eighth Cause of Action for Violation of Fair DebtCollection Act [Business & Professions Code § 17200] is SUSTAINEDwithout leave to amend.Plaintiff failed to allege unfair, illegal or fraudulent conduct. “A plaintiff allegingunfair business practices under these statutes must state with reasonableparticularity the facts supporting the statutory elements of the violation.” Khoury v.Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.The Demurrer to the Ninth Cause of Action for Declaratory Relief isSUSTAINED without leave to amend. There is no actual controversy pendingbetween the parties. Ratcliff Architects v. Vanir Construction Management (2001)88 Cal. App.4 th 595, 601.“Plaintiff must show in what manner he can amend his complaint and how thatamendment will change the legal effect of his pleading.” Goodman v.Kennedy (1976) 18 Cal.3d 335, 349. Therefore, leave to amend is denied.Case Management Conference continued to 12-16-13 at 8:30 a.m.8 13-652469BERRETH VSBUENA PARKELEMENTARYSCHOOLDISTRICTMotion: Demurrer to Complaint. Moving Party Defendant Buena ParkElementary School District. Responding Party Plaintiff TedBerreth. Opposition: None.Ruling: Defendant Buena Park Elementary School District’s Demurrer toPlaintiff Berreth’s Complaint is SUSTAINED. Sustained, with leave to amend,as to plaintiff’s first cause of action for discrimination based on race. PlaintiffBerreth has not alleged sufficient facts with the specificity required, particularlyfacts as to some alleged discrimination based on race, to state this cause of actionagainst a governmental entity. Searcy v. Hemet Unified School District (1986) 177Cal.App.3d 792, 802. SUSTAINED, without leave to amend, as to plaintiff’ssecond cause of action for wrongful termination in violation of public policybecause this common law cause of action cannot be asserted against agovernmental entity. Gov’t Code § 815 and Miklosy v. Regents of the University ofCalifornia (2008) 44 Cal.4 th 876, 899 to 900. Moving party to give notice.Case Management Conference continued to 12-16-13 at 8:30 a.m.9 13-661652CITY OFANAHEIM VSANAHEIMPATIENT GROUPMotion: OSC re: Preliminary Injunction. Moving Party Plaintiff City ofAnaheim. Responding Party Defendants Anaheim Patient Group, Ana Herrera,Brandy Stings, Edward Chen and Julie Chen.Ruling: The Request for Judicial Notice is Granted. The PreliminaryInjunction is Granted as to Defendants Anaheim Patient group, AnaHerrera, Edward Chen and Julie Chen. The Preliminary Injunction isDenied without prejudice as to Brandy Strings. The City established that apublic nuisance occurred, because of violation of Anaheim Municipal Code section4.20.030. The City has authority to ban marijuana dispensaries. City of Riversidev Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal 4 th729. The Declarations of Jesse Penunuri and Shane Carringer established thatDefendant Anaheim Patient group operates a marijuana dispensary at 1676 W.Lincoln in Anaheim. The Grant Deed established Defendants Edward Chen andJulie Chen owned and leased the real property. (Exhibit C of Declaration of

10 13-663046KELLSTROM VSOCWEN FINANCIALCORPORATIONChristopher Whyte). The letters from Edward Chen to Ana Herrera established thatshe was the tenant at 1676 W Lincoln in Anaheim. (Exhibit C of Declaration ofJesse Penunuri). Since the City of Anaheim failed to introduce any evidenceconcerning defendant Brandy string, the Preliminary Injunction is denied withoutprejudice as to that person.Motion: Demurrer to Complaint. Moving Party Defendants Ocwen LoanServicing, LLC and Litton Loan Servicing, LP. Responding Party Plaintiff ChrisKellstrom. Opposition: None.Ruling: Defendants’ Demurrer to the 1st and 2d causes of action of theComplaint is SUSTAINED without leave to amend. The demurrer to the 3rdCause of Action is SUSTAINED with 15 days’ leave to amend. Defendant isto give notice.Plaintiff admits that the foreclosure has taken place. Therefore, Plaintiff no longerhas an enforceable right under CC §2923.5. Mabry v. Superior Court (2010) 185Cal.App.4th 208, 223, 225. The §17200 cause of action is based on the sameallegations and fails for the same reason.In amending the 3rd cause of action, Plaintiff must allege with specificity whatrepresentations of past or existing facts were made. A cause of action fornegligent misrepresentation cannot be based on a false promise or a prediction offuture events. Tarmann v. State Farm Mutual Auto. Ins. Co. (1991) 2 Cal.App.4th153, 158-159. Plaintiff must allege with specificity what the representations were,who made them, and how he detrimentally relied upon them. Were the trialmodification payments more than the rental value of the property? Plaintiff admitsthe default; how could Plaintiff have redeemed the property if not for therepresentations?A second unopposed demurrer will be sustained without leave to amend. Herzbergv. County of Plumas (2005) 133 Cal.App.4th 1, 20.12 13-673268GLOBALOPTIONSVS BUTLERMotion: Deposit Funds With The Court And For Award Of Attorneys’ Feesand Costs. Moving Party Plaintiff GlobalOptions, Inc. Responding Party DefendantSteven S. Butler.Ruling: The motion by Plaintiff to interplead funds in the amount of$26,944.49 with the court is Granted. Upon plaintiff’s deposit of the disputedfunds with the clerk of the court, plaintiff is to be discharged. Plaintiff is awardedattorneys’ fees and costs in the amount of $8,084.01, to be paid from thedeposited funds. Counsel for moving party to prepare an Order and give notice.

HON. DAVID THOMAS MCEACHENSuperior Court of Orange CountyBorn: 1942, Los Angeles, CaliforniaUndergraduate: Oregon State Univ. 1964Law School: Southwestern Univ., 1974Admitted to Practice: 1974Appointed to the Bench: 1993Appointed by: Pete Wilson, RepublicanOther EmploymentInsurance Agent, Hamman Miller & Beauchamp, Long Beach, California, 1969-71Career as an AttorneyLaw Clerk, Allen Wilson & George, Long Beach, California, 1972-75Associate, Allen Wilson & George, Long Beach, California, 1975-78Associate, Baird & Baird, Long Beach, Los Angeles County, California, 1978-79Attorney, Community Bank, Pasadena, Los Angeles County, California, 1979-90Other Judicial OfficeAssignments:Judge, Municipal Court, North Orange County Judicial District, 1990-92Presiding Judge, Criminal Panel, 1993-97Initiated Orange County Drug Court, Orange County, California, 1995-97Civil Panel, 1998-2001Supervising Judge of the Civil Panel, 2001Assistant Presiding Judge, 2002-03, Civil Panel, 2004Relevant Organizational AffiliationsMember:American Bar Association, 1975-Rossmoor Homeowners Association, Rossmoor, Orange County, California, 1975-(Director, 1988-89)Orange County Bar Association, 1985-

California Judges Association, 1990- (Board of Directors, 2003-06)Robert A. Banyard American Inn of Court, 1994- (President, 2000-01)Orange County Bar Foundation, 1994-Victim/Witness Service Program (Governing Board, 1994)St. Thomas Moore Society, (Board of Directors, 1998)Orange County Community Housing Authority Advisory Board, 1999-American Board of Trial Advocates, 2001-Member, Board of Directors, ABTL, Orange County, California, 2001-Celtic Bar Association, 2003Other informationMilitary Service:Ensign to Lieutenant (Senior Grade) U.S. Navy, 1964-69Vietnam, (two tours, 1965-66 & 1967-68)Executive Officer, USS Prime (MSO-466)Admissions:U.S. District Court, Central District of California, 1975U.S. Supreme Court, 1985Political/Religious Affiliation:Republican/Roman CatholicNote of Interest:Judge McEachen is the grandson of David Roth, the famous and foremost expert onmemory.Notable Case:March 16, 2006Judge McEachen issued a court order to stop payments to a Nigerian internet solicitationscam. Louis Gottschalk, the founding chairman of the department of psychiatry at theUniversity of California, Irvine, and head of an $8 million family partnership had beensending large sums of money for over ten years to Nigeria. His son, Guy Gottschalk wassuccessful in stopping his father from wiring any more money to Nigeria. After JudgeMcEachen issued the court order Louis admitted that he had been scammed out of$300,000, but the lawsuit stated that he had given out as much as $3 million dollars.

RULINGS ON LAW & MOTION MATTERSJUDGE DAVID T. McEACHENDEPARTMENT C-21LAW & MOTION IS HEARD ON TUESDAYS AT 1:30 PMPlease read rules carefully. Do not call department unless submitting on thetentative.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings/mceachen.asp by 4:00 pm on Monday. The rulings will alsobe posted outside the courtroom on the bulletin board for those counsel without internetaccess, no later than 10:00 am on the day of the scheduled motion.The Law & Motion hearings are scheduled on Tuesday at 1:30 pm and all arguments will beheard at that time. No supplemental or additional papers will be allowed to be submittedfollowing posting of the ruling on the internet, nor will the Court entertain a request forcontinuance once the ruling has been posted.APPEARANCES: The Court will hear oral argument on all matters at the time noticed forthe hearing. If you intend to submit on the tentative and do not want oral argument, pleasenotice the clerk by calling (657) 622-5221 and the prevailing party will give Notice ofRuling or prepare an Order if appropriate per CRC 3.1312.NOTICE TO COUNSEL: Upon filing a motion, moving party shall provide a copy of thisprocedural notice to opposing counsel. If opposing counsel appears at the scheduled hearingunnecessarily because of moving party’s failure to provide this notice, sanctions may beimposed. Upon posting of ruling prevailing party shall give notice of the ruling. Prevailingparty shall prepare an Order/Judgment for the Court’s signature if the motion is dispositiveof a cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or the courtroom assistant forclarification of rulings or additional information. If you are the moving party and do not haveinternet access, you may call the courtroom assistant or clerk after 10:00 am on Tuesday ofthe scheduled hearing and the ruling will be read to you.LAW AND MOTION FOR FEBRUARY 19, 20131. 11-493132 AKHAVAN CONTINUED TO 3/12/13VS. AURORA LOANSERVICES LLC2. 12-610211 ARANDA OFF CALENDARVS. CITIMORTGAGE,INC.3. 12-603732DOMINGUEZ VS.GEOFFREY M. HERSCHDDS4. 12-597156 FRIENDSOF THE DANA POINTLIBRARY VS. SAVE OURBOOKSTORE5. 11-457798 GLOVER VS.ADVANCED GOODYEAROFF CALENDAR. 1 ST AMENDED CROSS-COMPLAINTFILED 1/23/13CONTINUED TO 4/02/13Defendants’ Advanced Title and Zachary Davis, Motionfor Summary Adjudication is GRANTED in part andDENIED in part.Advanced’s Motion for Summary Adjudication of SecondAmended Complaint’s 2 nd cause of action for NegligentHiring/Retention is GRANTED. Defendant Advanced hasmet its burden under CCP Section 473c(p)(2).

Advanced’s admission of vicarious liability precludes thiscause of action as a matter of law. (Defendants’Separate Statement of Undisputed Material Facts, Nos.3-5.)Advanced’s and Davis’s Motion for SummaryAdjudication of the claim for punitive damages isDENIED. Defendants have failed to meet their burdenunder CCP Section 473c(p)(2). They have not presentedadmissible evidence showing that plaintiff cannotestablish the elements of a claim for punitive damages.Further, while the adjudication of the 2 nd cause of actionagainst Advanced disposes of the claim for punitivedamages against it on that cause of action, the prayerfor punitive damages is as to all causes of action. The 1 stcause of action for Negligence is alleged against alldefendants, including Advanced. That cause of actionremains against Advanced.Even if Advanced/Davis had met their burden, Gloverhas shown triable issues of material fact concerningpunitive damages. (Plaintiff’s Responsive Statement ofUndisputed Material Fact Facts No.13, 19-24.)CASE MANAGEMENT CONFERENCE TO REMAIN.6. 12-591682 KHOSRAVIVS. STATE OFCALIFORNIADefendant State of California’s demurrer to plaintiffKhosravi’s fifth cause of action for violation of the BaneAct in plaintiff’s first amended complaint isOVERRULED. Defendant State of California is correctthat plaintiff Khosravi’s has not pled facts as to threats ofviolence in violation of his statutory or constitutionalrights. But Civil Code Section 52.1 is broader than theconstruction given to it by defendant and includescoercion, with “interferes” being defined as “violates.”Venegas v. County of Los Angeles (2004) 32 Cal.4 th 820,883 and Austin B. v. Escondido Unified School Dist.(2007) 149 Cal.App.4 th 860, 883. At this pleading stage,plaintiff Khosravi has alleged sufficient facts as tocoercion that allegedly violates his statutory FEHA rights,which is sufficient at this pleading stage. (First AmendedComplaint, paragraph 42.) Finally, defendant State ofCalifornia is ordered to answer plaintiff Khosravi’s firstamended complaint within 10 days. Moving party to givenotice.

7. 12-575520 LE VS.TRAN1) Plaintiffs’ motion to compel request for production ofdocuments is MOOT because defendant Tran has nowprovided verified request for production of documentresponses. Plaintiffs’ request for sanctions is GRANTEDin the sum of $1,110.00, pursuant to C.C.P. Section2031.300(c). Plaintiffs had no burden to meet and conferon a motion to compel request for production ofdocument responses. Sinaiko Healthcare Consulting, Inc.vs. Pacific Healthcare Consultants (2007) 148 Cal. App.4 th 390,411. Also, plaintiffs granted defendant Tran atleast two extensions and defendant Tran failed toprovide request for production of document responsesbefore plaintiff’s motion to compel was filed. Movingparty to give notice.2) Plaintiffs’ motion to compel responses to their specialinterrogatories by defendant TRAN is MOOT becausedefendant Tran has now provided verified responses toplaintiffs’ special interrogatories. Plaintiffs’ request forsanctions is GRANTED in sum of $510.00, pursuant toC.C.P. Section 2030.290(c), payable by defendant Tranand his counsel of record. Travel and appearance time iscovered under Motion No. 1 of 2. Plaintiffs had no burdento meet and confer on a motion to compel responsestheir special interrogatories by defendant Tran. SinaikoHealthcare Consulting, Inc. vs. Pacific HealthcareConsultants (2007) 148 Cal. App. 4 th 390, 411. Also,plaintiffs granted defendant Tran at least two extensionsand defendant Tran failed to provide responses beforeplaintiff’s motion to compel was filed. Moving party togive notice.8. 12-599071 ORANGECOUNTYTRANSPORTATIONAUTHORITY VS.LAKEVIEWINDUSTRIAL PARK LLC9. 11-530446 PERRY VS.EMC MORTGAGECORPORATION10. 11-510924PIASKOWSKI VS.Plaintiff’s Motion for Prejudgment Order of Possessionpursuant to Code of Civil Procedure Section 1255.410 isGRANTED. The Court finds that OCTA is entitled toacquire by eminent domain portions of the AssessorParcels as described particularly in the complaint andOCTA’s proposed order. OCTA is entitled to takepossession thirty days after service of this order. If it hasnot already done so, OCTA to prepare a notice to the taxcollector pursuant to CCP 1260.250.OFF CALENDARPlaintiffs' motion for leave to file a 4 th amendedcomplaint is DENIED. The motion is materially defective

WELLS FARGO BANK,N.A.11. 11-500203 PLETCHERVS. PASINin that no declaration was filed in conjunction with themotion in compliance with R. 3.1324(b), and plaintiffs’’motion fails to address the effect of the amendment,when the facts giving rise to the amended allegationswere discovered, why the amendments were not madeearlier. Further, plaintiffs’ motion fails to mention theproposed 7 th cause of action for violation of CC Section2923.6. Lastly, the proposed 4 th cause of action fornegligent misrepresentation is a duplicate of the cause ofaction in the 2 nd amended complaint which was sustainedby this Court.Defendant Jahed’s demurrer to the complaint isOVERRULED. The statute of limitations defense cannotbe determined from the four-corners of the complaintand requires extrinsic evidence as to whether plaintiffwas truly ignorant of the defendant’s name.Defendant is ordered to answer the complaint within 10days.12. 12-594447 ROCKSTARRECRUITING VS.MILNE13. 12-578890 SALCIDOVS. STATE OFCALIFORNIA,DEPARTMENT OFTRANSPORTATION(CALTRANS)14. 11-493706 SEMPASAVS. CHAVEZCONTINUED TO 3/12/13 per moving partyDefendant County of Orange’s motion for summaryjudgment as to plaintiffs’ complaint is GRANTED. C.C.P.Section 437c(p)(2), and Green vs. Ralee Engineering Co.(1998) 19 Cal. 4 th 66, 72. Defendant County of Orangecarried its initial burden of proof that it does not own orcontrol the subject property in question. [DefendantCounty of Orange’s UMF Nos. 11 and 12.] The burdenthus shifted to plaintiffs to present evidence creating atriable issue of material fact. Plaintiffs have filed astatement of non-opposition as to the motion forsummary judgment by defendant County of Orange as toplaintiffs’ complaint. Moving party to give notice.Motion for order to exclude any evidence at trialreferencing profits, net worth, and/or financial conditionof Defendant and to bifurcate the issue of punitivedamages pursuant to Civil Code Section 598 and 3295(d)is GRANTED. Upon application from a Defendant,bifurcation of the issue of punitive damages andexclusion of financial condition is mandatory under CivilCode Section 3295(d).Preclusion of evidence of Defendant’s financial condition

at trial of this matter will serve the interests of justice,fairness and judicial economy, and will prevent undueprejudice to Defendant, and because bifurcation will notunnecessarily delay the trial of this matter or causeprejudice to Plaintiff Evelyn Sempasa (“Plaintiff”).15. 12-603067 SILVA VS.SPRING16. 11-510788 SLOAN VS.DAVIS17. 10-410269 SYLVESTERVS. YUH18. 11-478724 TUCKER VS.JP MORGAN CHASE &CO.CONTINUED TO 2/26/13CONTINUED TO 3/12/13.Judgment debtor Yuh’s motion to quash writ of executionissued on 4-12-12 is MOOT because another writ ofexecution issued on 12-13-12. Also, no amendment isneeded as to a revocable trust involving a judgmentdebtor is necessary. Probate Code Section 18200 andBank One of Texas vs. Pollack (1994) 24 Cal. App. 4 th973, 980. Moving party to give notice.Defendant J.P. Morgan Chase & Col.’s demurrer to theFirst Amended Complaint is SUSTAINED, with 10 daysleave to amend.The demurrer to the 1 st cause of action for breach ofcontract is SUSTAINED, with 10-days leave to amend.First, it is unclear how defendant should be held liable forany of the purported wrongful conduct alleged in theFirst Amended Complaint. In addition, the First AmendedComplaint fails to allege any specific facts showing howdefendant should be held vicariously liable for thepurported wrongful conduct. Second, defendant is not aparty to the Special Forbearance Agreement. Thus,plaintiff has failed to identify a written contract betweenthe parties. Third, even if defendant was a party to theSpecial Forbearance Agreement, it is unclear howdefendant breached the terms of the SpecialForbearance Agreement.The demurrer to the 2 nd cause of action for breach ofcovenant of good faith is SUSTAINED, with 10-daysleave to amend. First, it is unclear how defendant shouldbe held liable for any of the purported wrongful conductalleged in the First Amended Complaint. Second, plaintiffhas failed to plead the existence of a contract betweenthe parties. Third, to the extent plaintiff allegesdefendant breached the covenant of good faith by failingto properly review plaintiff’s application for a permanentloan modification, the exhibits sufficiently establish that

Chase Home Finance LLC did indeed evaluate plaintiff’sapplication and denied the same for specific reasons.Finally, this claim is identical to the breach of contractclaim, and is therefore superfluous.The demurrer to 3 rd cause of action for accounting isSUSTAINED, with 10-days leave to amend. First, it isunclear how defendant should be held liable for anycauses of action alleged in the First Amended Complaint.Indeed, the facts alleged in the FAC do not establish anyform of relationship between plaintiff and defendant.The demurrer to 4 th cause of action for unfair debtcollection practices is SUSTAINED, with 10-days leaveto amend. It is unclear how defendant should be heldliable for any causes of action alleged in the FirstAmended Complaint.The demurrer to 5 th cause of action for promissoryestoppel is SUSTAINED, with 10-days leave to amend.Plaintiff has failed to allege a clear and unambiguouspromise. To the extent that plaintiff alleges thatdefendant made some sort of “promise” that hisapplication for a loan modification was “ongoing andpending,” the Special Forbearance Agreement is limitedto a three-month term, and defendant denied plaintiff’sapplication for a permanent workout solution based onspecific grounds.The demurrer to 6 th cause of action for declaratory andinjunctive relief is SUSTAINED, without leave to amend.Defendant correctly contends that this claim is not“proper” because the dispute has crystallized into othercauses of actions in the First Amended Complaint. Third,declaratory relief operates prospectively and does notmerely redress past wrongs. Here, plaintiff is improperlyseeking to redress past wrongs under the declaratoryrelief cause of action.Moving party is to give notice.Defendants’ Request for Judicial Notice: Defendants’request for judicial notice of uncertified copies of theDeed of Trust (Exhibit 1), the Appointment of SuccessorTrustee (Exhibit 2), the Notice of Default (Exhibit 3), andthe Notice of Trustee’s Sale (Exhibit 4), is GRANTED.The court may take judicial notice of “[f]acts and

propositions that are not reasonably subject to disputeand are capable of immediate and accuratedetermination by resort to sources of reasonablyindisputable accuracy.” (Ev.C. Section 452(h).) However,the court will not take judicial notice of hearsayallegations stated therein. (Herrera v. Deutsche BankNat. Trust Co. (2011) 196 Cal. App. 4th 1366; PoseidonDevelopment, Inc. v. Woodland Lane Estates, LLC (2007)152 Cal. App. 4th 1106, 1117.)STATUS CONFERENCE TO REMAIN.19. 12-546810 VALLEJOVS. INET REALTY, INC.20. 11-478837 SIG LLC VS.BANK OF AMERICA21. 12-566097 U.S. BANKNATIONALASSOCIATION VS. SIVE22. 13-622410 7677CENTER AVENUE, LLCVS. REESECONTINUED TO 3/12/13MOOT. NOTICE OF SETTLEMENT OF ENTIRE CASEFILED 2/06/13. OSC RE: DISMISSAL SET FORAPRIL 8, 2013 AT 9:00 IN DEPARTMENT C-21.Plaintiff/cross-defendant U.S. National Bank’s motion forsummary judgment on plaintiff’s complaint anddefendant Sive’s cross-complaint is DENIED. First,defendant/cross-complainant Sive has disputed that sheever agreed that the $78,000.00 distribution wasinadvertent and should be returned. (Sive’s Response toPlaintiff U.S. National Bank’s UMF No. 11.) Second,cross-complainant Sive’s broader claim that crossdefendantU.S. National Bank failed to make properdistributions over the years to income beneficiary AnitaJenkins has not been negated by the evidencepresented. Cross-defendant U.S. National Bank onlyaddressed the last $78,000.00 distribution that itcontends was inadvertent, and not the claim that it failedto make appropriate distributions to Anita Jenkins overthe life of the Jarman Trust. (Cross-Complaint paragraph12.) Moving party to give notice.Plaintiff’s Application for a Right to Attach Order and Writof Attachment is GRANTED.The Plaintiff has established that the Defendant owes$69,185.81 plus interest, attorneys fees and costs for atotal balance due of $75,158.82 because the Defendanthas defaulted and is delinquent under the terms of thelease it entered into with the Plaintiff’s assignors.

RULINGS ON LAW & MOTION MATTERSJUDGE DAVID T. McEACHENDEPARTMENT C-21LAW & MOTION IS HEARD ON TUESDAYS AT 1:30 PMPlease read rules carefully. Do not call department unless submitting on thetentative.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings/mceachen.asp by 4:00 pm on Monday. The rulings will alsobe posted outside the courtroom on the bulletin board for those counsel without internetaccess, no later than 10:00 am on the day of the scheduled motion.The Law & Motion hearings are scheduled on Tuesday at 1:30 pm and all arguments will beheard at that time. No supplemental or additional papers will be allowed to be submittedfollowing posting of the ruling on the internet, nor will the Court entertain a request forcontinuance once the ruling has been posted.APPEARANCES: The Court will hear oral argument on all matters at the time noticed forthe hearing. If you intend to submit on the tentative and do not want oral argument, pleasenotice the clerk by calling (657) 622-5221 and the prevailing party will give Notice ofRuling or prepare an Order if appropriate per CRC 3.1312.NOTICE TO COUNSEL: Upon filing a motion, moving party shall provide a copy of thisprocedural notice to opposing counsel. If opposing counsel appears at the scheduled hearingunnecessarily because of moving party’s failure to provide this notice, sanctions may beimposed. Upon posting of ruling prevailing party shall give notice of the ruling. Prevailingparty shall prepare an Order/Judgment for the Court’s signature if the motion is dispositiveof a cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or the courtroom assistant forclarification of rulings or additional information. If you are the moving party and do not haveinternet access, you may call the courtroom assistant or clerk after 10:00 am on Tuesday ofthe scheduled hearing and the ruling will be read to you.LAW AND MOTION FOR FEBRUARY 26, 20131. 08-101411 AVENIDA MOOT.SAN JUANPARTNERSHIP VS.CITY OF SANCLEMENTE2. 12-601893 BALBOACAPITALCORPORATION VS.BREAKING GROUND,INC.The unopposed demurrer is SUSTAINED in its entirety,with 10-days leave to amend. No opposition was filed.Failure to oppose the demurrer may be construed ashaving abandoned the claims. (Herzberg vs. County ofPlumas (2005) 133 Cal. App. 4 th 1, 20 [“Plaintiffs did notoppose the County’s demurrer to this portion of theirseventh cause of action and have submitted noargument on the issue in their briefs on appeal.Accordingly, we deem plaintiffs to have abandoned theissue.”].) Additionally, the court may construe theabsence of a memorandum as waiver of all grounds notsupported. (CRC, Rule 3.1113(a).) Moving party is togive notice.3. 09-289559 CLINE VS.VONIC TRUCKPlaintiff’s motion to amend the judgment to addjudgment debtor pursuant to CCP 187 is GRANTED. The

SERVICES, INC.4. 12-598280 ESPEJEL VSCITIMORTGAGE, INC.judgment is ordered to be amended to include VonicFleet Services, Inc. Plaintiffs has established that VonicFleet Services, Inc., is the mere continuation andsuccessor corporation of defendant Vonic Truck Services,Inc. Accordingly, Vonic Fleet Services, Inc. is liable forthe debts of Vonic Truck Services, Inc. The Court findsthat Jeff Vonic was the officer director and majoritystockholder of both Vonic Truck Services, Inc. and VonicFleet Services, Inc. The new corporation is the thinlyveiled prior corporation with the only material differencebeing the addition of a minor shareholder. The evidenceoffered by defendant that certain corporate formalitieswere followed does not diminish the purpose and intentbehind the sudden dissolution of Vonic Truck Services,Inc. one month after judgment was entered, and theimmediate incorporation of the Vonic Fleet Services, Inc.which assumed essentially all of Vonic Truck Services,Inc.’s prior existence, structure and position. The changeof one word in the name and the addition of the familymember as a minor shareholder are the only distinctionsin the two corporations. The significant principle is thatwhereas here, a corporation organizes anothercorporation with practically the same shareholders anddirectors, transfers all the assets but does not pay all thefirst corporation's debts, and continues to carry on thesame business, the separate entities may be disregardedand the new corporation held liable for the obligations ofthe old. (Cleveland v. Johnson (2012) 209 Cal. App. 4th1315, 1334.)1. Defendant Vericrest Financial, Inc.’s demurrer to theFirst Amended Complaint is SUSTAINED without leaveto amend.The demurrer to the 1 st cause of action (set asidetrustee’s sale), 2 nd cause of action (cancellation ofinstrument), and 3 rd cause of action (wrongfulforeclosure) is SUSTAINED. First, plaintiff has failed toallege whether the purported Trial Loan Modification iswritten, is oral, or is implied by conduct. Second,plaintiff’s allegation that defendants foreclosed on theproperty in violation of the bankruptcy stay failsbecause: (1) plaintiff’s third Chapter 13 bankruptcypetition did not create an automatic stay; (2) this issueappears to be barred by the doctrine of collateralestoppel; and (3) even if the foreclosure has violated the

automatic stay, this issue should have been raised inbankruptcy court and not state court. Third, to theextent that plaintiff alleges a violation of Civil Code §2924 and procedural issues in the foreclosure process,these claims are barred by the doctrine of collateralestoppel. Fourth, plaintiff has failed to tender. Fifth, tothe extent that plaintiff contends that defendant violatedCivil Code Section 2923.5, this claim is MOOT becausethe trustee’s sale has already occurred. Finally, Comm.Code Section 3301 does not govern non-judicialforeclosures.The demurrer to the 4 th cause of action (violation of Bus.& Prof. Code Section 17200) is SUSTAINED for thesame reasons set forth above. In addition, plaintiff hasfailed to allege sufficient facts with the requisiteparticularity establishing that he suffered injury in factand have lost money or property as a result of the unfaircompetition. Further, all of the facts alleged in support ofthe UCL claim were alleged in support of the preceding1 st through 3 rd causes of action. A bar against an actionmay not be circumvented by recasting the action as oneunder Bus. & Prof. Code Section 17200.The demurrer to the 5 th cause of action (accounting) isSUSTAINED for the same reasons set forth above. Inaddition, an accounting claim requires the showing of arelationship between the parties where some balance isdue to the plaintiff that can only be ascertained by anaccounting. Here, plaintiff is not alleging that defendantsowe him money, but is disputing how much money heowes to defendant. Further, the facts alleged in the FirstAmended Complaint simply do not establish that thebalance purportedly due is unknown and/or cannot beascertained by way of a calculation. Moving party is togive notice.Defendants’ Request for Judicial Notice:This Court GRANT’S Defendant’s request for judicialnotice of Exhibits A thru M.2. Defendant 7 th Street Trust #2130, Southland HomesReal Estate, as Trustee’s joinder on Vericrest Financial,Inc.’s demurrer to the First amended Complaint isSUSTAINED for the same reasons set forth in Motion

#1.2. Moving party is to give notice.5. 12-617253 KPC, LLCVS. VALIDAS, INC.6. 12-616532 KOHLWEY,INDYMAC MORTGAGESERVICES, A DIVISIONOF ONEWEST BANK,FSBCASE STAYEDDefendant OneWest Bank’s demurrer to the Kohlweyplaintiffs’ complaint is OVERRULED in part andSUSTAINED in part. OVERRULED as to the Kohlweyplaintiffs’ first cause of action for violation of Civil CodeSection 2923.5, second cause of action for violation ofBus. & Prof. Code Section 17200, and third cause ofaction for negligence. As to plaintiffs’ first cause of actionfor violation of Section 2923.5, the Kohlwey plaintiffshave alleged sufficient facts as to violation of Section2923.5(b)(2). In particular, plaintiffs alleged that theywere not advised of their right to request a subsequentmeeting within 14 days or provided with the toll-freeHUD number. Failure to fully comply with Section 2923.5will render a notice of default void. Mabry v. SuperiorCourt (4 th Dist. 2010) 185 Cal.App.4 th 208. As toplaintiffs’ second cause of action for violation of Bus. &Prof. Code Section 17200, the alleged violation ofSection 2923.5 will support this cause of action for unfairbusiness practices. Also, parties facing foreclosure havea sufficient interest for purposes of standing. Sullivan v.Washington Mutual Bank, FA 2009 W.L. 3458300. As toplaintiffs’ third cause of action for negligence, theKohlwey plaintiffs have alleged sufficient facts as tomishandling of their loan modification application andlost documents over time to state a cause of action fornegligence at this pleading stage. Garcia v. Ocwen LoanServicing, LLC 2010 WL 1881098. SUSTAINED with 10days leave to amend as to the Kohlwey plaintiffs’ fourthcause of action for accounting and fifth cause of actionfor violation of Bus. & Prof. Code Section 17500. As toplaintiffs’ fourth cause of action for accounting,defendant OneWest Bank is correct that a cause ofaction for an equitable accounting cannot be statedbecause plaintiffs do not allege that defendant OneWestBank owes its any sum of money. Teselle v. McLaughlin(2009) 173 Cal. App. 4 th 156, 180. But Civil CodeSection 2943(c) set forth a statutory basis for anaccounting in the mortgage context. The Kohlweyplaintiffs have not alleged making any such demandupon defendant OneWest Bank that was not complied

with within 21 days. Thus the Kohlwey plaintiffs aregranted only conditional leave to amend, pursuant toC.C.P. Section 472a(c), if they can plead facts as to ademand within the meaning of Civil Code Section2943(c). As to plaintiffs’ fifth cause of action for violationof Bus. & Prof. Code Section 17500, plaintiffs have notalleged sufficient facts as to a scheme by defendantsintended to mislead or deceive the general public, andthe allegedly false representations by defendants thatconformed to such a scheme. Committee on Children’sTelevision v. General Foods Corp. (1983) 35 Cal.3d 197,211 and 5 Witkin, Cal. Proc. 5 th (2008), Pleading, § 781.Moving party to give notice.Defendant OneWest Bank’s Request for JudicialNotice: Defendant OneWest Bank requested that thecourt take judicial notice of the following documents:Exhibit A, Deed of Trust recorded 12-8-05 and Exhibit B,Notice of Default recorded 7-24-12. GRANT defendantOneWest Bank’s request that the court take judicialnotice of Exhibits A and B, but such notice is limited tothe filing of these documents with the county recorder’soffice and legal effect but not as to the truth of thematters set forth therein. Evidence Code Section 452(h)and Fontenot v. Wells Fargo Bank, N.A. (2011) 198Cal.App.4 th 256, 265.Defendant OneWest Bank’s Request for JudicialNotice in Support of Reply: In reply, defendantOneWest Bank requested that the court take judicialnotice of Exhibit A, the Court’s Minute Order of 1-29-13in this case. GRANT defendant OneWest Bank’s requestthat the court take judicial notice of its 1-29-13 MinuteOrder denying plaintiffs’ application for a preliminaryinjunction. Evidence Code Section 452(d).7. 12-615732 PHUONGVS. FMG INSURANCEAGENCY, INC.8. 12-535354 REEVES VS.WESTERN MEDICALCENTER SANTA ANA9. 12-561509 ROBERSONVS. BALLY TOTALFITNESSCORPORATION10. 12-612379 SADR VS.O.C. AUTOHAUS, INC.OFF CALENDAR. 1 ST AMENDED COMPLAINT FILED1/28/13.OFF CALENDAROFF CALENDAROFF CALENDAR. 1 ST AMENDED COMPLAINT FILED

11. 12-603067 SILVA VS.SPRING1. & 2. Demurrer and Motion to Strike Portions ofthe Complaint by Carl SpringThe demurrer and motion to strike are MOOT in light ofthe Court’s ruling granting the defendant’s joinder inMary Spring’s ANTI-SLAPP motion as to all 5 causes ofaction.3. The Motion to Strike Portions of the Complaintby John Spring:The motion is MOOT in light of the Court’s rulinggranting the defendant’s anti-SLAPP motion as to all 5causes of action.4. Anti-SLAPP Motion by John Spring:The motion is GRANTED. The Court orders all fivecauses of action stricken from the complaint as to thisdefendant. Defendant met his initial burden of showingthat these causes of action arise from and are basedupon conduct and activities protected by § 425.16. TheCourt finds that the gravamen of the five causes ofaction is conduct relating to the actions of defendant inbringing the underlying unlawful detainer action againstFred Silva and that such conduct is not merely incidentalto non-protected activities. Spring’s right to initiate andparticipate in unlawful detainer proceedings due to nonpaymentof rent fell within CCP § 425.16(e)(1) and (2).The burden then shifted to Silva to show he had areasonable probability of prevailing on his causes ofaction. The only evidence that Silva submitted inopposition was a declaration that does not provide anyadmissible, factual evidence to support the allegationthat Spring’s initiation of, and participation in, theunlawful detainer proceedings was a breach of contract,retaliatory eviction, or fraud to Silva, resulting in unjustenrichment to Spring. Rather, Silva’s position restsalmost exclusively on contentions and beliefs.The Court orders that defendant is entitled to reasonableattorney’s fees and costs to be established uponseparate motion before this Court.5. Anti-SLAPP Motion by Mary Spring:The motion is GRANTED. The Court orders all fivecauses of action stricken from the complaint as to thisdefendant. Defendant met her initial burden of showing

that these causes of action arise from and are basedupon conduct and activities protected by § 425.16. TheCourt finds that the gravamen of the five causes ofaction is conduct relating to the actions of defendant inbringing the underlying unlawful detainer action againstFred Silva and that such conduct is not merely incidentalto non-protected activities. Spring’s right to initiate andparticipate in unlawful detainer proceedings due to nonpaymentof rent fell within CCP § 425.16(e)(1) and (2).The burden then shifted to Silva to show he had areasonable probability of prevailing on his causes ofaction. The only evidence that Silva submitted inopposition was a declaration that does not provide anyadmissible, factual evidence to support the allegationthat Spring’s initiation of, and participation in, theunlawful detainer proceedings was a breach of contract,retaliatory eviction, or fraud to Silva, resulting in unjustenrichment to Spring. Rather, Silva’s position restsalmost exclusively on contentions and beliefs.Defendant’s unopposed request for judicial notice isgranted.The Court orders that defendant is entitled to reasonableattorney’s fees and costs to be established uponseparate motion before this Court.6. Joinder to Mary Spring’s Anti-SLAPP Motion byCarl Spring:The joinder is GRANTED based on the above statedgrounds.12. 10-436227 STATEBANK OF INDIA(CALIFORNIA) VS.DREAMZINTERNATIONAL LLCJudgment creditor State Bank of India’s motion for anassignment order of judgment debtors DreamzInternational LLC, Chirag Shah and Shaily Shah rights tofuture payments is GRANTED. C.C.P. Section708.510(a). Third party Craig Shelly, Inc. is not coveredby this statute because it is only applicable to judgmentdebtors and Craig Shelly, Inc. is not a judgment debtorin this case. Also, judgment creditor State Bank ofIndia’s request for a restraining order, pursuant to C.C.P.Section 708.520, is GRANTED. But judgment creditorState Bank of India will need to serve the actual order bypersonal service on judgment debtors DreamzInternational LLC, Chirag Shah and Shaily Shah incompliance with C.C.P. Section 780.520(d). Finally,

judgment creditor is requested to submit a revised orderthat encompassed other categories of potential assetscovered by Section 708.510(a) and not be limited to onlyrights of payments to judgment debtors from CraigShelly, Inc., Eternity and OM International as currentlyset forth in State Bank of India’s proposed order. Movingparty to give notice.13. 08-110288 CAVIC VS.WREC LIDO VENTURE,LLCDefendant WREC’s motion to declare the Cavicdefendants’ vexatious litigants is GRANTED in part andDENIED in part. GRANTED as to plaintiff Danny Cavic,aka Dusko Cavic, because plaintiff Cavic has continued tofile motions in pro per seeking to relitigate the finaljudgments rendered on 5-11-11 and the judgmentrendered on 5-29-09 in O.C.S.C. Case No. 06CC12605.C.C.P. Section 391(b)(2) and (b)(3). C.C.P. Section391.1 is not relevant because defendant WREC is notseeking to have the Cavic plaintiffs post a bond so therules applicable to Section 391.1 do not have to be met.DENIED as to plaintiff Nevada Atlantic Corporationbecause a corporation must be represented by counsel tolitigate or defend any civil action. Paradise v. Nowlin(1948) 86 Cal. App. 2d 897, 898. C.C.P. Section391(b)(2) and (b)(3) are applicable to in pro perlitigants. If Nevada Atlantic Corporation seeks to litigatein pro per the appropriate remedies include a motion tostrike, but such an entity cannot proceed in pro per.Moving party to give notice.Defendant WREC’s Request for Judicial Notice:Defendant WREC requested that the court take judicialnotice of Exhibits 1-14.GRANT defendant WREC’S request that the court takejudicial notice of Exhibits 1 through 14, but as to Exhibits1, 2, 3, 4, 6, 7, 8, 10, 11, 12 and 14 such notice islimited to the filing of these pleadings and not as to thetruth of any claims or contentions set forth therein.Evidence Code Section 452(d) and Day vs. Sharp (1975)50 Cal. App. 3d 904, 914.14. 11-470029 MARTIN VS.AURORA LOANSERVICES1) The motion for judgment on the pleadings bydefendants Aurora and MERS is MOOT because theirmotion to strike the Martin plaintiffs’ first amendedcomplaint is GRANTED. Moving parties to give notice.2) The motion to strike the Martin plaintiffs’ first

amended complaint by defendants Aurora and MERS isGRANTED because plaintiffs’ first amended complaintwas filed beyond the time permitted by the court to fileplaintiffs’ first amended complaint. C.C.P. Sections436(b) and 438(i)(1). Moving parties to give notice.In this case, on 11-27-12, the court ruled that: “Themotion for judgment on the pleadings by defendantsAurora and MERS is GRANTED with 10 [days] leaveto amend.” (11-27-12 Minute Order.) DefendantsAurora and MERS served a notice of ruling on 11-29-12,which was filed with the court on 11-30-12. The Martinplaintiffs filed and served their first amended complainton 12-17-12, which is more than 10 days from even thenotice of ruling. C.C.P. Section 436(b) provides that thecourt may strike any pleading not filed in conformity withan order of this court. Also, C.C.P. Section 438(i)(l)provides that a party may move to strike a pleading filedafter the time to file an amended pleading has expired,which occurred in this case. The Martin plaintiffs havenot filed any opposition in response to the motion tostrike their first amended complaint by defendantsAurora and MERS. Thus the motion to strike the Martinplaintiffs’ first amended complaint by defendants Auroraand MERS is granted.15. 12-570110 FIRSTAMERICAN SPECIALTYINS. CO. VS. BAUTISTA16. 12-555845 CONRADVS. CHANDUnless proper responses to plaintiff’s Request forAdmissions are received by plaintiff before the hearingon 2-26-13, plaintiff First American Specialty’s motion todeem its requests for admission to defendant Bautista isGRANTED. C.C.P. Section 2033.280(b). No sanctionswere requested in plaintiff’s notice motion. Moving partyto give notice.Plaintiff Kevin Conrad’s motion to compel DefendantAssefach Gobeze to provide responses to his first set ofform interrogatories, special interrogatories and requestsfor production of documents, and motion to deem hisfirst set of requests for admissions as admitted, isDENIED, without prejudice. The motion was improperlyserved on Defendant and not Defendant’s attorney ofrecord in violation of CCP Section 1015. Moving party isto give notice.CCP Section 1015 provides, in relevant part: “But in allcases where a party has an attorney in the action orproceeding, the service of papers, when required, must

e upon the attorney instead of the party, except serviceof subpoenas, of writs, and other process issued in thesuit, and of papers to bring the party into contempt.”17. 10-357043 GUTIERREZVS. GUTIERREZDefendant Gustavo Gutierrez’s Motion to EnforceSettlement Agreement is GRANTED. Defendant hassufficiently established the existence of a valid andbinding written settlement agreement of the entire casethat was made pending litigation, and that the partiesagreed to all material settlement terms. Plaintiffs havefailed to sufficiently establish that there was a mistake offact or law with respect to the waiver provision. Inaddition, plaintiffs have failed to sufficiently establishthat the agreement is ambiguous with respect to thescope of the waiver provision. Moving parties are to givenotice.Defendant’s Evidentiary Objections to the Declaration ofRon Townsend: The objections are SUSTAINED in partand are OVERRULED in part. The objections areSUSTAINED as to objection nos. 2 and 3 with respect tothe statements made by plaintiffs. The objections areOVERRULED as to objection nos. 1 and 4-14.Defendant’s Evidentiary Objections to the Declaration ofJose Manuel Gutierrez: The objections are OVERRULEDin their entirety.18. 12-597412 HOLZER VS.DOMINESDefendant Victor Domines’ Motion to Vacate the Entry ofDefault is CONTINUED to APRIL 16, 2013. The motionfails to provide a sufficient notice period pursuant to CCPSection 1005. The opposition is due by March 8, 2013,and the reply is due by March 22, 2013. Moving party isto give notice.

RULINGS ON LAW & MOTION MATTERSJUDGE DAVID T. McEACHENDEPARTMENT C-21LAW & MOTION IS HEARD ON TUESDAYS AT 1:30 PMLAW AND MOTION FOR MAY 7, 20131. 12-543779 AMIRGNESSIN ON BEHALFOF DC PARTNERS,INC. VS. DCPARTNERS, INC.The Motion for Order to compelamended responses to Defendant’sRequest For Admissions (“RFA”) set#1 AND order for evidentiarysanctions prohibiting Plaintiff fromproducing at trial the evidence thathe repeatedly refused to produce, orto properly admit or deny duringdiscovery; and monetary sanctionspursuant to CCP Sections 2023requiring Plaintiff Amir Gnessin("Plaintiff) to pay a monetarysanction to Defendant for thereasonable expenses incurred byDefendant in connection with thisproceeding is DENIED in its entirety.The Plaintiff’s request for monetarysanctions against the Defendant isgranted in the amount of $1,400.00.On December 11, 2012, Defendantsent to Plaintiff request foradmissions, set no.1. On January 15,2013, Plaintiff sent responses toDefendant's admissions, set no.1. On March 15, 2013, Plaintiff sentto Defendant Plaintiff's first amendedresponses to Defendant's request foradmissions, set no. 1.Defendant did not file or serve aseparate statement as required byCalifornia Rules of Court Section3.1345 (a). California Rules of CourtSection 3.1345(a) states in pertinentpart "(a) Any motion involving thecontent of a discovery request or theresponses to such a request must beaccompanied by a separatestatement. The motions that requirea separate statement include amotion: (1) To compel furtherresponses to request for admission."Therefore, this motion is denied.The Defendant does not address thesufficiency or insufficiency of theamended responses served on3/15/13 but simply notes that theywere filed and are equally

insufficient. The Defendant has notsustained his burden of establishingthat the responses fail to comply withCCP 2033.220.The Defendant argues that responseswithout objection should beordered. The request is improper andis denied. Plaintiff initially responds ina timely fashion to Defendant'sRequest. Therefore, Defendant'srequest to respond without objectionsis not proper.Finally, the Defendant is seekingDefendant's own time spent on thismotion in monetary sanctions whichare in essence a request forattorney's fees and costs. SinceDefendant is In Pro Per, Defendantcannot requests attorney's fees.Trope v. Katz (1995) 11 Cal.4th 274,277 & 282, the court held that anattorney who represents himself or inpropria persona in a dispute incontract which had an attorneyprovision in it, cannot recoverreasonable attorney's fees. The courtrationalized that a person may collectreasonable attorney fees when thelitigant pays or becomes liable to payin exchange for legal representation.As such, even if the court was togrant the motion, monetary sanctionswould be denied.2. 11-476816 ARKAINVESTMENTS VS.ROSELLECalifornia Code of Civil ProcedureSection 2033.290(d) states inpertinent part: "The court shallimpose a monetary sanction underChapter 7 . . . against any party,person, or attorney whounsuccessfully makes or opposes amotion to compel furtherresponse. The Plaintiff seekssanctions of $1,400 incurred inopposing the motion. The amount ifreasonable and supported by theDeclaration of Attorney Kitano.The demurrer of Nationwide andScott Walker to the 1 st -7 th causes ofaction in the Roque/Ortiz crosscomplaintis SUSTAINED in itsentirety with 10 days leave to amend.The complaint includes no factsspecifying wrongdoing of any kind onthe part of either Nationwide orWalker. Moreover, because everycause of action is asserted against all

cross-defendants, as a group, it isimpossible to discern what has beenalleged against these parties.4. 11-521260 C.L.KNOX, INC. VS. FEURDE LIS EVENTSINCORPORATED5. 12-548261 CHANNELSVS. WILSONCounsel for Defendant Fleur De LisEvents, Inc.’s Motion to be relievedas counsel of record isGRANTED. The attorney has metthe requirements of CRC 3.1362.The Court upon reviewing the recordsof Defendant Wilson’s care andtreatment from Center for Discoveryand Adolescent Change, deniesdefendant’s motion to quash thesubpoena and orders as follows:The parties are to enter into a limitedprotective order containing thefollowing:1) that allows for the disclosureof the records from Center forDiscovery and AdolescentChange to plaintiff’s counselpursuant to the subpoenaissued by plaintiff;2) the disclosure of the records isfor discovery purposes only,without this Court making anydetermination as to theadmissibility of any of therecords;3) the identifying of the limitednumber of persons or team ofattorneys and staff withinplaintiff counsel’s office byname allowed to see therecords for litigation purposesonly;4) that none of the informationcontained within the records isto be disclosed outside theoffice; to the clients (plaintiffs)or to any third person;5) the parties shall not attachany records to any documentsthat are filed with the Courtbut if such records arerequired as an exhibit to anymotion, then such recordsshall be filed under provisional(temporary) seal clearlymarked as such directly inDept. C21 ONLY with aconcurrent motion to seal therecords; and6) the protective order shallinclude a means or method ofdisposal of the records upon

esolution of the action, i.e.,whether the records will bedestroyed immediately byplaintiff’s counsel or returnedin whole to defendant’scounsel for their destruction.6. 13-623387 CURATOLAVS. CURATOLA1 & 2. Motions to compel DefendantRalph Curatola to provide completeresponses to Plaintiffs (1) SpecialInterrogatories (Set One) and (2)Request for Admissions (Set One)and for the imposition of sanctionsagainst Defendant Ralph Curatola isGRANTED with monetary sanctionsgranted in the amount of $1,530.00.The Demurrer to the First throughEighteenth Affirmative Defensescontained in the answer filed byDefendant Ralph Curatola Jr., toPlaintiffs Complaint is SUSTAINEDwith 10 days leave to amend.1 & 2. The Plaintiff has establishedthat the interrogatories and requestsfor admissions are reasonablycalculated to lead to the discovery ofadmissible evidence. Plaintiff GannaCuratola has established that she isentitled to the informationrequested. Gonzalez vs. SuperiorCourt ( City of San Fernando), (1995)33 Cal. App. 4 th 1539, 1546.The discovery requests seekinformation that is relevant to theissues in this case. They seek factspertaining to Plaintiffs allegations thatDefendant treated her as his sexslave over the course of their fiveyearmarriage and also seekinformation about anyone else whomay know about these facts. Theyalso seek facts pertaining to Plaintiffsallegations that Defendant physicallyabused her over the course of theirmarriage. These facts arerelevant. Therefore, since theseresponses would be relevant, Plaintiffis entitled to them and the Courtorders Defendant to provide a furtherresponse.The greater than 35 requests are

warranted by the “complexity or thequantity of the existing and potentialissues in the particularcase.” California Code of CivilProcedureSection2030.040(a)(1). The Plaintiff hasestablished that contrary to theDefendant’s assertions, the issues inthis case are not limited to onesimple particular incident whichoccurred on one night. The Plaintiffcontends that over the course of thePlaintiff and Defendant’s five yearmarriage, Defendant physically,mentally, and emotionally abusedher, treating her as his sex slaveinstead of his wife, all of whichculminated in a night whereDefendant mercilessly beat Plaintiff,causing numerous, severeinjuries. Plaintiff also alleges thatDefendant abused drugs, alcohol, andwas addicted to pornography, whichcontributed to the abusive manner inwhich Defendant acted. It is evidentthat this case does indeed involveany issues which can also bedescribed as complex due to thenature of Plaintiff and Defendant’scompeting claims. Such complexityand quantity warranted the greaternumber of discovery requests madein this case. Therefore, Defendant’sobjection under Code of CivilProcedure section 2030.040(a)(20 iswithout merit.The Defendant contends that theinformation is overbroad, vague,ambiguous, and seeks a legalconclusion. The requests andinterrogatories are none of thesethings. They seek specific (veryspecific) information about thePlaintiff and Defendant’s marriage,sexual relationship and details aboutthe night of the incident and theinjuries sustained.Plaintiff’s complaint includes sixcauses of action, including domesticviolence, gender violence, andintentional infliction of emotionalabuse. The interrogatories seekfurther information regarding

witnesses and causes of the incidentleading to Plaintiffsinjuries. Furthermore, theinterrogatories included questionsinvolving bondage instruments,whips, sexual toys and implements,all of which Plaintiff contends wereused by Defendant in his sexualtreatment towards her. Theinterrogatories also requestedinformation pertaining to personswith knowledge of the incident andPlaintiff claims, as well as knowledgeof Defendant’s practice of referring toPlaintiff as his “slave” and himself asPlaintiff “master.” The requests foradmissions quite specificallypertained to the issues involvingallegations of Defendant’s abusetowards Plaintiff.3. The demurrer is SUSTAINED withleave to amend. The challengedAnswer is technically and legallyinsufficient. Cal. Code Civil ProcedureSection 430.50.Pursuant to Code of Civil Proceduresections 430.20(a) and (b), “A partyagainst whom an answer has beenfiled may object, by demurrer… to theanswer” if the answer fails to statefacts sufficient to constitute a defenseand/or the answer is uncertain (whichincludes being ambiguous andunintelligible). “A demurrer to ananswer may be taken to the wholeanswer or to any one or more of theseveral defenses set up in theanswer.” Cal. Code Civ. Proc. Section430.50(b).It is not enough for a defense to relyupon mere conclusion of law; specificfacts must be alleged. Faulkner vs.Cat. Toll Bridge Authority 40 Cal. 2d317, 330 (1953). The facts must beaverred by the defendant “ascarefully and with as much detail asthe facts which constitute the causeof action and which are alleged in thecomplaint.” FPI Development, Inc.vs. Nakashima 231 Cal. App. 3d 367,384 (1991) [emphasis added].

Code of Civil Procedure section431.30(g) requires that “the …defenses shall refer to the causes ofaction which they are intended toanswer, in a manner by which theymay be intelligiblydistinguished.” Failure to do somakes them unintelligible, and hence,under Code of Civil Procedure section430.20(b), uncertain.Each of the 18 affirmative defensesfail to allege facts to support any ofthe eighteen affirmativedefenses. The causes pleadboilerplate conclusion withoutanything specific to this case.7. 12-556448 DUMITRUVS. BUHESCU1. Plaintiffs Marian Dumitru andLuminita Dumitru’s unopposed Motionto Compel Third-Party JP MorganChase Bank, N.A. to Comply with theDeposition Subpoena isGRANTED. Defendants and theirattorneys of record are sanctioned inthe total amount of $1,330. Movingparties are to give notice.2. Plaintiffs Marian Dumitru andLuminita Dumitru’s Motion to CompelDefendant Razvan Buhescu to providefurther responses to Plaintiffs’ SecondSet of Form Interrogatories isGRANTED in part and is DENIED inpart.The motion to compel furtherresponses as to form interrogatoryNo. 50.5 is DENIED. Thesupplemental response sufficientlyanswers the question.The motion to compel furtherresponses as to form interrogatoryNo. 50.6 is GRANTED. It is unclearwhether or not Defendant contendsthat the purported agreement“alleged by the propounding party inthe complaint” isambiguous. Defendant is compelledto provide a further response statingwhether or not the subject agreementis ambiguous. If any ambiguousagreement exists, Defendant is

compelled to provide a furtherresponse stating why it isambiguous. Defendant is to providea supplemental response within 30days.Defendant and his attorney of recordare sanctioned in the total amount of$1,330, which is also due within 30days.Moving parties are to give notice.3. Plaintiffs Marian Dumitru andLuminita Dumitru’s Motion to CompelDefendant Daniela Buhescu toprovide further responses to theirthird set of Request for Production ofDocuments, No. 1, isGRANTED. Defendant is to provide asupplemental response within 30days. The substantive responseprovided is insufficient. Defendant iscompelled to provide a furtherresponse in compliance with Code. Ifa lease agreement exists, Defendantis compelled to provide a response incompliance with CCP Sections2031.210 and 2031.220. If a leaseagreement does not exist, Defendantis compelled to provide a response incompliance with CCP Sections2031.210 and 2031.230.Defendant and her attorneys ofrecord are sanctioned in the totalamount of $1,330, which is also duewithin 30 days.Moving parties are to give notice.8. 12-604665 GCCFC2007-GG9 DIAMONDOFFICE LIMITEDPARTNERSHIP VS.VIA FRONTERA, LPReceiver Stath Karras’ motion for anorder approving and settling the finalreport is GRANTED. The Courtmakes the following Orders:(1) All actions taken by Receiver, hiscounsel and his agents, if any areapproved and ratified by the Courtduring the course of the receivershipand discharging such parties fromany liability based on any such acts;(2) The Final Report filed concurrentlyherewith is approved; (3) TheReceiver is awarded his final fees and

costs set forth in the Final Report inthe sum of $21,068.50; authorizingReceiver to pay such feesimmediately from funds of thereceivership estate; and deeming allfees and costs previously awarded toReceiver on an interim basis to befinal and no longer subject todisgorgement;(4) Receiver is authorized to pay anyfunds remaining m the receivershipestate after satisfaction of allreceivership liabilities to PlaintiffOCCFC 2007-009 Diamond OfficeLimited Partnership, a Delawarelimited partnership ("Plaintiff'');(5) Plaintiff is directed to pay anyunpaid balance of Receiver's fees andcosts approved by this Court, if any;(6) Receiver is authorized to turnover possession and control of thereal property located at 10965 &10993 Via Frontera Drive, Poway, CA(the "Via Frontera Property"), 1503South Coast Drive, Costa Mesa, CA(the "SC Executive Center Property"),22343-22349 La Palma Avenue,Yorba Linda, CA, (the "Yorba Linda BPProperty"), 1370 Valley Vista Drive,Diamond Bar, CA (the "GatewayCorporate Center Property"), 22705-22745 Savi Ranch Parkway, YorbaLinda, CA (the "Savi Tech CenterProperty"), and 22833 La PalmaAvenue, Yorba Linda, CA (the "LaPalma Flex Property") (collectively,5 the "Real Property") to Plaintiff,which acquired the Real Property asthe foreclosing beneficiary at atrustee's sale on January 18, 2013;(7) Receiver is directed to turn overoriginal records of the Real Propertyin his possession to Plaintiff;(8) Receiver is authorized to provideany information regarding theoperations of the receivership estateto any taxing authority withjurisdiction over the Real Property;(9) Upon settlement of the Final

Account all claims against Receiverand the receivership estate and anyobjections to the sale of the RealProperty are forever barred;(10) Receiver is discharged and thereceivership is hereby tern1inated;(11) This Court shall reserveexclusive jurisdiction over all claimsrelating to the receivership and theperformance of Receiver, his counseland his agents therein, and;(12) Receiver shall be granted suchother relief that the Court deems justand proper.Receiver to give notice of ruling.9. 09-118549 KUDICK-JOHNSON VS. REEDThe Court construes the request foran independent medical examinationas one for leave of court for suchexamination to occur. On this basis,the Court rules as follows:Defendants’ Motion for an Orderpermitting an additional IndependentMedical Examination of plaintiff KarenKudick-Johnson is GRANTED. TheCourt finds the examinationrequested is relevant to the subjectmatter and that good cause for theexamination has been shown. CCPSection 2032.320 Plaintiff will appearfor examination on a date to bescheduled between the parties andthe doctor’s office and before May 28,2013.Plaintiff[s continuinginjuries/symptoms after a surgery toalleviate them are unexplained. TheCourt concludes defendant has aneed for the information and thatthere is no other means for obtainingit. Plaintiff is making extensiveclaims for what appear to becontinuing injuries. It would beprejudicial for defendant not to beable to evaluate them. There is nolegally cognizable prejudice toplaintiff.As to whether Dr. Frey may take an

oral history, he may, on the followingterms:Dr. Frey will be entitled to take ahistory limited to the medicalcondition plaintiff has placed in issuein this case. The history shall belimited to the period of time sinceplaintiff’s surgery in October,2012. Only Dr. Frey is permitted totake the history. Plaintiff will nothave to answer any questionnaires orquestions from nurses or staffCentury Schoolbook working for Dr.Frey relating in any way to hermedical history. Should plaintiff’sattorney notify Dr. Frey’s office inadvance of the examination that hewill be present, Dr. Frey will not bepermitted to ask any questions ofplaintiff outside her attorney’spresence.10. 11-527755 LAI VS.NGUYENDefendant Chau Lai’s demurrer to theComplaint is SUSTAINED, with 10-days leave to amend.The demurrer to the entire Complaintis SUSTAINED. The complaint isimpermissibly uncertain, anddefendant cannot reasonably respondto the allegations set forth in thecomplaint.The demurrer to the 1 st cause ofaction for breach of contract isSUSTAINED. Plaintiff has failed tospecify whether the contract iswritten, is oral, or is implied byconduct. In addition, plaintiff hasfailed to plead the existence of thecontract and defendant’s breachthereof.The demurrer to the 3 rd cause ofaction for fraud isSUSTAINED. Plaintiff has failed toplead fraud with the requisitespecificity. Plaintiff has failed toplead facts showing how, when,where, to whom, and by what meansthe representations weretendered. In addition, plaintiff hasfailed to plead sufficient factsshowing how the purported fraudcaused plaintiff to suffer damages.

The demurrer to the 4 th cause ofaction for conspiracy isSUSTAINED. Plaintiff has failed toallege an underlying claim.Moving party is to give notice.11. 12-577459 MORALESVS. BANK OFAMERICAThe court OVERRULES DefendantBank of America, N.A.’s demurrer tothe Second Amended Complaint ofPlaintiffs Alfred J. Morales and AnnaM. Vicuna-Morales.Defendant is to file and serve itsanswer within 10 days after service ofnotice of this order. Plaintiffs are toserve notice of this order.Plaintiffs claim that they entered intoa written Trial Payment Plan withDefendant, which Defendantbreached by: (1) cancelling thecontract; and (2) failing to completethe modification called for under thecontract in a timely manner.TENDERDefendant first renews its argumentthat Plaintiffs must allege tender tobring their claim for breach of theputative contract. This argument isnot persuasive because tender is notrequired where a foreclosure sale hasnot yet occurred. (Chan Tang v.Bank of America, N.A. (C.D. Cal. Mar.19, 2012, No. SACV 11-2048 DOC)2012 WL 960373, *4-7.) Defendantacknowledges in its demurrer that nosuch sale has occurred.ESSENTIAL ELEMENTSDefendant also renews its argumentthat Plaintiffs have not adequatelyalleged facts establishing a breach ofthe putative contract.The court sustained Defendant’s priordemurrer to this cause of action,holding that:Plaintiffs have alleged facts as toentering into a Home Affordablemodification Trial Period Plan with[Defendant] and making thepayments … called for under theplan. Plaintiffs failed to allegecompliance with all conditions of the[Plan] or that any such conditionswere excused. Also, plaintiffs failed

to allege any executed Plan andModification Agreement as set forthin Section 2(F) of the [Plan] wasreceived before the ModificationEffective Date.Plaintiffs have cured these defects.Plaintiffs allege, both generally andspecifically, that they complied withall terms and conditions of the trialplan. This is sufficient to passdemurrer. (Code Civ. Proc., Section457 [plaintiff may generally pleadsatisfaction of conditions precedent].)Plaintiffs also adequately allegebreach by Defendant. As discussed inWest v. JPMorgan Chase Bank, N.A.(2013) 214 Cal.App.4th 780, a trialpayment plan like the one at issuehere can be an enforceable contractunder which the lender/servicer isobligated to provide the borrowerwith a loan modification if theborrower makes all requiredpayments. (Id. at pp. 796-799.) Plaintiffs allege that Defendantcancelled the trial payment plans,rather than comply with itsterms. This is adequate to plead abreach.Defendant attempts to distinguish theWest case by arguing that thedefendant in West conceded that thetrial payment plan had beenexecuted, whereas Defendant heredisputes that the trial payment planwas effect because it was neverexecuted by Defendant. Thisargument is not persuasive.Section 2(F) of the trial payment plansays that it will terminate if theservicer does not provide a fullyexecuted copy of the plan. However,Plaintiffs allege that Defendantaccepted payments under the trialpayment plan for 17 months beforedeclaring it cancelled. To the extentthat Defendant relies on its ownchoice/failure to send an executedcopy of the trial payment plan afteraccepting payments under the planfor almost a year and a half, suchreliance is a breach of the impliedcovenant of good faith and fairdealing implied in every contract.

STATUTE OF FRAUDSFinally, Defendant renews itsobjection that this claim is barred bythe statute of frauds because the trialpayment plan is not signed byDefendant. This argument remainsunpersuasive.On their face, the trial payment planand the documents provided toPlaintiffs with the plan, all bearDefendant’s logo and/or a line clearlyidentifying Defendant as theauthor. This is sufficient to constitutea signature for the purpose of thestatute of frauds. (West v. JPMorganChase Bank, N.A., supra, 214Cal.App.4th at p. 798; Donovan v.RRL Corp. (2001) 26 Cal.4th 261,270 [under U.C.C. 1201(38),providing that “signed” includes anysymbol executed or adopted by partywith present intention to authenticatewriting, defendant's printed name inadvertisement constituted signaturesatisfying statute of frauds].)12. 12-599639 MUYVS. AUTOMOTIVEREMARKETINGEXCHANGE, INC.13. 11-511055 NEOCELLCORPORATION VS.NUTRAWISECORPORATIONThe court GRANTS the unopposedmotion by Defendants CandaceJacqueline Burton and Matthew Tanhfor leave to file the First AmendedAnswer to Complaint attached asExhibit A to their motion. Defendantsmet the requirements of Section473(a)(1), i.e. they timely moved forleave and there is no showing thatgranting leave would prejudicePlaintiff.Defendants are to file and serve,within 5 days after entry of thisorder, an executed copy of the FirstAmended Answer attached as ExhibitA to their motion. Defendants shallserve notice of this order.The anti-SLAPP motion by defendantsNutrawise Corporation, NutrawiseH&B and Rude is DENIED because itis untimely as cause for late filing isnot shown. C.C.P. Section 425.16(f),Platypus Wear, Inc. v. Goldberg (4 thDist. 2008) 166 Cal.App.4 th 772,Olsen v. Harbinson III (2005) 134,Cal.App.4 th 278 and Kunysz IV v.Sandler (4 th Dist. 2007) 146Cal.App.4 th 1540. Defendants filedtheir anti-SLAPP motionapproximately 15 months after thefiling of plaintiff Neocell’s firstamended complaint. Defendants havenot provided a satisfactory

14. 10-372443 NGUYENVS. PHAN15. 10-367930 POOLVS. AURORA LOANSERVICES LLCexplanation for their delay afterpleading motions were ruled upon,discovery motions heard, a discoveryreferee appointed and an applicationfor writ of attachment heard. ThePlatypus Wear court explained that:“Goldberg has not demonstratedanything in the procedural history ofthis case, and specifically, in thelitigation involving other parties, thatwould justify allowing a late filing.”Id., at 787. As in the present case,there was an appeal in Platypus Wearthat did not justify a delay in thefiling of the anti-SLAPP motion. Id.Similarly, the Kunysz IV courtexplained that: “The same issuesraised by Sandler’s renewed anti-SLAPP motion could just as easilyhave been raised by, for example, amotion for summary judgment or amotion for judgment on thepleadings.” Id., at 1543. In this case,defendants note that they can bring amotion for summaryjudgment/summary adjudicationbased on the litigation privilege, anddefendants will be entitled to do so.But this does not justify such a latefiled anti-SLAPP motion. In addition,the court notes that plaintiff Neocell’scauses of action for breach ofcontract and breach of the guarantyagainst moving parties by plaintiffwould proceed even if the settlementagreement is not rescinded.(Complaint, paragraphs 49, 57 and59, and Exhibit B, Stipulation forSettlement, Section 6.) Relatedly,plaintiff Neocell’s causes of action forprofessional negligence and breach offiduciary duty against its formercounsel will not be resolved based onthis anti-SLAPP motion. Movingparties to give notice.Plaintiff Linda Hien Nguyen’s Motionto Set Aside the Dismissal isGRANTED. Service was proper, themotion is unopposed, and Plaintiffhas sufficiently established excusablesurprise and/or mistake. Plaintiff isto submit a post-trial proof toestablish alter ego against DefendantMelody Phan by June 7,2013. Moving party is to give notice.Defendants’ demurrer to the firstamended complaint in intervention isSUSTAINED as to the 6 causes ofaction without leave to amend.Plaintiff fails to state facts toconstitute any of the asserted causes

of action.Defendants are ordered to give noticeof ruling.Chase, instead of correcting theircomplaint in intervention with factsthat establish the elements of eachcause of action rely on priorprocedural rulings and argumentsmade in prior papers to support thatthe causes of action must existagainst defendants.The Court sustains the demurrerwithout leave to amend this timearound, based on plaintiff-inintervention’sinability to state factsthat establish the necessary elementsof each cause of action.Defendants show the insufficiency ofplaintiff’s allegations to the 6 causesof action. Essentially, what Chase istrying to assert is a comparativenegligence, or equitable indemnity orcontribution. But, instead, Chase isalleging first party torts forwrongdoing that were not directed toit. It was not the intended party towhom the acts occurred. In otherwords, it is not the real party ininterest, but merely a third party whowas affected by the alleged torts toplaintiff as a BFP. Thus, as a plaintiffin intervention, it can only allegetorts against defendants for wrongfulconduct they did to Chase.1 st C/A – Unfair Business Practices:Plaintiff hasn’t alleged sufficientallegations of anymisrepresentation to state a claimbased on fraudulent businesspractices. Plaintiff lacks facts thatstate with reasonable particularity thefacts supporting the statutoryelements of the violation. (Khoury v.Maly’s of California, Inc. (1993) 14Cal.App.4 th 612, 619.) Plaintiff cannot

ely on the allegations in plaintiffPool’s underlying complaint. It muststate its basis independently withparticularity and specificity, especiallysince the claim is predicated onalleged misrepresentations.Further, there are no allegations thatany of the defendants mademisrepresentations to Chase. Chasecannot sue based onmisrepresentations made to a thirdperson. They lack standing.Chase almost concedes that the 1 st ,2 nd , 3 rd , and 5 th causes of actioncannot withstand the demurrer andfocuses on the 4 th cause of action forquiet title and the 6 th cause of actionfor declaratory relief as statingsufficient facts to withstand thedemurrer.2 nd & 3 rd causes of action – NegligentMisrepresentation & Rescission onFraudFraud must be pled in specificlanguage, descriptive of the actswhich are relied upon in asserting theclaims. (Norlein v. United States FireIns. Co. (1965) 237 Cal.App.2d 435,437.) Negligent misrepresentationmust be pled with specificity as wellbecause it is a species of fraud.(Small v. Fritz Companies, Inc.(2003) 30 Cal.4 th 167, 184.) Plaintiffnow alleges that defendants (whichone(s) are not identified which is aproblem in and of itself) falselyrepresented that “it” [sic] had theauthority to sell the property at thetrustee’s dale to Chase. Chase stillfails to allege the specifics of who,what, where, when or how thoserepresentations were made (Tarmannv. State Farm Mutual Auto. Ins. Co.(1991) 2 Cal.App.4 th 153,157.) There are still no facts allegedto show that defendants (whichones?) knew that they didn’t have theauthority to sell and that they intent

to defraud the BFP when they weremade. (Lazar v. Superior Court(1996) 12 Cal.4 th 631.)These causes of action are clearlydefective and cannot be cured by thenature of the circumstances. Thus,the demurrer is sustained withoutleave to amend as to the 2 nd and 3 rdcauses of action.4 th cause of action – Quiet TitleAgain, after being advised in rulingon the JOP, the first amendedcomplaint-in-intervention is still notverified as required to state this C/A.(CCP Section 761.020.) And, onceagain, plaintiff also hasn’t pled theelements of the cause of action whichis specifically required by the Codeafter plaintiff was granted leave toamend these defects. The descriptionof the property is not stated; the titleof the plaintiff seeking possession;the adverse claims against which theplaintiff seeks to quiet title; the dateas to which determination is soughtand the prayer for relief. Plaintiff inprevious opposition to the Judgmentof the Pleadings stated that it couldallege these elements and verify thecomplaint, but it didn’t. SUSTAIN the4 th cause of action without leave toamend.5 th cause of action – Breach ofContractPlaintiff hasn’t alleged a contractentered into between Chase anddefendants, the first element of thecause of action. (ArmstrongPetroleum Corp. v. Tri-Valley Oil &Gas Co. (2004) 116 Cal.App.4 th 1375,1391 fn.6.) Plaintiff’s assertionsappear to be with Pool’s conduct inobtaining an improper judgmentwhich has delayed its right to obtaintitle of the property. This doesn’tconstitute a contract or a breach

thereof.SUSTAIN the 5 th cause of actionwithout leave to amend.6 th cause of action –Declaratory ReliefThis cause of action doesn’t state anycontroversy at this time. Plaintiff alsoadmits it is seeking a determinationof rights as to past wrongs. Pastwrongs do not constitute an actualand present controversy, but anaccrued cause of action. (CaliforniaIns. Guarantee Assn. v. SuperiorCourt (1991) 231 Cal.App.3d 1617,1624.) If plaintiff can state amonetary damage claim then there isno purpose for the declaratory reliefcause of action. Nothing new isalleged in the 1 st amended complaintin intervention to now state an actualcontroversy exists.SUSTAIN the 6 th cause of actionwithout leave to amend.17. 11-530219 SAIDVS. UC REGENTS OFCALIFORNIA18. 11-493706 SEMPASAVS. CHAVEZ1. Defendant’s demurrer to Plaintiff’sSecond Amended Complaint isCONTINUED TO June 11,2013. The problem is that theoperative pleading is not the SecondAmended Complaint, but a 3 rdAmended Complaint filed2/04/13. There has already been ademurrer to the Second AmendedComplaint that was sustained. Theparties must clearly identify whatcomplaint they are talkingabout. Therefore, the court iscontinuing the demurrer to the 3 rdAmended Complaint to June 11, 2013at 1:30 p.m.2. Plaintiff’s Motion to CompelDiscovery and Disclosure and toImpose Issue and/or TerminatingSanctions is OFF CALENDAR PERMOVING PARTY.The unopposed motion to continuethe trial date from September 16,2013 to October 21, 2013, is

19. 12-576154 TOYOTAMOTOR CREDITCORPORATION VS.SUPERIOR SERVICERECYCLING, LLCGRANTED. Additionally, Teva’srequest for an order continuing alltrial-related dates to the continuedtrial date is GRANTED.Plaintiff’s motion to amend and file a1 st amended complaint isGRANTED. Plaintiff is ordered toefile the 1 st Amended Complaintwithin 5 days of this ruling and serveon defendant through his counsel bymail. Plaintiff to give notice of ruling.22. 13-625565 KESHMIRIVS. GHALEBIDefendant’s motion to quash isDENIED without prejudice. There isno proof of service in the court’srecords. It is also noted thatplaintiff’s counsel has relocated, buthas failed to notify this Court of hisnew address.There is no opposition whereby thenotice defect may have been waived.

RULINGS ON LAW & MOTION MATTERSJUDGE DAVID T. McEACHENDEPARTMENT C-21LAW & MOTION IS HEARD ON TUESDAYS AT 1:30 PMPlease read rules carefully. Do not call department unless submitting on the tentative.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings/mceachen.asp by 4:00 pm on Monday. The rulings will also be postedoutside the courtroom on the bulletin board for those counsel without internet access, no later than 10:00am on the day of the scheduled motion.The Law & Motion hearings are scheduled on Tuesday at 1:30 pm and all arguments will be heard at thattime. No supplemental or additional papers will be allowed to be submitted following posting of the rulingon the internet, nor will the Court entertain a request for continuance once the ruling has been posted.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. Ifyou intend to submit on the tentative and do not want oral argument, please notice the clerk by calling(657) 622-5221 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate perCRC 3.1312.NOTICE TO COUNSEL: Upon filing a motion, moving party shall provide a copy of this procedural noticeto opposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because ofmoving party’s failure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailingparty shall give notice of the ruling. Prevailing party shall prepare an Order/Judgment for the Court’ssignature if the motion is dispositive of a cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or the courtroom assistant for clarification ofrulings or additional information. If you are the moving party and do not have internet access, you maycall the courtroom assistant or clerk after 10:00 am on Tuesday of the scheduled hearing and the rulingwill be read to you.LAW AND MOTION FOR MAY 28, 20132. 10-419616 CAREMERIDIAN,LLC VS. HALEThe court GRANTS the motionby Alex R. Borden, asAdministrator for the Estate ofDefendant Nathaniel D. Hale,to set aside the default enteredagainst Hale on 09/12/11 andthe default judgment enteredagainst Hale on 10/17/11because they are both void onthe face of the record. Thejudgment is set aside as toHale only.Plaintiff commenced thislawsuit on 10/25/10. Inseeking leave to serve Hale bypublication, Plaintiffacknowledged that it learned,on 03/17/11, that Hale passedaway while this lawsuit waspending. Plaintiff did not moveto substitute Hale’s personalrepresentative. Plaintiffinstead purported to serve Halewith process by publication andthen proceeded to take Hale’sdefault and have judgmententered on that default.

The judgment entered againstHale is void because, where adefendant dies and no personalrepresentative is substituted asa party, any judgmentrendered is in excess of thecourt's jurisdiction to try thecase. (Herring v. Peterson(1981) 116 Cal.App.3d 608,611-612.) The default is voidbecause a defendant is notamenable to service of processafter his death. (Id. at p.612.) Rather the deceased'spersonal representative mustbe substituted, or his insurerserved with process, for thecase to continue. (Ibid.; CodeCiv. Proc., Sections 368.5,377.41, 377.50.)However, the court DENIESBorden’s request to dismisswith prejudice Plaintiff’s claimsagainst Hale in thislawsuit. Borden cites noauthority that would permit thecourt to adjudicate what isessentially a statute oflimitations defense at thisstage of theproceedings. Plaintiff willinstead be given anopportunity to make aproperly-noticed motion underCode Civ. Proc., Section 377.41to substitute Hale’s personalrepresentative.The court therefore sets thiscase for an OSC re DismissalWith Prejudice as to DefendantHale for Failure to SubstituteDecedent’s PersonalRepresentative on July 1, 2013at 9:00 A.M. No appearancewill be necessary if, prior tothat date, Plaintiff files andserves a motion under CodeCiv. Proc., Section 377.41.4. 12-618383 DIAZ VS.KIRKWOOD ASSISTEDLIVING RESIDENCEORANGE1. DEMURRER BY BE.GROUPAND SOUTHERN CALIFORNIAPRESPYTERIANThe court OVERRULES thedemurrer by DefendantsBe.Group and SouthernCalifornia Presbyterian Homesto Plaintiffs’ Complaint.First Cause of Action. The

demurrer to this cause ofaction is premised onDefendants’ contention thatthey cannot be liable under theElder Abuse and DependentAdult Civil Protection Act(“EADACP”) unless Plaintiffsplead and prove conductsufficient to support an awardof enhanced remedies underthat Act. However, a demurrermay not be sustained to acause of action on the groundsthat the plaintiff has notadequately alleged a right to aremedy sought. (CaliberBodyworks, Inc. v. SuperiorCourt (2005) 134 Cal. App. 4th365, 384-385.)Second Cause ofAction. Plaintiffs allege that,while the decedent was underDefendants’ custody and care,Defendants: allowed her tosuffer a broken arm; failed toobtain for her prompt oradequate medical care; failedto give her prescriptionmedication; and failed toinform the decedent’s“responsible persons” abouther significant weight loss anddeteriorating mental andphysical health. (Complaint,paragraphs 13-17, 20-21.) Plaintiffs allege thatDefendants’ conduct causedthe decedent’s deterioratingmental and physical condition,and that Defendants’ failure totimely communicate thatdeterioration to the decedent’sfamily, caused herdeath. (Complaint, paragraph22.) While it is far from clearwhether Plaintiffs willultimately be able to prove thatDefendants’ conduct causedChristine Diaz’s death, theyhave adequately allegedcausation for the purpose ofstating this claim. Defendants’reliance on the decedent’sCertificate of Death ismisplaced because theCertificate of Death is not

efore the court, and so cannotbe relied upon for the purposeof this demurrer.Uncertainty. Defendants donot specify what about theComplaint is so uncertain thatthey cannot reasonablyrespond, which is a sufficientbasis for overruling thedemurrer on thisissue. Moreover, as discussedabove, Plaintiffs haveadequately pled causes ofaction againstDefendants. Therefore, itcannot be said that theComplaint is so uncertain as tosustain a demurrer on thisbasis. (Khoury v. Maly's ofCalifornia, Inc. (1993) 14Cal.App.4th 612, 616.)2. DEMURRER BY KIRKWOODASSISTED LIVINGThe court OVERRULES thedemurrer by DefendantKirkwood Assisted LivingResidence (Orange) toPlaintiffs’ Complaint. Becausethe parties’ positions on thisdemurrer are essentiallyidentical to their positions onthe demurrer of Be.Group andSCPH, the demurrer isoverruled for the same reasonsdiscussed above.3. MOTION TO STRIKEThe court DENIES Defendants’motion to strike portions ofPlaintiffs’ Complaint.Punitive Damages. Plaintiffshave adequately alleged factssufficient to establish maliceand/or oppression byDefendants. Plaintiffs allegethat, during the decedent’sresidency at Defendants’facility: the decedent was an81 year-old dependent adultwho had been diagnosed withAlzheimer’s dementia, herdependent on Defendants’employees for all dailyactivities, including ensuringher own safety and takingmedications (Complaint,paragraphs 9-10); Defendants’

staff specifically promised andundertook a duty to observeand monitor the decedent forchanges in her mental andphysical condition, and tonotify her family andphysicians of any such changes(Complaint, paragraph 12);Despite knowing that Plaintiffhad a propensity for elopingfrom such facilities,Defendants’ staff failed toprevent the decedent fromleaving the facility on her own,during which time she suffereda broken arm (Complaint,paragraphs 12-13);Defendants’ staff failed toobtain for prompt or adequatemedical care for the decedent’sbroken arm (Complaint,paragraphs 14-17);Defendants’ staff failed to givethe decedent prescription antianxietymedication (Complaint,paragraph 20); Defendants’staff failed to inform thedecedent’s “responsiblepersons” about her significantweight loss and deterioratingmental and physicalhealth. (Complaint, paragraph21); The foregoing conductwas intentional and/or inconscious disregard of theprobability that it would causethe severe harm, because itwas the result of a consciousscheme to underfund andunderstaff the facility tomaximize profits (Complaint,paragraps 36-41); andDefendants were on notice thatthey were not in compliancewith standards of careapplicable to residents like thedecedent, set by regulation(Complaint,paragraph 47). Theseallegations are sufficient, ifproven, to support a conclusionthat Defendants eitherintended to cause the decedentthe injuries that she sustainedor – at a minimum – establishthat Defendants engaged indespicable conduct thatsubjected the decedent to crueland unjust hardship inconscious disregard of herrights.

Plaintiffs have also adequatelyalleged a basis for an award ofpunitive damages against eachDefendant. To establishDefendants’ liability forpunitive damages, Plaintiffsallege that the failure to carefor the decedent discussedabove was the direct result ofpolicy decisions byDefendants. Plaintiffs alsoallege that each Defendantparticipated in thepolicymaking decisions andratified thosepolicies. (Complaint,paragraph 42.) These factualallegations are sufficient toestablish a basis for punitivedamages against eachDefendant.(Romo v. Ford Motor Company(2002) 99 Cal.App.4th 1115,1141 [plaintiff may satisfy Civ.Code, Section 3294, subd. (b)the harm at issue was causedby a policy-level decision thatis itself despicable and madewith a willful and consciousdisregard of the rights orsafety of others] [disapprovedon other grounds by People v.Ault (2004) 33 Cal.4th 1250].)General Damages andAttorney’s Fees. Plaintiffs mayrecover the decedent’s generaldamages and their attorney’sfees if they successfully pleadand prove a basis for enhancedremedies under Welf. & Inst.Code, Section 15657. In orderto obtain those enhancedremedies, Plaintiffs must allegeand prove conduct “essentiallyequivalent to conduct thatwould support recovery ofpunitive damages.” (CountryVilla Claremont HealthcareCenter, Inc. v. Superior Court(2004) 120 Cal. App. 4th 426,432.) As discussed above,Plaintiffs have adequatelyalleged facts sufficient tosupport the imposition ofpunitive damages againstDefendants.

Other Allegations atIssue. Plaintiffs’ allegationregarding the Department ofSocial Services is not subject tobeing stricken. Plaintiffs allegethat Defendants were placedon notice that they were not incompliance with regulatorystandards of care applicable toresidents like thedecedent. (Complaint,paragraph 47.) Such noticemay be relevant, if true, tosupport Plaintiffs’ claim forpunitive damages.Plaintiffs’ allegation regardingother residents is notimmaterial. Plaintiffs refer toresidents other than thedecedent to explain andprovide context for Defendants’alleged understaffing andunderfunding, policy-leveldecisions. (Complaint,paragraph 41.)Plaintiffs’ allegation citingNorman v. Life Centers ofAmerica (2003) 107Cal.App.4th 1233 is notimmaterial. While the partiesmay later address the potentialimpact of the Norman decisionon these proceedings, theallegation within the Complaintplainly puts Defendants onnotice that Plaintiffs mayattempt to rely upon it asauthority for their theories ofliability.ANSWERS AND NOTICE OFORDERDefendants are to file andserve their answer(s) to theComplaint within 10 days afterservice of notice of thisorder. Plaintiffs are to servenotice of this order.6. 12-561789 LUCIO VS.REYESThe Defendant Rodriguezdemurrer is OVERRULED inpart and SUSTAINED withleave in part. The demurrer tothe first five causes of action isoverruled. The demurrer to thesixth and seventh causes ofaction is sustained with 20

days leave to amend.The first four causes allege thatthe Defendants violated laborcodes, employment wage andhour codes including failure topay wages and overtime, andfailure to provide itemizedwage statements and meal andrest periods. The fifth causealleges violation of Businessand Professions 17200 basedupon the violations alleged inthe first four causes of action.The Defendant who was namedas a Doe defendant, demurrerson the basis that he is not thePlaintiff’s employer. In rulingon a demurrer, the court mustassume all factual allegationsare true and can only make itsdecision based upon theallegations within the fourcorners of the pleading orsubject to judicial notice.The facts alleged in thecomplaint and subject tojudicial notice do not support afinding that the demurringdefendant is not an employerof the Plaintiff such thatDefendant Rodriguez can beliable for non-payment ofwages and violations of theLabor Code alleged in Causesof Action 1 through 6. Plaintiffalleges that the "Defendants"were "an "employer" as thatterm is used throughout theCalifornia Labor Code andCalifornia Industrial WelfareCommission's Wage Ordernumber 2-2001 regulatingemployees wages, hours andworking conditions in theManufacturing Industry and ascodified in 8 California Code ofRegulationsSection 11020." The Plaintiffalleges in paragraph 7 that DoeDefendants 1-50 areemployers.The fact that the Plaintiff

alleges in paragraph 3 that theReyes was the sole owner andproprietor of West CoastPlating does not contradict theemployer allegation since, andan individual an 'employer' isdifferent from being an 'owner'since the definition of'employer under the WageOrders is more broad than thatof being an 'owner'."(F) "Employer" means anyperson as defined in Section 18of the Labor Code, who directlyor indirectly, or through anagent or any other person,employs or exercises controlover the wages, hours, orworking conditions of anyperson.” Wage Order-Manufacturing Industry,Section 2F.The allegation by the Plaintiff inparagraph 3 that Reyes is “anindividual responsible formaking all employmentdecisions, including alldecisions about wages, hours,meal and rest periods,overtime pay, rates of pay andthe hiring and firing ofemployees.” does notcontradict the allegations thatthe demurring defendant is anemployer of the Plaintiffbecause, the allegationsasserts that Reyes is “an”individual not the onlyindividual. There can be morethan one employer. Here, thatis what the Plaintiff has pled.As such, the demurrer to thefirst five causes of action isoverruled.The demurrer to the sixthcause of action is sustainedwith leave to amend. Thecause alleges that the Plaintiffand Defendant, including Doedefendants, entered into anagreement whereby the

Plaintiff agreed to providepersonal services and theDefendants agreed to give thePlaintiff an ownership interestin the business of West CoastPlating and a portion of theproceeds and profits. First,the terms of the contract arenot alleged with specific factssuch that the court candetermine whether the contracthas been breached and whatrelief should be provided if ithas beenbreached. Additionally, thePlaintiff alleges that DefendantReyes is the sole owner ofWest Coast Plating. As such,the complaint does not allegefacts which support a findingthat this Defendant had anownership interest in WestCoast Plating such that hecould have entered into thealleged agreement. Therefore,the demurrer to the SixthCause of Action is sustainedwith 20 days leave to amend.The demurrer to the SeventhCause for fraud is sustainedwith leave to amend. ThePlaintiff does not state theelements for fraud withrequired specificity. ThePlaintiff does not allege whatthe alleged misrepresentationswere, who made therepresentations, when theywere made, if they wereallegedly being made on behalfof a corporation, the person orpersons’ authority to makesuch representations on behalfof the corporation. The fraudcause as currently pledprovides no specific facts. Assuch, the demurrer to theseventh cause of action forFraud is sustained with 20 daysleave to amend.

RULINGS ON LAW & MOTION MATTERSJUDGE DAVID T. McEACHENDEPARTMENT C-21LAW & MOTION IS HEARD ON TUESDAYS AT 1:30 PMPlease read rules carefully. Do not call department unless submitting on the tentative.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings/mceachen.asp by 4:00 pm on Monday. The rulings will also be postedoutside the courtroom on the bulletin board for those counsel without internet access, no later than 10:00am on the day of the scheduled motion.The Law & Motion hearings are scheduled on Tuesday at 1:30 pm and all arguments will be heard at thattime. No supplemental or additional papers will be allowed to be submitted following posting of the rulingon the internet, nor will the Court entertain a request for continuance once the ruling has been posted.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. Ifyou intend to submit on the tentative and do not want oral argument, please notice the clerk by calling(657) 622-5221 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate perCRC 3.1312.NOTICE TO COUNSEL: Upon filing a motion, moving party shall provide a copy of this procedural noticeto opposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because ofmoving party’s failure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailingparty shall give notice of the ruling. Prevailing party shall prepare an Order/Judgment for the Court’ssignature if the motion is dispositive of a cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or the courtroom assistant for clarification ofrulings or additional information. If you are the moving party and do not have internet access, you maycall the courtroom assistant or clerk after 10:00 am on Tuesday of the scheduled hearing and the rulingwill be read to you.LAW AND MOTION FOR JUNE 4, 20133. 10-364382 GORRVS. UNIVERSALINTERACTIVE, LLCPlaintiff Mark Gorr’s Motion forReconsideration is MOOT in light ofthe Court’s 5/21/13 minuteorder. Moving party is to give notice.On 4/16/13, Judge Pro Tem KarenBravata took Plaintiff’s motion forleave to file an amended complaintpursuant to CCP Section 473(b) undersubmission. On 5/21/13, KarenBravata GRANTED the motion forleave to file an amendedcomplaint. Thus, this motion isMOOT.5. 13-622235 JAFARIVS. NODefendant Akbar Golestanehno’sMotion to Vacate Default Judgmentunder CCP Section 473(b) isGRANTED. Defendant hassufficiently established excusablemistake. Plaintiffs’ request forreasonable compensatory fees andcosts is DENIED.Defendant is ordered to give notice,and to separately file the Answer byJune 14, 2013.

Regardless of whether MadisonHarbor, APC was somehowsubsequently notified that this actionwas filed, the entry of default anddefault judgment is the result of anexcusable mistake of fact byDefendant. Defendant was mistakenas to his duty to respond because hebelieved that Madision Harbor, APC (alaw firm that generally handles all ofhis legal affairs) would also be servedwith the papers and would respond tothe same. In addition, the motion isaccompanied by a copy of theproposed Answer. Thus, the motionto vacate the entry of default anddefault judgment is GRANTED.6. 12-585437 LOPEZVS. WELLS FARGOBANK, N.A.The court SUSTAINS DefendantWells Fargo, N.A.’s demurrer, withoutleave to amend, as to the First,Second, and Fourth Causes of Actionin the Second Amended Complaint ofPlaintiffs Jose Escobar Lopez, RosaEscobar Lopez, and Jose IvanEscobar. The court OVERRULES thedemurrer as to the Third Cause ofAction.Jose Escobar Lopez’sBankruptcy. Plaintiffs’ counsel filed adeclaration on 05/30/13, attached towhich is a copy of a 05/28/13 orderby the bankruptcy court, grantingJose Lopez a bankruptcydischarge. In light of this newevidence, it appears that Jose Lopezis now the real party in interest withrespect to his claims.Tender. The court overrules thedemurrer on this basis. The authoritycited by Wells Fargo is not persuasiveas to requiring tender where aforeclosure sale has not yet occurred,other than in a quiet titleaction. (Chan Tang v. Bank ofAmerica, N.A. (C.D. Cal. Mar. 19,2012, No. 11-2048) 2012 WL 960373,*4-7 [analyzing history of tender ruleand various cases applying it].)First Cause of Action (ConstructiveFraud). Plaintiffs still have not allegedsufficient facts as to any fiduciaryduty owed on the part of defendantWells Fargo. Without deciding theissue, Plaintiffs’ allegations offiduciary duty might be sufficient toestablish that Wells Fargo owed

Plaintiffs some duty of care soundingin negligence. Jolley v. Chase HomeFinance, LLC (2013) 213 Cal.App.4th872, 905-906 [discussing whetherlender owed duty of care in evaluatingborrower for loanmodification].) They are inadequate,however, to establish the existence ofa fiduciary duty and Plaintiffs do notproffer any argument or authority toestablish otherwise.Second Cause of Action(Negligence). Plaintiffs still have notalleged sufficient facts that theywould have qualified for a loanmodification as required to statesufficient facts as tocausation. Neither did they address itin their opposition brief. Still missingis any allegation to establish that, butfor a failure by Wells Fargo tocomport with an alleged duty of care,Plaintiffs would have obtained a loanmodification or otherwise avoidedforeclosure.Third Cause of Action (NegligentMisrepresentation). Plaintiffs havenow adequately pled this cause ofaction with specificity andparticularity. They now allege theidentities of the individuals who madethe alleged misrepresentations onbehalf of Wells Fargo, and when andhow they did so. These allegationsare sufficient. West v. JPMorganChase Bank, N.A. (Mar. 18, 2013) 21Cal.App.4th 780, 2013 WL 1104739,*6 [plaintiff adequately pledmisrepresentation by alleging that shespoke with “a supervisor in the loanmodification department” on a givendate and the misrepresentationsmade during that call].)Fourth Cause of Action (Bus. & Prof.Code, § 17200). Wells Fargocorrectly contends that Plaintiffs havenot adequately alleged their standingto bring this claim. This cause ofaction is based entirely on WellsFargo’s allegedly wrongful conductafter Plaintiffs defaulted on the loan atissue, and the pending loss ofPlaintiffs’ home that is alleged to haveresulted. Because Plaintiffs’ homewas subject to non-judicial foreclosurebecause of their default, whichoccurred before Wells Fargo’s alleged

wrongful acts, Plaintiffs cannot assertthat the impending foreclosure wascaused by Wells Fargo’s wrongfulacts. (Jenkins v. JP Morgan ChaseBank, N.A. (May 17, 2013, No.G046121) ___ Cal.App.4th ___, 2013WL 2145098, *14.) Accordingly, theylack standing to bring a claim underBus. & Prof. Code, § 17200. (Ibid.)Leave to Amend. In sustaining theprior demurrer to the FAC, the courtgranted Plaintiffs “final” leave toamend. Plaintiffs have now had threeopportunities to plead the very claimsat issue in this demurrer. They haveagain failed to do so. Neither doPlaintiffs propose any way in whichthey would amend their complaint tocure the defects discussedabove. Leave to amend is thereforedenied.Answer and Notice of Order.Wells Fargo is to file and serve itsanswer to the Second AmendedComplaint within 10 days after serviceof notice of this order. Plaintiffs areto serve notice of this order.7. 11-511055 NEOCELLCORPORATION VS.NUTRAWISECORPORATION8. 13-631004 ORANGECOUNTYTRANSPORTATIONAUTHORITY VS.FULLERTONCOMMERCE CENTERASSOCIATION9. 12-556567 SEALBEACH MUTUAL NO.EIGHT VS. ESTATEOF GRETELICHTENSTEIN12. 12-572155 ZUNIGAVS. BADILLOCONTINUED TO 6/11/13 ON THECOURT’S OWN MOTION.CONTINUED ON COURT’S OWNMOTION TO 7/16/13Plaintiff’s Motion to set aside dismissalis GRANTED. The Plaintiff haspresented evidence which establishesthat the court entered defaultjudgment in this case before thedismissal was issued. Therefore, theentry of dismissal was not proper. Assuch, the court has the discretion toset aside the dismissal of Plaintiff’scomplaint. Consolidated Const. Co.vs. Pacific Elec. Ry Co. (1920) 184Cal. 244, 251. The Plaintiff’s requestfor Judicial Notice is GRANTED.1-3 DEFENDANTS’ DISCOVERYMOTIONSThe court GRANTS the 3 motions of

Defendants Alfonso and Erica Badillofor an order compelling PlaintiffArabella Zuniga to provide verifiedresponses, without objections, to firstsets of Form Interrogatories- General,Special Interrogatories, and Requestsfor Production of Documents, servedby Defendants on 1/17/13.The court also awards monetarysanctions against Plaintiff in theamount of $306.00.Plaintiff is to serve her verifiedresponses to the above- describedinterrogatories and requests forproduction, and pay the monetarysanctions to Defendants, within 15days after being served with notice ofthis order. Defendants are to servenotice of this order.The court also notes that, on 5/14/13,it found that Plaintiff’s counsel hadfailed to comply with his duty to fileand serve a notice of change ofaddress as required by Cal. Rules ofCourt, rule 2.200. The courttherefore ordered Plaintiff’s counsel tofile and serve a notice of change ofaddress within 5 court days afternotice of that order wasserved. Defendants served notice ofthat order on 5/16/13. Plaintiff’scounsel is again required to file andserve a notice in compliance with Rule2.200. Failure to do so within 5 daysafter service of notice of this ordermay subject Plaintiff’s counsel tosanctions.4. DEFENDANTS’ MOTION TOCONTINUE TRIALThe court DENIES the motion byDefendants Alfonso and Erica Badillofor an order continuing the trial datefrom 9/09/13. Defendants have notmet their burden of showing goodcause for a continuance.Most significantly, there is noevidence of the efforts undertaken byDefendant to secure Plaintiff’sdeposition, any explanation of whatdiscovery Defendants need toconduct, or how long a continuancethey believe is necessary. In light ofthe court’s ruling on Defendants’motion to compel discovery

esponses, it appears likely thatDefendants will have Plaintiff’sdiscovery responses by mid-June. While the discovery schedulemight be tighter than in the averagecase, there is no evidence before thecourt to explain why discovery couldnot be completed sufficiently inadvance of the 9/09/13 discoverydate.This denial is without prejudice to anyparty’s right to move for acontinuance of the trial date shouldgood cause for a continuance arise asthe case proceeds.The court declines to considerPlaintiff’s opposition to thismotion. The opposition wasinexplicably filed 8 calendar days afterthe deadline. Additionally, theopposition was apparently served byU.S. Mail from Orange to San Diegowhich does not comply with Code Civ.Proc. Section 1005, subd. (c).Defendants are to serve notice of thisorder.13. 13-630930 ORANGECOUNTYTRANSPORTIAONAUTHORITY VS. CJ500 SOUTH STATECOLLEGE14. 12-592943 JOHNSONVS. UNIVERSITYMEDICALPHARMEUTICALSCORP.CONTINUED ON COURT’S OWNMOTION TO 7/16/13Plaintiff’s motion to compel thedeposition of Raymond Francis isDENIED. There is no record ofplaintiff’s contention that the partiesagreed to continue the deposition,even though counsel knew at thattime of the pending summaryjudgment motion, as well as Francis’relationship to the defendantentity. Accordingly, plaintiff has notdemonstrated good cause to compelFrancis to attend a second deposition.The additional three hours ofdeposition sought by plaintiffexceeds that allowed by statuteCCP 2025.290 limits depositions to atotal of seven hours, absentstipulation or court order.

“(a) Except as provided in subdivision(b), or by any court order, including acase management order, a depositionexamination of the witness by allcounsel, other than the witness'counsel of record, shall be limited toseven hours of total testimony. Thecourt shall allow additional time,beyond any limits imposed by thissection, if needed to fairly examinethe deponent or if the deponent,another person, or any othercircumstance impedes or delays theexamination.”Plaintiff repeatedly argues that onlythree more hours of Francis’ time arenecessary and that five hours oftestimony have been obtained. As setforth above, plaintiff is not per seentitled to eight hours of testimonyfrom any deponent in this matter.Plaintiff has not adequatelydemonstrated that this is acontinuance of the first depositionPlaintiff’s counsel states that therewas a discussion as to setting anotherdate to complete thedeposition. Defense counsel deniesthat the conversationoccurred. Unfortunately, it cannot bedetermined what communication, ifany, took place because there is norecord for the Court to review. Ifplaintiff’s counsel wanted to ensurethat her position was unambiguous,she should have stated it on therecord.Plaintiff has not demonstratedgood cause for a seconddeposition of FrancisDespite various problems, plaintiffobtained a full five hours of testimonyfrom Francis. Additional time issought because Francis is the onlykey witness and because there is asummary judgment to which plaintiffmust respond. These facts wereknown when the deposition wastaken.CCP 2025.610 provides, in relevantpart:“(a) Once any party has taken thedeposition of any natural person,

including that of a party to the action,neither the party who gave, nor anyother party who has been served witha deposition notice pursuant toSection 2025.240 may take asubsequent deposition of thatdeponent.(b) Notwithstanding subdivision (a),for good cause shown, the court maygrant leave to take a subsequentdeposition, and the parties, with theconsent of any deponent who is not aparty, may stipulate that asubsequent deposition be taken.”Plaintiff complains that frequentbreaks were required because ofFrancis’ bad temper and notes that hewas late. Defense counsel argues thatthere were unnecessary breaks andthat opposing counsel was late forlunch and was the one who chose toend the deposition. The parties alsodisagree as to whether all of theissues in the complaint wereaddressed. Not surprisingly, theportion of the deposition transcriptsubmitted demonstrates somehostility.Both parties seek to bring in issuesfrom the matter pending before JudgeGriffin; testimony and proceedings inthat case are not properly before thisCourt. Accordingly, plaintiff has notdemonstrated good cause to set asecond deposition.Defendant’s objection to Hessdeclaration and Request forJudicial NoticeThe objection to the language“repeated outbursts and screamingtirades” is sustained, as it is notreflected in the recordsubmitted. The request for judicialnotice is denied, as the declaration isa strange mix of a sanctionsrequest, motions and pleadings in theC-17 matter, as well as depositions inthat case. Requests for judicial noticemust be separately filed andcaptioned. Nothing on the captionpage suggests that defendant seeksjudicial notice.SanctionsBoth parties seek sanctions. Both aredenied. Had either party simply made

a clear record of the deposition’sstatus, significant time and expensecould have been avoided by all.16. 12-567824 STEVENSVS. CONCRETEWATERPROOFINGPRODUCTS, INC.Plaintiff Edward Steven’s 8 Motions toCompel Further Responses fromDefendant:Concrete Waterproofing Products Inc.to:1. Requests for Admissions (Set 1) isMOOT. Supplemental responseshave been served to each of therequests at issue in the motion. Therequest for monetary sanctions isDENIED.2. Form Interrogatories (Set 2)Interrogatory 17.1 isMOOT. Supplemental responseshave been served to each of therequests at issue in the motion. Therequest for monetary sanctions isDENIED.3. Request for Production ofDocuments (Set 1) is MOOT withrespect to Request for Production ofDocument #72. The motion isGRANTED with respect to each of theother Requests for Production at issuein the Motion. The request formonetary sanctions is GRANTED inthe amount of $955.00.4. Special Interrogatories (Set 1) isGRANTED. The request for monetarysanctions is GRANTED in the amountof $955.00.Jared Murray to :1. Requests for Admissions (Set 1) isMOOT. Supplemental responseshave been served to each of therequests at issue in the motion. Therequest for monetary sanctions isDENIED.2. Form Interrogatories (Set 2)Interrogatory 17.1 isMOOT. Supplemental responseshave been served to each of therequests at issue in the motion. Therequest for monetary sanctions is

DENIED.3. Request for Production ofDocuments (Set 1) is MOOT withrespect to Request for Production ofDocument #72. The motion isGRANTED with respect to each of theother Requests for Production at issuein the Motion. The request formonetary sanctions is GRANTED inthe amount of $955.00.4. Special Interrogatories (Set 1) isGRANTED. The request for monetarysanctions is GRANTED in the mountof $955.00.

RULINGS ON LAW & MOTION MATTERSJUDGE DAVID T. McEACHENDEPARTMENT C-21LAW & MOTION IS HEARD ON TUESDAYS AT 1:30 PMPlease read rules carefully. Do not call department unless submitting on the tentative.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings/mceachen.asp by 4:00 pm on Monday. The rulings will also be postedoutside the courtroom on the bulletin board for those counsel without internet access, no later than 10:00am on the day of the scheduled motion.The Law & Motion hearings are scheduled on Tuesday at 1:30 pm and all arguments will be heard at thattime. No supplemental or additional papers will be allowed to be submitted following posting of the rulingon the internet, nor will the Court entertain a request for continuance once the ruling has been posted.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. Ifyou intend to submit on the tentative and do not want oral argument, please notice the clerk by calling(657) 622-5221 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate perCRC 3.1312.NOTICE TO COUNSEL: Upon filing a motion, moving party shall provide a copy of this procedural noticeto opposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because ofmoving party’s failure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailingparty shall give notice of the ruling. Prevailing party shall prepare an Order/Judgment for the Court’ssignature if the motion is dispositive of a cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or the courtroom assistant for clarification ofrulings or additional information. If you are the moving party and do not have internet access, you maycall the courtroom assistant or clerk after 10:00 am on Tuesday of the scheduled hearing and the rulingwill be read to you.LAW AND MOTION FOR JUNE 11, 20131. 10-435592BARNETT VS.C.J.SEGERSTROM &SONS, LLCThe Defendant Haglund’s Motion forsummary judgment or in thealternative summary judgment isDENIED with respect to the firstand fifth causes of action.The Defendant’s request for judicialnotice is granted as to the sixdocuments attached.Objections of Defendant are ruledon as follows:Sustained: #1Overruled: #2-15.This is a “renewed” motion forsummary judgment based on “new”facts. The prior motion was deniedon 1/28/13 as to the 1 st and 5 th

causes of action. Defendants statethere are new facts upon whichthey base this motion, therebymaking the motion proper. (Schulzev. Schulze (1953) 121 Cal.App.2d75, 83-84.) Defendants, however,never set forth within the motionwhat the “new” facts are. Thus, themotion is analyzed in its entirety,with no particular emphasis placedon any of the facts. This made itextremely difficult to determine ifthere were any new facts thatrebutted plaintiff’s evidence whichcreated a triable issue in the firstMotion for SummaryJudgment. Comparing the currentSeparate Statement with that of thefirst MSJ filed in 11/12, it appearsthat UMFs # 3 – 9, 11, 13, 16, 17,23, 25, 28, 37, 51, 55, 56, 59, 63,68, 80, 85-94, are the “new’facts. It is possible there areadditional “new” facts stated in theSeparate Statement which were notreadily identified.These “new” facts, however, do notchange the analysis of issues todetermine if summary judgment isappropriate. Some of the new factsare actually reworded existing factssubmitted in the first motion. Other“new” facts are merely elaborationsof the existing facts. The remaining“new” facts continue in the samevein as the existing facts andcertainly do not resolve theidentified triable issues, but insteadcreate further dispute between thetwo parties. The few “new” facts issimply further evidence defendantscan offer at the time of trial tobolster their position. None of thefacts are determinative on anyissue such that this Court shouldnow find a triable issue no longerexists. What defendants are doingin this second motion is simplypiling on more of the same facts inan effort to have this Court weighthe evidence in their favor. Forexample, UMF #9 states that

Barnett was an experiencedconstruction supervisor chargedwith the responsibility by hisemployer and the mall owner tooversee Haglund as a subcontractorto his employer and generalcontractor, Horizon. UMF #23states that Barnett’s treatingphysician testified that Barnettshould have been aware of thedanger posed by his COPD and thathe should have avoided workingaround dust and should have worna mask. These facts are credibilityfacts. They neither prove nordisprove anything. Many of the“new” facts are credibility facts likeUMF #9. The underlining issues,however, remain hotly contested.There is no smoking gun in thepurportedly new facts.Plaintiff in opposition submitsevidence that disputes most of the“new” facts.Additionally, plaintiff disputesexisting material facts (that werestated in the first SeparateStatement and were disputed atthat time.) UMF#15, 20, 21, 24,42, 44, 48, 49, 52, 62, 69, 70, 72-75, 78, 81-84 in the currentSeparate Statement remain indispute.Accordingly, based on the abovematerial facts in dispute, triableissues remain and thus, summaryjudgment is denied as to plaintiff’sFirst Cause of Action forNegligence, and the Fifth Cause ofAction for Loss of Consortiumagainst defendant, R.S. HaglundConstruction (hereinafter"Haglund").1 st Cause of Action: Negligence

The Defendant has sustained itsinitial burden of presentingsufficient evidence to negate anecessary element of the Plaintiff’scause for negligence. In response,the Plaintiff has presented sufficientfacts to create a material issue oftriable fact with respect to theDefendant’s material facts. Mostsignificantly, the Plaintiff haspresented evidence to disputeDefendant’s Fact 21 which assertsthat Haglund provided masks to itsemployees, and Mr. Haglundpersonally offered such a mask toPlaintiff Patrick Barnett, whorefused it. The Plaintiff haspresented evidence in response tothe Defendant’s purported materialfact which establishes that neitherHaglund, nor any of its employeesor agents, offered Mr. Barnett amask at any point during the FossilProject. Declaration of PatrickBarnett at paragraph 7 (EXH. A).Based upon this evidence alone, thePlaintiff has created a materialissue of triable fact and theDefendant’s motion for summaryjudgment on both causes of actionfor negligence and loss ofconsortium is denied.Plaintiff has also provided evidencewhich disputes the DefendantsUMFs #15, 81 state that the allegedpresence of the toxins werecompletely unknown to Haglund,and that it was not provided anyinformation whatsoever concerningany such content of the woodproduct it was being asked to cut tofit. The Plaintiff has presentedevidence in response to theDefendant’s purported material factwhich establishes that, RichardSteven Haglund was aware thatdust created by the cutting ofmedium density fiberboard was anirritant. Haglund Depo., 23:2-10(EXH. B)

Plaintiff has also provided evidencewhich disputes the Defendants UMF#52, which provides that PlaintiffPatrick Barnett was only presentintermittently during the cutting, ashe was also observed outsidesmoking and making phone callsduring the cutting. The Plaintiff haspresented evidence in response tothe Defendant’s purported materialfact which establishes that, PatrickBarnett spent the majority of theworkday inside the constructionspace during the Fossil Project.Patrick Barnett has not smoked acigarette since approximately theyear 2004. Declaration of PatrickBarnett, paragraph 3, 4 (EXH. A)Plaintiff has also provided evidencewhich disputes the DefendantsUMFs #82, 83 which states thatSteve Haglund testified that he hasnever encountered toxic MDFproducts or worked on a job sitewhere someone became ill due todust from the product. Plaintiff haspresented evidence in response tothe Defendant’s purported materialfact which clarifies Haglund’stestimony that he had not heard ofMDF containing toxic chemical andthat he was unaware of anyonesuffering respiratory difficultiesfrom breathing the dust of MDF.This is not the same as the factpurports to offer.In this current motion, defendantalso focuses on who had the duty tomaintain safety. Defendant assertsthat Horizon had a non-delegableduty to oversee and maintain safetyat the site, and that Barnett as theField Superintendent was taskedwith the duty to maintain safety,conduct safety meetings and ensurethat workers, including himselfwore masks. (UMFs #11, 17, 20,

21, 24, 25, 70, 75, 78.) These factsare disputed by plaintiff withevidence that Horizon created apartnership with its subcontractorsand any person on the job site asbeing responsible for safety on thejob. (Lucksted Depo, Exh. “F”,p.23:10-23;45:13-44; p.52:9-53:8;Barnett Depo p.301:9-19 (Exh.“E”.) Also, plaintiff offers evidencethat Barnett’s duties did not includedirecting Haglund on how they wereto go about completing their work.(Barnett Decl. paragraph 8(Exh.”A”.) Haglund Depo p.36:18,37:22. (EXH.”B”.) Plaintiff alsocounters defendant’s contentionthat Horizon had a non-delegableduty by arguing there was acontract in place wherein Haglundassumed the duty to take allprecautions to avoid injuries toworkmen including plaintiff whileperforming their job. Who had theultimate duty is therefore adisputed fact. Whether or not thecontract was in effect at the timethe work was performed and/ordefendant should have known itsobligations under the contractbased on prior course of dealingsthrough previous contracts ofessentially identical terms, is also atriable issue.Thus, there is a plethora ofdisputed facts in this case thatremain and the motion forsummary judgment is DENIED.Statute of LimitationsDefendant argues that the DOEamendment naming Haglund as adefendant doesn’t relate backbecause the undisputed materialfacts establish that plaintiff knew atthe time of the work that the dustwas irritating him, that within 3days he was seeking medicalattention for exacerbation of his

COPD and that he knew ofHaglund’s identity the whole time,and that he asked for samples ofthe MDF cabinet to have testedwithin months of the job. (UMFs#6, 7, 68.) This may all be true,but defendant doesn’t establish thesecond necessary requirement tonot relate a DOE amendment back,that plaintiff was not ignorant of thefacts giving rise to a cause of actionagainst Haglund. (Streicher v.Tommy’s Elec. Co. (1985) 164Cal.App.3d 876.) Plaintiff disputesthe above material facts offered bydefendant. (Exh. “E”.)Thus, the issue of whether theStatute of Limitations has expiredas to defendant is also a triableissue.5 th Cause of action: Loss ofConsortiumThe Defendant’s only challenge tothe Loss of Consortium Cause isbased upon the failure of the othercause/causes upon which it isbased. Because there is a materialissue of triable fact regarding thePlaintiff’s Negligence Cause ofaction against the Defendant, KathyBarnett may still pursue her loss ofconsortium claim and PatrickBarnett's resulting and dependentclaim for negligence is still pendingagainst Haglund.3. 12-555094NAVY FEDERALCREDIT UNION VS.SADDIKDefendant Michael Saddik’s Motionto Vacate Default and DefaultJudgment under CCP Section473(b) is DENIED, withoutprejudice.Relief under CCP Section 473(b) isDENIED because the motion isuntimely. The motion was mademore than 6 months after entry ofjudgment.In addition, equitable relief fromjudgment is DENIED. Defendanthas failed to sufficiently establish a

satisfactory excuse for notpresenting a defense to the originalaction, and diligence in seeking toset aside the default once it wasdiscovered. Further, Defendant hasfailed to sufficiently establish that aclerical error was made by theCourt. The Court properly entereddefault and default judgment, andthe hearing on the demurrer wasproperly dismissed because thedemurrer was filed 1 day after theentry of default.Moving party is to give notice.4. 13-631184ORANGE COUNTYTRANSPORTATIONAUTHORITY VS. SVFWALNUT FULLERTONThe court GRANTS Plaintiff OrangeCounty Transportation Authority’smotion of plaintiff for prejudgmentpossession. Plaintiff shall takepossession of the portions of thedesigned property identified and setforth in Assessor Parcel No. 033-221-09, identified in the Complaintand the court further ordersremoval therefrom all person,obstacles, improvements orstructures of every kind of naturesituated thereon.Plaintiff is directed to prepare aproposed order consistent withCode Civ. Proc., Section 1260.250.Plaintiff shall take possession of theproperty thirty (30) days afterservice of this order forpossession. Plaintiff is to servenotice of this order.5. 12-558619QUEZADA VS. U-HAULBUSINESSCONSULTANTS, INC.1) Motion To CompelAnswers To DepositionQuestions And Compliance WithDocument DemandThe court (1) DENIES the motionto compel answers; (2) GRANTS inpart and DENIES in part themotion to compel documentcompliance; (3) DENIESWITHOUT PREJUDICE therequest for additional depositiontime; and (4) DENIES monetarysanctions.GRANT: Demand Nos. 19, 22By permitting disclosure of her taxreturns as far back as 2008, Cross-Complainant has waived the tax

eturn privilege as to thoseyears. (Schnabel v. Superior Court(1993) 5 Cal.4th 704, 721[intentional relinquishment waivesprivilege].) To the extent thatCross-Complainant withholds anydocuments from production onother privilege grounds, she isordered to produce a privilege logof such documents.GRANT: Demand Nos. 28, 29, 32Cross-Complainant did not object tothese demands and thus haswaived all objections.GRANT: Demand Nos. 51, 53Cross-Complainant did not object tothese demands and thus haswaived all but two objections re:third-party privacy rights and “pupilrecords” pursuant to EducationCode Section 49076. Thesedemands did not sufficiently appriseCross-Complainant of the initialnecessity for such objections. Tothe extent that Cross-Complainantwithholds any documents fromproduction on either of these twogrounds, she is ordered to producea privilege log of such documents.DENY WITHOUT PREJUDICE:Request for Additional DepositionTimeOnly 5 of the 7 hours wereexpended in the first deposition,and Cross-Defendant asks the Court“if necessary, to allot additionaltime to complete Cross-Complainant’s deposition. Becausethere is still deposition timeremaining, the request for moretime is premature. Cross-Complainant’s request to restrictthe deposition location to within 15miles of her home is DENIED. Thesecond day of deposition isnecessitated, in large part, byCross-Complainant’s furtherdocument production after the firstday of deposition.DENY: Monetary SanctionsNeither party substantially prevailedover the other on this motion.2) Motion To Compel FurtherResponses To SpecialInterrogatoriesThe court (1) GRANTS the motion

to compel further responses; and(2) awards monetary sanctions of$660 against Cross-Complainant’scounsel only.Interrogatory Nos. 13-14Cross-Complainant cannot assertthe tax return privilege as to No. 14because the existence of adocument that may containprivileged information is not itselfprivileged. (Hernandez v. SuperiorCourt (2003) 112 Cal. App. 4th285, 293.) In any event, Cross-Complainant has waived theprivilege by permitting disclosure ofher tax returns going back to2008. Cross-Complainant toprovide further responses forincome as far back as 2008.Interrogatory No. 26The response does not comply withCode Civ. Proc., Section 2030.220,subd. (c).Monetary sanctions are awardedagainst Cross-Complainant’scounsel because he neverresponded to Cross-Defendant’sattempts to meet and confer on theinterrogatories. (Code Civ. Proc.,Section 2023.020.) Because hercounsel failed to respond to meetand confer requests, the impositionof sanctions against Cross-Complainant would be unjust.3) Motion To Compel FurtherResponses To And ComplianceWith Request For Production OfDocumentsThe court (1) GRANTS in part andDENIES in part the motion tocompel further responses andproduction of documents; and (2)DENIES monetary sanctions.DENY: Request For Production No.13Cross-Complainant has no duty toobtain additional documentsthrough the government adoptionagency because such documentsare not within her custody,possession, or control. (People exrel. Lockyer v. Superior Court(2004) 122 Cal.App.4th 1060, 1078[where the People are the plaintiffto an action, defendant required toserve nonparty state agency with

subpoena to obtain documents].)DENY: Request For Production No.14This request does not appearrelevant or likely to lead toadmissible evidence.DENY AS MOOT: Request ForProduction Nos. 16-17GRANT: Request For ProductionNos. 19-23In her deposition Cross-Complainant acknowledged otherfinancial documents exist (e.g. billsand bank statements, businessrecords), but have not beenproduced.GRANT: Request For ProductionNo. 37Cross-Complainant responded thatno such documents existed, butlater produced responsivedocuments. Cross-Complainant tofurther respond to correct thisinaccuracy.GRANT: Request For ProductionNo. 39This answer does not comply withSection 2031.230.GRANT: Request For ProductionNos. 51, 53 are the same as inMotion 1, addressed above.Privilege Log:To the extent that Cross-Complainant withholds anydocuments from production on thegrounds of privilege, she is orderedto produce a privilege log of suchdocuments.DENY: Monetary SanctionsNeither party substantially prevailedover the other on this motion.Deadline For Compliance AndService Of NoticeMoving Party is ordered to servenotice of this order. The furtherresponses, document production,and privilege log, if any, orderedabove are to be served within 20days after service of notice of thisorder. Sanctions to be paid within30 days after service of notice.

6. 11-493580 RICHARDSVS. PIROZZI1. MOTION TO BE RELIEVED ASCOUNSELThe court GRANTS the motion byRandall J. Paulson of Law Offices ofRandall J. Paulson to be relieved ascounsel for Plaintiff VicRichards. The order relievingcounsel will be effective upon filingby counsel of a proof of service ofthe signed Order GrantingAttorney’s Motion To Be Relieved AsCounsel- Civil on Plaintiff and allother parties who have appeared inthis matter.2. MOTION TO DEEM FACTSADMITTEDThe court GRANTS the motion byDefendants Lewis J. Pirozzi and LisaL. Pirozzi for an order deemingadmitted the first set of Requestsfor Admissions served byDefendants on Vic Richards onPlaintiff 3/25/13. Defendants are toserve notice of this order.7. 11-530219SAID VS. UC REGENTSOF CALIFORNIA1. Defendants Terry Belmont andThe Regents of the University ofCalifornia’s demurrer isSUSTAINED in part, isOVERRULED in part, and is MOOTin part.First, Plaintiff’s opposition isapproximately 28 pages in length,and therefore exceeds the pagerequirement set forth in CRC3.1113(d). Plaintiff has failed tobring an ex parte application beforethe opposition is due to file a longermemorandum. (CRC 3.1113(e).) Amemorandum that exceeds thepage requirement may beconsidered in the same manner asa later filed paper. (CRC31113(g).) The Court hasdiscretion to refuse a late filedpaper if the minutes or order soindicates. (CRC 3.1300(d).) Thus,the parties are warned that anyfuture papers that does not complywith Code and the Rules of Courtwill be disregarded by the Court.

The demurrer to the entire SecondAmended Complaint is SUSTAINEDas to Defendant Terry Belmont,with 20-days leave toamend. Defendant correctly notesthat Plaintiff has failed to plead anywrongdoing by Defendant Belmont,and the existence of a writtencontract between Belmont andPlaintiff. Boilerplate allegations ofan agency and/or conspiracy theoryof liability are insufficient.The demurrer to the 1 st cause ofaction for defamation and false lightas to Defendant Regent isOVERRULED. Defamation isgoverned by statute and notcommon law. In addition,Defendant has failed to sufficientlyestablish that it cannot be heldliable under Gov. Code Section815.2(a).Defendant Regent also demurrersto the entire Second AmendedComplaint on the ground that thequalified immunity provision underCivil Code Section 47(c)applies. Plaintiff, however, hasalleged sufficient facts showing thatDefendant acted withmalice. Therefore, for purposes ofthe demurrer, Defendant has failedto sufficiently establish thatimmunity under Civ. Code Section47(c) applies.The demurrer to the FEHA claims(4 th , 7 th , 8 th and 9 th causes ofaction) as to Defendant Regent isSUSTAINED, without leave toamend. Plaintiff entered into anunpaid position on 9/20/10, andwas simply given the title of “JuniorSpecialist.” The Court previouslyordered Plaintiff to allege specificfacts showing whether she was an

employee or was merely avolunteer. Here, Plaintiff has failedto allege sufficient facts showingthat she received substantialbenefit from her unpaid position,which would qualify her as an“employee” for purposes ofFEHA. Thus, Plaintiff has failed toallege sufficient facts showing thatshe is an “employee” under FEHA.The demurrer to the 6 th cause ofaction (retaliation) as to DefendantRegent is SUSTAINED, withoutleave to amend. Plaintiff has failedto allege sufficient facts showingthat she is an “employee” underLabor Code Section 1102.5.The demurrer to the 12 th cause ofaction (California WhistleblowerProtection Act) as to DefendantRegent is OVERRULED. Defendanthas failed to sufficiently establishthat Gov. Code Section 8547 etseq. has the same definition of“employee” as that set forth forFEHA and Labor Code Section1102.5. Thus, Defendant has failedto sufficiently establish that Plaintiffis not an “employee” under Gov.Code Section 8547 et seq.The demurrer to the 13 th through16 h causes of action (wage andhour claims) as to DefendantRegent is SUSTAINED, withoutleave to amend. Plaintiff’spurported employment contractattached to the Second AmendedComplaint specifically states thather position was an unpaidposition. Plaintiff has failed toallege sufficient facts showing thatshe is otherwise entitled topayment.In the opposition papers, Plaintiff

voluntarily “dismisses” the 21 st and22 nd causes of action. Thus, thosecauses of action are STRICKEN,AND the demurrer is MOOT.Moving parties are to give notice.2. Plaintiff Shary Said’s Motion toCompel Discovery and Motion forTerminating Sanctions has beentaken OFF CALENDAR.3. Plaintiff Shary Said’s Motion forLeave to File a Memorandum inExcess of Page Limitation isMOOT. This Court considered the28 page opposition to theDemurrer. Responding parties areto give notice.4. Plaintiff Shary Said’s Motion forReconsideration is DENIED. First,it is unclear what Plaintiff is seekingfor this Court to reconsider. TheDemurrer was continued from5/7/13 to 6/11/13. Thus, thisCourt did not rule on the merits ofthe subject Demurrer. Second,Plaintiff has not established anynew or different facts,circumstances, or law. Thus, themotion for reconsideration isDENIED. Responding party to givenotice.8. 12-573543VADURA VS. 1 STINTERNATIONAL, INC.1. 1 st International Inc.’s Motion fora Continuance of Trial is GRANTED.The trial, originally scheduledfor July 29, 2013, will becontinued to November 25,2013 to allow adequatepreparation for the single trialof consolidated cases (Case No.30-2013 and Case No. 2013-00640598).2. Defendant and Cross-Complainant 1 st International,Inc.’s unopposed Motion toConsolidate Case No. 30-2012-00573543 and Case No. 30-2013-00640598 isGRANTED. The Court concludesthat complete consolidation is

appropriate here to avoidconflicting findings of fact andconclusions of law and topromote judicial economy.9. 12-588355VOGELER VS.CULLIGAN WATER OFORANGE COUNTY1. MOTION TO COMPELATTENDANCE RE CRH CALIFORNIAWATER, INC.The Court GRANTS Plaintiff JamesVogeler’s motion to compelDefendant CRH California Water,Inc. to designate and produce oneor more witnesses, pursuant toCode Civ. Proc., Section 2025.230,to appear at deposition and totestify as to the matters forexamination and produce thedocuments described in the Noticeof Deposition served by Mr. Vogeleron 03/19/13.The evidence before the Courtestablishes that Mr. Vogeler isentitled to an order compelling theattendance of this defendant,pursuant to Code Civ. Proc., Section2025.240. CRH California Water’sargument to the contrary isunpersuasive because it was CRHCalifornia Water’s burden to eithertimely serve a notice of objection tothe deposition date as noticed, orelse secure an agreement from Mr.Vogeler to continue or re-set thedeposition. There is no evidencethat it did either. Moreover, itappears that Mr. Vogeler’s counselreasonably placed the ball in CRHCalifornia Water’s court to provideits available dates; a ball that doesnot appear to have been returned.2. MOTION TO COMPELATTENDANCE RE CULLIGAN WATEROF ORANGE COUNTYThe Court GRANTS Plaintiff JamesVogeler’s motion to compelDefendant Culligan Water of OrangeCounty to designate and produceone or more witnesses, pursuant toCode Civ. Proc., Section 2025.230,to appear at deposition and totestify as to the matters for

examination and produce thedocuments described in the Noticeof Deposition served by Mr. Vogeleron 03/19/13.The evidence before the Courtestablishes that Mr. Vogeler isentitled to an order compelling theattendance of this defendant,pursuant to Code Civ. Proc., Section2025.240. Culligan Water ofOrange County’s argument to thecontrary is unpersuasive becausethe only evidence before the Courtof the purported asset sale is anunauthenticated document. Even ifthe asset sale had been properlyestablished, an entity defendant isobligated to designate and produce“those of its officers, directors,managing agents, employees, oragents who are most qualified totestify on its behalf” as to thematters forexamination. RespondingDefendants make no argument orshowing that Culligan Water ofOrange County has no officers,directors, managing agents that todesignate and produce.3. MOTION TO COMPELATTENDANCE RE CULLIGAN WATERCONDITIONINGThe court GRANTS Plaintiff JamesVogeler’s motion to compelDefendant Culligan WaterConditioning to designate a produceone or more witnesses, pursuant toCode Civ. Proc., Section 2025.230,to appear at deposition and totestify as to the matters forexamination and produce thedocuments described in the Noticeof Deposition served by Mr. Vogeleron 03/19/13.The evidence before the courtestablishes that Mr. Vogeler isentitled to an order compelling theattendance of this defendant,pursuant to Code Civ. Proc., Section2025.240. Culligan WaterConditioning’s argument to thecontrary is unpersuasive becausethere is no evidence to support its

assertion that there is legal entitynamed “Culligan WaterConditioning.” “Culligan WaterConditioning” has appeared in thiscase by way of answering theAmended Complaint. To the extentthat “Culligan Water Conditioning”is merely a formal or informal dbafor Culligan Water Conditioning ofOrange County, then Culligan WaterConditioning of Orange County maydesignate and produce a witness totestify at deposition as to that fact,as well as the designated mattersfor examination.NOTICE OF ORDER AND OTHERISSUESThe depositions ordered herein areto take place on a mutuallyagreeabledate within 20 days afterservice of notice of this order, atVoss, Cook & Thel, LLP, 895 DoveStreet, Suite 450, Newport Beach,California, or on such other dateand/or at such other location towhich the parties may agree inwriting.Plaintiffs shall serve notice of thisorder.The Court notes that Plaintiffsamended their Complaint on05/01/13 to substitute CulliganInternational Company forDoe 1. The Court does not haveany record of Culligan Internationalhaving been served with process inthis case.11. 11-511055NEOCELLCORPORATION VS.NUTRAWISECORPORATION1. Plaintiff Neocell Corporation’smotion to consolidate the caseNeocell Corporation v. OstergarHunter Law Group, Inc. O.C.S.C.Case No. 30-2012-00591545 withNeocell Corporation v. NutrawiseCorporation, O.C.S.C. Case No. 30-2011-00511055, with the earlierfiled Nutrawise action to serve aslead case, is GRANTED. C.C.P.Section 1040(a) and Todd-Stenbergv. Dalkon Shield Claimants Trust(1996) 48 Cal.App.4 th 976, 978 to979. There are overlapping issuesof the settlement agreement

involving counsel and negotiationswith Costco by Neocell andNutrawise for future business thatsupport consolidation of these civilactions. However, the specificclaims against the law firms will bebifurcated for a second phase oftrial as set forth in the ruling onMotion No. 2 of 2 by defendantsSmith, Campbell, Clifford, Kearney,Gore and John Clifford. Movingparty to give notice.2. The motion to sever bydefendants Smith, Campbell,Clifford, Kearney, Gore and JohnClifford is DENIED. Severance isnot warranted as the claims againstthe law firm defendants are clearlyintertwined with the Costcobusiness negotiations betweenplaintiff Neocell and defendantNutrawise. The motion toconsolidate and bifurcate the claimsagainst the law firm defendants bydefendants Smith, Campbell,Clifford, Kearney, Gore and JohnClifford is GRANTED. C.C.P.Section 1048(b) and McLellan v.McLellan (1972) 23 Cal. App.3d343, 353. Consolidation iswarranted for the reasons set forthin Motion No. 1 of 2 by plaintiffNeocell. Bifurcation of the claimsagainst the law firm defendants intoa second phase of trial is warrantedbecause the damages, if any, byplaintiff Neocell against defendantNutrawise should be resolvedbefore the case within a case claimof damages can be determinedagainst the law firmdefendants. Moving parties to givenotice.Defendants’ Request for JudicialNotice: Defendants Smith,Campbell, Clifford, Kearney, Goreand John Clifford requested that theCourt take judicial notice of thefollowing documents: Exhibit S,First Amended Complaint in NeocellCorporation v. Ostegar Hunter LawGroup, Inc., et al., O.C.S.C. Case

No. 30-2012-00591545, and ExhibitT, First Amended Complaint inNeocell Corporation vs NutrawiseCorporation, O.C.S.C. Case No. 30-2011-00511055. GRANTED as toExhibits S and T, but such notice islimited to the filing of thesepleadings with the court and not asto the truth of any claims orcontentions set forththerein. Evidence Code Section452(d) and Day v. Sharp (1975) 50Cal.App.3d 904, 914.

RULINGS ON LAW & MOTION MATTERSJUDGE DAVID T. McEACHENDEPARTMENT C-21LAW & MOTION IS HEARD ON TUESDAYS AT 1:30 PMPlease read rules carefully. Do not call department unless submitting on the tentative.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings/mceachen.asp by 4:00 pm on Monday. The rulings will also be posted outsidethe courtroom on the bulletin board for those counsel without internet access, no later than 10:00 am on the dayof the scheduled motion.The Law & Motion hearings are scheduled on Tuesday at 1:30 pm and all arguments will be heard at thattime. No supplemental or additional papers will be allowed to be submitted following posting of the ruling on theinternet, nor will the Court entertain a request for continuance once the ruling has been posted.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. If youintend to submit on the tentative and do not want oral argument, please notice the clerk by calling (657) 622-5221 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate per CRC 3.1312.NOTICE TO COUNSEL: Upon filing a motion, moving party shall provide a copy of this procedural notice toopposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because of moving party’sfailure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailing party shall give noticeof the ruling. Prevailing party shall prepare an Order/Judgment for the Court’s signature if the motion isdispositive of a cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or the courtroom assistant for clarification of rulingsor additional information. If you are the moving party and do not have internet access, you may call thecourtroom assistant or clerk after 10:00 am on Tuesday of the scheduled hearing and the ruling will be read toyou.LAW AND MOTION FOR JUNE 25, 20132. 13-641060 HA VS.OSCAR GINJEFFCORPORATIONThe Court DENIES Defendant’s motion tocompel arbitration.A party moving to compel arbitration underCode Civ. Proc., Section 1281.2 must proveby a preponderance of the evidence that,among other things, the parties entered intoa written agreement to arbitrate.Plaintiff did not sign theagreement. Plaintiff’s son signed, Defendantclaims, as Plaintiff’s agent. Defendant, asthe party seeking to compel arbitration,bears the burden of producing evidence ofagency. (Pagarigan v. Libby Care Ctr., Inc.(2002) 99 Cal.App.4th 298, 302 [noting thatdefendant care center, seeking to compelarbitration, failed to produce evidence ofagency].)(a) No written agency authorityThere is no evidence of written agencyauthority, such as a power of attorney,conferred on Plaintiff’s son at the time theson signed the agreement.(b) No ostensible agencyAgency can also be based on ostensible

authority, i.e. some intentional or negligentconduct on the principal’s part creating abelief and reasonable reliance by third partiesthat an agency exists. (Flores v. EvergreenAt San Diego, LLC (2007) 148 Cal. App. 4th581, 587-588.) “Words or conduct by bothprincipal and agent are necessary to createthe relationship.” (Id. at 588 [internalquotations omitted].)The Declaration of Dennet Bermas isinsufficient to establish agency becauseDefendant has not shown any words orconduct by Plaintiff to support such a finding.The court notes that both parties haveattached exhibits bearing private informationwhich is required to be redacted before filingwith the court, pursuant to Cal. Rules ofCourt, Rule 1.20(b)(2)(A). (Moffit Decl., Ex.A, p. 2; Stadmiller Decl., Ex. 1, p.4.) Counsel is advised to comply fully withRule 1.20 in future pleadings.Plaintiff to give notice.3. 13-645720 PARKVS. CHOI1. Defendants’ anti-SLAPP motion isGRANTED as to the 5 th cause of action forabuse of process.2. Defendant Helen Choi’s demurrer to the5 th cause of action for abuse of process isMOOT based on the Court’s granting of theanti-SLAPP motion on that cause of action.3. Defendant Keun Sook Choi’s demurrer tothe 1 st through 4 th causes of action isSUSTAINED with 10 days leave to amend.The demurrer as to the 5 th cause of action isMOOT.1. ANTI-SLAPP MOTIONCCP Section 425.16(e) defines the scope ofprotection provided by thestatute. Specifically, it defines the phrase an"act in furtherance of a person's right ofpetition or free speech under the UnitedStates or California Constitution inconnection with a public issue" to include thefollowing: “(1) any written or oral statementor writing made before a legislative,executive, or judicial proceeding, or anyother official proceeding authorized by law;(2) any written or oral statement or writingmade in connection with an issue underconsideration or review by a legislative,executive, or judicial body, or any otherofficial proceeding authorized by law; (3) anywritten or oral statement or writing made ina place open to the public or a public forumin connection with an issue of public interest;

(4) or any other conduct in furtherance ofthe exercise of the constitutional right ofpetition or the constitutional right of freespeech in connection with a public issue oran issue of public interest.”In determining whether the defendant or hasmet this initial burden, the Court considersthe pleadings, declarations, and matters thatmay be judicially noticed. (Bill Media Co.,LLC v. TCW Group, Inc. (2005) 132 Cal. App.4th 324, 329, 339.)Once the moving party defendant meets itsinitial burden, the burden shifts to theplaintiff to show that its complaint is bothlegally sufficient and supported by asufficient prima facie showing of facts tosustain a favorable judgment. (Premier Med.Mgt., Inc. v. California Ins. Guaranty Assn.(2006) 136 Cal.App.4th 464, 472.) ThePlaintiff must produce evidence that would beadmissible at trial. (Chavez v. Mendoza(2001) 94 Cal. App. 4th 1083, 1087.)Step 1 Analysis—Do Claims Arise FromProtected Activity:The moving party must make a prima facieshowing that the opposing party’s lawsuitarises from the moving party’s exercise ofprotected activity. (Navellier v. Sletten, 29Cal. 4 th 82, 88 (2002).) A moving party canmeet its initial burden by demonstrating thatthe act underlying the plaintiff’s cause ofaction fits one of the categories spelled out inthe anti-SLAPP statute. (Id.)Here, K. Choi is the only named plaintiff whoinitiated and participated in unlawful detainerproceedings. Unlawful detainer proceedingsfall squarely within CCP Section 425(e)(1)and (2). The prosecution of an unlawfuldetainer action indisputably is protectedactivity within the meaning of § 425.16.(Feldman v. 1100 Park Lane Assoc. (2008)160 Cal. App. 4 th 1467, 1479.) The unlawfuldetainer action clearly falls within the scopeof free speech or petitioning activityprotected by the anti-SLAPP statute. (Wallacev. McCubbin (2011) 196 Cal.App.4 th 1169,1182.)The UD action was dismissed on 4/10/13.Plaintff Park then filed this lawsuit alleging anabuse of process Cause of Action (5 th )against both K. Choi and her daughter H.Choi for initiating the UD action and filingfalse documents and making falsestatements.The anti-SLAPP statute has been applied toabuse of process claims where the underlyingact arises from the exercise of the right topetition the courts for redress. (Siam v.

Kizilbash (2005) 130 Cal. App. 4 th1563.) Plaintiff specifically alleges thatdefendants abused the process of the courtin a wrongful manner in the unlawful detaineraction to accomplish purposes for which theproceeding was not designedfor. Defendants used the process to oustplaintiff from his home, obstruct justice andthreaten plaintiff. The activity that framesplaintiff’s abuse of process claim - filing theUD action is a protected activity. (Feldman,supra, at 1484.)Thus, the activity plaintiff alleges is protectedand the first prong has been met.Step 2 Analysis—Probability Of Prevailing:Once it is determined that an act infurtherance of protected expression is beingchallenged, the plaintiff must show a“reasonable probability” of prevailing in itsclaims for those claims to survive dismissal.Section 425.16(b); Wilcox v. Superior Court,27 Cal. App. 4th 809, 33 Cal.Rptr.2d 446,455 (1994). To do this, the plaintiff mustdemonstrate that “the complaint is legallysufficient and supported by a prima facieshowing of facts to sustain a favorablejudgment if the evidence submitted by theplaintiff is credited.” Wilcox, 33 Cal. Rptr. 2dat 454. This burden is “much like that usedin determining a motion for nonsuit ordirected verdict,” which mandates dismissalwhen “no reasonable jury” could find for theplaintiff. Id. at 455 (citing Rowe v. SuperiorCourt, 15 Cal.App.4th 1711, 19 Cal.Rptr.2d625, 632 (1993)). Thus, a defendant's anti-SLAPP motion should be granted when aplaintiff presents an insufficient legal basisfor the claims or “when no evidence ofsufficient substantiality exists to support ajudgment for the plaintiff.” Id. at 457 (citingCarson v. Facilities Dev., Co., 36 Cal.3d 830,838-39: Metabolife Int'l, Inc. v. Wornick, 264F.3d 832, 840 (9th Cir. 2001).)Plaintiff hasn’t opposed the motion andconsequently doesn’t offer any evidence insupport of the second prong, that he has aprobability of prevailing on the merits of theabuse of process cause of action.The fact that the action is alleged to havebeen dismissed doesn’t create a presumptionagainst defendants herein that plaintiff’sabuse of process claim has merit. Defendantsprovide their declarations as evidence insupport. K Choi states that she never agreedto share her property with plaintiff. Shewould help him by giving him money andbelieves she’s given him $200,000 since1985. After a period of time plaintiff became

abusive if defendant would not give himmoney. She felt threatened and began tofear for her safety. After being hospitalized in2012 she was afraid to return to her homewhere plaintiff was still living and refusing toleave. Defendant only intended to provideplaintiff with a room to stay in for a shortperiod of time, but he soon refused to leave.Defendant with the assistance of OC AdultProtective Services was able to obtain a TROagainst plaintiff and force him from theproperty because of his abuse and volatileconduct towards Defendants. K. Choi statesshe started the eviction process because shewanted to feel safe in her home. She statesshe filed it and her daughter, Helen did notfile the action or ask K. Choi to file it. Shestates the UD action was dismissed becausea different type of notice had to be provided.K Choi declares that she intends to refile theUD action if plaintiff doesn’t voluntarilyleave.Helen Choi declares that she was notinvolved in the UD action at all and had noinput as to her decision to initiate andexecute on the UD action. Helen describesplaintiff’s abusive and volatile behaviortowards her and her mother, and that bothwere in fear living with him.Plaintiff has failed to establish a prima faciecase of a probability of success on themerits.The motion by defendants Keun Sook Choiand Helen Choi is granted as to the 5 th causeof action for abuse of process for the abovereasons.DEMURRERSDefendants each separately demurred toplaintiff’s complaint.Helen Choi demurred only to the 5 th cause ofaction. The demurrer is rendered moot bythe ruling granting the anti-SLAPP motion.Keun Sook Choi demurred to all 5 causes ofaction. The demurrer to the 5 th cause ofaction is likewise moot based on therecommended ruling on the anti-SLAPPmotion.As to the demurrer for the other 4 causes ofaction , plaintiff’s failure to oppose thedemurrer may be construed as havingabandoned the claims. (Herzberg v. Countyof Plumas (2005) 133 Cal.App.4th 1, 20[“Plaintiffs did not oppose the County'sdemurrer to this portion of their seventhcause of action and have submitted no

argument on the issue in their briefs onappeal. Accordingly, we deem plaintiffs tohave abandoned the issue.”].) Additionally,the court may construe the absence of amemorandum as waiver of all grounds notsupported. (CRC, Rule 3.1113(a).)The demurrer of Keun Sook Choi to the 1 stthrough 4 th causes of action is sustained with10 days leave to amend. The demurrer as tothe 5 th cause of action is moot.5. 12-590845 TAOVS. SYSTEM ANDSOFTWAREENTERPRISES, LLCThe court DENIES Defendant System andSoftware Enterprises, LLC’s motion forsummary adjudication as to the First Causeof Action in Plaintiff Adam Tao’s Complaint.Based on the admissible evidence before thecourt, the court concludes that there is atriable issue of fact as to whether Plaintiff orhis counsel received negotiable checks asunconditional payment of Plaintiff’s finalwages.There is a triable issue as to whether thechecks mailed on 02/20/12 were conditionedon a release of Plaintiff’s claim for waitingtime penalties. There is evidence sufficientto support the inference that those checkswere not provided unconditionally, but as anattempt to resolve the entirety of Plaintiff’sclaims against Defendant, including forwaiting time penalties. (Plaintiff’s Dec.,paragraph 14; UMF 1-2, 4-5, 13, 33;Mollican Dec., Exh. B.) If so, Plaintiff’srefusal to negotiate the checks appearsreasonable, notwithstanding the fact that hemay have had the right to do so and thenargue about whether the release wasvalid. (C.f. Lab. Code, Section 206.5.) Moreimportantly, the checks would not have beenpresented as unconditional payment ofamounts concededly due. (Lab. Code,Section 206, subd. (a).)On 09/20/12, Defendant agreed to re-issuenew checks and deliver them to Plaintiff asfull, unconditional payment of all wages andaccrued vacation owed. (UMF 17-18.) Itappears that those replacement checks werenot issued and there is no evidence beforethe court to the contrary. (UMF 21.)While it appears undisputed that, at least asof 09/20/12, the checks mailed on 02/20/12would have been full and unconditionalpayment of all wages and accrued vacationowing to Plaintiff, Defendant has not met itsburden of proffering evidence sufficient toestablish that they were negotiable at anytime on or after 09/20/12. The limitedevidence proffered on this issue boils down

to: (1) Plaintiff’s counsel’s statement thatPlaintiff’s counsel’s bank would not honor thechecks; and (2) Defendant’s counsel’sstatement that Defendant’s bank would likelyhonor the checks. (UMF 16, 21.) Suchspeculation as to whether the checks wouldeven be negotiable at Defendant’s bank isinadequate to establish that payment wasactually made to Plaintiff as of 09/20/12.In connection with this motion, the courtgrants Defendant’s request for judicial notice,and takes notice of the identified documents,their contents, and the clear legal effectsthereof, though not the truth of anystatements contained therein. (Evid. Code,Sections 452, subd. (d)(1), 453.)The court overrules Plaintiff’s objectionsincluded in his Separate Statement on thegrounds that: there is no basis for objectingto the facts asserted in a separatestatement; and objections to evidence mustbe presented in a separate document and ina format required by the California Rules ofCourt. (Code Civ. Proc., Section 437c, subd.(b)(5); Cal. Rules of Court, Rule 3.1354;Hodjat v. State Farm Mutual AutomobileInsurance Co. (2012) 211 Cal.App.4th 1, 8–9[trial court did not abuse its discretion inrefusing to consider objections not filedseparately as required by rule].)The court sustains Defendant’s Objection No.9 to Plaintiff’s Declaration in opposition to themotion. Defendant’s evidentiary objectionsare otherwise overruled.

RULINGS ON LAW & MOTION MATTERSJUDGE DAVID T. McEACHENDEPARTMENT C-21LAW & MOTION IS HEARD ON TUESDAYS AT 1:30 PMPlease read rules carefully. Do not call department unless submitting on the tentative.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings/mceachen.asp by 4:00 pm on Monday. The rulings will also be posted outsidethe courtroom on the bulletin board for those counsel without internet access, no later than 10:00 am on the dayof the scheduled motion.The Law & Motion hearings are scheduled on Tuesday at 1:30 pm and all arguments will be heard at thattime. No supplemental or additional papers will be allowed to be submitted following posting of the ruling on theinternet, nor will the Court entertain a request for continuance once the ruling has been posted.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. If youintend to submit on the tentative and do not want oral argument, please notice the clerk by calling (657) 622-5221 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate per CRC 3.1312.NOTICE TO COUNSEL: Upon filing a motion, moving party shall provide a copy of this procedural notice toopposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because of moving party’sfailure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailing party shall give noticeof the ruling. Prevailing party shall prepare an Order/Judgment for the Court’s signature if the motion isdispositive of a cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or the courtroom assistant for clarification of rulingsor additional information. If you are the moving party and do not have internet access, you may call thecourtroom assistant or clerk after 10:00 am on Tuesday of the scheduled hearing and the ruling will be read toyou.LAW AND MOTION FOR JULY 2, 20131. 11-476816 ARKAINVESTMENTS VS.ROSELLEThe court OVERRULES the Demurrer ofCross-Defendants Nationwide RealtyAssociates, LLC and Scott Walker to theFirst Amended Cross-Complaint as toCauses of Action Nos. 1-3, 5, and 7-8, andSUSTAINS the Demurrer without leave toamend as to Causes of Action Nos. 4 and6.An allegation of civil conspiracy “renderseach participant responsible as acontributory tortfeasor whether or not heactually committed the wrongfulact.” (Barney v. Aetna Cas. & Sur. Co.(1986) 185 Cal.App.3d 966, 983.) TheFACC alleges a civil conspiracy betweenAbbadi, Jocal, and Cross-Defendants todefraud Cross-Complainants. Thus,Abbadi’s misrepresentations are sufficientto allege fraud against Cross-Defendantsas co-conspirators.Because fraud is sufficiently pled, theclaims for unfair business practices andindemnity are also sufficiently pled.Unjust enrichment is sufficiently pled. TheFirst Amended Cross-Complaint alleges afraudulent scheme by Cross-Defendants

and others to have Cross-Complainantsrelinquish ownership of their property whileremaining liable on their mortgages. As aresult, Cross-Defendants were able toprofit from multiple sales of the property todifferent buyers.A necessary element of a fraudulentconcealment claim is the allegation thatCross-Defendants had a duty to disclosethe concealed fact to Cross-Complainants. (Kaldenbach v. Mutual ofOmaha Life Ins. Co. (2009) 178Cal.App.4th 830, 850.) Duty is also anecessary element for negligence. There isno duty alleged, nor can one be inferredfrom the allegations, on the part of Cross-Defendants. Cross-Defendant Walker isalleged to be one of the buyers of thesubject property, and Cross-DefendantNationwide is simply alleged to be Walker’salter ego. As a mere buyer, there wouldbe no duty to disclose that Cross-Complainants’ “two Bank of America loansfor the Subject Property had not been paidoff.”Moving Party to give notice.3. 12-603732 DOMINGUEZVS. GEOFFREY M.HERSCH, DDSCase Management Conference toremain.Plaintiff’s motion for leave to file a SecondAmended Complaint is DENIED. Plaintifffails to state any cause of action againstthe proposed new defendants based onaiding and abetting as part of a civilconspiracy. The communications uponwhich plaintiff relies are further privilegedunder CC Section 47. Plaintiff also failed toseek leave of Court pursuant to CC Section1714.10 to file a claim for civil conspiracyagainst the law firm of Scott & Whitehead.Defendant to give notice of ruling.Facts To State a cause of actionPlaintiff seeks to amend her complaint andfile a Second Amended Complaint thatadds defendant’s attorneys (Scott &Whitehead) and a human resourcesconsulting firm (Bent Ericksen & Assoc.) heconsulted with to make the decision toterminate plaintiff’s employment instead ofgranting her a further extension for timeoff due to medical reasons. Plaintiff’s basisfor suing these entities is her contentionthat they aided, abetted, incited and

compelled defendant Hersch Pediatric toterminate her unlawfully from heremployment. Plaintiff wants to add thesedefendants to the existing 5 th cause ofaction for failure to prevent discrimination;and to add them in a new 11 th cause ofaction for violation of Gov’t Code Section12940 (I),(K) Plaintiff learned ofdefendant’s consultation with these entities[for legal advice] through defendant’sdiscovery responses that were redactedbased on the attorney-client privilege.Plaintiff subsequently deposed Dr. Herschwho testified that he sought legalconsultation with both entities in an effortto make a decision regarding plaintiff’semployment status. Dr. Hersch refused towaive his attorney-client privilege anddisclose the substance of hiscommunications.This motion then followed. Plaintiff’s claimof aiding, abetting, inciting and compellingdefendant to fire her is based entirely onthe communications defendant had withthese entities.The Court has the discretion to deny leaveto amend where a proposed amendedcomplaint fails to state a valid cause ofaction. (California Vas. Gen. Ins. Co. v.Superior Court (1985) 173 Cal.app.3d 274,280-81, disapproved on other grounds byKransco v. Am. Empire Surplus Lines Ins.Co. (2000) 23 Cal.4 th 390.)Plaintiff alleges in the 5 th cause of actionthat the newly proposed defendant entitiesare labor organizations within FEHA. This isa stretch of the term beyond theimaginable allowance of the plain use ofthe word. Black’s Law Dictionary defineslabor organization as “See UNION”. TheCCR Section 7286.5(d) which providesdefinitions applicable to FEHA defines labororganization as “any organization whichexists and is constituted for the purpose, inwhole or in part, of collective bargaining orof dealing with employers regardinggrievances, terms or conditions ofemployment or of providing other mutual

aid or protection.” Cases have used theterm labor organization to refer exclusivelyto unions. (Matter of the Dep’t of FairEmployment & Housing v. Bay Area RapidTransit Dist., FEP 91-92 M9-1278-00-rse,1997 WL 840032 (Nov. 5, 1997.)Plaintiff cites to no legal authority thatlabor organization can apply to the entitiesunder these facts. When construingallegations in a complaint for purposes ofdetermining the validity of a pleading,courts must assume the truth of thecomplaint’s properly pleaded or impliedfactual allegations. (Blank v. Kirwan(1985) 39 Cal 3d 311, 318.) The Courthowever, does not assume the truth ofcontentions, deductions or conclusions offact or law. (Moore v. Regents (1990) 51Cal.3d 120, 125.) Here the plain meaningof the term labor organization is anunsupported contention lacking any factsto establish that defendants are truly alabor organization aka, union, and it is aconclusion of law that the proposeddefendants constitute a union, a legallydefined entity.The proposed Second Amended Complaintlacks facts to support that either BentEricksen & Assoc. or Scott & Whitehead’sconduct of providing legal consultationupon defendant Hersch’s request wereaiding and abetting to help defendantcommit an illegal act to state the 11 thcause of action. There are no facts tosupport that they believed they wereproviding improper advice, that the advicewas in fact improper, that they provided itwith the intention to commit an illegal actor help defendant to commit an illegal act.Liability may be imposed only if the person(a) knows the other’s conduct constitutes abreach of duty and gives substantialassistance or encouragement to the otherto so act or (b) gives substantial assistanceto the other in accomplishing a tortiousresult and the person’s own conduct,separately considered, constitutes a breachof duty to the third person. (Fiol v.Doellstedt (1996) 50 Cal.App.4 th 1318,

1325-26.)Here, neither entity owed plaintiff a duty.The facts plead that both entities wererequested to provide some legal advice onhow best to proceed with either grantingplaintiff additional time-off for medicalreasons, or whether defendant couldterminate plaintiff’s employment based onher failure to return to work. There are nofacts presented of substantial assistance orencouragement by the entities.The motion for leave to amend is deniedon this ground.Privileged Communications Under CCSection 47Further, CC Section 47 provides that thecommunications between defendant andhis legal counsel and HR consulting firmregarding plaintiff’s employment status areprivileged. (King v. UPS, Inc. (2007) 152Cal. App.4 th 426, 440.) They are alsoprivileged because they were made inanticipation of litigation, under the Anti-SLAPP provision and the litigation privilege.(Briggs v. Eden Council for Hope &Opportunity (1999) 19 Cal.4 th 1106,1115.)The essence of defendant’s seeking outand consultation with the two entities wasfor legal advice on how to proceed in thesituation to avoid exactly this lawsuit thatensued. There is no other reason thatdefendant would have reached out forexpert advice before terminatingplaintiff. To maintain the causes of actionagainst legal counsel and the HRConsultant for doing what they were askedand paid to do, provide their best legaladvice, would chill the ability to exercisethe free speech to further public policy andprotect defendant’s rights in anticipation oflitigation. Plaintiff is wrong in claimingthat application of CC Section 47 cannot be

determined as a matter of law. It is on adaily basis in Anti-SLAPP motions, Motionsfor Summary Judgment, and Demurrers.Plaintiff misstates the authority she cites –Action Apt. Ass’n dealt with the narrowissue in that case whether a particulareviction notice constituted a pre-litigationcommunication and was thereforeprivileged. In that specific limited instance,the Court of Appeal stated that underthose facts, a factual inquiry was requiredto determine if CC Section 47 applied. TheMotion for Summary Judgment could begranted on that reasoning.Lastly, plaintiff hasn’t filed a motionpursuant to CC Section 1714.10 to obtain aCourt order allowing her to file a claimagainst Scott & Whitehead, defendant’sattorneys, for civil conspiracy. (Flores v.Emerich & Fike, (E.D. Cal. 2006) 416 F.Supp.2d 885, 909.)For all of these reasons, the motion forleave to file the 2 nd Amended Complaint isdenied.5. 12-619096 JAMESBARBER, AS TRUSTEEOF THE BARBERFAMILY TRUST VS.BARBERThe court GRANTS Michele Barber’smotion to strike the following portions fromDavid Barber’s Cross-Complaint, with leaveto amend: page 8, lines 3-11 (“At all timesrelevant, Cross-Defendants Michele andZoes 1-10 … fraudulent and maliciousconduct.”) and page 9, lines 8-9 (“On theFourth Cause of Action for Breach ofFiduciary Duty, for an award of exemplaryor punitive damages in an amountaccording to proof[.]”).Missing is any allegations specificallyidentifying the “financial transactions” atissue or the material facts concealed. Inthe absence of such factual allegations,David Barber has pled mere conclusionsinadequate to allege “fraud” within themeaning of Civ. Code, Section 3294.David Barber shall file and serve anyamended cross-complaint within 10 daysafter service of notice of this order. If hefails to do so, Michele Barber shall file andserve her answer to the Cross-Complaintwithin 10 days thereafter.Michele Barber is to serve notice of thisorder.

7. 12-575546 RUIZ VS.SOLOMON9. 12-554473 THECIRCLE TRUST, #2792,CIC AS TRUSTEE VS.MCCULLOUGHThe court GRANTS the unopposed motionby Defendants/Cross-Complainants WadeSolomon, individually and dba ContinentalChemical & Sanitary Supply, and KingSolomon, Inc. (collectively, “Cross-Complainants”) for leave to file the FirstAmended Cross-Complaint, attached asExhibit A to the motion. Cross-Complainants met the requirements ofCode Civ. Proc., Section 473, subd. (a)(1),i.e. they timely moved for leave and thereis no showing that granting leave wouldprejudice Plaintiff/Cross-Defendants.Cross-Complainants are to file and serve,within 5 days after entry of this order, anexecuted copy of the First Amended Cross-Complaint attached as Exhibit A to theirmotion. Cross-Complainants shall servenotice of this order.Defendant William McCullough, III’sunopposed Motion to Compel Deposition isGRANTED. The PMK of Plaintiff The CircleTrust, #2972 (the trust), and the PMK ofCity Investment Capital (Plaintiff’s trustee),are to appear for deposition within 10days. Plaintiff and Plaintiff’s attorney ofrecord are to pay $1,738.78 in sanctionswithin 20 days. Moving party is to givenotice.

RULINGS ON LAW & MOTION MATTERSJUDGE DAVID T. McEACHENDEPARTMENT C-21LAW & MOTION IS HEARD ON TUESDAYS AT 1:30 PMPlease read rules carefully. Do not call department unless submitting on the tentative.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings/mceachen.asp by 4:00 pm on Monday. The rulings will also be postedoutside the courtroom on the bulletin board for those counsel without internet access, no later than 10:00am on the day of the scheduled motion.The Law & Motion hearings are scheduled on Tuesday at 1:30 pm and all arguments will be heard at thattime. No supplemental or additional papers will be allowed to be submitted following posting of the rulingon the internet, nor will the Court entertain a request for continuance once the ruling has been posted.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. Ifyou intend to submit on the tentative and do not want oral argument, please notice the clerk by calling(657) 622-5221 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate perCRC 3.1312.NOTICE TO COUNSEL: Upon filing a motion, moving party shall provide a copy of this procedural noticeto opposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because ofmoving party’s failure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailingparty shall give notice of the ruling. Prevailing party shall prepare an Order/Judgment for the Court’ssignature if the motion is dispositive of a cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or the courtroom assistant for clarification ofrulings or additional information. If you are the moving party and do not have internet access, you maycall the courtroom assistant or clerk after 10:00 am on Tuesday of the scheduled hearing and the rulingwill be read to you.LAW AND MOTION FOR JULY 16, 20132. 10-364382GORR VS.UNIVERSALINTERACTIVE,LLCDefendants Universal Interactive LLC,Universal Interactive Licensing LLC and JoelShamitoff’s Motion for Reconsideration isDENIED. There are no new or differentfacts, circumstances or law whichDefendants could not, with reasonablediligence, have discovered and produced atthe time of the prior motion.Defendants’ request for attorney’s feesunder the mandatory provision of CCPSection 473(b) is GRANTED. Plaintiff’sattorney is to pay $3,600.00 within 30 days.Moving party is to give notice.4. 11-487460IRVINE FUELEXCHANGE,INC. VSCONOPHILLIPSCOMPANY1. The Motion for Summary Adjudication ofthe third cause of action for breach of oralcontract is DENIED. The Motion forSummary Adjudication of the seventh,eighth and twelfth causes is GRANTED.The motion for summary adjudication of theseventh, eighth and twelfth causes isGRANTED. The Defendant sustained itsinitial burden of establishing that there was

no material issue of triable fact with respectto the third, seventh, eighth or twelfthcauses of action. However, with respect tothe third cause, the Plaintiffs have sustainedtheir resulting burden.The Defendants have established that Pacificmade no promises to Plaintiffs. But even ifsome of Pacific’s statements could beconstrued as promises, they were so vagueand ambiguous that they would haverequired extrinsic evidence to interpret. Theundisputed evidence shows that Pacificnever promised Plaintiffs anything uponwhich they could reasonably haverelied. Plaintiffs come nowhere nearestablishing-as they must- a "clear andunambiguous promise." Instead, theevidence shows, at most, that arepresentative of Pacific made vagueutterances to the effect of "don't worry" and"we'll take care of it." Without more, suchassertions do not constitute the clarityrequired under this equitable doctrine.Additionally, there is simply no evidence toshow that Plaintiffs detrimentally relied uponPacific's alleged promise. Plaintiffspurchased their rights in the service stationsat issue long before Pacific ever acquiredthe stations, so it cannot be said thatPlaintiffs relied on any representations ofPacific in connection with that purchase.Without a consequential change of positionthat harmed Plaintiffs, the claim fails.Mohsen Ghaneian (principal of PlaintiffIrvine Fuel Exchange) admitted that no oneat Pacific ever promised to make him, orany of the other fee operators, a dealer orto sell them the land. (Exh. A ("GhanieanDepo.") to the Declaration of Carlos A.Singer ("Singer Decl."), at pp. 191:18-19 &228:4-9. In fact, while the Complaintbroadly alleges that David Delrahim(minority owner of Pacific) and Chris Wilson(general manager of Pacific) made promisesto make Plaintiffs dealers, (Compl. 31 & 33),Mr. Ghaniean's actual deposition testimonyis to the contrary. He admits that ChrisWilson did not promise himanything. Ghaneian Depo. at pp. 228:4-25.He also conceded that the only relevantstatement made by David Delrahim was,

"Moe, don't worry. We'll take care of it." Id.at pp. 184:12-14. And even as to thatstatement, Mr. Ghaneian concedes that hedid not understand this to be an outrightpromise to meet Plaintiffs' demands. Rather,he understood Mr. Delrahim to be saying,"I'm going to look at all the information, andanything that was done wrong by 76, I'lltake care of it." Id. at pp. 190:18-23.There is even less evidence with respect toPlaintiff Kambit, Inc. When asked whetherPacific ever promised her anything, BitaZareh (principal of Kambit) affirmed that heronly communications with Pacific werethrough Pacific's employee, Chris Wilson,from whom she was trying to get an offer tosell the land. Exh. B to Singer Decl. ("BitaZareh Depo.") at pp. 250:12-251:8. Shenever had communications with any otherPacific employee about becoming a dealer.id. at pp. 262:24-263:2. Reza Zareh (Bita'shusband and also a principal of Kambit)conceded that he did not recall having hadany communications with Pacific prior toPacific purchasing the sites. Exh. C toSinger Decl. ("Reza Zareh Depo.") at pp.91:21-92:7. He testified that he did notremember a time when anyone at Pacificspecifically promised to make him adealer. id. at pp. 116:18-20.Finally, the evidence is no better as toPlaintiff K&R Services, Inc. Shirin Karamooz(principal of K&R) echoed the testimony ofher co-plaintiffs, stating that no one fromPacific promised her anything before Pacificpurchased the stations, Exh. D to SingerDecl. ("Karamooz Depo.") at pp. 257:17-260:14; that Chris Wilson never promised tomake her a dealer, id. at pp. 288:24-289:7;and that David Delrahim simply told her thathe would "take care of her when "the timecomes," id. at pp. 260:19-21 & 266:19-22.Plaintiffs' 7th Cause of Action for IntentionalMisrepresentation and 8th Cause of Actionfor Negligent Misrepresentation fail forsimilar reasons. To state a claim forintentional misrepresentation, Plaintiffsmust prove: (1) a misrepresentation (falsestatement, concealment, or nondisclosure);

(2) knowledge of the statement's falsity(scienter); (3) intent to defraud (i.e., toinduce reliance); (4) justifiable reliance; and(5) resulting damage. Alliance Mortgage Co.v. Rothwell, 10 Cal. 4th 1226, 1239 (1995).A claim of negligent misrepresentation issimilar to fraud "except for the requirementof scienter; in a claim for negligentmisrepresentation, the plaintiff need notallege the defendant made an intentionallyfalse statement, but simply one as to whichhe or she lacked any reasonable ground forbelieving the statement to be true." Charnayv. Cobert, 145 Cal. App. 4th 170, 184-85(2006).Here, the evidence shows that thestatements that Pacific employees allegedlymade to Plaintiffs do not constitute"misrepresentations." The evidence alsoestablishes that there was no justifiablereliance on the part of Plaintiffs. BecausePlaintiffs cannot meet their burden of proofon the elements of the misrepresentationclaims, judgment is granted to Pacific as tothose causes of action.The 12th Cause of Action for unfair businesspractices is derivative of the promissoryestoppel and misrepresentation claims.Compl. 159. Thus, it also fails for the samereasons. Since Plaintiffs have neitheralleged nor produced any independentevidence to support the proposition thatPacific engaged in any unlawful businesspractice, summary adjudication is grantedas to this claim.With the burden shifted to the Plaintiffs, thecourt finds that the Plaintiff has sustainedtheir resulting burden with respect to thethird cause only. COP sold all three of theSites to Pacific and Pacific was assignedCOP's interests in the agreements. Compl.,32, 53 & 66. Plaintiffs purchased Procare'sautomotive repair businesses at the threeSites and Procare assigned to them itsinterests in the agreements. Compl. 22, 27& 28. Thus, in the Defendants’ words,Pacific stepped into the shoes of Tosco\COPand Plaintiffs stepped into the shoes ofProcare. Pacific, as the admitted successorto Conoco's interests in the Stations and itsagreements with Plaintiffs, stands in theshoes of Conoco and is held to the same

obligations created by Conoco and Plaintiffswhich inure to the benefit of Plaintiffs Cal.Civ. Code § 1589 states that "[a] voluntaryacceptance of the benefit of a transaction isequivalent to a consent to all the obligationsarising from it, so far as the facts areknown, or ought to be known, to the personaccepting." "An estoppel binds not only theguilty party but those in privity with him;while privity generally involves persons soidentified in interest that they represent thesame legal right, the discernment of privityrests upon a case-by-case examination."Citizens Suburban Co. v. RosemoniDevelopment Co., (Cal. App. 3d Dist. 1966)244 Cal. App. 2d 666.Plaintiffs' third cause of action for Breach ofOral Contract Based on Detrimental Relianceis supported by the claim that Conocopromised to convert Plaintiffs' fee operatoragreements into dealer/franchiseerelationships after its issue with Procare wasresolved. The Plaintiff has established thatthe promise was allegedly conveyed toPlaintiffs by Conoco's representatives, Mr.Norm Ross, Mr. Jeff Deboer, Mr. AndyEverson, and Mr. Gregg Briggs in 2003,when Mr. Mohsen Ghaneian, Plaintiffs'representative, met with these individualsfrom Conoco. (Separate Statement ofUndisputed Facts ("SSD") at No. 1.)Additionally, throughout Plaintiffs'relationship with Conoco, each of them wererepeatedly promised by Conoco that the feeoperator relationships were temporary andthat it was Conoco's intention to convertthese relationships to dealer/franchiseerelationships. (SSD No. 1.) Pacific assumedConoco's obligations as it related to theagreements between Plaintiffs and Conocothrough both Pacific's express assumption ofthese agreements from Conoco, andthrough Mr. Delrahim's representation toMr. Ghaneian that Pacific intended to honorConoco's promise to convert Plaintiffs' feeoperator relationships into dealer/franchiseerelationships. (SSD No. 1.)The general rule is that the mereassignment of rights under an executorycontract does not cast upon the assigneethe obligations imposed by the contractupon the assignor. ( Walker v. Phillips(1962) 205 Cal.App.2d 26, 32 [22 Cal.Rptr.

727].) The rule is otherwise, however,where the assignee assumes suchobligations. ( Griffin v. Williamson (1955)137 Cal.App.2d 308, 315 [290 P.2d 361].)“[W]hether there has been an assumption ofthe obligations is to be determined by theintent of the parties as indicated by theiracts, the subject matter of the contract ortheir words.” (Gregers v. Peterson IceCream Co., Inc. (1958) 158 Cal.App.2d 746,751 [323 P.2d 572]; also Weidner v. Zieglar(1933) 218 Cal. 345, 349 [23 P.2d 515];Foreman Roofing Inc. v. United Union ofRoofers etc. Workers (1983) 144 Cal.App.3d99, 107 [192 Cal. Rptr. 439].) Assumptionof obligations may be implied fromacceptance of benefits under the contract.(Civ. Code, Section 1589; Bruns v. DeSotoOperating Co. (1988) 204 Cal.App.3d 876,881 [251 Cal.Rptr. 462]; Bergin v. van derSteen (1951) 107 Cal.App.2d 8, 18 [236P.2d 613].) Further, “where an assigneetakes over a going business, his intention toassume the obligations of a contract relatingto the business may be found from hisacquiescence in the terms of the contract.”(Walker v. Phillips, supra, 205 Cal.App.2d atpp. 32-33.) Enterprise Leasing Corp. v.Shugart Corp. 231 Cal.App.3d 737, 745(Cal.App.2.Dist.1991)The Plaintiffs have presented no authorityupon which this court can hold Pacific liablefor the intentional or negligentmisrepresentations of COP. The Plaintiff haspresented no evidence that the contractbetween COP and Pacific would support suchan assignment of liability. As such, thecourt finds that the Plaintiff has notsustained its burden with respect to theseventh or eighth causes ofaction. Plaintiffs' twelfth cause of action forunfair business practices is derivative of thefraud claims, and thus fails for the samereason as those claims.2. The Motion to Compel Further Responsesto Special Interrogatories 1-10, 14-20, 22-24, 26, 28, 29, 33 – 37, 39-41, 43-45, 47,49-51, 55, 57 and 62 is GRANTED. TheFurther Supplemental Responses to SpecialInterrogatories Nos. 30 - 32, 38, 42, 48, 52,53, 56, and 58 – 61 aresufficient. Therefore, the motion to compel

further responses to Special InterrogatoriesNos. 30 - 32, 38, 42, 48, 52 , 53, 56, and58 – 61 is DENIED in light of the furthersupplemental responses served by thePlaintiff.The motion to compel further responses toRequest for Admissions 19, 20, 22, 24, 28(Kambit and K&R only), 29, 31, 32 isGRANTED.The motion to compel further responses toForm Interrogatories 8.4 (Kambit only); 8.7,8.8, 9.1, 12.1, 50.1 is GRANTED.Defendant’s request for monetary sanctionsin the amount of $5,250.00 isGRANTED. The responses provided by thePlaintiffs were wholly deficient. TheDefendants were required to file this motionto obtain proper discovery responses fromthe Plaintiffs. The amount sought isreasonable in light of the work involved.3. Defendant’s Motion for SummaryAdjudication as to Punitive Damages isGRANTED. The Request for Judicial Noticein support of the Defendant’s Motion isgranted.The Defendants have sustained their initialburden but the Plaintiffs have not sustainedtheir resulting burden.The motion does not effectively ask thecourt to reconsider its determination as tothe cop's prior motion for summaryjudgment. Thus, there is no requirement tocomply with CCP Section 1008.The prior Motion for Summary Judgmentwas not based upon the same law orevidence as this motion for summaryadjudication. This motion seeks to strikepunitive damages. The prior motion didnot. A claim for punitive damages requires“clear and convincing” evidence thatdefendant has been guilty of “oppression,fraud or malice” in the commission of a tort.[Civ.C. Section 3294(a)]Thus, defendants may seek summaryadjudication either that:—some element of the tort claim cannot be

established; or—defendants' conduct does not constitute“oppression, malice or fraud” (as defined byCiv.C. Section 3294(c)); or—plaintiff's proof is not “clear andconvincing” as required by Civ.C. Section3294(a).Thus, the Plaintiff’s argument that themotion fails to meet the requirements ofCCP Section 1008 is misplaced. The Plaintiffhas presented no authority to support afinding that the to the Plaintiff’s causes ofaction against it.The Defendant has sustained its initialburden:Plaintiffs have failed to allege, and cannotpresent evidence demonstrating, that a COPofficer, director, or managing agentpersonally performed, or ratified, thealleged fraudulent statements. Civ. Code,Section 3294(b).Because COP is acorporation, Plaintiffs must further prove byclear and convincing evidence that anofficer, director or managing agent of COP:(1) is "personally guilty of oppression, fraud,or malice;" or (2) "authorized or ratified thewrongful conduct" of a lower levelemployee. Civ. Code, Section 3294(b).If the employer (principal) sought to bereached for punitive damages is acorporation (or other large organization),the advance knowledge and consciousdisregard, authorization or ratification, oract of oppression, fraud or malice must beshown to have been on the part of anofficer, director or managing agent acting ina corporate or employment capacity. [CCSection 3294(b); College Hosp., Inc. v.Super.Ct. (Crowell) (1994) 8 C4th 704,723–724, 34 CR2d 898, 909–910 & fn. 11;CACI 3945–3948; BAJI 14.73, 14.73.1]A corporate employee's status as a“managing agent” for this purpose does notnecessarily turn on his or her position in thecorporate hierarchy or whether he or shehas authority to hire or fire other

employees. Rather, the question is whetherthe employee exercises substantialindependent authority and judgment overdecisions that ultimately determinecorporate policy. Stated otherwise, plaintiffmust show “the employee exercisedsubstantial authority over significant aspectsof a corporation's business.” [White v.Ultramar, Inc. (1999) 21 C4th 563, 573,576–577, 88 CR2d 19, 26, 29 (emphasisadded); Roby v. McKesson Corp. (2009) 47C4th 686, 714–715, 101 CR3d 773, 794–795]The issue presents a question of fact,decided on a case-by-case basis. [White v.Ultramar, Inc., supra, 21 C4th at 567, 88CR2d at 22].A supervisor who fired plaintiff conveniencestore employee, allegedly in retaliation fortestifying in favor of another employee at anunemployment benefits hearing, was a“managing agent”: As a “zone manager” forthe store chain, she had independentmanagement responsibility for eight storesand at least 65 employees (including theindividual store managers) and madesignificant decisions affecting both store andcompany policy. [White v. Ultramar, Inc.,supra, 21 C4th at 577, 88 CR2d at 30;Wysinger v. Automobile Club of So. Calif.(2007) 157 CA4th 413, 428–429, 69 CR3d1, 13—vice president who oversaw districtoffices in 4 states was “managing agent”]A customer who sued a large chain of homeimprovement stores for assault andmalicious prosecution committed by onestore's security guards failed to prove thatthe guards' supervisor, who retained theguards despite their misconduct, was a“managing agent.” The supervisor hadauthority over only a few employees at asingle store, where he was subordinate tothe store manager and had responsibility foronly one narrow area—security—of thestore's multifaceted operations. [Cruz v.HomeBase (2000) 83 CA4th 160, 168, 99CR2d 435, 440]Plaintiffs' Second Amended Complaintidentifies four COP employees whopurportedly made representations toPlaintiffs: Norm Ross, Andy Everson, Jeff

deBoer, and Greg Briggs. (SAC 108; UMF #2.) During the relevant period, Mr. Rosswas a COP account representative andbusiness development manager, Mr.Everson was a manager of wholesale salesand operations and director of operations,Mr. deBoer, was a director ofoperations/marketing, and Mr. Briggs was areal estate representative. (Ross Decl. 1;Everson Decl. 2-3, 11-12.) None of theseindividuals are, or were at any time, COPofficers or directors. (UMF #3.)Nor did any of the four individuals have theauthority to determine COP corporate policy.Mr. Ross had no corporate policymakingresponsibilities; he was responsible forcommunicating COP's rules and policies todealers and relaying any dealer requests toCOP management for approval. (RossDecl. 9.) He had no authority to modifydealer agreements, or otherwise change theplaintiffs' relationships with COP. (Id. 10.)He also was not involved in developingcorporate policies for COP. (Id. 12.) Thus,any alleged "oppression, fraud or malice"committed by Mr. Ross cannot be imputedto COP for purposes of punitive damages.Likewise, Mr. Briggs was a nonmanagementemployee in COP's real estatedepartment: his responsibilities includedpreparing the documentation relating to thesale of the real property on which theStations were located. (Everson Decl. 112.)He had no authority to authorize a sale ofthe Station properties to Plaintiffs. (Id.) Healso was not involved in developingcorporate policies for COP. (Id.) Thus, anyalleged "oppression, fraud or malice"committed by Mr. Briggs cannot be imputedto COP for purposes of punitive damages.Mr. Everson and Mr. deBoer essentiallyperformed the same duties during therelevant period; Mr. deBoer retired fromCOP in 2005. (Id. 3, 11.) Neither Mr.Everson nor Mr. deBoer was a managingagent of COP as they did not '"exercise []substantial discretionary authority overdecisions that ultimately determinecorporate policy.' [Citation.]" Cruz, 83 Cal.25 App. 4th at 167-68; Everson Decl. 4-8,11. As one of four of COP's sales andoperations managers in California, Mr.

deBoer - and later Mr. Everson - wasresponsible for, among other things,overseeing five dealer accountrepresentatives, including Mr. Ross, withintheir geographical area (Orange County).(Id. 3-5, 11.) Neither Mr. deBoer nor Mr.Everson had the authority to terminate anyof their subordinates' employment, or makeany other significant employment decision.(Id.)As members of the sales force for the WestCoast, Mr. deBoer and Mr. Everson wererequired to notify third parties with whomthey had business discussions, includingprospective COP dealers, that they did nothave the authority to approve anyagreements and were required to seek andobtain authority from COP's seniormanagers before a deal could be made. (Id.5.) For example, when Mr. Everson wasapproached with requests that exceeded thescope of his authority, his general responsewas to advise the other party that he wouldtake the issue to the individuals at COP whohad the authority to deal with the request.{Id.) Furthermore, Messrs. deBoer andEverson did not have authority to approvemodifications in COP's relationships with itsretailers, e.g., from "fee operator" to"reseller" or to approve the sale or lease ofreal property owned (or leased) by COP. (Id6, 11.) If such a request was made, Messrs.deBoer and Everson were required to seekapproval from their superiors. (Id.)That Messrs. deBoer and Everson had noinput into COP corporate policy isunderscored by the process by which COPdetermined to sell its California real estateassets. As recounted in the declaration ofMichael Summerford, after determining tosell its California retail assets, COP engageda third-party business and real estateappraisal firm to value its assets.(Summerford Decl. 3.) Mr. Everson was notinvolved in the process by which COPdetermined to sell its assets, nor in decidinghow the assets should be valued. (EversonDecl. 8.) COP's corporate policies, includingsales of station assets, are generallydeveloped by COP's senior management inHouston, Texas, where COP's executiveoffices are located. (Id. 7.)

Because Messrs. Ross, Briggs, deBoer, andEverson were never officers, directors ormanaging agents of COP, their actionscannot be imputed to COP for purposes ofpunitive damages, and thus Plaintiffs'punitive damages claim fails as a matter oflaw. Cruz, 83 Cal. App. 4th at 167-68;Kelly-Zurian, 22 Cal. App. 4th at 421.Accordingly, the Court grants summaryadjudication in COP's favor on the claim.Plaintiffs' complaint pleads no factsregarding authorization or ratification of thealleged promises to make them COP"resellers." Nor have they adduced evidencesufficient to make such a showing by clearand convincing evidence. Plaintiffs mustshow by clear and convincing evidence thatan officer, director, or managing agent"demonstrate [d] an intent to adopt orapprove oppressive, fraudulent, or maliciousbehavior by an employee in theperformance of his job duties." CollegeHospital, Inc., 8 Cal. 4th at 726. They fail tomake this showing, because the only COPemployees whom Plaintiffs have identifiedas having any involvement in the allegedmisrepresentations are Messrs. Ross,Everson, deBoer, and Briggs. None of theseindividuals was an officer, director ormanaging agent of the corporation. (UMF #4.)Plaintiffs’ have not sustained theirresulting burden:The Plaintiffs have provided this court withno evidence or argument upon which thecourt can find that they have sustained theirresulting burden of providing clear andconvincing evidence to support theirpunitive damages allegations againstCOP. As such, the motion is granted.The Plaintiff has provided that in or aboutlate 2003, Mr. Ghaneian engaged in ameeting with Conoco representatives, Mr.Norm Ross and Mr. Jeff Deboer, where Mr.Ghaneian made clear his intention to obtainfull franchise rights and enter into dealer orreseller agreements for the Stations. Mr.Ross and Mr. Deboer in turn represented toMr. Ghaneian that Conoco too intended tohave only dealer or reseller arrangements

with the owners of each site. (SSD: 7). Inor around January of 2004, Conoco aided,facilitated, oversaw, and approved the saleof the Stations from Procare to Plaintiffs(Kambit would later acquire the Lake Foreststation), for a total of about $1,100,000.00.It was understood by all parties that thePlaintiffs were acquiring these businesses bypaying for the goodwill/business value ofthe Stations. These Conoco employeesencouraged Plaintiffs to proceed with theassignment from Procare and acquire theseStations. (SSD: 8). Prior to Irvine Fuelpurchasing these sites, in or aroundNovember and December of 2003, Mr.Ghaneian communicated with Conocoemployees, including Mr. Ross, Mr. Deboer,Mr. Andy Everson, and Mr. Gregg Briggs,about the future of the Stations. (SSD: 9).Mr. Ghaneian, who had had multipledealer/reseller relationships with Conoco,made it clear that he was interested in thesame type of relationship with respect to theStations. He informed Conoco that he wasnot interested in paying $1,100,000.00 tosimply become a "fee operator" as feeoperators do not pay for the goodwill oftheir businesses. Aforementioned Conocoemployees again renewed Conoco's priorcommitment to Mr. Ghaneian and Plaintiffsby stating that these stations were to soonbe appraised and the agreements wouldsoon be converted to dealer agreements.Conoco stated that the deal had to be closedimmediately to avert a lawsuit with Procare;and, that is the reason the entiretransaction was not being completed at onetime. Plaintiffs believed thesestatements. (SSD: 10).Despite its promises before the businesseswere purchased by Plaintiffs, Conoco did notpromptly transition the Stations to dealeroperated sites. Based on representationsmade by Conoco representatives, Plaintiffshad believed at that time that the aftermathof the many mergers and changes thecompany had undergone in the recent prioryears left it with many small issues toresolve and changes to implement and thusdelayed the sale of the Stations to Plaintiffs.In or around the summer of 2004, Conocosent a letter to the site owners for each ofthe four sites, including Irvine Fuel and K &

R, apologizing for how long the process wastaking for establishing a price. This isconsistent with the representations Conocohad made prior to the $1,100,000.00investment made by Plaintiffs, and thecontinuous representations being made atthat time. In or about 2005, Conoco sent anemail to Plaintiffs, once again apologizing forthe delay in initiating the dealer/resellerprocess. This too was consistent with theprior representations. Therefore, Plaintiffscontinued to believe Conoco. (SSD: 11).From the evidence and argument presentedby the Plaintiff, the Plaintiff has not comeclose to establishing that Mr. Ross, Mr.Deboer, Mr. Andy Everson, or Mr. GreggBriggs was a managing agent of COP. ThePlaintiff has simply presented no argumentor evidence. The Plaintiff takes the positionthat the argument is non-sensical and notsupported by California law but does notback this argument up with any authority oranalysis. The Defendants on the other hadhave established that their position issupported by caselaw.Request For Judicial Notice In SupportOf Plaintiff’s Opposition to DefendantConocoPhillips Company's Motion:The court grants the Plaintiff’s request forjudicial notice in support of its oppositionwith respect to the following documents:1. This Court's Minute Order onDefendant ConocoPhillips Company's Motionfor Summary Judgment, dated May 3, 2013;and2. Plaintiffs' Verified Second AmendedComplaint, filed in this action on or aboutMay 16, 2012.4. Defendant’s Motion for SummaryAdjudication as to time-barred 3, 7 & 8causes of action is DENIED. The Requestfor Judicial Notice in support of theDefendant’s Motion is granted.THE MOTION DOES NOT EFFECTIVELY ASKTHE COURT TO RECONSIDER ITSDETERMINATION AS TO THE COP'S PRIOR

MOTION FOR SUMMARY JUDGMENT. THEREIS NO REQUIREMENT TO COMPLY WITH CCPSECTION 1008.The prior Motion for Summary Judgmentwas not based upon the same law orevidence as this motion for summaryadjudication. This motion is based upon thestatute of limitations. The prior motion wasnot. Thus, the Plaintiff’s argument that themotion fails to meet the requirements ofCCP Section 1008 is misplaced. The Plaintiffhas presented no authority to support afinding that the Defendant is restricted toone summary adjudication challenge to thePlaintiff’s causes of action against it.There is a material issue of triable factas to whether the Plaintiffs' ThirdCause of Action For Breach of OralContract Is Barred By The ApplicableTwo-Year Limitations PeriodA cause of action for breach of oral contractis subject to a limitations period of twoyears. Code Civ. Proc. Section 339. Theclaim generally accrues when the contract isrepudiated or breached. Parker v. Walker, 5Cal.App.4th 1173, 1185 (1992); Niles v.Louis H. Rapoport & Sons, 53 Cal.App.2d644, 651 (1942).Defendants have presented evidence whichestablishes that the Plaintiffs were aware ofthe alleged breach by no later thanSeptember 2007, when COP made themoffers that required payment by Plaintiffs forthe gasoline business value. (SummerfordDecl., Ex. A; Friedenberg Decl., Exs. 10-12.)The Defendants have presented facts whichestablish that the Plaintiff communicatedexplicitly to COP in 2007 that COP's offerwas inconsistent with the alleged oralpromise and constituted a breach of COP'scontractual obligation. (Id.) As such, thePlaintiffs were required to bring any cause ofaction related to this alleged breach no laterthan September 2009. Code Civ. Proc.Section 339(1). Plaintiffs, however, did notbring suit until 2011, long after the claimhad become stale. Summary adjudication ofthe third cause of action is thereforerequired. Thus, the Defendants have

sustained their initial burden.In response, the Plaintiffs have sustainedwith resulting burden of presentingsufficient evidence to create a material issueof triable facts regarding whether thestatute of limitations bars the cause ofaction. The Plaintiff has established that theVerified Complaint and deposition testimonyestablish that there is a dispute between theparties as- to COP continuing to make itsfalse promises, which form the basis of theplaintiff cause of action, through its sale ofassets to Pacific/Convenience in 2009.[Second Amended Complaint at paragraph33 and deposition of Ghaneian at page 158lines 9 –16]. The Plaintiff has establishedthat Plaintiff met with Defendants after 2009and at such meeting DefendantPacific/Convenience assured the Plaintiffthat Conoco’s promises to make thePlaintiff’s dealers would be carried out. ThePlaintiff has presented evidence afterPacific/Convenience assumed COP'sliabilities to Plaintiffs, that they continued tomislead Plaintiffs. As such, the Plaintiffshave presented evidence which creates atriable issue as to whether the Plaintiff’s didnot know that the promises were false anddid not suffer damage until November 2010when Pacific/Convenience's intention toterminate their agreements, in or aboutNovember of 2010, the oral agreement hadnot been breached and the falsity of COP'spromises was not known. Therefore,Plaintiffs' cause of action is not necessarilytime-barred and the Defendants’ motion isDENIED.There is a material issue of triable factas to whether the Plaintiffs' SeventhCause Of Action For IntentionalMisrepresentation Is Barred By TheApplicable Three-Year LimitationsPeriod"An action for relief on the ground of fraudor mistake" is subject to a three-yearlimitations period. Code Civ. Proc. Section338(d). The cause of action accrues upon"the discovery, by the aggrieved party, of

the facts constituting the fraud or mistake."Id.The courts interpret discovery in thiscontext to mean not when the plaintiffbecame aware of the specific wrong alleged,but when the plaintiff suspected or shouldhave suspected that an injury was causedby wrongdoing. The statute of limitationsbegins to run when the plaintiff hasinformation which would put a reasonableperson on inquiry. A plaintiff need not beaware of the specific facts necessary toestablish a claim since they can bedeveloped in pretrial discovery. Wrong andwrongdoing in this context are understoodin their lay and not legal senses. Kline v.Turner, 87 Cal. App. 4th 1369, 1374 (2001)(citing Jolly v. Eli Lilly & Co., 44 Cal.3d1103, 1110-1111(1988)).The Defendants have established that thegravamen of Plaintiffs' fraud claims is "thatfrom 2003 through 2006 depending uponthe station, the Defendants represented toPlaintiff that they would be made dealers orresellers, and would have the full benefit ofincome, or goodwill, arising from the sale ofmotor fuels while knowing such to be false."(April 26 Tentative Ruling.) Thus, it is thedeprivation of the "full benefit of income, orgoodwill, arising from the sale of motorfuels" that constitutes the injury for whichthe seventh cause of action seeks redress.The Defendants’ have presented evidencethat Plaintiffs discovered this alleged wrongby no later than September 2007, whenCOP made Plaintiffs offers inconsistent withthe alleged oral representations made from2003 through 2006. (Summerford Decl., Ex.A.) The Defendants have presentedevidence which established that thePlaintiffs made clear to COP in September2007 that they believed COP had breachedits promises. (Friedenberg Decl., Exs. 10-12.)The Defendants have established that thePlaintiffs discovered the alleged fraud nolater than September 2007, and wererequired to bring any cause of action no

later than September, 2010. As Plaintiffs didnot file suit until June, 2011, the Defendantshave sustained their initial burden byestablishing that the Plaintiffs’ claim is timebarred.In response, the Plaintiffs have sustainedwith resulting burden of presentingsufficient evidence to create a material issueof triable facts regarding whether thestatute of limitations bars the cause ofaction. The Plaintiff has established that theVerified Complaint and deposition testimonyestablish that there is a dispute between theparties as- to COP continuing to make itsfalse promises, which form the basis of theplaintiff cause of action, through its sale ofassets to Pacific/Convenience in2009.[Second Amended Complaint atparagraph 33 and deposition of Ghaneian atpage 158 lines 9 – 16]. The Plaintiff hasestablished that Plaintiff met withDefendants after 2009 and at such meetingDefendant Pacific/Convenience assured thePlaintiff that Conoco’s promises to make thePlaintiff’s dealers would be carried out. ThePlaintiff has presented evidence afterPacific/Convenience assumed COP'sliabilities to Plaintiffs, that they continued tomislead Plaintiffs. As such, the Plaintiffshave presented evidence which creates atriable issue as to whether the Plaintiff’s didnot know that the promises were false anddid not suffer damage until November 2010when Pacific/Convenience's intention toterminate their agreements, in or aboutNovember of 2010, the oral agreement hadnot been breached and the falsity of COP'spromises was not known. Therefore,Plaintiffs' cause of action is not necessarilytime-barred and the Defendants’ motion isDENIED.There is a material issue of triable factas to whether the Plaintiffs' EighthCause Of Action For NegligentMisrepresentation Is Barred By TheApplicable Two-Year Limitations PeriodBecause a claim for negligentmisrepresentation is grounded innegligence, it is subject to the two-yearlimitations period provided by Code of Civil

Procedure section 339. Ventura Cnty. Nat.Bank v. Macker, 49 Cal. App. 4th 1528,1530-31 (1996); E-Fab, Inc. v. Accountants,Inc. Servs., 153 Cal. App. 4th 1308, 1316(2007). The Defendants have establishedthat the Plaintiffs' claim accrued no laterthan September 2007. (Friedenberg Decl.,Exs. 10-12.) Thus, Plaintiffs were requiredto bring their claim for negligentmisrepresentation no later than September2009. Code Civ. Proc. Section 339(1). Thus,the Defendants have sustained their initialburden.In response, the Plaintiffs have sustainedwith resulting burden of presentingsufficient evidence to create a material issueof triable facts regarding whether thestatute of limitations bars the cause ofaction. The Plaintiff has established that theVerified Complaint and deposition testimonyestablish that there is a dispute between theparties as- to COP continuing to make itsfalse promises, which form the basis of theplaintiff cause of action, through its sale ofassets to Pacific/Convenience in 2009.[Second Amended Complaint at paragraph33 and deposition of Ghaneian at page 158lines 9 – 16]. The Plaintiff has establishedthat Plaintiff met with Defendants after 2009and at such meeting DefendantPacific/Convenience assured the Plaintiffthat Conoco’s promises to make thePlaintiff’s dealers would be carried out. ThePlaintiff has presented evidence afterPacific/Convenience assumed COP'sliabilities to Plaintiffs, that they continued tomislead Plaintiffs. As such, the Plaintiffshave presented evidence which creates atriable issue as to whether the Plaintiff’s didnot know that the promises were false anddid not suffer damage until November 2010when Pacific/Convenience's intention toterminate their agreements, in or aboutNovember of 2010, the oral agreement hadnot been breached and the falsity of COP'spromises was not known. Therefore,Plaintiffs' cause of action is not necessarilytime-barred and the Defendants’ motion isDENIED.Request For Judicial Notice In Supportof Plaintiff’s Opposition to Defendant

ConocoPhillips Company's Motion:The court grants the Plaintiff’s request forjudicial notice in support of its oppositionwith respect to the following documents:1. This Court's Minute Order on DefendantConocoPhillips Company's Motion forSummary Judgment, dated May 3, 2013;and2. Plaintiffs' Verified Second AmendedComplaint, filed in this action on or aboutMay 16, 2012.5. 13-632591KIRSCH VS.WELLS FARGOBANK, N.A.1. Defendant Wells Fargo Bank, N.A., U.S.Bank National Association, as Trustee forCitiGroup Mortgage Loan Trust, Inc.,Mortgage Pass-Through Certificates, Series2007-AR5’s unopposed Demurrer isSUSTAINED in its entirety, with 10-days leave to amend. Service was timelyand good and no opposition wasfiled. Failure to oppose the demurrer maybe construed as having abandoned theclaims. (Herzberg v. County of Plumas(2005) 133 Cal. App. 4th 1, 20 [“Plaintiffsdid not oppose the County's demurrer tothis portion of their seventh cause of actionand have submitted no argument on theissue in their briefs on appeal. Accordingly,we deem plaintiffs to have abandoned theissue.”].) Additionally, the court mayconstrue the absence of a memorandum aswaiver of all grounds not supported. (CRC,Rule 3.1113(a).)2. The Motion to Strike is MOOT in light ofthe demurrer.Moving party is to give notice.Defendants’ Request for JudicialNotice: Defendants’ request for judicialnotice of Exhibits A-I is GRANTED. The courtmay take judicial notice of records filed inany court of this state. (Evid. Code Section452(d).) In addition, the court may takejudicial notice of “[f]acts and propositionsthat are not reasonably subject to disputeand are capable of immediate and accuratedetermination by resort to sources ofreasonably indisputable accuracy.” (Evid.Code Section 452(h).) However, the courtwill not take judicial notice of hearsayallegations stated therein. (Herrera v.Deutsche Bank Nat. Trust Co. (2011) 196Cal. App.4th 1366; Poseidon Development,Inc. v. Woodland Lane Estates, LLC (2007)

152 Cal.App.4th 1106, 1117.)7. 12-563072PEREZ VS.NORTHORANGECOUNTYCOMMUNITYCOLLEGEDISTRICT8. 12-590033SCALA VS.MORABITOPlaintiffs Stephen Perez, Judy Perez, andRoxanne Perez’s Motion to CompelDefendant North Orange County CommunityCollege to provide further responses to theirFirst Set of Requests for Production ofDocuments Nos. 15, 17-19, and 24, isGRANTED. First, Plaintiffs have sufficientlyestablished good cause to compel theproduction of documents. Second, theCourt finds that Plaintiffs’ need for theinformation sought outweighs DefendantRaul Barrientos’ privacy interest. Third,Defendant has failed to sufficiently establishthat Education Code Section 76244 ispreempted by Family Education Rights andPrivacy Act. Moving parties are to givenotice.The Court DENIES Plaintiff’s motion tocompel further documents and issuessanctions of $603 against Plaintiff’s counsel,Timothy H. Stearns.A party waives the right to compel furtherresponses to an inspection demand unlessthe “motion is given within 45 days of theservice of the response, or anysupplemental response, or on or before anyspecific later date to which the demandingparty and the responding party have agreedin writing.” (Code Civ. Proc., §2031.310,subd. (c).) The time limit is mandatory and“jurisdictional;” a court has no authority togrant a late motion. (Sexton v. SuperiorCourt (Mullikin Med. Ctr.) (1997) 58Cal.App.4th 1403, 1410.)The Motion is also denied on the merits:A. Insufficient showing of meet and confereffortsThe motion must be accompanied by adeclaration showing “a reasonable and goodfaith attempt” to resolve the issues outsideof court. (Code Civ. Proc., §§ 2016.040,2031.310, subd. (b)(2).) Plaintiff’s attorneydeclares generally that there were “repeatedmeet and confer efforts.” Such a statementis insufficient to show a reasonable andgood faith attempt to resolve the discoveryissues.B. No Separate Statement filed

Plaintiff did not file the requisite separatestatement in support of its motion. (Cal.Rules of Court, rule 3.1345(a)(3).) Thecourt is “well within its discretion to denythe motion to compel discovery” for failureto comply with this rule. (Mills v. U.S. Bank(2008) 166 Cal. App. 4th 871, 893.)C. No good cause shownThe motion for order compelling furtherresponses “shall set forth specific factsshowing good cause justifying the discoverysought by the inspection demand.” (CodeCiv. Proc., Section 2031.310, subd. (b)(1)(emphasis added).) The moving party bearsthe burden to show (1) relevance to thesubject matter (e.g., how the information inthe documents would tend to prove ordisprove some issue in the case) and (2)specific facts justifying the discovery (e.g.,why such information is necessary for trialpreparation or to prevent surprise attrial). (Glenfed Develop. Corp. v. SuperiorCourt (National Union Fire Ins. Co. ofPittsburgh, Pa.) (1997) 53 Cal.App.4th1113, 1117.)Plaintiff does not address good cause at allin her moving papers.There is no evidence of a written agreementto extend the time limit. Plaintiff broughtthis motion on June 10, 2013, but the lastday to file and serve was May 29, 2013 (45days + 2 days for e-mail service). Thus themotion was filed too late.Defendant is to give notice. Sanctions to bepaid within 30 days after service of notice.10. 12-585774VOICE OFORANGECOUNTY.ORGVS. COUNTYOF ORANGEMotion to Issue Peremptory Writ of Mandateand for Declaratory ReliefThe Court declines to rule on the motion atthis time because the criminal court inPeople v. Bustamante, Orange CountySuperior Court Case No. 12CF1964, hasalready taken under submission a motion forprotective order involving some or all of thesame documents at issue here.On 5/20/13, in the criminal case againstCarlos Bustamante, the County filed aMotion for Protective Order that is stillpending before the criminal court.Petitioners, who were not parties to hatproceeding, nevertheless elected to appear

in the criminal case and oppose the motion.The County’s motion in the criminal caseseeks to protect the confidentiality of thesame documents that Petitioners wish theCounty to disclose in thismotion. Accordingly, to avoid a risk ofconflicting rulings, the Court declines to ruleon this motion, pending the ruling of thecriminal court.“Courts have broad discretion in controllingthe course of discovery.” (Fuller v. SuperiorCourt (2001) 87 299, 307). When theparties in simultaneous civil and criminalproceedings assert conflicting rights toobtain discovery or maintain confidentiality,the Courts must exercise their discretion inweighing, balancing, and accommodatingthe parties’ competing interests.After carefully considering:(1) the right of the County to maintain theconfidentiality of potentially exemptdocuments.(2) the right of the District Attorney’s Officeto protect the integrity of an ongoingcriminal investigation and prosecutionagainst a public official.(3) the right of the public and the press toinvestigate, the alleged misconduct andcorruption of public officials.(4) the right of a criminal accused to a fairtrial (disclosure of confidential documentscould theoretically hurt Bustamente in hiscriminal case, even though he is not adefendant in this civil proceeding.)This Court finds that the criminal court inthe Bustamante case is already consideringthe same motion or a substantially similarmotion and is better situated to weigh andbalance these competing elements.Once the criminal court has issued its ruling,Petitioners may re-calendar and re-noticetheir motion to compel disclosure, ifnecessary.Request for Judicial NoticeThe Court GRANTS Petitioners’ request totake judicial notice of the County’s Motionfor Protective Order and Petitioners’Opposition filed in the Bustamante criminalcase.The Court GRANTS the County’s request to

take judicial notice of the 6/24/13 minuteorder in the Bustamante criminal case.(Evidence Code Section 452 (d); Verreos v.City & County of San Francisco (1976) 63Cal.App.3d 86, 106-107.)Service of NoticeThe County shall serve notice of this order,within 5 calendar days of the hearing.

RULINGS ON LAW & MOTION MATTERSJUDGE DAVID T. McEACHENDEPARTMENT C-21LAW & MOTION IS HEARD ON TUESDAYS AT 1:30 PMPlease read rules carefully. Do not call department unless submitting on the tentative.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings/mceachen.asp by 4:00 pm on Monday. The rulings will also be postedoutside the courtroom on the bulletin board for those counsel without internet access, no later than 10:00am on the day of the scheduled motion.The Law & Motion hearings are scheduled on Tuesday at 1:30 pm and all arguments will be heard at thattime. No supplemental or additional papers will be allowed to be submitted following posting of the rulingon the internet, nor will the Court entertain a request for continuance once the ruling has been posted.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. Ifyou intend to submit on the tentative and do not want oral argument, please notice the clerk by calling(657) 622-5221 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate perCRC 3.1312.NOTICE TO COUNSEL: Upon filing a motion, moving party shall provide a copy of this procedural noticeto opposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because ofmoving party’s failure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailingparty shall give notice of the ruling. Prevailing party shall prepare an Order/Judgment for the Court’ssignature if the motion is dispositive of a cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or the courtroom assistant for clarification ofrulings or additional information. If you are the moving party and do not have internet access, you maycall the courtroom assistant or clerk after 10:00 am on Tuesday of the scheduled hearing and the rulingwill be read to you.LAW AND MOTION FOR JULY 23, 20132. 12-574380 CCAFINANCIAL VS.HEALTHCAREMANAGEMENTSERVICES OFBALTIMORE COUNTYDefendant Healthcare ManagementServices of Baltimore County,LLC’s Motion for New Trial is setfor argument. The attorneys forboth parties are to appear forhearing. The main concern theCourt has is with respect to theissue of whether the judgmentincluded the rental value afterPlaintiff sold the equipment on orabout February of 2013.Defendant’s Request for JudicialNotice: This Court GRANTSjudicial notice of: (1) anuncertified copy of the courttranscript in this case dated5/20/13 and 5/23/13 (Exhibit 4);(2) Judgment entered in aseparate action in the State ofVirginia (Exhibit 5); and (3) theWrit of Execution entered in aseparate action in the State ofMaryland (Exhibit 6). (Evid. Code §452(d) and (h).) However, theCourt will not take judicial noticeof hearsay allegations containedtherein.

Plaintiff’s Request for JudicialNotice: This Court GRANTS judicialnotice of documents filed in thisaction (Exhibits A, B, C, D, and F),and the Judgment entered in aseparate action in the State ofVirginia (Exhibit E). (Evid. Code §452(d) and (h).) However, theCourt will not take judicial noticeof hearsay allegations containedtherein.Plaintiff’s Evidentiary Objection tothe Declaration of Brodie Smith:Objection Nos. 1 and 2 areSUSTAINED. Objection No. 3 isOVERRULED.Plaintiff’s Evidentiary Objection toDefendant’s Request for JudicialNotice: The evidentiary objectionsareOVERRULED. Notwithstanding,the Court will not take judicialnotice of hearsay allegationscontained therein.3. 12-569184 GILDEAVS. UNIVERSALBUILDINGMAINTENANCEDefendant notes that it should notbe obligated for the payment ofrent after Plaintiff sold theequipment to HIS. Thus,Defendant contends that it shouldnot have been obligated to pay“rent” from February 2013 andonward. At this time, the courtrecord does not indicate whetherjudgment included improper rentalfees after the subject equipmentwas sold to HIS. To the extentthat it was, the Court will issue aremittitur.Defendants’ Motions to compelinitial discovery responses andfor Monetary SanctionsA. Universal Defendants. Thecourt GRANTS the motion ofDefendants Universal BuildingMaintenance Inc. and UniversalProtection Service LP to COMPELPlaintiff to serve initial discoveryresponses to Defendants’ first setof: (1) form interrogatories, (2)special interrogatories, and (3)requests for production ofdocuments. (CCP 2030.90(a), (b);2031.300(a), (b).)B. Prisa and CushmanDefendants. The court also

GRANTS the motion of Prisa 2020Main LLC and Cushman &Wakefield of California Inc. toCOMPEL Plaintiff to serve initialdiscovery responses toDefendants’ (1) fist set of forminterrogatories, (2) second set ofform interrogatories, (3) first setof special interrogatories, (4) firstset of requests for production ofdocuments, and TO DEEMADMITTED the genuineness of anydocuments and the truth of anymatters specified in (5) the firstset of requests foradmission. (CCP 2030.90(a), (b);2031.300 (a), (b); 2033.280(a),(b).)No Opposition. Plaintiff has filedno Opposition.Serve Initial Responses WithoutObjection. Plaintiff is ordered toserve initial responses and produceresponsive documents, withoutobjection, within 20 calendar daysafter the hearing date.Pay Monetary Sanctions. Plaintiffis ordered topay $1,260 to theUniversal Defendants and$1,371.50 to the Prisa andCushman Defendants, throughtheir counsel of record, within 30calendar days after the hearingdate. (CCP 2030.290(c);2031.300(c); 2023.010 (d), (h);2033.280(c).)Notice. Defendants shall servenotice of this ruling, within 5calendar days after the hearingdate.4. 12-581600 HOOSHMANDVS. CRUISE5. 13-625642 NGUYENVS. TRINHCounsel for Plaintiff’s Motion towithdraw as counsel (CCP 284 &CRC 3.1362) is MOOT. Asubstitution of Attorney for Plaintiffwas filed on 7/01/13.The court OVERRULESDefendants’ demurrer to the firstcause of action for fraud andGRANTS Defendants’ request for

judicial notice.SpecificityFacts supporting fraud must bepleaded with particularity sufficientto show how, when, where, towhom, and by what means therepresentations weretendered. (Lazar v. Superior Court(1996) 12 Cal.4th 631, 645.) Anallegation of civil conspiracy,however, “renders each participantresponsible as a contributorytortfeasor whether or not heactually committed the wrongfulact.” (Barney v. Aetna Cas. & Sur.Co. (1986) 185 Cal.App.3d 966,983 [case not cited by theparties].)Here, the First Amended Complaintalleges a civil conspiracy betweenTrinh and Meyers to defraudPlaintiffs in the sale of the Blissbusiness. (Complaint, paragraphs9, 11-12, 14-15, 18-20, 24,27.) Thus, Trinh’smisrepresentations are sufficientto allege fraud against Meyers as aco-conspirator.Fraud attaching to thecorporationTo allege fraud against acorporation, the complaint mustalso identify who made themisrepresentations and his or herauthority to speak for thecompany. (Lazar v. SuperiorCourt, supra, 12 Cal.4th at 645.)The First Amended Complaintmeets these pleadingrequirements. It alleges that Trinhmade the misrepresentations andheld himself out to be the owner ofBliss. (Complaint, paragraphs 9,15.) Alternatively, even if Trinhwere merely Meyer’s translator,then Meyer was the actualowner/president of Bliss and Trinh,as his translator, necessarily hadauthority to speak for him.Justifiable reliance“‘Except in the rare case where theundisputed facts leave no room fora reasonable difference of opinion,the question of whether a

plaintiff’s reliance is reasonable isa question of fact.’” (Beckwith v.Dahl (2012) 205 Cal.App.4th1039, 1067 [reversing demurrersustained without leave toamend].)There is “room for a reasonabledifference of opinion” as towhether their reliance wasreasonable.Plaintiffs are to give notice.6. 11-500203 PLETCHERVS. PASIN7. 12-559233 PROSPECTMORTGAGE VS.DEROSAMotion by attorney Sterling ScottWinchell to be relieved as counselof record of plaintiff isGRANTED. Moving party will berelieved as counsel of record forclient effective upon the filing ofthe proof of service of the signedorder upon the client. AttorneyWinchell to give notice of ruling tothe client and all parties.The court DENIES Plaintiff’sMotion for Protective Order.The motion concerns a depositionnotice that Defendant served onPlaintiff in a different action, whichis pending in San Joaquin SuperiorCourt: Prospect Mortgage, LLC v.Avakian et al., Case No. 39-2012-00279308 (the “San JoaquinAction”). Although the partiesagreed after the fact that thismotion could be filed in this caseinstead of the San Joaquin Action,no legal authority is provided as towhether this court may entertain adiscovery motion in which theunderlying discovery wasconducted in a different court in adifferent case. The court isconcerned with whether it hasjurisdiction over a discoverydispute arising from the SanJoaquin Action, and whether byexercising jurisdiction, it isinappropriately usurping theauthority clearly held by the SanJoaquin court. There is noindication that the San Joaquincourt was alerted to—let aloneauthorized—the parties’stipulation.Nor is the court inclined toundertake such a task based onthe parties’ stipulation—withoutcourt leave or court order—to havethis court decide another court’s

discovery dispute.The court also notes that there arethree additional discovery motionspending. The parties are tostrongly consider whetherappointment of a discovery refereeis appropriate for these motions,pursuant to Code Civ. Proc.,Sections 638-639.Defendant is ordered to givenotice.8. 12-598458 THEVERSAILLESHOMEOWNERSASSOCIATION VS.HARASZTIPlaintiff’s Motion for ReasonableCosts and Attorney’s FeesThe court GRANTS the motion ofPlaintiff The VersaillesHomeowners Association for anaward of $43,996.50 in attorney’sfees and costs. ((Civil CodeSection 1354; Civil Code Section1717; CC & R’s of The VersailleCondominiums, Art. 9, Section 9.1,“Enforcement.”)The court finds that Plaintiff is theprevailing party and has attainedits main objectives in this litigationin light of the 10/16/12 stipulatedorder for permanentinjunction. (Motion at Exhibits A,G; Hsu vs. Abbara (1995) 9 Cal.4 th 863, 877.) After considering allof the moving and opposing papersand exhibits, the court finds thatthe fees and costs requested arereasonable under thecircumstances of this case.Plaintiff shall give notice of thisruling, within 5 calendar days afterthe hearing date.9. 13-643639 THORRENSVS. DAVIDSONDefendant’s demurrer to thecomplaint is overruled as to thefour causes of action. The Courtfinds there the allegations aresufficiently pled to state theelements of the causes of action.The Court also notes that plaintiffs’opposition is not in compliancewith the Code of Civil Procedureand the Rules of Court. It is late,by 2 days as it was filed on7/12/13, and not 7/10/13 asrequired by CCP Section

1005. Additionally, the oppositionexceeds the 15 page limit per3.1112(d); and the text iscompressed to include more linesper page than permitted (R.3.1113(d) and 2.108(4).)Any further papers filed with thisCourt that are not in conformitywith Rules and Code will bedisregarded, per the Court’sdiscretion pursuant to the Code ofCivil Procedure and Cal. Rules ofCourt.Defendant is ordered to file andserve its Answer to the Complaintwithin 10 days.11. 12-607064 WALKERVS. ABDELNOURPlaintiffs to give notice of ruling.Defendants’ motion for anundertaking is denied on the basisthat defendants failed to show thatthere is a reasonable possibilitythat they will obtain judgment inthe action on any of the fourcauses of action set forth in thecomplaint.Plaintiff to give notice of ruling.Defendant goes through each ofthe 4 causes of action in her replyonly. She never addressed thecauses of action in her movingpapers, which is noted by plaintiffin her opposition.The statements made bydefendant in her moving and replypapers are all conclusory. She hasnot offered a scintilla of evidenceto refute the 4 causes ofaction. Defendant relies primarilyon arguing that plaintiff hasn’t setforth any evidence at thistime. That statement too, isconclusory. It’s not plaintiff’sburden on this motion to establishthe proof of her case. It’sdefendant’s burden – althoughgranted a low threshold to show areasonable possibility. At mostdefendant has shown a possibilityof prevailing, but nothing about itis reasonable, because it is entirelyspeculative.Plaintiff argues that the Probatestatute Section 21351(b) controlsin this action which prevented

defendant Bashaw to be anindependent attorney to sign thecertificate since she drafted thewill. Plaintiff asserts thebequeaths to defendant arequestionable.Because defendant has failed toshow a reasonable possibility ofprevailing on at least one cause ofaction, the motion is denied.12. 12-600786 MAHAFFEYVS. BERGER KAHNDefendants’ motion to strike thecomplaint pursuant to CCP 425.16is GRANTED. The complaint isprotected speech, as is theunderlying action for legalmalpractice. The Petriks’ failure toobtain a net recovery does notchange the jury’s finding thatMahaffey breached specificfiduciary duties and precludes afinding of malice, as the Petriks’complaint included legally tenableissues. Defendants to bring anoticed motion for attorney fees.In this case, the jury found, in itsspecial verdict that Mahaffey hadbreached his fiduciary duties to hisclients to pay appeal costs, toprovide a proper accounting and inmaking a CCP 998 offer withouttheir authorization. Although thenet recovery was in favor ofMahaffey and the trial courtultimately decide the accountingissue, the jury did findmalpractice. The jury’s specificfindings that Mahaffey breachedduties owed to his clients thusestablish that the malpractice suitwould not have been viewed by areasonable attorney as completelylacking in merit.Mahaffey argues that Berger Kahnknowingly introduced falseevidence at the first constructiondefect trial and engaged in othermisconduct. He does not,however, explain how theseactions affect the Petriks’allegations that he breached hisduties as their counsel.In support of his maliceallegations, Mahaffey again cites toevidence submitted at trial. Thecourt and the jury had full

opportunity to consider thisevidence and this motion does notrequire this Court to retry thedisputes related to the evidence atissue. It is the outcome of thecase, i.e., the legal determinationthat, in some instances Mahaffeywas in breach that establish theabsence of malice.Accordingly, it is not likely thatMahaffey’s claim of maliciousprosecution will be meritorious.Requests for judicial noticePlaintiff’s request for judicial noticeof the judgment on special verdictand statement of decision in thismatter is granted. Notice as to theexistence only of the trial courtexhibits is granted.Defendant’s request for judicialnotice of documents filed in thiscourt and the appellate court isgranted.Defendant’s objectionsDefendant’s objection to theopposition on the basis that it isuntimely is overruled.Objections to Mahaffeydeclarations are overruled, withthe exception of #12, which issustained.13. 12-579010 CHIQUITOVS. BANK OF AMERICA,N.A.Objections to Mahaffey’sinterpretive comments regardingitems submitted for judicial notice:sustain, as to all but #2 and #4.1. Plaintiff Gisele Chiquito’sMotion to Compel FurtherResponses to her Second Set ofSpecial Interrogatories isGRANTED in part and is DENIED inpart. Further responses are duewithin 15 days.1. Information relating tocustomer complaints made againstany employee who was onDefendant Rudolfo Barajas’ teamin 2011. (Nos. 39-40): Themotion is GRANTED. However, theidentification of the employees isprotected by their privacyrights. A less intrusive meansavailable would be to produce a

further response regarding gender,type of disciplinary actions, andnumber of disciplinary actions, butnot identify the individual byname. The scope is limited toindividuals on Rudolfo’s team in2011, who held a similar positionas Plaintiff, and limiting the scopeof the complaints to that in whichPlaintiff was disciplined andultimately terminated for.2. Information related to allcustomer surveys, customerratings surveys and any poorcustomer ratings received by allemployees who were on Barajas’team (Nos. 42-44, 80-81): Themotion is GRANTED. However, thepersonal identification and contactinformation of third-partycustomers who submitted thesurveys are protected by theirprivacy interest, and theidentification of third-partyemployees, are protectedinformation and will not bedisclosed. The scope is limited tothat set forth above.3. Information related to anyemployee who violated DefendantBank of America, N.A.’s (“BOA”)Request for Supervisor Policy (Nos.56-77): The motion is GRANTED inpart and is DENIED in part. Request Nos. 56-57 isGRANTED. However, theidentification of third-partyemployees are protectedinformation and will not bedisclosed. The scope islimited to that set forthabove. The motion is DENIED as toRequest Nos. 58-77 in lightof the privacy objection.4. Information related to anyemployee who Barajasrecommended for promotion.(Nos. 78-79): The motion isDENIED. The identification ofthird-party employees is protectedinformation and will not bedisclosed. In addition, the requestis irrelevant, is not based onsimilarly situated employees andunder similarly situatedcircumstances.5. Information related to any

change in Barajas’ title or positionor position after Plaintiff’stermination. (Nos. 87-88): Themotion is DENIED for the samereasons set forth above incategory No.4.6. Information related to anyreports of Barajas’ inappropriatebehavior made by any employee.(Nos. 89-91): The motion isGRANTED. However, theidentification of third-partyemployees is protected informationand will not be disclosed. Inaddition, the scope is limited tothat set forth above. Forinformation regarding reports thatare otherwise admissible,responding party will provide afurther response of the date of thereports and the factual nature.7. Information related to anyreports of third-party witnessChristian Saldana’s inappropriatebehavior made by any employee.(Nos. 92-94): The motion isGRANTED. However, theidentification of third-partyemployees are protectedinformation and will not bedisclosed. The scope is limited toindividuals on Rudolfo’s team in2011, who held a similar positionas Plaintiff, and limiting the scopeof the complaints to that in whichPlaintiff was disciplined andultimately terminated for. Thus, ifSaldana did not hold a similarposition, and was not an individualon Rudolfo’s team in 2011, and thepurported complaint was not of thesame nature of the allegationsalleged in the underlyingComplaint in this action, no furtherresponses need to be provided.8. Information related to anyreports of third-party witnessEthan Juarez’s inappropriatebehavior made by any employee atany time. (Nos. 95-97): Themotion is GRANTED. The sameruling for Category No. 7 applieshere.9. Information related to Juarez’spurported alcoholism (Nos. 98-100): The motion is DENIED. Therequests are irrelevant.

Defendant and its attorneys ofrecord are sanctioned in theamount of $5,560.00, which is duewithin 30 days.Moving party is to give notice.2. Plaintiff Gisele Chiquito’sMotion to Compel FurtherResponses to her Second Set ofRequests for Production ofDocuments is GRANTED in partand is DENIED in part. Furtherresponses are due within 15 days.1. Information relating tocustomer complaints made againstany employee who was onDefendant Rudolfo Barajas’ teamin 2011. (Nos. 7-8, 13): Themotion is GRANTED. However, thescope is limited to individuals onRudolfo’s team in 2011, who helda similar position as Plaintiff, andlimiting the scope of thecomplaints to that in which Plaintiffwas disciplined and ultimatelyterminated for. In addition, thepersonal identification and contactinformation of third-partycustomers who submitted thesurveys, and third-partyemployees, are protected by theirprivacy interest. Redacteddocuments are to be produced.2. Information related toperformance documents,performance evaluations andreports contained in BOA’sStrategic Reporting Platform, calllog reports, customer surveys,customer rating surveys, callrecordings, and chat logcommunications for all employeeswho were on Barajas teamincluding himself. (Nos. 1-4, 10-12, 16-18, 21-22, 51-52, 75-76,90-92):No. 1: GRANT. However,the employer has the rightto redact the name of anynonsupervisory employeecontained therein. No. 2, 4, 10, 11, 12, 16,17, 18, 21, 22, 51, 52, 75,76: DENY. The documentsreflecting “teamperformance” may containinformation regarding thirdpartyemployees which are

protected by their privacyinterests. In addition, therequested information doesnot appear to be closeenough to the issuesinvolved in Plaintiff’s caseto make a comparisonproductive.No. 3: GRANT. However,private identifyinginformation of third-partyclients should beREDACTED and will not beproduced. In addition, thescope of the call logs shouldbe further limited to thepurportedly improperconduct in which Plaintiffwas disciplined andultimately terminated for. Nos. 91 and 92:GRANT. The scope islimited to individuals onRudolfo’s team in 2011,who held a similar positionas Plaintiff, and limiting thescope of the complaints tothat in which Plaintiff wasdisciplined and ultimatelyterminated for. In addition,the personnel records anddisciplinary records of thirdparty employees areprotected by their right toprivacy and will beredacted.3. Information related to anyemployee who violated DefendantBank of America, N.A.’s (“BOA”)Request for Supervisor Policy (Nos.39-40), and information related toany acts of call avoidancecommitted by third-party witnessKevin Martinez (Nos. 93-95): Nos. 39-40: GRANT. Theidentification and personnelrecords of third-partyemployees will beprotected. A less intrusivemeans available would beto produce a spreadsheetregarding gender, type ofdisciplinary action, andnumber of disciplinaryactions, but not identify theindividual byname. Further, the scopeis limited to individuals onRudolfo’s team in 2011,who held a similar positionas Plaintiff, and limiting the

scope of the complaints tothat in which Plaintiff wasdisciplined and ultimatelyterminated for.Nos. 93-95: DENY. Specificdisciplinary informationregarding third-partyemployees need not beanswered in light of theprivacy objection.4. Information related to anyemployee on Barajas’ team whowas recommended for promotionor had plans to be promoted (Nos.42, 96) and any employee onBarajas team that requested andreceived vacation time off (Nos.42-46): DENY. The identities andpersonnel file of third-partyemployees are protected bythe third-party’s right toprivacy. In addition, theinformation sought is notbased on similarly situatedemployees and undersimilarly situatedcircumstances. Further,this information is notnecessarily relevant toproving Plaintiff’s claim forhostile work environment.5. Information related to anychange in Barajas’ title or positionor position after Plaintiff’stermination and any discipline everadministered to Barajas (Nos. 48,61-63): DENY. The informationsought infringes on DefendantBarajas’ privacy interest. Inaddition, Plaintiff has failed tosufficiently establish that theinformation sought is directlyrelevant and is essential todetermining the truths of thematter in dispute. Additionally,there are less intrusive means toobtain the information sought(e.g., Barajas’ deposition).6. Information related to anycomplaints about Barajas’ made byany employee at any timeincluding Christine Hou and LisaBowman (Nos. 58-59, 64-65):GRANT. The request is limited tothe duration of Plaintiff’semployment, to the employeeswho worked directly underDefendant Barajas, the complaint

is made against Barajas, and thesubject inappropriate behaviorlimited to that alleged in Plaintiff’scomplaint.7. Information related to ChristianVargas (Nos. 49, 68, 71):GRANT. The request is limited tothe duration of Plaintiff’semployment, to the employeeswho worked directly underDefendant Barajas, and thesubject inappropriate behaviorlimited to that alleged in Plaintiff’scomplaint.8. Information related to anycomplaints against third-partywitness Ethan Juarez made by anyemployee including Hou andBowman (Nos. 58-59, 66-67, 70)and any discipline administered tohim at any time (No. 50):GRANT. Same as ruling forcategory no. 7.9. Information related to Juarez’spurported alcoholism (Nos. 72-74).DENY. These requests areirrelevant.10. All emails sent and received byBarajas pertaining to managementof any members of his team (Nos.77-80): DENY.The identities of the identificationof third-party employees will beprotected and will not bedisclosed. In addition, theinformation sought is not based onsimilarly situated employees andunder similarly situatedcircumstances. Further, theinformation is no necessarilyrelevant to proving Plaintiff’s claimfor hostile work environmentand/or claim of gender/sexualdiscrimination and/or harassment.Defendant and it attorneys ofrecord are sanctioned in theamount of $5,560.00, which is duewithin 30 days.Moving party is to give notice.MOTIONS 3 & 4- MOTIONS FORSUMMARY JUDGMENT ARECONTINUED TO 10/01/13.

RULINGS ON LAW & MOTION MATTERSJUDGE DAVID T. McEACHENDEPARTMENT C-21LAW & MOTION IS HEARD ON TUESDAYS AT 1:30 PMPlease read rules carefully. Do not call department unless submitting on the tentative.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings/mceachen.asp by 4:00 pm on Monday. The rulings will also be postedoutside the courtroom on the bulletin board for those counsel without internet access, no later than 10:00am on the day of the scheduled motion.The Law & Motion hearings are scheduled on Tuesday at 1:30 pm and all arguments will be heard at thattime. No supplemental or additional papers will be allowed to be submitted following posting of the rulingon the internet, nor will the Court entertain a request for continuance once the ruling has been posted.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. Ifyou intend to submit on the tentative and do not want oral argument, please notice the clerk by calling(657) 622-5221 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate perCRC 3.1312.NOTICE TO COUNSEL: Upon filing a motion, moving party shall provide a copy of this procedural noticeto opposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because ofmoving party’s failure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailingparty shall give notice of the ruling. Prevailing party shall prepare an Order/Judgment for the Court’ssignature if the motion is dispositive of a cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or the courtroom assistant for clarification ofrulings or additional information. If you are the moving party and do not have internet access, you maycall the courtroom assistant or clerk after 10:00 am on Tuesday of the scheduled hearing and the rulingwill be read to you.LAW AND MOTION FOR JULY 30, 20131. 12-598229AB CALIFACQUISITION CORP.VS. LIBERTY MUTUALINSURANCE COMPANYReal Party In Interest MichaelBello’s unopposed Demurrer toDefendants Liberty MutualInsurance Company and CaliforniaPacific Homes, Inc.’s Answer isSUSTAINED in part and isOVERRULED in part, with 10days leave to amend.The demurrer to the 1 st (failure tostate sufficient facts), 5 th (statuteof limitations), 6 th (failure tomitigate), 8 th (estoppel), 10 th(unjust enrichment), 13 th(impracticality), 14 th (lack ofequity), 15 th (unclean hands), 16 th(standing to sue), and 20 th (falseclaims) affirmative defenses isSUSTAINED, with 10-days leaveto amend. Defendants are requiredto allege additional facts in supportof these defenses. In addition,Defendants must cite to theapplicable statute and subdivisionof the applicable statute oflimitations. Moreover, Defendantsshould narrowly tailor itsaffirmative defenses to assert onlythe meritorious and valid

affirmative defenses.The demurrer to the 7 th (doedefendants), 9 th (latches), 11 th(complete performance), 12 th(discharged duties), 17 th (failure togive notice), 18 th (failure torecord), 19 th (failure to commenceaction), 21 st (failure to give notice),and 22 nd (reservation) affirmativedefenses is OVERRULED. Plaintiffhas failed to sufficiently establishthat the above affirmative defensesfail to state sufficient facts as amatter of law.3. 12-576908BREN INSURANCESERVICES, INC. VS.SUN HEALTHCAREGROUP, INC.Moving party is to give notice.1-5. Plaintiffs motions to compel(1) Further Responses to SpecialInterrogatories, Set Three; (2)Further Responses to Request forProduction of Documents, SetThree; (3) Deposition ofDefendants Person MostKnowledgeable; (4) Production ofDocuments Thereat; and (5)Protective OrderIt appears that the parties met andconferred but could not come to aresolution regarding the discoverydispute. Plaintiff’s discoverymotions (#1-5) are to be referredto a discovery referee. In addition,the discovery referee will addressany future discovery motionsbetween these parties. Further,the Court will CONTINUE trial andall discovery and motion deadlinesin light of Plaintiff’s request forleave to file a Second AmendedComplaint (Motion #6).Pursuant to CCP Section 639(a)(5)the court on its own motion mayappoint a discovery referee. CCPSections 639(c) and (d) govern thecontents of the writtenorder. Pursuant to CCP Section639(d)(2), the following factsestablishes the exceptionalcircumstances requiring thereference to a discovery referee inthis action:There are 5 discovery motionscurrently set by Plaintiff. Inaddition, in light of the continuanceof trial and all motion anddiscovery deadlines, the courtanticipates additional discovery

eing sought by bothparties. Moreover, as reflected inMotion # 6, the Court grantsplaintiff leave to amend to add atrade secret claim. Thus, it can beanticipated that additionaldiscovery motions with respect totrade secrets and confidentialinformation will be brought beforethe Court. Further, many of theobjections raised are with respectto relevancy, the scope ofdiscovery, confidential/proprietaryinformation, and privacyrights. The discovery referee willdecide what categories arediscoverable, a limited protectiveorder, and the scope ofdiscovery.The discovery motions are sent to adiscovery referee, pursuant to CCPSection 639. The court finds thatneither party has demonstrated aninability to pay for a discoveryreferee. The discovery refereeshall provide a recommended rulingon all discovery matters in thiscase. The discovery referee shallbe determined by the parties. Thecourt further sets a discoveryStatus Conference on August 26,2013 at 9:00 a.m. Any objectionsto the discovery referee’srecommendation shall be servedand filed within 10 calendar daysfrom the mailing of the discoveryreferee’s report as provided bypursuant to CCP Section643(c). The discovery referee’sreport will then be ruled upon bythe court. Finally, the parties areto split the cost of this discoveryreferee.Also, the parties are ordered todiscuss and attempt to agree on adiscovery referee, or if they cannotagree, to comply with CCP Section640(b), and the court will thenappoint a discovery referee fromthe nominees by the parties.Moving party is to give notice.6. Bren Insurance Services, Inc’s.Motion for Leave to File a Second

Amended Complaint isGRANTED. Trial is continued toJanuary 27, 2014. Discovery andmotion deadlines are CONTINUEDpursuant to Code to the new trialdate. Plaintiffs are to separatelyfile the Second Amended Complaintby August 2, 2013. Moving party isto give notice.Plaintiff seeks leave to file aSecond Amended Complaint to adda misappropriation of trade secretsclaim under CUTSA. Denial ofleave to amend is appropriate onlywhen inexcusable delay andprobable prejudice to the opposingparty is shown. (Estate of Murphyv. Gulf Ins. Co. (1978) 82Cal.App.3d 304, 311.)Here, the interest of justice weighsin favor of allowing Plaintiff toassert a claim underCUTSA. However, trial is currentlyset for 8/19/13. It is arguable thatDefendant has not conducted anydiscovery of the purportedmisappropriation of confidentialand/or proprietary informationbecause when the factualallegations were previouslyasserted under the conversionclaim, Defendant knew and/orbelieved that the conversion claimwas preempted by CUTSA. Theredoes not appear to be undueprejudice to Defendant if the courtCONTINUES trial and all discoveryand motion deadlines. Thus, thisCourt GRANTS the motion for leaveto file a Second AmendedComplaint.Any future discovery motions,including the motion to sealconfidential documents that is setfor August 20, 2013, is to bescheduled and heard by thediscovery referee.4. 11-467785 DEEDRICKVS. DOCTORSSURGERY CENTER, AMEDICALCORPORATIONThe demurrer of Defendants C.R.Bard, Inc. and Davol Inc. to theThird-Amended Complaint isSUSTAINED IN PART andOVERRULED IN PART.

Filing of Third-AmendedComplaint. As a preliminarymatter, the Court notes that theThird-Amended Complaint wasnever filed with the court as aseparate document. Plaintiff isORDERED to separately file theThird-Amended Complaint within 5days of this hearing. The Third-Amended Complaint will be deemedfiled on 12/04/12, the date thecourt granted Plaintiff’s motion forleave to file an amended complaint.Defendants’ Request for JudicialNotice. The Court takes judicialnotice of Exhibit A (Excerpts fromPlaintiff’s 02/23/12 deposition) and“accept[s] the truth of the factsstated in [it] only to the extentthey were not or could not bedisputed.” (Joslin v. H.A.S. Ins.Brokerage (1986) 184 Cal.App.3d369, 375.) The court further takesjudicial notice of Exhibits B-H,pursuant to Evid. Code, Section452, subd. (d).Defendants’ EvidentiaryObjections. The Court OVERRULESthe objections to the Morgan andDeedrick declarations. Defendantscorrectly point out that extrinsicevidence cannot be considered insupport of a demurrer, except forthose matters which may bejudicially noticed. Thedeclarations, however, areappropriate for the purpose ofexplaining to the court how theplaintiff might amend the complaintto cure the alleged statute oflimitations defect.Statute of Limitations. The CourtOVERRULES the demurrer as tothis ground.“An amended complaint relatesback to the original complaint, andthus avoids the statute of

limitations as a bar against namedparties substituted for fictitiousdefendants, if it: (1) rests on thesame general set of facts as theoriginal complaint; and (2) refersto the same accident and sameinjuries as the originalcomplaint.” (Barrington v. A. H.Robins Co. (1985) 39 Cal.3d 146,151.)Barrows v. Am. Motors Corp.(1983) 144 Cal.App.3d 1, 7, a casecited by Defendants for anotherpoint, is instructive here. TheBarrows court noted, “[c]ase lawmakes clear that where, as here,the standard Doe allegations arecontained in the original complaintagainst the driver of a vehicle, it isproper to amend the complaint tobring in other defendants onwarranty and product liabilitytheories; since the amendmentinvolves the same accident andinjury, the amendment relates backto satisfy the statute oflimitations.”Here, Plaintiff sued his doctors for abotched surgery within the statuteof limitations period. It was thusproper for Plaintiff to amend thecomplaint to bring in Defendants,the manufacturers of the medicalproduct that the doctors implantedinto Plaintiff, on warranty andproduct liability theories.Unreasonable Delay. AssumingPlaintiff was dilatory in his Doeamendments, there is no prejudiceto Defendants from thedelay. (A.N., a Minor v. Cnty. ofLos Angeles (2009) 171 Cal.App.4th 1058, 1066.) The trial hasbeen continued to 05/12/14, whichshould be sufficient time forDefendants to prepare theirdefense.First Cause of Action forProfessional Negligence. The Court

SUSTAINS the demurrer as to thiscause of action WITHOUT LEAVETO AMEND.Defendants argue they cannot beliable for professional negligencebecause they are medical devicemanufacturers, not health careproviders. Because Plaintiff doesnot respond to this particularargument, “the court may treat itas waived, and pass it withoutconsideration.” (People v. Stanley(1995) 10 Cal.4th 764, 793; alsoKurinij v. Hanna & Morton (1997)55 Cal.App.4th 853, 867 [trialcourt may find in favor of movingparty based on lack of opposingargument and authorities].)Furthermore, it does not appear asthough Plaintiff could allegeprofessional negligence againstDefendants, which is made againsta “professional” in failing “to usethe skill and care that a reasonablycareful professional operating inthe field would have used in similarcircumstances.” (Jameson v. Desta(2013) 215 Cal. App. 4th 1144,1166.) The burden is on theplaintiff to demonstrate the mannerin which the complaint might beamended. (Hendy v. Losse (1991)54 Cal.3d 723, 742.) Plaintiff hasnot met his burden here.Third Cause of Action for Breach ofWarranty. The Court SUSTAINSthe demurrer as to this cause ofaction WITH 10 DAYS’ LEAVE TOAMEND.In response to Defendants’arguments, Plaintiff simply statesthat he has sufficiently pled abreach of warranty claim and,without legal authority, states thatwhether a product constitutes an

“assistive medical device” is aquestion of fact. Again, becausePlaintiff does not respond to thisparticular argument, “the courtmay treat it as waived, and pass itwithout consideration.” (People v.Stanley, supra, 10 Cal.4th at 793.)Fourth Cause of Action for StrictLiability. The Court OVERRULESthe demurrer as to this cause ofaction.“The concept of strict liabilityimposes legal responsibility forinjury upon the manufacturer of aproduct without proof of negligencebased upon a determination thatthe product is: (1) defectivelymanufactured, (2) defectivelydesigned, or (3) distributed withoutadequate warnings as to itspotential for harm.” (Artiglio v.Superior Court (1994) 22Cal.App.4th 1388, 1392.)Here, Defendants attack the strictliability claim for failure tosufficiently allege a design defect,but do not address Plaintiff’sallegations of strict liability basedon manufacturing ordistribution. Defendants’ demurrerto this cause of action fails becauseit “cannot rightfully be sustained topart of a cause of action” (Kong v.City of Hawaiian GardensRedevelopment Agency (2002) 108Cal.App.4th 1028, 1047).Defendants are ordered to givenotice.5. 12-618784 GILLIGANLAW CORPORATIONVS. PATTERSONDefendant Lamont Patterson’sMotion to Vacate Entry of Defaultunder CCP Section 473(d) isDENIED. Plaintiff has sufficientlyestablished that the Summons andComplaint was personally servedon Defendant. Responding party isto give notice.Here, Defendant (in pro per)declares that he was never served

with the summons andcomplaint. However, Plaintiffsubmits the declaration of DanielThibodeau in support of itsopposition papers. Mr. Thibodeauis a licensed private investigatorwho was retained by Plaintiff toeffect service of process onDefendant. (Decl. of Thibodeau, atparagraph 2.) Mr. Thibodeaudeclares that after numerousattempts to properly serveDefendant, he was able toeffectuate personal service on2/14/13 at 10:32 a.m. (Decl. ofThibodeau, at paragraphs 4-6.) Mr. Thibodeau declares thatDefendant unsuccessfullyattempted to evade service thatday by jumping into his truck andattempting to drive away. (Decl. ofThibodeau, at paragraph4.) However, Mr. Thibodeau wasable to effectuate personal service.(Decl. of Thibodeau, at paragraph4.)6. 11-487460IRVINE FUELEXCHANGE, INC. VS.CONOCOPHILLIPSCOMPANYHere, the evidence weighs in favorof Plaintiff. The Court finds thatservice of the summons andcomplaint was proper. Thus, thismotion to vacate the entry ofdefault under CCP Section 473(d) isDENIED.The court GRANTS Plaintiffs’motion to compel DefendantsPacific Convenience and Fuels, LLCand Convenience Retailers, LLC toproduce qualified individual(s) as toCategory Nos. 1 and 2 only. Thecourt denies both sides’ request formonetary sanctions against theother.GRANT: Category Nos. 1-2These categories ask forDefendants’ person most qualified(“PMQ”) to testify on paymentsmade/due between the parties. Inhis deposition Sprague admittedthat he was not the person mostqualified on the topic. Spraguetestified that he was not aware ofpayments made by Plaintiffs toPC&F, that instead “it’s all done byaccounting people.” (SpragueDepo., p. 19:8.) When asked whowould have knowledge of paymentsmade by the plaintiff in this case,Sprague responded, “[p]robablyChris Wilson, because he was the

general manager of operations atthe time, and then anybody thatdoes processing inaccounting.” (Sprague Depo.,p. 19:18-19 [emphasis added].)DENY: Category Nos. 4-6These categories ask forDefendants’ PMQ to testifyregarding the agreements,payments, and communicationsrelating to termination of gas salesat Plaintiffs’ threestations. Sprague testified that hehad no knowledge of any suchagreement between PC&F and anythird party to terminate gas sales,of PC&F hiring anyone to empty outthe gas tanks, or of PC&F (SpragueDepo., p. 39:7-19.) The testimonyis ambiguous and capable of tworeasonable interpretations. Itcould have meant that Sprague didnot know the answer either way, asPlaintiffs contend, or it could havemeant that Sprague was denyingthe existence of any suchagreements or conduct, asDefendants contend. AlthoughSprague testified that Chris Wilsonmight know more on the subject,Wilson is a former employee andDefendants were not obligated toproduce him. Without more,Sprague could very well have beenthe PMQ on this subject.DENY: Category Nos. 3, 7, and11These categories ask forDefendants’ PMQ to testifyregarding agreements, andfranchise requirements, policies,and/or procedures imposed onPlaintiffs at the three stations.Plaintiffs argue that PC&F operateshundreds of franchises and that itshould know about the franchiseregulations imposed on them. ButSprague testified that he knew offee operator agreements betweenPlaintiffs and PC&F, and that PC&Fdoes not recognize fee operators asfranchisees. (Sprague Depo., p.23:22 – 24:19; 68:6 – 69:18.) Itappears that the parties arearguing semantics, i.e. franchiseesversus fee operators. HadPlaintiffs’ counsel pressed on and

asked Sprague about requirements,policies, and procedures of feeoperators, it is very possible thatSprague would have answeredthose questions. Accordingly,there is no showing thatDefendants failed to produce a PMQfor these categories.DENY: Category No. 9This category asks for Defendants’PMQ to testify on statements madeby Defendant Conoco toDefendants regarding the threestations before Defendantsacquired them.Plaintiffs acknowledge thatDefendants were involved withDefendant Conoco in a transactionfor the sale of hundreds of gasolinestations. Sprague also testifiedthat he knew it was a package dealwherein Defendants purchased allof Defendant Conoco’s assets, andthat the fee operator agreementsfor the three sites were transferredto Defendants. (Sprague Depo., p.24:21 – 26:3.) It is notunreasonable for Sprague not tohave known of any communicationsspecifically as to the three stations(Sprague Depo., p. 57:16-20) in adeal that, according to Plaintiffs,involved hundreds of gasstations. There is no showing thatanyone currently employed withDefendants had this information,and it is conceivable that therewere never any specific discussionsabout these three particularstations.DENY: Category No. 10This category asks for Defendants’PMQ to testify on Defendants’damage claims against Plaintiffs.When Plaintiffs’ counsel askedSprague generally about damagesclaimed by Defendants, Spraguetestified that he was not aware ofDefendants’ damages other thanwhat Defendants’ attorney toldhim. (Sprague Depo., p. 61:23 –67:1.) Had Plaintiffs’ counselasked Sprague, for example, aboutDefendants’ loss of profits orearning, property damaged ordestroyed, or reduced sales, and

had Sprague still claimed not toknow anything, then Plaintiffs’argument that Defendants produceanother qualified individual wouldbe more compelling. Based on theexisting deposition record, there isnot enough to show that Spraguewas not qualified to testify as tothis category.DENY: Category No. 12This category calls for Defendants’PMQ to testify as to Defendants’income for the three stations.Plaintiffs’ counsel asked Spraguegenerally if he knew of Defendants’income for the three stations since2009. Sprague responded that hewould have to look it up.Significantly, Plaintiffs did notpropound document requests withthe PMQ deposition notice. And asDefendants point out, Plaintiffs’counsel did not present Spraguewith any documents to review oron which to question him. It isreasonable that Sprague wasunable to testify as to incomewithout having the financials infront of him to review. Indeed,Sprague indicated that he couldanswer these questions if he could“look it up.” Accordingly, there isno showing that Sprague wasunqualified to answer questionsregarding this category.Sanctions Are DeniedIt appears that minimal effort wasmade by the parties to meet andconfer prior to this motion. Theparties simply stated theirpositions, and neither sideattempted to make anycompromise. For example, sincePlaintiffs had deposed otheremployees of Defendants beforebringing this motion, either partycould have suggested that thosedepositions be consideredpercipient and PMQ depositions.Moreover, Plaintiffs’ contention thatthey did not have the luxury oftime to meet and confer ignoresthe fact that they created their owntime crunch. Plaintiffs could havetaken this deposition earlier in April

or May, when Defendants providedavailable dates, but they failed totimely confirm any of Defendants’proffered dates.Finally, Defendants’ request forsanctions does not identify againstwhom they are sought. For thisreason alone, sanctions areimproper. (Blumenthal v. SuperiorCourt (1980) 103 Cal.App.3d 317,318 [motion for sanction againstclients is not adequate notice thatattorney may be sanctioned];Corralejo v. Quiroga (1984) 152Cal.App.3d 871, 873-874[ambiguous notice is insufficient].)Moving Parties are ordered to givenotice.7 13-622235JAFARI VS. NODefendant Akbar Golestaneh No’sRequest for Judicial Notice isDENIED. While the documentsidentified are judicially noticeable,they are irrelevant to the issues tobe determined on this Motion.After consideration of paperssubmitted by the parties,defendant No’s Special Motion toStrike is GRANTED.CCP Section 425.16(b) (1) requiresthe Court to engage in a two-stepprocess. First, it must decidewhether defendant has made athreshold showing of protectedactivity as defined by thestatute. If the Court finds such ashowing has been made, then itdetermines whether plaintiff hasdemonstrated a probability ofprevailing on the claim. EquilonEnterprises v. Consumer Cause,Inc. (2002) 29 Cal.4 th 53Defendant No has met his burdenof establishing this action arisesfrom protected speech. CCPSection 425.16(e)(1) and (4) Thefiling of a lawsuit is an exercise of aparty’s constitutional right topetition for grievances and is astatement or writing before ajudicial body. Navellier v. Sletten(2002) 29 C4th 82. Plaintiffs’ FirstAmended Complaint expresslyarises from the filing of No’slawsuit. [First Amended Complaint,paragraph 18]

Plaintiffs have not met their burdenof demonstrating a probability ofprevailing on the claim. Givingthem the benefit of the doubt onthe legal sufficiency of theirpleading, no evidence has beensubmitted establishing there was acontract between these requiringNo to pay his attorney’sfees/costs. If there was nocontract, there is no breach, therecan be no fraudulentmisrepresentation, and there is noactual controversy between theparties.The request for attorney’s fees isGRANTED in the full and finalamount of $5050. CCP Section425.258. 12-612413KNOBBE, MARTENS,OLSON & BEAR, LLPVS. L.A. IDOLFASHION, INC.Defendant is ordered to provide ajudgment for signature by theCourt.1. Plaintiff Knobbe, Martens, Olson& Bear, LLP’s Motion to Deem itsFirst Set of Requests forAdmissions as Admitted isGRANTED. Defendant and itsattorneys of record are to pay $900in sanctions to Plaintiff’s attorneyof record within 30 days. Movingparty is to give notice.Based on the evidence submitted,Plaintiff served Defendant with itsfirst set of request for admissionson 1/16/13, and Defendant hasfailed to respond tothem. Pursuant to CCP Section2033.280, Defendant has waivedall objections. Moreover, unlessDefendant serves responses thatare in substantial compliance priorto the hearing on the motion, therequests for admissions must bedeemed admitted. (Id.) Even if,however, proper responses areserved prior to the hearing,sanctions are mandatory,regardless of the reason for thedelay or failure to respond. (Id.)2. Attorney James H. Harmon asksto be relieved as counsel forDefendant L.A. Idol FashionInc. The court DENIES the

unopposed motion, WITHOUTPREJUDICE, because counsel hasfailed to show proper proof ofservice of the moving papers onthe client and opposing counsel. Inaddition, the proposed order fails toinclude the client’s telephonenumber. Moving party is to givenotice.11. 12-55923PROSPECT MORTGAGE,LLC VS. DEROSADefendant’s Motion to producedocuments and demand for anorder for further responses torequests 79, 80, 86, 90, 91, 98-102 is DENIED. As to requests 83-85, 89, 92 GRANTED. Requests81, 82, 87, 88, and 93-96 areGRANTED as modified. Bothparties’ requests for sanctions areDENIED.Requests 79, 80, ScottsmanGuide advertising, denyThese requests ask defendant toproduce documents related toinquiries from advertisementsplaced in the Scottsman’s GuideMagazine on the basis that DeRosamentioned that he used it as one ofhis sources in developing adatabase. Plaintiff is free to reviewthe magazine on its own, but therequest is viewed as too remoteand burdensome for defendant toundertake.Requests 81, 82, documentsrelated to website inquiries reretail branching opportunities,grant as modifiedThe request is too broad andshould be limited to any documentsactually used by DeRosa to developthe Stearns recruiting base.Requests 83, 84, documentsrelated to Excel wholesalerecruiting database, grantDeRosa identified this database atdeposition as a source he uses forrecruitment. Any proprietaryconcerns are covered by theprotective order in place.Request 85, Scottsman Guideprintouts used when compilingcontact information transmittedto Media Center, grant

Prospect believes that DeRosa usedMedia Center to solicit itsemployees by taking informationfrom prospect before hedeparted. DeRosa contends thatthe information transmitted toMedia was instead obtained fromScottsman Guide.Request 86, DeRosa’sLinkedIn.comcontactinformation, denyDeRosa states that all Prospectemployee contacts were long agodeleted and that his accountpresently contains only third-partyinformation having nothing to dowith this action. Disclosure wouldinvade third-party rights.Request 87, retail branch phonedirectories from 6/1/11-present, grant as modifiedThe request, as it exists, wouldinclude the entire nation and forperiods long before DeRosa’sdeparturefromProspect. Defendant is to producedirectories for the State ofCalifornia for the period 1/1/11-present.Request 88, documentsregarding retail channel growthplan, drafts of PowerPointpresentations from 1/1/11 –present, grant, as modifiedThe request, as it exists, wouldinclude the entire nation.Defendant is to produce documentsregarding presentations for theState of California and redact anyinformation that does not includethis state.Request 89, CustomerRelationship ManagementSystem and separate databaseprepared by outside entity, asof 1/15/12, grantDefendant’s opposes productionprimarily on the basis thatrecruitment information isirrelevant, privileged and/or a tradesecret. The contents are, however,within the parameters of the6/10/13 protective order and may

lead to admissible evidence.Request 90, CustomerRelationship ManagementSystem and separate databaseprepared by outside entity, asof 2/28/12, 91, same request,but as of 4/30/12, 92 samerequest as of 7/31/12, deny 90and 91, grant 92The documents are sought tocompare information added byDeRosa after his departure fromProspect with those previouslyexisting. Plaintiff has not offered anexplanation as to why fourseparate sets of post-terminationdatabases are necessary. Again,any concerns regarding defendant’sproprietary interests are addressedby the protective order.Request 93, all documentsrelated to data added byDeRosa to the Salesforce.comdatabase, grant as modifiedThe request, as it exists, wouldinclude the entire nation.Defendant is to produce responsivedocuments regarding the State ofCalifornia and redact anyinformation that does not includethis state.Requests 94, 95, 96, documentsevidencing calendared meetingbetween Sean Browning andthe Avakians (prior to 4/12),Sean Browning and DeRosa(prior to 1/16/12) SeanBrowning and Vaccaro (prior to3/1/12), deny, pendingsupplemental responseDefendant states that a search wasconducted for these documentsduring the meet and conferprocess, but no responsivedocuments were found. Theoperative responses consist whollyof objections. If defendantprovides a code-compliantsupplemental response, no orderfor production is necessary.Request 98, profit and lossstatements for branchesmanaged by Joseph Sanchezfrom 10/1/11-present; 99,

Steven McNeal from 1/1/10-present; 100, the Avakians,from 4/1/12-present denyProspect contends that defendant’sPerson Most Knowledgeabletestified that branch profit and lossstatements would determine theproductivity of former Prospectemployees. It further argues thatthe named individuals are formerProspect employees whoseproductivity records are necessaryto determine Prospect’s damages.The request is thus not supportedby good cause, as plaintiff hasaccess to these individual’sproduction while in its ownemploy. It is this production thatwould properly determineProspect’s loss, not how thesepersons performed elsewhere in adifferent environment, withdifferent resources.Request 101, year-endproduction for former Prospectemployees for 2011; 102, yearendproduction for 2012,production for 1/13-3/13, denyAs with the data sought forindividual employees, Prospect’sloss is best measured by its owndecrease in profits, if any, not byhow its employees employedelsewhere.12. 12-598878 VERCILLOVS. BANK OF AMERICA,N.A.Defendant Recontrust Company,N.A, and Mortgage ElectronicRegistration Systems, Inc.’sDemurrer to the 4 th cause of action(breach of contract) of the SecondAmended Complaint isSUSTAINED, with 10-days leaveto amend. Plaintiffs have failed toallege sufficient facts to establish“resulting damages.” Plaintiffsallege that Recontrust issued aNotice of Rescission of the Notice ofDefault. Moreover, Plaintiffs havenot alleged any facts showing thatDefendants are continuing to assertthat Plaintiffs have defaulted ontheir loan due to the purportedmisappropriation of payments byCountrywide and Bank ofAmerica. In addition, Plaintiffsfiling the suit for declaratory and

injunctive relief does not appear tobe a “resulting damage” of thepurported breach. Moving partiesare to give notice.Defendants’ Request forJudicial Notice: Defendants’request for judicial notice ofuncertified copies of the Deed ofTrust (Exhibit A), the Notice ofDefault (Exhibit B), the notice ofRescission (Exhibit C), and theAssignment of Deed of Trust(Exhibit D), is GRANTED. Thecourt may take judicial notice of“[f]acts and propositions that arenot reasonably subject to disputeand are capable of immediate andaccurate determination by resort tosources of reasonably indisputableaccuracy.” (Evid. Code §452(h).) However, the court willnot take judicial notice of hearsayallegations statedtherein. (Herrera v. Deutsche BankNat. Trust Co. (2011) 196 Cal. App.4th 1366; Poseidon Development,Inc. v. Woodland Lane Estates, LLC(2007) 152 Cal. App.4th 1106,1117.)13. 12-602282 ARMSTRONGRANCH COMMUNITYASSOCIATION VS.GARCIAThe Court GRANTS Plaintiff’smotion to set aside the May 6,2013 Order of Dismissal of theaction.Because the motion does notspecifically state that it seeksmandatory relief under Code Civ.Proc. Section 473, the court treatsthis motion as one solelydiscretionary relief. (Luri vs.Greenwald (2003) 107 Cal. App. 4 th1119, 1125.)Although the evidence justifyingSection 473, subd. (b) relief issparse, the declaration of Plaintiff’scounsel states that thenonappearance was “[d]ue tocalendaring systems errors andmistake” and has since thenimplemented measures to avoidsuch mistakes in thefuture. (Hoskinson Decl.,paragraphs 9, 11-12.) Plaintiff isto give notice.14. 12-599206VERDIN VS. GRANTWAYNE MILLERThe Court GRANTS DefendantGrant Wayne Miller’s motion tocompel Plaintiff Jose Felix to appear

for deposition pursuant to thenotices of deposition attached asExhibits 1 and 2 to DefendantMillers’ moving papers.The deposition will take place at9900 Research Drive, Irvine,California 92618, or at such otherlocation as the parties may agreein writing. The deposition willcommence on a date within 15days after the date on which noticeof this ruling is order, or on suchother date as the parties mayagree in writing.The Court GRANTS DefendantMiller’s request for monetarysanctions against Plaintiff JoseFelix, in the amount of $997.50, tobe paid within 15 days after thedate on which notice of this order isserved.Defendant Miller is ordered to givenotice.Plaintiff argues sanctions are notjustified under Code Civ. Proc.,Section 2025.430 for tworeasons. First, he was unable toattend the deposition because helives in Mexico. Second, he offeredto pay costs associated with avideoconference deposition. Thisexplanation is insufficient to showthat Plaintiff “acted with substantialjustification or that othercircumstances make the impositionof the sanction unjust.” (Code Civ.Proc., Section 2025.430.) It doesnot explain why Plaintiff could nottravel to Irvine for hisdeposition. In addition Plaintiffcould have, but did not, move for aprotective order to have thedeposition in Mexico or held byvideoconference.

RULINGS ON LAW & MOTION MATTERSJUDGE DAVID T. McEACHENDEPARTMENT C-21LAW & MOTION IS HEARD ON TUESDAYS AT 1:30 PMPlease read rules carefully. Do not call department unless submitting on the tentative.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings/mceachen.asp by 4:00 pm on Monday. The rulings will also be posted outsidethe courtroom on the bulletin board for those counsel without internet access, no later than 10:00 am on the dayof the scheduled motion.The Law & Motion hearings are scheduled on Tuesday at 1:30 pm and all arguments will be heard at thattime. No supplemental or additional papers will be allowed to be submitted following posting of the ruling on theinternet, nor will the Court entertain a request for continuance once the ruling has been posted.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. If youintend to submit on the tentative and do not want oral argument, please notice the clerk by calling (657) 622-5221 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate per CRC 3.1312.NOTICE TO COUNSEL: Upon filing a motion, moving party shall provide a copy of this procedural notice toopposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because of moving party’sfailure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailing party shall give noticeof the ruling. Prevailing party shall prepare an Order/Judgment for the Court’s signature if the motion isdispositive of a cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or the courtroom assistant for clarification of rulingsor additional information. If you are the moving party and do not have internet access, you may call thecourtroom assistant or clerk after 10:00 am on Tuesday of the scheduled hearing and the ruling will be read toyou.LAW AND MOTION FOR AUGUST 6, 20132. 13-651620 INGHAMVS. STEINBERG6. 12-559233 PROSPECTMORTGAGE, LLC VS.DEROSADefendant Barbara Steinberg’s unopposeddemurrer to the Complaint is SUSTAINED,with 10-days leave to amend. The claimsalleged in the Complaint are so uncertain,that Defendant cannot reasonablyrespond. In addition, with respect to thebreach of contract claim, Plaintiff has failedto allege sufficient facts in support of eachelement to the cause of action. Movingparty is to give notice.The court (1) grants Plaintiff ProspectMortgage, LLC’s motion as to thedocuments withheld based on trade secretsand marital privilege only; (2) appoints adiscovery referee pursuant to Code Civ.Proc., Section 639, subd. (a)(5), to decidethe remaining issues; and (3) issuessanctions of $2,550 against Defendant andits counsel.Trade Secrets ObjectionThe court in the 03/12/13 Order found thatDefendant had not justified its objectionsand allowed Defendant to withholddocuments based on 3 specifiedprivileges. Even if Defendant had raised

the trade secret objection in its discoveryresponses, it was required to justify thoseobjections at the previous discoveryhearing—not here, on the motion tocompel compliance with the discoveryorder.Moreover, the parties entered into aStipulated Protective order on 11/30/13which specifically addressed trade secretconcerns and agreed that documentscontaining alleged trade secrets would beproduced as “Confidential – Attorney EyesOnly.” (Stipulated Protective Order,Sections 1, 2.4, 6.1, 14.2.)All documents identified in the privilege logthat have been withheld solely on thegrounds that it is proprietary/trade secretare ORDERED to be produced within 15days of the hearing.Marital Privilege ObjectionThe 03/12/13 Order does not barDefendant’s marital privilege objection, asthat is reasonably encompassed by thecourt’s allowance of third party privacyright objections. On the merits, however,it does not appear the marital privilegeobjection is applicable or justified.Although there is a presumption that aclaim of privileged marital communications“is presumed to have been made inconfidence and the opponent of the claimof privilege has the burden of proof toestablish that the communication was notconfidential” (Evid. Code, Section 917,subd. (a)), Plaintiff has sufficientlyestablished the communications were notconfidential.“To make a [spousal] communication ‘inconfidence,’ one must intend nondisclosureand have a reasonable expectation ofprivacy.” (People v. Mickey (2001) 54Cal. 3d 612, 654 [emphasis added],overruled in part on other grounds inMickey v. Ayers, 606 F.3d 1223 (9th Cir.2010).) The Avakians had no reasonableexpectation of privacy in their work emailcommunications because they executedelectronic mail usage forms in which theyboth acknowledged that there was noguaranteed privacy in email exchanged onStearns’ servers. (Veltman Decl.paragraph 19, Ex. 12.) Suchacknowledgement defeats any reasonableexpectation of privacy. (TBG Ins. Services

Corp. v. Superior Court (2002) 96 Cal.App. 4th 443, 452.)All documents identified in the privilege logthat have been withheld solely on thegrounds of the marital privilege objectionare ORDERED to be produced within 15days of the hearing.Withheld Documents, ImproperRedactions, And Insufficiency OfPrivilege Log DescriptionsIt does appear that Defendant has notproduced all responsivedocuments. However, it is also fairly clearthat Defendant has produce a lot ofdocuments. Thus, the extent ofDefendant’s failure to produce alldocuments is not certain.With respect to the adequacy of thedescriptions of privilege in the log, itappears that the privilege log does notsufficiently apprise Plaintiff of theprivileged nature of some, but not all, ofthe documents.As a practical matter, the court cannotmake a blanket ruling with respect to thesedisputed issues. For this reason, the courtwill appoint a discovery referee to decidethe issues of (1) whether all responsivedocuments have been produced; (2)whether redactions are proper; (3) whetherprivilege log descriptions are sufficient toinform Plaintiff of the basis for theprivilege; and (4) any disputes regardingthe privilege nature of particulardocuments. (Code Civ. Proc., Section 639,subd. (a)(5); Cal. Rules of Court, rule3.920(a).) The parties are advised toconfer before the hearing to determine ifthey can agree on who will serve asdiscovery referee.Monetary SanctionsSanctions of $2,550 are issued againstDefendant and it counsel, to be paid within30 days.Plaintiff sent a detailed meet and conferletter, and Defendant essentially respondedthat it was standing by itsobjections. Defendant did not havesubstantial justification for withholdingdocuments on trade secret or maritalprivilege grounds, or opposing the motionwith respect to those issues.Plaintiff is ordered to give notice.

MOVING # 2 ONLY- MOTION FORPROTECTIVE ORDER STAYING THEDEPOSITION IS OFF CALENDAR PERMOVING PARTY.7 11-493580 RICHARDSVS. PIROZZI1. MOTION FOR RECONSIDERATIONPlaintiff VIC RICHARDS moves the court toreconsider and vacate its 6/11/13 rulingdeeming her to have admitted the first setof requests for admission served on her byDefendants on 3/25/13.The court DENIES the motion on theground that Plaintiff failed to timely file hermotion and failed to show that it was basedon new and different facts, circumstances,or law. (CCP 1008 (a).)Plaintiff fails to carry her burden to showthat she has met the two main statutoryrequirements of CCP 1008 (a).CCP 1008 (a) provides that:“When an application for an order has beenmade to a judge or to the court andrefused in whole or in part, or granted, orgranted conditionally or on terms, anyparty affected by the order may, within 10days after service on the party of writtennotice of entry of the order and based onnew and different facts, circumstances, orlaw, apply to the same judge who madethe order, to reconsider the matter and tomodify, amend, or revoke the prior order.”First, Defendants argue correctly that themotion for reconsideration is untimely.Defendants represent that they servedwritten notice of the 6/11/13 ruling on thatsame date. (McMains Decl. at paragraphs5-6.) So the deadline for filing the motionfor reconsideration was on or before6/21/13. But Plaintiff did not file themotion until 7/1/13, some 10 days late.Second, Defendants argue correctly thatPlaintiff has failed to show that the motionis based on new and different facts,circumstances, or law.2. MOTION FOR LEAVE TO FILESECOND AMENDED COMPLAINTPlaintiff asks the court for leave to file aSecond Amended Complaint that alleges asecond spinal injury that supposedlyoccurred on 6/12/10 when LISA PIROZZI

arged into Plaintiff’s rental unitunannounced and physically attacked her,causing additional injuries to her spine.The court DENIES the motion. In theirOpposition, Defendants argue correctlythat any claim arising from the secondspinal injury would be time-barred by the2-year statute of limitations under CCP335.1. Defendants argue correctly that thesecond spinal injury does not relate back tothe filing of the Original Complaint on7/22/11, because it was an entirelydifferent incident that took place on adifferent date and in a different locationand arose from an entirely separateincident. (Coronet Manufacturing Co. v.Superior Court (1979) 90 Cal. App. 3d 342,344; Barrington v. A.H. Robbins Co. (1985)39 Cal. 3d 146,152.)Here, Plaintiff knew or should have knownof the attack and injury on 6/12/10. Sothe statute of limitations ran on 6/12/12.And Plaintiff and her counsel failed to pleadthe second spine injury in her OriginalComplaint filed on 7/21/11 and in her FirstAmended Complaint filed on 7/21/12. It’stoo late now to plead the second spineinjury.Defendants shall serve notice of this ruling,within 5 calendar days after the hearing.8. 10-410269 SYLVESTERVS. YUH1. Defendant’s motion to expunge lispendens is DENIED. The AmendedJudgment entered on 7/8/13 in the amountof $384,828.70, reinstating the punitivedamages amount of $300,000.00automatically continues under the terms ofthe judgment as amended or modified,whether or not the modification isrecorded.Plaintiffs to give notice of ruling.The defendant has partially satisfied thejudgment in the amount of $72,242.40,but the Court’s reinstatement of thepunitive damages in the amount of$300,000.00 and the full amendedjudgment in the original amount of$384,828.70, is consistent with the amount

of the recorded abstract.The language of CCP 697.360 (a) ispermissive, and no modification oramendment is necessary.Additionally another provision, suggeststhat recordation of the modification is notan essential requirement, because the lienautomatically continues under the terms ofthe judgment as modified, whether or notthe modification is recorded.“If a judgment lien on real property hasbeen created under a money judgment thatis thereafter modified to reduce its amount,the judgment lien continues under theterms of the judgment as modified,whether or not the modification isrecorded.” (CCP697.360(b).) Accordingly, the motion isdenied.2. Plaintiffs’ unopposed motion forattorneys’ fees is GRANTED. The Courtfinds plaintiffs are entitled to attorneys’fees on appeal in the amount of$13,899.00 to be added to and made apart of the amended judgment.Plaintiffs to give notice of ruling.The motion for attorneys’ fees was properlybrought with the filing of the Memorandumof Costs on 6/28/13 (Rule of Court3.1702(c)) and within 40 days of the clerksending notice of issuance of theremittitur. (Rule of Court 8.278(c)(1).)Plaintiffs incurred $13,899.00 in attorneys’fees to successfully defend the judgmententered in their favor. The underlyingjudgment determined that plaintiffs wereentitled to reasonable attorneys’ fees andthat decision was not disturbed by theAppellate Court. Under the Rules of Court,plaintiffs may also recover their attorneys’fees incurred on appeal.9. 13-644563 COSONTECOVS. ISLANDHOSPITALITYMANAGEMENT, INC.Defendant Island Hospitality Management,Inc.’s motion to strike punitive damages isGRANTED in its entirety as to striking allallegations for punitive damages inparagraphs 19, 28, 35, 43, 50, 57 and 64,with 10 days leave to amend.Defendant to give notice of ruling.

Specific factual allegations are required tosupport a punitive damagesclaim. (Brousseau vs. Jarrett (1977) 73Cal. App. 3d 864, 872.)Each cause of action alleged includes thesame conclusory buzz words thatdefendant’s actions were malicious,fraudulent or oppressive, and in wantondisregard for the rights of plaintiff, butwithout any further supporting facts todescribe what the conduct exactly was orwhy it constitutes egregious behavior.They must be sufficient factual allegationsof malice set forth in the complaint. Simplycharacterizing, in conclusory terms theconduct of defendant as reckless orwanton, is inadequate. (Brousseau vs.Jarrett (1977) 73 Cal. App. 3d 864,872.) Here, plaintiff simply allegesparagraph 19, 28, 35, 43, 50, 57 and 64that defendant’s conduct was any numberof the key buzz words without furtherallegations on the subject. This is patentlyinsufficient. Even if the basic allegationsthat form the grounds for her employmentclaims, that defendant refused toaccommodate her needs and thenretaliated against her by terminating her,are used for the foundation for seekingpunitive damages, these allegations do noelevate defendant’s conduct as vile, baseor contemptible.10. 11-487460 IRVINEFUEL EXCHANGE, INC.VS. CONOCOPHILLIPSCOMPANYAn employee’s termination in violation of asubstantial and fundamental public policy,on its own, is not enough to support afinding of malice or oppression. Evidenceof wrongful conduct directed toward aplaintiff of a termination for an improperreason is insufficient to support a finding ofdespicable conduct, because such conductis not vile, base or contemptible. (Scottvs. Phoenix Schools, Inc. (2009) 175 Cal.App. 4 th 702, 716.) Evidence of wrongfultermination for an improper reason doesnot show a conscious and deliberatedisregard of the plaintiff’s interests andwrongful termination without more, will notsustain a finding of malice or oppression.The court GRANTS Defendants’ unopposedmotion to bifurcate trial into two phases,liability and damages. If the parties submiton the tentative ruling, the court will signthe Proposed Order submitted with themoving papers.Moving Parties are to serve notice of theOrder once it is signed.

RULINGS ON LAW & MOTION MATTERSJUDGE DAVID T. McEACHENDEPARTMENT C-21LAW & MOTION IS HEARD ON TUESDAYS AT 1:30 PMPlease read rules carefully. Do not call department unless submitting on the tentative.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings/mceachen.asp by 4:00 pm on Monday. The rulings will also be posted outsidethe courtroom on the bulletin board for those counsel without internet access, no later than 10:00 am on theday of the scheduled motion.The Law & Motion hearings are scheduled on Tuesday at 1:30 pm and all arguments will be heard at thattime. No supplemental or additional papers will be allowed to be submitted following posting of the ruling onthe internet, nor will the Court entertain a request for continuance once the ruling has been posted.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. If youintend to submit on the tentative and do not want oral argument, please notice the clerk by calling (657) 622-5221 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate per CRC 3.1312.NOTICE TO COUNSEL: Upon filing a motion, moving party shall provide a copy of this procedural notice toopposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because of movingparty’s failure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailing party shallgive notice of the ruling. Prevailing party shall prepare an Order/Judgment for the Court’s signature if themotion is dispositive of a cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or the courtroom assistant for clarification of rulingsor additional information. If you are the moving party and do not have internet access, you may call thecourtroom assistant or clerk after 10:00 am on Tuesday of the scheduled hearing and the ruling will be read toyou.1. 12-603375 ARGON VS.SEMAANLAW AND MOTION FOR AUGUST 27, 2013The court grants Travelers’ motion to quash, asmodified: Travelers is ordered to produce only the policy or policiesin effect during the time period relevant to the subject matter of thisaction. The court denies both parties’ requests for monetarysanctions.Discovery Is Limited To Insurance PolicyPursuant to Code Civ. Proc., § 2017.210, discovery is limited to theexistence of insurance policies in effect on the date of the incident,the contents of the policy agreement, and whether the insurer isdisputing coverage. Plaintiff thus is entitled to view the insurancepolicies and may obtain that information through any permissiblemethod of discovery. (Irvington-Moore, Inc. v. Superior Court(1993) 14 Cal. App. 4th 733, 736-739.)Code Civ. Proc., Section 1985.3 Does Not Apply HereThe parties’ dispute regarding the timeliness of this motion pursuantto Code Civ. Proc., Section 1985.3 is irrelevant because that sectiondoes not apply here. Section 1985.3 applies to records of a“consumer.” Plaintiff seeks the insurance records relating toDefendant QuickStart Intelligence Corporation. A corporation is not a“consumer” for purposes of this section (Code Civ. Proc.,Section 1985.3, subd. (a)(2)), so this section does not apply.Monetary Sanctions Are DeniedIn making an order pursuant to motion made under Section 1987.1,the court has the discretion to award reasonable attorney

fees. (Code Civ. Proc., Section 1987.2.)Section 1987.1 requires that a motion to quash be reasonably made,but it does not require a party seeking to quash a subpoena to makereasonable or good faith efforts to meet and confer. (Code Civ.Proc., Section 1987.1)Neither party was without substantial justification. AlthoughTravelers did not have to produce its entire files, Plaintiff was entitledto the insurance policy.Plaintiff is ordered to give notice.4. 13-625565 KESHMIRI VS.GHALEBIThe court OVERRULES Defendant Chris Black Zanck’s demurrer inits entirety.COA 1: FraudA principal is liable to third parties for an agent’s acts within thescope of the agent’s actual or ostensible authority, includingnegligent acts committed in the transaction of the business of theagency. (Civ.Code, Sections 2330, 2338.) Further, “‘[a] principalwho puts an agent in a position that enables the agent, whileapparently acting within his authority, to commit a fraud upon thirdpersons is subject to liability to such third persons for thefraud.’” (Bayuk v. Edson (1965) 236 Cal.App.2d 309, 315.) “Thegeneral allegation of agency is one of ultimate fact, sufficient againsta demurrer.” (Kiseskey v. Carpenters’ Trust for So. California (1983)144 Cal.App.3d 222, 230.)Here, the Complaint alleges sufficient facts to state a cause of actionfor fraud against Defendant Ghalebi. The Complaint also sufficientlyalleges all Defendants, including Defendant Zanck, were agents ofone another. Thus, for pleading purposes, the Complaint sufficientlyalleges fraud against Defendant Zanck.COA 2: Breach of Written ContractCOA 3: Breach Of Oral ContractCOA 4: Money Due For Work, Labor And ServicesPerformedCOA 5: Quantum MeruitCOA 6: Common Counts“Where a contract is made by an agent acting on behalf of anundisclosed principal, a third party, upon discovering the facts of theagency, may sue the undisclosed principal.” (Del E. Webb Corp. v.Structural Materials Co. (1981) 123 Cal.App.3d 593, 606.) As statedabove, the Complaint sufficiently alleges all Defendants were agentsof one another.COA 4: Money Due For Work, Labor And ServicesPerformedCOA 5: Quantum MeruitDefendant cites to Bradstreet v. Wong (2008) 161 Cal. App.4th 1440for the proposition that he is not personally liable for DefendantStandard Plastics, LLC’s alleged failure to pay wages to Plaintiff. Hisreliance is misplaced.First, Bradstreet is distinguishable because it was an action torecover wages owed under orders of the Industrial Welfare

Commission (IWC). Plaintiff here does not sue under any such IWCorders. Second, even assuming Bradstreet applies, the case wasabrogated by Martinez v. Combs (2010) 49 Cal.4th 35, 50, fn.12. Third, the Complaint alleges alter ego liability on allDefendants. The alter ego allegation is sufficient for pleadingpurposes to attach liability onto Defendant Zanck.Plaintiff is ordered to give notice.5. 12-587825 MESBAH VS.HOFFERI. Plaintiff’s MOTION TO SET ASIDE ORDERTRANSFERRING VENUEThe court DENIES Plaintiff’s Motion to Set Aside/Vacate the court’s4/02/13 Order transferring venue of this action to VenturaCounty. (CCP 473 (b).)Plaintiff complains that he received no notice of the motion. But thiswas because he failed to notify the court and opposing counsel of hisnew mailing address. (CRC 2.200.) This neglect by Plaintiff wasinexcusable. “To warrant relief under section 473 a litigant’s neglectmust have been such as might have been the act of a reasonablyprudent person under the same circumstances.” (Fidelity FederalSavings & Loan v. Long (1959) 175 Cal.App.2d 149, 155.)Even assuming Plaintiff intended to bring a motion forreconsideration, the court would still DENY the motion because it wasuntimely filed and because Plaintiff failed to show it was based onnew or different facts, circumstances, or law. (CCP 1008 (a).)II.Plaintiff’s MOTION TO SET ASIDE DEFAULT to Cross-ComplaintThe court GRANTS Plaintiff’s motion to set aside his 7/09/13 defaultto Defendant’s Cross-Complaint. Once the court entered the ordertransferring venue to Ventura County, this court lost jurisdiction tohear this matter. (Refrigeration Discount Corp. v. Superior Court(1949) 91 Cal.App.2d 295, 296-297.)“The California authorities are uniform to the effect that when a trialcourt in which a cause of action is originally filed has jurisdiction topass upon a motion for change of venue, makes and enters its ordergranting the motion and transferring the cause to another propercounty for trial, the latter court immediately acquires solejurisdiction, and the court which grants the motion ‘has no power tomake any further order in the premises.’” (Ibid.)So it was improper for Defendant to file his cross-complaint and takePlaintiff’s default in Orange County. Any cross-complaint must befiled in Ventura County. And any default must be taken in VenturaCounty. Defendant’s efforts to litigate in this venue are inconsistentwith his position that Ventura County is the better venue for theconvenience of witnesses.III. Defendant’s MOTION FOR ENTRY OF DEFAULTJUDGMENT

DENIED.IV.Parties’ Request for Monetary SanctionsDENIED.Defendant shall give notice of these four rulings.6. 13-626615 PLICHTA VS.VARGASDefendants’ Joseph Vargas and Christina Vargas, Motion to Dismiss isDENIED.The grounds upon which this Motion is brought are CCP Section581(m) and Section 664.6.As to the first, no authority is cited establishing that this Court mayuse its inherent powers to dismiss for any reason other than aprocedural one. The statute does not authorize dismissal onsubstantive grounds such as those raised here.As to the second, none of the statutory requirements for enforcementof the purported settlement have been met. The settlement was notmade during “pending litigation.” In fact, it appears to have beenreached to forestall litigation. Second, the settlement agreement isnot signed by any defendant or defendant-affiliated person. Whetherthe negotiated check is an enforceable settlement agreement is aquestion of fact that can’t be resolved through this motion.Finally, since the Court never acquired jurisdiction over thesettlement because there was no pending litigation, the requiredretention of jurisdiction to enforce the settlement was not acquired,either.7 10-384267 SAMPSON VS.COUNTY OF ORANGEPlaintiff’s motion to consolidate and for an order determining the“overall prevailing party” is DENIED.Both cases – The Richardson Group, Inc. v. Sampson, 2010-00411946 and The Richardson Group, Inc. v. Sampson, 2011-00471350 – have already been dismissed. Thus, there are nopending cases to consolidate.In addition, Plaintiff has failed to comply with Cal. Rules of Court, rule3.350, subds. (a)(1)(C) and (a)(2)(C).Defendants are ordered to give notice.“When actions involving a common question of law or fact arepending before the court, it may order a joint hearing or trial of anyor all the matters in issue in the actions; it may order all the actionsconsolidated and it may make such orders concerning proceedingstherein as may tend to avoid unnecessary costs or delay.” (Code Civ.Proc., Section 1048, subd. (a).)A party filing a motion to consolidate must comply with Cal. Rules ofCourt, rule 3.350, which provides in relevant part:The notice of motion to consolidate must be filed in each case

sought to be consolidated. (Subd. (a)(1)(C).)The motion to consolidate must have a proof of service filed aspart of the motion. (Subd. (a)(2)(C).)Plaintiff has already lost this case. There is a pending motion forattorney fees by Defendants that Judge Glass, who presided over thetrial, will hear on 08/26/13. Plaintiff is bringing this motion toconsolidate in the hopes that he will be determined the “overallprevailing party,” in light of the fact that the other cases against him(i.e., 946 Case and 350 Case) were dismissed without prejudice.There is a fatal problem with Plaintiff’s motion to consolidate. AsPlaintiff admits and Defendants correctly point out, both the 946 Caseand the 350 Case have already been dismissed. The 946 Case wasdismissed on 05/04/11. The 350 Case was dismissed on01/27/12. For this reason, there are no pending cases toconsolidate.In addition, Plaintiff has failed to comply with Cal. Rules of Court, rule3.350, subds. (a)(1)(C) and (a)(2)(C). According to V3, Plaintiff didnot file (nor could he) the notice of motion in the 946 Case and 350case. Plaintiff also failed to file a proof of service as part of hismoving papers.8. 11-528284 SMITH VS.HOAG MEMORIAL HOSPITALPRESBYTERIANMOTION TO QUASH DEPOSITION SUBPOENA or forPROTECTIVE ORDER LIMITING SCOPEThe court DENIES the motion to quash.The motion for protective order is GRANTED in part and DENIED inpart. The language “ANY AND ALL” and “INCLUDING BUT NOTLIMITED TO” shall be deemed stricken from the depositionsubpoenas. The 7 health care providers and/or medical recordcustodians shall produce documents responsive ONLY to the specificphysical and mental conditions enumerated in the depositionsubpoenas, which medical conditions Plaintiff has put at issue in thislitigation.The parties are ordered to meet and confer and agree upon languagefor a stipulated confidentiality agreement and protective order.The court DENIES Plaintiff’s request for monetary sanctions.Defendant shall serve notice of this ruling.1. Right of Privacy and Physician-Patient Privilege.Plaintiff argues correctly that the medical records areconfidential. But she has put her mental condition at issue, so theyare discoverable to the extent her mental and physical conditionshave been put at issue.And any privacy right can be protected with a properly draftedstipulated confidentiality agreement and protective order limitingoutside disclosure of the information. (G.T., Inc. vs. Superior Court(1984) 151 Cal. App. 3d 748, 755; Richards vs. Superior Court(1978) 86 Cal. App. 3d 265, 272, 150 Cal. Rptr. 77, 81.) Plaintiff

cannot raise a blanket privacy objection, but must identify specificdocuments entitled to privacy protection and must disclose thempursuant to the confidentiality agreement.Plaintiff is correct that the California Constitution guarantees her rightto privacy against unwarranted disclosure. (Britt vs. Superior Court(1978) 20 Cal. 3d 844, 855-856.) “Even when discovery of privateinformation is found directly relevant to the issues of ongoinglitigation, it will not be automatically allowed. There must then be a‘careful balancing’ of the ‘compelling public need’ for discovery todiscover the truth in a legal proceeding against the ‘fundamentalright of privacy.’” (Mendez vs. Superior Court (1988) 206 Cal. Ap.. 3d557 citing Linder.)Although a plaintiff suing for personal injuries and emotionaldisturbance partially waives the physician-patient privilege, thiswaiver applies only to the physical or mental medical conditions thatPlaintiff has put at issue. Plaintiff still retains a right of privacy. Soher entire lifetime medical history is not automaticallydiscoverable. (Heda vs. Superior Court (1990) 225 Cal. App. 3d 525;Evid. Code 996.) Mere speculation as to the possibility that someportion of the records might be relevant to some substantive issuedoes not suffice. (Davis vs. Superior Court (1992) 7 Cal. App 4 th1008, 1017.)Defendant argues correctly that a plaintiff waives her right to privacyas to any and all information in her medical records that is related inany way to the injuries, illnesses, or medical conditions for which sheis seeking recovery. If she claims injury to her respiratory system,she cannot selectively disclose only information concerning injury toher respiratory which she unilaterally believes were caused byDefendant. (Britt v. Superior Court (1978) 20 Cal.3d 844, 864, fn9.)“It should be understood, of course, that insofar as the number ofinjuries or illnesses, some related and some unrelated to the airportoperations, have contributed to a medical condition placed in issue inissue by a plaintiff, Defendant is entitled to obtain information as toall such injuries or illnesses. Thus, for example, if a plaintiff claimsthat the airport operations have damaged his respiratory system,plaintiff would be obliged to disclose all medical information relatingto his respiratory condition and could not limit discovery simply tothose airport-related incidents which have allegedly impaired hiscondition.” (Ibid.)2. Relevance.Plaintiff’s relevance objection fails. The information sought is clearlyrelevant to the litigation. Plaintiff has put certain aspects of hermedical and physical condition at issue.3. Overbreadth.Plaintiff argues correctly that the deposition subpoena for medicalrecords is partly overbroad. Or at least could be construed to bepartially overbroad.Defendant is entitled to medical records that address the specificphysical and mental conditions that have been put at issue. ButDefendant is not entitled to any and all physical and mental medicalrecords. And Defendant is not entitled to all records INCLUDING BUTNOT LIMITED TO. The records must be LIMITED TO the specifiedmental and physical conditions at issue and specifically enumerated

in the deposition subpoenas.4. Meet and Confer.9. 12-619096 JAMESBARBER, AS TRUSTEE OFTHE BARBER FAMILY TRUSTVS. BARBER10. 12-557038 DAO VS.NGUYENThe court finds that the parties’ meet and confer efforts wereadequate.The Court, on its own motion, dismisses this matter without prejudicefor lack of jurisdiction.Although originally brought as a breach of contract action, all thatpresently remains of this case is the cross-complaints filed by thenow-estranged Michele and David Barber. Ms. Barber filed fordissolution on 3/16/12 and filed an amended cross-complaint againstDavid Barber on 3/25/13, wherein she asserted wrongdoingregarding his community property disclosures. David followed shortlythereafter, with a cross-complaint on 5/6/13 and an amended crosscomplainton 7/3/13.Both cross-complaints allege misrepresentations, failure to disclosecommunity assets and debts, pending the court’s division of theirproperty—all in violation of Family Code 721. David further allegesthat he was fraudulently deprived of community property, for whichthere are specified remedies in the Family Code. Because the partiesare actively involved in a pending dissolution before Judge Howard,this Court lacks jurisdiction to hear matters affecting community orseparate property issues, including the failure to disclose assets andliabilities as alleged in both cross-complaints. Accordingly, the Courtdismisses the matter without prejudice on its own motion for lack ofjurisdiction.Defendants’ motion to order plaintiff be deposed through aninterpreter is granted. The Court orders plaintiff to appear at hisdeposition as previously ordered by this Court on 5/29/13, and testifythrough the use and aid of a Certified Vietnamese Interpreterselected by defendants and at defendants’ cost.Defendants to give notice of ruling.When a witness is incapable of hearing or understanding the Englishlanguage so as to be understood directly by counsel, court, and jury,an interpreter whom he can understand and who can understand himshall be sworn to interpret for him. (Evidence Code Section 752.) TheCourt has the authority and procedures for the management ofdiscovery, so that discovery can serve its purpose throughout thephases of litigation in the Code of Civil Procedure, commencing withCCP Section 2016, et seq.Plaintiff’s counsel’s refusal to allow plaintiff to be deposed with theaid of a Certified Interpreter in Vietnamese directly contradicts thepurpose of the Discovery Act to provide for the exchange ofinformation relevant to the subject matter of the case so as toreasonably assist a party in evaluating the case, preparing for trialand facilitating settlement.The Court has the authority to order plaintiff to testify at thisdeposition through the use of a Certified VietnameseInterpreter. The cost should be borne by Defendants however.

http://www.occourts.org/tentativerulings/dmceachenrulings.htmPage 1 of 99/5/2013RULINGS ON LAW & MOTION MATTERSJUDGE DAVID T. McEACHENDEPARTMENT C-21LAW & MOTION IS HEARD ON TUESDAYS AT 1:30 PMPlease read rules carefully. Do not call department unless submitting on the tentative.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings/mceachen.asp by 4:00 pm on Monday. The rulings will also beposted outside the courtroom on the bulletin board for those counsel without internet access, nolater than 10:00 am on the day of the scheduled motion.The Law & Motion hearings are scheduled on Tuesday at 1:30 pm and all arguments will beheard at that time. No supplemental or additional papers will be allowed to be submittedfollowing posting of the ruling on the internet, nor will the Court entertain a request forcontinuance once the ruling has been posted.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for thehearing. If you intend to submit on the tentative and do not want oral argument, please noticethe clerk by calling (657) 622-5221 and the prevailing party will give Notice of Ruling orprepare an Order if appropriate per CRC 3.1312.NOTICE TO COUNSEL: Upon filing a motion, moving party shall provide a copy of thisprocedural notice to opposing counsel. If opposing counsel appears at the scheduled hearingunnecessarily because of moving party’s failure to provide this notice, sanctions may beimposed. Upon posting of ruling prevailing party shall give notice of the ruling. Prevailing partyshall prepare an Order/Judgment for the Court’s signature if the motion is dispositive of a causeof action, a party or the case.The Court requests your cooperation in not calling the clerk or the courtroom assistant forclarification of rulings or additional information. If you are the moving party and do not haveinternet access, you may call the courtroom assistant or clerk after 10:00 am on Tuesday of thescheduled hearing and the ruling will be read to you.1. 12-543779 AMIRGNESSIN ON BEHALFOF DC PARTNERS, INC.VS. DC PARTNERS, INC.LAW AND MOTION FOR SEPTEMBER 3, 2013Motion by attorney Quintana Law Group, APC to berelieved as counsel of record for defendant/crosscomplainantDC Partners, Inc. is granted. Moving party willbe relieved as counsel of record for client effective uponthe filing of the proof of service of the signed order uponthe client.An OSC re: default of defendant corporation is set forSeptember 30, 2013 at 9:00 a.m. for defendant to advisethe court that it has obtained new counsel, as acorporation cannot defend an action in propria persona.Attorney Quintana Law Group, APC to give notice of rulingto the client and all parties.2. 12-541907BROWNLEY VS.HARGROVECross-Defendants Kevin Brownley and Tedesco Brownley’sMotion for Summary Judgment on the Fourth AmendedCross-Complaint is DENIED.Cross-Defendants have not complied with California Rulesof Court 3.1350(b), which requires that: “If summary

http://www.occourts.org/tentativerulings/dmceachenrulings.htmPage 2 of 99/5/2013adjudication is sought… the specific cause of action,affirmative defense, claims for damages, or issues of dutymust be stated specifically in the notice of motion andrepeated verbatim in the separate statement of undisputedmaterial facts.” Thus, the Court will treat this motion as aMotion for Summary Judgment.There is a triable issue as to whether the Buyer acceptedthe condition of the property. The Buyer requested theSeller to make certain repairs on the Property in light ofthe condition of the property. (UMF, at paragraph 16.)The Seller agreed to complete Plaintiffs’ entire list ofrequested repairs. (Cross-Complainant’s SeparateStatement, at paragraph 17.) Thus, Cross-Complainanthas established a triable issue as to whether Cross-Defendant accepted the condition of the property and wasrequired to remove the applicable contingency.In addition, there is a triable issue as to whether Cross-Defendants cancelled the agreement for other reasons thatwould not entitle them to back out of the agreement (i.e.,after finding out that the property was viable from the parkand therefore lacked privacy, and that their neighbor ownsa potentially noisy pet parrot). (UMF, at paragraphs 16-29, 34-35; Decl. Devon Brownley, at paragraphs 23-25,29-30; Decl. of Elaine Steinhoff, at paragraphs 6.)Cross-Complainant’s Evidentiary Objections: Cross-Complainant’s evidentiary objections are SUSTAINED inpart and OVERRULED in part. Cross-Complainant’sevidentiary objection nos. 5 and 7 is SUSTAINED. Allother evidentiary objections interlineated into Cross-Complainant’s Separate Statement are OVERRULED onthe ground that the objections do not comply with CRC3.1354.Moving parties are to give notice.3. 12-569612 DIRKS VS.JPMORGAN CHASECALIFORNIACORPORATIONDefendant JP Morgan Chase Bank successor by merger toChase Home Finance’s unopposed motion to compelfurther responses to Requests for Production of Documents#4, and Form Interrogatories, #6.3(b), (c); 6.4(a), (d);6.5(b), (e); 6.6(d); 6.7(a), (c); 8.4; 8.5; 8.6; 8.7; & 8.8 isgranted in its entirety. Plaintiff’s responses to thisdiscovery is wholly inadequate, and fails to answer eventhe basic questions asked. Plaintiff is ordered to producefull and complete responses within 20 days withoutobjection.Defendant’s request for sanctions against plaintiff in theamount of $2,940.00 is granted. Plaintiff was unjustified inproviding responses that did not even address the natureof the requests.4.Moving party is to give notice.

http://www.occourts.org/tentativerulings/dmceachenrulings.htmPage 3 of 99/5/201313-649498 MC NEILVS. ROGERS5. 13-626646MITSUBISHI ELECTRICUS, INC. VS. YAKUBOFF CALENDAR. 1 ST AMENDED COMPLAINT FILEDPlaintiff Mitsubishi Electric US, Inc.’s unopposed discoverymotions are GRANTED as to Defendants Ahmad Yakuband Broadstreet Energy Corporation.1. Plaintiff’s Motion to Compel Defendants to provideverified responses to its First Set of Form Interrogatories isGRANTED. Verified responses without objections are duewithin 10 days.2. Plaintiff’s Motion to Deem its First Set of Requests forAdmissions as Admitted against Defendants is GRANTED.Defendants are to pay $939.95 in sanctions within 30days. Moving party is to give notice.6. 11-518591 ORANGECOUNTYTRANSPORTATIONAUTHORITY VS. DELCERRO MOBILEESTATESThe court CONTINUES to October 1, 2013 at 1:30 p.m.the hearing on Defendant Del Cerro Mobile Home Estates’motion for award of litigation expenses pursuant to CodeCiv. Proc., Section 1286.610.Defendant is invited to file and serve, by no later than 9court days before the continued hearing, additional briefing(not to exceed 5 pages) on the limited issue of thereasonableness of attorney fees, in light of the otherfactors outlined in City of Oakland v. Oakland Raiders(1988) 203 Cal.App.3d 78, 83, that have not yet beenaddressed. Defendant may also concurrently lodge acomplete copy of its bills for the relevant time frame, andfile and serve a supplemental declaration (not to exceed 5pages) explaining defense counsel’s general method forallocating time solely to the landlocked issue.Plaintiff may file and serve, by no later than 5 court daysbefore the continued hearing, additional briefing (not toexceed 5 pages) on the same limited issue.Entitlement to litigation expenses.Defendant correctly states “the court shall award thedefendant his or her litigation expenses whenever:[paragraph] (1) The proceeding is wholly or partlydismissed for any reason.” (Code Civ. Proc.,Section 1268.610, subd. (a)(1) [emphasis added]; TempleCity Redevelopment Agency v. Bayside Drive Ltd. P'ship(2007) 146 Cal.App.4th 1555, 1560.) It is thus irrelevantwhether the partial dismissal merely clarified or modestlyrevised the scope of the Resolution of Necessity.

http://www.occourts.org/tentativerulings/dmceachenrulings.htmPage 4 of 99/5/2013Amount of Fees to Be Awarded.Thus the primary issue here is whether the over $100,000in expenses sought by Defendant “would not have beenincurred had the property sought to be acquired followingthe dismissal or judgment been the property originallysought to be acquired.” (Code Civ. Proc.,Section 1268.610, subd. (b) [emphasis added].) As to thisissue, Plaintiff correctly notes that Defendant has notprovided enough information to make this determination.“It is well settled that the judicial determination of‘reasonable’ attorney fees in an eminent domain actiondoes not depend solely upon hourly rates and the numberof hours devoted to the case. While these two factors are‘the starting point of every fee award’ (citation), numerousother factors must also be considered, including thenovelty and difficulty of the issues presented, the quality ofcounsel’s services, the time limitations imposed by thelitigation, the amount at stake, and the result obtained bycounsel.” (City of Oakland v. Oakland Raiders, supra, 203Cal.App.3d at 83.)Defendant has provided sufficient detail as to the attorneyhours expended and hourly rate/experience of its counsel.But it does not address the other factors enumeratedabove. In particular, there is no discussion of the overallamount at stake for Defendant in this action and to whatextent the partial dismissal reduced that amount.Also missing is any discussion of the attorney effortsdirected solely at the “landlocked” issue relative toDefendant’s overall defense of this condemnationproceeding. Defendant simply declares, “[o]ver the sameperiod of time, Del Cerro incurred attorneys’ fees in thisproceeding well in excess of that amount.” (Motion, p.9:24-25.)For example, Plaintiff argues Defendant should not recoverattorney fees for preparing an answer to the complaintbecause Defendant would have had to answer thecomplaint regardless of the partial dismissal. Defendantresponds that only 3/10ths of an hour is requested for theanswer, even though it took Defendant’s counsel morethan 3/10ths of an hour to prepare the answer. It is notpossible, however, for the court to determine if such anallocation is reasonable without knowing the total timeincurred in preparing the answer and the relativeimportance of the “landlocked” issue to Defendant’s entiredefense.Should the parties’ submit supplemental briefing, the courtadvises that it neither expects nor desires the parties toaddress the reasonableness of fees in as great of detail asthe above example. The parties instead should focus on

http://www.occourts.org/tentativerulings/dmceachenrulings.htmPage 5 of 99/5/2013the general reasonableness of the landlocked issue in lightof the overall condemnation dispute.Finally, the court notes that Defendant filed a reply overthe 10-page limit (Cal. Rules of Court, rule 3.1113(d))without first seeking leave to do so. The court may refuseto consider the reply for this reason. (Cal. Rules of Court,rules 3.1113(g); 3.1300(d).) Although the court hasconsidered Plaintiff’s reply here, the parties are advisedthat a future violation of this rule may result in thecourt’s refusal to consider the arguments containedin the pages exceeding the maximum limit.7. 13-663596 PROCESSFAB INC. VS.AEROSPACEENGINEERING, CORP.Moving Party is ordered to give notice.The court denies Plaintiffs’ motion to file portions of theComplaint under seal; strikes the Complaint filedconditionally under seal on 07/22/13 from the record; andgrants Plaintiffs 15 days’ leave to file an amendedcomplaint.Unless confidentiality is required, court records arepresumed to be open to the public. (Cal. Rules of Court,rule 2.550, subd. (c).) In order to seal records, the courtmust expressly find facts that establish:(1) There exists an overriding interest that overcomesthe right of public access to the record;(2) The overriding interest supports sealing the record;(3) A substantial probability exists that the overridinginterest will be prejudiced if the record is notsealed;(4) The proposed sealing is narrowly tailored; and(5) No less restrictive means exist to achieve theoverriding interest.(Cal. Rules of Court, rule 2.550,subd. (d).)The party moving to have a record sealed bears theburden of proving the first two steps. (H.B. FullerCompany v. Doe (2007) 151 Cal.App.4th 879, 894-895.)Portions of the Complaint re: Trade SecretsPlaintiffs allege portions of paragraphs 2-3, 17, 25, 37, 40-41, 43-46, 80 and 89 (collectively, the “Trade SecretAllegations”) should be sealed to protect “facts concerningthe identity of Plaintiffs’ customers, the products Plaintiffsproduce for those customers, the history of those customerrelationships, the status of ongoing and prospectivecontracts, and the value of those contracts.” (Reply, p.

http://www.occourts.org/tentativerulings/dmceachenrulings.htmPage 6 of 99/5/20136:6-8.) Plaintiffs, however, fail to establish either of thefirst two steps set forth above.First, it does not appear that the Trade Secret Allegationsactually disclose any trade secrets, which if disclosedwould harm Plaintiffs’ business.As to the identity of Plaintiffs’ customers, the Complaintnames only one customer. And its identity has alreadybeen disclosed by Defendants in their Opposition andrepeated by Plaintiffs in their Reply. As a result, there isno reason to entertain a motion to seal the identity of acustomer whose name is already a matter of publicrecord. (Savaglio v. Wal–Mart Stores, Inc. (2007) 149Cal.App.4th 588, 601 [where documents are filed in courtbefore motion is granted, right to move for order sealingrecords is waived].)As to the history of Plaintiffs’ relationship with that onecustomer and the status and value of those contracts,Plaintiffs have not shown how such information qualifies asa trade secret. Plaintiffs note that a trade secret is “(1)information (2) which is valuable because unknown toothers and (3) which the owner has attempted to keepsecret.” (ABBA Rubber Co. v. Sequist (1991) 235Cal.App.3d 1, 18.) The Trade Secret Allegations simplyprovide the seemingly generic names of parts thatPlaintiffs bid on and/or build for their customer, the overallduration of the business relationship, and one specific datethat a pricing proposal was submitted. Plaintiffs do notexplain how any of these details, if disclosed, wouldadversely affect Plaintiffs’ business.Second, a “complaint need only allege facts sufficient tostate a cause of action; each evidentiary fact that mighteventually form part of the plaintiff’s proof need not bealleged.” (C.A. v. William S. Hart Union High Sch. Dist.(2012) 53 Cal.4th 861, 872.) In light of the general rulerequiring only ultimate facts to be pled in a complaint, itdoes not appear that Plaintiffs needed to allege thoseportions which they now seek to file under seal in the firstplace. Thus, there is no overriding interest here thatovercomes the right of public access to the record or tosupport sealing portions of the Complaint.Portions of the Complaint re: Purchase PricePlaintiffs allege portions of paragraphs 1 and 19 containconfidential information regarding the purchase price paidPlaintiffs paid to Defendant Michael Burdge in aconfidential transaction. The argument to seal paragraphscontaining an individual’s financial information is moremeritorious, but nonetheless unpersuasive becausePlaintiffs did not need to allege the purchase price in the

http://www.occourts.org/tentativerulings/dmceachenrulings.htmPage 7 of 99/5/2013Complaint at all. (C.A. v. William S. Hart Union High Sch.Dist., supra, 53 Cal.4th at 872.)Notwithstanding the above, Plaintiffs may file an amendedcomplaint which omits any confidential information thatthey do not wish to disclose, and the Complaint filedconditionally under seal on 07/22/13 will be stricken fromthe court records.8. 12-590033 SCALA VS.MORABITO9. 12-585774 VOICE OFORANGE COUNTY.ORGVS. COUNTY OFORANGEDefendants AEC, Trever Burdge, and Robert Joyce areordered to give notice.OFF CALENDAR PER MOVING PARTY.Motion to Issue Peremptory Writ of Mandateand for Declaratory ReliefTo DENY without prejudice. However, once the Countyhas lodged and served its privilege logs, Petitioner mayrenew its motion, but only if the privilege logs show thatthe County still possesses responsive documents which arenot already governed by the criminal court’s 6/24/13protective order.On 6/24/13, the criminal court in People v. Bustamante,Orange County Superior Court Case No. 12CF1964, issueda motion for protective order involving some or all of thesame documents at issue here. The County’s motion inthe criminal case sought to protect the confidentiality ofthe same documents that Petitioners wish the County todisclose in this motion.Accordingly, Petitioners are effectively asking this civildepartment to overrule or reconsider a motion alreadydecided by a criminal department of the same court, isimproper.Assuming this is a motion to reconsider, it is procedurallyimproper for several reasons. First, it was not timelybrought within 10 days after service of written notice ofentry of the original ruling. Second, it was not made tothe same judge or court that made the original order. Andthird, there is no showing of “new or different facts,circumstances, or law.” (CCP 1008 (a).)Assuming Petitioner is asking this court to modify orcontradict the criminal court’s order, then this court has nopower to do so. To the extent this case presentsoverlapping civil and criminal issues, the civil court has nogreater authority to decide those issues than does thecriminal court.Each superior court has GENERAL subject matterjurisdiction, meaning that it can adjudicate any and all

http://www.occourts.org/tentativerulings/dmceachenrulings.htmPage 8 of 99/5/2013cases brought before it, with certain exceptions notapplicable here. While the superior court is divided intovarious departments for administrative convenience, thesedivisions are not jurisdictional because subject matterjurisdiction is vested in the superior court as a whole.(Estate of Bowles (2008) 169 Cal. App. 4 th 684, 695.)The jurisdiction that a judge exercises is vested in thecourt, not in the judge personally. (Leonard Carder LLP v.Patten, Faith & Sandford (2010) 189 Cal. App.4 th 92, 99.)Petitioners argue correctly that “A superior court is but onetribunal, even if it be composed of numerousdepartments . . . . An order made in one departmentduring the progress of a cause can neither be ignored noroverlooked in another department.” (In re Kowalski(1971) 21 Cal. App. 3d 67, 70.)“Courts have broad discretion in controlling the course ofdiscovery.” (Fuller v. Superior Court (2001) 87 Cal. App.4 th 299, 307). When the parties in simultaneous civil andcriminal proceedings assert conflicting rights to obtaindiscovery or maintain confidentiality, the courts mustexercise their discretion in weighing, balancing, andaccommodating the parties’ competing interests. (Ibid.)After carefully considering --(1) the right of the County to maintain theconfidentiality of potentially exempt documents,(2) the right of the District Attorney’s Office to protectthe integrity of an ongoing criminal investigation andprosecution against a public official,(3) the right of the public and the press to investigatethe alleged misconduct and corruption of publicofficials,(4) the right of a criminal accused to a fair trial(disclosure of confidential documents could theoreticallyhurt Bustamante in his criminal case, even though he isnot a defendant in this civil proceeding.)-- this court finds that it has no power to overrule, modify,or reconsider the criminal court’s ruling on the motion forprotective order in the Bustamante case. And evenassuming that this court did have the power to overrulethe criminal court’s ruling, it exercises its discretion not todo so.County to Prepare Privilege LogAccordingly, this civil court may issue a separate rulingonly as to those documents not already covered by thecriminal court’s ruling. Therefore, the County is ordered to

http://www.occourts.org/tentativerulings/dmceachenrulings.htmPage 9 of 99/5/2013prepare two privilege logs detailing specifically: (a) whatresponsive documents are governed by the criminal court’sruling, and (b) what responsive documents, if any, are notgoverned by the criminal court’s protective order.The privilege log shall be consistent with the requirementsset forth in CCP 2031.240 (b) and (c). The information inthe privilege log must be sufficiently specific to enable thecourt to determine whether each withheld document istruly privileged. (Wellpoint Health Network Inc. v.Superior Court (1997) 59 Cal.App.4 th 110, 130; BP AlaskaExploration Inc. v. Superior Court (1988) 199 Cal. App.3d1240, 1249.)Request for Judicial NoticeThe court GRANTS Petitioners’ request to take judicialnotice of the County’s Motion for Protective Order andPetitioners’ Opposition filed in the Bustamante criminalcase.The court GRANTS the County’s request to take judicialnotice of the 6/24/13 minute order in the Bustamantecriminal case.(Evid. Code Section 452 (d); Verreos v. City & County ofSan Francisco (1976) 63 Cal. App.3d 86, 106 – 107.)The County shall lodge its privilege log(s) with the court onor before Friday, Oct. 4, 2013.The County shall serve notice of this ruling, within 5calendar days of the hearing.

http://www.occourts.org/tentativerulings/dmceachenrulings.htmPage 1 of 39/13/2013RULINGS ON LAW & MOTION MATTERSJUDGE DAVID T. McEACHENDEPARTMENT C-21LAW & MOTION IS HEARD ON TUESDAYS AT 1:30 PMPlease read rules carefully. Do not call department unless submitting on the tentative.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings/mceachen.asp by 4:00 pm on Monday. The rulings will also beposted outside the courtroom on the bulletin board for those counsel without internet access, nolater than 10:00 am on the day of the scheduled motion.The Law & Motion hearings are scheduled on Tuesday at 1:30 pm and all arguments will beheard at that time. No supplemental or additional papers will be allowed to be submittedfollowing posting of the ruling on the internet, nor will the Court entertain a request forcontinuance once the ruling has been posted.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for thehearing. If you intend to submit on the tentative and do not want oral argument, please noticethe clerk by calling (657) 622-5221 and the prevailing party will give Notice of Ruling orprepare an Order if appropriate per CRC 3.1312.NOTICE TO COUNSEL: Upon filing a motion, moving party shall provide a copy of thisprocedural notice to opposing counsel. If opposing counsel appears at the scheduled hearingunnecessarily because of moving party’s failure to provide this notice, sanctions may beimposed. Upon posting of ruling prevailing party shall give notice of the ruling. Prevailing partyshall prepare an Order/Judgment for the Court’s signature if the motion is dispositive of a causeof action, a party or the case.The Court requests your cooperation in not calling the clerk or the courtroom assistant forclarification of rulings or additional information. If you are the moving party and do not haveinternet access, you may call the courtroom assistant or clerk after 10:00 am on Tuesday of thescheduled hearing and the ruling will be read to you.LAW AND MOTION FOR SEPTEMBER 17, 20131. 13-630908 FEC OFMESA, LLC VS.RAMESON2. 12-591682KHOSRAVI VS. STATEOF CALIFORNIA3. 13-628169 LABEL OFF CALENDAR PER NOTICE FILED 8/19/13SPECIALTIES, INC. VS.WETTERHUS4. 13-651431 LIMCACO The court OVERRULES Defendants’ demurrer.VS. G4S SECURESOLUTIONS (USA), INC. Seventh Cause of Action for HarassmentThe seventh cause of action for religious harassment issufficiently alleged. A “complaint ordinarily is sufficient if italleges ultimate rather than evidentiary facts.” (Doe v.City of Los Angeles (2007) 42 Cal.4th 531, 550.)Allegations of scope and duration are evidentiary facts.Defendants do not cite to any authority requiring morespecificity in pleading FEHA claims.

http://www.occourts.org/tentativerulings/dmceachenrulings.htmPage 2 of 39/13/2013Eighth Cause of Action for IIEDFor the same reason, the eighth cause of action forintentional infliction of emotional distress is sufficientlyalleged. The FAC alleges that Plaintiff was discriminatedagainst when he was forced to work on Sundays againsthis religious principles; that his work hours were reducedbecause he complained about working on Sundays; andthat he suffered embarrassment, humiliation, mentalanguish, and degradation as a result of Defendants’conduct. These allegations are sufficient to allegeemotional distress. (CACI 1604.)Plaintiff is also correct that the main purpose of theprimary right rule is to prevent splitting a cause of actioninto successive suits. (Hamilton v. Asbestos Corp., Ltd.(2000) 22 Cal. 4th 1127, 1145.) The rule serves toprevent double recovery for the same primary right. ButPlaintiff here is asserting different legal theories in thesame action. This is proper at the pleading stage.Finally, as Plaintiff notes, conduct by an employer that isnot to be normally expected is not preempted by theWorkers Compensation Act. (Hart v. National Mortgageland & Land Co. (1989) 189 Cal.App.3d 1420, 143.)“Neither discrimination nor harassment is a normalincident of employment.” (Nazir v. United Airlines, Inc.(2009) 178 Cal. App. 4th 243, 288.) Defendants have notcited any authority that states that IIED claims based ondiscrimination are preempted by the Act.5. 13-645720 PARK VS.CHOIDefendants to file an answer within 15 days of notice ofthis ruling. Plaintiff shall give notice.Defendants’ Motion for attorneys’ fees and costs for theirAnti-SLAPP motion is granted in the amount of $5073.28as to defendant Helen Choi as representative of decedentdefendant Keun Sook Choi and in the amount of $5073.28as to defendant Helen Choi against plaintiff Peter Park.Defendants to give notice of ruling.6. 11-493706 SEMPASAVS. CHAVEZ7. 06CC11888 THRIFTYPAYLESS INC. VS.MARINERS MILEGATEWAY, LLC8. 12-607285WETTERHUS VS. LABELSPECIALTIES, INC.OFF CALENDAR. NOTICE OF SETTLEMENT FILED8/26/13Plaintiff Bret Wetterhus’s Motion for Leave to File a FirstAmended Complaint is GRANTED. Plaintiff is to separatelyfile the First Amended Complaint by September 20, 2013.Moving party is to give notice.

http://www.occourts.org/tentativerulings/dmceachenrulings.htmPage 3 of 39/13/20139. 13-643409 YEPEZ VS.NORTHGATE GONZALEZMARKETS10. 12-599206 VERDINVS. GRANT WAYNEMILLERDenial of leave to amend is appropriate only wheninexcusable delay and probable prejudice to the opposingparty is shown. (Estate of Murphy vs. Gulf Ins. Co. (1978)82 Cal. App. 3d 304, 311.) Here, a trial date has not beenset, and therefore there is no undue prejudice toDefendants in granting Plaintiff leave to file a FirstAmended Complaint. Thus, this Court GRANTS themotion for leave to file a First Amended Complaint.OFF CALENDAR PER MOVING PARTY.

RULINGS ON LAW & MOTION MATTERSJUDGE DAVID T. McEACHENDEPARTMENT C-21LAW & MOTION IS HEARD ON TUESDAYS AT 1:30 PMPlease read rules carefully. Do not call department unless submitting on the tentative.OBTAINING TENTATIVE RULINGS: All rulings will normally be posted on the internet athttp://www.occourts.org/rulings/mceachen.asp by 4:00 pm on Monday. The rulings will also be posted outsidethe courtroom on the bulletin board for those counsel without internet access, no later than 10:00 am on theday of the scheduled motion.The Law & Motion hearings are scheduled on Tuesday at 1:30 pm and all arguments will be heard at thattime. No supplemental or additional papers will be allowed to be submitted following posting of the ruling onthe internet, nor will the Court entertain a request for continuance once the ruling has been posted.APPEARANCES: The Court will hear oral argument on all matters at the time noticed for the hearing. If youintend to submit on the tentative and do not want oral argument, please notice the clerk by calling (657) 622-5221 and the prevailing party will give Notice of Ruling or prepare an Order if appropriate per CRC 3.1312.NOTICE TO COUNSEL: Upon filing a motion, moving party shall provide a copy of this procedural notice toopposing counsel. If opposing counsel appears at the scheduled hearing unnecessarily because of movingparty’s failure to provide this notice, sanctions may be imposed. Upon posting of ruling prevailing party shallgive notice of the ruling. Prevailing party shall prepare an Order/Judgment for the Court’s signature if themotion is dispositive of a cause of action, a party or the case.The Court requests your cooperation in not calling the clerk or the courtroom assistant for clarification of rulingsor additional information. If you are the moving party and do not have internet access, you may call thecourtroom assistant or clerk after 10:00 am on Tuesday of the scheduled hearing and the ruling will be read toyou.2. 12-591682 KHOSRAVI VS.STATE OF CALIFORNIALAW AND MOTION FOR SEPTEMBER 17, 2013The court denies Defendant’s motion for summary judgment, or inthe alternative, summary adjudication of issues.Evidentiary ObjectionsThe court rules as follows on the parties’ objections.Plaintiff’s Objections: Sustain Objection No. 1.Defendant’s Objections: Sustain Objection Nos. 1, 3, 4, 6-8, 10,11, and 13-17; overrule all others.Motions For Summary Judgment/AdjudicationA defendant moving for summary judgment bears an initial burden ofproducing admissible evidence sufficient to show that the plaintiff’saction has no merit; i.e. that, as to each cause of action, one or moreelements of the cause of action cannot be established or there is acomplete defense. (Code Civ. Proc., Section 437c, subds. (a),(p)(2).) “‘The defendant must demonstrate that under no hypothesisis there a material factual issue requiring trial. [Citation.] If thedefendant does not meet this burden, the motion must bedenied.’” (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826,850.) Only after a defendant meets that burden, does the burdenshift to the plaintiff to produce admissible evidence showing theexistence of a triable issue as to a cause of action or completedefense. (Code Civ. Proc., Section 437c, subds. (a), (p)(2); Hawkinsv. Wilton (2006) 144 Cal.App.4th 936, 940.)Accordingly, a defendant’s motion for summary adjudication cannotbe granted where it does not negate all theories of liability pled by

the plaintiff. (Hawkins v. Wilton, supra, 144 Cal.App.4th at p. 945.)In deciding a summary judgment/adjudication motion, courts apply a3-part test: (1) Identification of the issues framed by the pleadings;(2) Determination of whether the moving party’s showing establishesfacts negating the opposing party’s claim and justifying a judgment infavor of the moving party; and (3) whether the opposing partydemonstrates the existence of a triable issue of material fact. (InterMountain Mortg., Inc. v. Sulimen (2000) 78 Cal.App.4th 1434, 1439.)MeritsA. The motion will be treated as one for summary judgmentonlyCalifornia Rules of Court 3.1350(b) requires that “If summaryadjudication is sought . . . the specific cause of action, affirmativedefense, claims for damages, or issues of duty must be statedspecifically in the notice of motion and repeated verbatim in theseparate statement of undisputed material facts.” (Emphasisadded.) Not only does Defendant’s separate statement fail to repeatthe issues in the notice verbatim in the separate statement,Defendant has broken each cause of action into separate subissues,none of which are outlined in the notice of motion. Thus, this motionwill be treated as a motion for summary judgment only. Accordingly,if Defendant fails to produce admissible evidence sufficient to showthat, as to each of Plaintiff’s causes of action, one or more elementsof the cause of action cannot be established or there is a completedefense (Code Civ. Proc., Section 437c, subds. (a), (p)(2)), themotion will be denied.In addition, the separate statement effectively concedes themateriality of whatever facts are included. (Nazir v. United Airlines,Inc., supra, 178 Cal.App.4th at 252.) Accordingly, if a triable issue israised as to any of the facts in the separate statement, the motion forsummary judgment will be denied for this reason as well.Finally, Defendant objected that Plaintiff’s Opposition SeparateStatement lists additional disputed facts without designation of causeof action or claim. The argument is moot since the court is treatingthis motion as one for summary judgment, in light of Defendant’snoncompliance with the same rules governing separate statements.B. Second through Fourth Causes of Action for Discrimination,Harassment, and Retaliation, Respectively(1) Issues framed by the pleadingsThe second through fourth causes of action in the First AmendedComplaint assert claims against Defendant for discrimination,harassment, and retaliation, respectively, under FEHA (Govt. Code,Section 12940). (First Amended Complaint, paragraphs 15-38.)Defendant’s answer to the First Amended Complaint lists nineteenaffirmative defenses. None of the defenses asserts that Defendant’sconduct is protected by the litigation privilege.(2) Defendant Did Not Meet Its Initial BurdenAs a first attack on the FEHA causes of action, Defendant argues thatits conduct in the prior litigation is not actionable under FEHA for tworeasons: (1) FEHA does not redress grievances about an adversary in

litigation; and (2) Defendant’s conduct in the prior litigation isprotected under the litigation privilege.First, Defendant has not provided authority supporting the conclusionthat discriminatory conduct by an employer against its employee inthe litigation context is excluded from FEHA’s purview. The sole caserelied upon by Defendant states, “[t]he fundamental foundation forliability is the ‘existence of an employment relationship between theone who discriminates . . . and [the person] who finds himself thevictim of that discrimination.” (Fitzsimons v. California EmergencyPhysicians Med. Grp. (2012) 205 Cal.App.4th 1423,1427.) Fitzsimons does not hold that an employer cannot be liableunder FEHA for its actions or inaction in a lawsuit against itsemployee.Second, the litigation privilege is an affirmative defense. (Edwards v.Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 37.) A partycannot prevail on summary judgment on causes of action oraffirmative defenses not pleaded. (Dang v. Smith (2010) 190 Cal.App.4th 646, 664.) Because Defendant did not assert the litigationprivilege as an affirmative defense in its answer, it may not do sonow.As a result, Defendant failed to provide argument and/or evidence toshow either that its conduct relating to the prior litigation ( FirstAmended Complaint, paragraphs 16, 21, 32, subparagraphs (a)-(b),(d)-(f), (h), and (k)-(m)) were not adverse employment actions orthat there was a legitimate nondiscriminatory reason those actions.(3) The Burden Did Not Shift To PlaintiffBecause Defendant’s separate statement did not address a materialfact in the First Amended Complaint, i.e. Defendant’s allegeddiscriminatory conduct regarding the prior litigation, Defendant “didnot assert a prima facie cause of entitlement to a summaryjudgment.” (Teselle v. McLoughlin (2009) 173 Cal. App. 4th 156,160.) Accordingly, the burden did not shift to Plaintiff to presentevidence to demonstrate a triable issue of material fact. (Ibid.; CodeCiv. Proc., Section 437c, subd. (p)(2).)Plaintiff is ordered to give notice.4. 13-651431 LIMCACO VS.G4S SECURE SOLUTIONS(USA), INC.The court OVERRULES Defendants’ demurrer.Seventh Cause of Action for HarassmentThe seventh cause of action for religious harassment is sufficientlyalleged. A “complaint ordinarily is sufficient if it alleges ultimaterather than evidentiary facts.” (Doe v. City of Los Angeles (2007) 42Cal.4th 531, 550.) Allegations of scope and duration are evidentiaryfacts. Defendants do not cite to any authority requiring morespecificity in pleading FEHA claims.Eighth Cause of Action for IIEDFor the same reason, the eighth cause of action for intentionalinfliction of emotional distress is sufficiently alleged. The FirstAmended Complaint alleges that Plaintiff was discriminated againstwhen he was forced to work on Sundays against his religiousprinciples; that his work hours were reduced because he complainedabout working on Sundays; and that he suffered embarrassment,

humiliation, mental anguish, and degradation as a result ofDefendants’ conduct. These allegations are sufficient to allegeemotional distress. (CACI 1604.)Plaintiff is also correct that the main purpose of the primary right ruleis to prevent splitting a cause of action into successivesuits. (Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal. 4th 1127,1145.) The rule serves to prevent double recovery for the sameprimary right. But Plaintiff here is asserting different legal theories inthe same action. This is proper at the pleading stage.Finally, as Plaintiff notes, conduct by an employer that is not to benormally expected is not preempted by the Workers CompensationAct. (Hart v. National Mortgage land & Land Co. (1989) 189Cal.App.3d 1420, 143.) “Neither discrimination nor harassment is anormal incident of employment.” (Nazir v. United Airlines, Inc.(2009) 178 Cal. App. 4th 243, 288.) Defendants have not cited anyauthority that states that IIED claims based on discrimination arepreempted by the Act.5. 13-645720 PARK VS.CHOIDefendants to file an answer within 15 days of notice of thisruling. Plaintiff shall give notice.Defendants’ Motion for attorneys’ fees and costs for their Anti-SLAPPmotion is granted in the amount of $5073.28 as to defendant HelenChoi as representative of decedent defendant Keun Sook Choi and inthe amount of $5073.28 as to defendant Helen Choi against plaintiffPeter Park.Defendants to give notice of ruling.7. 06CC11888 THRIFTYPAYLESS INC. VS.MARINERS MILE GATEWAY,LLCMOTION TO STRIKE OR TAX COSTSDefendants Mariners Miles Gateway LLC and Allied Retail Partners LLCmove to strike or tax the memorandum of costs filed by PlaintiffsThrifty Payless Inc. and Westchester Fire Insurance Company. (CRC3.1700; CCP 664.5.)Memorandum of Costs Timely FiledDefendants argue that Plaintiffs untimely filed their memorandum ofcosts more than 3 months late, because the deadline for filing was 15days from the clerk’s service of a copy of judgment on 4/03/13. Butthe court finds that Plaintiffs timely filed their memorandum of costson 7/25/13. The deadline for filing the memorandum of costs was9/30/13 -- 180 days after the court entered judgment on 4/03/13.Under CCP 664.5 (a), in most contested cases, notice of entry ofjudgment must be served by the party who submits a proposedjudgment. (CCP 664.5 (a); Palmer v. GTE California Inc. (2003) 30Cal.4 th 1265, 1272-1273.) This would typically be the prevailingparty. Here, Mariners represents that Plaintiffs submitted twoproposed judgments on 5/29/13 and 6/28/13, though the court didnot sign or file either one.

It is only where the prevailing party is not represented by counselthat the clerk of the court must serve notice of entry ofjudgment. (CCP 664.5 (b); Alan v. American Honda Motor Co. Inc.(2007) 40 Cal.4 th 894, 900 [dictum – “The clerk is required to givenotice only in designated family law matters (Code Civ. Proc., Section664.5, subd. (a); rule 5.134), in cases in which a prevailing party isnot represented by counsel (Code Civ. Proc., Section 664.5, subd.(b)), and upon specific order of the court (id., Section 664.5, subd.(d).”].) Here, because the prevailing party was represented, it wasthe prevailing party’s duty to serve notice of entry of judgment.Furthermore, the clerk’s service of a copy of the judgment on 4/3/13did not meet the requirements of CCP 664.5, because there was noexpress court order directing the clerk to mail formal of entry ofjudgment under CCP 664.5, nor did the clerk’s certificate of mailingspecify that the copy of the judgment was served “pursuant to CCP664.5” or “upon order of the court.” (CCP 664.5 (d); Van BeurdenIns. Services Inc. v. Customized Worldwide Weather Ins. Agency(1997) 15 Cal.4 th 51, 65.)Because the clerk technically did not serve notice of entry ofjudgment under CCP 664.5, the 15-day time limit of CRC 3.1700(a)(1) is not triggered unless the party who submitted a proposedjudgment served notice of entry of judgment under CCP 664.5.Where neither the clerk nor the prevailing parties have served noticeof entry of judgment under CCP 664.5, then the 180-day limit underCRC 3.1700 (a)(1) applies, and the 180 days runs from entry ofjudgment rather than from notice of entry of judgment. (KimballAvenue v. Franco (2008) 162 Cal. App.4 th 1224.) So the deadline forfiling the memorandum of costs was 180 days from 4/03/13, or9/30/13.Item 12$12,568 for Trial Transcriptsnot ordered by the courtGRANT the motion to strike this cost item.Plaintiffs do not dispute this argument and concedes that CCP 1033.5(b)(5) expressly provides that transcripts of court proceedings notordered by the court are not allowable as costs.

Item 13$2,764 for Parking Fees or Mileage CostsGRANT the motion to strike this cost item.Defendants argue correctly that: “The only travel expensesauthorized by section 1033.5 are those to attend depositions. (CCP1033.5 (a)(3).) Routine expenses for local travel [including parkingfees, cab fares, and mileage/parking fees] by attorneys or other firmemployees are not reasonably necessary to the conduct oflitigation.” (Ladas v. California State Auto. Ass’n (1993) 19Cal.App.4 th 761, 776.) In Opposition, Plaintiffs fail to show that theseexpenses were reasonably necessary to the conduct of the litigation.Plaintiffs (a) shall submit a proposed order awarding them$327,932.71 in costs and (b) shall serve notice of this ruling.8. 12-607285 WETTERHUSVS. LABEL SPECIALTIES,INC.10. 12-599206 VERDIN VS.GRANT WAYNE MILLERPlaintiff Bret Wetterhus’s Motion for Leave to File a First AmendedComplaint is GRANTED. Plaintiff is to separately file the FirstAmended Complaint by September 20, 2013. Moving party is to givenotice.Denial of leave to amend is appropriate only when inexcusable delayand probable prejudice to the opposing party is shown. (Estate ofMurphy vs. Gulf Ins. Co. (1978) 82 Cal. App. 3d 304, 311.) Here, atrial date has not been set, and therefore there is no undue prejudiceto Defendants in granting Plaintiff leave to file a First AmendedComplaint. Thus, this Court GRANTS the motion for leave to file aFirst Amended Complaint.1. Plaintiffs’ motion to compel deposition of DefendantSafeco’s person(s) most qualified to testify and documentcomplianceThe court (1) grants the motion to compel attendance of Defendant’sperson(s) most qualified to testify at deposition; (2) orders thenamed counsel of record for Plaintiffs and Defendant Safeco toappear in person at the hearing to meet and confer in personregarding the document categories; and (3) declines to rule on thesanctions request until after the parties’ counsel have met andconferred.Deposition Location“The deposition of an organization that is a party to the action shallbe taken at a place that is, at the option of the party giving notice ofthe deposition, either within 75 miles of the organization’s principalexecutive or business office in California, or within the county wherethe action is pending and within 150 miles of that office.” (Code Civ.Proc., Section 2025.250, subd. (b).)“If an organization has not designated a principal executive orbusiness office in California, the deposition shall be taken at a placethat is, at the option of the party giving notice of the deposition,either within the county where the action is pending, or within 75miles of any executive or business office in California of the

organization.” (Code Civ. Proc., Section 2025.250, subd. (d).)Because Defendant argues it is an “open question” whether an outof-statedesignated agent may be required to appear for an entitydeposition, it concedes that there is no authority addressing theapplicability of Code Civ. Proc., Section 1989 to Code Civ. Proc.,Section 2025.250. In addition, although defense counsel declaresthat Defendant’s Aliso Viejo office is a sales office and not anexecutive or business office, missing is any declaration from anofficer or director of Defendant attesting to this important fact. Forthese reasons, Code Civ. Proc., Section 2025.250 applies, andPlaintiffs may hold the deposition in Tustin, which is within the countywhere this action is pending and within 75 miles of Defendant’s AlisoViejo office. (Code Civ. Proc., Section 2025.250, subd. (d).)The deposition will take place at the Tustin office of Plaintiffs’ counsel,or at such other location as the parties may agree in writing. Thedeposition will take commence on a date within 20 days after thedate on which notice of this ruling is served, or on such other date asthe parties may agree in writing.Document CategoriesNeither party made a good faith attempt to resolve the disputeregarding the document categories. Although Plaintiffs’ counsel sentan email addressing Defendant’s boilerplate objections, they made noeffort to address the individual document categories until the filing oftheir separate statement in support of this motion. And it is clearfrom defense counsel’s abbreviated response that he made no effortto defend his boilerplate objections.The court may “specify additional efforts which will be required beforethe court will turn to the merits of the discovery dispute.” (Obregonv. Superior Court (1998) 67 Cal. App.4th 424, 434-435.) Accordingly, Mr. York and either Mr. Donahoo or Ms. Kokonasare to appear in person at the hearing to meet and confer regardingthese document categories.SanctionsIn light of the parties’ failure to adequately meet and confer, thecourt will not rule on the sanctions request until after counsel hasappeared in person to satisfy their obligation to attempt informationresolution of the issues in dispute.2. Plaintiffs’ motions re: written discovery propounded onDefendant SafecoThe court (1) grants the motion as to form interrogatories andspecial interrogatories; (2) will grant the motion as to RFAs unlessDefendant Safeco serves responses before the hearing; (3) orderscounsel to appear at the hearing to meet and confer in personregarding the RFPs; (4) grants sanctions of $1,535 in favor ofPlaintiffs and against Defendant; and (4) orders Plaintiffs to pay$180 in additional motion filing fees or show proof of prior paymentof said fees.Payment Of Motion FeesAs a preliminary matter, Plaintiffs have filed four separate discoverymotions in one. The court record reflects that Plaintiff has paid only

one filing fee. Plaintiffs are ordered to pay $180 for three additionalmotion filing fees within 5 days of the hearing or show proof of priorpayment of said fees.Interrogatories and Request for AdmissionsPlaintiffs have shown the discovery was properly served onDefendant; that the time to respond has expired; and that responseshave not been served as of the filing of the motion. Plaintiffs are notrequired to first attempt to informally resolve the matter when noresponses have been served. Although Defendant contends thatresponses will be served before the hearing, no such responses havebeen filed as of 09/10/13. Objections are waived. (Code Civ. Proc.,Sections 2030.290(a); 2033.280 [RFAs].)Defendant is to provide verified responses without objection toPlaintiffs’ first sets of Form Interrogatories and SpecialInterrogatories.The Request For Admissions will be deemed admitted, unlessDefendant serves Plaintiffs with responses before the hearing on themotion. (Code Civ. Proc., Section 2033.280(c).)RFPsTo show a good faith attempt to meet and confer regarding theseRequest For Productions, Plaintiffs point to the same 07/19/13 emailsent to Defendant’s counsel in support of meet-and-confer efforts onthe first motion. ( Ex. C to Kokonas Decl. ISO Motion 2 and Ex. C toKokonas Decl. ISO Motion 1.) Thus, for the same reasons stated inMotion 1, it is apparent that neither party made a good faith attemptto resolve the dispute regarding the Request ForProductions. Accordingly, the parties’ counsel are to appear in personat the hearing to meet and confer regarding these Request ForProductions. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424,434-435.)In light of the parties’ failure to adequately meet and confer, thecourt will not rule on the sanctions request until after counsel hasappeared in person to satisfy their obligation to attempt informationresolution of the issues in dispute.Sanctions re: Interrogatories and Request For AdmissionsMonetary sanctions are mandatory for Defendant’s failure to respondtimely to the interrogatories and Request For Admissions. (Code Civ.Proc., Sections 2023.010(d) [conduct subject to sanctions]; 2030.290[interrogatories]; 2033.280 [Request For Admissions].)The court grants Plaintiffs’ request for monetary sanctions againstDefendant and its counsel of record, jointly and severally, in theamount of $1,535, to be paid within 30 days after the date on whichnotice of this order is served.3. Plaintiffs’ motions to compel third party Slater Builders,Inc. to comply with deposition subpoenaThe court denies the motion.As noted by third party Slater Builders, Inc., “[a] written notice and

all moving papers supporting a motion to compel an answer to adeposition question or to compel production of a document ortangible thing from a nonparty deponent must be personallyserved on the nonparty deponent unless the nonpartydeponent agrees to accept service by mail at an addressspecified on the deposition record.” (Cal. Rules of Court, rule3.1346.) This motion was not personally served on Slater. And thereis no written agreement for Slater’s counsel to accept service or forservice by mail.Plaintiffs respond that Slater waived the requirement of personalservice by virtue of its counsel’s representations to the parties andthe court that he is counsel of record for Slater in this matter. First,attorney Michael York served objections to the subpoena on behalf ofSlater. Second, at the 08/06/13 ex parte hearing in this matter, Yorkagreed that the hearing date on any motion by Plaintiffs would goforward on 09/10/13. Third, York met and conferred with Plaintiffs’counsel regarding the subject subpoena. Fourth, York filed an exparte application to continue this and other discovery motions to09/17/13. Fifth, York filed an opposition to this motion on behalf ofSlater.Despite Plaintiffs’ argument, this motion was not properly served onSlater. As Slater notes, the proof of service on this motion does notshow any service on Slater, albeit service was made on York ascounsel for Defendant Safeco. No waiver can be found based onPlaintiffs’ first, third, and fifth arguments above. If waiver werefound, then every third party deponent would be forced to waive theright to personal service whenever he, she, or it retained an attorneyto represent his, her, or its interests in responding to asubpoena. This cannot be the case. With respect to the second andfourth arguments, the court minutes do not reflect any appearance atthose hearings on behalf of Slater. Nor did York file any pleadings onbehalf of Slater before the instant opposition. For these reasons, thefacts do not support a finding of waiver.Plaintiffs are ordered to give notice.

2. 12-608826CHEN VS. IRVINE RANCHWATER DISTRICTPlaintiff’s Objections to Evidence in support of defendant’sMotion for Summary Judgment are SUSTAINED in theirentirety.Defendant’s Request for Judicial Notice is GRANTED in partand DENIED in part. The Court will take judicial notice ofItems 1, 3, and 4. It will not take judicial notice of Item 2.Defendant’s Objections to Evidence in support of theOpposition to the Motion for Summary Judgment areOVERRULED in their entirety.Defendant Irvine Ranch Water District’s Motion for SummaryJudgment is DENIED. Defendants have not met their burdenof showing that one or more elements of Chen’s cause ofaction can’t be established. Defendant has not shown thatChen cannot establish a dangerous condition of theproperty. CCP Section437c(p)(2)Even had defendant had met its burden, plaintiff has shown atriable issue of material fact. Defendant’s Separate Statementof Material Undisputed Facts, Nos 9 – 12, and evidence inopposition thereto; Plaintiff’s Disputed Fact, Nos. A – R.Standard for Summary Judgment/AdjudicationAs a defendant moving for summary judgment, IRWD has the initialburden of persuasion under CCP 437c(p)(2). It must either point toChen’s factually devoid discovery responses or show he cannot makeout an essential element of his COA. Once IRWD meets this burden,the burden shifts to Chen to offer sufficient evidence from which areasonable trier of fact could find in his favor. Saelzler v. AdvancedGroup (2001) 25 Cal.4 th 763 and Aguilar v. Atlantic Richfield Co.(2001) 25 Cal.4 th 826. If IRWD never meets its initial burden, Chenhas no obligation to file declarations of his own to defeat the motionby establishing a triable issue of material fact.Has IRWD met its burden? No.Can this Court decide whether a dangerous condition existedas a matter of law? No.As will be seen below, there are CACI instructions concerning a

“dangerous condition.” This alone suggests that the issue is not onethat the Court must decide as a matter of law. The cases say it may,depending upon the evidence. In the context of deciding whether a“given condition of public property is minor or insignificant as amatter of law” is determined as follows:In Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734 [139Cal.Rptr. 876] (Fielder), the court set forth a number of factors to beconsidered when a court makes a determination of whether a givencondition of public property is minor or insignificant as a matter oflaw. The court should consider both the physical description of thecondition, and “whether there existed any circumstances surroundingthe accident which might have rendered the defect more dangerousthan its mere abstract [description] would indicate.” (Ibid.) Whereappropriate, the court should consider not only the intrinsic natureand quality of the condition, but also other factors such as the timeand place of the occurrence. (Ibid.) “Furthermore, the court shouldsee if there is any evidence that other persons have been injured onthis same defect.” (Ibid.)Sambrano, vs. City of San Diego (2001) 94 Cal. App 4 th 225, 234Here, to the extent IRWD’s evidence addresses these factors, it isincomplete.IRWD’s evidence is deficientThis Motion is based entirely on the argument that Chen can’testablish liability under Government Code Section 835, which saysSection 835. Conditions of liabilityExcept as provided by statute, a public entity is liable for injurycaused by a dangerous condition of its property if the plaintiffestablishes that the property was in a dangerous condition at thetime of the injury, that the injury was proximately caused by thedangerous condition, that the dangerous condition created areasonably foreseeable risk of the kind of injury which was incurred,and that either:(a) A negligent or wrongful act or omission of an employee of thepublic entity within the scope of his employment created the

dangerous condition; or(b) The public entity had actual or constructive notice of thedangerous condition under Section 835.2 a sufficient time prior to theinjury to have taken measures to protect against the dangerouscondition.CACI 1100, stating the essential elements of a claim for dangerouscondition of public property, tracks this statutory language.CACI 1102 defines “dangerous condition” for purposes of a claimunder Government Code Section 835:1102 Definition of “Dangerous Condition” (Gov. Code, Section830(a))A “dangerous condition” is a condition of public property that createsa substantial risk of injury to members of the general public when theproperty [or adjacent property] is used with reasonable care and in areasonably foreseeable manner. A condition that creates only a minorrisk of injury is not a dangerous condition. [Whether the property isin a dangerous condition is to be determined without regard towhether [[name of plaintiff]/ [or] [name of third party]] exercised orfailed to exercise reasonable care in [his/her] use of the property.]As to the last sentence, the Directions for Use says this:Give the last sentence if comparative fault is at issue. It clarifies thatcomparative fault does not negate the possible existence of adangerous condition. (Fredette v. City of Long Beach (1986) 187Cal.App.3d 122, 131 [231 Cal. Rptr. 598].)So, based on the statute and these instructions, to succeed on thisMotion, IRWD must show there was no substantial risk of injury toChen when the property, including the gate, was used withreasonable care and in a reasonably foreseeable manner. It has notdone so.IRWD has offered no evidence showing what Chen would have seenat the time of the impact. Evidence it does offer shows that the gateis designed with a long section of the end of the gate that swingsopen that is a single, tube of metal. Attorney Roman Declaration, Ex.D. It is this tubular end that pierced the windshield of Chen’s

truck. Attorney Roman Declaration, Exs. E - G. Although the gateappears to be painted blue in Ex. D, in Exs. E - G it appears to bepainted white and could easily blend in with the roadway orsurrounding areas. Further, there are no photographs taken fromChen’s vantage point in the truck. What should he have seen? Theanswer to this question of whether there was a substantial risk ofinjury.As stated in CACI 1102, Chen’s negligence does not negate IRWD’sduty to operate its property without dangerous conditions. As statedin Fredette, supra, at p. 131:The negligence of a plaintiff-user of public property, therefore, is adefense which may be asserted by a public entity; it has no bearingupon the determination of a “dangerous condition” in the firstinstance. (Callahan v. City and County of San Francisco (1967) 249Cal.App.2d 696, 702-703 [57 Cal.Rptr. 639]; Van Alstyne, Cal.Government Tort Liability Practice (Cont.Ed.Bar 1980) § 3.12, pp.198-201.) (5b)So long as a plaintiff-user can establish that acondition of the property creates a substantial risk to any foreseeableuser of the public property who uses it with due care, he hassuccessfully alleged the existence of a dangerous condition regardlessof his personal lack of due care. If, however, it can be shown that theproperty is safe when used with due care and that a risk of harm iscreated only when foreseeable users fail to exercise due care, thensuch property is not “dangerous” within the meaning of section 830,subdivision (a). (Fuller v. State of California (1975) 51 Cal.App.3d926, 939-940 [125 Cal.Rptr. 586].)Looking at the photos, that particular gate when it swings into theroadway can be a dangerous condition. IRWD has not shown that therisk of harm is created only when a user of the road doesn’t exercisedue care, and, honestly, it doesn’t seem that it can. All the evidenceof speed, location, and so forth does not go to the question ofdangerous condition under the facts of this case.For these reasons, it has not met its burden of proof.Has Chen shown a trible issue of material fact? Yes.Even if IRWD had met its burden, Chen has shown a triable issue ofmaterial fact on the element of dangerous condition.The strongest evidence on the issue of dangerous condition is found

in the Declaration of Forensic Engineer [expert] Mark Burns andplaintiff Chen. Burns says the roadway was in a dangerous conditionat the time of the incident, explaining why. Burns Declaration,paragraph 8. He says Chen was operating his truck in a reasonablemanner with due care at the time of the incident. Paragraph9. Finally, he opines that IRWD’s employee, Costantino, created orsubstantially contributed to the dangerous condition by not securingthe gate to the receiving post after he opened it so that it couldn’tswing back into the roadway, even though he knew it could do so.Paragraph 10. In his Declaration, Chen says the gate was alreadyopen when he arrived. Paragraph 4. As he was driving down theroad to leave the property, he didn’t know the gate had swung backinto the roadway. Paragraph 6. He says the gate was white.Paragraph 8. He didn’t see it before it impaled his windshield, andstates the reasons he thinks this was the case. Paragraph 9. Thisevidence is sufficient to show a triable issue of material fact.4. 13-661398COAST SOUTHWEST, INC. ACALIFORNIA CORPORATIONVS. PATNODE1. Defendant’s demurrer to the 3 rd and 4 th causes of actions isSUSTAINED without leave as to the internet postings. Assumingeven that the claims are not barred by the statute of limitations, theCareerBliss posting is no more than opinions offered in response tospecific questions. Although unquestionably negative, it representsdefendant’s personal beliefs and includes no facts subject to proof.Plaintiff’s strained interpretation of the LinkedIn posting and use ofselective citations in support of a libel per se theory connected toplaintiffs’ alleged unchaste behavior and then extended to potentialemployees’ fear of same-sex sexual harassment simply cannot besaved by amendment. The remaining allegation in paragraph twentymay support these causes of action, if amended. Plaintiff has 10days to amend as to this theory of defamation only.5. 10-364382GORR VS. UNIVERSALINTERACTIVE, LLC2. The motion to strike is MOOT.Cross-Defendants Universal Interactive LLC, Universal InteractiveLicensing LLC, and Joel Shamitoff’s Demurrer to the Cross-Complaintis construed as a Motion to Strike the Cross-Complaint.“The proposition that a trial court may construe a motion bearing onelabel as a different type of motion is one that has existed for manydecades. ‘The nature of a motion is determined by the nature of therelief sought, not by the label attached to it. The law is not a meregame of words.’” (Sole Energy Co. v. Petrominerals Corp. (2005) 128Cal. App. 4th 187, 193.) The Court therefore construes the Demurreras a Motion to Strike.The Cross-Complaint filed by Gorr in the 2 nd Action (Case No. 10-397074) is exactly the same as the Second Amended Complaint filedby Gorr in the 1 st Action (Case No. 10-364382). Thus, the Cross-Complaint is “irrelevant, false, or improper” to the extent that it isrepetitive and superfluous of the Second Amended Complaint. Cross-Complainant may not circumvent the Court’s ruling with respect tothe pleadings filed in the 1 st Action by filing the exact same pleadingin the 2 nd Action.Therefore, the Court STRIKES the Cross-Complaint filed in the 2 ndAction.

Moving parties are to give notice.6. 13-647354GRANITE SERVICES LLC VS.RIMEL1. DEMURRER TO ORIGINAL COMPLAINTDefendant PETER J. RIMEL demurs to all 4 causes of action in theOriginal Complaint of Plaintiff GRANITE SERVICES LLC. The courtOVERRULES the demurrer on all of the grounds that Rimel raises asto all 4 causes of action.The court DENIES in part and GRANTS in part with leave to amendDefendant Rimel’s motion to strike.I. Judicial NoticeDefendant Rimel asks the court to take judicial notice of Exhibits A –C, attached to his demurrer. The court DENIES this request for 3reasons --A. No DeclarationFirst, Rimel fails to submit a declaration that separately identifies andauthenticates each document.Rimel attempts to identify some of the documents in his demurrerand memo of points and authorities. But the descriptions areincomplete and inadequate. For example, it is unclear of how manypages each document consists.Furthermore, statements made by counsel in the demurrer andmemo of points and authorities are not evidence because they arenot expressly subscribed “under penalty of perjury of Californialaw.” (CCP 2015.5; Kulshrestha v. First Union Commercial Corp.(2004) 33 Cal.4th 601.)“The only evidence the trial court should have considered and whichwe may consider here is that contained in the declarations filed insupport of and in opposition to the motion. The matters set forth inthe unverified ‘Statement of Facts’ and in memoranda of points andauthorities are not evidence and cannot provide the basis for thegranting of the motion.” (Smith, Smith & Kring v. Superior Court(1997) 60 Cal.App.4th 573, 578.)“It hardly bears mentioning that argument of counsel is neither adeclaration nor admissible as evidence in court.” (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1518.)B. Exhibits Confusing

Second, the Exhibits are very confusing because many blank pagesare interposed, several pages are illegible, and several exhibitsconsist of multiple documents that are not separately identified.C. Facts Asserted in Documents Not Judicially NoticeableThird, even if the court were to take judicial notice that, for example,Exhibit A was a complaint that Stephen Maready sent to the State Barregarding misconduct by attorney Peter J. Rimel, the court still couldnot have taken judicial notice of the truth of any facts assertedtherein, to the extent such facts are reasonably subject to dispute.A court may take judicial notice only of facts not reasonably open todispute – for example – that Costa Mesa is a city in Orange County,California; or that George Washington was the first president of theUnited States. (Evid. Code 451 (f); 452 (g), (h).) But whetherattorney Rimel did or did not engage in misconduct amounting to abreach of contract is a fact reasonably open to dispute.Had Rimel filed a proper declaration and properly identified thedocuments, the court could have taken judicial notice that Mareadysubmitted a complaint to the State Bar. But the court COULD NOThave taken judicial notice of the truth of facts alleged in Maready’scomplaint. (Fontenot v. Wells Fargo Bank N.A. (2011) 198Cal.App.4 th 256, 265.)“A court may take judicial notice of the fact of a document’srecordation, the date the document was recorded and executed, theparties to the transaction reflected in a recorded document, and thedocument’s legally operative language, assuming there is no genuinedispute regarding the document’s authenticity. From this, the courtmay deduce and rely upon the legal effect of the recorded document,when that effect is clear from its face.” (Ibid.)But a court may not take judicial notice of the truth of factualrepresentations, made in the recorded document, that are reasonablyopen to dispute. (Ibid.)II. Plaintiff Sued Wrong Defendant; Uncertain and AmbiguousOVERRULE.First, Defendant Rimel merely asserts, in conclusory fashion, thatPlaintiff has sued the wrong defendant. But he fails to raise anycoherent argument or cite any evidence to support this assertion.

Rimel argues that the Complaint in this case and Maready’s complaintto the State Bar are nearly identical, except that Maready filed theState Bar complaint against Rimel as an attorney and Granite filedthis Complaint against Rimel as an individual.This argument fails because the court did not take judicial notice ofthe State Bar complaint. Even if this court were to take judicialnotice of it, the State Bar complaint does not show that Plaintiff issuing the wrong defendant. Rimel fails to cite any case law insupport of his dubious argument.Second, Rimel also asserts that the Complaint is vague andambiguous, because it is impossible to tell who was allegedlyaggrieved and who was allegedly liable. But this argument failsbecause the Complaint clearly alleges its claims and the parties’roles.Third, Rimel asserts that his law office is a necessary party. But hecites no legal authority in support of this assertion.III.Rimel, as an Individual, Owed Granite No Duty of CareOVERRULE --as to the 1 st cause of action for Negligence.The Complaint alleges that “Granite wired the requisite fee to the LawOffices of Mr. Peter J. Rimel in care of his firm’s trust account.” Rimelargues that he, as an individual, owed no duty of care to Granite,because Granite wired the money to his law office, not to him as anindividual. On this ground, Granite demurs to the 1 st cause of actionfor Negligence.But this argument fails because there is no evidence before the courtthat Rimel’s law office is a separate legal entity under Californialaw. No such allegation appears on the face of the Complaint andRimel presents no judicially noticeable evidence to prove that his lawoffice is a legal entity separate and distinct from him as an individual.IV.Rimel Owed Granite No Contractual or Fiduciary Duty

OVERRULE –as to the 2 nd and 3 rd causes of action for Breach of Contract andBreach of Fiduciary Duty.Defendant Rimel notes correctly that the Complaint contains noallegations that he entered into any oral or written contract directlywith Granite. So Rimel argues that he owed no contractual orfiduciary duty to Granite. And Rimel concludes that the 2 nd and 3 rdcauses of action therefore fail to state claims against him.But this argument fails because the Complaint alleges that (i) Rimelwas a party to both the first and second Account ServicesAgreements, and that (ii) Rimel was named as the Escrow Agent forthe transaction, with the responsibility to verify “that the account isset up authentically and correctly.” It is well-established that as ageneral rule, “[a]n escrow holder is an agent and fiduciary of theparties to the escrow.” (Summit Financial Holdings Ltd. v.Continental Lawyers Title Co. (2002) 27 Cal.4 th 705, 711.)Rimel argues correctly that there is no clear allegation in theComplaint that he was an employee of Granite. But that argument isirrelevant because, as noted in the paragraph above, a contractualduty is alleged.V. 4 th Cause of Action Fails to Properly Allege ConversionOVERRULE –as to the 4 th cause of action for Conversion.First, Rimel argues that the Complaint, prior to paragraph 27, doesnot allege that he converted anything. But this argument isirrelevant because paragraph 27 does allege that he converted thecash service fee.Second, Rimel ask the court to take judicial notice of page 2 ofExhibit D. But the court DENIES the request for the reasons set forthin section I above.Third, Rimel argues that neither he as an individual, nor he as alawyer, nor his law office ever saw or signed the Account ServiceAgreements. But this factual allegation does not appear on the faceof the Complaint, nor may the court take judicial notice of such a

fact, which is reasonably subject to dispute.On a demurrer, the court must accept as true the allegations of theComplaint, no matter how unlikely or improbable. (Del E. WebbCorp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593,604.) And here the Complaint alleges that Rimel was a party to theService Agreements and owed a contractual and fiduciary duty toGranite.Finally, the 4 th cause of action does appear to properly allege theelements of conversion. (CACI 2100.)2. MOTION TO STRIKEA. Attorney’s FeesGRANT with leave to amend.Defendant argues correctly that the Complaint fails to allege astatutory, contractual, or equitable basis for recovery of attorney’sfees. Plaintiff may not seek attorney's fees unless it properlyalleges a contractual, statutory, or equitable basistherefor. (Summers v. Newman (1999) 20 Cal.4th 1021, 1031; Civ.Code, § 1717 (a).In its Complaint, Plaintiff cites no applicable statute. And Plaintiff hasnot properly pled the existence of a contractual term awardingattorney’s fees. Plaintiff has not attached a copy of thecontract. Though Plaintiff appears to have pled some essential termsverbatim and to have pled some essential terms by their effect. ButPlaintiff has not pled the terms of the attorney’s fees provision, ifany.In the Complaint, Plaintiff refers to the 1 st Account ServicesAgreement at Exhibit A, but there is no such exhibit attached to thescanned copy of the Complaint. Plaintiff also refers to the 2 ndAccount Services Agreement, but no copy is attached to theComplaint.The plaintiff has the option of pleading the contract terms verbatim,attaching a copy of it, or pleading its legal intendment andeffect. (Wise v. Southern Pacific Co. (1963)223 Cal.App.2d 50, 59 [“As to the contract, where a writteninstrument is the foundation of a cause of action, it may be pleadedin haec verba by attaching a copy as an exhibit and incorporating itby proper reference.”]; Scolinos v. Kolts (1995) 37 Cal.App.4th 635,640, 44 Cal.Rptr.2d 31, 34 [“A contract should be pleaded either in

haec verba or according to its legal intendment and effect.”].)“A written contract is usually pleaded by alleging its making and thensetting it out verbatim (‘in haec verba’) in the body of the complaintor as a copy attached and incorporated by reference.” (4 Witkin,California Procedure [4th ed. 1997 & 2001 Supp.], Pleadings § 479,p. 572.)“The other method of pleading a written contract is according to itslegal effect, by alleging the making, and then proceeding to allegethe substance of its relevant terms. That a contract may be pleadedin its legal effect and need not be set forth in haec verba isthoroughly settled.” (Pneucrete Corp. v. United States Fidelity &Guaranty Co. (1935) 7 Cal.App.2d 733, 741-742.)B. Punitive DamagesDENY.Defendant argues correctly that it is unclear under which causes ofaction Plaintiff is seeking punitive damages. Defendant arguescorrectly that a breach of contract claim will not support an award ofpunitive damages.The motion to strike is DENIED because Plaintiff’s 4 th cause of actionfor conversion is a tort claim which presumably would supportrecovery of punitive damages.But in his amended pleading, Plaintiff must specify under whichcauses of action he is seeking punitive damages.C. Duplicative ArgumentsDENY.The rest of Defendant’s arguments fail for two reasons. First, theyare not proper arguments on a motion to strike. Second, they areduplicative of arguments that Defendant already raises in support ofhis demurrer. So they are addressed above in sections I – V.

D. Statute of LimitationsDENY. The court need not consider this argument because it is not aproper ground for a motion to strike. The argument must be raisedon a general demurrer. (Saliter vs. Pierce Bros. Mortuaries (1978) 81Cal. App. 3d 292, 300.)Even if the court were to consider the argument, the court would stillDENY it, because the facts alleged on the face of the Complaint donot “clearly and affirmatively” show that the claims are NECESSARILYtime-barred by the statute of limitations. It is not enough that theclaims MIGHT be barred. (Marshall vs. Gibson, Dunn & Crutcher(1995) 37 Cal. App. 4 th 1397, 1403.)Defendant argues that it is Plaintiff’s burden to plead essentialdates. But he cites no authority to prove his assertion that Plaintiff isrequired by law to allege dates as an essential element of each of hiscauses of action.On the contrary, dates are not essential elements for a cause ofaction for breach of contract. CACI4100-4107, which relate to certaintypes of claims for breach of fiduciary duty, do not specify that datesof breach are essential elements of the cause of action. SoDefendant fails to carry its burden to prove that.Defendant’s remedy is to serve discovery to obtain more specificdates and information about the alleged breaches, raise the statute oflimitations as an affirmative defense in its answer, and then bring amotion for summary judgment on the ground that the claims aretime-barred.(United Western Medical Centers vs. Superior Court(1996) 42 Cal. App. 4 th 500, 505, citing Carbide.On or before October 8, 2013, Plaintiff may file a First AmendedComplaint that corrects the defects noted above. All new allegationstherein shall be set forth in boldfact type.Plaintiff shall serve notice of this ruling.8. 12-600786 MAHAFFEY VS.BERGER KAHNThe Court DENIES defendant’s motion for $66,290 in attorney feessought pursuant to CCP 425.16(c) and awards the reasonable sum of$22,500 to defendant. This sum represents 60 hours at the blendedhourly rate of $375, which the Court views as very appropriate inlight of the facts in this matter.This matter involved no complex issues and required only themost basic analysis

This action alleged a single claim for malicious prosecution. Becausethe underlying litigation automatically satisfied the first elementnecessary to succeed on an anti-SLAPP motion it required minimalresearch. For purposes of the anti-SLAPP Act, “[E]very claim ofmalicious prosecution is a cause of action arising from protectedactivity because every such claim necessarily depends upon writtenand oral statements in a prior judicial proceeding. [Citation.]”(Daniels v. Robbins (2010) 182 Cal. App. 4th 204, 215.)Accordingly, defendant need then only determine whether plaintiffhad established that it was likely that he would prevail.Defendant, nevertheless, characterizes this matter as involving “amultiplicity of complex facts and legal issues,” apparently becausethere were two preceding actions and two appeals. The motionthereby necessitated intensive review and analysis of those matters,with one proceeding generating 145 boxes of documents. Defendantposits that the hours are demonstrably reasonable, as the litigationwas divided into separate stages. Defendant also asserts additionaleffort was necessitated by plaintiff’s various misstatements. TheCourt does not share this view.“To establish a cause of action for the malicious prosecution of a civilproceeding, a plaintiff must plead and prove that the prior action (1)was commenced by or at the direction of the defendant and waspursued to a legal termination in his, plaintiff's, favor; (2) wasbrought without probable cause; and (3) was initiated with malice.”(Crowley v. Katleman (1994) 8 Cal.4 th 666, 676.)As this court noted in its ruling, the jury’s special verdict included afinding that Mahaffey had breached his fiduciary duties to his clientsto pay appeal costs, to provide a proper accounting and by making aCCP 998 offer without their authorization. Although the net recoverywas in favor of Mahaffey and the trial court ultimately decided theaccounting issue, the jury did find that Mahaffey had engaged inmalpractice. These specific findings—that Mahaffey breached dutiesowed to his clients—thus established that the malpractice suit wouldnot have been viewed by a reasonable attorney as completely lackingin merit. Accordingly, the jury verdict is conclusive as to both the firstand second factors.Again, as discussed by the Court in its ruling, in support of his maliceallegations, Mahaffey cited to evidence submitted at trial. The Courtand the jury had full opportunity to consider this evidence and theanti-SLAPP motion did not require this Court to retry the disputesrelated to that evidence. It is the outcome of the case, i.e., the legaldetermination that, in some instances Mahaffey was in breach, whichestablished the absence of malice.The cases cited by defendant do not support the extraordinaryfees claimed, the number of hours expended, or the motionitselfBy way of example, despite the nearly 82 hours expended inresearching and preparing the motion, Berger Kahn mistakenlycontended that denial of non-suit as to particular malpractice issuesin the underlying matter precluded a malicious prosecutionaction. Not so. In Wilson v. Parker (2002) 28 Cal.4 th 811, 824, thecourt actually distinguished between the two applicable standards—whether a claim is arguably tenable (standard for malicious

prosecution) or whether it is likely meritorious (standard for CCP425.16).The Wilson court cites to Lucchesi v.Giannini (1984) 158 Cal.App.3d777, which found: “[E]ven when the denial [of summary judgment]is based on the first ground that a material issue of fact does exist,this procedure still falls short of a hearing on the merits.” [Citations]The decision goes on to hold, as well, that denial of a nonsuit motiondoes not establish probable cause because a nonsuit must be denied“if there is any substantial evidence tending to prove all thecontroverted facts necessary to establish the plaintiff's case,” aconclusion that, like denial of summary judgment, is “not adetermination on the merits.” [Ibid]This latter part of Lucchesi's reasoning has been undermined by thiscourt's subsequent decision in Sheldon Appel. As discussed above,our decision in that case clarified that probable cause to bring anaction does not depend upon it being meritorious, as such, but uponit being arguably tenable, i.e., not so completely lacking in apparentmerit that no reasonable attorney would have thought the claimtenable.” It is apparent that the Wilson court did not hold, asdefendant urges, that a denial of a non-suit bars all claims formalicious prosecution. This misinterpretation, for whatever reason, isone example of the difficulty in reconciling the expertise claimed andthe extraordinary number of hours expended with the motion itself.The Court further observes that the cases cited by defendant do notinclude any complaints for malicious prosecution and are applicableonly in the remote sense that the trial court’s fee award was notdisturbed. In Ketchum v. Moses (2001) 24 Cal.4 th 1122 thecomplicated matter involved “years of contentious litigation andprolonged delays,” including a full evidentiary hearing, includingexperts to determine the fee award. The Ketchum court,nevertheless, cited to Serrano v. Priest (1977) 20 Cal.3d 25, statingthat that “In referring to “ reasonable” compensation, we indicatedthat trial courts must carefully review attorney documentation ofhours expended; “padding” in the form of inefficient or duplicativeefforts is not subject to compensation.” The Ketchum court furthernoted: “To the extent a trial court is concerned that a particularaward is excessive, it has broad discretion to adjust the feedownward or deny an unreasonable fee altogether.’”Again, Rosenaur v. Scherer (2001) 88 Cal.App.4th 260 isdistinguishable as it involved multiple defamation claims, publicfigures, recklessness, property recordation and publicationdisputes. In Bernardo v. Planned Parenthood Federation (2004) 115Cal.App.4 th 322, the losing plaintiff did not appeal the attorney fee atall. In its 43-page opinion the court instead addressed plaintiff’sConstitutional challenges to the application of CCP 425.16 to hercomplaint, which included the trial court’s ability to award attorneyfees, characterized by Bernardo, as “draconian penalties.”Because the trial court is in the best position to assess thedifficulty of the case, the level of skill required and thereasonableness of the hours expended, it need not simplyaward the sum requestedCCP 425.16(c)(1) requires an award of attorney fees and costs to aprevailing defendant. “Except as provided in paragraph (2), in anyaction subject to subdivision (b), a prevailing defendant on a specialmotion to strike shall be entitled to recover his or her attorney's feesand costs.”

In Christian Research Institute v. Alnor (2008) 165 Cal.App.4 th 1315,the leading case on the trial court’s discretion in determination of anattorney fee award, the appellate court sustained an attorney feereduction from the requested $250,000 to $21,300. The appellatecourt explained: “Because the Legislature specified the prevailingdefendant “shall be entitled to recover his or her attorney's fees andcosts” (Section,425.16, subd. (c)), an award is usually mandatory.The Legislature, however, did not intend recovery of fees and costsas a windfall. [noting “ironic unintended consequence that anti-SLAPPprocedures, enacted to curb abusive litigation, are also prone toabuse”].) The prevailing party is entitled to a reasonableaward. Consequently, the trial court need not simply award the sumrequested. To the contrary, ascertaining the fee amount is left to thetrial court's sound discretion. Trial judges are entrusted with thisdiscretionary determination because they are in the best position toassess the value of the professional services rendered in their courts.[“trial court has its own expertise” on the question of fees].)”[Internal citations omitted]10. 12-569850RAMIREZ VS. SIMPLEMOBILE, LLCHere, for these reasons, the hours expended on the instant anti-SLAPP motion are neither justified nor reasonable.Defendant’s Motion for an Order Sealing the entire record in this caseis DENIED.Defendant has failed to meet its burden of establishing individualswhose names are included in the Complaint have an overridinginterest that will prejudiced if the documents in this action remainpublic. Further, even if the burden had been met, the proposed orderis not narrowly tailored. California Rule of Court Rule 2.550Even if the Court concluded that an overriding interest based upon asubstantial probability of prejudice had been established, the Orderrequested is not narrowly tailored.Apart from the fact that the proposed Order cites no specific facts insupport of the conclusion that an overriding interest supports sealingthe record, it seeks to seal the entire record. This is certainly notsupported. On page 6 of its P&A, LLC specifies the parts of theComplaint it is concerned about. It goes on to say that thoseallegations are “likely” to “permeate” the entire record so the wholething should be sealed. A brief look at the areas of concern showsthat a lot of the areas concern LLC owners, officers, or managers andtheir lack of response to Ramirez’s complaints. Further, all of theareas include descriptions of conduct, not just names. If there werea reason to seal anything, just sealing the names would take care ofthe problem. If LLC is really concerned about the job prospects ofany individual, removing individual names would be enough.11. 11-493580 RICHARDS VS.PIROZZIThe Court GRANTS the unopposed motion of Defendants LEWIS J.PIROZZI and LISA L. PIROZZI to enter summary judgment in theirfavor and against Plaintiff VIC RICHARDS on all 3 causes of actionalleged in her First Amended Complaint filed on 5/21/12. (CCP437c.) Plaintiff has filed no Opposition.On 6/11/13, this Court granted Defendants’ motion to deem admittedtheir first set of RFA’s 1-20 from plaintiff. Therefore, Plaintiff admits:

(1) that she was not injured from the fall on 7/22/09,(2) that she has no medical evidence of any injury, and(3) that she has no facts, witnesses, or evidence to support herallegations that –(a) she tripped and fell due to a lack of exterior lighting,(b) that Defendants failed to properly maintain exterior lighting, (c)that Defendants failed to properly maintain the premises,(d) that the stairs leading to her apartment were defective, or(e) that prior to 7/22/09 she made any report or complaintto Defendants regarding lighting on the premises.Because the court deemed plaintiff to have admitted the truth ofthese matters, Defendants have established them conclusively, sothat they are incontrovertible and are effectively removed from theissues. (Pinewood Investors v. City of Oxnard (1982) 133 Cal.App.3d1030, 1035.) Defendants have negated key elements of Plaintiff’sclaims and have shown, as a matter of law that Plaintiff cannot prove-- (i) that Defendants were negligent or (ii) that Plaintiff suffered anydamages or injury due to her fall. (Separate Statement, Facts 1-2,Evidence in Support at Exs. A-B.)Plaintiffs shall (A) serve and submit a proposed judgment, and (B)serve notice of this ruling.12. 12-605437HARVEST STRATEGY GROUPVS. ERICKSON13. 11-522861 COMMERCIALRESOURCES TAX GROUPINC. VS. HERNANDEZDefendant’s unopposed Motion to Set Aside Entry of Default andDefault Judgment is GRANTED.The Court finds the Motion is timely and a lack of actual notice intime to defend the action was not caused by defendant’s avoidance ofservice or inexcusable neglect.Defendant’s Answer is deemed filed as of the date of the hearing. Itis to be served per Code.1-2 Plaintiff/Cross-Defendant Commercial Resources Tax Group, Inc.and Cross-Defendant Douglas Duckworth’s Motion to CompelDefendant/Cross-Complainant Michael Araghi to respond to thefollowing discovery requests is GRANTED: (1) Commercial’s first setof Requests for Production of Documents; (2) Duckworth’s first set ofRequests for Production of Documents; (3) Commercial’s second setof Special Interrogatories; and (4) Duckworth’s first set of SpecialInterrogatories. Araghi is ordered to provide verified responses,without objections, to the discovery requests within 10 days. Araghiand his attorneys of record are to pay $410.00 in sanctions for eachmotion (totaling $820.00) within 30 days. Moving party is to givenotice.3-4 Plaintiff/Cross-Defendant Commercial Resources Tax Group, Inc.

and Cross-Defendant Douglas Duckworth’s Motion to CompelDefendant/Cross-Complainant Andrew Hernandez to respond to thefollowing discovery requests is GRANTED: (1) Commercial’s first setof Requests for Production of Documents; (2) Duckworth’s first set ofRequests for Production of Documents; (3) Commercial’s second setof Special Interrogatories; and (4) Duckworth’s first set of SpecialInterrogatories. Hernandez is ordered to provide verified responses,without objections, to the discovery requests within 10days. Hernandez and his attorneys of record are to pay $410.00 insanctions for each motion (totaling $820.00) within 30 days. Movingparty is to give notice.5-6 Plaintiff/Cross-Defendant Commercial Resources Tax Group,Inc. and Cross-Defendant Douglas Duckworth’s Motion to CompelDefendant/Cross-Complainant MATAX, LLC to respond to thefollowing discovery requests is GRANTED: (1) Commercial’s first setof Requests for Production of Documents; (2) Duckworth’s first set ofRequests for Production of Documents; (3) Commercial’s second setof Special Interrogatories; and (4) Duckworth’s first set of SpecialInterrogatories. MATAX, LLC is ordered to provide verified responses,without objections, to the discovery requests within 10 days. MATAX,LLC and its attorneys of record are to pay $410.00 in sanctions foreach motion (totaling $820.00) within 30 days. Moving party is togive notice.

2. 12-608826CHEN VS. IRVINE RANCHWATER DISTRICTPlaintiff’s Objections to Evidence in support of defendant’sMotion for Summary Judgment are SUSTAINED in theirentirety.Defendant’s Request for Judicial Notice is GRANTED in partand DENIED in part. The Court will take judicial notice ofItems 1, 3, and 4. It will not take judicial notice of Item 2.Defendant’s Objections to Evidence in support of theOpposition to the Motion for Summary Judgment areOVERRULED in their entirety.Defendant Irvine Ranch Water District’s Motion for SummaryJudgment is DENIED. Defendants have not met their burdenof showing that one or more elements of Chen’s cause ofaction can’t be established. Defendant has not shown thatChen cannot establish a dangerous condition of theproperty. CCP Section437c(p)(2)Even had defendant had met its burden, plaintiff has shown atriable issue of material fact. Defendant’s Separate Statementof Material Undisputed Facts, Nos 9 – 12, and evidence inopposition thereto; Plaintiff’s Disputed Fact, Nos. A – R.Standard for Summary Judgment/AdjudicationAs a defendant moving for summary judgment, IRWD has the initialburden of persuasion under CCP 437c(p)(2). It must either point toChen’s factually devoid discovery responses or show he cannot makeout an essential element of his COA. Once IRWD meets this burden,the burden shifts to Chen to offer sufficient evidence from which areasonable trier of fact could find in his favor. Saelzler v. AdvancedGroup (2001) 25 Cal.4 th 763 and Aguilar v. Atlantic Richfield Co.(2001) 25 Cal.4 th 826. If IRWD never meets its initial burden, Chenhas no obligation to file declarations of his own to defeat the motionby establishing a triable issue of material fact.Has IRWD met its burden? No.Can this Court decide whether a dangerous condition existedas a matter of law? No.As will be seen below, there are CACI instructions concerning a

“dangerous condition.” This alone suggests that the issue is not onethat the Court must decide as a matter of law. The cases say it may,depending upon the evidence. In the context of deciding whether a“given condition of public property is minor or insignificant as amatter of law” is determined as follows:In Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734 [139Cal.Rptr. 876] (Fielder), the court set forth a number of factors to beconsidered when a court makes a determination of whether a givencondition of public property is minor or insignificant as a matter oflaw. The court should consider both the physical description of thecondition, and “whether there existed any circumstances surroundingthe accident which might have rendered the defect more dangerousthan its mere abstract [description] would indicate.” (Ibid.) Whereappropriate, the court should consider not only the intrinsic natureand quality of the condition, but also other factors such as the timeand place of the occurrence. (Ibid.) “Furthermore, the court shouldsee if there is any evidence that other persons have been injured onthis same defect.” (Ibid.)Sambrano, vs. City of San Diego (2001) 94 Cal. App 4 th 225, 234Here, to the extent IRWD’s evidence addresses these factors, it isincomplete.IRWD’s evidence is deficientThis Motion is based entirely on the argument that Chen can’testablish liability under Government Code Section 835, which saysSection 835. Conditions of liabilityExcept as provided by statute, a public entity is liable for injurycaused by a dangerous condition of its property if the plaintiffestablishes that the property was in a dangerous condition at thetime of the injury, that the injury was proximately caused by thedangerous condition, that the dangerous condition created areasonably foreseeable risk of the kind of injury which was incurred,and that either:(a) A negligent or wrongful act or omission of an employee of thepublic entity within the scope of his employment created the

dangerous condition; or(b) The public entity had actual or constructive notice of thedangerous condition under Section 835.2 a sufficient time prior to theinjury to have taken measures to protect against the dangerouscondition.CACI 1100, stating the essential elements of a claim for dangerouscondition of public property, tracks this statutory language.CACI 1102 defines “dangerous condition” for purposes of a claimunder Government Code Section 835:1102 Definition of “Dangerous Condition” (Gov. Code, Section830(a))A “dangerous condition” is a condition of public property that createsa substantial risk of injury to members of the general public when theproperty [or adjacent property] is used with reasonable care and in areasonably foreseeable manner. A condition that creates only a minorrisk of injury is not a dangerous condition. [Whether the property isin a dangerous condition is to be determined without regard towhether [[name of plaintiff]/ [or] [name of third party]] exercised orfailed to exercise reasonable care in [his/her] use of the property.]As to the last sentence, the Directions for Use says this:Give the last sentence if comparative fault is at issue. It clarifies thatcomparative fault does not negate the possible existence of adangerous condition. (Fredette v. City of Long Beach (1986) 187Cal.App.3d 122, 131 [231 Cal. Rptr. 598].)So, based on the statute and these instructions, to succeed on thisMotion, IRWD must show there was no substantial risk of injury toChen when the property, including the gate, was used withreasonable care and in a reasonably foreseeable manner. It has notdone so.IRWD has offered no evidence showing what Chen would have seenat the time of the impact. Evidence it does offer shows that the gateis designed with a long section of the end of the gate that swingsopen that is a single, tube of metal. Attorney Roman Declaration, Ex.D. It is this tubular end that pierced the windshield of Chen’s

truck. Attorney Roman Declaration, Exs. E - G. Although the gateappears to be painted blue in Ex. D, in Exs. E - G it appears to bepainted white and could easily blend in with the roadway orsurrounding areas. Further, there are no photographs taken fromChen’s vantage point in the truck. What should he have seen? Theanswer to this question of whether there was a substantial risk ofinjury.As stated in CACI 1102, Chen’s negligence does not negate IRWD’sduty to operate its property without dangerous conditions. As statedin Fredette, supra, at p. 131:The negligence of a plaintiff-user of public property, therefore, is adefense which may be asserted by a public entity; it has no bearingupon the determination of a “dangerous condition” in the firstinstance. (Callahan v. City and County of San Francisco (1967) 249Cal.App.2d 696, 702-703 [57 Cal.Rptr. 639]; Van Alstyne, Cal.Government Tort Liability Practice (Cont.Ed.Bar 1980) § 3.12, pp.198-201.) (5b)So long as a plaintiff-user can establish that acondition of the property creates a substantial risk to any foreseeableuser of the public property who uses it with due care, he hassuccessfully alleged the existence of a dangerous condition regardlessof his personal lack of due care. If, however, it can be shown that theproperty is safe when used with due care and that a risk of harm iscreated only when foreseeable users fail to exercise due care, thensuch property is not “dangerous” within the meaning of section 830,subdivision (a). (Fuller v. State of California (1975) 51 Cal.App.3d926, 939-940 [125 Cal.Rptr. 586].)Looking at the photos, that particular gate when it swings into theroadway can be a dangerous condition. IRWD has not shown that therisk of harm is created only when a user of the road doesn’t exercisedue care, and, honestly, it doesn’t seem that it can. All the evidenceof speed, location, and so forth does not go to the question ofdangerous condition under the facts of this case.For these reasons, it has not met its burden of proof.Has Chen shown a trible issue of material fact? Yes.Even if IRWD had met its burden, Chen has shown a triable issue ofmaterial fact on the element of dangerous condition.The strongest evidence on the issue of dangerous condition is found

in the Declaration of Forensic Engineer [expert] Mark Burns andplaintiff Chen. Burns says the roadway was in a dangerous conditionat the time of the incident, explaining why. Burns Declaration,paragraph 8. He says Chen was operating his truck in a reasonablemanner with due care at the time of the incident. Paragraph9. Finally, he opines that IRWD’s employee, Costantino, created orsubstantially contributed to the dangerous condition by not securingthe gate to the receiving post after he opened it so that it couldn’tswing back into the roadway, even though he knew it could do so.Paragraph 10. In his Declaration, Chen says the gate was alreadyopen when he arrived. Paragraph 4. As he was driving down theroad to leave the property, he didn’t know the gate had swung backinto the roadway. Paragraph 6. He says the gate was white.Paragraph 8. He didn’t see it before it impaled his windshield, andstates the reasons he thinks this was the case. Paragraph 9. Thisevidence is sufficient to show a triable issue of material fact.4. 13-661398COAST SOUTHWEST, INC. ACALIFORNIA CORPORATIONVS. PATNODE1. Defendant’s demurrer to the 3 rd and 4 th causes of actions isSUSTAINED without leave as to the internet postings. Assumingeven that the claims are not barred by the statute of limitations, theCareerBliss posting is no more than opinions offered in response tospecific questions. Although unquestionably negative, it representsdefendant’s personal beliefs and includes no facts subject to proof.Plaintiff’s strained interpretation of the LinkedIn posting and use ofselective citations in support of a libel per se theory connected toplaintiffs’ alleged unchaste behavior and then extended to potentialemployees’ fear of same-sex sexual harassment simply cannot besaved by amendment. The remaining allegation in paragraph twentymay support these causes of action, if amended. Plaintiff has 10days to amend as to this theory of defamation only.5. 10-364382GORR VS. UNIVERSALINTERACTIVE, LLC2. The motion to strike is MOOT.Cross-Defendants Universal Interactive LLC, Universal InteractiveLicensing LLC, and Joel Shamitoff’s Demurrer to the Cross-Complaintis construed as a Motion to Strike the Cross-Complaint.“The proposition that a trial court may construe a motion bearing onelabel as a different type of motion is one that has existed for manydecades. ‘The nature of a motion is determined by the nature of therelief sought, not by the label attached to it. The law is not a meregame of words.’” (Sole Energy Co. v. Petrominerals Corp. (2005) 128Cal. App. 4th 187, 193.) The Court therefore construes the Demurreras a Motion to Strike.The Cross-Complaint filed by Gorr in the 2 nd Action (Case No. 10-397074) is exactly the same as the Second Amended Complaint filedby Gorr in the 1 st Action (Case No. 10-364382). Thus, the Cross-Complaint is “irrelevant, false, or improper” to the extent that it isrepetitive and superfluous of the Second Amended Complaint. Cross-Complainant may not circumvent the Court’s ruling with respect tothe pleadings filed in the 1 st Action by filing the exact same pleadingin the 2 nd Action.Therefore, the Court STRIKES the Cross-Complaint filed in the 2 ndAction.

Moving parties are to give notice.6. 13-647354GRANITE SERVICES LLC VS.RIMEL1. DEMURRER TO ORIGINAL COMPLAINTDefendant PETER J. RIMEL demurs to all 4 causes of action in theOriginal Complaint of Plaintiff GRANITE SERVICES LLC. The courtOVERRULES the demurrer on all of the grounds that Rimel raises asto all 4 causes of action.The court DENIES in part and GRANTS in part with leave to amendDefendant Rimel’s motion to strike.I. Judicial NoticeDefendant Rimel asks the court to take judicial notice of Exhibits A –C, attached to his demurrer. The court DENIES this request for 3reasons --A. No DeclarationFirst, Rimel fails to submit a declaration that separately identifies andauthenticates each document.Rimel attempts to identify some of the documents in his demurrerand memo of points and authorities. But the descriptions areincomplete and inadequate. For example, it is unclear of how manypages each document consists.Furthermore, statements made by counsel in the demurrer andmemo of points and authorities are not evidence because they arenot expressly subscribed “under penalty of perjury of Californialaw.” (CCP 2015.5; Kulshrestha v. First Union Commercial Corp.(2004) 33 Cal.4th 601.)“The only evidence the trial court should have considered and whichwe may consider here is that contained in the declarations filed insupport of and in opposition to the motion. The matters set forth inthe unverified ‘Statement of Facts’ and in memoranda of points andauthorities are not evidence and cannot provide the basis for thegranting of the motion.” (Smith, Smith & Kring v. Superior Court(1997) 60 Cal.App.4th 573, 578.)“It hardly bears mentioning that argument of counsel is neither adeclaration nor admissible as evidence in court.” (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1518.)B. Exhibits Confusing

Second, the Exhibits are very confusing because many blank pagesare interposed, several pages are illegible, and several exhibitsconsist of multiple documents that are not separately identified.C. Facts Asserted in Documents Not Judicially NoticeableThird, even if the court were to take judicial notice that, for example,Exhibit A was a complaint that Stephen Maready sent to the State Barregarding misconduct by attorney Peter J. Rimel, the court still couldnot have taken judicial notice of the truth of any facts assertedtherein, to the extent such facts are reasonably subject to dispute.A court may take judicial notice only of facts not reasonably open todispute – for example – that Costa Mesa is a city in Orange County,California; or that George Washington was the first president of theUnited States. (Evid. Code 451 (f); 452 (g), (h).) But whetherattorney Rimel did or did not engage in misconduct amounting to abreach of contract is a fact reasonably open to dispute.Had Rimel filed a proper declaration and properly identified thedocuments, the court could have taken judicial notice that Mareadysubmitted a complaint to the State Bar. But the court COULD NOThave taken judicial notice of the truth of facts alleged in Maready’scomplaint. (Fontenot v. Wells Fargo Bank N.A. (2011) 198Cal.App.4 th 256, 265.)“A court may take judicial notice of the fact of a document’srecordation, the date the document was recorded and executed, theparties to the transaction reflected in a recorded document, and thedocument’s legally operative language, assuming there is no genuinedispute regarding the document’s authenticity. From this, the courtmay deduce and rely upon the legal effect of the recorded document,when that effect is clear from its face.” (Ibid.)But a court may not take judicial notice of the truth of factualrepresentations, made in the recorded document, that are reasonablyopen to dispute. (Ibid.)II. Plaintiff Sued Wrong Defendant; Uncertain and AmbiguousOVERRULE.First, Defendant Rimel merely asserts, in conclusory fashion, thatPlaintiff has sued the wrong defendant. But he fails to raise anycoherent argument or cite any evidence to support this assertion.

Rimel argues that the Complaint in this case and Maready’s complaintto the State Bar are nearly identical, except that Maready filed theState Bar complaint against Rimel as an attorney and Granite filedthis Complaint against Rimel as an individual.This argument fails because the court did not take judicial notice ofthe State Bar complaint. Even if this court were to take judicialnotice of it, the State Bar complaint does not show that Plaintiff issuing the wrong defendant. Rimel fails to cite any case law insupport of his dubious argument.Second, Rimel also asserts that the Complaint is vague andambiguous, because it is impossible to tell who was allegedlyaggrieved and who was allegedly liable. But this argument failsbecause the Complaint clearly alleges its claims and the parties’roles.Third, Rimel asserts that his law office is a necessary party. But hecites no legal authority in support of this assertion.III.Rimel, as an Individual, Owed Granite No Duty of CareOVERRULE --as to the 1 st cause of action for Negligence.The Complaint alleges that “Granite wired the requisite fee to the LawOffices of Mr. Peter J. Rimel in care of his firm’s trust account.” Rimelargues that he, as an individual, owed no duty of care to Granite,because Granite wired the money to his law office, not to him as anindividual. On this ground, Granite demurs to the 1 st cause of actionfor Negligence.But this argument fails because there is no evidence before the courtthat Rimel’s law office is a separate legal entity under Californialaw. No such allegation appears on the face of the Complaint andRimel presents no judicially noticeable evidence to prove that his lawoffice is a legal entity separate and distinct from him as an individual.IV.Rimel Owed Granite No Contractual or Fiduciary Duty

OVERRULE –as to the 2 nd and 3 rd causes of action for Breach of Contract andBreach of Fiduciary Duty.Defendant Rimel notes correctly that the Complaint contains noallegations that he entered into any oral or written contract directlywith Granite. So Rimel argues that he owed no contractual orfiduciary duty to Granite. And Rimel concludes that the 2 nd and 3 rdcauses of action therefore fail to state claims against him.But this argument fails because the Complaint alleges that (i) Rimelwas a party to both the first and second Account ServicesAgreements, and that (ii) Rimel was named as the Escrow Agent forthe transaction, with the responsibility to verify “that the account isset up authentically and correctly.” It is well-established that as ageneral rule, “[a]n escrow holder is an agent and fiduciary of theparties to the escrow.” (Summit Financial Holdings Ltd. v.Continental Lawyers Title Co. (2002) 27 Cal.4 th 705, 711.)Rimel argues correctly that there is no clear allegation in theComplaint that he was an employee of Granite. But that argument isirrelevant because, as noted in the paragraph above, a contractualduty is alleged.V. 4 th Cause of Action Fails to Properly Allege ConversionOVERRULE –as to the 4 th cause of action for Conversion.First, Rimel argues that the Complaint, prior to paragraph 27, doesnot allege that he converted anything. But this argument isirrelevant because paragraph 27 does allege that he converted thecash service fee.Second, Rimel ask the court to take judicial notice of page 2 ofExhibit D. But the court DENIES the request for the reasons set forthin section I above.Third, Rimel argues that neither he as an individual, nor he as alawyer, nor his law office ever saw or signed the Account ServiceAgreements. But this factual allegation does not appear on the faceof the Complaint, nor may the court take judicial notice of such a

fact, which is reasonably subject to dispute.On a demurrer, the court must accept as true the allegations of theComplaint, no matter how unlikely or improbable. (Del E. WebbCorp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593,604.) And here the Complaint alleges that Rimel was a party to theService Agreements and owed a contractual and fiduciary duty toGranite.Finally, the 4 th cause of action does appear to properly allege theelements of conversion. (CACI 2100.)2. MOTION TO STRIKEA. Attorney’s FeesGRANT with leave to amend.Defendant argues correctly that the Complaint fails to allege astatutory, contractual, or equitable basis for recovery of attorney’sfees. Plaintiff may not seek attorney's fees unless it properlyalleges a contractual, statutory, or equitable basistherefor. (Summers v. Newman (1999) 20 Cal.4th 1021, 1031; Civ.Code, § 1717 (a).In its Complaint, Plaintiff cites no applicable statute. And Plaintiff hasnot properly pled the existence of a contractual term awardingattorney’s fees. Plaintiff has not attached a copy of thecontract. Though Plaintiff appears to have pled some essential termsverbatim and to have pled some essential terms by their effect. ButPlaintiff has not pled the terms of the attorney’s fees provision, ifany.In the Complaint, Plaintiff refers to the 1 st Account ServicesAgreement at Exhibit A, but there is no such exhibit attached to thescanned copy of the Complaint. Plaintiff also refers to the 2 ndAccount Services Agreement, but no copy is attached to theComplaint.The plaintiff has the option of pleading the contract terms verbatim,attaching a copy of it, or pleading its legal intendment andeffect. (Wise v. Southern Pacific Co. (1963)223 Cal.App.2d 50, 59 [“As to the contract, where a writteninstrument is the foundation of a cause of action, it may be pleadedin haec verba by attaching a copy as an exhibit and incorporating itby proper reference.”]; Scolinos v. Kolts (1995) 37 Cal.App.4th 635,640, 44 Cal.Rptr.2d 31, 34 [“A contract should be pleaded either in

haec verba or according to its legal intendment and effect.”].)“A written contract is usually pleaded by alleging its making and thensetting it out verbatim (‘in haec verba’) in the body of the complaintor as a copy attached and incorporated by reference.” (4 Witkin,California Procedure [4th ed. 1997 & 2001 Supp.], Pleadings § 479,p. 572.)“The other method of pleading a written contract is according to itslegal effect, by alleging the making, and then proceeding to allegethe substance of its relevant terms. That a contract may be pleadedin its legal effect and need not be set forth in haec verba isthoroughly settled.” (Pneucrete Corp. v. United States Fidelity &Guaranty Co. (1935) 7 Cal.App.2d 733, 741-742.)B. Punitive DamagesDENY.Defendant argues correctly that it is unclear under which causes ofaction Plaintiff is seeking punitive damages. Defendant arguescorrectly that a breach of contract claim will not support an award ofpunitive damages.The motion to strike is DENIED because Plaintiff’s 4 th cause of actionfor conversion is a tort claim which presumably would supportrecovery of punitive damages.But in his amended pleading, Plaintiff must specify under whichcauses of action he is seeking punitive damages.C. Duplicative ArgumentsDENY.The rest of Defendant’s arguments fail for two reasons. First, theyare not proper arguments on a motion to strike. Second, they areduplicative of arguments that Defendant already raises in support ofhis demurrer. So they are addressed above in sections I – V.

D. Statute of LimitationsDENY. The court need not consider this argument because it is not aproper ground for a motion to strike. The argument must be raisedon a general demurrer. (Saliter vs. Pierce Bros. Mortuaries (1978) 81Cal. App. 3d 292, 300.)Even if the court were to consider the argument, the court would stillDENY it, because the facts alleged on the face of the Complaint donot “clearly and affirmatively” show that the claims are NECESSARILYtime-barred by the statute of limitations. It is not enough that theclaims MIGHT be barred. (Marshall vs. Gibson, Dunn & Crutcher(1995) 37 Cal. App. 4 th 1397, 1403.)Defendant argues that it is Plaintiff’s burden to plead essentialdates. But he cites no authority to prove his assertion that Plaintiff isrequired by law to allege dates as an essential element of each of hiscauses of action.On the contrary, dates are not essential elements for a cause ofaction for breach of contract. CACI4100-4107, which relate to certaintypes of claims for breach of fiduciary duty, do not specify that datesof breach are essential elements of the cause of action. SoDefendant fails to carry its burden to prove that.Defendant’s remedy is to serve discovery to obtain more specificdates and information about the alleged breaches, raise the statute oflimitations as an affirmative defense in its answer, and then bring amotion for summary judgment on the ground that the claims aretime-barred.(United Western Medical Centers vs. Superior Court(1996) 42 Cal. App. 4 th 500, 505, citing Carbide.On or before October 8, 2013, Plaintiff may file a First AmendedComplaint that corrects the defects noted above. All new allegationstherein shall be set forth in boldfact type.Plaintiff shall serve notice of this ruling.8. 12-600786 MAHAFFEY VS.BERGER KAHNThe Court DENIES defendant’s motion for $66,290 in attorney feessought pursuant to CCP 425.16(c) and awards the reasonable sum of$22,500 to defendant. This sum represents 60 hours at the blendedhourly rate of $375, which the Court views as very appropriate inlight of the facts in this matter.This matter involved no complex issues and required only themost basic analysis

This action alleged a single claim for malicious prosecution. Becausethe underlying litigation automatically satisfied the first elementnecessary to succeed on an anti-SLAPP motion it required minimalresearch. For purposes of the anti-SLAPP Act, “[E]very claim ofmalicious prosecution is a cause of action arising from protectedactivity because every such claim necessarily depends upon writtenand oral statements in a prior judicial proceeding. [Citation.]”(Daniels v. Robbins (2010) 182 Cal. App. 4th 204, 215.)Accordingly, defendant need then only determine whether plaintiffhad established that it was likely that he would prevail.Defendant, nevertheless, characterizes this matter as involving “amultiplicity of complex facts and legal issues,” apparently becausethere were two preceding actions and two appeals. The motionthereby necessitated intensive review and analysis of those matters,with one proceeding generating 145 boxes of documents. Defendantposits that the hours are demonstrably reasonable, as the litigationwas divided into separate stages. Defendant also asserts additionaleffort was necessitated by plaintiff’s various misstatements. TheCourt does not share this view.“To establish a cause of action for the malicious prosecution of a civilproceeding, a plaintiff must plead and prove that the prior action (1)was commenced by or at the direction of the defendant and waspursued to a legal termination in his, plaintiff's, favor; (2) wasbrought without probable cause; and (3) was initiated with malice.”(Crowley v. Katleman (1994) 8 Cal.4 th 666, 676.)As this court noted in its ruling, the jury’s special verdict included afinding that Mahaffey had breached his fiduciary duties to his clientsto pay appeal costs, to provide a proper accounting and by making aCCP 998 offer without their authorization. Although the net recoverywas in favor of Mahaffey and the trial court ultimately decided theaccounting issue, the jury did find that Mahaffey had engaged inmalpractice. These specific findings—that Mahaffey breached dutiesowed to his clients—thus established that the malpractice suit wouldnot have been viewed by a reasonable attorney as completely lackingin merit. Accordingly, the jury verdict is conclusive as to both the firstand second factors.Again, as discussed by the Court in its ruling, in support of his maliceallegations, Mahaffey cited to evidence submitted at trial. The Courtand the jury had full opportunity to consider this evidence and theanti-SLAPP motion did not require this Court to retry the disputesrelated to that evidence. It is the outcome of the case, i.e., the legaldetermination that, in some instances Mahaffey was in breach, whichestablished the absence of malice.The cases cited by defendant do not support the extraordinaryfees claimed, the number of hours expended, or the motionitselfBy way of example, despite the nearly 82 hours expended inresearching and preparing the motion, Berger Kahn mistakenlycontended that denial of non-suit as to particular malpractice issuesin the underlying matter precluded a malicious prosecutionaction. Not so. In Wilson v. Parker (2002) 28 Cal.4 th 811, 824, thecourt actually distinguished between the two applicable standards—whether a claim is arguably tenable (standard for malicious

prosecution) or whether it is likely meritorious (standard for CCP425.16).The Wilson court cites to Lucchesi v.Giannini (1984) 158 Cal.App.3d777, which found: “[E]ven when the denial [of summary judgment]is based on the first ground that a material issue of fact does exist,this procedure still falls short of a hearing on the merits.” [Citations]The decision goes on to hold, as well, that denial of a nonsuit motiondoes not establish probable cause because a nonsuit must be denied“if there is any substantial evidence tending to prove all thecontroverted facts necessary to establish the plaintiff's case,” aconclusion that, like denial of summary judgment, is “not adetermination on the merits.” [Ibid]This latter part of Lucchesi's reasoning has been undermined by thiscourt's subsequent decision in Sheldon Appel. As discussed above,our decision in that case clarified that probable cause to bring anaction does not depend upon it being meritorious, as such, but uponit being arguably tenable, i.e., not so completely lacking in apparentmerit that no reasonable attorney would have thought the claimtenable.” It is apparent that the Wilson court did not hold, asdefendant urges, that a denial of a non-suit bars all claims formalicious prosecution. This misinterpretation, for whatever reason, isone example of the difficulty in reconciling the expertise claimed andthe extraordinary number of hours expended with the motion itself.The Court further observes that the cases cited by defendant do notinclude any complaints for malicious prosecution and are applicableonly in the remote sense that the trial court’s fee award was notdisturbed. In Ketchum v. Moses (2001) 24 Cal.4 th 1122 thecomplicated matter involved “years of contentious litigation andprolonged delays,” including a full evidentiary hearing, includingexperts to determine the fee award. The Ketchum court,nevertheless, cited to Serrano v. Priest (1977) 20 Cal.3d 25, statingthat that “In referring to “ reasonable” compensation, we indicatedthat trial courts must carefully review attorney documentation ofhours expended; “padding” in the form of inefficient or duplicativeefforts is not subject to compensation.” The Ketchum court furthernoted: “To the extent a trial court is concerned that a particularaward is excessive, it has broad discretion to adjust the feedownward or deny an unreasonable fee altogether.’”Again, Rosenaur v. Scherer (2001) 88 Cal.App.4th 260 isdistinguishable as it involved multiple defamation claims, publicfigures, recklessness, property recordation and publicationdisputes. In Bernardo v. Planned Parenthood Federation (2004) 115Cal.App.4 th 322, the losing plaintiff did not appeal the attorney fee atall. In its 43-page opinion the court instead addressed plaintiff’sConstitutional challenges to the application of CCP 425.16 to hercomplaint, which included the trial court’s ability to award attorneyfees, characterized by Bernardo, as “draconian penalties.”Because the trial court is in the best position to assess thedifficulty of the case, the level of skill required and thereasonableness of the hours expended, it need not simplyaward the sum requestedCCP 425.16(c)(1) requires an award of attorney fees and costs to aprevailing defendant. “Except as provided in paragraph (2), in anyaction subject to subdivision (b), a prevailing defendant on a specialmotion to strike shall be entitled to recover his or her attorney's feesand costs.”

In Christian Research Institute v. Alnor (2008) 165 Cal.App.4 th 1315,the leading case on the trial court’s discretion in determination of anattorney fee award, the appellate court sustained an attorney feereduction from the requested $250,000 to $21,300. The appellatecourt explained: “Because the Legislature specified the prevailingdefendant “shall be entitled to recover his or her attorney's fees andcosts” (Section,425.16, subd. (c)), an award is usually mandatory.The Legislature, however, did not intend recovery of fees and costsas a windfall. [noting “ironic unintended consequence that anti-SLAPPprocedures, enacted to curb abusive litigation, are also prone toabuse”].) The prevailing party is entitled to a reasonableaward. Consequently, the trial court need not simply award the sumrequested. To the contrary, ascertaining the fee amount is left to thetrial court's sound discretion. Trial judges are entrusted with thisdiscretionary determination because they are in the best position toassess the value of the professional services rendered in their courts.[“trial court has its own expertise” on the question of fees].)”[Internal citations omitted]10. 12-569850RAMIREZ VS. SIMPLEMOBILE, LLCHere, for these reasons, the hours expended on the instant anti-SLAPP motion are neither justified nor reasonable.Defendant’s Motion for an Order Sealing the entire record in this caseis DENIED.Defendant has failed to meet its burden of establishing individualswhose names are included in the Complaint have an overridinginterest that will prejudiced if the documents in this action remainpublic. Further, even if the burden had been met, the proposed orderis not narrowly tailored. California Rule of Court Rule 2.550Even if the Court concluded that an overriding interest based upon asubstantial probability of prejudice had been established, the Orderrequested is not narrowly tailored.Apart from the fact that the proposed Order cites no specific facts insupport of the conclusion that an overriding interest supports sealingthe record, it seeks to seal the entire record. This is certainly notsupported. On page 6 of its P&A, LLC specifies the parts of theComplaint it is concerned about. It goes on to say that thoseallegations are “likely” to “permeate” the entire record so the wholething should be sealed. A brief look at the areas of concern showsthat a lot of the areas concern LLC owners, officers, or managers andtheir lack of response to Ramirez’s complaints. Further, all of theareas include descriptions of conduct, not just names. If there werea reason to seal anything, just sealing the names would take care ofthe problem. If LLC is really concerned about the job prospects ofany individual, removing individual names would be enough.11. 11-493580 RICHARDS VS.PIROZZIThe Court GRANTS the unopposed motion of Defendants LEWIS J.PIROZZI and LISA L. PIROZZI to enter summary judgment in theirfavor and against Plaintiff VIC RICHARDS on all 3 causes of actionalleged in her First Amended Complaint filed on 5/21/12. (CCP437c.) Plaintiff has filed no Opposition.On 6/11/13, this Court granted Defendants’ motion to deem admittedtheir first set of RFA’s 1-20 from plaintiff. Therefore, Plaintiff admits:

(1) that she was not injured from the fall on 7/22/09,(2) that she has no medical evidence of any injury, and(3) that she has no facts, witnesses, or evidence to support herallegations that –(a) she tripped and fell due to a lack of exterior lighting,(b) that Defendants failed to properly maintain exterior lighting, (c)that Defendants failed to properly maintain the premises,(d) that the stairs leading to her apartment were defective, or(e) that prior to 7/22/09 she made any report or complaintto Defendants regarding lighting on the premises.Because the court deemed plaintiff to have admitted the truth ofthese matters, Defendants have established them conclusively, sothat they are incontrovertible and are effectively removed from theissues. (Pinewood Investors v. City of Oxnard (1982) 133 Cal.App.3d1030, 1035.) Defendants have negated key elements of Plaintiff’sclaims and have shown, as a matter of law that Plaintiff cannot prove-- (i) that Defendants were negligent or (ii) that Plaintiff suffered anydamages or injury due to her fall. (Separate Statement, Facts 1-2,Evidence in Support at Exs. A-B.)Plaintiffs shall (A) serve and submit a proposed judgment, and (B)serve notice of this ruling.12. 12-605437HARVEST STRATEGY GROUPVS. ERICKSON13. 11-522861 COMMERCIALRESOURCES TAX GROUPINC. VS. HERNANDEZDefendant’s unopposed Motion to Set Aside Entry of Default andDefault Judgment is GRANTED.The Court finds the Motion is timely and a lack of actual notice intime to defend the action was not caused by defendant’s avoidance ofservice or inexcusable neglect.Defendant’s Answer is deemed filed as of the date of the hearing. Itis to be served per Code.1-2 Plaintiff/Cross-Defendant Commercial Resources Tax Group, Inc.and Cross-Defendant Douglas Duckworth’s Motion to CompelDefendant/Cross-Complainant Michael Araghi to respond to thefollowing discovery requests is GRANTED: (1) Commercial’s first setof Requests for Production of Documents; (2) Duckworth’s first set ofRequests for Production of Documents; (3) Commercial’s second setof Special Interrogatories; and (4) Duckworth’s first set of SpecialInterrogatories. Araghi is ordered to provide verified responses,without objections, to the discovery requests within 10 days. Araghiand his attorneys of record are to pay $410.00 in sanctions for eachmotion (totaling $820.00) within 30 days. Moving party is to givenotice.3-4 Plaintiff/Cross-Defendant Commercial Resources Tax Group, Inc.

and Cross-Defendant Douglas Duckworth’s Motion to CompelDefendant/Cross-Complainant Andrew Hernandez to respond to thefollowing discovery requests is GRANTED: (1) Commercial’s first setof Requests for Production of Documents; (2) Duckworth’s first set ofRequests for Production of Documents; (3) Commercial’s second setof Special Interrogatories; and (4) Duckworth’s first set of SpecialInterrogatories. Hernandez is ordered to provide verified responses,without objections, to the discovery requests within 10days. Hernandez and his attorneys of record are to pay $410.00 insanctions for each motion (totaling $820.00) within 30 days. Movingparty is to give notice.5-6 Plaintiff/Cross-Defendant Commercial Resources Tax Group,Inc. and Cross-Defendant Douglas Duckworth’s Motion to CompelDefendant/Cross-Complainant MATAX, LLC to respond to thefollowing discovery requests is GRANTED: (1) Commercial’s first setof Requests for Production of Documents; (2) Duckworth’s first set ofRequests for Production of Documents; (3) Commercial’s second setof Special Interrogatories; and (4) Duckworth’s first set of SpecialInterrogatories. MATAX, LLC is ordered to provide verified responses,without objections, to the discovery requests within 10 days. MATAX,LLC and its attorneys of record are to pay $410.00 in sanctions foreach motion (totaling $820.00) within 30 days. Moving party is togive notice.

2. 12-608826CHEN VS. IRVINE RANCHWATER DISTRICTPlaintiff’s Objections to Evidence in support of defendant’sMotion for Summary Judgment are SUSTAINED in theirentirety.Defendant’s Request for Judicial Notice is GRANTED in partand DENIED in part. The Court will take judicial notice ofItems 1, 3, and 4. It will not take judicial notice of Item 2.Defendant’s Objections to Evidence in support of theOpposition to the Motion for Summary Judgment areOVERRULED in their entirety.Defendant Irvine Ranch Water District’s Motion for SummaryJudgment is DENIED. Defendants have not met their burdenof showing that one or more elements of Chen’s cause ofaction can’t be established. Defendant has not shown thatChen cannot establish a dangerous condition of theproperty. CCP Section437c(p)(2)Even had defendant had met its burden, plaintiff has shown atriable issue of material fact. Defendant’s Separate Statementof Material Undisputed Facts, Nos 9 – 12, and evidence inopposition thereto; Plaintiff’s Disputed Fact, Nos. A – R.Standard for Summary Judgment/AdjudicationAs a defendant moving for summary judgment, IRWD has the initialburden of persuasion under CCP 437c(p)(2). It must either point toChen’s factually devoid discovery responses or show he cannot makeout an essential element of his COA. Once IRWD meets this burden,the burden shifts to Chen to offer sufficient evidence from which areasonable trier of fact could find in his favor. Saelzler v. AdvancedGroup (2001) 25 Cal.4 th 763 and Aguilar v. Atlantic Richfield Co.(2001) 25 Cal.4 th 826. If IRWD never meets its initial burden, Chenhas no obligation to file declarations of his own to defeat the motionby establishing a triable issue of material fact.Has IRWD met its burden? No.Can this Court decide whether a dangerous condition existedas a matter of law? No.As will be seen below, there are CACI instructions concerning a

“dangerous condition.” This alone suggests that the issue is not onethat the Court must decide as a matter of law. The cases say it may,depending upon the evidence. In the context of deciding whether a“given condition of public property is minor or insignificant as amatter of law” is determined as follows:In Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734 [139Cal.Rptr. 876] (Fielder), the court set forth a number of factors to beconsidered when a court makes a determination of whether a givencondition of public property is minor or insignificant as a matter oflaw. The court should consider both the physical description of thecondition, and “whether there existed any circumstances surroundingthe accident which might have rendered the defect more dangerousthan its mere abstract [description] would indicate.” (Ibid.) Whereappropriate, the court should consider not only the intrinsic natureand quality of the condition, but also other factors such as the timeand place of the occurrence. (Ibid.) “Furthermore, the court shouldsee if there is any evidence that other persons have been injured onthis same defect.” (Ibid.)Sambrano, vs. City of San Diego (2001) 94 Cal. App 4 th 225, 234Here, to the extent IRWD’s evidence addresses these factors, it isincomplete.IRWD’s evidence is deficientThis Motion is based entirely on the argument that Chen can’testablish liability under Government Code Section 835, which saysSection 835. Conditions of liabilityExcept as provided by statute, a public entity is liable for injurycaused by a dangerous condition of its property if the plaintiffestablishes that the property was in a dangerous condition at thetime of the injury, that the injury was proximately caused by thedangerous condition, that the dangerous condition created areasonably foreseeable risk of the kind of injury which was incurred,and that either:(a) A negligent or wrongful act or omission of an employee of thepublic entity within the scope of his employment created the

dangerous condition; or(b) The public entity had actual or constructive notice of thedangerous condition under Section 835.2 a sufficient time prior to theinjury to have taken measures to protect against the dangerouscondition.CACI 1100, stating the essential elements of a claim for dangerouscondition of public property, tracks this statutory language.CACI 1102 defines “dangerous condition” for purposes of a claimunder Government Code Section 835:1102 Definition of “Dangerous Condition” (Gov. Code, Section830(a))A “dangerous condition” is a condition of public property that createsa substantial risk of injury to members of the general public when theproperty [or adjacent property] is used with reasonable care and in areasonably foreseeable manner. A condition that creates only a minorrisk of injury is not a dangerous condition. [Whether the property isin a dangerous condition is to be determined without regard towhether [[name of plaintiff]/ [or] [name of third party]] exercised orfailed to exercise reasonable care in [his/her] use of the property.]As to the last sentence, the Directions for Use says this:Give the last sentence if comparative fault is at issue. It clarifies thatcomparative fault does not negate the possible existence of adangerous condition. (Fredette v. City of Long Beach (1986) 187Cal.App.3d 122, 131 [231 Cal. Rptr. 598].)So, based on the statute and these instructions, to succeed on thisMotion, IRWD must show there was no substantial risk of injury toChen when the property, including the gate, was used withreasonable care and in a reasonably foreseeable manner. It has notdone so.IRWD has offered no evidence showing what Chen would have seenat the time of the impact. Evidence it does offer shows that the gateis designed with a long section of the end of the gate that swingsopen that is a single, tube of metal. Attorney Roman Declaration, Ex.D. It is this tubular end that pierced the windshield of Chen’s

truck. Attorney Roman Declaration, Exs. E - G. Although the gateappears to be painted blue in Ex. D, in Exs. E - G it appears to bepainted white and could easily blend in with the roadway orsurrounding areas. Further, there are no photographs taken fromChen’s vantage point in the truck. What should he have seen? Theanswer to this question of whether there was a substantial risk ofinjury.As stated in CACI 1102, Chen’s negligence does not negate IRWD’sduty to operate its property without dangerous conditions. As statedin Fredette, supra, at p. 131:The negligence of a plaintiff-user of public property, therefore, is adefense which may be asserted by a public entity; it has no bearingupon the determination of a “dangerous condition” in the firstinstance. (Callahan v. City and County of San Francisco (1967) 249Cal.App.2d 696, 702-703 [57 Cal.Rptr. 639]; Van Alstyne, Cal.Government Tort Liability Practice (Cont.Ed.Bar 1980) § 3.12, pp.198-201.) (5b)So long as a plaintiff-user can establish that acondition of the property creates a substantial risk to any foreseeableuser of the public property who uses it with due care, he hassuccessfully alleged the existence of a dangerous condition regardlessof his personal lack of due care. If, however, it can be shown that theproperty is safe when used with due care and that a risk of harm iscreated only when foreseeable users fail to exercise due care, thensuch property is not “dangerous” within the meaning of section 830,subdivision (a). (Fuller v. State of California (1975) 51 Cal.App.3d926, 939-940 [125 Cal.Rptr. 586].)Looking at the photos, that particular gate when it swings into theroadway can be a dangerous condition. IRWD has not shown that therisk of harm is created only when a user of the road doesn’t exercisedue care, and, honestly, it doesn’t seem that it can. All the evidenceof speed, location, and so forth does not go to the question ofdangerous condition under the facts of this case.For these reasons, it has not met its burden of proof.Has Chen shown a trible issue of material fact? Yes.Even if IRWD had met its burden, Chen has shown a triable issue ofmaterial fact on the element of dangerous condition.The strongest evidence on the issue of dangerous condition is found

in the Declaration of Forensic Engineer [expert] Mark Burns andplaintiff Chen. Burns says the roadway was in a dangerous conditionat the time of the incident, explaining why. Burns Declaration,paragraph 8. He says Chen was operating his truck in a reasonablemanner with due care at the time of the incident. Paragraph9. Finally, he opines that IRWD’s employee, Costantino, created orsubstantially contributed to the dangerous condition by not securingthe gate to the receiving post after he opened it so that it couldn’tswing back into the roadway, even though he knew it could do so.Paragraph 10. In his Declaration, Chen says the gate was alreadyopen when he arrived. Paragraph 4. As he was driving down theroad to leave the property, he didn’t know the gate had swung backinto the roadway. Paragraph 6. He says the gate was white.Paragraph 8. He didn’t see it before it impaled his windshield, andstates the reasons he thinks this was the case. Paragraph 9. Thisevidence is sufficient to show a triable issue of material fact.4. 13-661398COAST SOUTHWEST, INC. ACALIFORNIA CORPORATIONVS. PATNODE1. Defendant’s demurrer to the 3 rd and 4 th causes of actions isSUSTAINED without leave as to the internet postings. Assumingeven that the claims are not barred by the statute of limitations, theCareerBliss posting is no more than opinions offered in response tospecific questions. Although unquestionably negative, it representsdefendant’s personal beliefs and includes no facts subject to proof.Plaintiff’s strained interpretation of the LinkedIn posting and use ofselective citations in support of a libel per se theory connected toplaintiffs’ alleged unchaste behavior and then extended to potentialemployees’ fear of same-sex sexual harassment simply cannot besaved by amendment. The remaining allegation in paragraph twentymay support these causes of action, if amended. Plaintiff has 10days to amend as to this theory of defamation only.5. 10-364382GORR VS. UNIVERSALINTERACTIVE, LLC2. The motion to strike is MOOT.Cross-Defendants Universal Interactive LLC, Universal InteractiveLicensing LLC, and Joel Shamitoff’s Demurrer to the Cross-Complaintis construed as a Motion to Strike the Cross-Complaint.“The proposition that a trial court may construe a motion bearing onelabel as a different type of motion is one that has existed for manydecades. ‘The nature of a motion is determined by the nature of therelief sought, not by the label attached to it. The law is not a meregame of words.’” (Sole Energy Co. v. Petrominerals Corp. (2005) 128Cal. App. 4th 187, 193.) The Court therefore construes the Demurreras a Motion to Strike.The Cross-Complaint filed by Gorr in the 2 nd Action (Case No. 10-397074) is exactly the same as the Second Amended Complaint filedby Gorr in the 1 st Action (Case No. 10-364382). Thus, the Cross-Complaint is “irrelevant, false, or improper” to the extent that it isrepetitive and superfluous of the Second Amended Complaint. Cross-Complainant may not circumvent the Court’s ruling with respect tothe pleadings filed in the 1 st Action by filing the exact same pleadingin the 2 nd Action.Therefore, the Court STRIKES the Cross-Complaint filed in the 2 ndAction.

Moving parties are to give notice.6. 13-647354GRANITE SERVICES LLC VS.RIMEL1. DEMURRER TO ORIGINAL COMPLAINTDefendant PETER J. RIMEL demurs to all 4 causes of action in theOriginal Complaint of Plaintiff GRANITE SERVICES LLC. The courtOVERRULES the demurrer on all of the grounds that Rimel raises asto all 4 causes of action.The court DENIES in part and GRANTS in part with leave to amendDefendant Rimel’s motion to strike.I. Judicial NoticeDefendant Rimel asks the court to take judicial notice of Exhibits A –C, attached to his demurrer. The court DENIES this request for 3reasons --A. No DeclarationFirst, Rimel fails to submit a declaration that separately identifies andauthenticates each document.Rimel attempts to identify some of the documents in his demurrerand memo of points and authorities. But the descriptions areincomplete and inadequate. For example, it is unclear of how manypages each document consists.Furthermore, statements made by counsel in the demurrer andmemo of points and authorities are not evidence because they arenot expressly subscribed “under penalty of perjury of Californialaw.” (CCP 2015.5; Kulshrestha v. First Union Commercial Corp.(2004) 33 Cal.4th 601.)“The only evidence the trial court should have considered and whichwe may consider here is that contained in the declarations filed insupport of and in opposition to the motion. The matters set forth inthe unverified ‘Statement of Facts’ and in memoranda of points andauthorities are not evidence and cannot provide the basis for thegranting of the motion.” (Smith, Smith & Kring v. Superior Court(1997) 60 Cal.App.4th 573, 578.)“It hardly bears mentioning that argument of counsel is neither adeclaration nor admissible as evidence in court.” (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1518.)B. Exhibits Confusing

Second, the Exhibits are very confusing because many blank pagesare interposed, several pages are illegible, and several exhibitsconsist of multiple documents that are not separately identified.C. Facts Asserted in Documents Not Judicially NoticeableThird, even if the court were to take judicial notice that, for example,Exhibit A was a complaint that Stephen Maready sent to the State Barregarding misconduct by attorney Peter J. Rimel, the court still couldnot have taken judicial notice of the truth of any facts assertedtherein, to the extent such facts are reasonably subject to dispute.A court may take judicial notice only of facts not reasonably open todispute – for example – that Costa Mesa is a city in Orange County,California; or that George Washington was the first president of theUnited States. (Evid. Code 451 (f); 452 (g), (h).) But whetherattorney Rimel did or did not engage in misconduct amounting to abreach of contract is a fact reasonably open to dispute.Had Rimel filed a proper declaration and properly identified thedocuments, the court could have taken judicial notice that Mareadysubmitted a complaint to the State Bar. But the court COULD NOThave taken judicial notice of the truth of facts alleged in Maready’scomplaint. (Fontenot v. Wells Fargo Bank N.A. (2011) 198Cal.App.4 th 256, 265.)“A court may take judicial notice of the fact of a document’srecordation, the date the document was recorded and executed, theparties to the transaction reflected in a recorded document, and thedocument’s legally operative language, assuming there is no genuinedispute regarding the document’s authenticity. From this, the courtmay deduce and rely upon the legal effect of the recorded document,when that effect is clear from its face.” (Ibid.)But a court may not take judicial notice of the truth of factualrepresentations, made in the recorded document, that are reasonablyopen to dispute. (Ibid.)II. Plaintiff Sued Wrong Defendant; Uncertain and AmbiguousOVERRULE.First, Defendant Rimel merely asserts, in conclusory fashion, thatPlaintiff has sued the wrong defendant. But he fails to raise anycoherent argument or cite any evidence to support this assertion.

Rimel argues that the Complaint in this case and Maready’s complaintto the State Bar are nearly identical, except that Maready filed theState Bar complaint against Rimel as an attorney and Granite filedthis Complaint against Rimel as an individual.This argument fails because the court did not take judicial notice ofthe State Bar complaint. Even if this court were to take judicialnotice of it, the State Bar complaint does not show that Plaintiff issuing the wrong defendant. Rimel fails to cite any case law insupport of his dubious argument.Second, Rimel also asserts that the Complaint is vague andambiguous, because it is impossible to tell who was allegedlyaggrieved and who was allegedly liable. But this argument failsbecause the Complaint clearly alleges its claims and the parties’roles.Third, Rimel asserts that his law office is a necessary party. But hecites no legal authority in support of this assertion.III.Rimel, as an Individual, Owed Granite No Duty of CareOVERRULE --as to the 1 st cause of action for Negligence.The Complaint alleges that “Granite wired the requisite fee to the LawOffices of Mr. Peter J. Rimel in care of his firm’s trust account.” Rimelargues that he, as an individual, owed no duty of care to Granite,because Granite wired the money to his law office, not to him as anindividual. On this ground, Granite demurs to the 1 st cause of actionfor Negligence.But this argument fails because there is no evidence before the courtthat Rimel’s law office is a separate legal entity under Californialaw. No such allegation appears on the face of the Complaint andRimel presents no judicially noticeable evidence to prove that his lawoffice is a legal entity separate and distinct from him as an individual.IV.Rimel Owed Granite No Contractual or Fiduciary Duty

OVERRULE –as to the 2 nd and 3 rd causes of action for Breach of Contract andBreach of Fiduciary Duty.Defendant Rimel notes correctly that the Complaint contains noallegations that he entered into any oral or written contract directlywith Granite. So Rimel argues that he owed no contractual orfiduciary duty to Granite. And Rimel concludes that the 2 nd and 3 rdcauses of action therefore fail to state claims against him.But this argument fails because the Complaint alleges that (i) Rimelwas a party to both the first and second Account ServicesAgreements, and that (ii) Rimel was named as the Escrow Agent forthe transaction, with the responsibility to verify “that the account isset up authentically and correctly.” It is well-established that as ageneral rule, “[a]n escrow holder is an agent and fiduciary of theparties to the escrow.” (Summit Financial Holdings Ltd. v.Continental Lawyers Title Co. (2002) 27 Cal.4 th 705, 711.)Rimel argues correctly that there is no clear allegation in theComplaint that he was an employee of Granite. But that argument isirrelevant because, as noted in the paragraph above, a contractualduty is alleged.V. 4 th Cause of Action Fails to Properly Allege ConversionOVERRULE –as to the 4 th cause of action for Conversion.First, Rimel argues that the Complaint, prior to paragraph 27, doesnot allege that he converted anything. But this argument isirrelevant because paragraph 27 does allege that he converted thecash service fee.Second, Rimel ask the court to take judicial notice of page 2 ofExhibit D. But the court DENIES the request for the reasons set forthin section I above.Third, Rimel argues that neither he as an individual, nor he as alawyer, nor his law office ever saw or signed the Account ServiceAgreements. But this factual allegation does not appear on the faceof the Complaint, nor may the court take judicial notice of such a

fact, which is reasonably subject to dispute.On a demurrer, the court must accept as true the allegations of theComplaint, no matter how unlikely or improbable. (Del E. WebbCorp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593,604.) And here the Complaint alleges that Rimel was a party to theService Agreements and owed a contractual and fiduciary duty toGranite.Finally, the 4 th cause of action does appear to properly allege theelements of conversion. (CACI 2100.)2. MOTION TO STRIKEA. Attorney’s FeesGRANT with leave to amend.Defendant argues correctly that the Complaint fails to allege astatutory, contractual, or equitable basis for recovery of attorney’sfees. Plaintiff may not seek attorney's fees unless it properlyalleges a contractual, statutory, or equitable basistherefor. (Summers v. Newman (1999) 20 Cal.4th 1021, 1031; Civ.Code, § 1717 (a).In its Complaint, Plaintiff cites no applicable statute. And Plaintiff hasnot properly pled the existence of a contractual term awardingattorney’s fees. Plaintiff has not attached a copy of thecontract. Though Plaintiff appears to have pled some essential termsverbatim and to have pled some essential terms by their effect. ButPlaintiff has not pled the terms of the attorney’s fees provision, ifany.In the Complaint, Plaintiff refers to the 1 st Account ServicesAgreement at Exhibit A, but there is no such exhibit attached to thescanned copy of the Complaint. Plaintiff also refers to the 2 ndAccount Services Agreement, but no copy is attached to theComplaint.The plaintiff has the option of pleading the contract terms verbatim,attaching a copy of it, or pleading its legal intendment andeffect. (Wise v. Southern Pacific Co. (1963)223 Cal.App.2d 50, 59 [“As to the contract, where a writteninstrument is the foundation of a cause of action, it may be pleadedin haec verba by attaching a copy as an exhibit and incorporating itby proper reference.”]; Scolinos v. Kolts (1995) 37 Cal.App.4th 635,640, 44 Cal.Rptr.2d 31, 34 [“A contract should be pleaded either in

haec verba or according to its legal intendment and effect.”].)“A written contract is usually pleaded by alleging its making and thensetting it out verbatim (‘in haec verba’) in the body of the complaintor as a copy attached and incorporated by reference.” (4 Witkin,California Procedure [4th ed. 1997 & 2001 Supp.], Pleadings § 479,p. 572.)“The other method of pleading a written contract is according to itslegal effect, by alleging the making, and then proceeding to allegethe substance of its relevant terms. That a contract may be pleadedin its legal effect and need not be set forth in haec verba isthoroughly settled.” (Pneucrete Corp. v. United States Fidelity &Guaranty Co. (1935) 7 Cal.App.2d 733, 741-742.)B. Punitive DamagesDENY.Defendant argues correctly that it is unclear under which causes ofaction Plaintiff is seeking punitive damages. Defendant arguescorrectly that a breach of contract claim will not support an award ofpunitive damages.The motion to strike is DENIED because Plaintiff’s 4 th cause of actionfor conversion is a tort claim which presumably would supportrecovery of punitive damages.But in his amended pleading, Plaintiff must specify under whichcauses of action he is seeking punitive damages.C. Duplicative ArgumentsDENY.The rest of Defendant’s arguments fail for two reasons. First, theyare not proper arguments on a motion to strike. Second, they areduplicative of arguments that Defendant already raises in support ofhis demurrer. So they are addressed above in sections I – V.

D. Statute of LimitationsDENY. The court need not consider this argument because it is not aproper ground for a motion to strike. The argument must be raisedon a general demurrer. (Saliter vs. Pierce Bros. Mortuaries (1978) 81Cal. App. 3d 292, 300.)Even if the court were to consider the argument, the court would stillDENY it, because the facts alleged on the face of the Complaint donot “clearly and affirmatively” show that the claims are NECESSARILYtime-barred by the statute of limitations. It is not enough that theclaims MIGHT be barred. (Marshall vs. Gibson, Dunn & Crutcher(1995) 37 Cal. App. 4 th 1397, 1403.)Defendant argues that it is Plaintiff’s burden to plead essentialdates. But he cites no authority to prove his assertion that Plaintiff isrequired by law to allege dates as an essential element of each of hiscauses of action.On the contrary, dates are not essential elements for a cause ofaction for breach of contract. CACI4100-4107, which relate to certaintypes of claims for breach of fiduciary duty, do not specify that datesof breach are essential elements of the cause of action. SoDefendant fails to carry its burden to prove that.Defendant’s remedy is to serve discovery to obtain more specificdates and information about the alleged breaches, raise the statute oflimitations as an affirmative defense in its answer, and then bring amotion for summary judgment on the ground that the claims aretime-barred.(United Western Medical Centers vs. Superior Court(1996) 42 Cal. App. 4 th 500, 505, citing Carbide.On or before October 8, 2013, Plaintiff may file a First AmendedComplaint that corrects the defects noted above. All new allegationstherein shall be set forth in boldfact type.Plaintiff shall serve notice of this ruling.8. 12-600786 MAHAFFEY VS.BERGER KAHNThe Court DENIES defendant’s motion for $66,290 in attorney feessought pursuant to CCP 425.16(c) and awards the reasonable sum of$22,500 to defendant. This sum represents 60 hours at the blendedhourly rate of $375, which the Court views as very appropriate inlight of the facts in this matter.This matter involved no complex issues and required only themost basic analysis

This action alleged a single claim for malicious prosecution. Becausethe underlying litigation automatically satisfied the first elementnecessary to succeed on an anti-SLAPP motion it required minimalresearch. For purposes of the anti-SLAPP Act, “[E]very claim ofmalicious prosecution is a cause of action arising from protectedactivity because every such claim necessarily depends upon writtenand oral statements in a prior judicial proceeding. [Citation.]”(Daniels v. Robbins (2010) 182 Cal. App. 4th 204, 215.)Accordingly, defendant need then only determine whether plaintiffhad established that it was likely that he would prevail.Defendant, nevertheless, characterizes this matter as involving “amultiplicity of complex facts and legal issues,” apparently becausethere were two preceding actions and two appeals. The motionthereby necessitated intensive review and analysis of those matters,with one proceeding generating 145 boxes of documents. Defendantposits that the hours are demonstrably reasonable, as the litigationwas divided into separate stages. Defendant also asserts additionaleffort was necessitated by plaintiff’s various misstatements. TheCourt does not share this view.“To establish a cause of action for the malicious prosecution of a civilproceeding, a plaintiff must plead and prove that the prior action (1)was commenced by or at the direction of the defendant and waspursued to a legal termination in his, plaintiff's, favor; (2) wasbrought without probable cause; and (3) was initiated with malice.”(Crowley v. Katleman (1994) 8 Cal.4 th 666, 676.)As this court noted in its ruling, the jury’s special verdict included afinding that Mahaffey had breached his fiduciary duties to his clientsto pay appeal costs, to provide a proper accounting and by making aCCP 998 offer without their authorization. Although the net recoverywas in favor of Mahaffey and the trial court ultimately decided theaccounting issue, the jury did find that Mahaffey had engaged inmalpractice. These specific findings—that Mahaffey breached dutiesowed to his clients—thus established that the malpractice suit wouldnot have been viewed by a reasonable attorney as completely lackingin merit. Accordingly, the jury verdict is conclusive as to both the firstand second factors.Again, as discussed by the Court in its ruling, in support of his maliceallegations, Mahaffey cited to evidence submitted at trial. The Courtand the jury had full opportunity to consider this evidence and theanti-SLAPP motion did not require this Court to retry the disputesrelated to that evidence. It is the outcome of the case, i.e., the legaldetermination that, in some instances Mahaffey was in breach, whichestablished the absence of malice.The cases cited by defendant do not support the extraordinaryfees claimed, the number of hours expended, or the motionitselfBy way of example, despite the nearly 82 hours expended inresearching and preparing the motion, Berger Kahn mistakenlycontended that denial of non-suit as to particular malpractice issuesin the underlying matter precluded a malicious prosecutionaction. Not so. In Wilson v. Parker (2002) 28 Cal.4 th 811, 824, thecourt actually distinguished between the two applicable standards—whether a claim is arguably tenable (standard for malicious

prosecution) or whether it is likely meritorious (standard for CCP425.16).The Wilson court cites to Lucchesi v.Giannini (1984) 158 Cal.App.3d777, which found: “[E]ven when the denial [of summary judgment]is based on the first ground that a material issue of fact does exist,this procedure still falls short of a hearing on the merits.” [Citations]The decision goes on to hold, as well, that denial of a nonsuit motiondoes not establish probable cause because a nonsuit must be denied“if there is any substantial evidence tending to prove all thecontroverted facts necessary to establish the plaintiff's case,” aconclusion that, like denial of summary judgment, is “not adetermination on the merits.” [Ibid]This latter part of Lucchesi's reasoning has been undermined by thiscourt's subsequent decision in Sheldon Appel. As discussed above,our decision in that case clarified that probable cause to bring anaction does not depend upon it being meritorious, as such, but uponit being arguably tenable, i.e., not so completely lacking in apparentmerit that no reasonable attorney would have thought the claimtenable.” It is apparent that the Wilson court did not hold, asdefendant urges, that a denial of a non-suit bars all claims formalicious prosecution. This misinterpretation, for whatever reason, isone example of the difficulty in reconciling the expertise claimed andthe extraordinary number of hours expended with the motion itself.The Court further observes that the cases cited by defendant do notinclude any complaints for malicious prosecution and are applicableonly in the remote sense that the trial court’s fee award was notdisturbed. In Ketchum v. Moses (2001) 24 Cal.4 th 1122 thecomplicated matter involved “years of contentious litigation andprolonged delays,” including a full evidentiary hearing, includingexperts to determine the fee award. The Ketchum court,nevertheless, cited to Serrano v. Priest (1977) 20 Cal.3d 25, statingthat that “In referring to “ reasonable” compensation, we indicatedthat trial courts must carefully review attorney documentation ofhours expended; “padding” in the form of inefficient or duplicativeefforts is not subject to compensation.” The Ketchum court furthernoted: “To the extent a trial court is concerned that a particularaward is excessive, it has broad discretion to adjust the feedownward or deny an unreasonable fee altogether.’”Again, Rosenaur v. Scherer (2001) 88 Cal.App.4th 260 isdistinguishable as it involved multiple defamation claims, publicfigures, recklessness, property recordation and publicationdisputes. In Bernardo v. Planned Parenthood Federation (2004) 115Cal.App.4 th 322, the losing plaintiff did not appeal the attorney fee atall. In its 43-page opinion the court instead addressed plaintiff’sConstitutional challenges to the application of CCP 425.16 to hercomplaint, which included the trial court’s ability to award attorneyfees, characterized by Bernardo, as “draconian penalties.”Because the trial court is in the best position to assess thedifficulty of the case, the level of skill required and thereasonableness of the hours expended, it need not simplyaward the sum requestedCCP 425.16(c)(1) requires an award of attorney fees and costs to aprevailing defendant. “Except as provided in paragraph (2), in anyaction subject to subdivision (b), a prevailing defendant on a specialmotion to strike shall be entitled to recover his or her attorney's feesand costs.”

In Christian Research Institute v. Alnor (2008) 165 Cal.App.4 th 1315,the leading case on the trial court’s discretion in determination of anattorney fee award, the appellate court sustained an attorney feereduction from the requested $250,000 to $21,300. The appellatecourt explained: “Because the Legislature specified the prevailingdefendant “shall be entitled to recover his or her attorney's fees andcosts” (Section,425.16, subd. (c)), an award is usually mandatory.The Legislature, however, did not intend recovery of fees and costsas a windfall. [noting “ironic unintended consequence that anti-SLAPPprocedures, enacted to curb abusive litigation, are also prone toabuse”].) The prevailing party is entitled to a reasonableaward. Consequently, the trial court need not simply award the sumrequested. To the contrary, ascertaining the fee amount is left to thetrial court's sound discretion. Trial judges are entrusted with thisdiscretionary determination because they are in the best position toassess the value of the professional services rendered in their courts.[“trial court has its own expertise” on the question of fees].)”[Internal citations omitted]10. 12-569850RAMIREZ VS. SIMPLEMOBILE, LLCHere, for these reasons, the hours expended on the instant anti-SLAPP motion are neither justified nor reasonable.Defendant’s Motion for an Order Sealing the entire record in this caseis DENIED.Defendant has failed to meet its burden of establishing individualswhose names are included in the Complaint have an overridinginterest that will prejudiced if the documents in this action remainpublic. Further, even if the burden had been met, the proposed orderis not narrowly tailored. California Rule of Court Rule 2.550Even if the Court concluded that an overriding interest based upon asubstantial probability of prejudice had been established, the Orderrequested is not narrowly tailored.Apart from the fact that the proposed Order cites no specific facts insupport of the conclusion that an overriding interest supports sealingthe record, it seeks to seal the entire record. This is certainly notsupported. On page 6 of its P&A, LLC specifies the parts of theComplaint it is concerned about. It goes on to say that thoseallegations are “likely” to “permeate” the entire record so the wholething should be sealed. A brief look at the areas of concern showsthat a lot of the areas concern LLC owners, officers, or managers andtheir lack of response to Ramirez’s complaints. Further, all of theareas include descriptions of conduct, not just names. If there werea reason to seal anything, just sealing the names would take care ofthe problem. If LLC is really concerned about the job prospects ofany individual, removing individual names would be enough.11. 11-493580 RICHARDS VS.PIROZZIThe Court GRANTS the unopposed motion of Defendants LEWIS J.PIROZZI and LISA L. PIROZZI to enter summary judgment in theirfavor and against Plaintiff VIC RICHARDS on all 3 causes of actionalleged in her First Amended Complaint filed on 5/21/12. (CCP437c.) Plaintiff has filed no Opposition.On 6/11/13, this Court granted Defendants’ motion to deem admittedtheir first set of RFA’s 1-20 from plaintiff. Therefore, Plaintiff admits:

(1) that she was not injured from the fall on 7/22/09,(2) that she has no medical evidence of any injury, and(3) that she has no facts, witnesses, or evidence to support herallegations that –(a) she tripped and fell due to a lack of exterior lighting,(b) that Defendants failed to properly maintain exterior lighting, (c)that Defendants failed to properly maintain the premises,(d) that the stairs leading to her apartment were defective, or(e) that prior to 7/22/09 she made any report or complaintto Defendants regarding lighting on the premises.Because the court deemed plaintiff to have admitted the truth ofthese matters, Defendants have established them conclusively, sothat they are incontrovertible and are effectively removed from theissues. (Pinewood Investors v. City of Oxnard (1982) 133 Cal.App.3d1030, 1035.) Defendants have negated key elements of Plaintiff’sclaims and have shown, as a matter of law that Plaintiff cannot prove-- (i) that Defendants were negligent or (ii) that Plaintiff suffered anydamages or injury due to her fall. (Separate Statement, Facts 1-2,Evidence in Support at Exs. A-B.)Plaintiffs shall (A) serve and submit a proposed judgment, and (B)serve notice of this ruling.12. 12-605437HARVEST STRATEGY GROUPVS. ERICKSON13. 11-522861 COMMERCIALRESOURCES TAX GROUPINC. VS. HERNANDEZDefendant’s unopposed Motion to Set Aside Entry of Default andDefault Judgment is GRANTED.The Court finds the Motion is timely and a lack of actual notice intime to defend the action was not caused by defendant’s avoidance ofservice or inexcusable neglect.Defendant’s Answer is deemed filed as of the date of the hearing. Itis to be served per Code.1-2 Plaintiff/Cross-Defendant Commercial Resources Tax Group, Inc.and Cross-Defendant Douglas Duckworth’s Motion to CompelDefendant/Cross-Complainant Michael Araghi to respond to thefollowing discovery requests is GRANTED: (1) Commercial’s first setof Requests for Production of Documents; (2) Duckworth’s first set ofRequests for Production of Documents; (3) Commercial’s second setof Special Interrogatories; and (4) Duckworth’s first set of SpecialInterrogatories. Araghi is ordered to provide verified responses,without objections, to the discovery requests within 10 days. Araghiand his attorneys of record are to pay $410.00 in sanctions for eachmotion (totaling $820.00) within 30 days. Moving party is to givenotice.3-4 Plaintiff/Cross-Defendant Commercial Resources Tax Group, Inc.

and Cross-Defendant Douglas Duckworth’s Motion to CompelDefendant/Cross-Complainant Andrew Hernandez to respond to thefollowing discovery requests is GRANTED: (1) Commercial’s first setof Requests for Production of Documents; (2) Duckworth’s first set ofRequests for Production of Documents; (3) Commercial’s second setof Special Interrogatories; and (4) Duckworth’s first set of SpecialInterrogatories. Hernandez is ordered to provide verified responses,without objections, to the discovery requests within 10days. Hernandez and his attorneys of record are to pay $410.00 insanctions for each motion (totaling $820.00) within 30 days. Movingparty is to give notice.5-6 Plaintiff/Cross-Defendant Commercial Resources Tax Group,Inc. and Cross-Defendant Douglas Duckworth’s Motion to CompelDefendant/Cross-Complainant MATAX, LLC to respond to thefollowing discovery requests is GRANTED: (1) Commercial’s first setof Requests for Production of Documents; (2) Duckworth’s first set ofRequests for Production of Documents; (3) Commercial’s second setof Special Interrogatories; and (4) Duckworth’s first set of SpecialInterrogatories. MATAX, LLC is ordered to provide verified responses,without objections, to the discovery requests within 10 days. MATAX,LLC and its attorneys of record are to pay $410.00 in sanctions foreach motion (totaling $820.00) within 30 days. Moving party is togive notice.

3.8.13-628169 LABELSPECIALTIES, INC. VS.WETTERHUS12-607285 WETTERHUSVS. LABEL SPECIALTIES,INC.I. Defendants’ Motion to Stay Dissolution ActionDefendants LABEL SPECIALTIES INC. (LSI) and ROSSI/ JACK’SONINC. ask the court to stay the involuntary dissolution action whiletheir exercise their right to buy out Plaintiffs’ shares and to determinethe fair value of the corporation. (Corp. Code 2000 (a), (b).)In Opposition, Plaintiffs argue correctly that on 8/02/13 theydismissed their involuntary dissolution cause of action. So given thedismissal, Defendants have no statutory right to make any buy-outoffer and no right to stay the action. (Cubalevic v. Superior Court(1966) 240 Cal.App.2d 557, 562; Pankosta Partners LP v. HammerLane Management LLC (2011) 199 Cal.App.4 th 612, 631.)Plaintiffs shall serve notice of this ruling.II.forPlaintiffs’ Motion to Disqualify CounselDefendants1. Attorney-Client PrivilegeThe trial court’s power to disqualify an attorney derives from thecourt’s inherent power to control the conduct of its ministerial officersin all proceedings. (People v. SpeeDee Oil Change Systems Inc.(1999) 20 Cal.4 th 1135, 1145[simultaneous representation casewhere attorney did have confidential information]; Cf. Adams v.Aerojet-General Corp. (2001) 86 Cal.App.4 th 1324, 1336, fn.1.) “Every court shall have the power . . . to control in furtherance ofjustice, the conduct of its ministerial officers, and of all other personsin any manner connected with a judicial proceeding before it, in everymatter pertaining thereto.” (CCP 128 (a)(5).)In deciding a disqualification motion, the court’s paramount concernmust be to maintain the public’s trust in the integrity of the bar andin the fair administration of justice. So the right to counsel of one’schoice must yield to the fundamental need to maintain ethicalstandards of professional responsibility. (SpeeDee Oil (1999) 20Cal.4 th at 1145.)The attorney-client privilege is the foundation of our system ofjustice. It protects the confidentiality of attorney-clientcommunications and guarantees every client the right to confidefreely and fully in his counsel. Thus, it is every attorney’s solemnduty to maintain inviolate the confidence of his client, and at everyperil to himself to preserve the secrets of his client. (Bus. & Prof.Code 6068(e)(1); SpeeDee Oil (1999) 20 Cal.4 th at 1146.)State Bar Rule of Professional Conduct 3-310(E) protects theconfidentiality of the attorney-client relationship. (SpeeDee Oil(1999) 20 Cal.4 th at 1146, citing Flatt v. Superior Court (1994) 9Cal.4 th 275, 283-284.) It prohibits attorneys from acceptingemployment adverse to the former client, without the client’sinformed written consent. Rule 3-310 (E) provides that an attorneycannot “without the informed written consent of the client or formerclient, accept employment adverse to the client or former clientwhere, by reason of the representation of the client or former client,the member has obtained confidential information material to theemployment.”2. Substantial Relationship Test

Where a potential conflict arises from successive representation ofclients with adverse interests, the chief concern is protecting clientconfidentiality. The governing test is the “substantial relationship”test. The former client seeking to disqualify his previous attorneymust demonstrate a “substantial relationship” between the successiverepresentations. (Flatt (1994) 9 Cal.4 th at 283, citing Henriksen v.Great American Savings & Loan (1992) 11 Cal. App. 4 th 109, 117.)If the former client can show a substantial relationship, then theattorney’s access to confidential information during the firstrepresentation is PRESUMED and the attorney’s disqualification fromrepresenting the second client is mandatory. Indeed, thedisqualification extends vicariously to the entire new firm. (SpeeDeeOil (1999) 20 Cal.4 th at 1146; Flatt (1994) 9 Cal.4 th at 283, and casescited therein, including Henriksen (1992) 11 Cal.App.4 th at 117.)The test involves two prongs. First, the court must determine if adirect and personal attorney-client relationship was formed. Second,the court must determine whether there is a sufficient connectionbetween the two successive representations. The court may notinquire into the actual state of the lawyer’s knowledge acquired fromthe former client. If the court determines the attorney-clientrelationship was NOT personal and direct, then the court mustdetermine if the “attorney was positioned during the firstrepresentation so as to make it likely the attorney acquiredconfidential information relevant to the current representation, giventhe similarities or lack of similarities between the two.” (Jessen, 111Cal. App. 4 th 698, 710-711.)3. Preliminary Consultation Can Form Attorney-ClientRelationshipIn considering whether an attorney-client relationship has reached apoint where the attorney can be subject to disqualification for aconflict of interest, the court must begin with the early stages of therelationship. The fiduciary relationship extends to preliminaryconsultations by a prospective client seeking to retain the lawyer,even if actual employment does not result. (SpeeDee Oil (1999) 20Cal.4 th at 1147-1148.)When a party seeks and secures legal advice from an attorney, aprima facie attorney-client relationship is established. The absence ofa formal fee agreement does not prevent the relationship fromarising. (Ibid.) The primary concern is whether and to what extentthe attorney acquired confidential information. (SpeeDee Oil (1999)20 Cal.4 th at 1148, citing Henricksen (1992) 11 Cal.App.4 th at 113-114.)That question is not necessarily answered by the amount of timeinvolved. Even the briefest conversation can result in the disclosureof confidences. So a formal retainer agreement is not requiredbefore the fiduciary duties of loyalty and confidentiality attach. Forconflict of interest purposes, an attorney’s representation beginswhen the attorney knowingly obtains material confidentialinformation from the client and renders legal advice or services as aresult. (SpeeDee Oil (1999) 20 Cal.4 th at 1148.)A. Defendants’ Counsel Intercepted Attorney-Client Communications

DENY WITHOUT PREJUDICE on this ground.Plaintiffs represent that while responding to discovery theyinadvertently produced about 5 emails that constituted privilegedattorney-client communications that should have not beendisclosed. (Motion at p. 3; Bret and Thomas Decls. at paragraph2.) These emails were communications between L. ThomasWetterhus, Bret T. Wetterhus, and their former attorneys Ascher &Associates. (Bret and Thomas Decls. at paragraph 3, Ex.B.) Plaintiffs mistakenly sent “carbon copies” to their LSI accounts.Plaintiffs also allege that after Michael Gyure locked them out of theiremail accounts at LSI and ROSSI, Gyure accessed their LSI emailsand forwarded them to Robert Legate.But at this time, Plaintiffs fail to lay an adequate evidentiaryfoundation for their allegation that Michael Gyure improperlyaccessed their email account and forwarded privileged emails toRobert Legate. The allegations about what former counsel said to theWetterhus Plaintiffs are hearsay. Nor is it clear from the evidence,how long Legate was allegedly in possession of these privilegedcommunications. Furthermore, because much of the language hasbeen redacted, it is difficult for the court to determine who said whatto whom and when. And there is no declaration from a computerexpert to verify when the emails were composed, by whom, andwhen they were sent, received, or forwarded.B. Successive Representations.DENY on this ground.Bret T. Wetterhus bases his conflict claim on three priorrepresentations: (i) in the summer of 1994 he was involved in a jetskiing accident and was sued; (ii) in 1989 in a criminal matter; and(iii) in 1988 in a misdemeanor criminal matter. (Motion at p. 5,lines 1-10.) Bret Wetterhus expressly admits that: “All of these areexamples wherein Counsel represented Bret T. Wetterhusindividually, and had nothing to do with LSI.” (Motion at p. 5, lines10-11.)While the evidence makes a prima facie showing that an attorneyclientrelationship was formed, these prior representations are clearlyunrelated to the present civil litigation. So there is no substantialrelationship between this litigation and the three prior instances ofrepresentation. Therefore, there is no ethical conflict.C. Duty of Loyalty: Simultaneous Representation of ConflictingInterests of Corporation v. Shareholders/ Officers.DENY WITHOUT PREJUDICE on this ground.Because LSI is a closely held corporation and because attorneyRobert Legate represents LSI, it is a very difficult question as towhether he also owes a duty of loyalty to Wetterhus and Gyurepersonally. (Gong v. RFG Oil Inc. (2008) 166 Cal. App.4 th 209.) ButPlaintiffs present no clear evidence that Legate formally undertookrepresentation of Gyure personally or Wetterhus personally, insubstantially related matters, which would create a presentconflict. In the letter at Ex. C, Legate expressly states that he isrepresenting only the company and not Bret Thomas Wetterhuspersonally.

D. Request for SanctionsDENY.In their Motion, Plaintiffs argue that the court may sanctionDefendants’ counsel for breaching their ethical duty to returnattorney-client privileged communications. (Bak v. MCL FinancialGroup Inc. (2009) 170 Cal. 4 th 1118, 1126-1127; Rico v. MitsubishiMotors Corp. (2007) 42 Cal.4 th 807, 815-816.)In Opposition, Defendants argue correctly that the notice of motion isdefective. While the motion does comply with the requirements ofCRC 2.30 (c), the notice of motion is defective because it fails tocomply with the requirements of CCP 1010 and CRC 3.1110(a). Here, the notice of motion does not mention any request forsanctions.E. Defendants’ Objections to EvidenceBrett Wetterhus Decl.1. OVERRULED.2. SUSTAINED.3. SUSTAINED.4. SUSTAINED.5. SUSTAINED.6. SUSTAINED.L. Thomas Wetterhus Decl.1. SUSTAINED.2. SUSTAINED.3. SUSTAINED.4. SUSTAINED.5. SUSTAINED.6. SUSTAINED.7. SUSTAINED.Defendants shall serve notice of this ruling.Label Specialties Inc. v. Wetterhus (2013-00628169)III.Defendants’ Motion to Disqualify Counsel for PlaintiffsSee ruling in section II above.4. 13-645862 MAHONEY VS.FORD MOTOR COMPANYPlaintiff’s motion for reconsideration is DENIED. The court findsthere is no new law upon which to reconsider its prior ruling ondefendant’s demurrer to the complaint.Plaintiff asserts that he could not legally cite to Donlen until theremittitur came down which then made the case published. Plaintiffoffers no legal basis for this contention. The case appeared on TheAppellate Court’s Official Website on June 18, 2013, as an opinioncertified for publication. Per CRC Rule 8.1115(d), a publishedCalifornia opinion may be cited or relied on as soon as it is certifiedfor publication or ordered published. It was valid case authority atthe time of the opposition and at the hearing and should havetherefore been included. There was no issue of review by the

Supreme Court here. Therefore, it is not new law for this Court toreconsider its ruling on the demurrer.At the very least, plaintiff should have based on his incorrectunderstanding of the law on citable case authority, apprised this courtof the case in his opposition and at the hearing that it was awaitingremittitur and would become published to his understanding – soon,and request a continuance of the demurrer to allow this law tobecome authority if he believed it changed the law and would affectthe court’s ruling. He failed to do this.Defendant presents evidence that plaintiff's counsel has beenpleading this "new" theory of delayed discovery in other Complaintsand a trial brief filed by their office for months. Thus plaintiff wasaware of the Donlen case at the time he filed opposition and at thehearing on the demurrer.Plaintiff is relying on Donlen to change the allegations in hiscomplaint, i.e., his facts as to when he discovered the defects in histruck and that Ford could not warranty or repair them. Plaintiff hasconsistently alleged that he discovered the defects and realized thatFord could not repair his truck in 2008. Now based on the ruling inDonlen, plaintiff wants to contradict his previous allegations regardinghis discovery date to now allege that he really didn’t discover thedefects and Ford’s failure to repair until late 2009, which wouldsuddenly make his claims timely. This cannot be allowed on a motionfor reconsideration. In the demurrer the Court merely assumed thetruth ofPlaintiff’s allegations, that he discovered his claims in 2008. This wasa fact within plaintiff’s personal knowledge. Plaintiff cannot changehis facts to conform to new law in an effort to obtain the benefit ofthe new law.The holding in Donlen v. Ford Motor Company is not applicable to thefacts herein. Donlen merely found that a trial court did not abusediscretion by permitting evidence of post-warranty repairs in a breachof warranty case. The court only addressed evidentiary issues andfound that post-warranty repair evidence may be admitted on a caseby case basis.Defendant to give notice of ruling.6. 12-566097 U.S. BANKNATIONAL ASSOCIATIONVS. SIVEThe court GRANTS the motion of Plaintiff U.S. BANK NATIONALASSOCIATION for an award of $223,207.30 in attorney’s fees. (CCP1033.5 (a)(10); ORS 130.185.)Plaintiff makes a prima facie showing that it was the prevailing partyin this matter. Accordingly, Plaintiff is entitled to recover itsattorney’s fees, as an element of its costs, if authorized by statute.Plaintiff makes no showing that it is entitled to recover fees underCalifornia law, under contract, or under a California statute. ButPlaintiff makes a prima facie showing that it is entitled to recover feesunder ORS 130.185. That statute provides that: “In a judicialproceeding involving the validity or administration of a trust, thecourt may award costs and expenses and reasonable attorney’s feesto any party, to be paid by another party or from the trust.” Thecourt finds that this matter involved the administration of a trust.The court found that Oregon law applied to this case because theJarman Trust was created and administered in Oregon, the trustorswere Oregon residents, and Plaintiff alleged that trustee U.S. BANK

was negligent regarding the unitrust conversion. Therefore, to theextent that California law and Oregon law conflict, the court finds thatOregon should control as to an award of attorney’s fees.The case of Shisler v. Sanfer Sports Cars Inc. (2008) 167 Cal.App.4 th1, 10-11, cited by Plaintiff, affirmatively shows that a California trialcourt does have discretion to award fees under a Florida statutewhere the claim is governed by Florida law.In Opposition, Defendant EDITH ANGELA SIVE cites ABF Capital Corp.v. Grover Properties Co. (2005) 126 Cal.App.4 th 204, 215, for theproposition that a California court must apply the law of the forumstate in the absence of a contractual choice-of-law provision. ButABF Capital does not so hold. On the contrary, the court must applya 3-part analysis and the outcome could go either way depending onthe various factors and considerations. Here, the considerationsweigh in favor of Oregon law.“If there is no contractual choice-of-law provision, and California isthe forum state, California employs a three-step examination todetermine which law to apply: [G]enerally speaking the forum willapply its own rule of decision unless a party litigant timely invokesthe law of a foreign state. In such event [that party] mustdemonstrate that the latter rule of decision will further the interest ofthe foreign state and therefore that it is an appropriate one for theforum to apply to the case before it.” (Ibid.)“[T]he foreign law proponent must identify the applicable rule of lawin each potentially concerned state and must show it materiallydiffers from the law of California. . . . [I]f the relevant laws of eachstate are identical, there is no problem and the trial court may findCalifornia law applicable to class claims. If, however, the trial courtfinds the laws are materially different, it must proceed to the secondstep and determine what interest, if any, each state has in having itsown law applied to the case. Despite materially different laws, thereis still no problem in choosing the applicable rule of law where onlyone of the states has an interest in having its law applied.” (Ibid.)“Only if the trial court determines that the laws are materiallydifferent and that each state has an interest in having its own lawapplied, thus reflecting an actual conflict, must the court take thefinal step and select the law of the state whose interests would bemore impaired if its law were not applied. In making thiscomparative impairment analysis, the trial court must determine therelative commitment of the respective states to the laws involved andconsider the history and current status of the states' laws' and thefunction and purpose of those laws. These rules apply whether thedispute arises out of contract or tort, and a separate conflict of lawsinquiry must be made with respect to each issue in the case.” (Ibid.)The determination of what constitutes reasonable attorney’s fees iswithin the sound discretion of the trial court. (Westside Communityfor Independent Living Inc. v. Obledo (1983) 33 Cal.3d 348,355.) The court finds that the fee amount that Plaintiff requests inthis case is reasonable in light of the nature of the litigation, itsdifficulty, the amount of work involved, the skill required, the successof the attorney’s efforts, his or her learning, age, and experience, theintricacies and importance of the litigation, the labor and necessityfor skilled legal training and ability in trying the cause, and the timeconsumed. (Contractors Labor Pool Inc. v. Westway Contractors Inc.(2001) 53 Cal.App.4 th 152, 168.)

Plaintiff shall serve notice of this ruling.7. 12-599206 VERDIN VS.GRANT WAYNE MILLERThe court GRANTS the motion of Defendant Grant Wayne Miller as tothe request for monetary sanctions in the reduced amount of $710,but DENIES WITHOUT PREJUDICE the request for terminatingsanctions and Defendant Safeco Insurance Company’s joinder to themotion.Plaintiff Felix argues that he did not willfully disobey the court’s orderbecause, due to immigration problems, he cannot presently enter theUnited States. Plaintiff has met his burden of showing a satisfactoryexcuse for the failure to appear at his deposition. Plaintiff shall haveuntil November 9, 2013 to appear for his deposition in Irvine,California, or any other location that the parties may agree to inwriting.Monetary sanctions of $710 are issued jointly and severally againstPlaintiff Jose Felix and his counsel of record for cancelling theafternoon before the scheduled deposition, which caused Defendantto incur cancellation fees. Sanctions are to be paid to Defendantwithin 45 days of notice of this ruling.9. 12-573543 VADURA VS.1 ST INTERNATIONAL, INC.Moving Party is ordered to give notice.The court DENIES the motion of Defendant HAE LEE for summaryjudgment/adjudication against Plaintiffs DANNIS VADURA and WEI“KEVIN” TSAI. (CCP 437c (f)(1).)Motion for Summary AdjudicationThe motion for summary adjudication is DENIED on the ground thatDefendant’s notice of motion and separate statement are bothdefective. The notice and separate statement fail to specify thecauses of action, affirmative defenses, claims for damages, or issuesof duty to be adjudicated. (CRC 3.1350 (b), (h); Schmidlin v. City ofPalo Alto (2007) 157 Cal.App.4 th 728, 744; Homestead Savings v.Superior Court (1986) 179 Cal.App.3d 494, 497-498.)Motion for Summary JudgmentThe motion for summary judgment is also DENIED for tworeasons. First, Defendant fails to carry her initial burden ofproduction, to show by a preponderance of the evidence, thatPlaintiffs DENNIS VADURA and WEI “KEVIN” TSAI cannot establishtheir alter ego theory of liability against HAE LEE.Defendant HAE LEE argues that she “has never owned any share inIST International, Inc. at any time.” (Sep. State., Fact 2.) ButPlaintiffs argue correctly that this fact, standing alone, is insufficientto disprove as a matter of law Plaintiff’s alter ego allegations.Defendant HAE LEE also argues that Plaintiffs’ devoid discoveryresponses prove that Plaintiffs do not possess and cannot reasonablyobtain needed evidence to prove their alter ego theory of liabilityagainst HAE LEE. (Sep. State., Fact 3.) But the discovery responsesare not devoid.On the contrary, in their responses to special interrogatories 4, 7, 10,13, 16, 19, 22, 25, 28, and 31, Plaintiffs stated that:(i) Albert Lee admitted in a declaration that he commingled hispersonal and corporate funds to defraud the IRS;

(ii) that Defendants failed to hold yearly shareholders’ and board ofdirectors’ meetings;(iii) that Defendants failed to maintain adequate minutes of board ofdirectors’ meetings; and(iv) that HAE LEE also commingled her personal and corporate funds.In Opposition, Plaintiffs also argue correctly that the issue of alterego liability is normally a question of fact. (Zoran Corp. v. Chen(2010) 185 Cal. App. 4 th 799, 811.) Furthermore, the general test ofalter ego liability involves a host of factors, including but not limitedto:(a) commingling of funds and other assets, failure to segregatefunds of the separate entities, and the unauthorized diversion ofcorporate funds or assets to other than corporate uses;(b) the treatment by an individual of the assets ofthe corporation as his own;(c) the failure to obtain authority to issue stock or to subscribe toor issue the same;(d) the holding out by an individual that he ispersonally liable for the debts of the corporation;(e) the failure to maintain minutes or adequatecorporate records, and the confusion of the records of theseparate entities;(f)the identical equitable ownership in the two entities;(g) the identification of the equitable owners thereof with thedomination and control of the two entities;(h) identification of the directors and officers of thetwo entities in the responsible supervision and management;(i)one(j)(k)(l)sole ownership of all of the stock in a corporation byindividual or the members of a family;the use of the same office or business location;the employment of the same employees and/or attorney;the failure to adequately capitalize a corporation;(m) the total absence of corporate assets,and undercapitalization;(n) the use of a corporation as a mere shell, instrumentality orconduit for a single venture or the business of an individual oranother corporation;(n) the concealment and misrepresentation of the identityof the responsible ownership, management andfinancialinterest, or concealment of personal businessactivities;(o) the disregard of legal formalities and the failureto maintain arm's length relationships among

elatedentities;(p) the use of the corporate entity to procure labor,services or merchandise for another person or entity;(q) the diversion of assets from a corporation by or toa stockholder or other person or entity, to the detrimentof creditors, or the manipulation of assets andliabilities between entities so as to concentrate the assets inone and the liabilities in another;(r) the contracting with another with intent toavoidperformance by use of a corporate entity as ashield against personal liability, or the use of a corporation asa subterfuge of illegal transactions; and(s) the formation and use of a corporation to transfer to it theexisting liability of another person or entity.“This long list of factors is not exhaustive. The enumerated factorsmay be considered ‘[a]mong’ others ‘under the particularcircumstances of each case.’” (Zoran Corp. v. Chen (2010) 185 Cal.App.4 th 799, 811-812.)Here, in their discovery responses, Plaintiffs have clearly raisedseveral of these relevant issues. So Defendant does not meet herinitial burden and the burden does not shift to Plaintiffs.Plaintiffs’ Opposition Show Triable Issues of Material FactEven assuming, for the sake of argument, that the burden hadshifted to Plaintiffs, the court would still DENY the motion forsummary judgment, because in their Opposition, Plaintiffs presentsufficient evidence to defeat the motion and to show that triableissues of material fact exist.In their Opposing Separate Statement, Plaintiffs raise the followingtriable issues of material fact, including but not limited to:Facts 4-5, 9-10: whether Albert Lee opened personal bank accountsin his own name, but funded them with money from IST Internationalin order to hide the money from the IRS. (Ex. 7, Albert Lee Decl. atp. 82; Ex. 1, Albert Lee Decl. at p. 77.)Fact 6: whether Albert Lee commingled his funds and communityproperty funds of his wife HAE LEE with funds from ISTInternational. (Ex. 7, Albert Lee Decl. at p. 4.)Facts 7-8: whether IST International was suspended for failure topay taxes in 2009 through 2013. (Ex. 1, Albert Lee Decl. at p. 79.)Facts 15-18: whether HAE LEE is the wife of Albert Lee, whetherAlbert owns 4.5 million shares of IST International stock, whetherHAE LEE has a community property interest in that stock, whetherher shared home address with Albert Lee was the principal executiveoffice for IST International in 2010, and whether she was thesecretary of IST for 2010. (Exs. 2, 3, 4 at p. 78, 5.)

Facts 20-21: whether IST failed to hold meetings of the stockholdersand formal officers’ meetings from 2005 to the present. (Tsai Decl.at paragraphs 4-6.)Burden of ProofDefendant brings this motion for summary judgment. To prevail,defendant has the burden of proving that there is a complete defenseor that plaintiff cannot establish one or more elements of each of hiscauses of action. (Barber v. Marina Sailing, Inc. (1995) 36Cal.App.4th 558, 562, 42 Cal.Rptr.2d 697.) To show that plaintiffcannot establish his claim, defendant may either (1) affirmativelynegate one or more elements of each claim, or (2) by relying onplaintiff’s inadequate discovery responses, show that plaintiff doesnot possess and cannot reasonably obtain needed evidence. (Aguilarv. Atlantic Richfield (2001) 25 Cal.4th 826, 855.)The initial burden of production is on defendant to show by apreponderance of the evidence, that it is more likely than not that agiven element cannot be established or that a given defense can beestablished. The ultimate burden of persuasion also rests ondefendant, as the moving party. (Aguilar v. Atlantic Richfield (2001)25 Cal.4th 826, 850.)If defendant carries this initial burden of production, the burden ofproduction shifts to plaintiff to show that a triable issue of materialfact exists. Plaintiff does this if he can show, by a preponderance ofthe evidence, that it is more likely than not that a given element canbe established or that a given defense cannot beestablished. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850,852.)In determining whether plaintiff has met his burden of production,the court must evaluate the plaintiff’s evidence independently. Thatis, the court may not weigh the plaintiff’s evidence or inferencesagainst the defendant’s, as if the court were sitting as a trier offact. If the plaintiff meets his burden, then the court must denysummary judgment, even if defendant has presented conflictingevidence. If the plaintiff meets his burden, a reasonable trier of factcould find for plaintiff and a triable issue of fact does exist for the juryto consider. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 856-857.)However, the court is entitled to consider all of the evidencepresented by both parties, so that documents and evidence presentedby plaintiff in opposition to the motion may cure evidentiary gaps inthe moving papers. (Villa v. McFerren (1995) 35 Cal.App.4th 733,749, 41 Cal.Rptr.2d 719, 730; Code Civ. Proc., Section 437c (c) [Thecourt shall consider all the papers submitted, all admissible evidencetherein, and all inferences reasonably deducible therefrom.)In determining whether any triable issues of material fact exist, thecourt must strictly construe the moving papers and liberally construethe declarations of the party opposing summary judgment. Anydoubts as to whether a triable issue of material fact exist are to beresolved in favor of the party opposing summary judgment. (Barberv. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562, 42Cal.Rptr.2d 697.)

The issues are framed by the pleadings. The pleadings determinewhich issues are material in a summary judgment motion. Themoving party's evidence must be directed to the claims and defensesraised by the pleadings.Plaintiffs VADURA and TSAI shall serve notice of this ruling.12. 13-653154 BATES VS.TRAVELCENTERS OFAMERICA, LLCDefendant Travelcenters of America LLC’s Motion to Quash Service ofSummons is GRANTED.In making its ruling, the Court has not considered the late-filedDeclaration of Mark Young.However, consideration of Mr. Young’s Declaration is not required togrant this Motion. The burden of proof is on plaintiff to establish by apreponderance of the evidence that all of the criteria for personaljurisdiction exist. Floveyor Int'l, Ltd. v. Superior Court (1997) 59Cal.App.4th789, 793; Ziller Electronics Lab GmbH v. Superior Court(1988) 206 Cal.App.3d 1222, 1232-33.Jurisdictional facts must be proved by competent evidence, generallydeclarations. Evangelize China Fellowship, Inc. v. Evangelize ChinaFellowship (1983) 146 Cal.App.3rd 440, 444.The evidence offered by plaintiff to establish personal jurisdiction isnot competent evidence. Attorney Paoli’s testimony about his websearch and unauthenticated screen shots are not competent evidencebecause they are hearsay, at the minimum. Even if the Court wereto consider them, it is not established they pertain to thisdefendant. The header on the screen shots submitted as Exs. D andE refer to Travelcenters of America LLC I, which is not the defendantnamed here. Since Ex. D purports to show defendant’s businessactivities in California, without evidence that the entities are one andthe same there is no evidence of the required minimum contacts.14. 12-579010 CHIQUITO VS.BANK OF AMERICA,NATIONAL ASSOCIATION1. Defendants Bank of America, N.A. and Bank of AmericaCorporation’s Motion for Summary Judgment, or in the alternative,Motion for Summary Adjudication, is DENIED.This motion will be treated as a Motion for Summary Judgment andnot a Motion for Summary Adjudication. Defendants’ SeparateStatement filed with the court cuts off at Issue No. 3 (page31). Thus, the court does not have Defendants’ separate statementwith respect to part of Issue No. 3 and all of Issue Nos. 4 through 15.The motion with respect to the 1 st cause of action (sex/genderdiscrimination in violation of FEHA) is DENIED. First, Plaintiff hasestablished a prima facie case of gender discrimination. (Plaintiff’sAdditional Separate Statement, at paragraphs 1-67.) In addition,there is a triable issue as to whether Plaintiff was terminated forlegitimate, non-discriminatory reasons. (Plaintiff’s SeparateStatement of Disputed Material Fact, at paragraphs 14, 24, 27, 28,30 and 31.) Further, Defendants have improperly cited to their ownverified responses to Plaintiff’s First Set of Special Interrogatories insupport of their contention that Defendant Bank of America

Corporation never employed Plaintiff and have therefore failed tomeet their initial burden of proof. (Great Am. Ins. Companies v.Gordon Trucking, Inc. (2008) 165 Cal. App. 4th 445, 450.)The motion with respect to the 2 nd cause of action (sex/genderdiscrimination in violation of public policy) is DENIED. Defendant’sSeparate Statement cuts off at pg. 31, paragraph17. Notwithstanding, the facts alleged above appear to beincorporated in Issue No. 3 (Defendant’s Separate Statement, at pgs.30-31, paragraph 13-14.) Therefore, the triable issues set forthabove are also applicable to this cause of action.The motion with respect to the 3 rd cause of action (sex/genderharassment in violation of FEHA) is DENIED. First, Plaintiff hassufficiently established a prima facie case with respect to this causeof action. (Plaintiff’s Additional Separate Statement, at paragraphs 9-15, 24-29, 31-33, 42-50.) In addition, as discussed above,Defendants have improperly cited to their own verified responses toPlaintiff’s First Set of Special Interrogatories in support of theircontention that Defendant Bank of America Corporation neveremployed Plaintiff. Further, there is a triable issue as to whether theharassment is so pervasive and severe as to alter the conditions ofemployment and create an abusive work environment. (Plaintiff’sAdditional Separate Statement, at paragraphs 9, 10, 24-29, 31-33.)The motion with respect to the issue of punitive damages isDENIED. Plaintiff has established a triable issue as to whether theemployer should be liable under Civil Code Section 3294(b).(Plaintiff’s Additional Separate Statement, at paragraphs 7, 8, 46, 51,52, 66, 67, 87, 105.)Plaintiff’s Evidentiary Objections: Plaintiff’s evidentiary objections areimproperly interlineated in her separate statement of disputed andundisputed facts. The evidentiary objections do not comply with CRC3.1354, and are therefore OVERRULED in its entirety.Defendants’ Evidentiary Objections to the Declaration of EdwardYun: The objections are OVERRULED in part and are SUSTAINEDin part. The objections on pg.1, nos. 1-3 are OVERRULED. Theobjections contained on pgs. 11-27, nos. 1-27, 29, 31-33, 36-39 areOVERRULED. The objections contained on pgs. 27-340, nos. 3-15,17-24, 26-31 are OVERRULED. The objections contained on pages 2through 10, and 40 through 48 do not comply with CRC 3.1354, andare OVERRULED in their entirety. The objections are SUSTAINEDon pgs. 22-25, nos. 28, 30 and 35. The objections are SUSTAINEDon pgs. 36-38, nos. 16 and 25.Defendants’ Evidentiary Objections to the Declaration of GiseleChiquito: The objections are OVERRULED in their entirety.Moving party is to give notice.2. Defendant Rodolfo Barajas’s Motion for Summary Judgment, or inthe alternative, Motion for Summary Adjudication, is DENIED.The motion with respect to the 4 th cause of action (sex/genderharassment in violation of FEHA) is DENIED. First, Plaintiff hassufficiently established a prima facie case with respect to this cause

of action. (Plaintiff’s Additional Separate Statement, at paragraphs 9-15, 24-29, 31-33, 42-50.) Second, there is a triable issue as towhether the harassment was so severe and pervasive as to alter theconditions of employment, permeate Plaintiff’s work environment,create an abusive work environment, and that Plaintiff personallywitnessed the harassment. (Plaintiff’s Additional Separate Statement,at paragraphs 9, 10, 24-29, 31-33.) Third, there is a triable issue asto whether men were treated in the same manner. (Plaintiff’sDisputed Material Fact, at paragraph 19; Plaintiff’s AdditionalSeparate Statement, at paragraph 22.) Fourth, there is a triableissue as to whether Defendant Barajas engaged in sexual harassmentwhich targeted women. (Plaintiff’s Additional Separate Statement, atparagraphs 11-15, and 22.) Finally, with respect to the time-barissue, not all of the allegations in support of this cause of action istime-barred, and therefore summary adjudication is improper underCivil Code Section 437c(f)(1).The motion with respect to the issue of punitive damages isDENIED. Plaintiff has established a triable issue as to despicableconduct which is carried on by Defendant with a willful and consciousdisregard of the rights of others (i.e., malice). (Plaintiff’s AdditionalSeparate Statement, at paragraphs 9, 10, 24-29, 31-33.)Plaintiff’s Evidentiary Objections: Plaintiff’s evidentiary objections areimproperly interlineated in her separate statement of disputed andundisputed facts. The evidentiary objections do not comply with CRC3.1354, and are therefore OVERRULED in its entirety.Moving party is to give notice.15. 13-651692 XL SPECIALTYINSURANCE COMPANY VS.KAPING CONSTRUCTION1. The court OVERRULES IN PART AND SUSTAINS WITH 10DAYS LEAVE TO AMEND IN PART Defendants Disaster KleenupInternational and DKI Services, LLC’s Demurrer to the First AmendedComplaint.Defect or Misjoinder of PartiesThe demurrer is OVERRULED on this ground.A defect in parties generally occurs when necessary or indispensableparties are not joined. Misjoinder generally occurs when plaintiffslack sufficient unity of interest or there are no common questions oflaw or fact as to defendants. (Code Civ. Proc., Section 378-379.) Defendants’ argument—that Plaintiff is suing more than oneDKI entity and the FAC fails to specifically identify which—does notstate a cause for defect or misjoinder of the parties.UncertaintyDefendants also attack causes of action 1 and 3-5 for uncertaintybecause Plaintiff is suing more than one DKI entity and the FAC doesnot specifically identify which one.On demurrer a court must “accept as true all material factualallegations of the complaint unless refuted by matters properlysubject to judicial notice.” (Poseidon Dev., Inc. v. Woodland LaneEstates, LLC (2007) 152 Cal. App.4th 1106, 1110.)Here, the FAC alleges that Defendant Disaster Kleenup Internationalis one entity, which is also known as DKI and/or DKI Service, LLC. (First Amended Complaint, paragraph 6.) Defendants’ uncertaintyargument depends on the fact that Disaster Kleenup International

and DKI Service, LLC are separate entities—a fact outside the fourcorners of the FAC and not the subject of a pending request forjudicial notice. Thus, the uncertainty argument fails.AgencyCOA 1: FraudThe demurrer is OVERRULED on this ground and as to this cause ofaction.A principal is liable to third parties for an agent’s acts within thescope of the agent’s actual or ostensible authority, includingnegligent acts committed in the transaction of the business of theagency. (Civ. Code, Sections 2330, 2338.) “The general allegationof agency is one of ultimate fact, sufficient against ademurrer.” (Kiseskey v. Carpenters’ Trust for So. California (1983)144 Cal.App.3d 222, 230.)Here, the First Amended Complaint alleges actual agency between allthe defendants (First Amended Complaint, paragraph 11). Forpleading purposes, this allegation is sufficient to establish Kaping’sauthority to speak for Defendants and to state a cause of action forfraud against Defendants based on Kaping’s misrepresentations. Thecases relied upon by Defendants are not instructive because theyanalyze ostensible agency, not actual agency.COA 3: Equitable IndemnityCOA 5: Declaratory ReliefThe demurrer is SUSTAINED WITH LEAVE TO AMEND as to thesecauses of action.“Equitable indemnity principles govern the allocation of loss ordamages among multiple tortfeasors whose liability for the underlyinginjury is joint and several.” (Expressions at Rancho Niguel Ass'n v.Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135,1139.) Because the First Amended Complaint does not state factsshowing Plaintiff and Defendants are joint tortfeasors, a cause ofaction for equitable indemnity does not lie.The two cases relied upon by Plaintiff do not compel a differentresult. Reg'l Steel Corp. v. Superior Court (1994) 25 Cal.App.4th525, 528, involves contractual indemnity, and Bay Development Ltdv. Superior Court (1990) 50 Cal.3d 1012, 1032-1033, deals withimplied contractual indemnity. Neither cause of action is alleged inthe First Amended Complaint. To the extent Plaintiff seeks to allegea cause of action for contractual indemnity and/or implied contractualindemnity, it may have leave to amend to attempt to so state.COA 4: Equitable SubrogationThe demurrer is SUSTAINED WITH LEAVE TO AMEND as to thiscause of action.For an insurer to state a cause of action for equitable subrogation, itmust allege “(1) the insured has suffered a loss for which the party tobe charged is liable, either because the latter is a wrongdoer whoseact or omission caused the loss or because he is legally responsible tothe insured for the loss caused by the wrongdoer; (2) the insurer, inwhole or in part, has compensated the insured for the same loss forwhich the party to be charged is liable; (3) the insured has anexisting, assignable cause of action against the party to be charged,

which action the insured could have asserted for his own benefit hadhe not been compensated for his loss by the insurer; (4) the insurerhas suffered damages caused by the act or omission upon which theliability of the party to be charged depends; (5) justice requires thatthe loss should be entirely shifted from the insurer to the party to becharged ...; and (6) the insurer's damages are in a stated sum,usually the amount it has paid to its insured, assuming the paymentwas not voluntary and was reasonable.” (Fireman's Fund Ins. Co. v.Maryland Cas. Co. (1994) 21 Cal.App.4th 1586, 1596.)Here, the first element has not been properly alleged. AlthoughPlaintiff alleges that it substantially overpaid the insured for repairsthat Defendants made to the property, missing is any allegations thatthe insured paid Defendants the overstated amount.Defendants shall give notice.2. The court CONTINUES the hearing on the application of AttorneyGeorge J. Spathis to appear pro hac vice as counsel for DefendantsDisaster Kleenup International and DKI Services, LLC in this matter,to November 19, 2013 at 1:30 p.m., to permit Applicant to correctthe following defects. Applicant has not shown proof of service ofmoving papers on and proof of application payment to the State Barof California (San Francisco office). (Cal. Rules of Court, rule9.40(c)(1), (e).)

1. 12-543779 AMIRGNESSIN ON BEHALF OF DCPARTNERS, INC. VS. DCPARTNERS, INC.(3) Motions for Summary Judgment/AdjudicationI. Defendant Bahrathan’ MotionThe court DENIES the motion of Defendant Raj BAHRATHAN forsummary judgment/adjudication against Plaintiff Amir GNESSIN, onthe ground that Bahrathan is a self-represented litigant, but he didnot draft and file his own moving papers. The moving papers weredrafted and filed not by Bahrathan himself but by his co-defendantYehoram UZIEL. This was improper because Uziel does not appear tobe a licensed attorney in California and therefore may not representanother litigant in court.Since the passage of the State Bar Act in 1927, it has been wellsettled that a person may represent himself in legal proceedings inCalifornia. But a person may not practice law for another unless thatperson is an active member of the state bar. (Drake v. SuperiorCourt (1994) 21 Cal.App.4 th 1826, 1830-1831.)II.Defendant Uziel’s MotionThe court DENIES the motion of Defendant Yehoram UZIEL forsummary judgment/adjudication against Plaintiff Amir GNESSIN.A. Summary AdjudicationDENY.The motion for summary adjudication is DENIED on the ground thatDefendant’s separate statement is defective. The separate statementfails to specify the causes of action, affirmative defenses, claims fordamages, or issues of duty to be adjudicated. (CRC 3.1350 (d), (h);Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4 th 728, 744;Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494,497-498.)B. Summary JudgmentDENY.The motion for summary judgment is also DENIED because as to thefifth cause of action for an accounting, Defendant Uziel has failed tocarry his initial burden of production to show that Plaintiff is notentitled to an accounting.In his Complaint, Plaintiff alleges that as a shareholder he requestedan accounting but was refused. In Opposition, Plaintiff submits adeclaration testifying that he asked for an accounting but was refusedby Uziel.In his Separate Statement, Defendant Uziel fails to negate Plaintiff’sallegation or his testimony. Defendant Uziel merely argues that if thebreach of fiduciary duty claims and conspiracy claims fail, then noaccounting is necessary. (Union Bank v. Superior Court (1995) 31Cal.App.4 th 573.) But that case is distinguishable. Therein, plaintiffhad leased a scanner from a lessor. Defendant bank had loanedmoney to the lessor and the bank repossessed the scanner afterplaintiff defaulted. Accordingly, plaintiff had no statutory right to any

accounting.In Opposition, Plaintiff argues correctly that he does have anindependent statutory right to an accounting, if he can prove at trialthat he was a shareholder or director and made a proper request foran accounting. (Opposition at p. 14, citing Civ. Code 1601 (a),1602.) Accordingly, there are triable issues of material fact as towhether Plaintiff is entitled to an accounting.C. Plaintiff’s Evidentiary ObjectionsThe court declines to rule on Plaintiff’s objections to evidence becausethey are not individually numbered and the testimony objected to isnot set forth verbatim. (CRC 3.1354.) If the court were required torule, it would OVERRULE all the objections.D. Burden of ProofDefendant brings this motion for summary judgment. To prevail,defendant has the burden of proving that there is a complete defenseor that plaintiff cannot establish one or more elements of each of hiscauses of action. (Barber v. Marina Sailing, Inc. (1995) 36Cal.App.4th 558, 562, 42 Cal.Rptr.2d 697.) To show that plaintiffcannot establish his claim, defendant may either (1) affirmativelynegate one or more elements of each claim, or (2) by relying onplaintiff’s inadequate discovery responses, show that plaintiff doesnot possess and cannot reasonably obtain needed evidence. (Aguilarv. Atlantic Richfield (2001) 25 Cal.4th 826, 855.)The initial burden of production is on defendant to show by apreponderance of the evidence, that it is more likely than not that agiven element cannot be established or that a given defense can beestablished. The ultimate burden of persuasion also rests ondefendant, as the moving party. (Aguilar v. Atlantic Richfield (2001)25 Cal.4th 826, 850.)If defendant carries this initial burden of production, the burden ofproduction shifts to plaintiff to show that a triable issue of materialfact exists. Plaintiff does this if he can show, by a preponderance ofthe evidence, that it is more likely than not that a given element canbe established or that a given defense cannot beestablished. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850,852.)In determining whether plaintiff has met his burden of production,the court must evaluate the plaintiff’s evidence independently. Thatis, the court may not weigh the plaintiff’s evidence or inferencesagainst the defendant’s, as if the court were sitting as a trier offact. If the plaintiff meets his burden, then the court must denysummary judgment, even if defendant has presented conflictingevidence. If the plaintiff meets his burden, a reasonable trier of factcould find for plaintiff and a triable issue of fact does exist for the juryto consider. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 856-857.)However, the court is entitled to consider all of the evidencepresented by both parties, so that documents and evidence presentedby plaintiff in opposition to the motion may cure evidentiary gaps in

the moving papers. (Villa v. McFerren (1995) 35 Cal.App.4th 733,749, 41 Cal.Rptr.2d 719, 730; Code Civ. Proc., Section 437c (c) [Thecourt shall consider all the papers submitted, all admissible evidencetherein, and all inferences reasonably deducible therefrom.)In determining whether any triable issues of material fact exist, thecourt must strictly construe the moving papers and liberally construethe declarations of the party opposing summary judgment. Anydoubts as to whether a triable issue of material fact exist are to beresolved in favor of the party opposing summary judgment. (Barberv. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562, 42Cal.Rptr.2d 697.)The issues are framed by the pleadings. The pleadings determinewhich issues are material in a summary judgment motion. Themoving party's evidence must be directed to the claims and defensesraised by the pleadings.III. DC Partners Inc.’s MotionA. Summary AdjudicationThe court DENIES the motion for summary adjudication for thereasons set forth above in section II (A).B. Summary JudgmentThe court DENIES the motion for summary judgment on the groundthat DC PARTNERS INC. fails to carry its burden to show that it canprevail on its 9 th cause of action for constructive trust as a matter oflaw.A constructive trust is a remedy, not a cause of action. Accordingly,DC Partners Inc. cannot prevail at trial on this cause of action. Itmay only obtain this remedy if properly pleaded in connection withanother viable and legally proper cause of action.To obtain this remedy, Plaintiff must allege facts to show whatspecific property should be placed in trust and how it came underPlaintiff’s control. (Communist Party of United States v. Valencia Inc.(1995) 35 Cal.App.4 th 980, 989 – 991; Michaelian v. StateCompensation Ins. Fund (1996) 50 Cal.App.4 th 1093, 1114.)If DC PARTNERS wishes to amend its Cross-Complaint to properlyallege this remedy, it may file a First Amended Cross-Complaint on orbefore Monday Nov. 4, 2013. All new allegations therein shall be setforth in boldface type.C. Plaintiff’s Objections to EvidenceThe court declines to rule on Plaintiff’s objections to evidence becausethey are not individually numbered and the testimony objected to isnot set forth verbatim. (CRC 3.1354.) If the court were required torule, it would OVERRULE all the objections.Plaintiff shall serve notice of this ruling.4. 13-632591 KIRSCH VS.WELLS FARGO BANK, N.A.1. Defendants Wells Fargo Bank, N.A., U.S. Bank NationalAssociation, as Trustee for CitiGroup Mortgage Loan Trust, Inc.,Mortgage Pass-Through Certificates, Series 2007-AR5’s Demurrer tothe First Amended Complaint is OVERRULED.Defendants’ demurrer to the 1 st cause of action for violation of Civil

Code Section 2924 is OVERRULED. Any valid cause of actionovercomes a general demurrer. Here, Plaintiff has sufficiently allegeda claim for wrongful foreclosure under Glaski v. Bank of America,National Association (2013) 218 Cal.App.4th 1079. In addition,pursuant to Glaski, tender is not required if the sale is void as amatter of law.The demurrer to the 2 nd cause of action for fraud isOVERRULED. Plaintiff has alleged sufficient facts as to each elementof this cause of action. In addition, Defendants have failed tosufficiently establish that the facts alleged are insufficient to establisha fraud claim as a matter of law.Moving party is to give notice.Defendants’ Request for Judicial Notice: Defendants’ request forjudicial notice of Exhibits A-G is GRANTED. The court may takejudicial notice of records filed in any court of this state. (Evid. CodeSection 452(d).) In addition, the court may take judicial notice of“[f]acts and propositions that are not reasonably subject to disputeand are capable of immediate and accurate determination by resortto sources of reasonably indisputable accuracy.” (Evid. CodeSection 452(h).) However, the court will not take judicial notice ofhearsay allegations stated therein. (Herrera v. Deutsche Bank Nat.Trust Co. (2011) 196 Cal.App.4th 1366; Poseidon Development, Inc.v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106,1117.)2. Defendants Wells Fargo Bank, N.A., U.S. Bank NationalAssociation, as Trustee for CitiGroup Mortgage Loan Trust, Inc.,Mortgage Pass-Through Certificates, Series 2007-AR5’s Motion toStrike Portions of the First Amended Complaint is GRANTED with21-days leave to amend.Defendants’ request to strike punitive damages is GRANTED, with21-days leave to amend. Plaintiff has failed to establish that anofficer, director, or managing agent of the employer ratified thewrongful conduct under Civil Code Section 3294(b).Defendants’ request to strike emotional distress damages isGRANTED, with 21-days leave to amend. In the First AmendedComplaint, Plaintiff does not specify whether he is seeking negligentor intentional infliction of emotional distress. The court GRANTSleave to amend to add a separate and distinct cause of action forintentional infliction of emotional distress.Defendants’ request to strike attorney’s fees is GRANTED, with 21-days leave to amend. Plaintiff has failed to identify a specificcontract, statute, or law that allows for the recovery of attorney’sfees.Moving parties are to give notice.6. 11-518591 ORANGECOUNTY TRANSPORTATIONAUTHORITY VS. DEL CERROMOBILE ESTATESRegardless whether the proposed cross-complaint is compulsory orpermissive, the court GRANTS Defendant Del Cerro Mobile Estates’motion for leave to file a cross-complaint.First, citing to Code Civ. Proc., Section 1263.310, 1263.410, and1263.620, OCTA argues that the proposed cross-complaint seeksdamages that may already be obtained as part of the eminentdomain award. Sections 1263.310 and 1263.410, however, do notdeal with damages resulting from partial dismissal or

abandonment. With respect to Section 1268.620, the Law RevisionCommission Comments state that Section 1268.620 provides forrestoration of possession of the property and damages where thedefendant was dispossessed from property prior to a dismissal or afinal judgment that the plaintiff cannot acquire the property. Section1268.620 is not intended to limit any remedies the defendant mayhave on an inverse condemnation theory for damage to the propertyduring litigation.” (Emphasis added.) Thus, even if damages may berecovered in the main eminent domain action, it does not appear thata defendant is foreclosed from bring an inverse condemnation crosscomplaint.Second, OCTA’s reliance on Richmond Redevelopment Agency v.Western Title Guaranty Company (1975) 48 Cal.App.3d 343, 350-351is not persuasive, as the Richmond court applied former, nowobsolete eminent domain statutes that required the defendantproperty owner to allege the amount of damages claimed by reasonof the taking in the answer to the eminent domain complaint. Underthe current statutory scheme, the only requirement that damages bespecifically claimed by answer to an eminent domain complaint is thatregarding compensation for loss of goodwill. (Code Civ. Proc.,Section 1250.320.) Because the current eminent domain statutes donot require a defendant to allege the amount claimed as damages byreason of the taking in the answer, it does not appear thatDefendant’s proposed cross-complaint is procedurally barred.OCTA’s other cases, People ex rel. Dept. Pub. Works v. PeninsulaEnterprises, Inc. (1979) 91 Cal.App.3d 332 and RedevelopmentAgency v. Contra Costa Theatre, Inc. (1982) 135 Cal.App.3d 73, 79,also follow Richmond and do not discuss statutory change.Defendant is ordered to file an executed copy of the Cross-Complaintwithin 5 court days. Defendant is also to serve the Cross-Complaintpursuant to Code. Defendant to give notice of ruling.11. 13-636955 TIMESMEDICAL BUILDING, LLC VS.TEMPLEPlaintiff Times Medical building, LLC’s Motion for Summary Judgmentis GRANTED.Plaintiff has sufficiently established: (1) the existence of writtenagreements with Defendants (UMF, at paragraphs 2-3); (2) Plaintiff’sperformance under the agreements (UMF, at paragraph 4); (3)Defendants’ breach by failure to pay (UMF, at paragraph 6); and (4)resulting damages in the amount of $57,080.18 plus costs, interestsand attorney’s fees (UMF, at paragraph 6). Thus, Plaintiff has met itsinitial burden of proof. The burden of proof therefore shifts toDefendants to establish a triable issue of material fact. The motion isunopposed, and therefore Defendants have failed to meet theirburden of proof.Moving party is to give notice.The written guarantee agreement (2 nd Cause of Action only showsthat Defendant Jeri Rubendall (and not Defendant William Temple)guaranteed the underlying lease agreement. Therefore, judgment asto the breach of the guarantee agreement is entered againstDefendant Jeri Rubendall and not William Temple.Judgment as to the breach of the commercial lease agreement CofA(1 st Cause of Action is entered against both Defendants WilliamTemple and William Temple, M.D. and EnviroMed (a suspendedcorporation dba Lab Preaxis).

12. 13-627451 GARCIA VS.ETCHANDYThe court DENIES Defendant Janice Kay Etchandy’s motion tocompel the deposition attendance of Santa Ana Radiology’s personmost knowledgeable.Defendant seeks the personal records of Plaintiff Luz Alicia Garciafrom a nonparty, Santa Ana Radiology, by virtue of the 08/06/13deposition subpoena, which set deposition on 09/04/13. To obligateSanta Ana Radiology to respond to a request for personal records,Defendant was required to undertake additional proceduralsteps. (Code Civ. Proc., Sections 1985.3, 2020.030 [applies todeposition subpoenas].) In particular, Defendant had to (1) serve acopy of the subpoena and notice to consumer on Plaintiff, and (2)show to Santa Ana Radiology either proof of service of the foregoingon Plaintiff or furnish Santa Ana Radiology with a writtenauthorization to release the records signed by Plaintiff or her attorneyof record. (Code Civ. Proc., Section 1985.3, subds. (b)-(c).) Failureto comply with Code Civ. Proc., Section 1985.3 “shall be sufficientbasis for the witness to refuse to produce the personal records soughtby a subpoena duces tecum.” (Code Civ. Proc., Section 1985.3,subd. (k).)First and foremost, the proof of service on Santa Ana Radiology isdeficient. There is no proof of service of Santa Ana Radiologyaccompanying the deposition subpoena set for 09/04/13 inDefendant’s original moving papers. (Rhoads Decl., Ex. A.) Althoughthere is a proof of service of the deposition subpoena attached to theCertificate of Non-Appearance (Supp. Rhoads Decl., Ex. C), the proofof service does not indicate that the requisite notice to consumer wasserved on Santa Ana Radiology. For this reason alone the motion isdenied.Second, even assuming all necessary papers were personally servedon Santa Ana Radiology on 08/12/13, the notice to consumeridentifies a past examination date of 07/31/13, while the depositionsubpoena has a future date of 09/04/13. (Rhoads Decl., Ex.A.) From this discrepancy, it is possible that Santa Ana Radiologydetermined that the subject deposition subpoena did not comply withCode Civ. Proc., Section 1985.3.Finally, although Defendant’s motion does not seek to compel SantaAna Radiology’s compliance with the first subpoena for records only,set for 05/20/13, Defendant does seek monetary sanctions tocompensate it for its first attempt. The first subpoena, however, isnot accompanied by a notice to consumer. (Rhoads Decl., Ex.B.)Defendant shall give notice.13. 13-659566 SENATOR VS.ANDERSONDefendant’s demurrer/motion to strike Plaintiff’scomplaint. Demurrer overruled in part and sustained withoutleave to amend in part. Motion to strike is denied in part andmoot in part.1. Demurrer to complaintSecond and third causes of action for general negligenceThe court overrules the demurrers to these causes ofaction. Although the allegations in these two causes of action could

have been pleaded in the first cause of action for general negligence,the causes of action as alleged are not so uncertain that Defendantcannot respond to the Complaint. A demurrer for uncertainty will besustained only where the complaint is so bad that the defendantcannot reasonably respond to the claims directed againsther. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612,616.)Fifth cause of action for intentional tortThe court overrules the demurrer to this cause of action. Defendantargues that this cause of action fails to state a claim for intentionaltort because there is no intentional conduct alleged againstDefendant. The allegations, however, state that Defendant usedPlaintiff as a “guinea pig” for Defendant’s trained guard/attack dogand that she gave the “okay” and nod for the dog toattack. (Complaint, p. 13.) These allegations are sufficient to pleadintent on Defendant’s part.Sixth cause of action for intentional tortThe court sustains the demurrer to this cause of action withoutleave to amend. Defendant is correct that the allegations in thiscause of action are identical to those in the fifth cause of action. Forthis reason, the demurrer is sustained without leave to amend.Seventh and eighth causes of action for general negligenceThe court overrules the demurrers to these causes ofaction. Plaintiff states that these causes of action are not beingalleged against Defendant. Indeed, the causes of action name DOES6-10 only. Because these causes of action are not being assertedagainst Defendant, the demurrer is overruled.2. Motion to strike portions of the complaint re: punitivedamagesA. Malice, Oppression, or FraudPlaintiff has adequately alleged facts sufficient to establish malice.Punitive damages may be recovered in an action for the breach of anobligation not arising from contract, where it is proven by clear andconvincing evidence that the defendant has been guilty of fraud,oppression or malice. (Civ. Code, Section 3294, subd. (a).)“Malice” means conduct which is intended by the defendant to causeinjury to the plaintiff or despicable conduct which is carried on by thedefendant with a willful and conscious disregard of the rights orsafety of others. (Civ. Code, Section 3294, subd. (c)(1).)“Oppression” means despicable conduct that subjects a person tocruel and unjust hardship in conscious disregard of that person'srights. (Civ. Code, Section 3294, subd. (c)(2).)“Despicable conduct” is conduct that is so “vile, base, contemptible,miserable, wretched or loathsome that it would be looked down uponand despised by ordinary decent people.” (Scott v. Phoenix Schools,Inc. (2009) 175 Cal. App.4th 702, 715.) Such conduct has beendescribed as “having the character of outrage frequently associatedwith crime.” (Ibid.) Thus, “[n]onintentional torts may also form thebasis for punitive damages when the conduct constitutes consciousdisregard of the rights or safety of others.” (Peterson v. Superior

Court (1982) 31 Cal.3d 147, 158.)Here, the Complaint alleges that Defendant knowingly and willfullywithheld from Plaintiff that her dog was a trained guard /attack dog,and that Defendant took possession of the dog knowing she did nothave the training necessary to properly handle him. (Complaint, p.17, EX-2.) The Complaint also alleges that Defendant used Plaintiffas a “guinea pig” for Defendant’s trained guard/attack dog and thatshe gave the “okay” and nod for the dog to attack. (Complaint, p.13.) These allegations are factual, as opposed to mere conclusions oflaw. They are sufficient, if proven, to support a conclusion thatDefendants engaged in despicable conduct in willful and consciousdisregard of the rights or safety of others and/or that subjectedPlaintiff to cruel and unjust hardship in conscious disregard of hisrights.B. Duplicative Causes of ActionDefendant’s arguments are moot based on the above ruling on thedemurrer.Defendant is to answer the Complaint within 14 days of thehearing. Defendant is ordered to give notice.

1. 12-543779 AMIRGNESSIN ON BEHALF OF DCPARTNERS, INC. VS. DCPARTNERS, INC.(3) Motions for Summary Judgment/AdjudicationI. Defendant Bahrathan’ MotionThe court DENIES the motion of Defendant Raj BAHRATHAN forsummary judgment/adjudication against Plaintiff Amir GNESSIN, onthe ground that Bahrathan is a self-represented litigant, but he didnot draft and file his own moving papers. The moving papers weredrafted and filed not by Bahrathan himself but by his co-defendantYehoram UZIEL. This was improper because Uziel does not appear tobe a licensed attorney in California and therefore may not representanother litigant in court.Since the passage of the State Bar Act in 1927, it has been wellsettled that a person may represent himself in legal proceedings inCalifornia. But a person may not practice law for another unless thatperson is an active member of the state bar. (Drake v. SuperiorCourt (1994) 21 Cal.App.4 th 1826, 1830-1831.)II.Defendant Uziel’s MotionThe court DENIES the motion of Defendant Yehoram UZIEL forsummary judgment/adjudication against Plaintiff Amir GNESSIN.A. Summary AdjudicationDENY.The motion for summary adjudication is DENIED on the ground thatDefendant’s separate statement is defective. The separate statementfails to specify the causes of action, affirmative defenses, claims fordamages, or issues of duty to be adjudicated. (CRC 3.1350 (d), (h);Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4 th 728, 744;Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494,497-498.)B. Summary JudgmentDENY.The motion for summary judgment is also DENIED because as to thefifth cause of action for an accounting, Defendant Uziel has failed tocarry his initial burden of production to show that Plaintiff is notentitled to an accounting.In his Complaint, Plaintiff alleges that as a shareholder he requestedan accounting but was refused. In Opposition, Plaintiff submits adeclaration testifying that he asked for an accounting but was refusedby Uziel.In his Separate Statement, Defendant Uziel fails to negate Plaintiff’sallegation or his testimony. Defendant Uziel merely argues that if thebreach of fiduciary duty claims and conspiracy claims fail, then noaccounting is necessary. (Union Bank v. Superior Court (1995) 31Cal.App.4 th 573.) But that case is distinguishable. Therein, plaintiffhad leased a scanner from a lessor. Defendant bank had loanedmoney to the lessor and the bank repossessed the scanner afterplaintiff defaulted. Accordingly, plaintiff had no statutory right to any

accounting.In Opposition, Plaintiff argues correctly that he does have anindependent statutory right to an accounting, if he can prove at trialthat he was a shareholder or director and made a proper request foran accounting. (Opposition at p. 14, citing Civ. Code 1601 (a),1602.) Accordingly, there are triable issues of material fact as towhether Plaintiff is entitled to an accounting.C. Plaintiff’s Evidentiary ObjectionsThe court declines to rule on Plaintiff’s objections to evidence becausethey are not individually numbered and the testimony objected to isnot set forth verbatim. (CRC 3.1354.) If the court were required torule, it would OVERRULE all the objections.D. Burden of ProofDefendant brings this motion for summary judgment. To prevail,defendant has the burden of proving that there is a complete defenseor that plaintiff cannot establish one or more elements of each of hiscauses of action. (Barber v. Marina Sailing, Inc. (1995) 36Cal.App.4th 558, 562, 42 Cal.Rptr.2d 697.) To show that plaintiffcannot establish his claim, defendant may either (1) affirmativelynegate one or more elements of each claim, or (2) by relying onplaintiff’s inadequate discovery responses, show that plaintiff doesnot possess and cannot reasonably obtain needed evidence. (Aguilarv. Atlantic Richfield (2001) 25 Cal.4th 826, 855.)The initial burden of production is on defendant to show by apreponderance of the evidence, that it is more likely than not that agiven element cannot be established or that a given defense can beestablished. The ultimate burden of persuasion also rests ondefendant, as the moving party. (Aguilar v. Atlantic Richfield (2001)25 Cal.4th 826, 850.)If defendant carries this initial burden of production, the burden ofproduction shifts to plaintiff to show that a triable issue of materialfact exists. Plaintiff does this if he can show, by a preponderance ofthe evidence, that it is more likely than not that a given element canbe established or that a given defense cannot beestablished. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850,852.)In determining whether plaintiff has met his burden of production,the court must evaluate the plaintiff’s evidence independently. Thatis, the court may not weigh the plaintiff’s evidence or inferencesagainst the defendant’s, as if the court were sitting as a trier offact. If the plaintiff meets his burden, then the court must denysummary judgment, even if defendant has presented conflictingevidence. If the plaintiff meets his burden, a reasonable trier of factcould find for plaintiff and a triable issue of fact does exist for the juryto consider. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 856-857.)However, the court is entitled to consider all of the evidencepresented by both parties, so that documents and evidence presentedby plaintiff in opposition to the motion may cure evidentiary gaps in

the moving papers. (Villa v. McFerren (1995) 35 Cal.App.4th 733,749, 41 Cal.Rptr.2d 719, 730; Code Civ. Proc., Section 437c (c) [Thecourt shall consider all the papers submitted, all admissible evidencetherein, and all inferences reasonably deducible therefrom.)In determining whether any triable issues of material fact exist, thecourt must strictly construe the moving papers and liberally construethe declarations of the party opposing summary judgment. Anydoubts as to whether a triable issue of material fact exist are to beresolved in favor of the party opposing summary judgment. (Barberv. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562, 42Cal.Rptr.2d 697.)The issues are framed by the pleadings. The pleadings determinewhich issues are material in a summary judgment motion. Themoving party's evidence must be directed to the claims and defensesraised by the pleadings.III. DC Partners Inc.’s MotionA. Summary AdjudicationThe court DENIES the motion for summary adjudication for thereasons set forth above in section II (A).B. Summary JudgmentThe court DENIES the motion for summary judgment on the groundthat DC PARTNERS INC. fails to carry its burden to show that it canprevail on its 9 th cause of action for constructive trust as a matter oflaw.A constructive trust is a remedy, not a cause of action. Accordingly,DC Partners Inc. cannot prevail at trial on this cause of action. Itmay only obtain this remedy if properly pleaded in connection withanother viable and legally proper cause of action.To obtain this remedy, Plaintiff must allege facts to show whatspecific property should be placed in trust and how it came underPlaintiff’s control. (Communist Party of United States v. Valencia Inc.(1995) 35 Cal.App.4 th 980, 989 – 991; Michaelian v. StateCompensation Ins. Fund (1996) 50 Cal.App.4 th 1093, 1114.)If DC PARTNERS wishes to amend its Cross-Complaint to properlyallege this remedy, it may file a First Amended Cross-Complaint on orbefore Monday Nov. 4, 2013. All new allegations therein shall be setforth in boldface type.C. Plaintiff’s Objections to EvidenceThe court declines to rule on Plaintiff’s objections to evidence becausethey are not individually numbered and the testimony objected to isnot set forth verbatim. (CRC 3.1354.) If the court were required torule, it would OVERRULE all the objections.Plaintiff shall serve notice of this ruling.4. 13-632591 KIRSCH VS.WELLS FARGO BANK, N.A.1. Defendants Wells Fargo Bank, N.A., U.S. Bank NationalAssociation, as Trustee for CitiGroup Mortgage Loan Trust, Inc.,Mortgage Pass-Through Certificates, Series 2007-AR5’s Demurrer tothe First Amended Complaint is OVERRULED.Defendants’ demurrer to the 1 st cause of action for violation of Civil

Code Section 2924 is OVERRULED. Any valid cause of actionovercomes a general demurrer. Here, Plaintiff has sufficiently allegeda claim for wrongful foreclosure under Glaski v. Bank of America,National Association (2013) 218 Cal.App.4th 1079. In addition,pursuant to Glaski, tender is not required if the sale is void as amatter of law.The demurrer to the 2 nd cause of action for fraud isOVERRULED. Plaintiff has alleged sufficient facts as to each elementof this cause of action. In addition, Defendants have failed tosufficiently establish that the facts alleged are insufficient to establisha fraud claim as a matter of law.Moving party is to give notice.Defendants’ Request for Judicial Notice: Defendants’ request forjudicial notice of Exhibits A-G is GRANTED. The court may takejudicial notice of records filed in any court of this state. (Evid. CodeSection 452(d).) In addition, the court may take judicial notice of“[f]acts and propositions that are not reasonably subject to disputeand are capable of immediate and accurate determination by resortto sources of reasonably indisputable accuracy.” (Evid. CodeSection 452(h).) However, the court will not take judicial notice ofhearsay allegations stated therein. (Herrera v. Deutsche Bank Nat.Trust Co. (2011) 196 Cal.App.4th 1366; Poseidon Development, Inc.v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106,1117.)2. Defendants Wells Fargo Bank, N.A., U.S. Bank NationalAssociation, as Trustee for CitiGroup Mortgage Loan Trust, Inc.,Mortgage Pass-Through Certificates, Series 2007-AR5’s Motion toStrike Portions of the First Amended Complaint is GRANTED with21-days leave to amend.Defendants’ request to strike punitive damages is GRANTED, with21-days leave to amend. Plaintiff has failed to establish that anofficer, director, or managing agent of the employer ratified thewrongful conduct under Civil Code Section 3294(b).Defendants’ request to strike emotional distress damages isGRANTED, with 21-days leave to amend. In the First AmendedComplaint, Plaintiff does not specify whether he is seeking negligentor intentional infliction of emotional distress. The court GRANTSleave to amend to add a separate and distinct cause of action forintentional infliction of emotional distress.Defendants’ request to strike attorney’s fees is GRANTED, with 21-days leave to amend. Plaintiff has failed to identify a specificcontract, statute, or law that allows for the recovery of attorney’sfees.Moving parties are to give notice.6. 11-518591 ORANGECOUNTY TRANSPORTATIONAUTHORITY VS. DEL CERROMOBILE ESTATESRegardless whether the proposed cross-complaint is compulsory orpermissive, the court GRANTS Defendant Del Cerro Mobile Estates’motion for leave to file a cross-complaint.First, citing to Code Civ. Proc., Section 1263.310, 1263.410, and1263.620, OCTA argues that the proposed cross-complaint seeksdamages that may already be obtained as part of the eminentdomain award. Sections 1263.310 and 1263.410, however, do notdeal with damages resulting from partial dismissal or

abandonment. With respect to Section 1268.620, the Law RevisionCommission Comments state that Section 1268.620 provides forrestoration of possession of the property and damages where thedefendant was dispossessed from property prior to a dismissal or afinal judgment that the plaintiff cannot acquire the property. Section1268.620 is not intended to limit any remedies the defendant mayhave on an inverse condemnation theory for damage to the propertyduring litigation.” (Emphasis added.) Thus, even if damages may berecovered in the main eminent domain action, it does not appear thata defendant is foreclosed from bring an inverse condemnation crosscomplaint.Second, OCTA’s reliance on Richmond Redevelopment Agency v.Western Title Guaranty Company (1975) 48 Cal.App.3d 343, 350-351is not persuasive, as the Richmond court applied former, nowobsolete eminent domain statutes that required the defendantproperty owner to allege the amount of damages claimed by reasonof the taking in the answer to the eminent domain complaint. Underthe current statutory scheme, the only requirement that damages bespecifically claimed by answer to an eminent domain complaint is thatregarding compensation for loss of goodwill. (Code Civ. Proc.,Section 1250.320.) Because the current eminent domain statutes donot require a defendant to allege the amount claimed as damages byreason of the taking in the answer, it does not appear thatDefendant’s proposed cross-complaint is procedurally barred.OCTA’s other cases, People ex rel. Dept. Pub. Works v. PeninsulaEnterprises, Inc. (1979) 91 Cal.App.3d 332 and RedevelopmentAgency v. Contra Costa Theatre, Inc. (1982) 135 Cal.App.3d 73, 79,also follow Richmond and do not discuss statutory change.Defendant is ordered to file an executed copy of the Cross-Complaintwithin 5 court days. Defendant is also to serve the Cross-Complaintpursuant to Code. Defendant to give notice of ruling.11. 13-636955 TIMESMEDICAL BUILDING, LLC VS.TEMPLEPlaintiff Times Medical building, LLC’s Motion for Summary Judgmentis GRANTED.Plaintiff has sufficiently established: (1) the existence of writtenagreements with Defendants (UMF, at paragraphs 2-3); (2) Plaintiff’sperformance under the agreements (UMF, at paragraph 4); (3)Defendants’ breach by failure to pay (UMF, at paragraph 6); and (4)resulting damages in the amount of $57,080.18 plus costs, interestsand attorney’s fees (UMF, at paragraph 6). Thus, Plaintiff has met itsinitial burden of proof. The burden of proof therefore shifts toDefendants to establish a triable issue of material fact. The motion isunopposed, and therefore Defendants have failed to meet theirburden of proof.Moving party is to give notice.The written guarantee agreement (2 nd Cause of Action only showsthat Defendant Jeri Rubendall (and not Defendant William Temple)guaranteed the underlying lease agreement. Therefore, judgment asto the breach of the guarantee agreement is entered againstDefendant Jeri Rubendall and not William Temple.Judgment as to the breach of the commercial lease agreement CofA(1 st Cause of Action is entered against both Defendants WilliamTemple and William Temple, M.D. and EnviroMed (a suspendedcorporation dba Lab Preaxis).

12. 13-627451 GARCIA VS.ETCHANDYThe court DENIES Defendant Janice Kay Etchandy’s motion tocompel the deposition attendance of Santa Ana Radiology’s personmost knowledgeable.Defendant seeks the personal records of Plaintiff Luz Alicia Garciafrom a nonparty, Santa Ana Radiology, by virtue of the 08/06/13deposition subpoena, which set deposition on 09/04/13. To obligateSanta Ana Radiology to respond to a request for personal records,Defendant was required to undertake additional proceduralsteps. (Code Civ. Proc., Sections 1985.3, 2020.030 [applies todeposition subpoenas].) In particular, Defendant had to (1) serve acopy of the subpoena and notice to consumer on Plaintiff, and (2)show to Santa Ana Radiology either proof of service of the foregoingon Plaintiff or furnish Santa Ana Radiology with a writtenauthorization to release the records signed by Plaintiff or her attorneyof record. (Code Civ. Proc., Section 1985.3, subds. (b)-(c).) Failureto comply with Code Civ. Proc., Section 1985.3 “shall be sufficientbasis for the witness to refuse to produce the personal records soughtby a subpoena duces tecum.” (Code Civ. Proc., Section 1985.3,subd. (k).)First and foremost, the proof of service on Santa Ana Radiology isdeficient. There is no proof of service of Santa Ana Radiologyaccompanying the deposition subpoena set for 09/04/13 inDefendant’s original moving papers. (Rhoads Decl., Ex. A.) Althoughthere is a proof of service of the deposition subpoena attached to theCertificate of Non-Appearance (Supp. Rhoads Decl., Ex. C), the proofof service does not indicate that the requisite notice to consumer wasserved on Santa Ana Radiology. For this reason alone the motion isdenied.Second, even assuming all necessary papers were personally servedon Santa Ana Radiology on 08/12/13, the notice to consumeridentifies a past examination date of 07/31/13, while the depositionsubpoena has a future date of 09/04/13. (Rhoads Decl., Ex.A.) From this discrepancy, it is possible that Santa Ana Radiologydetermined that the subject deposition subpoena did not comply withCode Civ. Proc., Section 1985.3.Finally, although Defendant’s motion does not seek to compel SantaAna Radiology’s compliance with the first subpoena for records only,set for 05/20/13, Defendant does seek monetary sanctions tocompensate it for its first attempt. The first subpoena, however, isnot accompanied by a notice to consumer. (Rhoads Decl., Ex.B.)Defendant shall give notice.13. 13-659566 SENATOR VS.ANDERSONDefendant’s demurrer/motion to strike Plaintiff’scomplaint. Demurrer overruled in part and sustained withoutleave to amend in part. Motion to strike is denied in part andmoot in part.1. Demurrer to complaintSecond and third causes of action for general negligenceThe court overrules the demurrers to these causes ofaction. Although the allegations in these two causes of action could

have been pleaded in the first cause of action for general negligence,the causes of action as alleged are not so uncertain that Defendantcannot respond to the Complaint. A demurrer for uncertainty will besustained only where the complaint is so bad that the defendantcannot reasonably respond to the claims directed againsther. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612,616.)Fifth cause of action for intentional tortThe court overrules the demurrer to this cause of action. Defendantargues that this cause of action fails to state a claim for intentionaltort because there is no intentional conduct alleged againstDefendant. The allegations, however, state that Defendant usedPlaintiff as a “guinea pig” for Defendant’s trained guard/attack dogand that she gave the “okay” and nod for the dog toattack. (Complaint, p. 13.) These allegations are sufficient to pleadintent on Defendant’s part.Sixth cause of action for intentional tortThe court sustains the demurrer to this cause of action withoutleave to amend. Defendant is correct that the allegations in thiscause of action are identical to those in the fifth cause of action. Forthis reason, the demurrer is sustained without leave to amend.Seventh and eighth causes of action for general negligenceThe court overrules the demurrers to these causes ofaction. Plaintiff states that these causes of action are not beingalleged against Defendant. Indeed, the causes of action name DOES6-10 only. Because these causes of action are not being assertedagainst Defendant, the demurrer is overruled.2. Motion to strike portions of the complaint re: punitivedamagesA. Malice, Oppression, or FraudPlaintiff has adequately alleged facts sufficient to establish malice.Punitive damages may be recovered in an action for the breach of anobligation not arising from contract, where it is proven by clear andconvincing evidence that the defendant has been guilty of fraud,oppression or malice. (Civ. Code, Section 3294, subd. (a).)“Malice” means conduct which is intended by the defendant to causeinjury to the plaintiff or despicable conduct which is carried on by thedefendant with a willful and conscious disregard of the rights orsafety of others. (Civ. Code, Section 3294, subd. (c)(1).)“Oppression” means despicable conduct that subjects a person tocruel and unjust hardship in conscious disregard of that person'srights. (Civ. Code, Section 3294, subd. (c)(2).)“Despicable conduct” is conduct that is so “vile, base, contemptible,miserable, wretched or loathsome that it would be looked down uponand despised by ordinary decent people.” (Scott v. Phoenix Schools,Inc. (2009) 175 Cal. App.4th 702, 715.) Such conduct has beendescribed as “having the character of outrage frequently associatedwith crime.” (Ibid.) Thus, “[n]onintentional torts may also form thebasis for punitive damages when the conduct constitutes consciousdisregard of the rights or safety of others.” (Peterson v. Superior

Court (1982) 31 Cal.3d 147, 158.)Here, the Complaint alleges that Defendant knowingly and willfullywithheld from Plaintiff that her dog was a trained guard /attack dog,and that Defendant took possession of the dog knowing she did nothave the training necessary to properly handle him. (Complaint, p.17, EX-2.) The Complaint also alleges that Defendant used Plaintiffas a “guinea pig” for Defendant’s trained guard/attack dog and thatshe gave the “okay” and nod for the dog to attack. (Complaint, p.13.) These allegations are factual, as opposed to mere conclusions oflaw. They are sufficient, if proven, to support a conclusion thatDefendants engaged in despicable conduct in willful and consciousdisregard of the rights or safety of others and/or that subjectedPlaintiff to cruel and unjust hardship in conscious disregard of hisrights.B. Duplicative Causes of ActionDefendant’s arguments are moot based on the above ruling on thedemurrer.Defendant is to answer the Complaint within 14 days of thehearing. Defendant is ordered to give notice.

Hon. Franz E. MillerOrange County Superior CourtBorn: 1949Undergraduate: Univ. of California, Los AngelesLaw School: Univ. of California, Los AngelesAdmitted to Practice: 1974Appointed to the Bench: 2002Appointed by: Governor Davis, DemocratCareer as an AttorneyDeputy Public Defender, Orange County, CA, 1976-83Private law practice, Santa Ana, CA, 1983-99Senior Staff Attorney, Court of Appeal, State of California, Santa Ana, CA, 1983-2002Relevant Organizational AffiliationsMember:Orange County Women Lawyers, 1992—Victim Witness Assistance Program Governing Board, 1994— (Vice-chair 2006—)Orange County Bar Association (President, 1997; Immediate past-president, 1998;President-elect, 1996; Treasurer, 1995; Secretary, 1994; and Director, 1990-93)Amicus Board (honorary), 1998—Hispanic Bar Association, 1999—Orange County Asian American Bar Association, 1999—Robert Banyard Inn of Court Master Bencher, 1999— (Board Member, 2004—,Counselor, 2005-06, President 2006—)Celtic Bar Association, 2001—California Judges Association, 2002—California Judicial Council Access and Fairness Advisory Committee, 2003—Orange County Superior Court Legal Resources Committee, 2003— (Chair 2003-06)Orange County Superior Court Community Focused Court Planning Committee, 2004—Orange County Superior Court Education Committee, 2004—Orange County Superior Court Executive Committee, 2004—Bench, Bar, and Media Committee, 2005— (Chair)California Judicial Council Gender Fairness Subcommittee, 2006— (Co-chair);

Leadership Counsel, 2006—ABTL member, 2007—California Judicial Council Commission for Impartial Courts Task Force on PublicInformation and Education, 2007—Former Member:Constitutional Rights Foundation Mock Trial Coach, 1981-91College of Trial Advocacy Vice-chair, 1982-86Judiciary Committee, 1989-90Committee on Administration of Justice Chair, 1989-91Resolutions Committee Executive Committee, 1992-93State Bar-Bench Coalition member, 1992-98Education Committee Co-chair, 1993Long Range Planning Committee, 1993Bench-Bar-Media Committee, 1993-2002Orange County Bar Foundation Director, 1994Public Law Center Director, 1994Chapman Law School Board of Advisors, 1996-97Whittier Law School Board of Counselors, 1997-2005County of Orange Indigent Defense Advisory Committee Chair, 1998-2002Orange County Law Library Board of Trustees, 1998-2002 (President, 2001-02)Awards Committee Chair, 1999OCBA Charitable Fund director, 1999-2002; (Secretary, 2001-02)Recipient:Pro Bono Publico Award, 1980Director’s Award, 1983, Constitutional Rights Foundation Mock TrialAttorney of the Year, 2001, Orange County Women LawyersJudge of the Year, 2004, Hispanic Bar AssociationJudge of the Year, 2006, Celtic Bar AssociationTeaching/Lectures/PanelistTeaching:Adjunct professor, Western State University College of Law, Fullerton, CA, 1991-96Adjunct professor, Chapman University School of Law, Orange, CA, 1996-97Adjunct professor, Whittier College of Law, Costa Mesa, CA, 1997—

Lectures:Orange County Bar Association, California State Bar, CJER, and NBI programs onappellate advocacy, family law, legal ethics, and appellate practice, 1993—PublicationsAuthor:“Oops!: An Analysis of Post-Pope Attorney Incompetency Cases for Trial and AppellateCounsel,” Western State Univ. Law Review,1990“Effective Brief Writing: A Court of Appeal Staff Attorney’s Perspective,” CaliforniaLitigation, 1993“Penal Code Section 654: Not as Easy as 1-2-3,” Western State Univ. Journal of Law,1994Editorial Consultant:Matthew Bender & Co., California Forms of Pleading and Practice, Ch. 50, 1998 rev.

LAW & MOTION TENTATIVE RULINGSDepartment C14Judge Franz E. MillerCALENDAR DATE(S): 5/7/13# Case Name Motion Tentative3 Fairwind/ShahMP: Ps Fairwind andGlavinovichRP: D ShahObjector: Zarka4 Federation of FinServices/Keilly5 Ferriera/JP Morgan ChaseMP: D JP Morgan ChaseRP: Ps Ferriera and Ellingsen6 Hampton Grains/RevivalEnterpriseRTAO/writ of attachment#1Demurrer to 2d amd compl#2Compel arbDemurrer to 2d amd compl#1Strike ans#2Sancs vs deft for fta at CMC#3CMCGrant except as to Coastal Heartassets/propertyReasoning: General elements met;although Dr Shah may have anactive medical practice, he mayand does have another business asmanager, investor, and equityowner in OCPIN, from which thistransaction arises; re attachmentof Coastal Heart assets/property,the interest of an indiv ptr inptrshp assets is not subj toattachment except on a claimagainst the ptrshp entity (Evans 16C3 300; Corp Code 15025(2)(c)and 15509), and same re corpassets (Postal Inst. Press 162 A41510, 1524)ContinuedOverrule re cause 1; sustain w/oleave to amd re cause 2Reasoning: Re cause 1 for CC2923.5 viol, pltf need not allegetender (Mabry 185 A4 208, 225),and pltfs suff’ly alleged noncompliance,and declar ofcompliance does not trump theallegations; re cause 2 for B&P17200 viol, loss of money orproperty is reqrd, and allegs offailure to provide loan mod (whichis not reqrd) and/or loss of abilityto explore foreclosure alts are notinjury in fact under the stat#1Grant w/ leave to file verified ansReasoning: Compl was verif’d soans must be, and it was not#2If deft appears, hear arg re fta,

7 January/MBZ USAMP: D MBZ USARP: P January8 Lincoln/ParhamMP: D ParhamRP: P Lincoln9 Stark/OhashiMP: Ds Ohashi and MemorialPrompt Care Med GrpRP: P StarkDemurrer to complDemurrer to 1 st amd complMSJ/MSAand hold CMCOverruled w/ 10 days to ansReasoning: Re cause 1 for viol ofSong-Bev Warranty Act, under UCC2725, s/l is 4 yrs and causeaccrues when breach occursnotwithstanding pltf’s lack of knowlof breach, and if warr extends tofuture perf, breach occurs whenthe breach is or should bediscovered (see Mexia 174 A41297, 1306), and pltfs alleg 4 yrwarr which is suff to toll stat of lim(Krieger 234 A3 205, 215-217),and for stat of lim demurrer to besust’d the compl must show on itsface the stat ran (McMahon 59 C2871, 874)Sustain w/o leave to amdReasoning: Pltf did not file a govtclaim before he filed suit; heasserts that reqrmt is inapplicunder GC 950.4 because the tortoccurred when he was 12 or 13and did not know of the reqrmt;altho stat of lim does not run untilminor reaches age of majority, thisrespite does not apply to govtclaim reqrmt – the parent mustmake the claim (Curtis T. 123 A41405, 1416); pltf told his motherabout the tort approx. 12/6/99, soclaim period ran from then; underGC 950.4, the parent must act w/reasonable diligence to learn aboutthe act and that it was committedby govt employee, and apparentlythe mother knewDenyPrior Reasoning: Both sidessubmitted expt declars, deftssaying pltf’s condition could not beremedied by the time he wastreated, and pltf’s expt saying hecould = triable issue of fact10 Meza/BoAMP: Ds BoA and ReconstrustRP: P MezaAdditional reasoning: Ctconsidered reply and objections; ctoverrules objections; originalreasoning remains validDemurrer to 1 st amd compl Overrule re cause 1; sustain w/ 10days leave to amd re causes 2-4Reasoning: Take j/n per reqst; retender, alleg is not reqrd unlessforeclosure has occurred; re cause1 for viol of CC 2923.5, NoD declarre compliance does not overcomeallegs in compl, and due diligence

11 Reza/Farzad CorpMP: XD SadeghiRP: XCs Goreishi and FarzadCorpMSJ/MSAclaim only works when mtgeservicer is unable to contactborrower, and allegs of harm orprejudice are not nec for CC2923.5 viol; re cause 2 for negl,lender usually does not owe dutyto borrower, and allegs are not suffto estab MP stepped out of itstraditional role of lender when itgave loan advice (Ragland 209 A4182, 207); re cause 3 for B&P17200 viol, the cause is suppt’d by2923.5 viol but pltf has notadequately alleged inj in fact; recause 4 for acctg, pltf fails to allegBoA owes her moneyDenyReasoning: Grant j/n; sustain objs8-9, otherwise overrule; re dutyissue, “The imposition of a duty ofprofessional care toward nonclientshas generally been confined tothose situations wherein thenonclient was an intendedbeneficiary of the attorney'sservices, or where it wasreasonably foreseeable thatnegligent service or advice to or onbehalf of the client could causeharm to others. ‘[T]hedetermination whether in a specificcase the [attorney] will be heldliable to a third person not inprivity is a matter of policy andinvolves the balancing of variousfactors, among which are theextent to which the transaction wasintended to affect the plaintiff, theforeseeability of harm to him, thedegree of certainty that theplaintiff suffered injury, thecloseness of the connectionbetween the [attorney's] conductand the injury, and the policy ofpreventing future harm.[Citation.]’ [Citations.]” (Fox v.Pollack (1986) 181 Cal.App.3d 954,960.); the loan transaction wasintended to facilitate the loan fromFarzad (Goreishi’s company) andReza, which would benefit those x-complainants (and Sadeghi’s clientHonarkar’s franchise sale); theharm occasioned by a usuriousloan was foreseeable; x-complainants have been damaged;Sadeghi’s drafting of the loan docscaused the harm; there is a publicpolicy against having an atty draftdocuments that facilitate a client’sinterest at the expense of the 3d

12 Shea Homes/LoefflerDisqualify attyparty; moreover, there is at least atriable issue of fact re whetherFarzad and Goreishi were intendedbeneficiaries of the loan docs; rethe usury issue, MP has not estab’dthe loan was secured by realproperty (it was secured by theleasehold, which is not realproperty but is a chattel real(Callahan 3 C2 110, 118), andthere is at least a triable issuewhether Sedeghi “arranged” theloan or merely facilitated thepaperworkDenyMP: P Shea HomesReasoning: Pltf does not have stdgto bring motion as it is not aRP: Ds Loeffler and Brimleypresent or former client of attyRader, and has not otherwiseshown harm or prej; Rader is notin breach of Rules of Prof Cond, asthey permit concurrent rep andatty may act as advocate and wit ifclients give written consent, whichthey have (Loeffler has pwr of attyfrom Brimley); need to compelRader depo and/or his threat not totestify at trial is insuff harm orprej; MP’s reliance on Kennedy 201A4 1197 is misplaced, as it heldpty could recuse oppo atty eventhe pty had not been a client if theatty had likely acqurd confid factsre the action13 Tamarat/GMAC Mtge Continued14 Hobson/Hill Continue trial Hear arg15 Larson/KramerMP: Ds Kramer16 Cebreros/Hurricanes Bar &GrillMP: D HurricanesReconsider order to requiretest questions to be releasedto pltfs attyContinue trialReasoning: Compl 4/30/12; trial5/13/13; 1 st reqst; MP pltf wantscont because atty has “complex 3-day arb” 6/3 on “substantialemployment law case and attywants to prepare for that in lieu oftrying this matterHear argReasoning: MP wants reconsid ofct’s ruling because it came upspontaneously and defts object toit; MP expts have concerns aboutvalidity of the tests if questionsand answers leak outHear argReasoning: Compl 5/29/12; trial8/19/13; 1 st reqst; pties stip tocont cuz pltf fta’d depo and deftsneed it to do msj; maybe veryshort cont; pltf needs to knowpossible consequences of fta’ingdepo

LAW & MOTION TENTATIVE RULINGSDepartment C14Judge Franz E. MillerCALENDAR DATE(S): 5/30/13LAW AND MOTION CALENDARSLaw and Motion calendars are heard Tuesdays at 1:30 p.m. (except during weeks with a Monday orTuesday holiday, in which case it is heard Thursday at 1:30 p.m.).TENTATIVE RULINGS:Tentative rulings will be posted on the internet, usually by 1:30 p.m. the Monday before the scheduledTuesday hearing (or Wednesday before a Thursday hearing). If an attorney does not have access tointernet service for any reason, he or she may contact Dept. C-14 at (657) 622-5214 for the tentativeruling.PLEASE DO NOT CALL THE COURT IF NO TENTATIVES ARE POSTED – THE ANSWER WILL ALWAYS BETHEY ARE NOT READY YET. “Pending” means the tentative ruling is not ready yet.PLEASE DO NOT CALL THE CLERK OR COURT ATTENDANT TO ASK WHAT A TENTATIVE RULINGMEANS. They are not able to give that information. Moreover, “tentative” means just that: It is subjectto change after the court hears argument.GIVING NOTICE AND/OR PREPARING ORDERS/JUDGMENTS AFTER THE COURT RULES:The prevailing party shall give notice of the final ruling to each party, unless notice is waived by allparties. The prevailing party shall prepare an order/judgment for the court’s signature if the rulingdisposes of a party or the case.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance willbe necessary and the tentative will become the final ruling. If no one appears at the hearing and thecourt has not been notified all parties submit on the tentative ruling, the matter may go off calendar.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely regurgitatetheir points and authorities.No case law or other authority may be cited at oral argument unless: (1) the citing party reasonably didnot believe it was pertinent at the time the party filed its briefs; and (2) the party has given reasonablenotice of the new authority, including citation, to all other parties before the hearing.Motions generally will not be continued after the tentative has been posted.

# Case Name Motion Tentative4 Federation of Fin#1#1Services/KeillyCompel arbDenyMP: D Keilly#2Demurrer to 2d amd complReasoning: Agmt contains arbprovision re val of shares; underSobremonte 61 A4 980 test forwaiver, MP waived arb cuz MPengaged in 9 mo of litig, includg,filing x-compl contending agmtthat did not contain arb controls,propounded discov, filing 2 mos tocompel, demurring, and filing stipsto shorten time to bring disposmos, and CMC stmt did notmention arb, and the machinery ofthe litig has been substan’lyinvoked and pties are well intoprep, and MP sought courtintervention w/in 3 mo of trial, andMP filed x-compl w/o for stay, andMP took advantage of ctprocedures not available in arb,and RP was reas’ly affected,misled, and prej’d#2OverruleReasoning: Re cause 1 for declarrelief, MP does not addresscontinuous rep exception and thereis issue of tolling, and laches doesnot succeed as a matter of law,and re failure to join indispensablepty, MP fails to list misjoinder asgrd in notice, and not clear fromface of 2d amd compl SACtransferred shs to Robert (not clearwho “them” is), and AndersonTrust is pty to 96 agmt but thereare no allegs the trust xferd shs toRobt, and multiple individs andentities were pties to the 96 agmt,and other args lack merit; re cause2 for declar relief, MP args her owninterp of agmt which is not correctas a matter of law – the ptiesinterps are the crux of this cause;re cause 3 for declar relief, thisfails for same reason as causes 1and/or 2; re cause 4 for specifperf, pltf suff’ly alleges tender(willingness is enough), and re par34, pltf suff’ly alleges detriment renot obtaining controlling int in FFSthe pties agreed to, so even if valwas det’d in arb, RP will not obtaincontrolling int unless spec perf isordered

5 Friedman/Jack in the Box #1Demurrer to 3d amd complOff calendar9 McGowan/Irvine Co AptCommunitiesMP: D Irvine Co12 Politis/ZaharsonMP: Ds Zaharson andWestland#2Strike portions of sameMSJDemurrer to complDenyReasoning: Re objs, overrule all;issue is causation re whetherfurnace caused decedent’s death;there is triable issue re MP’spredicate re when decedent died;that MP’s factual theory is plausibledoes not mandate SJ; MP’s theorydepends on several inferences areasonable trier of fact need notdraw; observation: MPs args areclever, but if it has any chance ofprevailing on this motion, its oralarg must not resemble a finalargument given at the end of trialOverrule w/ 10 days to ansReasoning: Re cause 1 for breachof contract, pltf suff’ly alleges acontract – that other owners didnot sign agmt does not mean pltfcan’t get breach damages; recause 2 for declar relief, the factsthis court learned via the mo toexpunge are not in the complaint –this issue must await MSA

LAW & MOTION TENTATIVE RULINGSDepartment C14Judge Franz E. MillerCALENDAR DATE(S): 6/11/13LAW AND MOTION CALENDARSLaw and Motion calendars are heard Tuesdays at 1:30 p.m. (except during weeks with a Monday orTuesday holiday, in which case it is heard Thursday at 1:30 p.m.).TENTATIVE RULINGS:Tentative rulings will be posted on the internet, usually by 1:30 p.m. the Monday before the scheduledTuesday hearing (or Wednesday before a Thursday hearing). If an attorney does not have access tointernet service for any reason, he or she may contact Dept. C-14 at (657) 622-5214 for the tentativeruling.PLEASE DO NOT CALL THE COURT IF NO TENTATIVES ARE POSTED – THE ANSWER WILL ALWAYS BETHEY ARE NOT READY YET. “Pending” means the tentative ruling is not ready yet.PLEASE DO NOT CALL THE CLERK OR COURT ATTENDANT TO ASK WHAT A TENTATIVE RULINGMEANS. They are not able to give that information. Moreover, “tentative” means just that: It is subjectto change after the court hears argument.GIVING NOTICE AND/OR PREPARING ORDERS/JUDGMENTS AFTER THE COURT RULES:The prevailing party shall give notice of the final ruling to each party, unless notice is waived by allparties. The prevailing party shall prepare an order/judgment for the court’s signature if the rulingdisposes of a party or the case.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance willbe necessary and the tentative will become the final ruling. If no one appears at the hearing and thecourt has not been notified all parties submit on the tentative ruling, the matter may go off calendar.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely regurgitatetheir points and authorities.No case law or other authority may be cited at oral argument unless: (1) the citing party reasonably didnot believe it was pertinent at the time the party filed its briefs; and (2) the party has given reasonablenotice of the new authority, including citation, to all other parties before the hearing.Motions generally will not be continued after the tentative has been posted.

# Case Name Motion Tentative1 Allstar Tire & Wheel/YaghoubiMP: P Allstar Tire & WheelRP: Ds Yaghoubi, HighlineSpecialist, and House ofLuxuries2 Amanyraoufpoor/ Ghazvini#1RTAO/writ of attach by FYaghoubi#2RTAO/writ of attach byHighline Specialist#3RTAO/writ of attach byHouse of LuxuriesW/draw as attyContinue for exhibits to Yaghoubideclaration and for MP to addressclaim re lesser bond co demandReasoning: Contract need not bein writing to suppt attachment(Lewis 98 A2 648); but if exhibitsto Yaghoubi declar are the same asthe prior motion (it appears theywere inadvertently omitted thistime), the amount sought is deminimis and do not pertain to thevehicles for which MP seeksattachement, and RPs’ offset reqstis not ltd to specif claim for whichMP seeks attachment, and RPs arenot reqrd to submit verified x-compl to make their setoff claim;MP needs to address RPs’contention MP has submitted aclaim to RPs’ bond co for much lessthan the claim hereContinueMP: Atty HoglinRP: P Amanyraoufpoor3 Carrera/Sushi ShogunJapanese RestaurantMP: Atty LeeRP: D Woo4 Chauncey/Bella Palermo HOAssocMP: Ds Bella Palermo HOAand TSG Indep MgmtRP: Ps Chauncey5 Fuller/Samaniego#1MP: Ds SamaniegoRP: P Fuller#2MP: P FullerRP: Ds SamaniegoW/draw as attyTax Costs#1Compel acknowledgment offull satis of jmt#2OSC re contemptReasoning: Grds to be relieved aresuff but forms MC-052 and MC-053must be usedContinueReasoning: Grds to be relieved aresuff but forms MC-052 and MC-053must be usedGrant as to all but $455 of costs initem 1; otherwise denyReasoning: Ct has discretion toaward costs even if pltfs failed torecover $25,000 or more, but ctwould find pltfs did not over-filetheir case and should recover costs(see Valentino 201 A3 692, 701-703); 998 offer was not brokendown and is void; filing fees areshown to be $455; re other itemsall items were documented andproper, and trial exhibits werehelpful#1DenyReasoning: CCP 724.040 appliesto money jmts and this is notsolely a money jmt; the ct mightfind partial satisfaction under CCP724.110 but defts’ ins co wrote “Infull settlement of PD claims,” whichis incorrect as the pmt was not theonly condition of the settlement (a

6 Fabian/Select PortfolioServicingMP: Ds Select and WellsFargoRP: P Fabian#1Demurrer to 1 st amd compl#2Strike portions of sameproper statement might be that itwas in full payment of themonetary portion of thesettlement), and pltfs risk a findingof accord and satisfaction if theynegotiate the ck (see Woolridge96 A4supp 52)#2Hear arg and/or set for hrgReasoning: On paper, it appearsdefts have not complied with themonetary portion of the settlementdue to the improper/incorrectrestrictive endorsement (althoughdefts’ culpability for theendorsement is iffy); re the drainsystem, it appears from Tofani’sdeclaration defts used incorrectpiping and backfillOverrule re causes 1 & 2;otherwise sustain w/ 10 days leaveto amdReasoning: Take j/n per reqst;tender arg fails because it is notreqrd for all causes of action; recause 1 for viol of CC 2923.5,allegs re no contact are suff; recause 2 for viol of B&P 17200,pltf’s allegs of injury in fact aresuff, and pltf pled viol of 2923.5;re cause 3 for breach of cov ofgffd, pltf failed to allege she did allthings reqrd or was excused, allconds for defts’ perf occurred, anddefts unfairly interfered w/ pltfs rtto benefits; re cause 4 for quiettitle, pltf failed to allege tender; recause 5 for viol of Cal CommlCode, the Civil Code governs realproperty foreclosures, and the noteneed not be in poss of the ptyinitiating the foreclosure(Debrunner 204 A4 433, 440-441);re cause 6 for wrongful foreclosure,it is duplicative of cause 1 andother grounds fail; re cause 7 fordeclar relief, it is duplicative ofother causes#2Deny as mootReasoning: See demurrer rulingabove, but note that par 1 of theprayer is wrong because damagesare not available for 2923.5 viol,and damages are not available forB&P 17200 viol7 Global Sourcing #1 #1

Solution/Wholesale ExpressMP: D Wholesale ExpressRP: P Global Sourcing8 Moulton Pkway ResidentsAssoc/Tierra VerdeLandscape9 Gonzalez/Cal Dept ofTransportationMP: D City of AnaheimRP: P Gonzalez10 Razavi/JP Morgan ChaseMP: Ds JP Morgan and CalReconveyanceRP: P RazaviDemurrer to compl#2CMCDemurrer to 2d amd compl#1Demurrer to compl#2Strike portions of sameOverrule w/ 10 days to ansReasoning: Grd for demurrer isother action pending, but that failsbecause the other action is notpending in a CA ct, the pties do notstand in the same relationship inboth actions, and both actions donot involve identical cause of actionvis-à-vis res judicata (see Leadford6 A4 571, 575; Plant Insulation224 A3 781, 789; Bush 10 A41374, 1384); ct can stay thisaction pending federal action butapprop vehicle is forum nonconveniens, and no evidence isprovided to suppt that analysis#2Hold CMCOff calendarOverrule w/ 10 days to ansReasoning: MP demurs to 2dcause of action, in which it is notnamed#1Sustain w/ 10 days leave to amdReasoning: Grt j/n; amd to CC2923.6 is not retroactive; CC2923.5 and .6 do not create rt loanmod; re cause 1 for breach ofcontract, 3d pty bene theorycontract is not adequately pled andsame re payment plan “contract”;re cause 2 for breach of CC2923.6, no private rt of actionunder old version; re cause 3 forB&P 17200 viol, to extent it isderivative of other causes, it fails,and to extent it is based on fraud itis not suff’ly specifically pled, andeven if “dual tracking” provides agrd for the viol, the facts allegeddo not show it – perm loan modwas offered before notice of defaultfiled in Mar 2011; re cause 4 fornegl,no duty (Nymark 231 A31089, 1096); re cause 5 for acctg,defts did not owe fid duty, and noalleg of timely reqst to defts foracctg, and no allegs of a monetarysum due to which an acctg wouldrelate#2Deny as moot based on demurrerruling

11 Saxton/Mesa PharmMP: Ps Myhill and KaumoRP: D Pharmacy Devel Corp12 Habib/Cal Pac Sheet Metal#1Compel further resps to specrogs#2Compel prod of docsStrike atty fees claim#1&2Grt; w/ sancs of $2,870 against RPdeft onlyReasoning: No oppo; MP showedgood cause; sancs reasonableGrant w/ 10 days leaveMP: D Cal Pac Sheet MetalRP: P Habib13 SGRL Invstmts/Smith #1Atty fees by L Smith#2Atty fees by SGRLReasoning: No statutory basispled; terms of contract attachedprevail over contrary allegs incompl, and contract attached isalleged to be the agmt tween thepties, and contract does not showatty fees provision#1Grant in amt of $85,377.75#2Grant in amt of $163,146.5014 Nguyen/LeMP: P Nguyen15 OCTA/Eastgroup PropertiesMP: P OCTARP: D Eastgroup16 Sanderson/Nerium IntnlPs Sanderson and TaylorContinue trialPrejmt possession orderScope of discovery for SLAPPmotionReasoning: See below lastcalendar itemHear argReasoning: Compl 10/7/11; trial7/1/13; 2d reqst; Grds: MP pltf’satty has 6-wk LA trial starting 6/18on 3.5-yr old case; pties want10/30; maybe trail this caseGrantReasoning: No oppo; under CCP1255.410, MP has shown it isentitled to take prop by eminentdomain, and it has deposited sufffunds under 1255.010 et seqSee below last tentative and the#13 SGRL reasoning after itRP: Ds Olson, Internat’l,Tech, and SkinCare17 Schaadt/Graves #1Quash discov subpoena –Union BankContinued18 Temple Invstmts/ CabyburraInvstmtsMP: Ps Temple and ThomasRP: Ds#2Quash discov subpoena –CitimtgeEnforce settlementDenyReasoning: Under CCP 664.6, ctmay either enter jmt on thesettlement or decide settlementissues (Bowers 206 A4 724, 732-734); authority to do the latterreqrs a reqst to do so in writtenagmt or orally before the ct (Hines167 A4 1174), and must beexpress (Wackeen 97 A4 429); nosuch express retention agmt sec 7

19 United Laguna HillsMutual/BoydstunMP: D BoydstunRP: United LH Mutual20 Piel/Mirajoy HomeMP: Ds Concepcion andMirajoy Home21 Federation of FinServices/KeillyDemurrer to compl#1Demurrer to compl#2Strike portions of same#1Compel arb#2Demurrer to 2d amd compl– it just says retention is possible;MP has not proved the profits thattrigger pmt oblig, and re the finstmt reqrmt, the pties have notselected the firm nec to provide thestmtsOverrule w/ 10 days to answerReasoning: Take j/n per reqst;bylaws exclude actions for inj relieffrom arb reqrmt; bylaws do notrequire exhaustion of ADR beforebrining suit; that pltf failed toagree to arb does not appear in thecompl#1Sustain w/ 10 days leave to amd recauses 1 & 3; otherwise overruleReasoning: Re cause 1 for elderabuse and cause 4 for willfulmisconduct, pltf alleges defts“knew or should have known” ofpltf’s injuries and lack of generalcare, and “should have known” isnot recklessness or willfulmisconduct; re cause 3 for breachof contract, pltf adequately pledthe contract and the breach#2Strike punative damages w/ 10days leave to amdReasoning: See above#1DenyReasoning: Despite MP’s claim the’97 arb agmt just came into play inthe 1 st amd compl in Jan 2013, itwas apparent in the compl, and MPapparently had raised the issuepre- or early in the litig, and pltfhas contended the ’96 agmt, w/ noarb agmt, controls, and whichagmt controls is central to theaction and the arb clause#2Overrule w/ 10 days to ansReasoning: Re cause 1 for declarrelief, MP does not addresscontinuous rep exception and thereis issue of tolling, and laches doesnot succeed as a matter of law,and re failure to join indispensablepty, MP fails to list misjoinder asgrd in notice, and not clear fromface of 2d amd compl SACtransferred shrs to Robert (not

clear who “them” is), and AndersonTrust is pty to 96 agmt but thereare no allegs the trust xferd shs toRobt, and multiple individs andentities were pties to the 96 agmt,and other args lack merit; re cause2 for declar relief, MP args her owninterp of agmt which is not correctas a matter of law – the ptiesinterps are the crux of this cause;re cause 3 for declar relief, thisfails for same reason as causes 1and/or 2; re cause 4 for specifperf, pltf suff’ly alleges tender(willingness is enough), and re par34, pltf suff’ly alleges detriment renot obtaining controlling int in FFSthe pties agreed to, so even if valwas det’d in arb, RP will not obtaincontrolling int unless spec perf isordered22 Luna/Tice Continue trial Hear arg23 Aungst/LaneMP: D Lane24 Stark/OhashiMP: P StarkContinue trialContinue trialReasoning: Compl 11/23/11; trial9/30/11; 3d reqst; McGuire firm,that represented both defts since5/4/12, is subbing out due toconflict as to both (reasonsunspecified); ct just continued casea McGuire firm’s behest on 5/1/13and conflict was not mentioned;new counsel wants 90 day cont togear up, conduct discov, and prepexptsHear argReasoning: Compl 8/29/12; trial8/5/13; 1 st reqst; pltf is teacherwho has hard time getting to IME,now set for 7/17 (why so late?);pties are set to mediate 7/10 butneed to move it post IMEGrantReasoning: Compl 7/6/12; trial6/24/13; 1 st reqst; MP has beenunable to take depo of Dr.Cumberland; wants 50-75 daycontinuance#13 SGRL Investments v. SmithLeroy Smith Fees:Leroy originally requested $88,674.75 in attorney fees.The following fees are attributable to the assault and battery causes of action:1. $56.25 representing .25 hours at $225 an hour – Discovery. Only one request for production wasserved regarding the assault and battery causes of action (“subject claims”). In response, Leroy

produced one email by Mehr indicating that he was assaulted by Leroy, and one email by Leroydenying it was true.2. $112.50 representing .5 hours at $225 an hour – Time spent on the subject claims at Mehr’sdeposition.3. $275 representing 1 hour at $275 an hour – Trial preparation concerning the subject claims.4. $1,250 representing 2 hours at $625 – Testimony time on the subject claims at the time of trial.Total: $1,693.75Mehr does not dispute the apportionment but makes a number of line item challenges to counsel’sbilling. Those challenges can be grouped as follows:1. Fees for work done before Mehr’s complaint was filed on June 4, 2009.2. Fees to attend the hearing on a co-defendant’s anti-SLAPP motion.3. Fees incurred to schedule a shareholder’s meeting for SGRL.4. Fees incurred in relation to a voluntary settlement conference that Mehr did not attend because “allof SGRL’s accounting records had yet to be provided.”5. Fees relating to SGRL business operations.6. Fees to attend a co-defendant’s motion for summary judgment.7. Fees incurred to prepare jury instructions and motions in limine.8. Fees to attend the deposition of Mehr.9. Fees to prepare a 998 offer.10. Trial preparation/attendance fees where the billing entries do not differentiate between the SGRL v.Leroy action and Mehr v. Leroy, et al. action.11. Attending certain hearings during trial that did not involve Leroy.12. Trial fees where Ms. Dease did not first chair.The court would deny the following fees:Billing Date Description of Entry/Reasoning Amount10/29/08 Concerns a “special meeting of shareholders” of SGRL. Doesnot appear to relate to Leroy.$68.7510/30/08 Concerns a “board meeting.” Does not relate to Leroy. $175.0010/30/08 Concerns different parties, not Leroy. $206.251/27/09 Concerns attorney Harter, counsel for Glenn Smith(Glenn). Does not concern Leroy.$262.501/30/09 Concerns a “board meeting.” Does not relate to Leroy. $525.0011/11/09 Concerns a shareholdering meeting and discussing with counselfor Glenn. Does not concern Leroy.$22.503/15/10 Concerns a lease review and counsel for Glenn. Does not relate $137.50to Leroy.3/18/10 Concerns sublet of business premises. Does not relate to Leroy. $27.504/22/10 Concerns “lease settlement.” Does not relate to Leroy. $41.256/8/12 998 offer. Leroy did not serve a 998 offer on Mehr. (Wagner $137.00Decl. at 7(x).)Total: $1,603.25The rest of counsel’s fees were reasonably incurred and counsel’s billing rates are reasonable. The prelitigationfees in the chart appear to have been incurred in anticipation of action and for settlementpurposes. (Stokus v. Marsh (1990) 217 Cal.App.3d 647, 655-656 [under section 1717, fees may beawarded for precomplaint investigation, evaluation, and settlement efforts related to the litigation].) Itwas reasonable for Leroy to attend the hearing on a co-defendant’s anti-SLAPP motion and a codefendant’smotion for summary judgment, attend plaintiff’s deposition, prepare jury instructions andmotions in limine before the parties agreed to waive jury trial, attend hearings that took place during thecourse of trial, and attend the consolidated trial on the SGRL and Mehr actions.Summary of fee award:

Original Request for Fees $88,674.75Fees for Assault and Battery-$1,693.75ClaimsLine-Item Challenges -$1,603.25$85,377.75SGRL Fees:The court previously opined SGRL was entitled to its fees on the Mehr complaint but not on its owncomplaint. The court ordered SGRL to file a supplemental declaration breaking out the attorney feesincurred in prosecuting its own complaint by April 30, 2013. The court provided Mehr with the opportunityto file a responsive declaration by May 14, 2013.SGRL originally requested $300,954 in attorney fees, which represented fees incurred on both the Mehrcomplaint and its own complaint. SGRL now requests $177,266.50.Mehr made over 18 pages of line-item challenges to SGRL’s billing. Those challenges can be grouped asfollows:1. Fees for work done before Mehr’s complaint was filed on June 4, 2009.2. Fees for work done on the SGRL complaint.3. Fees for work done on Leroy’s cross-complaint filed in the SGRL action prior to consolidation.4. Fees incurred relating to SGRL corporate/business operations, lease issues, bank issues.5. Fees to attend the hearing on a co-defendant’s anti-SLAPP motion.6. Fees incurred on SGRL’s unsuccessful motions.7. Fees incurred in relation to a voluntary settlement conference that Mehr did not attend.8. Fees to attend a co-defendant’s motion for summary judgment.A good portion the work done before the Mehr’s complaint was filed was in response to Mehr’s draftcomplaint and demand for settlement served on SGRL in November 2008. Those fees arerecoverable. (Stokus v. Marsh (1990) 217 Cal.App.3d 647, 655-656 [fees for precomplaint investigation,evaluation, and settlement efforts related to the litigation are recoverable].)Fees for work done (1) on the SGRL complaint, (2) on Leroy’s cross-complaint in the SGRL action, or (3)in relation to ordinary SGRL corporate/business operations such as shareholder meetings, leasing/landlordissues, and bank issues, are not. SGRL’s billing statements are littered with these fees. The fees that donot relate to SGRL’s defense of the Mehr complaint total $9,620. The remainder of the fees claimed arefor work done on the Mehr complaint.The billing rates are typical and range from $100-$150 per hour for paralegals/support staff, $125-$250for associates, and $325-$675 for partners. The average hourly rate, derived by dividing the total amountof fees originally claimed by the total amount of hours originally claimed, was approximately $322. Theserates are reasonable.The hours claimed are mostly reasonable. The only exception is the 44.2 hours claimed for this motion forattorney fees (approximately $10,000). They should be reduced about 45 percent to 24 hours or by$4,500.Summary of fee award:Amount Requested on Mehr Complaint Only $177,266.50Fees for Matters Unrelated to SGRL's-$9,620.00defense of Mehr ComplaintExcessive Billing for Attorney Fees Motion -$4,500.00#16 Sanderson v. Nerium International$163,146.50

Defendants Jeff Olson and Nerium International, LLC’s (NI) objections are overruled. Defendants NeriumBiotechnology, Inc. (Biotech) and Nerium SkinCare, Inc.’s (SkinCare) objections to the declaration of KentJ. Schmidt are sustained as to Nos. 1-2, 5-7, and 9. Biotech and SkinCare’s objections to the exhibits aresustained as to Nos. 1-2, 6-11, 13, and 15.Discovery re SLAPP MotionPlaintiffs John Sanderson and George Taylor’s request for limited discovery on the anti-SLAPP motion isdenied in its entirety. Plaintiffs have failed to demonstrate good cause for the discovery requested. Thecommercial speech exemption does not apply; the statements at issue do not consist of representations offact about defendants’ or plaintiffs’ business operations, goods, or services. (Simpson Strong-TieCompany, Inc. v. Gore (2010) 49 Cal.4th 12, 30-32.) The first step of the anti-SLAPP analysis is anobjective test; NI’s subjective intent is irrelevant. (See Equilon Enterprises v. Consumer Cause, Inc.(2002) 29 Cal.4th 53, 65.) Plaintiffs do not need discovery to demonstrate that the statements are falseor that judicial estoppel does not apply. (See Kelsey v. Waste Management of Alameda County (1999) 76Cal.App.4th 590, 598.) And NI’s subject intent has no bearing on whether the “multiple social securitynumbers” statement is libelous per se. (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1370.) As for therequest for “basic discovery on the entire campaign” by NI/Olson to “dig up dirt” and “expose” them,plaintiffs fail to explain how this is relevant to the anti-SLAPP motion and further fail to address whetherthe information is readily available from other sources or informal discovery. (Garment Workers Center v.Superior Court (2004) 117 Cal.App.4th 1156, 1162; Paterno v. Superior Court (2008) 163 Cal.App.4th1342, 1351 fn. 4.)NI’s anti-SLAPP motion is reset for hearing on _____________________.Jurisdiction DiscoveryPlaintiffs’ request for limited discovery on Biotech and SkinCare’s motion to quash service of summons isgranted as stated below. Plaintiffs have sufficiently demonstrated that discovery is likely to lead to theproduction of evidence of facts establishing jurisdiction.Plaintiffs may conduct jurisdictional discovery on Biotech and Skincare as follows:1. One PMK deposition of Biotech lasting no more than 6 hours. The deposition may be conducted inSan Antonio, Texas or remotely via video/teleconferencing.2. One PMK deposition of SkinCare lasting no more than 6 hours. The deposition may be conducted inSan Antonio, Texas or remotely via video/teleconferencing.1. The subject matter of both depositions shall be limited to jurisdictional issues such as (a) theentities’ advertising efforts in California; (b) the number, frequency, and quality of the entities’visits to California through principals/ officers/employees/agents; (c) the extent of the entities’control over NI; (d) whether the entities’ comingle any books/accounts with NI; (e) the frequencyand general substance of the entities’ contacts with companies located in California, includingST&T, Knobbe Martens, and ACERIS; and (f) the legal and working relationship between andamong the three Nerium entities.3. A request for production for all written agreements between the three Nerium entities concerningthe legal or working relationship between them.4. A request for production for all documents relating to the assignment or license of any trademarksbetween the three Nerium entities.5. A request for production for all documents relating to any visit to California by Biotech or SkinCarethrough principals/officers/employees/agents, provided that the production is properly redacted toavoid any privacy or trade secret issues.6. A request for production for all documents reflecting transactions or a contractual arrangement witha California resident or business located in California, provided that the production is properlyredacted to avoid any privacy or trade secret issues.Biotech and SkinCare are to respond to the requests for production at least 10 days prior to the date oftheir respective depositions.

LAW & MOTION TENTATIVE RULINGSDepartment C14Judge Franz E. MillerCALENDAR DATE(S): 6/18/13LAW AND MOTION CALENDARSLaw and Motion calendars are heard Tuesdays at 1:30 p.m. (except during weeks with a Monday or Tuesdayholiday, in which case it is heard Thursday at 1:30 p.m.).TENTATIVE RULINGS:Tentative rulings will be posted on the internet, usually by 1:30 p.m. the Monday before the scheduled Tuesdayhearing (or Wednesday before a Thursday hearing). If an attorney does not have access to internet service forany reason, he or she may contact Dept. C-14 at (657) 622-5214 for the tentative ruling.PLEASE DO NOT CALL THE COURT IF NO TENTATIVES ARE POSTED – THE ANSWER WILL ALWAYS BE THEY ARENOT READY YET. “Pending” means the tentative ruling is not ready yet.PLEASE DO NOT CALL THE CLERK OR COURT ATTENDANT TO ASK WHAT A TENTATIVE RULING MEANS. They arenot able to give that information. Moreover, “tentative” means just that: It is subject to change after the courthears argument.GIVING NOTICE AND/OR PREPARING ORDERS/JUDGMENTS AFTER THE COURT RULES:The prevailing party shall give notice of the final ruling to each party, unless notice is waived by all parties. Theprevailing party shall prepare an order/judgment for the court’s signature if the ruling disposes of a party or thecase.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will benecessary and the tentative will become the final ruling. If no one appears at the hearing and the court has notbeen notified all parties submit on the tentative ruling, the matter may go off calendar.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely regurgitate theirpoints and authorities.No case law or other authority may be cited at oral argument unless: (1) the citing party reasonably did notbelieve it was pertinent at the time the party filed its briefs; and (2) the party has given reasonable notice of thenew authority, including citation, to all other parties before the hearing.Motions generally will not be continued after the tentative has been posted.

# Case Name Motion Tentative2 Belaire/WentworthDemurrer to complOverruleMP: Ds Wentworth et alRP: P Belaire3 Boling/Dollar Rent A CarMP: D DollarRP: P Boling4 Corral/EMC Mtge CorpMP: Ds EMC, JP MorganRP: P Corral6 Gaddam/Laguna Crest EnterprMP: XD Aria DesignRP: D/XC Laguna Crest Entrpr7 Kuester/Kelly Hldgs#1MP: D Diamond ProtRP: P Kuester#2MP: Ds Diamond Prot andTriangle Sq VenturesCompel further resps to specrogsDemurrer to complDemurrer to amd x-compl#1Demurrer to 3d amd compl#2Strike portions of same#3Compel futher resps to formrogs#4Reasoning: Re cause 2 for breach ofcontract, it is not duplicative of 1 stcause for legal malpract, and Neel 6C3 176 does not hold otherwise; recause 3 for breach of fid duty, altho itis based on same facts of 1 st cause, itis a diff theory of recovery (compareRodrigues87 A3 494, 501Grant mo re all but rog 50; hear argre sancsReasoning: Grt j/n per reqst (but notfor truth of assertions); re rog 11, RPpltf does not say he lacks pers knowlto respond; re rogs 18, 20, 23, 24,27, 32, 34, 43-50, over-breadth andequally available objs are w/o merit,and “see my depo, docs” etc areinsuff (Deyo 84 A3 771), and rogsdon’t require compilation, but re rog50, reference to letter attached tocompl is suff; re sancs, hrlys of $370,$595, & $620 are patently unreas,and ptr should not need to reviewwork of $370/hr atty, so sancs shouldbe $1,750Sustain w/ 10 days leave to amd;note venue issueReasoning: RP pltf failed to file oppo;lack of tender allegs fatal re allcauses of action because fraudalleged is not re validity of underlyingdebt (Lona 202 A4 89, 112-113);demurrer is uncertain; no need toaddress args re indiv causesSustain w/ 10 days leave to amdReasoning: Allegs against MP arevague and ambig – not clear whetherRP XC is allgeging MP was a designer,whether MP supervised work on theproj, or whether MP provided goodsfor the product, and MP’s liab deps onits role in the proj#1Sustain w/o leave to amdReaoning: re cause 3 for premisesliab, pltf does not allege MP Diamondwas an owner#2Grant w/o leave to amdReasoning: Allegs of negl are

#3-5MP: D Triangle Sq VenturesCompel prod of docs#5Deem facts admittedinconsistent w/ inten’l torts pled#3Grant w/ $1,565 sancsReasoning: No oppo; no resps; goodcause; atty rate reasonable, but nooppo review or reply nec8 DeNova/Bank of Amer Demurrer to 1 st amd compl Continued9 Jung/PomboDemurrer to 1 st amd compl Sustain w/ 10 days leave to amdMP: D IRC ServicesRP: Ps Jung13 Ridgeway Park East HOA/LaRocque Better RoofsMP: P Ridgeway ParkRP: D Platte River InsReasoning: Re cause 11 for IIED(bystander claim), altho the parentsmay have observed the asthmaattacks, they did not observe andperceive a traumatic injury asoccurred (Thing 48 C3 at 667-668;Jansen 31 A3 22; West Coast CancerFoundation 223 A3 1415; Budavari176 A3 849); re cause 12 for IIED(direct vict), pltf concedes need toamdDemurrer to ans Sutain re affirm defs 1, 2, 4, 10, 12-21, 24, 26 w/ 10 days to amd;otherwise overruleReasoning: Re those sust’d morefacts must be pled; re thoseoverruled allegs are suff

LAW & MOTION TENTATIVE RULINGSDepartment C14Judge Franz E. MillerCALENDAR DATE(S): 6/25/13LAW AND MOTION CALENDARSLaw and Motion calendars are heard Tuesdays at 1:30 p.m. (except during weeks with a Monday or Tuesdayholiday, in which case it is heard Thursday at 1:30 p.m.).TENTATIVE RULINGS:Tentative rulings will be posted on the internet, usually by 1:30 p.m. the Monday before the scheduled Tuesdayhearing (or Wednesday before a Thursday hearing). If an attorney does not have access to internet service forany reason, he or she may contact Dept. C-14 at (657) 622-5214 for the tentative ruling.PLEASE DO NOT CALL THE COURT IF NO TENTATIVES ARE POSTED – THE ANSWER WILL ALWAYS BE THEY ARENOT READY YET. “Pending” means the tentative ruling is not ready yet.PLEASE DO NOT CALL THE CLERK OR COURT ATTENDANT TO ASK WHAT A TENTATIVE RULING MEANS. They arenot able to give that information. Moreover, “tentative” means just that: It is subject to change after the courthears argument.GIVING NOTICE AND/OR PREPARING ORDERS/JUDGMENTS AFTER THE COURT RULES:The prevailing party shall give notice of the final ruling to each party, unless notice is waived by all parties. Theprevailing party shall prepare an order/judgment for the court’s signature if the ruling disposes of a party or thecase.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will benecessary and the tentative will become the final ruling. If no one appears at the hearing and the court has notbeen notified all parties submit on the tentative ruling, the matter may go off calendar.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely regurgitate theirpoints and authorities.No case law or other authority may be cited at oral argument unless: (1) the citing party reasonably did notbelieve it was pertinent at the time the party filed its briefs; and (2) the party has given reasonable notice of thenew authority, including citation, to all other parties before the hearing.Motions generally will not be continued after the tentative has been posted.

# Case Name Motion Tentative1 Alverson/GalvanDemurrer to complOverrule w/ 10 days to ansMP: Ds GalvanRP: Ps Alverson2 Cotta/B of AMP: D B of AMSJ/MSAReasoning: Re cause 1 for breach ofcontract, nothing in the complaintalleges a condition precedent to thepties’ perf under the agmt; MP deftrelies on Short Sale Addendumattached to the demurrer, which isunauthenticated and with respect towhich MP has not sought judicialnotice (which would be problematic inany event); causes 2 & 3 turn oncause 1Deny; find triable issues re SoL anddutyReasoning: Take j/n per reqst; MPRP: Ps Cottadeft incorrectly relies on 339(1)’s 2-yr SoL, as this is a claim for inj topers property, which is covered by338(c) and is 3 yrs (see Wisper Corp49 A4 948, 957); MP’s claim the statbegan to run in ’04-07 when pltfswere aware the bonds were cashedfails because the pltf’s were minors atthe time (and Evan and Kate turned18 w/in 2 yrs of suit and it’s at bestuncertain whether Ed turned 18 >3yrs b4 the suit), and B of A fails topresent ev re when pltfs discov’d orshould have discov’d that there wassecret cashing and that B of A wasnegl about it; re duty, bank typicallydoes not owe duty to non-custs butthere is exception where bank hasduty to investing suspicious banktransaction, such as when bankallows cust to deposit a ck payable tosomeone else where circs reflectfraud (Casey 127 A4 1138, 1151, fn3)8 Morehead/Nat’l Services Grp Demurrer to compl Overrule w/ 10 days to ansReasoning: Sustain obj to Rosedeclar; although pltf alleges multiplestat grds for various torts, they arisefor the same facts, so the complaintsets forth the facts and sets forth thelaw(s), and deft can defend; re claimCFRA does not apply because defthad < 50 empees, the fact is outsidethe compls and only estabs the # ofempees when pltf reqstd the leave(and estoppel would apply if, asalleged, pltf was granted the leave);altho the amt of wages owed is notalleged, the dumurrer is to the entirecomplaint, at least some of which

10 Scarlata/JP Morgan ChaseMP: JP Morgan ChaseRP: Ps Scarlata11 Socal Pacif Constr/ PrimeCoatings12 Suretec Ins Co/City of BreaMP: D City of BreaRP: P Suretec InsDemurrer to compl#1Demurrer to 1 st amd compl#2CMCsurvives demurrerSustain w/ 10 days leave to amdReasoning: Take j/n per rec; retender, post-foreclosure, tender isusually reqrd, but it would not applyto CC 2923.6 claim because the gistof sec is the opportunity for borrowerto do a workout; re cause 1 for CC2923.6 viol, pltf alleges materialchange of circs but not that, and how,it has been documented (2923.6(g)),and pltf has not pled lien is 1 st priorityon borrower’s primary res, and pltfhas not pled lender recorded a noticeof default and sale, etc, and HBRcan’t be bootstrapped into 2923.6; recause 2 for viol of B&P 17200, it depson other causes, and fraud not pled,and law violations beyond 2923.6 notadequately pled; re cause 3 for negl,lenders to do not have common lawduty to borrowers; re cause 4 foracctg, no allegs of fid duty or otherrelationship that would trigger acctgOff calendar#1Sustain w/ 10 days leave to amdReasoning: Re cause 1 for declarrelief, re claim of failure to namecontractor Southland Constr, the 1 stamd complaint does not plead anygen’l agmt of indem or that pltf hasstepped in to finish proj forSouthland, and Mohamedi bkcy doesnot appear in 1 st amd compl; re GovtClaims Act issue, this is a claim formoney that has ripened into adamages claim and declar relief isinapplic (see Canova 150 A4 1487,1497), and there is lim of actionsissue13 United Capital FundingServices/Patel14 Allstar Tire & Wheel/ YaghoubiMP: Ps Allstar Tire#1RTAO/writ of attach v.Yaghoubi#2RTAO/writ of attach v. HighlineSpecialist#3RTAO/writ of attach v. Hse ofLuxuries#2Hold CMCOff calendar#1-3Deny all15 Khamisani/FZ Entrprs Leave to file 1 st amd x-compl Hear argReasoning: No showing Yaghoubiwas pty to contract; re others, pltffailed to show its perf under thecontract; no showing of wrong doingby Ashraaf

MP: Ds/XDs/XCs FZ Entrpr andWang16 Friedman/Jack in the BoxMP: Ds Pacif Coast17 Sanderson/NeriumMP: Ds Nerium Intn’l andOlsonRP: Ps Sanderson et al18 Woodbeck/TwingMP: Ps Woodbeck19 Visualant/Ascendiant CapitalPtrsLeave to interveneAdv briefing sched for SLAPPmoContinue trialTRO/prelim injReasoning: MP has stip to file x-comp vs other driver in later acct;liberal amd of pldgs; this acct7/24/11; 2d acct 3/16/12; in ans toApr ’12 rogs, pltf denies injs from Mar’12 acct; at 12/17/12 depo of pltf’sdr, dr says he treated pltf for Mar ’12injs and the later acct aggravatedearlier injs; 2/22/13 MP deft atty getsname of other driver in Mar ’12 acct;why wait until 5/30/13 to file thismo?; will this filing affect the trialdate?GrantReasoning: MP Pacif Coast wasdism’d from compl but alleges it hasan int in the prop that is subj of suitHear argReasoning: MP wants to changeoppo-reply dates from 7/31 and 8/6to 7/16 and 7/25 because one MPatty has vac 7/30-8/6 and other hasvac from 7/26-8/1; RP counters w/oppo-reply of 7/23-7/29 (whichallegedly differs from MPs origproposal by only one day [7/23instead fo 7/22]) and notes thisproblem was never raised when themotion dates were set; inquiringminds want to know: 1) howexpensive is this grand debate?, 2) isthis a harbinger of fight-abouteverything-to-come?,and 3) havethe parties considered this court onlyhas a limited number of brain cells(altho the court would stronglydisagree with the lower-endestimates many customershypothesize), and should probablyuse them for issues of moresubstance?Hear argReasoning: Compl 7/12/12; trial7/8/13; 1 st reqst; MPs want to contcase 1 wk to 7/15 “date certain” toaccommodate MPs who all liveoutside OC (Karen and Ron need toclear wrk commitmtents, and Janeneeds to make lodging arrangments;the court likes to accommodate itsusers, and will do what it can, butmany users have the same problems,and “date certain” re trial meansabout the same thing it does in theconstruction industryRemoved to federal court

2021222324MP: P VisualantHear argReasoning: The court is not clearhow MP will be irreparably harmed ifthe TRO does not issue

LAW & MOTION TENTATIVE RULINGSDepartment C14Judge Franz E. MillerCALENDAR DATE(S): 7/2/13LAW AND MOTION CALENDARSLaw and Motion calendars are heard Tuesdays at 1:30 p.m. (except during weeks with a Monday or Tuesdayholiday, in which case it is heard Thursday at 1:30 p.m.).TENTATIVE RULINGS:Tentative rulings will be posted on the internet, usually by 1:30 p.m. the Monday before the scheduled Tuesdayhearing (or Wednesday before a Thursday hearing). If an attorney does not have access to internet service forany reason, he or she may contact Dept. C-14 at (657) 622-5214 for the tentative ruling.PLEASE DO NOT CALL THE COURT IF NO TENTATIVES ARE POSTED – THE ANSWER WILL ALWAYS BE THEY ARENOT READY YET. “Pending” means the tentative ruling is not ready yet.PLEASE DO NOT CALL THE CLERK OR COURT ATTENDANT TO ASK WHAT A TENTATIVE RULING MEANS. They arenot able to give that information. Moreover, “tentative” means just that: It is subject to change after the courthears argument.GIVING NOTICE AND/OR PREPARING ORDERS/JUDGMENTS AFTER THE COURT RULES:The prevailing party shall give notice of the final ruling to each party, unless notice is waived by all parties. Theprevailing party shall prepare an order/judgment for the court’s signature if the ruling disposes of a party or thecase.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will benecessary and the tentative will become the final ruling. If no one appears at the hearing and the court has notbeen notified all parties submit on the tentative ruling, the matter may go off calendar.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely regurgitate theirpoints and authorities.No case law or other authority may be cited at oral argument unless: (1) the citing party reasonably did notbelieve it was pertinent at the time the party filed its briefs; and (2) the party has given reasonable notice of thenew authority, including citation, to all other parties before the hearing.Motions generally will not be continued after the tentative has been posted.

# Case Name Motion Tentative1 Allstar Tire & Wheel/ Yaghoubi #1Demurrer to complMP: XDs Allstar Tire, Okun,and AynehchiRP: XCs Yaghoubi and HighlineSpecialist Grp#2Demurrer to x-compl#1Off calendar#2Sustain w/ 10 days leave to amd re1 st cause of action as to Highline onlyand 6 th cause in its entirety;otherwise overrule4 Kilroy Realty/Compass Mtge #1MSJ/MSA – Madden#2MSJ/MSA – KornsweitReasoning: Re cause 1 for fraud, it isactually for promissory estoppel, andall elements are adequately pled, andthe misnomer label is irrelevant, butno allegations tie in Highline; recause 2 for inten’l interf w/ contract,all elements are adequately pled; recause 3 for inten’l interf w/prospective econ advantage, allelements are adequately pled(including inten’l acts designed todisrupt relationship; i.e., pars 34, 58,and 61 satisfy Della Penna); re cause4 for IIED, all elements adequatelypled; re cause 5 for breach ofcontract, all elements adequatelypled; re cause 6 for negl misrep, itcannot be based upon statements ofa pty’s intent to take future action (asopposed to reps of past or presentfact)#1&2Deny as moot based on #3#3Grant#3Leave to file 1 st amd complReasoning: Policy of great liberalityin favor of amds; per CRC 3.1324, ctis to consider effect of amd, why amdis nec and proper, when the facts forthe amd were discov’d, and why amdwas not sought earlier; issue here istimeliness; this motion is broughtbarely > 1 mo b4 trial; discov processstarted late but proceeded at a goodpace after trial date was set; this mowas brought < 1 mo after MPdiscovered grds6 Power/Ocwen Loan Servicing Demurrer to compl Sustain w/o leave to amdReasoning: No oppo; re cause 1 forCC 2923.5 viol, pltf only allegesgen’ly defts didn’t comply but complattaches defts declar of compliance;re cause 2 for CC 2924.17 viol, thesection is not retroactive, and NoDwas filed in Oct ’11, but pltf alsoattacks notice of tee’s sale, which

7 RGTS Mid-Atlantic/ GallagherMP: D GallagherRP: P RGTS9 Sterling Nat’l Bank/ DejbakhshMP: P Sterling Bank11 Valdez/EdenMP: Ds Eden and Van RyRP: P ValdezDismiss (aka jmt on pldgs)MSJ/MSAStrike/tax costswas recorded 2/25/13, but allegs inpar 30 are conclusory and do notstate how or why the notice is void;re cause 3 for viol of CC 2924.18, it isnot retroactive, but notice of sale wasrecorded 2/25/13, but pltf does notallege the 1 st lien loan mod wassubmitted and under review when thet’ee sale notice was recorded; recause 4 for viol of B&P 17200, it turnson other causes; why didn’t pltf,who is rep’d by counsel, respondto the demurrer?DenyReasoning: MP claims note is voidbecause it provides for 18% int whichis 2% above the NY usury limit; thatrate applies only after the notematures, so it is exempted under NYlaw (Miller Planning Corp 253 Atl2d859)Continue to 9/9/13 (date of bkcy revhrg)Reasoning: RP is in bkcy, so action isstayedGrant; strike expt costs in amt of$2,625Reasoning: Per CCP 1033.5 (b)(1),fees of non-ct ordered expts are notrecoverable unless otherwiseauthorized by law, and they are not

LAW & MOTION TENTATIVE RULINGSDepartment C14Judge Franz E. MillerCALENDAR DATE(S): 7/9/13LAW AND MOTION CALENDARSLaw and Motion calendars are heard Tuesdays at 1:30 p.m. (except during weeks with a Monday orTuesday holiday, in which case it is heard Thursday at 1:30 p.m.).TENTATIVE RULINGS:Tentative rulings will be posted on the internet, usually by 1:30 p.m. the Monday before the scheduledTuesday hearing (or Wednesday before a Thursday hearing). If an attorney does not have access tointernet service for any reason, he or she may contact Dept. C-14 at (657) 622-5214 for the tentativeruling.PLEASE DO NOT CALL THE COURT IF NO TENTATIVES ARE POSTED – THE ANSWER WILL ALWAYS BETHEY ARE NOT READY YET. “Pending” means the tentative ruling is not ready yet.PLEASE DO NOT CALL THE CLERK OR COURT ATTENDANT TO ASK WHAT A TENTATIVE RULINGMEANS. They are not able to give that information. Moreover, “tentative” means just that: It is subjectto change after the court hears argument.GIVING NOTICE AND/OR PREPARING ORDERS/JUDGMENTS AFTER THE COURT RULES:The prevailing party shall give notice of the final ruling to each party, unless notice is waived by allparties. The prevailing party shall prepare an order/judgment for the court’s signature if the rulingdisposes of a party or the case.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance willbe necessary and the tentative will become the final ruling. If no one appears at the hearing and thecourt has not been notified all parties submit on the tentative ruling, the matter may go off calendar.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely regurgitatetheir points and authorities.No case law or other authority may be cited at oral argument unless: (1) the citing party reasonably didnot believe it was pertinent at the time the party filed its briefs; and (2) the party has given reasonablenotice of the new authority, including citation, to all other parties before the hearing.Motions generally will not be continued after the tentative has been posted.

# Case Name Motion Tentative3 DeNova/B of A #1Demurrer to 1 st amd compl –Bayview#2Demurrer to 1 st amd compl –B of A#1Sustain w/ 10 days leave to amdReasoning: Take j/n but not offact of CC 2329.5 compliance; restat of lim, pltfs suff’ly allegeddelayed discov; re cause 1 for CC2329.5 viol, failure to comply notadequately pled as to Bayviewbecause B of A recorded notice ofdefault and it would have had theduty; re cause 2 for B&P 17200viol, to extent it is deriv of othercauses it fails, and re fraud, judnoticed docs show Bayview hadnothing to do w/ orig of loan, and1 st amd compl alleges B of A is solesuccessor bene, and fraud allegsare insuff’ly specif; re cause 3 forfraud, see above; re cause 4 fornegl misrep, see above re fraud; recause 5 for breach of impliedcovenant of gffd, no contractalleged re Bayview, nor any specifbreach#2Sustain w/ 10 days leave8 Lincoln/ParhamMP: D ParhamRP: P LincolnDemurrer to 2d amd complReasoning: Take j/n but not offact of CC 2923.5 compliance; restat of lim, pltfs suff’ly allegeddelayed discov; re cause 3 forfraud, misrep is not pled w/ suffspecificity (Lazar 12 C4), nor isdeft’s knowl of falsity; re cause 4for negl misrep see cause 3; recause 5 for breach of implied covof gffd, pltfs fail to plead deft’sactions under the contractdestroyed or injured pltfs’ rts toreceive benes under the contractSust w/o leave to amdReasoning: Re failure to file TortClaims Act claim, pltf did not allegclaim filed, and re exception underGC 950.4, pltf only pleadsconclusion and not suppt’g facts(Aubry 2 C4 962, 966-967 [ctreqrd to treat compl as establishingfacts properly pleaded but notmere conclusions of law]), andclaims not pled w/ suff particularity(Covenant Care 32 C4 771, 790;Lopez 40 C3 780, 795), and factspled show pltf and his mother knewof molest and that it occurred atschool, which shows they had

eason to know of claim; re stat oflim, pltf turned 18 years old sevenyears ago, and he knew then of thetort and injury

LAW & MOTION TENTATIVE RULINGSDepartment C14Judge Franz E. MillerCALENDAR DATE(S): 7/16/13LAW AND MOTION CALENDARSLaw and Motion calendars are heard Tuesdays at 1:30 p.m. (except during weeks with a Monday orTuesday holiday, in which case it is heard Thursday at 1:30 p.m.).TENTATIVE RULINGS:Tentative rulings will be posted on the internet, usually by 1:30 p.m. the Monday before the scheduledTuesday hearing (or Wednesday before a Thursday hearing). If an attorney does not have access tointernet service for any reason, he or she may contact Dept. C-14 at (657) 622-5214 for the tentativeruling.PLEASE DO NOT CALL THE COURT IF NO TENTATIVES ARE POSTED – THE ANSWER WILL ALWAYS BETHEY ARE NOT READY YET. “Pending” means the tentative ruling is not ready yet.PLEASE DO NOT CALL THE CLERK OR COURT ATTENDANT TO ASK WHAT A TENTATIVE RULINGMEANS. They are not able to give that information. Moreover, “tentative” means just that: It is subjectto change after the court hears argument.GIVING NOTICE AND/OR PREPARING ORDERS/JUDGMENTS AFTER THE COURT RULES:The prevailing party shall give notice of the final ruling to each party, unless notice is waived by allparties. The prevailing party shall prepare an order/judgment for the court’s signature if the rulingdisposes of a party or the case.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance willbe necessary and the tentative will become the final ruling. If no one appears at the hearing and thecourt has not been notified all parties submit on the tentative ruling, the matter may go off calendar.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely regurgitatetheir points and authorities.No case law or other authority may be cited at oral argument unless: (1) the citing party reasonably didnot believe it was pertinent at the time the party filed its briefs; and (2) the party has given reasonablenotice of the new authority, including citation, to all other parties before the hearing.Motions generally will not be continued after the tentative has been posted.

# Case Name Motion Tentative1 Ascentium Capital/ White Demurrer to 1 st amd x-comp Sustain w/ 10 days leave to amdMP: XD Ascentium CapitalRP: XC White2 Boling/Dollar Rent A CarMP: D DollarRP: P Boling6 Rodriguez/Investmentxchange#1MP: P Rodriguez#2MP: D InvstmtexchMSJ/MSA#1Reclassify as complex#2Demurrer to 1 st amd complReasoning: Re cause 5 for breachof contract, RP attaches a contractbetween RP and Platinum that doesnot appear to bind MP Ascentium,and allegs Arakelian was dual agtfor Ascentium and Platinum do notmake Ascentium liable; re cause 6for fraud, the agency allegs couldtie MP in, but there are no allegsRP Ascentium ratifyied the fraud(see Bear Land 98 A2 370), and toextent par 58 alleges direct fraud,it is not pled w/ suff specificity(Lazar 12 C4); re cause 7 for B&P17200 viol, to the extent is allegesfraud as a basis for the viol, theallegs are not suff’ly specific, andno stat viol is alleged, and RP’smistaken belief re what she wasauthorizing was “unfair” under thestatute, and pltf does not suff’lyallege damage; re cause 8 forbreach of cov of gffd, there are noallegs re what MP did to breach thecov beyond the fraudHear argReasoning: the ct can take j/n ofprior declarations per pltf’s reqst(deft did not reqst) but not for thetruth of the matters asserted (seeHernandez 51 C4 733, 741, fn. 9);that moots pltf’s objs 1-23, and asto 24-26 re You declaration, theyare overruled; CA has juris to hearthe matter; MP Dollar has notshown it prevails on its CC 1784defense because it fails tomeaningfully address the“reasonable procedures” reqrmt;there is triable issue whether Dollaradvertised services w/ intent not tosell them as advertised; redamages, it appears pltf wouldhave been reqrd to pay any rentalcompany the $2.50 CST and otherclaims of damage seem amorphous#1GrantReasoning: No oppo; class actionis provisionally complex#2ContinueReasoning: To be handled by

7 Shea Homes/LoefflerMP: XD Shea HomesRP: XC Loeffler10 Yaghjian LP/BrubakerMP: D B of ARP: P Yaghjian11 US Bank/SniderMP: D CovarrubiusRP: Other deftsMSJ/MSADemurrer to complDetermine good faithsettlementcomplexTake off calendar w/o prejudice;vacate trial date pending resolutionof arbitration appealReasoning: Many of MP’s claimsturn on whether RP is precluded byres judicata /collat estoppel on arbcase from proceeding in thisaction; that matter is on appealContinue for proof of agreementvia original agmtReasoning: Action is purportedlybased on written agmt betweenYaghjian LP and Brubakers; thecopy of the agmt attached to thecomplaint appears to have thesignatures “cut and pasted”/photoshopped inDetermine settlement was in goodfaithReasoning: Claim is approx.$160K; divided by 6 guarantors, itis $26,667 per guarantor; MPsettled for $15,000, which isballpark; ins is not an issue;settling deft has continuing finexposure in the Renaissance saga;thus, consideration of Tech-Biltfactors yields conclusion settlementwas good faith

LAW & MOTION TENTATIVE RULINGSDepartment C14Judge Franz E. MillerCALENDAR DATE(S): 7/23/13LAW AND MOTION CALENDARSLaw and Motion calendars are heard Tuesdays at 1:30 p.m. (except during weeks with a Monday orTuesday holiday, in which case it is heard Thursday at 1:30 p.m.).TENTATIVE RULINGS:Tentative rulings will be posted on the internet, usually by 1:30 p.m. the Monday before the scheduledTuesday hearing (or Wednesday before a Thursday hearing). If an attorney does not have access tointernet service for any reason, he or she may contact Dept. C-14 at (657) 622-5214 for the tentativeruling.PLEASE DO NOT CALL THE COURT IF NO TENTATIVES ARE POSTED – THE ANSWER WILL ALWAYS BETHEY ARE NOT READY YET. “Pending” means the tentative ruling is not ready yet.PLEASE DO NOT CALL THE CLERK OR COURT ATTENDANT TO ASK WHAT A TENTATIVE RULINGMEANS. They are not able to give that information. Moreover, “tentative” means just that: It is subjectto change after the court hears argument.GIVING NOTICE AND/OR PREPARING ORDERS/JUDGMENTS AFTER THE COURT RULES:The prevailing party shall give notice of the final ruling to each party, unless notice is waived by allparties. The prevailing party shall prepare an order/judgment for the court’s signature if the rulingdisposes of a party or the case.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance willbe necessary and the tentative will become the final ruling. If no one appears at the hearing and thecourt has not been notified all parties submit on the tentative ruling, the matter may go off calendar.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely regurgitatetheir points and authorities.No case law or other authority may be cited at oral argument unless: (1) the citing party reasonably didnot believe it was pertinent at the time the party filed its briefs; and (2) the party has given reasonablenotice of the new authority, including citation, to all other parties before the hearing.Motions generally will not be continued after the tentative has been posted.

# Case Name Motion Tentative10 Uldrincks/ Hightechlending #1Demurrer to 1 st amd complyby Currie#2Strike portions of same byCurrie#3Demurrer to 1 st amd complby Lender Suppt#1 & 3Sustain w/ 10 days leave to amdReasoning: Re cause 1 for moneydue, the compl alleges defts are“de facto” successors under theagmt and have wrongfully w/heldpmt under the agmt and commoncounts don’t lie in the stead of anagmt (Maystruk 175 A4 881), andeven if this is really an unjustenrichment claim, that issynonymous w/ restitution (Levine189 A4 1117), which ordinarilydoes not lie when there is a writtenagmt (Cal Med Assn 94 A4 151); recause 2 for int’l fraudulentconveyance, there is no alleg LSSor Currie transferred or rec’d USFassets, and pltf’s allege only gen’lyw/o suppt’g facts they are creditorsof defts; re cause 3 for fraudulenttransfer, same analysis as cause 2;re cause 4 for viol of B&P 17200, itis derivative of other causes andpltfs fail to allege expresslyinjury/damages in fact; re cause 5for declar relief, it turns on theother causes#2Deny as moot13 Gocke/NwagwuMP: P GockeContinue trial and relateddates including MSJReasoning: Demurrers sustainedDenyReasoning: Compl 10/20/10; 2damd compl 3/28/12; 1 st trial date9/17/12; 1 st cont 7/13/12; 2d trialdate 3/4/13 ; pltf subs in selfrepd 11/29/12; MSJ set for1/29/13; 2d cont 1/15/13 tocurrent 10/15/13 (so pltf’s currentatty could sub in and prep); MSJcurrently set 8/6/13; pltf wantscont to feb 14 and to cont MSJ(when case will be ~3.3 yrs old) sopties can mediate 9/18/13; thecourt would be amenable tohearing the MSJ w/in 30 days oftrial

LAW & MOTION TENTATIVE RULINGSDepartment C14Judge Franz E. MillerCALENDAR DATE(S): 7/30/13LAW AND MOTION CALENDARSLaw and Motion calendars are heard Tuesdays at 1:30 p.m. (except during weeks with a Monday orTuesday holiday, in which case it is heard Thursday at 1:30 p.m.).TENTATIVE RULINGS:Tentative rulings will be posted on the internet, usually by 1:30 p.m. the Monday before the scheduledTuesday hearing (or Wednesday before a Thursday hearing). If an attorney does not have access tointernet service for any reason, he or she may contact Dept. C-14 at (657) 622-5214 for the tentativeruling.PLEASE DO NOT CALL THE COURT IF NO TENTATIVES ARE POSTED – THE ANSWER WILL ALWAYS BETHEY ARE NOT READY YET. “Pending” means the tentative ruling is not ready yet.PLEASE DO NOT CALL THE CLERK OR COURT ATTENDANT TO ASK WHAT A TENTATIVE RULINGMEANS. They are not able to give that information. Moreover, “tentative” means just that: It is subjectto change after the court hears argument.GIVING NOTICE AND/OR PREPARING ORDERS/JUDGMENTS AFTER THE COURT RULES:The prevailing party shall give notice of the final ruling to each party, unless notice is waived by allparties. The prevailing party shall prepare an order/judgment for the court’s signature if the rulingdisposes of a party or the case.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance willbe necessary and the tentative will become the final ruling. If no one appears at the hearing and thecourt has not been notified all parties submit on the tentative ruling, the matter may go off calendar.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely regurgitatetheir points and authorities.No case law or other authority may be cited at oral argument unless: (1) the citing party reasonably didnot believe it was pertinent at the time the party filed its briefs; and (2) the party has given reasonablenotice of the new authority, including citation, to all other parties before the hearing.Motions generally will not be continued after the tentative has been posted.

# Case Name Motion Tentative1 BR Direct Mktg/Palma#1Demurrer to 1 st amd complMP: D PalmaRP: P BR Direct Mktg#2Strike portions of same#1Overrule re cause 1; sust w/ 10days leave re cause 2Reasoning: Take j/n per reqst; reuncertainty, the uncertainties arenot suff’ly id’d by pg and line incompl (Fenton 135 A3 797), andcompl adequately explains howattached docs relate; re cause 2 forbreach of contract, all elementsadequately pled; re cause 3 forbreach of implied cov of gffd, itdoes not lie when it is basedmerely on the breach of contract(Careau & Co 222 A3 1371, 1395)#2Grant w/ 10 days leave to amd reatty fees; deny re punis and exhsA-C5 Kuester/Kelly Hldgs #1Joinder to demurrer to 3damd compl by Buck10 Wells Fargo Equip Fin/Renaissance Surgical Arts atNB#1MP: D Reiter#2Joinder to mo to strikeportions of same by Buck#3Joinder to demurrer to 3damd compl by Hurtado#4Joinder to mo to strikeportions of same by Hurtado#1Continue MSJ#2Amend Reiter ans#3Reasoning: Demurrer sustained;but no contract or stat basis foratty fees are pled, and allegssupptg punis are probly suff; andexhs A-C are appropriateDenyReasoning: Joinder is appropriatewhere it seeks affirmative relief onbehalf of the joining party andjoins in the arguments made bythe motion being joined (Barak 135A4 654, 660-661); Buck andHurtado’s motions for joinder donot specify what relief they seek orstate whether they join in thearguments made by the motionsbeing joined, stating only they“hereby join” in DiamondProtection’s demurrer and motionto strike; by doing so, “[Buck andHurtado] did not file a motionseeking relief on [their] own behalfwith a joinder in [DiamondProtection’s] arguments; [they]only filed a joinder in [DiamondProtection’s] [demurrer and]motion to strike the complaint asto [Diamond Protection].” (Barak,supra, 135 A4 at 660)#1GrantReasoning: It’s only 1 wk, andMSJ MP undoubtedly is confidentthat will be the end of the trail(and trial)

RP: P Wells Fargo#2MP: D ReiterRP: P Wells Fargo#3MP: D AgnewRP: P Wells FargoAmend Agnew ans#2 & 3GrantReasoning: Liberal grant; insuffprej to RP; amd ansrs do notcontradict orig ansrs – the origansrs did not admit liab, theyadmitted the defts signed theguarantees

LAW & MOTION TENTATIVE RULINGSDepartment C14Judge Franz E. MillerCALENDAR DATE(S): 8/20/13LAW AND MOTION CALENDARSLaw and Motion calendars are heard Tuesdays at 1:30 p.m. (except during weeks with a Monday or Tuesdayholiday, in which case it is heard Thursday at 1:30 p.m.).TENTATIVE RULINGS:Tentative rulings will be posted on the internet, usually by 1:30 p.m. the Monday before the scheduled Tuesdayhearing (or Wednesday before a Thursday hearing). If an attorney does not have access to internet service forany reason, he or she may contact Dept. C-14 at (657) 622-5214 for the tentative ruling.PLEASE DO NOT CALL THE COURT IF NO TENTATIVES ARE POSTED – THE ANSWER WILL ALWAYS BE THEY ARENOT READY YET. “Pending” means the tentative ruling is not ready yet.PLEASE DO NOT CALL THE CLERK OR COURT ATTENDANT TO ASK WHAT A TENTATIVE RULING MEANS. They arenot able to give that information. Moreover, “tentative” means just that: It is subject to change after the courthears argument.GIVING NOTICE AND/OR PREPARING ORDERS/JUDGMENTS AFTER THE COURT RULES:The prevailing party shall give notice of the final ruling to each party, unless notice is waived by all parties. Theprevailing party shall prepare an order/judgment for the court’s signature if the ruling disposes of a party or thecase.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will benecessary and the tentative will become the final ruling. If no one appears at the hearing and the court has notbeen notified all parties submit on the tentative ruling, the matter may go off calendar.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely regurgitate theirpoints and authorities.No case law or other authority may be cited at oral argument unless: (1) the citing party reasonably did notbelieve it was pertinent at the time the party filed its briefs; and (2) the party has given reasonable notice of thenew authority, including citation, to all other parties before the hearing.Motions generally will not be continued after the tentative has been posted.

# Case Name Motion Tentative4 Gaddam/Laguna CrestEnterprises2 demurrers and motion todeem matter complexRefer to supervising judge for eval recomplex; continue demurrers9 Aldana Family Trust/ Stamegna Quash service of summons Grant or continue for discoveryMP: D Sullivan LandsRP: P Aldana Fam Trust10 Mosier/1 st Amer Title InsMP: D 1 st AmerRP: P Mosier13 Shea Homes/LoefflerMP: D LoefflerRP: P Shea Homes15 Worth/EgglestonMP: P WorthRP: D EgglestonDemurrer to complSet aside/vacate jmtLeave to file amd complReasoning: Ct continued for filing ofproof of service w/ declar of duediligence, which has been done; regen’l juris, MP appears not to havecontinuous and systematic contacts,and re specif juris, 2d and 3d prongsof Vons 14 C4 434 appear veryproblematic: no ev MP solicited saleto CA entities, pltfs are not suing onthe sale contract, altho the $5Kdeposit may have mentioned RTEscrow in Long Beach, it also states“/Stewart Title, Atty Ron Poe(‘Holder’), located in Memphis, TN”,and only ev that MP entered into agmtw/ LB escrow co is unsigned; RP pltfmay seek to do limtd discovOverruled w/ 10 days to ansReasoning: Take j/n per reqst; issueis s/l – CA is 2 yrs and NV is 6; partiesagreed NV law applies to enforceterms of agmt at issue; NV hassubstantial relationship because propis located there; agmt is not contraryto fundamental CA policy since CAallows pties to extend s/l for breach oftitle ins pol to 6 yrs (see ABF Capital130 A4 825, 835; thus Ashland 129A3 790 is disting’ble); 2d cause is notduplic of 1 st because deft has yet toaccept or deny the claimunequivocally and deft’s ult position isunclearDenyReasoning: Per CCP 663a, mo mustbe filed 180 days max after entry of12/3/12 jmt (even where no notice ofentry is given), and this mo was filed6/17/13, 16 days too late; ct has nojuris to hear the mo (Advanced BldgMaint 49 A4 1388, 1394)GrantReasoning: Liberal grant; altho it issomewhat surprising pltf did notinclude libel and slander in the originalcompl, the causes of action in whichwere based on alleged false stmts topltf’s detriment, there is no real prejto RP since the factual theory wasalready well explicated

16 Suarez/Heathers Senior CareMP: Ds Heathers and NovestaffServices GrpRP: P Suarez17 Wells Fargo Equip Fin/Renaissance Surg Arts at NBMP: P Wells Fargo19 Sanderson/ Nerium Intn’lMP: Ds NeruimRP: Ps Sanderson and Taylor#1Compel arb#2JoinderMSASLAPPHear argReasoning: Pties had agmt to arb andpltf refused; re proceduralunconscionability, Heathers draftedthe arb clause, Suaraz was effectivelytold “take it or leave it,” and the AAArules were not attached (Trivedi 189A4 387) (altho the agmt did give theweb link); re substantiveunconscionability, the agmt is mutual(contrary to Suarez’s claim, hisconsent was reqrd to modify the arbagmt absent a change in the law, hedid not waive claims or access todamages (includg atty fees), bothpties select the arbtr, and deft paysexps beyond amt of super ct filingfees; pltf has not shown suff fraud orduress; deft did not waive arb byengaging in ltd init discov after pltfserved 8 sets, esp since it respondedto compl by pet’ing for arb; FAA is notimplicated because interstatecommerce is not involved, so agmtdoes not apply to wage and hourclaims (Hoover 206 A4 1193)DenyReasoning: See below last tentativeDenyReasoning: Grt MPs’ reqsts for j/n 1-12 (but not for truth of matter), denyre 13-22; grt RPs’ reqst (but CA stdfor dv is FC 6211); re RPs’ objs, mostare moot but sustain non-moot objsmade on foundation grds; re “publicinterest” prong, efficacy/dangers ofdefts’ skin treatments and pltfs’critiques of them may be of “broadand amorphous” public interest, butthere must be nexus between thespeech and the topic so the speechcontributes to the public topic (WorldFin’l Grp 172 A4 1561, 1570; Rivera187 A4 709), and slurs re domesticviolence and multiple SS #s do nothave that nexus; Damon 85 A4 468and Macias 55 A4 669 are disting’ble;even if MP defts satisfied 1 st prong,pltfs have demonstrated suff prob ofprevailing (see Mann 120 A4 90, 106)since even if defts referred toSanderson’s sexual encounter w/ apatient, that is not dv

LAW & MOTION TENTATIVE RULINGSDepartment C14Judge Franz E. MillerCALENDAR DATE(S): 8/27/13LAW AND MOTION CALENDARSLaw and Motion calendars are heard Tuesdays at 1:30 p.m. (except during weeks with a Monday or Tuesdayholiday, in which case it is heard Thursday at 1:30 p.m.).TENTATIVE RULINGS:Tentative rulings will be posted on the internet, usually by 1:30 p.m. the Monday before the scheduled Tuesdayhearing (or Wednesday before a Thursday hearing). If an attorney does not have access to internet service forany reason, he or she may contact Dept. C-14 at (657) 622-5214 for the tentative ruling.PLEASE DO NOT CALL THE COURT IF NO TENTATIVES ARE POSTED – THE ANSWER WILL ALWAYS BE THEY ARENOT READY YET. “Pending” means the tentative ruling is not ready yet.PLEASE DO NOT CALL THE CLERK OR COURT ATTENDANT TO ASK WHAT A TENTATIVE RULING MEANS. Theyare not able to give that information. Moreover, “tentative” means just that: It is subject to change after thecourt hears argument.GIVING NOTICE AND/OR PREPARING ORDERS/JUDGMENTS AFTER THE COURT RULES:The prevailing party shall give notice of the final ruling to each party, unless notice is waived by all parties. Theprevailing party shall prepare an order/judgment for the court’s signature if the ruling disposes of a party or thecase.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will benecessary and the tentative will become the final ruling. If no one appears at the hearing and the court has notbeen notified all parties submit on the tentative ruling, the matter may go off calendar.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely regurgitate theirpoints and authorities.No case law or other authority may be cited at oral argument unless: (1) the citing party reasonably did notbelieve it was pertinent at the time the party filed its briefs; and (2) the party has given reasonable notice ofthe new authority, including citation, to all other parties before the hearing.Motions generally will not be continued after the tentative has been posted.

# Case Name Motion Tentative1 1 st Team RE/VanCleaveDemurrer to amd compl Overrule w/ 10 days to ansMP: D ChangReasoning: Compl is not uncertain;re cause 2 for fraud and cause 3 forRP: P 1 st Teamnegl misrep, pltf adequately pleadsfraud by VanCleave as part of aconspiracy with Chang and others2 Garibotti/Hinkle Off calendar3 Harrison/Gilroy Unified SchDist#1Leave to file 2d amd compl#1Hear argMP: P HarrisonRP: D Gilroy Unified#2Compel further resps to formrogs#3Compel further resps to RFAs#4Compel further resps to RFPD#5Leave to reopen discovReasoning: Delay alone is unsuffreason to grt leave (Higgins 123 A3558, 564-565), rather prejudice,such as loss of ev or add’l costs ofprep, or increased discov burdenmust exist and RP has notdemonstrated prej; no costs awardbecause RP has not shown what add’lcosts would/will be; that said, howdoes pltf get this far into the casew/o discovering Daley should besued independently#2Grt in part; deny in part; no sancsReasoning: mo is re form rog 17.1re RFA ans bases; re 48 and 50,resps are suff; re 62, further ansshould be provided based on furtherresp reqrd via mo #3; re 63, resp issuff; re 77, it is compound (admit IDonly was obtained; admit no validCDL), and the reason given – that itdidn’t know he had a CDL – good orbad, is suff; results are mixed bag –no sancs#3Grt; no sancsReasoning: Re 62, it is not vague –if it could be either an internalcomplaint or a lawsuit complaint, RPshould ans re both, and lawsuitcompl is not viol of priv, and admissof resolution of internal compl is notsuff viol of priv; results on all mosare mixed bag – no sancs#4Grt in part; deny in part; no sancsReasoning: Re 27, resp should be ltdto Gilroy HS manuals duringHarrison’s employ; re 30, resp of nodocs needs to state diligentsearch/inquiry, etc, per CCP

4 Ho/Dish NetworkMP: D Dish NetwkRP: P Ho5 Kilroy Realty/Compass Mtge#1MP: P KilroyRP: D Kornswiet#2MP: Ds Kornswiet and Madden#1MSJ/MSA#2Return or destroy confid docs#1Compel prod of docs#2Seal docs2031.230; re 31, 32, 33, these reqstessentially all of Daley’s personnelfile, and RP admits Daley was athleticdir on date of acct and is stillemployed; re 34, docs are rel to thesuit, and should be produced w/ protorder prohib’g disclosure; result ismixed bag – no sancs#1DenyReasoning: There are triable issuesnegligence and duty; Dish profitsfrom its satellite service using itsdishes; when service is terminatedcustomers face fines it they do notretrieve and return the dishes; Dishprovides a detailed safety manual forits employees regarding their workon roofs, including use of safetyequip, but essentially only warnsubscribers to be careful; altho this isnot a strict liab case, the sameprinciples underlying that doctrinepoint to duty here; re assump of risk,it is secondary here (see Knight 3 C4296, 308-314) and triable issues recomparative fault exist#2Hear argReasoning: Pltf attached docs tooppo to MSJ/MSA that were subj toprotective order#1Grt in part and deny in part; nosancsReasoning: Re 20, blanket reqst forall docs, even for ltd time period, isoverbroad and burdensome and toounspecific; re 30, priv is waived re2009 return, and as to others, pltfhas not demonstrated alter ego can’tbe obtained by other, less obtrusivemeans; re 31, reqst for all docs isoverbroad and burdensome and toounspecific; re 33, 37, 38, reqsts arereas’bly partic’lized; re 44, reqst forall docs related to any lawsuit isoverbroad and burdensome; resancs, result is a mixed bag#2Grt as to 1 st 3 pgs of exh 7Reasoning: No oppo; MPs’ rt to privin fin info outweighs pub rt of access(Carmel by the Sea 2 C3 259, 268)8 Sanderson/Nerium Intn’l Quash service of summons Deny or cont for discov

MP: D BurdickRP: Ps Sanderson and Taylor10 Sullivan/B of AMP: Ds BoA and ReconRP: Ps Sullivan12 White/Petraglia#1MP: D Rhie#2MP: Ds Petraglia andIntervention Pain Med GrpRP: P White#1Demurrer to 2d amd compl#2Strike portions of same#1Continue trial#2Compel authorization forrelease of pltf’s Air ForcerecordsReasoning: Pltfs have burden toshow suff min contacts by non-resdeft (DVI 104 A4 1080, 1090); repurposeful availment of forumbenefits (see Pavlovich 29 C4 262,269), Burdick’s alleged post isallegedly wrongful conduct aimed atpltfs, who are CA residents (seeBancroft & Masters 223 F3 1082,1087; Taylor-Rush 217 A3 103,113; Burger King 471 US at 472);but Burdick’s obj to Sanderson’sdeclar re the source of the post iswell taken, so unless Burdick admitsthe post Sanderson refers to is thesame one he admits to, discovery iswarranted#1Sustain w/o leave to amd as tocauses 3 & 4; defts to ans w/in 10daysReasoning: Re cause 3 for acctg,cause requires allegs of some sumdue pltfs (Brea 3 A2 454, 460), andpltfs, after mult opps, have notalleged an amount due, or that theyactually pd marked up fees; re cause4 for declar relief, ct did not grt leaveto file an add’l cause of action (CCP436(b))#2Deny as to attack on entire 2d amdcompl; deny as moot as to causes ofaction 3 & 4Reasoning: Tardy filing of 2d amdcompl after leave to amd was givenwas atty cal error and pltf wouldundoubtedly be grtd 473 relief; deftshave not shown prej; mo is moot asto causes 3 & 4 due to sustaining ofdemurrer#1Grant to Mar ’14Prior reasoning: Compl 9/26/12;trial 11/18/13; 1 st reqst; pltf’s cogprblms have reqrd 1 hr deposessions; pltf had cancer surg; ptieswant time to discuss settlement andmediation; want 7/18/14 orthereafter; much too long – maybeMar ’14Add’l Reasoning: Ct reviewedamended/add’l info; the court doesnot understand how MP got this farinto this Sep ’12 case w/o previouslyobtaining the med records he seeks;the court has a hard time

14 Lee/City of IrvineMSJ/MSAunderstanding why 14 more hrs ofpltf depo are needed; the ct doesn’tknow why no session is currently set;the court doesn’t know the currentstatus of subpoenas for records; thecourt is amenable to cont this case toMar ’14 but not further; the court isdisinclined to add time so the partiescan do nothing while before theymediate#2Grant, or deny as mootReasoning: Pties agree pltf willauthorize release of the recordsGrant sum jmtMP: Ds City of Irv, Irv PD, andJun16 Tinoco/Big O Tires Continue trial GrantReasoning: Sust objs 8 and 10-13;PD is not govt’l entity that can sue orbe sued; City’s liab turns on Jun’sliab/actions; Jun and City areimmune for causes of action otherthan false arrest (Govt C 815 815.2,820.4; Thompson 18 A4 49, 62-63);liab for false arrest deps on existenceof prob cause (pc) (Pen C 847(b)(1); Hamilton 217 A3 838, 844-45); Pen C 836(d) provides for arrestof batterer of co-habitant/datingrelationship ptr if there is probablecause and arrest is immediate; infofrom purported victim suppts pc evenw/o reliability info (Hogan 71 C2 888,890); when prob cause exits, there isno need for further investigation(Hamilton, supra); when facts areundisputed, pc is a question of law(Giannis 78 A3 219, 225); pc is infogiving rise to strong susp of guilt(Gomez 63 A3 328,333); Jun hadplenty of info showing pc: Kimclaiming she was living there and hebattered her, including use of awooden sword, Lee agreed she hadbeen staying with him, Junsaw marks/bruises on her andclothing and baby clothing in acloset; it matters not that Jun mighthave discovered exoneratingevidence if he investigated further;Laible 157 A3 44 is inappositebecause it involved withholding ofexculp ev the officer alreadypossessed from the magistrate; Kimwas clearly a sophisticated and wileycon artist, who fooled Jun, as well asLee; Jun need not possess intuitive,inductive abilities of Columbo orMonk to escape liability from falsearrest liability

MP: Big O TiresReasoning: Compl 10/4/12; trial9/16/13; 1 st reqst; newly sub’d inattys for MP deft want cont to earlyNov and to move discov cutoff to domore discov

Rulings 1http://www.occourts.org/tentativerulings/fmillerrulings.htmPage 1 of 79/5/2013LAW & MOTION TENTATIVE RULINGSDepartment C14Judge Franz E. MillerCALENDAR DATE(S): 9/5/13LAW AND MOTION CALENDARSLaw and Motion calendars are heard Tuesdays at 1:30 p.m. (except during weeks with a Mondayor Tuesday holiday, in which case it is heard Thursday at 1:30 p.m.).TENTATIVE RULINGS:Tentative rulings will be posted on the internet, usually by 1:30 p.m. the Monday before thescheduled Tuesday hearing (or Wednesday before a Thursday hearing). If an attorney does nothave access to internet service for any reason, he or she may contact Dept. C-14 at (657) 622-5214 for the tentative ruling.PLEASE DO NOT CALL THE COURT IF NO TENTATIVES ARE POSTED – THE ANSWER WILLALWAYS BE THEY ARE NOT READY YET. “Pending” means the tentative ruling is not ready yet.PLEASE DO NOT CALL THE CLERK OR COURT ATTENDANT TO ASK WHAT A TENTATIVE RULINGMEANS. They are not able to give that information. Moreover, “tentative” means just that: It issubject to change after the court hears argument.GIVING NOTICE AND/OR PREPARING ORDERS/JUDGMENTS AFTER THE COURT RULES:The prevailing party shall give notice of the final ruling to each party, unless notice is waived byall parties. The prevailing party shall prepare an order/judgment for the court’s signature if theruling disposes of a party or the case.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, noappearance will be necessary and the tentative will become the final ruling. If no one appears atthe hearing and the court has not been notified all parties submit on the tentative ruling, thematter may go off calendar.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the timescheduled for the motion. No new issues may be raised at oral argument, but the attorneysshould not merely regurgitate their points and authorities.No case law or other authority may be cited at oral argument unless: (1) the citing partyreasonably did not believe it was pertinent at the time the party filed its briefs; and (2) the partyhas given reasonable notice of the new authority, including citation, to all other parties beforethe hearing.Motions generally will not be continued after the tentative has been posted.# Case Name Motion Tentative1 Anderson/Fullerton Leave to intervene Off calendar2 Friedman/Jack in the BoxMP: P FriedmanTax costs Grant in amt of $121.75(serving fee) + $14,210 (attyfees) + $45.74 (e-filing fees

Rulings 1http://www.occourts.org/tentativerulings/fmillerrulings.htmPage 2 of 79/5/2013RP: Ds Haviland3 Greer/PhotoglouDemurrer to complReasoning: Re service ofprocess, fees were incurredwhen RPs served x-compl on3d pty Jack; re atty fees, theyare not recoverable as costs,and the ct already grtd RPs mofor atty fees (and signed theorder 9/4/13); re e-filingchrgs, RP concedesOff calendarMP: D PhotoglouSustain w/ 10 days leave toamdRP: P GreerReasoning: Oral agmt for attyfees violates B&P 6148 andvoids agmt; atty may beentitled to quantum meruit4 Lee/City of Irvine Off calendar5 Lopez/Wells Fargo Bank Demurrer to compl Off calendar6 Mione/Troung Off calendar7 Monsetere/Amer FamilyOff calendarHousing8 Ni/Tustin BuffetDemurrer to 1 st amd Overrule w/ 10 days to anscomplMP: D Tustin BuffetReasoning: re cause 1 forfailure to pay wages, whetherRP: Ps Nideft later pd the wages isoutside the complaint, and isin the nature of an affirmativedefense; re cause 7 for viol ofB&P 17200, pltfs allegedunlawful conduct and businesspractice, and pltfs may beentitled to civ pen and inj (seeAlch 122 A4 339, 406 [backpay is not a remedy under17200])9 Piel/Mirajoy HomeMP: Ds Mirajoy andConcepcionRP: P Piel#1Demurrer to 1 st amdcompl#2Strike portions of same#1Overrule w/ 10 days to ansReasoning: Pltf plead sufffacts from which a trier of factcould find by clear andconvincing evidence at leastreckless conduct byConcepcion and her staff,especially in light ofConcepcion’s claim Piel had notfallen and allegs residencewere afraid to talk to DSS;ratification is shown byConcepcion’s conduct as well

Rulings 1http://www.occourts.org/tentativerulings/fmillerrulings.htmPage 3 of 79/5/201310 Power/Ocwen LoanServicingMP: D Ocwen LoanServicingRP: P Power#1Demurrer to 1 st amdcompl#2CMC#2DenyReasoning: See reasoningabove#1Sustain w/o leave re cause 3;otherwise overrule w/ 10 daysto ansReasoning: Re cause 1 for CC2923.5 viol, inconsistentpleading rule does not apply toassertions in notice of default,and plaintiff’s failure to prevailon the reqst for prelim inj isnot dispositive on whether pltfpled a 2923.5 cause; re cause2 for viol of H/O Bill of Rts, MPdidn’t list uncert in notice ofdemurrer, and pltf set forthallegs that would estab viols of2923.5, 2923.55 and 2932.5et seq, and 2924.18 (conductalleged re filing of notice oftrustees’s sale occurred after1/1/13); re cause 3 for viol of17200, pltf failed to respond toMP args11 Stevens/StevensMP: D Maria StevensRP: P Norma Stevens12 Temple Investments/Cabyburra InvstmtsChange venueEnforce settlement#2Hold CMCHear argReasoning: Causes of actionare personal, so action istransitory, and venue is incounty of deft’s residence(Brown 27 C3 477, 482; CCP395(a)); residence for venuepurposes equates withdomicile, i.e., where thedefendant intends to remainindefinitely (Tucker 226 A31249, 1258-59; Younger 12 A175, 177-178); question iswhether deft’s domicile is inOC or Bear Valley Springs;sancs would not be appropriatein any event since this mo iscloseGrant; enter jmt in amt of$5,003,014

Rulings 1http://www.occourts.org/tentativerulings/fmillerrulings.htmPage 4 of 79/5/2013MP: Ps Temple andTaylorRP: Ds (altho only KTrout filed an oppo)13 Aldana Family LivingTrust/StamegnaMP: D Sullivan LandsRP: P Aldana Trust14 SoCal Pacif Constr/ PrimeCoatingsQuash service ofsummons#1Leave to file 2d amdcompl#2Compel depo#3Compel removal of “attyeyes only” from docs#4Leave to file late sepstmtReasoning: See below lasttentativeHear argReasoning: Ct continuedmatter for PoS; amd PoS saysperson apparently in charge,Daugherty, was served whenno officer/agt for service wasthere and she said she wasauthorized to accept service;this is insuff due diligence toserve the agt for service(Staffor 64 A4 1174, 1178[2-3 attempts is usually suff]);but does Daugherty’srepresentation excuses it?#1Grant; deem compl served andfiledReasoning: Mo does notconform to rules, butsubmission of proposed 2damd compl effectively cures it;great liberality in grtg amd andRP has not shown prej; pltfsought to amd after learningRP didn’t mfg the product#2ContReasoning: Sep stmt was latefiled; ct inclined to grt relief in#4, below; RP should haveoppor to resp on merits#3Grt as to orig mfgrs’ prod datasheetsReasoning: Pltf’s args onlyconcern orig mfgrs’ datasheets for products itpurchased from deft – i.e., notthe entire 250+ pgs pltfreferences; deft has shown i.d.and relationships of Prime’smfgrs is a trade secret orconfid comm’l info; LTE is nota special mark, it’s low tempepoxy; deft has not shown

Rulings 1http://www.occourts.org/tentativerulings/fmillerrulings.htmPage 5 of 79/5/201315 Corso/AstorContinue trialsignif risk of harm if docs areshown to pltf’s team; limitingto pltf’s team is reas#4GrantReasoning: Failure to fileappears to be inadvertent; nosignif prejHear arg161718192021222324MP: Ds Astor et alReasoning: MP deft, 88, wantscont to 11/18 for his leg toheal after surgery; RP pltfwants IME to verify it; is theresome way to accommodate MPduring trial?Under CCP 664.6, “[i]f parties to pending litigation stipulate, in a writing signed by the partiesoutside the presence of the court or orally before the court, for settlement of the case, or partthereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.If requested by the parties, the court may retain jurisdiction over the parties to enforce thesettlement until performance in full of the terms of the settlement.” The parties did so here.A motion to enforce settlement may be decided on declarations. (Corkland v. Boscoe (1984) 156Cal.App.3d 989, 994.) Moreover, CCP 664.6 provides the court authority to interpret settlementterms and determine disputed factual matters regarding the settlement agreement, based oncontract principles, but not to add material terms which were not agreed to by the parties.(Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4 th 793, 809.) Under general contractlaw, the court will interpret agreements to make them lawful, operative, definite, reasonable,and capable of being carried into effect. (Civ. ode, sec. 1643; Rest.2d Contracts, sec. 203(a);see Cnty. of Marin v. Assessment Appeals Bd. (1976) 64 Cal.App.3d 319, 325.)Section 14 of the Settlement Agreement provides: “[A]t the option of plaintiffs, the entireoutstanding unpaid balance of principal and interest due under Section 2(b) of this Agreementshall become immediately due and payable, without notice or demand,” upon the occurrence ofnine specified events, including:

Rulings 1http://www.occourts.org/tentativerulings/fmillerrulings.htmPage 6 of 79/5/2013Section 14 also contains a handwritten addition stating: “Alternatively, if Defendants are indefault, as described above, Plaintiff may, without notice, file and obtain entry of the judgmentin the form attached hereto as Exhibit ‘D’.”Plaintiffs have shown that defendants are in default of the Settlement Agreement, in that eachentity defendant is inactive in some respect. RP Trout does not dispute that the entitydefendants are inactive, or that their inactive status is a breach. (Defendant Kathy Trout is theonly defendant who filed an opposition.) Rather, RP argues that the entity defendants werealready inactive at the time the Settlement Agreement was entered into; thus: (1) if there was abreach, it was not material; and/or (2) plaintiffs waived this condition.This argument fails. Kathy Trout’s declaration in support of the opposition states the “status ofthe Defendants’ [sic] has not materially changed since the execution of the Agreement” and the“entities’ status was, for the most part (italics added), inactive at the time of the execution ofthe Agreement and plaintiffs knew it.” This language is ambiguous and does not specificallystate which entities, if any, were “inactive” at the time of execution, or how plaintiffs knew it.The declaration also states the entities’ status was explored at her deposition, but it does notspecifically state she testified at deposition that each entity was inactive. The declarationappears to be carefully crafted in this regard.RP’s argument that any such breach is immaterial is unavailing. There is no reason for plaintiffsto enter into a Settlement Agreement with inactive businesses, who are incapable of generatingnet profits from which the payments called for in the Settlement Agreement would be paid. RPprovides no evidence to show that this provision was “immaterial,” and the court will not inferthe plaintiffs entered into a contract where they had essentially zero chance to ever recovermore than 11% of the agreed to settlement amount.RP’s waiver argument also fails. Waiver is an affirmative defense to enforcement of a contract,and requires clear and convincing proof that: (1) plaintiffs knew the conditions of defendants’performance; and (2) plaintiffs freely and knowingly gave up their right to have defendantsperform those obligations. (CACI 336.) RP’s equivocal declaration is clearly insufficient to meetthe high “clear and convincing” burden as to the second element.MPs have also shown that defendants are in breach of Section 14(f)’s requirement thatdefendants refrain from making misrepresentations in the financial statements they are requiredto submit to plaintiffs. MPs have shown that defendants Trout and Duraform Building Panelssubmitted assigned the equipment at issue to a new entity, Magply, Inc., on 10-10-12. Yet,defendant Duraform continued to claim costs associated with moving and repairing theequipment well after October 2012.RP’s Opp has no explanation for this discrepancy whatsoever. Rather, RP argues that MPs aretrying to characterize this assignment as a distribution or compensation that affects thecalculation of “net profits.” That is not what MPs are arguing at all. RP’s argument that theassignment does not affect the net profits (or lack thereof) to make payments under theSettlement Agreement is a red herring. As RP has not shown that no misrepresentationoccurred, this is also a breach of the Settlement Agreement.Para. 2 of the Settlement Agreement calls for an initial payment of $500K and subsequentpayment of $4.5M from “net profits,” plus 10% interest per annum on “all unpaid portions” ofthe $4.5M. There is no dispute that the $500K payment was made but that no payments weremade on the remaining $4.5M. Thus, MPs are entitled to judgment in the amount of the $4.5Mprincipal, plus 10% interest from 7-24-12 (the date the Settlement Agreement was executed)through 9-5-13 (the date of the hearing on the motion). MPs calculate this interest at an even$510K, for a total judgment of $5,010,000.

Rulings 1http://www.occourts.org/tentativerulings/fmillerrulings.htmPage 7 of 79/5/2013It is unclear how MPs arrived at this figure. Interest for those 408 days would be $503,014, not$510K, so the total judgment would be $5,003,014.

Rulings 1http://www.occourts.org/tentativerulings/fmillerrulings.htmPage 1 of 69/13/2013LAW & MOTION TENTATIVE RULINGSDepartment C14Judge Franz E. MillerCALENDAR DATE(S): 9/10/13LAW AND MOTION CALENDARSLaw and Motion calendars are heard Tuesdays at 1:30 p.m. (except during weeks with a Mondayor Tuesday holiday, in which case it is heard Thursday at 1:30 p.m.).TENTATIVE RULINGS:Tentative rulings will be posted on the internet, usually by 1:30 p.m. the Monday before thescheduled Tuesday hearing (or Wednesday before a Thursday hearing). If an attorney does nothave access to internet service for any reason, he or she may contact Dept. C-14 at (657) 622-5214 for the tentative ruling.PLEASE DO NOT CALL THE COURT IF NO TENTATIVES ARE POSTED – THE ANSWER WILLALWAYS BE THEY ARE NOT READY YET. “Pending” means the tentative ruling is not ready yet.PLEASE DO NOT CALL THE CLERK OR COURT ATTENDANT TO ASK WHAT A TENTATIVE RULINGMEANS. They are not able to give that information. Moreover, “tentative” means just that: It issubject to change after the court hears argument.GIVING NOTICE AND/OR PREPARING ORDERS/JUDGMENTS AFTER THE COURT RULES:The prevailing party shall give notice of the final ruling to each party, unless notice is waived byall parties. The prevailing party shall prepare an order/judgment for the court’s signature if theruling disposes of a party or the case.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, noappearance will be necessary and the tentative will become the final ruling. If no one appears atthe hearing and the court has not been notified all parties submit on the tentative ruling, thematter may go off calendar.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the timescheduled for the motion. No new issues may be raised at oral argument, but the attorneysshould not merely regurgitate their points and authorities.No case law or other authority may be cited at oral argument unless: (1) the citing partyreasonably did not believe it was pertinent at the time the party filed its briefs; and (2) the partyhas given reasonable notice of the new authority, including citation, to all other parties beforethe hearing.Motions generally will not be continued after the tentative has been posted.# Case Name Motion Tentative1 Abaoag/Kaiser Found Compel prod of autopsy Grant w/ stip’d limitations onHospsphotosdisclosureMP: Ps

Rulings 1http://www.occourts.org/tentativerulings/fmillerrulings.htmPage 2 of 69/13/20132 Cadlerock Jt Venture/AguirreMP: D AguirreRP: P Cadlerock3 Engby/MahoneyMP: P EngbyRP: D Mahoney4 1 st Team RE OC/VanCleave#1MP: D McCoyRP: P 1 st Team#2MP: Ds Van CleaveRP: P 1 st Team#3MP: D ChangRP: P 1 st TeamVacate default and writof possessionAssgnmt Order#1Quash service ofsummons#2Term inj#3Demurrer to 1 st amdcomplReasoning: No oppo; goodcauseGrant; set aside jmt, default,and writ of possessionReasoning: Self-rep’d deftadequately expressed desire toset aside jmt and default; sheacted w/ reas speed to setaside; her assertion she wasmisguided by a notario iscredibleGrantReasoning: Under CCP708.510, assgnmt is availablere commissions; deft is not anemployee – she works as anindependent contractor on acommission basis; deft args ctshould set aside jmt, but shehas not filed a mo, and herchances of relief to do notappear good; defense of usurymust be raised or it is waived#1Cont 60 days for lim’d discovReasoning: Overrule obs toChang depo; that Chang gavethe embezzled money toMcCoy is insuff to estabconspiracy; pltf entitled to takediscov on the issue (Mihlon169 A3 703, 711)#2DenyReasoning: This mo iseffectively seeking a do-over ofthe applic for inj; MPs presentno new ev that would show asuff change in circs#3Sustain as to causes 2 and 4w/ 10 days leave to amdReasoning: Compl is reas’lycertain in allegs; re cause 2 forfraud, aiding and abetting andconspir (intent/agmt aremissing) are not suff’lyalleged, and Chang’s depo isoutside the pldgs, and these

Rulings 1http://www.occourts.org/tentativerulings/fmillerrulings.htmPage 3 of 69/13/20135 Gil/Elite Home EnergyMP: P GilRP: Ds Elite andLambroseelements are not expresslypleaded: knowledge, intent,and justifiable reliance; recause 4 for negl misrep, it failsfor the same reasons, exceptintent to defraud is pledDemurrer to ans Sustain re defs 2-4, 8-9, 11,13-17, 24-25, 27, 36, 39-426 Gaddam/Laguna CrestEntrpr7 Godfrey/CKE Rests Off calendar8 Kilroy Realty/ CompassMtge#1MP: DsRP: P Kilroy Realty#1Demurrer to 1 st amdcompl#2MSJ/MSA by Madden#3MSJ/MSA by KornsweitReasoning: re defs above,factual bases are notadequately pled; re def 5, it isa legal def, not factual, re 6, 7,10, 34 factual bases areadequately pledOff calendar#1Sust re causes 3 & 4 w/ 10days leave to amd; otherwiseoverruleReasoning: Deny j/n; re cause1 for breach of contract, 1 stamd compl suff’ly alleges alterego; re cause 2 for promotorliab, it is suff’ly alleged; recause 3 for fraud, pltf fails toallege facts supptg a duty ofdisclosure, and compl allegesthe true facts were disclosed topltf’s predecessor, andpromissory fraud is notalleged, and reliance is notpled, and no intent to performis not pled, and assuming goodfaith and fair dealing applies,the true facts were disclosed topltf’s predecessor, and failureto provide estoppel certif is nota basis for duty to disclose,and reliance is not pled; recause 4 for negl misrep, it isbased on cause 3, and there isno concealment theory for neglmisrep (Byrum 219 A3 926,940-942); re cause 5 formoney had and received, it isadequately pled#2 & 3Deny as moot

Rulings 1http://www.occourts.org/tentativerulings/fmillerrulings.htmPage 4 of 69/13/20139 RGTS Mid-Atlan/GallagherMP: D GallagherRP: P RGTS10 Tamarat/GMAC MtgeMP: Ps TamaratRP: D GMACCompel further prod#1Prelim inj#2CMCReasoning: DemurrersustainedGrant as to 3, 4 & 7; deny asto 1, 2, 5, 8 w/o prej tomaking further, clearer reqstsReasoning: Re reqst 1, “allcommuns” is too broad; rereqst 2, same; re reqst 3, it isnarrowed to “any bid or projproposed to RGTS byGallagher”; re reqst 4, it isunambig and relates toGallagher’s defense (“fromempl to thereafter,” altho not amodel of clarity, means “whilehe was empl’d there”); rereqst 5, the relevant time reinternet postings is beforeGallagher entered into therelationship; re reqst 6, eventho all bids/proposals may notbe in dispute, they may berelevant and lead to admissev; re reqst 7, the suppt’g infoin the reqst should enable pltfto figure out who/what NES is,but the easiest resolution is forGallagher to revise the reqstDenyReasoning: Take j/n perreqst; re cause 1 for viol of CC2923.6, MP pltfs do not estabthe res is owner occupied; recause 2 for viol of B&P 17200,pltf must allege injury in fact(17204), and cause must bepredicated on fraud or viol oflaw, and pltf has not pled fraudw/ suff specificity (Perlas 187A4 429, 434), and the repsalleged are not suff toconstitute fraud, and pltf hasnot pled viable stat basis as2923.6 does not apply; recause 3 for promissoryestoppel, it suffers fromproblems noted above; recause 4 for negl, bankcustomerrelation is notfiduciary (Oaks Mgmt 145 A4453, 466) and is not a “specialrelationship” vis-à-vis gffd Kim17 A4 974, 979) and pltf hasnot presented grds for duty of

Rulings 1http://www.occourts.org/tentativerulings/fmillerrulings.htmPage 5 of 69/13/201311 Uribe/Bayside 1 st Mtge CoMP: Ds America’sWholesale Lender and Bof ADemurrer to complcare (Nymark 231 A3 1089,1100; Sierra-Bay Fed LandBank Assn 227 A3 318, 334-335); re cause 5 for acct’g,defts do not owe fid duty, andpltfs have not shown somesum is due them#2Hold CMCSustain w/ 10 days leave toamdReasoning: Re cause 1 for violof CC 1632, it does not applyto loans sec’d by real prop; recause 2 for viol of B&P 17200,pltf must allege injury in fact(17204), and cause must bepredicated on fraud or viol oflaw, and pltf has not pled fraudw/ suff specificity (Perlas 187A4 429, 434), and stat of limran on fraud, and pltf has notpled viable stat basis, andlenders have no duty todetermine borrower’s ability torepay, and pltf fails to ID whatnotices and docs were notdelivered nor what info wasfalsified nor what the TILAand/or RESPA viols were; recause 3 for fraud, see above;re cause 4 for negl, bankcustomerrelation is notfiduciary (Oaks Mgmt 145 A4453, 466) and is not a “specialrelationship” vis-à-vis gffd Kim17 A4 974, 979) and pltf hasnot presented grds for duty ofcare (Nymark 231 A3 1089,1100; Sierra-Bay Fed LandBank Assn 227 A3 318, 334-335); re cause 5 for unjustenrich, there is no such cause(Levine 189 A4 1117, 1138);re cause 6 for viol of TILA, 1-yr(re action for damages) and3-yr (re action for rescission)SoLs ran; re cause 7 for RESPAviol, pltfs have not pled howany referral fees or kickbacksdamaged them; re cause 8 forviol of CC 1558, it deals w/ IDof parties to a contract and willnot suppt a cause of action

Rulings 1http://www.occourts.org/tentativerulings/fmillerrulings.htmPage 6 of 69/13/201312 Okko/ShahindokhtQuash discov subHear argMP: P OkkoRP: D Shahindokt13 Yildiz/Gammo Order shortening time forJoP mo1415161718192021222324Reasoning: 7/29/13, ct heardin limines and granted in partone that sought to limit Dr.Legome’s testimony; ct doesnot see how that ruling wouldlimit access to the West CoastMRI; MP pltf args, however,that discovery cutoff haspassedHear argReasoning: MP defts say theyfiled on 9/26/13 (sic; prob’ly8/26) for a 9/24/13 hrg datebut couldn’t a date until 10/8,the day after trial starts, and ifct grts the mo it will not be necto try the case and pties willnot need to engage in wks oftrial prep

LAW & MOTION TENTATIVE RULINGSDepartment C14Judge Franz E. MillerCALENDAR DATE(S): 9/17/13LAW AND MOTION CALENDARSLaw and Motion calendars are heard Tuesdays at 1:30 p.m. (except during weeks with a Monday or Tuesdayholiday, in which case it is heard Thursday at 1:30 p.m.).TENTATIVE RULINGS:Tentative rulings will be posted on the internet, usually by 1:30 p.m. the Monday before the scheduled Tuesdayhearing (or Wednesday before a Thursday hearing). If an attorney does not have access to internet service forany reason, he or she may contact Dept. C-14 at (657) 622-5214 for the tentative ruling.PLEASE DO NOT CALL THE COURT IF NO TENTATIVES ARE POSTED – THE ANSWER WILL ALWAYS BE THEY ARENOT READY YET. “Pending” means the tentative ruling is not ready yet.PLEASE DO NOT CALL THE CLERK OR COURT ATTENDANT TO ASK WHAT A TENTATIVE RULING MEANS. Theyare not able to give that information. Moreover, “tentative” means just that: It is subject to change after thecourt hears argument.GIVING NOTICE AND/OR PREPARING ORDERS/JUDGMENTS AFTER THE COURT RULES:The prevailing party shall give notice of the final ruling to each party, unless notice is waived by all parties. Theprevailing party shall prepare an order/judgment for the court’s signature if the ruling disposes of a party or thecase.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will benecessary and the tentative will become the final ruling. If no one appears at the hearing and the court has notbeen notified all parties submit on the tentative ruling, the matter may go off calendar.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely regurgitate theirpoints and authorities.No case law or other authority may be cited at oral argument unless: (1) the citing party reasonably did notbelieve it was pertinent at the time the party filed its briefs; and (2) the party has given reasonable notice ofthe new authority, including citation, to all other parties before the hearing.Motions generally will not be continued after the tentative has been posted.

# Case Name Motion Tentative1 Chicony Pwr Technol/ ComarcoIncMP: XC ChiconyRP: XC ComarcoMSAHear argReasoning: Mo served 7/3/13, andw/ 2 days added for electronicservice (CCP 1010.6(a)(4)) earliestmo could be heard is 9/18 (75 dayslater; CCP 437c(a)), and ct may notshorten time w/o consent (McMahon106 A4 112, 116), and because timeruns anew (Robinson 168 A4 1258,1268), mo could not be heard beforetrial; MP’s sep stmt jumbled UMFs for3 noticed issues together, violatingCRC 3.1350(d); MP’s P&As were overthe 20-pg lim; re objs, sust Jih suppldeclar 1, Kao suppl declar 1, Ergodecl 1, McKeffery decl 8, and Willhoftdeclar 8-9; re cause 1 for breach ofcov of gf&fd, contrary to MP’s arg,bad faith cause can exist outside inscontracts except bad faith denialcontract exists, but there must be aviol of an indep duty arising from tortlaw (Freeman & Mills 11 C4 85); MPargues the claimed indep wrongfulaction was subverting the the purp ofthe contract by providing nonconformingprods and failing orrefusing to provide quality control –isn’t that just breach of contract?(and the agmt itself doesn’t even talkabout quality standards); re cause 3for int’l interf w/ contract, there istriable issue whether MP int’lyinterefered w/ the Comarco contractw/ Targus – see UMFs 15-19, 29-38),and MPs corp priv/justif does notsucceed as a matter of law; re cause4 for int’l interf w/ prospective econadvantage, same analysis; re prayerfor punis, it rises and falls on rulingsre causes of action2 Elliott/Transamer Life Ins #1Demurrer to 1 st amd compl byPHL#2Same by Principal Life#3Strike portions of same (byPrin Life?)#4Demurrer to 1 st amd compl byWeissman#5Same by Transamer#1, 2, 4, 5Sustain w/ 10 days leave to amdReasoning: Deny j/n because even ifct can take j/n of contract notattached to compl, ins applic is not(shown to be) part of the contractitself, and no grd exists to take j/n ofDept of Ins website in abs of showingit is an “official act” of the Ins Dept;re stat of lim def, to estab tolling pltfmust plead lack of knowl of cause ofaction, lack of reas means to obtainknow sooner, and how and when pltfdiscov’d the cause (3 Witkin, Cal.Proc. 5 th , Actions, sec 659, p. 870;Fox 35 C4 797, 803); pltfs alleg

3 Gresham/DuncanMP: D DuncanRP: P Grasham#1Demurrer to compl#2Strike portions of sameWeissman told them 12/2/08 therewas no longer a mkt for lifesettlements and they would have torelinquish the pols to the lender, andsent a ltr saying he was trying to sellthe pols but the econ was terribleand there was no money, and thatinstead of telling pltfs the reason wasa revision in the life expectancytables, and that Weismann knewfrom the outset Patsy had a too longlife expectancy; but pltfs do notplead all of the elements above (viz,time and manner of discov andinability to make earlier discov), andthe reason the policies were notsaleable does not change the factpltfs knew what Weissman hadorig’ly told them was false; and all ofthe stats of lim other than breach offid duty, and maybe unjustenrichment ran earlier than 3/8/13 inany event; PHL was not added bydoe amd, so it doesn’t relate back; redamages lost profits are onlyavailable to “estab’d businesses,”and even if this was a “business,”pltfs’ measure (the amt Weissmansaid they would make) is incorrect –because, as pltfs allege, Patsy couldnot profit from the policies from theoutset; thus, Patsy would be ltd toout of pocket loss, which pltfs allegwas nothing; re stdg of DouglasElliott, compl alleges he never couldget ins and no allegs say he wouldever expect to collect as beneficiary;re lic’g issue, j/n was not grtd toestab this; re st of frauds issue,partial perf was alleged; re unjustenrich, it is not a cause of action andno enrich because pltfs did not paypremiums#3Deny as moot#1Sustain w/ 10 days leave to amd recause 3; overrule re cause 4Reasoning: Re uncertainty,complaint is reas’ly certain, and MPdid not ID w/ specificity the uncertainpassages (Fenton 135 A3 797, 765);re cause 3 for maintenance andnuisance, the former is not a causeof action, and re nuisance, plaintifffailed to plead he did not consent tothe conduct, and reasonableannoyance, and seriousness of harmoutweighs public benefit of deft’sconduct; re cause 4 for IIED,

4 Heurlin/Schrenker#1MP: Schrenker and firmRP: P Heurlin#2MP: D Schrenker andFairwageRP: P/Claimant Heurlin#3MP: XCs Fairwage et alRP: P Heurlin6 Mian/ZaveriMP: D ZaveriRP: P Mian7 Momeny/GhaneianMP: Ds Ghanejan and OrcuttGrp8 NextGear Capital/ HighlineSpecialist#1Reconsideration#2Consolidate#3Compel depoRelief from default re timelycosts memo#1Continue MSJ, give pltf moretime to submit suppl docs inopp to mo, and cont trial date#2MSJ/MSA#1RTAO/Writ of attach re Ashraff#2Same re Yaghoubi#3outrageousness presents a factualquestion that cannot be resolved ondemurrer (Stoiber 101 A3 903, 922)#2Deny as mootReasoning: Demurrer sustained inpart#1Continue for exhibitReasoning: MPs’ papers say ex Kshows the bkcy concluded andFairwage int reverted to Schrenker;ex K is not attached#2GrantReasoning: Heurlin’s action is for,among other things, pmt by the corpof fees earned but unpd, thedetermination of which impacts theFairwage disso; consol is approp toeffect reqrmts of CorpC 1904 and1806#3DenyReasoning: discov cutoff has longpassedGrantReasoning: Relief from thisdefalcation lies under CCP 473(Pollard 12 C3 374, 380-381); failurewas inadvertent due to press ofbusiness; no cognizable prej to pltfs#1DenyReasoning: Trial ct’s discretion; nofundamental rt to MSJ; ct does notcare to cont trial date; probabletriable issue of fact anyway#2DenyReasoning: MP defts did not give thereqrd 75 day notice, which the trialct may not shorten McMahon 106 A4112Continued

9 Profit/ShahMP: D ShahRP: P Profit10 Razavi/JP Morgan Chase BankSame re Ruvalcaba#4CMC#1Demurrer to compl#2Strike portions of sameW/draw as atty#1OverruleReasoning: Re cause 1 for “medicalnegl/gross negl,” the title does notcontrol and the allegations suff’lyplead med negl; the ct treats the“intnl” and “reckless” lang as surplus#2Grant w/ 10 days leave to amdReasoning: Puni damage claim maynot be included in med mal complw/o leave of court and there wasnone; atty fees are not available inthis actionContinue pending amended PoSMP: Atty ManningRP: P Razavi12 Yaghjian Ltd Ptrshp/ Brubaker Demurrer to compl Hear argReasoning: Good cause to w/drawshown, but MP’s PoS does not statewhere the documents served wereplaced in the mail (CCP 1013(a)(1)14 Harrison/Gilroy Unified SchoolDistrictMP: P C HarrisonRP: Ds Gilroy Unified and AHarrisonCompel discovery from AHarrison (4X)Reasoning: Ct continued this matterfrom 7/16 to 9/17 for RP pltf to bringthe signed orig agmt or a detaileddeclaration stating why it is notavailable; this was because thepurported copy of the agreementattached to the compl appeared tohave cut-and-paste sigs inserted; nodeclaration has been filed; the courtexpects the original will be produceda the hearing; assuming the originalis produced and is authentic, thedemurrer should be overruled recause 1 for int'l interf w/ contract; recause 2 for int'l interf w/ prospectecon advantage, the element of int'lacts by deft designed to disrupt econrelationship is not met, as theclaimed wrongful interf is based onthe premise BoA had a duty toaccept or reject the proposed shortsale (see Stebley 202 A4 522, 526)Deny; impose sanctions of $1,540Reasoning: On 6/18/13, ct cont’dtrial to 11/25, and extended discovcutoff to 30 days before that dateonly as to expert discovery and mosre discov currently pending againstdeft Gilroy; on 8/27, ct heard andruled on discov mos re Gilroy, andexpressly denied reqst to reopendiscov; Alvin Harrison, pltf’s brother,

15 Villegas/OstowariMP: Ds Ostowari and OSDEntrpr16 Vyas/VyasMP: D B VyasShorten time for service andhrg on mo to compel prod ofdocs at depoContinue trialhas been a deft since the outset; thecourt granted pltf’s reqst continuethe trial, amd the compl, andcomplete tardy discov, despite astrong susp pltf’s problems were theproduct of his own sloth; thatsuspicion has risen beyond areasonable doubt; as deft Gilroycorrectly notes, pltf premises this moon his assertion the ct extended thediscov cutoff as to all discov; not so– on 6/18 and 8/27, the ct expresslydeclined to do so; moreover, pltf’satty twice told deft’s atty the wrongdate for the ex parte hrg, causingdeft’s atty 2 dry runs to Santa Ana,which generated $1,540 in atty fees;the court intends to impose sanctionsin that amountHear argReasoning: trial 12/2/13; msj10/29/13; at 7/8 depo, pltf declinedto produce credit card records andhis atty said deft could move tocompel; pltf declares he was neverserved w/ moving papers; no movingpapers were attached to the ex partereqst to shorten timeDenyReasoning: Compl 12/30/11; trial9/23/13; 2d reqst; pties want tocont trial to mediate and do more ofpltf’s depo; they offer to waive jury

# Case Name Motion Tentative1 Cebreros/Hurricanes Bar & GrillMP: D HurricanesRP: P CebrerosMSJ/MSAGrant MSA re cause 3; otherwisedenyReasoning: Take j/n per reqst; reobjs to Lovett declar, sustain 1-2, 5,7-9; re cause 1 for negl and cause 2for prem liab, re control of premises,landowner may be liab for negl orpremises liab where patron was victof 3d pty crime even if it occurred offpremises (Southland Corp 203 A3656), and the stairwell was the mainroute to the bar, and Hurricanesposted a sign saying to use it =“signif comm’l benefit”; reforeseeability, there is triable issue(under Delgado 36 C4 234) rewhether deft, knowing of thealtercation inside the bar, shouldhave taken reasonably simplemeasures to avoid the assault on thestairwell; re causation, similaranalysis; re cause 3 for int’l tort,there is no triable issue deft inten’lyor recklessly caused pltf to be injured2 Chicony Pwr Tech/ Comarco File docs under sealGrantMP: D/XC Comarco3 Cerrone/Level 1 CorpMP: Ds Level 1 and WesternSuretyRP: P Cerrone#1Compel arb#2CMCReasoning: No oppo; overridinginterest in confidentiality of inproprietary info, the disclosure ofwhich would cause compet harm toco (Universal City Studios 110 A41273, 1285-86)#1GrantReasoning: MPs have not shown FAAapplies, so st law analysis is used;class action provision is severableand this is not class action anyway;pub policy favors arb (Madden 17 C3699, 706-07); arb agmt proved, sopltf must show agmt is bothprocedurally and substantivelyunconscionable; re proceduralunconsc (Armendariz 24 C4 89,114); arb clause is prob’ly proced’lyunconsc due to take-it-or-leave-it; resubstantive unconsc, self-helpremedies are expressly allowed, andfee shifting clause, altho unconsc, isseverable and arb is prohibited bystat from enforcing it (CCP1284.3(a); Mc Manus 109 A4 76,101-02, 134), and re reqrmt pltf payfees above $5K, there is no ev it willbe more or that pltf couldn’t pay, andfee shifting if action is frivolous is notunconsc; Guaranteed Fin Co is not in

4 Claus/HelgemoMP: D PaychexRP: P Claus5 Dagostino/Greenpoint MtgeFundingMP: Ds JP Morgan Chase, EMCMtge, and Wells FargoRP: Ps Dagostino10 Razavi/JP Morgan ChaseMP: Ds JP Morgan Chase andCal Reconveyance#1Set venue of arb in NY#2Status conf re arbDemurrer to 2d amd compl#1Demurrer to 1 st amd compl#2Strike portions of samearb because it has been defaulted#1Deny or continueReasoning: PoS is defective as it isnot signed by the person whodelivered the mo to RP, and RP hasnot filed an oppo; on the merits, MPhas shown arb agmt for arb n NY,and because RP pltf has notresponded, he has not shown fraud,undue influ, overwhelmingbargaining pwr or graveinconvenience#2Hear status or continueOverrule w/ 10 days to ansReasoning: Re cause 1 for breach ofcontract, pltfs have now alleged perf,and MPs have not reqst’d j/n of docsthey claim refute pltfs’ allegs, andthe court wouldn’t use those docs forthe truth of matters asserted anyway(Joslin 184 A3 369, 374), and breachis suff’ly specif’ly alleged, and termsof contract suff’ly pled; re cause 2 forviol of CC 2923.5, pltfs now allegethey reside at the prop, and MPshave not reqst’d j/n of docs theyclaim refute pltfs’ allegs, and thecourt wouldn’t use those docs for thetruth of matters asserted anyway,and whether NoD states it was filedby Quality as agt of bene is irrel re2923.5 compliance; re cause 3 forviol of B&P 17200, it survivesbecause other causes doSustain; hear arg re leave to amendReasoning: Take j/n per reqst; recause 1 for breach of contract, pltfpleads mult TPPs and on info andbelief that if he perf’d them, hewould get perm mod, but the TPPagmts were not for a mod, and nomod agmt is attached or set out haecverba, and compl pleads he was offerperm mod (re which he givesexcuses why he didn’t take thelender up on the offer); re breach ofcause 2 for CC 2923.6, HBR operatesprospectively as there is no expressretro lang or clean and unavoidableimplication (see In re EJ 47 C4 1258,1272), and all activities in this case,except the Jan ’13 notice of t’ee saletook place before 1/1/13, andplaintiff does not plead tender and noclassic exception applies (see Lona202 A4 89, 112-13), but tender not

16 Zions 1 st Nat’l Bank/ LindMP: P Zions 1 st Nat’lRP: Ds Taieb and Lind19 Yaghjian LP/B of AMP: D BoARP: P Yaghjian LPDeem facts admittedDemurrer to complnec where borrower seeks to setaside foreclosure based on perfunder enforceable loan mod agmtBarroso 208 A4 1001, 1017), but ifmod appl was submitted pre-’13 thestat does not apply absent change infin circs, and HBR only applies tobuyer’s primary res, and pltf doesnot plead this loan was a 1 st , and noalleg lender recorded notice ofdefault etc w/o compliance w/2923.6, and no alleg pltf documentedchange in circs w/ lender per subd(g), and lender offered mod; recause 3 for B&P 17200 viol, it is derivof other causes that fail, and fraudnot adequately pled, and pltf wasoffered a loan mod; re cause 4 fornegl, it does not lie betwn trad lenderand borrower (Nymark 231 A3 1089,1096); re cause 5 for acctg, lenderdoesn’t owe borrower a fid duty#2Deny as moot based on sust’gdemurrerDeny re Taieb w/ sanc against him of$1,575; hear arg re LindReasoning: Re Taieb, he has sincefiled resps (CCP 2033.220), but pltfhad to bring the mo; re Lind, thenotice of mo (probably via typo, doesnot list Lind as person against whommo is brought)Sustain w/ 10 days leave to amdReasoning: The court continued thismatter for pltf to explain theapparently doctored agmt w/ cutand-pastesignatures by the sellers;altho pltf did not submit declars bythe sellers, it submitted delcars byvarious persons assoc’d w/ the sale,explaining the sellers authorized theiragt, Buick, to cut and paste theirsigs; this is problematic for a numberof reasons: it’s hard to figure whyBuick didn’t just sign for them, andauthorization for a real estate agt tosign must be in writing (Church 18CA 745, 748); re pltfs claim thesellers are estopped to deny thecontract because it was partiallyperf’d, that is not alleged, and thereis a question re whether the deft isestopped to deny it; in any event,the court has the power to order thepltfs to file an amded compl thatconforms to the true state of affairs,and the ct is inclined to do so

# Case Name Motion Tentative1 Fabian/Select PortfolioServicingMP: DsRP: P FabianDemurrer to 2d amd compl Sustain; hear arg re leave to amdReasoning: Take j/n per reqst; recause 3 for breach of the cov of gffd,the cov must be connected to anagmt to which defts were parties,and pltf essentially alleges defts hadno rts under the agmt (note/DoT)because they were never properlyassigned, and pltf cannot assert statviols (e.g., 2923.5) under the rubricof gffd breach (Jenkins 216 A4 497,527); re cause 4 for quiet title, pltfmust tender the entire amt of thedebt, and pltf alleges only that sheattempted to tender, and pltfs arg reseparating the debt from the securityfails; re cause 5 for Comml Codeviol, that code is inapplic to non-judforeclosure2 Ferguson/GoodrichMP: Ds GoodrichRP: P Ferguson4 Global Sourcing Solutions/Wholesale ExpressMP: P/XD Global SourcingRP: D/XC Wholesale Express8 Scarlata/JP Morgan ChanseBankMP: D JP Morgan ChaseRP: Ps Scarlata#1Compel further resp to specrogs – J Goodrich#2Compel further resp to RFPDs– J Goodrich#3Compel further resp to specrogs – V Goodrich#4Compel further resp to RPFDs– V GoodrichDemurrer to 1 st amd x-complDemurrer to 1 st amd compl#1-4Grant w/ $1,960 sancsReasoning: All 4 mos are based onthe same docs relating toumbrella/excess cov ins; re the “nofurther discov” order, the lang is inthe ct’s tentative, not its order, andthe discovery was sought well beforeany order was made; the pols arediscoverable nws whether they areadmissible (CCP 2017.210; seeIrvington-Moore 14 A4 733); theprivacy claim fails; re sancs [$300/hrX 6 hrs] + [4 X $40] = $1,960 isreasonableOverrule w/ 10 days to ansReasoning: Take j/n per reqst; XCnot reqrd to attach written contractand terms are adequately pled; x-compl is reasonably certain and MPdoesn’t specify the how, why, andwhere of the uncertainty (Fenton 135A3 797, 809); MP has not shown theelements of judicial estoppel; MP hasnot shown none of the exceptions toCommC 2201 apply (see, e.g.2201(c)(1); 2201(c)(3)); x-compldoes not admit that Gobal cured thedefects; written contract attached toIL compl is diff from contractsalleged by Global hereSustain w/ 10 days leave to amdReasoning: Take j/n; re tender, pltfsshould not be required to tenderbefore receiving protections underHBR (CC 2923.6(g) etc) – same logicapplies as in Mabry 185 A4 208; re

9 Sonrisas at MurrietaHomeowners Assoc/ GeminiIns Co#1Demurrer to 1 st amd compl –Everest#2Strike portions of same#3Demurrer to 1 st amd compl –Gemini Inscause 1 for CC 2923.6 viol, loan modwas sought pre-1/1/13, but pltfsallege change in circs, but fordocumentation they refer to Exh Dwhich is not attached, and if Exh D isExh D to the orig compl, it does notconstitute documentation as it was ademand ltr and auth letter only, andno alleg that foreclosure proceedingswere initiated (indeed, the contraryis true); re cause 2 for viol of B&P17200 it is derive of other causes,and fraud is not alleged and 2923.6viol is only stat viol alleged, and“unlawful fees” alleg does not saywhat laws are implicated, and dualtracking is not alleged, and failureto-handlealleg is not suppt’d, andpltfs fail to show loss; re cause 3 fornegl, no duty (Oaks Mgmt 145 A4453, 466; Kim 17 A4 974, 981;Nymark 231 A3 1089, 1100); recause 4 for acctg, no fid duty pledand no sum owing pltfs alleged#1Overrule w/ 10 days to ansReasoning: Re $50K retention,attached docs do not estab as matterof law Everest had no duty to payuntil retention is exhausted (Exh Gapparently doesn’t have 1 st pg ofpol); re whether subj developmentwas covered in pol, nothing in thecompl shows the subj developmentwas not the one covered; re stat oflim, it did not run until contract wasbreached w/ or w/o bad faith, byfailure to pay, and/or until Ins C sec11580 was violated, all of whichwould be when Everest declined topay the jmt#2Deny re atty fees; grt w/ 10 daysleave to amd re punisReasoning: Atty fees may be appropre bad faith under Brandt 37 C3 813,817; puni allegs are not factually suffto show oppression or malice againstpltf#3Overrule w/ 10 days to ansReasoning: Re cause 4 for negl, thecomplaint does not estab as a matterof law there was no coverage, viaconcession or otherwise, and rewhether the subj prop is covered,nothing in the compl shows the subj

15 Shea Homes Ltd Prtshp/LoefflerMP: D LoefflerRP: P Shea HomesSet aside/vacate jmtdevelopment was not, and issuewhether deft owed pltf a duty of carecannot be resolved on demurrerDenyReasoning: notice of intent re thismo filed 6/17/13; original hrg date8/20/13; jmt filed 8/27/13; whenjmt has not been entered beforenotice of intention to move is filed,the ct’s pwr to hear and decide themo expires 60 days after the noticeis filed (CCP 663a(b); Collins 196 A41,14; Fischer 109 A4 1433, 1451;IRMO Liu 197 A3 143, 150-51); thect lacks juris to hear the case

LAW & MOTION TENTATIVE RULINGSDepartment C14Judge Franz E. Miller# Case Name Motion Tentative2 Ascentium Capital/ White #1Demurrer to 2d amd x-compl#2Strike portions of same#1Sustain w/o leave re causes 5 and 7;otherwise overrule w/ 10 days to ansReasoning: Re cause 4 for breach oforal contract, the agcy allegs are suff(see Skopp 16 C3 432, 437), andreference to “incorporated into thecontract” refers to the terms of thesale/lease; re cause 5 for breach ofwritten contract, it is integrated, andMP was not a pty to it; re cause 6 forfraud, it is suff’ly pled w/ specificity;re cause 7 for B&P 17200 viol, fraudallegs suff’ly suppt it; re cause 8 forbreach of cov of gffd, allegs do notshow conduct to frustrate thecontract#2Grant as to prayer for atty fees andpuni damages re breach of cov ofgffd; otherwise deny3 Barras/Saurman#1MP: P BarrasRP: D Saurman#2MP: D SaurmanRP: P Barras#1Atty fees#2Strike/tax costsReasoning: Re atty fees, writtencontract cause fails; re punis, breachof cov of gffd cause fails; re prayeragainst all x-defts, the problems canbe worked out w/o an amendment#1DenyReasoning: Fees sought under CCP2033.420 on grd deft unreas’lydenied RFA that deft had no basis todeny he was “solely” responsible forthe acct; reasonableness of denial isdet’d as of time of RFA ans (Brooks179 A3 500, 510-511); from factshere, it was reas for deft to deny#2Grt in amt of $3,599.01 re item 13Reasoning: Service of process feessubstantiated; expt wit feespermissible for wit who did nottestify but was used for valid trialstrategy purps (Santantonio 25 A4102, 124); re wit fees, GC 68093sets the fee and ct has no discretionto vary and skip trace exp notrecoverable4 Boling/Dollar Rent-A-Car Atty fees Deny

MP: P BolingRP: D Dollar Rent-A-Car8 Hovee/BoltStrike puni damagesReasoning: Re CCP 1021.5, pltf didnot prevail, and there was no “signif”benefit shown to gen’l public or largeclass, and altho catalyst theorysurvives Graham 34 C4 553, thelawsuit lacked merit, and the betterview of the ev is Dollar sought to fixthe bad tax quote indep of the suit;re CC 1780(e), pltf did not prevailGrant w/ 10 days leave to amdMP: D BoltRP: P Hovee9 Fairwagelaw #1Reconsideration#2TSCReasoning: 2 cts of negl, allegingdeft was texting while driving;assuming for the sake of arg neglcan suppt punis, and that textingwhile driving is so contemptible thatit is despicable, the complaint doesnot allege it was done with consciousdisregard of probable dangerousconsequences and that plaintiffwillfully and deliberatively failed toavoid them (Taylor 24 C3 890, 895-896)#1Grant insofar as is necessary toreinstate the Schrenker partiesReasoning: Schrenker pties weredism’d inadvertently; Huerlin did notfile oppo by 10/111 Martinson/EscobarMP: D Jennie EscobarRP: P MartinsonSet aside/vacate jmt#2Set trial dateGrant; set aside jmtReasoning: Where pty moves to setaside under CCP 473(d) a jmt validon its face as void for lack of properservice, 2 yr lim of 473.5 applies, butwhere pty moves to do so on grds ofextrinsic fraud or mistake, there is nolim (Trackman 187 A4 175, 180-81);MP did not move to set aside w/in 2yrs of jmt, so 473(d) is not validbasis; there is extrinsic fraud (whichneed not be perp’d by opp pty [seeEstate of Sanders 40 C3 607, 614]),in that atty Tornay purported to repMP in the action, filing ans on herbehalf knowing he never had anycontact with her which led to thejmt; there is extrinsic mistake as MPhas suff’ly shown meritorious case,excuse for failing to present adefense, and she moved quickly toset aside jmt once she discovered it(the delay being the product of pltf’sfailure to make 2d attempt to enforcejmt against her for several yrs)(Rappleyea 8 C4 975, 982); if jmt isvoid no proposed pldg must be filed

12 Mittwer/Protective Life InsDemurrer to complOverruled w/ 10 days to ansMP: D ProtectiveRP: P Mittwer15 Aldana Fam Tr/ Stamegna #1Quash service of summons#2CMC16 Kilroy Realty/Compass Mtge #1MSJ/MSA by Madden#2MSJ/MSA by Kornsweit#3File suppl oppo by pltfReasoning: Re cause 1 for breach ofcontract, decedent’s contract of ins(attached) is fully integrated, butnothing allege’s pltfs contract is fullyintegrated; re cause 2 for breach ofcov of gffd, it fails for same reas asarg re cause 1, and claims are notduplicative because pltf alleges badfaith actions by MP outside thecontract to frustrate his ability tocollect under policy; re cause 3 forprof negl, pltf suff’ly alleged Mack’sduty as an agt; re cause 4 for declarrelief, MP focusses on the lack ofdispute as to certain facts, but pltf’sallegs taken together, set out a sufflegal dispute rel liab#1Hear argReasoning: Service on attendantDaugherty was ineffective; ctcontinued mo when pties said theywere close to settling#1&2DenyReasoning: Re cause 1 for breach ofcontract, defts fail to meet theirinitial burden; pltf’s discov resps donot exclude the poss pltf mayreasonably obtain evidence sufficientto establish its claim and aretherefore insufficient to shift theburden, and pltf’s failure to provide asuff resp does not nec show theclaim “cannot be established” sincethe evidence is particularly withindefendants’ knowledge, and deftsfailed to show pltf will not be able toestablish alter ego liab, and defts’own ev shows Kornswiet owned andcontrolled VHA and used its offices,funds (rent), and assets to conductother business, possibly beginning asearly as 30 days into the subjectlease, and it would be inequitable toallow him to deplete the assets of acorp and then treat the nonpaymentof rent as the action of thecorporation alone, and as forMadden, there is no evidence as tohis ownership interests in Compass(decl that “[he] had no substantialinvolvement with Compass” isconclusory and does not establish alack of unity with or ownership of thecompany) and it is also contradictedby the lease attached to his counsel’sdeclaration, which shows he was

apparently involved enough to bindCompass to a substantial leaseagreement and sign for the companyas its “general counsel”, and the evis also insuff as to whether it wouldbe equitable to treat the actions ofCompass as those of its own; recause 2 for money had and received,claim has been materially amendedsince the original complaint to addpromo liab theory which is notattacked;defts’ objections are moot#3DenyReasoning: Pltf’s ex parte appl tosupplmt oppo is moot19 Shea Homes Ltd Ptrship/ Vacate jmt Hear arguments on meritsReasoning: The court believes themotion is untimely; however, in anabundance of caution, and becausepetitioner invited it, and to avoid thepossibility of successive appeals, thecourt will hear argument on themerits; the tentative on the merits itto deny; in a nutshell, the courtpreviously rejected many of not all ofrespondent’s arguments, and of theremaining arguments, respondentwaived them

LAW & MOTION TENTATIVE RULINGSDepartment C14Judge Franz E. Miller# Case Name Motion Tentative3 Boling/Dollar Rent-A-Car Strike/tax costs Grt in amt of $60MP: P BolingRP: D DGT Operations4 BP Law Grp/Midland AmerCapitalMP: D Midland AmerRP: Midland Amer Capital#1Demurrer to 1 st amd compl#2Strike portions of sameReasoning: Memo of costs timelyfiled because although reqst for entryof dism was filed 1/11/13, no noticeof entry was served, and the costsmemo was filed w/in 360 days ofjmt; all items in the costs memo aredocumented and proper except $60in filing fees for motions#1Sustain re causes 1-4; overrule recause 5; hear arg re leave to amendReasoning: Re cause 1 for breach oforal contract, the allegations arecontrary to those re the writtencontract alleged in the originalcomplaint and no explanation isgiven, implicating the sham pleadingdoctrine (Deveny 139 A4 408, 425-426; Stromer 65 C2 421, 427, f.n. 2;Banner Entertaiment 62 A4 348,358); re cause 2 for inten’l interf w/prospec econ advantage and cause 3for negl interf w prospc econ advan,pltf fails to adequately allegewrongful conduct beyond breach(Della Penna 11 C4 376, 393)because 1 st amd compl doesn’t allegethe details of how deft led pltf’sclients to believe deft approvedthe pltf’s funding and at most itreads like breach plus fraud; recause 4 for promissory estoppel, pltffails to allege a clear andunambiguous promise, in that the“promise” in the Ex A email does notunambiguously promise the fundingupon the return of the SchedAssngmt form, esp in lt of the termsof the written agmt; re cause 5 forinten’l misrep, the elements areadequately alleged#2Moot re par 32 and prayer at 10:27;deny re par 49 and prayer at 11:95 Cosmetic Lab/Seo #1Demurrer to 1 st amd complReasoning: Demurrer sust’d reformer underlying allegs and o/r’d rethe latter#1Overrule re causes 3, 4 & 8;

#1 & 2MP: D SeoRP: P Cosmetic Lab#3MP: OIC LabRP: P Cosmetic Lab#2Strike portions of same#3Quash discov subpoena – OICLab#4Quash discov subpoena – TMRCosmeticsotherwise sustain w/ leave to amdReasoning: Re uncertainty,demurrer is not suff’ly specify whereuncert appears by pg and ln (Fenton135 A3 797); re cause 1 for breachof fid duty, empee relationshipdoesn’t create fid duty, but it doessuff’ly allege empee duty of loyalty(Stokes 41 A4 285, 295), and labeldoesn’t matter; re cause 2 for int’lmisrep, stmts alleged in pars. 19, 21,23, 24 do not qualify as false smts ofmaterial fact, and reliance is notpled, and pltf doesn’t plead howdetrimental reliance cause damages;re cause 3 for conversion, allelements adequately pled; re cause 4for trespass to chattels, it is suff forsame reasons as cause 3(Jamgotchian 170 A4 1384, 1400);re cause 5 for misapprop of tradesecrets, existence of matterprotectable as trade secrets notsuff’ly alleged, nor is whether secretwas disclosed under circs giving riseto duty not to disclose; re cause 6 forint’l interf w/ contract, pltf does notsuff’ly allege the contract but insteadsays “agmts w/ customers” (RamonaManor 177 A3 1120, 1133), anddeft’s knowl of contract and intent toinduce breach not suff’ly alleged; recause 7 for int’l interf w/ prospectecon adv, econ relationship tweenpltf and 3d pty w/ poss of futureecon benefit not suff’ly pled via“relationships w/ customers”, nor areint’l acts, nor is disrupt ofrelationship; re cause 8 for viol ofB&P 17200, it can be suppt’d byconversion and trespass#2Deny as moot based on demurrer,but conversion and suppts them asfraud would#3Deny; impose $1,915 sancsReasoning: No sep stmt but mo canbe denied on merits as well; docs arerel; limited in time and scope; notoverbroad, oppressive, orburdensome; CIO does not have rt toprivacy (Roberts 147 A3 770, 791,796-797); no trade secret violbecause reqst it lim’d to formulationsand info provided to the deponent bySeo, not any of its own; sancs = [7.5hr X $250/hr] + $40 = $1,915

6 McCulloch/Talon Auto GrpMP: Ds Talon Auto Grp, Grayand Mgerian7 Mian/Zavari#1Compel arb#2JoinderStrike/tax costs#4Off calendarGrant; stay action; set arb rev hrgReasoning: No oppo; valid arbclauseDenyMP: Ps Mian et alRP: Ds Javaed and ShawnZaveri8 Pak/HwangMP: Ds Hwang, Petra LH, andPetra PropRP: P Pak9 Tamarat/GMAC MtgeReasoning: Mo was untimelybecause time to file mo to strike/taxmust be filed w/in 20 days of serviceof costs memo (CRC 3.1700(b)) andservice was 7/13/13 and mo wasfiled 9/9/13; on merits, nocompetent ev M Zaveri pd for thedefense atty, and no express findingby ct that ICC donations pd fordefense attyPrelim inj Grant upon posting $25KundertakingW/draw as attyReasoning: MP must estab equitiesfavor them and they have reas probof prevailing on merits; equities favorMPs, esp due to prospect of RP’sbkcy; given void jmt and duressissue, MPs have reas prob ofprevailing; keeping funds in escrowmaintains status quo; injunc mayissue to protect dissipation of id’ablefunds (Heckmann 168 A3 119, 136)GrtMP: Atty ManningRP: Ps Tamarat10 Tanzo/Corghi USA#1MP: D E-TechRP: P Tanzo#1MSJ#2Continue trialReasoning: No oppo; all reqrmtsmet#1DenyReasoning: Overrule objs; assumingMP met init burden, pltf createdtriable issue of fact; the Tarnate andBrightwall depos are ev E-Techempee Marinero, who had repairedthe machine, actively advised andengaged w/ GMC empees in takingthe actions that arguably caused orcontributed to the pltf’s injury, i.e.,misfeasance rather than nonfeasance(see Seo 97 A4 1193, 1202)#2Hear argReasoning: Compl 5/29/12; trial11/18/13; 2d reqst; want cont to6/16/14 (past 2d birthday); wantscont because pltf just had cornealtransplant due to injury and McCourtwas just doe’d in (why so late?)

# Case Name Motion Tentative1 Ana Hills Planned CommunAssoc/ChenAmend jmtDenyReasoning: Mo was not timelyserved; ct has no inherent pwr toamd jmt; CCP 663 allows ct tovacate jmt and enter new one whenthere has been error or it is notconsistent w/ verdict, and mo wouldbe untimely in any event; CCP 473time has run; no clerical error; restay on appeal, stay of money jmtreqrs undertaking and there is none,and although cts may stayenforcement of mand inj, ct wouldexercise its discretion against doingso (w/o prej to appellants seekingsupersedeas in the Ct of Appeal)2 Animal Protection and RescueLeague/ So Coast PlazaSecurity#1MSJ/MSA by Animal ProtLeagueContinued#2Same by CJ Segerstrom3 Baker/Reade-Hill #1Strike portions of compl by CColombo#2Same by Reade-Hill4 DeNova/B of A #1Dismiss by B of A#1&2DenyReasoning: Any stip by defts to ansinstead of moving to strike isunenforceable unless in writing orentered in ct’s mins; givenallegations of a prior attack/viciousbehavior by the dogs, there aresufficient factual allegations ofconscious disregard (Scott 175 A4702, 716-17) in allowing the dogs toescape again#1&2Grant; dismiss action6 Gil/Elite Home EnergyMP: Ds Elite and Lambrose8 Perez/Black Rock ConstructionCoMP: D Sialic Contractors#2Same by BayviewCompel depoDemurrer to complReasoning: On 7/9/13, ct sust’ddemurrer w/ 20 days leave toamend; pltfs’ atty had sought leaveto file late oppo due to office breakin; on 8/30/13, defts filed mos todism; to date, pltfs have not filedamd compl even tho they filed oppoto mo asking ct to invoke 473 andtouting the policy for trial on themerits; what pltfs’ atty should havedone during all of this time (at leasta month and a half since these moswere filed) is to file an amendedcomplGrantReasoning: No oppo; good causeOverrule w/ 20 days to ansReasoning: Complaint is reasonablycertain; specific projects are not

RP: P Perez9 Shea Homes/Loefflerreqrd at pldg stageStrike/tax costs Grant; tax costs in amt of $879.05MP: R LoefflerRP: P Shea Homes10 Starfish Hldgs/Bradley #1Compel arb#2CMCReasoning: No oppo; except forNotice of Hrg to Confirm Arb Awd, ctdoes not impose filing fee for docslisted; msgr/e-filing chrgs are in ct’sdiscretion and must be shown to bereas nec to conduct of litig, and RPhas not filed oppoHear argReasoning: Why isn’t some judge inSan Jose wrestling with this issue?;arb clause here appears narrowenough that it does not extend to all“related” causes of action (“arisingout of” vs. “relating to”; sec 12.10(i)says arb’r may grant equitable relief,and also that pties may seek inj in ctto prevent breaches and to specif’lyenforce ASA terms, and submit to CAjuris re inj relief and/or specif perf;re cause 1 for inj, agmt specif’lyallows for arb of inj claim, and injsought here depends on breach byfailing to exercise “comm’ly reasefforts to collect A/Rs,” so inj relief isnot collateral to agmt – it is a subissue;re cause 2 for declar relief, thefraud allegs relate not to thenote but were re inducement toenter APA, note is not collateral butan essential element of purchaseunder APA; re cause 3 for declar,same as cause 2 analysis; re cause 4for spec perf, 12.10(i) allows for it;re causes 5 and 6 for breach ofcontract, RPs concede this must bearbitrated; re cause 7 for breach offid duty, the fid duty alleged did notarise from the ASA, rather it aroseout of Bradley’s status as off and dir;re causes 8-11 for various types ofmisreps and conspire to do so, allcauses are based on alleged misrepsto induce Starfish to enter the APAand do not reference a “host of otheragmts,” and no indep wrongs areinvolved;11 Waltman/Beach Cities TowingServiceMP: D Beach CitiesRP: P Waltman#1Demurrer to 2d amd compl#2CMC#2Hold CMC if approp#1Overrule w/ 20 days to ansReasoning: Complaint is notuncertain; re causes 1 & 2, pltf mayplead inconsistently and sheseparates them between the twocauses; re cause 3, all elements are

#2Hold CMC14 Phillips/Shiomoto Stay Denypled, and although she need notname the agt who entered into thecontract on deft’s behalf, she did soin par 1815 Allstar Tire & Wheel/ YaghoubiMP: D Allstar16 Morales/FloresMP: Ds Flores17 Earl/CampbellSet MSJ w/in 30 days of trialor continue trialContinue trialW/draw as attyReasoning: Pet’s propensity tospeed, drive on a suspended license,and let alcohol past his lips creates adanger to the public that outweighshis work problemsHear argReasoning: Compl 11/18/12; trial1/27/14; 1 st reqst; wants either toset MSJ on 12/31/13 or cont trial toallow MSJ > 30 days b4 trialDenyReasoning: Compl 11/1/12; trial12/2/13; pties want ct to cont trial toMay ’14 and move other datesbecause pties have been engaged incomprehensive settlement negossince 4/8/13 mediation and had acontingent settlement agreementthat fell through but they think theycan execute an agmt in the nextcouple of weeks, and if it fails theywould “move to full litigation of thismatter”DenyMP: Atty Prindle firmReasoning: Trial 11/18/13; approx.one wk after ct denied MPs mo tocont trial, it moves ex parte tow/draw on grd of client noncooperation;MP knew in Jul ’13when deft fta’d mediation that it hadcooperation problems; pltf would beprej’d by continuance18 Saxton/Mesa Pharmacy Continue trial DenyReasoning: Compl 2/16/12; 2d amdcompl 10/10/12; trial 11/12/13; 2dreqst; May ’13 defts’ current lawyerssub in; Jul ’13 ct grants discov mos;pties now want cont so they canmediate on 10/30 w/o prep’g for trial

# Case Name Motion Tentative1 Alverson/GalvanSet aside/vacate default GrantMP: Ds GalvanRP: P Alverson2 Assoc of OC Dep Sheriffs/Ctyof OrMP: P AOCDSRP: Intervenor OCEA3 Jung/PomboMP: D LeffermanRP: Ps JungTax Costs#1Demurrer to 2d amd compl#2Strike portions of sameReasoning: No oppo; ans wasrejected due to atty’s reas mistake;pltfs sought default the next dayDenyReasoning: Ct of App, not trial ct,determines prevailing pty on appeal(Ramirez 35 A4 473, 478); CRC8.278 governs compensable costs;OCEA’s involvement in appeal wasreasonable and costs werereasonably incurred#1Overrule w/ 10 days to ansReasoning: Re cause 7 for negl, B&P7196 does not limit duty of care toterms of contract, and altho ptiesmight agree to limit liab undercontract, nothing in 2d amd complindicates that is the case#2Deny4 Mione/TroungMP: P MioneRP: D Troung5 NextGear Capital/ HighlineSpecialist6 Phi/Xerox#1 & 2MP: P PhiRP: Ds#3Reasoning: Atty fees may beawarded if authorized by stat orcontract; alleg of contract is suff atpldg stage to suppt prayer for attyfeesLeave to file 1 st amd compl #1Grant#1RTAO/writ of attachmentAshraff#2Same by Yaghoubi#3Same by Ruvalcaba#4CMC#1Strike/tax costs#2Strike 1 st and 2d costs memo#3Confirm arb awardReasoning: Liberal grant; all reqrmtsmet; RP args are properly reservedfor demurrer etc#1, 2 & 3Grant re Ashraaf Inc upon posting of$10K undertaking; deny re Yaghoubiand RuvalcabaReasoning: No oppo; all elementsmet re Ashraaf; ct denied priorapplics re Yaghoubi and Ruvalcabaand MP has not shown diff facts orlaw to justify renewal (DeauvilleRestaurant 90 A4 843, 848-849)#4Hold CMC#1&2Cont for entry of jmtReasoning: Altho it is pref’ble forarb’r to determine costs, ct has juristo do so (Guevara 8 A4 995, 997-998); but costs cannot be awardeduntil jmt has been entered

MP: Ds(Boonyarit 145 A4 1188, 1192); onthe merits, it appears the followingcosts may not be awarded: arb fees(CCP 1033.5 does not provide forit; Ladas 19 A4 at 774-776);mediation fees (same); depo costsand expt fees re Dr. Farsani (Farsanidepo invalidated by agmt of pties)#3Grant; confirm award8 Bank of NY Mellon/ FidelityNat’l TI CoMP: D FidelityRP: P Bank of NY MellonDemurrer9 Villegas/Ostowari #1MSJ/MSA by Villegas#2Same by OstowariReasoning: No oppo; MPs compliedw/ all reqrmtsOverrule w/ 10 days to ansReasoning: Re cause 3 for negl andcause 4 for breach of fid duty, MPclaims no duty as a sub-escrow; reSiegel, it did not hold a sub-escr isnot a pty to the main escr or that itis not held to the stds of an escrholder – rather, it held subs dutieswere limited to holding funds andrecording deeds and did not includeduty to search records or verify titleinfo, contrary to the allegs here; reMarkowitz, ct held altho pltf had anint in the escr, he was not a pty, andpltf here alleged it was a pty, andcompl does not allege 2 sep escragmts#2Hear argReasoning: Re cause 1 for ADA viol,only injunctive relief is availableunder ADA (42 USC 12188(a)(2);Steger 228 F3 889, 892) undisputedevidence shows claimed violationshave been remedied, rendering thecause moot (Hubbard 433 FSupp2d1134, 1145), and in opposing sepstmt, pltf does not cite ev showingthe card readers were > 54”; recause 2 for Unruh viol, pltf did notmake any showing the location of thecard readers caused him to sufferdifficulty, discomfort, orembarrassment (CC 55.56(c); Mundy192 A4supp 1, 4), but is thatrequired as a prerequisite?10 Zions 1 st Nat’l Bank/LindMP: P Zion's 1st Nat'l BankDeem facts admitted#1Hear argReasoning: Will turn primarily onoutcome of #2Grant; find Lind jtly liable forpreviously awarded sancs

RP: D Lind11 In re FairwagelawMP: Schrenker Firm and FullerRP: Huerlin#1Continue trial#2File 50 pg briefReasoning: No oppo; good cause; resancs, MP seeks them for work rewhich the ct already awarded sancsas to the other deft, and the presentct appearance should havebeen unnecessary#1GrantReasoning: Atty Gregor wants 1 wkcont due to prof conflict#2Hear argReasoning: Applic doesn’t say whatbrief, but it cites CRC rule where MSJlim is 20 pgs; why is 60 pgs nec?

# Case Name Motion Tentative3 Cerrone/Level 1 CorpMP: D Guaranteed Auto FinCompel arbGrant; sever atty fee allocationclauseReasoning: No oppo; valid arb agmt,but fee shifting discretion isunconscionable; arb review hrg reprior arb order is set for 11/25/134 Claus/HelgemoVacate vol dismDecline to vacate dismissalMP: D PaychexRP: Ps Claus6 Corral/EMC MtgeMP: Ds EMC and JP MorganChaseRP: P Corral7 Dragon Constr/Chabad of WestOCMP: Ps Ngo and DragonConstructionRP: D Chabad of West OC#1Demurrer to 1 st amd compl#2Strike portions of sameConfirm arb awardReasoning: Deny j/n since a copy ofAAA rules was not provided; when itis for reasons other than than thoseprovided in CCP 581, voluntary dismis untimely and ineffective only whenthe dismissal could be said to havebeen taken—(a) in the light of a public andformal indication by the trial court ofthe legal merits of the case, or—(b) in the light of some proceduraldereliction by the dismissing plaintiffthat made dismissal otherwiseinevitable, then the voluntarydismissal is ineffective (FranklinCapital Corp. v. Wilson (2007) 148Cal.App.4th 187, 200); the imminentruling in this case was a finding NYwas the proper venue for arb, not onthe merits, and dism was notinvolved, let alone inevitable#1Sustain w/o leave to amdReasoning: Why isn’t the AlamedaCounty Superior Court hearing thisdemurrer?; take j/n per reqst; nooppo – ct takes this as a concessionthe 1 st amd compl fails to state acause of action and cannot beamended (Herzberg 133 A4 1, 20)Grant; confirm awardReasoning: Deny reqst for j/n – RP’soppo is already before the ct, and licrecords are not subj to j/n, and nocopy of permits are provided; MPscomplied w/ all reqrmts under CCP1285.4; no grds to vacate the awardunder CCP 1285.2 exist; arb’rexceeds pwrs if he enforces illegalcontract; RP claims contract in thiscase was illegal because MP wasunlic’d; RP has burden to showillegality, and does not showsubstantial compliance exception isinapplicable (even tho arb’raddressed that issue), and RP doesnot show Ngo could not collect underhis own lic; ct agrees w/ arb’s findingof substantial compliance

8 Laguna Audubon I HOA/DegrooteMP: XD Laguna AudubonRP: XCs Degroote13 Mapula/FlittnerMP: D FlittnerRP: P Mapula14 Momeny/GhaneianMP: P Momeny15 Boyar/KingMP: P BoyarRP: D King16 Driscoll/DavisMP: Ds St Jos, Yorba Park,and ReynosoSLAPPStrike/tax Costs#1Reopen discov to take deft’sdepo#2Reopen discov to permit pltf’sexptContinue trialClarify order continuing trialHear argReasoning: See below end oftentative gridsDenyReasoning: Ct has discretion to denycosts when pltf recovers < juris limitof small claims action, but pltf wonjmt of $4,675 after makingreasonable and good faith 998 of$3,999; pltf’s successful 998 allowsrecovery of expt fees and fees werereasonable#1&2Grant; depos to occur in NovReasoning: MP pltf pd atty after 11mo w/o atty – ct doesn’t have infopltf was dilatory; ct continued trialfrom 10/28 to 1/21; RP won’t beprejudiced as long as he can depoexptHear argReasoning: Compl 12/13/12; trial11/12/13; 1 st reqst; MP pltf wantscont to May ’14 because pltf’s prioratty has not cooperated by providingpltf’s med recordsHear argReasoning: Trial 3/17/14; when ctcont’d trial, MO said all trial relateddates readjust to new date, butwritten order says time to completedepos readjusts to the new trialdate; a dispute has arisen re designand depo of experts131105 Robert U anti-slapp 2012 00558912TimelinessCode of Civil Procedure section 425.16, subdivision (f) provides that an anti-SLAPP motion must be scheduledfor hearing not more than 30 days after the service of the motion “unless the docket conditions of the courtrequire a later hearing.”Laguna has submitted evidence showing the docket conditions of the court required a later hearing. Lagunareserved the date on September 18, 2013, via the court’s online reservation system. At that time, the firstavailable date was November 5, 2013. No earlier date was available.Original Cross-ComplaintThe motion was analyzed on the original cross-complaint. The DeGrootes cannot avoid an anti-SLAPP motion byamending their pleading. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th1049, 1053-1056 [evaluating a claim for fraud as alleged in the original complaint and not the amendedcomplaint]Conduct Arising Out of Protected Activity

“‘[T]he critical consideration is whether the cause of action is based on the defendant’s protected free speech orpetitioning activity. [Citations.]’ [Navellier v. Sletten (2002) 29 Cal.4th 82, 89.] ‘“‘ [T]he act underlying theplaintiff’s cause’ or ‘the act which forms the basis for the plaintiff’s cause of action’ must itself have been an actin furtherance of the right of petition or free speech.” [Citation.]’ [Equilon Enterprises v. Consumer Cause, Inc.(2002) 29 Cal.4th 53, 66 (Equilon).]” (Turner v. Vista Pointe Ridge Homeowners Ass’n (2009) 180 Cal.App.4th676, 687 (Turner), italics in original.)“[A] claim filed in response to, or in retaliation for, threatened or actual litigation is not subject to the anti-SLAPP statute simply because it may be viewed as an oppressive litigation tactic. [Citation.] That a cause ofaction arguably may have been triggered by protected activity does not entail that it is one arising fromsuch.” (Equilon, supra, 29 Cal.4th at p. 67.) “The anti-SLAPP statute’s definitional focus is not the form of theplaintiff's cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liabilityandwhether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten, supra, 29 Cal.4th at p.92.)First Cause of Action for NegligenceLaguna has met its burden of demonstrating that the first cause of action for negligence arises from protectedactivity. The claim is primarily based on Laguna’s selective enforcement of the CC&Rs and architecturalguidelines against the DeGrootes while allowing others to violate the same without challenge. The crosscomplaintis exceedingly vague as to what “selective enforcement actions” are at issue but there is no questionit includes the prosecution of the main action, as the DeGrootes indicated on the first page of their opposition.The prosecution of an action is protected activity under section 425.16. (Navellier, supra, 29 Cal.4th at p. 90[the constitution right of petition encompasses the basic act of filing litigation].)The first cause of action is also based on Laguna’s failure to enforce the governing documents on othersmembers of the community and failure to properly evaluate submissions of proposed improvements. But“[w]hen a cross-complainant presents a mixed cause of action that involves protected and non-protectedactivities, as is the case here, the question presented is ‘whether the gravamen of the cause of action targetsprotected activity. [Citation.] If liability is not based on protected activity, the cause of action does not targetthe protected activity and is therefore not subject to the SLAPP statute. [Citations.]’ [Citation.] Stateddifferently, the question is whether the protected activity is merely an incidental part of the cause ofaction.” (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 767.) The gravamen of the first cause ofaction for negligence is Laguna’s selective enforcement of the governing documents, that is, the prosecution ofthe main action. The protected activity constitutes a substantial part of the alleged wrongdoing and is notmerely an incidental part of the claim.Second Cause of Action for Breach of Governing DocumentsThe second cause of action for breach of governing documents alleges Laguna has breached the CC&Rs, bylaws,articles of incorporation, and architectural guidelines by “failing to enforce the requirement that allimprovements at properties within the project have both construction permits from the City of Aliso Viejo andthe written approval [of] the ARC.”Laguna has not met its burden of showing this cause of action arises from protected activity. The conduct atissue is Laguna’s failure to comply with and enforce the governing documents. Although the claim is factuallyrelated to the others and may have been triggered by protected activity, it is not based on protected activity,e.g., the filing of the main action or other constitutionally protected conduct. (See Navellier v. Sletten, supra,29 Cal.4th at p. 89 [“[T]hat a cause of action arguably may have been ‘triggered’ by protected activity does not

entail that it is one arising from such. [Citation.] In the anti–SLAPP context, the critical consideration iswhether the cause of action is based on the defendant’s protected free speech or petitioning activity.”].)Third Cause of Action for Breach of Fiduciary DutyAs noted above re the first cause of action, this claim is based on Laguna’s prosecution of the main actionagainst the DeGrootes. For the same reasons, the recommendation is to find it arises from protected activity.Probability of Prevailing on the MeritsFirst Cause of Action for NegligenceDutyThe DeGrootes have demonstrated the existence of a duty. It is undisputed Laguna is a homeownersassociation and the DeGrootes are members of the association. A homeowners association has a fiduciary dutyto treat the homeowners fairly. An association must act in good faith, not in an arbitrary or capricious manner,and its enforcement procedures must be fair and applied uniformly. (Cohen v. Kite Hill Community Assn.(1983) 142 Cal.App.3d 642, 650-651 (Cohen).)BreachThe DeGrootes have failed to show a breach based on Laguna’s failure to enforce the governing documents onother members of the community. Affidavits or declarations “on information and belief” are hearsay andinadmissible to show a probability of prevailing. (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497.)The DeGrootes have failed to show a breach based on selective enforcement for the same reason.The DeGrootes have demonstrated breach based on Laguna’s failure to evaluate their resubmitted patio coverplans in 2010 but have failed to show resulting damages. Indeed, the DeGrootes maintain the plans were“deemed approved” pursuant to section 8.2 of the CC&Rs when Laguna failed to act.The DeGrootes have also submitted evidence of a breach that has not been alleged in the cross-complaint:Laguna’s wrongful enforcement of the governing documents against the DeGrootes for installing a patio cover ithad previously approved.The DeGrootes have demonstrated that despite the approval of their plans, Laguna served them with (1) acease and desist letter on October 26, 2010, demanding they stop construction on the patio cover, and (2)multiple notices to appear before the board from December 2010 to March 2011, for a hearing concerning theircontinuing patio cover “violation.” (J. DeGroote Decl. at 14, Exh. 9 [J. DeGroote’s responses to request forproduction, pp. 0061, 0119-0121].) Then in early 2012, Laguna’s counsel served them with a request for ADR(id. at 16) and on April 3, 2012, Laguna commenced this action.Causation and damages

The DeGrootes have also shown causation and damages. In its reply, Laguna argues at length the DeGrootesshould not be allowed to meet their burden by submitting evidence of wrongful enforcement because the crosscomplaintmakes no such allegation. The argument fails because a plaintiff may be allowed to amend to show aprobability of prevailing on the merits based on evidence submitted in opposition to the anti-SLAPPmotion. (See Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 870-871.) Such an amendment has nothing todo with whether defendant was engaged in protected activity and thus does not thwart the purpose of the anti-SLAPP statute. (Ibid.)Laguna also argues the claim fails because it is barred by the litigation privilege. This is true to the extent it isbased on the prosecution of the main action; but not so with respect to the 2010 cease and desist letter and2010-2011 notices to appear at hearing.However, to be protected, prelitigation statements must relate to litigation that is contemplated in good faithand under serious consideration. (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232,1251.)The 2010 cease and desist letter and 2010-2011 notices were served over a year before Laguna commencedthis action. They ask the DeGrootes to stop construction on the patio cover without approval and ask them toappear before the board to discuss the violation. The letters do not mention or indicate the possibility oflitigation, and cannot reasonably be construed as relating to litigation under serious consideration.Third Cause of Action for Breach of Fiduciary DutyThe cause of action alleges Laguna has breached its fiduciary duties to the DeGrootes “by failing to evenly applythe governing documents and by singling out [the DeGrootes] for punishment.” As discussed above, theDeGrootes have demonstrated the existence of a fiduciary duty. (Cohen, supra, 142 Cal.App.3d at pp. 650-651.) And although they have failed to demonstrate selective enforcement, they have sufficiently demonstratedwrongful enforcement, causation, and damages.Request for SanctionsThe DeGrootes have requested sanctions for having to oppose the motion. A plaintiff or cross-complainant isonly entitled to sanctions on an anti-SLAPP motion if the “court finds [the motion] is frivolous or is solelyintended to cause unnecessary delay.” (Code Civ. Proc., 425.16, subd. (c).) Laguna’s motion was not frivolousor intended to cause unnecessary delay; two of the DeGrootes’ causes of action were in fact based on protectedactivity and subject to the anti-SLAPP statute.

HON. JAMOA ATHENA MOBERLYSuperior Court of Orange CountyBorn: 1952, Tucson, ArizonaUndergraduate: UC San Diego, 1972Law School: Hastings, 1976Admitted to Practice: 1976Appointed to the Bench: 1996Appointed by: Pete Wilson, RepublicanCareer as an AttorneyLegal Intern, Sacramento District Attorney’s Office, 1974Associate, Fleming Anderson McClung & Finch, Pasadena, California, 1977-79Associate, Greenberg Bernhard Weiss & Karma, Los Angeles, California, 1979-80Associate/Partner, Schell & Delamer, Los Angeles & Santa Ana, California, 1980-96Other EmploymentInternational Field Representative, Phi Alpha Delta, Granada Hills, California, 1976-77Relevant Organizational AffiliationsMember:Phi Alpha Delta Law Fraternity International, 1973-Orange County Women Lawyers, 1992- (life member)William P. Gray/Lex Legion Inn of Court, 1995- (Board Member, 2009)National Association of Women Judges, 1996-Mock Trial Judge, CRF, 1996 -California Women Lawyers, 1996-CJA: Civil Law and Procedure Committee & ADR Subcommittee, 1998-National Charity League, Irvine Chapter, 2001-Former Member:University of California, San Diego, Representative to University of California StudentLobby at California State Legislature, January- June, 1973Southern California Defense Counsel, 1982-95Board of Governors, Wilshire Bar Association, Los Angeles, California, 1983-88Los Angeles County Bar Association, Delegate, State Bar Conference, 1984-88Arbitrator, Orange County Superior Court, 1991-96

Orange County Bar Association, Delegate, State Bar Conference, 1992-95Judge, pro tempore, Orange County Superior Court, California, 1992-95Lincoln Club, Orange County, 1994-96Judge, pro tempore, Orange County Municipal Court, California, 1995-96Youth Employment Services, Costa Mesa, California, 1996-99 (Board Member)Hastings College of Law Alumni Chapter (Board of Governors, 1983 &President, 1988-89Hastings Alumni Association, Board of Governors, 1988 & President, 1999-2000 & Executive Board, 1988-Teaching/Lecture/PanelistSpeaker:ABA, (Nonprofit Corporation Section), Francis T. v. Village Green, 1987Panelist:Orange County Trial Lawyers, NBI, Celtic Bar & OCBAOther InformationPolitical/Religious Affiliation:Republican/Roman Catholic (Lectern Ministry, St. Elizabeth Ann Seton Catholic Church,1998-Other Education:University of Florida/University of California, Davis Law Schools, Summer Program,Mexico City at Escuela Libra de Derecho, 1975Sarah Lawrence College, Summer Program, Florence, ItalyUniversity of Arizona, Tucson, Arizona, (Summer 1971)Admissions:U.S. District Court, 1978

JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYDates: February 22, 2013 at 2:00 PMTentative Rulings will be posted on the Internet by 5:00 pm on the day before thescheduled hearing, whenever possible. The rulings will also be posted outside the courtroomon the bulletin board by noon on the day of the scheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If youprefer to submit the matter on your papers without oral argument, advise all counsel firstand then telephone the clerk at (657)622-5212. If the moving party has submitted thematter and there are no appearances by any party at the hearing, the tentative ruling willbe the final ruling. Unless otherwise indicated, the moving party shall provide written noticeof all rulings or prepare an Order for the court’s signature per CRC 3.1312. If no one hastelephoned the clerk to submit and there are no appearances by any party, the tentative willbecome the final order of the court.Once the tentative ruling has been posted on the Internet, no supplemental papersmay be filed and no continuances will be permitted.# Case Name Tentative1 12-619154Noory vs. SorensenConsolidated: 12-614795; IRAResources, Inc. vs.Noory2 12-563896Sistani vs. DeSantis1) Defendants IRA Resources, Inc.,FBO Barbara Barsky IRAand Pacific Coast Title’s Demurrer to the Plaintiff Frishta Nooryand Management Resources Group, Inc.’s Complaint1) Defendants Stephen A. DeSantis and Saddleback ValleySurgical Medical Group’s Motion to Compel Plaintiff SolmazSistani to Arbitrate the Controversy and for an OrderDismissing or Staying the Superior Court Action between theArbitrating PartiesGrant. The motion to compel arbitration is GRANTED. Theaction is stayed pending completion of arbitration. A reviewhearing is set for June 24, 2013 at 10:00 am. The jury trial setfor said date is hereby vacated. Defendants are to give notice.Plaintiff does not dispute that an arbitration agreement exists.The factors of Sobremonte v. Superior Court (1998) 61Cal.App.4th 980, 992, weigh in favor of arbitration. Defendantshave taken no action inconsistent with an intention toarbitrate. In answering, conducting discovery, and posting juryfees, they have consistently informed Plaintiff of their intentionto arbitrate. See Defendants’ answer and McColgan declarationin Reply, Ex. B1-B6 & C. They also announced their intent atthe 10/1/12 CMC.Although there has been some delay in moving to compelarbitration, there has been no advantage taken of the judicialdiscovery rules because the arbitration agreement, article 4,provides for the same discovery. Thus, there has been noprejudice to the Plaintiff from the delay. In addition, the Courtnotes that there is no declaration from Plaintiff’s attorneyattesting to any prejudice.3 12-560082 1) Plaintiff Pauline Suarez’s Motion to Compel Defendant Bank

Suarez vs. Bank ofNew York Mellon4 12-564410MD Juice Bar vs.Miranda5 11-526510Allen vs. Superstars,Inc.6 12-612297Quickle vs. One WestBankOf New York Mellon to Respond to Requests for Production ofDocuments, Set One and Request for Sanctions againstDefendant and their counsel of Record in the amount of$1,775.00Grant. The Motion to Compel Further Responses is GRANTED.Plaintiff corrected the error concerning the failure to file aSeparate Statement. Defendant had an opportunity torespond.The disputed Requests are either relevant or could lead toadmissible evidence. (C.C.P. § 2017.010). Because of “theliberal policies underlying discovery, doubts as to relevanceshould generally be resolved in favor of permitting discovery.”Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31Cal.3d 785, 790. The fact that this information may beinadmissible at trial does not bar its discovery.Within fifteen (15) days, Defendant shall produce responseswithout objection to Requests for Production Nos. Set One,Nos. 7, 8, 11, 12, 19, 21, 22, and 26.Plaintiff is awarded sanctions of $1090.00 ($250.00 x 4 hours)+ $90.00 filing and court reporter fee as against defendantand defendant’s attorney of record, joint and several, payablewithin 30 days.Plaintiff to give notice.1) Defendant Samara Miranda’s Motion to Compel Plaintiff MDJuice Bar to Respond to Requests for DiscoveryDeny without prejudice. Defendant’s motion to “compeldiscovery” is DENIED without prejudice to file a motion thatspecifies in the notice just what discovery is sought. Defendantcannot avoid paying filing fees for three motions by failing todisclose that the motion is actually three motions in one. Inaddition, there is no proof of service.If Defendant’s counsel appears at the hearing and testifiesunder oath that three filing fees were paid for this motion andthat it was timely served, the Court will take the motion undersubmission to allow Defendant to file a proof of service.1) Defendant Philip Romero’s Motion for Award of AttorneyFees in the amount of $19,415.00 and Award of Costs in theamount of $1,090.002) Defendant Award, Inc.’s Motion for Award of Attorney Feesin the amount of $14,120.00 and Award of Costs in theamount of $78.001) Plaintiffs Gail Lynn Quickle and James Howard Quickle’sOrder to Show Cause re: Preliminary Injunction against OneWest BankDeny. The general purpose of a preliminary injunction is topreserve the status quo until the merits of the action aredetermined, and in doing so, the court considers who will bearthe greater injury should the preliminary injunction be grantedand whether a reasonable probability exists the Plaintiff willprevail. State Bd. Of Barber Examiners v. Star (1970) 8Cal.App.3d 736.A trial court’s determination must be guided by a “mix” of the

7 10-427151Hinman vs. Chang8 12-606042Orange CountyTransportationAuthority vs. Yorbapotential-merit and interim-harm factors; the greater theplaintiff’s showing on one, the less must be shown on the otherto support an injunction. Butt v. State of California (1992) 4Cal.4 th 668, 678. “Of course, the scope of available preliminaryrelief is necessarily limited by the scope of the relief likely tobe obtained at trial on the merits.” Id. “A trial court may notgrant a preliminary injunction, regardless of the balance ofinterim harm, unless there is some possibility that the Plaintiffwould ultimately prevail on the merits of the claim.” Id.In this instance, Plaintiffs assert they are likely to prevail ontheir claim under Civil Code §2923.5.Plaintiffs present the Declaration of Mr. Quickle, who asserts,generally, that Defendant did not contact him or exploreoptions to avoid foreclosure, prior to recording the Notice ofDefault. (5 of Mr. Quickle Dec.).In contrast, Defendant submits the Declaration of Mr. CharlesBoyle, the Vice President of Default Risk Management for OneWest Bank, who declares that One West engaged in numerouscontacts and discussions with Plaintiffs, in compliance with thissection. (8-15 of Boyle Dec.).Additionally, Mr. Boyle attaches several letters sent toPlaintiffs, discussing options to avoid foreclosure. (Exhibits 5-13).Further, Mr. Boyle indicates that, prior to recording the Noticeof Default, Plaintiffs were offered the following: A Repayment Plan on November 9, 2010. (12 ofBoyle Dec.; Exhibit “15”); A Forbearance Plan on April 15, 2011. (14 of BoyleDec.; Exhibit “16”); and A Trial Period Plan on June 29, 2011. (15 of BoyleDec.; Exhibit “17).Finally, Mr. Boyle declares that Plaintiffs were reviewed for aHAMP modification in June of 2010, but did not qualify. (11 ofBoyle Dec.).The subject Notice of Default was recorded on July 17, 2012.(18 of Boyle Dec.; Exhibit “4”).Based on all of the above, the evidence demonstrates thatDefendant complied with Civil Code §2923.5, as Defendantengaged in numerous attempts to discuss Plaintiffs’ options,prior to recording the Notice of Default.Thus, this Court cannot find that Plaintiffs have a probability ofprevailing on their claim and the instant Application must bedenied.Defendant to give notice.1) Plaintiff Marilyn Hinman’s Motion for Judgment NotWithstanding the Verdict and Set Aside the Judgment enteredon December 31, 20122) Plaintiff Marilyn Hinman’s Motion for New Trial1) Defendant and Cross-Complainant Yorba Linda WaterDistrict’s Motion for Automatic Stay of Proceedings PendingAppeal or alternatively, Discretionary StayOff Calendar per telephonic request of moving party.

Linda Water District9 12-607656Igo vs. Little10 07CC11998Willis vs. Cissna1) Plaintiffs The Clelah Mae Little 2012 Separate PropertyTrust, Estate of Clelah Mae Litte and Jodi S. Igo’s Motion toCompel Defendant Sidney Bernard Little’s to ProvideResponses to Special Interrogatories,1,2,3,5,6,7,9,10,11,13,14,15,17,18,19,21,22,23 and 24 andRequest for Monetary Sanctions in the amount of $4,149.611) Assignor of Record Acclaim Credit Technologies for PlaintiffRaymond E. Willis’ Motion for Order Compelling DefendantRobert Lee Cissna to Serve on it a Response to First Set ofRequests for Admission and Request for Monetary Sanctions

JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYDates: March 1, 2013 at 2:00 PMTentative Rulings will be posted on the Internet by 5:00 pm on the day before thescheduled hearing, whenever possible. The rulings will also be posted outside the courtroomon the bulletin board by noon on the day of the scheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If youprefer to submit the matter on your papers without oral argument, advise all counsel firstand then telephone the clerk at (657)622-5212. If the moving party has submitted thematter and there are no appearances by any party at the hearing, the tentative ruling willbe the final ruling. Unless otherwise indicated, the moving party shall provide written noticeof all rulings or prepare an Order for the court’s signature per CRC 3.1312. If no one hastelephoned the clerk to submit and there are no appearances by any party, the tentative willbecome the final order of the court.Once the tentative ruling has been posted on the Internet, no supplemental papersmay be filed and no continuances will be permitted.# Case Name Tentative1 12-600077Bryon vs. WellsFargo Bank2 12-608186Flores vs. The IrvineLand Company, LLC3 12-607656Igo vs. Sidney1) Defendant Wells Fargo Bank’s Demurrer to Plaintiffs Gary T.Byron and Jami L. Byron’s First Amended ComplaintSustain. Defendant’s request for judicial notice is GRANTED.The demurrer to the entire complaint is SUSTAINED withoutleave to amend for the following reasons.All claims based on events surrounding the loan origination arebarred because they belong to the estate of the Plaintiffs’ firstbankruptcy in 2011; only the bankruptcy trustee has theability to pursue them. Per In re Magana-Lopez (Bankr. CDCal. Apr.18, 2012) 2012 WL 1355553, *3-*4.In addition, the statutes of limitation bar all such claims.Plaintiffs knew no later than 2007 that their loan wasadjustable. Complaint, 14. If there were any claims based onthe terms of the loan, they had a duty to investigate them atthat time. Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1171.They have no claims based on failure to modify the loan in2011 because there is no such duty under California law.Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 222-223.Plaintiffs have given up their claim of any such right underfederal law.There is no opposition to the demurrer to the 4th and 5thcauses of action for bad faith. Hertzberg v. County of Plumas(2005) 133 Cal.App.4th 1, 20.Defendant is to give notice.1) Defendant The Irvine Land Company, LLC.’s Demurrer toPlaintiffs’ Complaint2) Defendant The Irvine Land Company, LLC.’s Motion toStrike Portions of Plaintiff’s ComplaintOff Calendar; First Amended Complaint filed on2/20/20131) Defendant Sidney Bernard Little’s Demurrer to Plaintiffs’First Amended Complaint

Bernard Little4 12-584877Iwamoto FamilyTrust vs. TheHeathers SeniorCare, Inc.Demurrer ONLY continued to 3/8/2013, per the requestof the court2) Defendant Sidney Bernard Little’s Motion to Consolidate thisAction with Case No. 2012-5987561) Plaintiffs Iwamoto Family Trust by and through TrusteeWayne Iwamoto, Gilbert S. Iwamoto Survivor’s Trust by andthrough Trustee Wayne Iwamoto, Wayne Iwamoto, DavidIwamoto and Carol Brack’s Motion to Quash Subpoenas for thePersonal Records of Decedent Gilbert IwamotoOff Calendar per telephonic request of moving party.5 07CC08589Cervantes vs. Shop 4Tech6 12-587452Ambrosio vs. ItalgresItalian Ceramic Tile,Inc.1) Plaintiff Jose Cervantes’ Motion to Enforce SettlementAgreement--- Counsel for Plaintiff is to attend the hearing and explain tothe Court why he has not complied with the following portionof the Court’s 2/1/13 order:At the last hearing the Court noted the revisedsettlement agreement required WCAB approval andthere had been no showing that such approval hadbeen obtained. Rather than deny this motion withoutprejudice, the Court is continuing this motion forplaintiff to address this issue. A proposed judgmentshould also be submitted with the supplementalmotion papers all to be filed by 2-15-13. [Emphasisadded.]Should counsel fail to appear, the motion will be deniedwithout prejudice.2) OSC re: Dismissal1) Defendant Seaward RE, LP’s Motion to Compel PlaintiffFaustino Ambrosio to Respond to Form Interrogatories, 1 & 3and Request for Monetary Sanctions against Plaintiff and hisCounsel of Record in the amount of $1,750.00, plus costs ofMotionGrant. Regarding Form Interrogatory No. 17.1, the Motion isGRANTED as to Request for Admissions Nos. 3, 4, 12 & 13.Responses without objection shall be served within 20 days.For Nos. 3 & 4, Plaintiff was vague. He did not state the datesor percipient witnesses. For Nos. 12 & 13, Plaintiff is requiredto respond to contention interrogatories. Burke v. Sup.Ct.(1969) 71 C2d 276, 281–282; Weil & Brown, Civil ProcedureBefore Trial (Rutter Group) 8:78.Regarding Form Interrogatory No. 17.1, the Motion is DENIEDas to Request for Admissions Nos. 1, 7 & 8. For No. 1, Plaintiffshall provide a letter from a treating doctor. For Nos. 7 & 8,the responses were adequate.2) Defendant Seaward RE, LP’s Motion to Compel PlaintiffFaustino Ambrosio Further Responses to SpecialInterrogatories, 1 & 3 and Request for Monetary Sanctions

7 12-584523Prospect MedicalHoldings, Inc. vs.Torgerson8 12-595763California Bank &Trust vs. Fralinagainst Plaintiff and his Counsel of Record in the amount of$2,100.00, plus costs of MotionGrant. Regarding Special Interrogatories Nos. 1 & 3, theMotion is GRANTED. Responses without objection shall beserved within 20 days.For No. 1, Plaintiff claims to lack personal knowledge and thathe did not maintain records. Plaintiff should at least consult hisattorneys, who would have the information.For No. 3, Plaintiff is required to provide a straightforwardresponse. “Each answer in a response to interrogatories shallbe as complete and straightforward as the informationreasonably available to the responding party permits.” (C.C.P.§ 2030.220 (a)).3) Defendant Seaward RE, LP’s Motion to Compel PlaintiffFaustino Ambrosio to Respond to Requests for Production,6,11,25,27,28 and 29 and Request for Monetary Sanctionsagainst Plaintiff and his Counsel of Record in the amount$1,050.00Grant. Regarding Requests for Production, Nos. 6, 1, 25, 27,28 & 29, the Motion is GRANTED. As designated in theRequest, the place of production shall be the Newport Beachoffice of Defendants’ attorney. Plaintiff may submit a privilegedlog as appropriate.Within twenty (20) days, Plaintiff shall respond and producewithout objection. Within twenty (20) days, Plaintiff and hisattorney shall pay sanctions in the sum of 1,270.00. [($250.00per hour x 4 hours) + $270.00 for filing and court reporterfees ($90.00 x 3 motions).]M/p to give notice.1 & 2) Plaintiffs Prospect Medical Holdings, Inc. and ProspectMedical Systems, Inc.’s Motion to Compel Defendant JasmineTorgerson to Further Respond to Form Interrogatories, Set Oneand Requests for Admission, Set One and Requests forMonetary Sanctions against Defendant and her Attorney ofRecord in the amount of $2,275.003) Plaintiffs Prospect Medical Holdings, Inc. and ProspectMedical Systems, Inc.’s Motion to Compel Defendant JasmineTorgerson to Further Respond to Special Interrogatories, SetOne and Request for Monetary Sanctions against Defendantand her Attorney of Record in the amount of $1,300.004) Plaintiffs Prospect Medical Holdings, Inc. and ProspectMedical Systems, Inc.’s Motion to Compel Defendant JasmineTorgerson to Further Respond to Requests for Production, SetOne and Request for Monetary Sanctions against Defendantand her Attorney of Record in the amount of $1,625.00Off Calendar per 2/25/13 telephonic request of movingparty.1) Plaintiff California Bank & Trust’s Motion to CompelDefendants Curtis Fralin and K. Joseph Shabani Deposition andto Respond to Requests for Production of Documents andRequest for Monetary Sanctions against Defendants in theamount of $3,397.50Continued to 4/5/2013 per telephonic request of

9 11-450304Villmer vs.Schonherz10 12-542153Moftakhar vs.Orange CountyHousing Authority11 09-126504Family InvestmentCompany, Inc. vs.Mach-1 Autogroup12 11-441508Teamsters DistrictCounsel No.2 vs.Grabhornmoving party.1) Defendants and Cross-Complainants Silver Oak Real Estateof Orange County and Karen Schonherz’s Motion for New TrialDeny. The Motion for New Trial is DENIED.Pursuant to C.C.P. § 664.6, all parties signed the settlementagreement. The court had authority to enforce the agreement,because the parties entered into a valid and bindingsettlement. Hines v. Lukes (2008) 167 Cal.App.4th 1174,1182. Great American was not a party to the settlementagreement.Pursuant to Paragraphs 4 and 15 of the Settlement Agreement,the court was justified in awarding $2,425.00 in attorney feesand $69.95 in costs for the enforcement motion.R/p to give notice.1) Petitioner Cyrus Moftakhar’s Motion for Reconsideration ofNovemeber 30, 2012 Order Granting in part and Denying inpart Petitioner Cyrus Moftakhar’s Writ1) Judgment Creditors Mach-1 Autogroup, Mach-1 RSMH, LLCand Craig Baptiste’s Motion for Charging Order and RelatedReliefGrant. Judgment Creditors’ Motion for a Charging Order isgranted.2) Judgment Creditors Mach-1 Autogroup, Mach-1 RSMH, LLCand Craig Baptiste’s Order to Show Cause re: PreliminaryInjunctionGrant. The Court issues a preliminary injunction enjoiningjudgment debtor Marc Spizzirri and his agents, assigns,employees, partners and all those action in concert with him,from assigning, encumbering, transferring, or in any waydisposing of his interest in monies from the sale of commercialproperty located at 1211 North Batavia, Orange, which hasbeen sold by Auto Orange II, LLC (“AOII”), until such time asthe judgment has been paid in full. This injunction onlyincludes funds paid to Mr. Spizzirri as a member of AOII and asa member of El Camino Real LLC from the sale of the property,and any funds paid to Mr. Spizzirri’s attorney Frank Battailefrom the sale of the property.M/p to give notice.1) Cross-Defendant Teamsters District Council No.2’s Motionfor Summary Judgment, or alternatively, SummaryAdjudication on Cross-Complaint of Fred Correll and RyanSherardOff calendar. Case stayed on 02/25/13.

JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYMay 10, 2013 at 2:00 PMTentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing,whenever possible. The rulings will also be posted outside the courtroom on the bulletin board by noon onthe day of the scheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer tosubmit the matter on your papers without oral argument, advise all counsel first and then telephonethe clerk at (657)622-5212. If the moving party has submitted the matter and there are noappearances by any party at the hearing, the tentative ruling will be the final ruling. Unless otherwiseindicated, the moving party shall provide written notice of all rulings or prepare an Order for the court’ssignature per CRC 3.1312. If no one has telephoned the clerk to submit and there are no appearances byany party, the tentative will become the final order of the court.Department C12 has an assigned court reporter for all Law & Motion matters.Once the tentative ruling has been posted on the Internet, no supplemental papers may be filedand no continuances will be permitted.# Case Name Tentative1 12-568552Pacific Mercantile Bankvs. NP Gas, Inc.1) Defendants Naresh Patel, Jayshree Patel, NP Gas, Inc. and US Gasup,Inc.’s Attorney of Record, Red Hill Law Group, PC and StevenD’Braunstein’s Motion to be Relieved as Counsel of RecordGrant. Defendants Naresh Patel, Jayshree Patel, NP Gas, Inc. and USGasup, Inc.’s Attorney of Record, Red Hill Law Group, PC and StevenD’Braunstein’s Motion to be Relieved as Counsel of Record is grantedsubject to submission and service of the proper order. Defense counselwill need to submit a proposed order on the required Judicial CouncilForm and the withdrawal shall not be effective until filing of a proof ofservice of this order of withdrawal on all defendants.M/p to give notice.2 12-539970Galerie H.O.A vs.National Union Fire Ins.Co. of Pittsburgh3 12-594922Dessoliers vs. C & C, LLC1) Defendants Bickley Nguyen and Labarre/Oksnee Insurance Agency,Inc.’s Demurrer to Plaintiff Galerie Homeowners Association’s SecondAmended Complaint1) Defendant C & C, LLC’s Demurrer to Plaintiff Denis Dessoliers’ SecondAmended Complaint

4 12-589162Vista Flare H.O.A. vs.Lester1) Cross-Defendant Vista Filare Homeowners Association’s Demurrer toCross-Complainant Linda J. Lester’s First Amended Cross-Complaint6 12-608186Flores vs. The IrvineLand Company, LLC1) Defendant The Irvine Land Company, LLC’s Demurrer to PlaintiffsIlene Flores, Johnny Flores, Jessica Flores a minor, Maurilia Rivera, JoseRivera, Jesus Barron and Estate of Juan Flores and Estate of ThomasRivera’s First Amended Complaint2) Defendant The Irvine Land Company, LLC’s Motion to Strike Portionsof Plaintiffs Ilene Flores, Johnny Flores, Jessica Flores a minor, MauriliaRivera, Jose Rivera, Jesus Barron and Estate of Juan Flores and Estate ofThomas Rivera’s First Amended Complaint7 12-614302Raygoza vs. Arroyo RealPartners, LLC1) Defendants Arroyo Real Partners, LLC, Arroyo Real Partners, LP, JoseRosales and Jose Gallegos’ Demurrer to Plaintiff Eric Raygoza’s FirstAmended Complaint2) Defendants Arroyo Real Partners, LLC, Arroyo Real Partners, LP, JoseRosales and Jose Gallegos’ Motion to Strike Portions of Plaintiff EricRaygoza’s First Amended Complaint8 11-527419Nguyen vs. Nguyen1) Plaintiff Chris Nguyen’s Motion to Compel Defendant Kim Nguyen toRespond to Request for Admission, Set One and Request for Sanctionsagainst Defendant and her Attorney of Record in the amount of$1,090.0010 12-598746Marquardt vs. Thune1-3) Defendant Wallace Thune, D.D.S.’s Motion to Compel PlaintiffMichelle Marquardt for Responses to Interrogatories, Requests forProduction of Documents and Request to Deem Admissions as Admittedand Request for Sanctions against Plaintiff and her Counsel of Record inthe amount of $1,260.00Moot in part and grant in part. Defendant Dr. Thune’s consolidatedmotion to compel responses to defendant’s initial special interrogatories,

RFPD, and to deem requests for admission admitted, by plaintiffMarquardt is MOOT because plaintiff Marquardt has now served verifiedresponses to defendant’s initial discovery.Sanctions are granted as defendant granted an extension to respond tothis discovery and no evidence of a request for a further extension whenplaintiff’s counsel was requested to participate as second chair in a trialis shown. Defendant Dr. Thune is thus awarded sanctions for $810.00payable by plaintiff Marquardt and her counsel of record in 30 days. See,C.C.P. §§ 2030.290(c), 2031.300(c) and 2033.280(c).Moving party to give notice.11 12-600613Young vs. Bhakta1 & 2) Plaintiffs and Cross-Defendants David Young and ElizabethYoung’s Motion to Compel Defendants and Cross-Complainants toRespond to Form and Special Interrogatories, Set One and Request forSanctions in the amount of $1,750.0013 05CC11160Affan vs. Portofino CoveHomeowners Association14 09-312445Kim vs. N.R.L.L. East,LLC1) Defendants Portofino Cove Homeowners Association and PortofinoCove Condominium Association’s Motion for New Trial1) Defendant Auction.com, Inc.’s Motion for Attorney’s Fees incurred toRelease Property from a Writ of Execution obtained through ErroneousAffidavit of Identity15 12-617642Citizens Business Bankvs. Seldin1) Defendants George R. Seldin and Dianne C. Seldin’s Demurrer toPlaintiff Citizen Business Bank’s ComplaintOverrule. The demurrer by the Seldin defendants to plaintiff CBB’scomplaint is OVERRULED. Without evidence of the governing trustdocument the court cannot determine whether the Seldin defendants areprimary beneficiaries or secondary beneficiaries of the trust. This makesa difference as to enforceability of the guaranty for the reasonsdiscussed in Talbott v. Hustwit (4th Dist. 2008) 164 Cal.App.4 th 148,159. Also, whether Probate Code § 18000 is applicable to the Seldindefendants’ trust can affect the applicability of the rules set forth inTorrey Pines Bank. A demurrer challenges the defects appearing on theface of the pleading or from other matters properly subject to judicialnotice. See, Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Whether theSeldin plaintiffs can establish that the rules set forth in Torrey PinesBank v. Hoffman (1991) 231 Cal.App.3d 308 are applicable in their caseby way of a dispositive motion is not pending before this court at thistime. Next, the guaranties attached and incorporated into plaintiff CBB’scomplaint evidence that the Seldin defendants waived their rights underC.C.P. §§ 580d and 726. In addition, the Talbott court explained thatC.C.P. § 580d is not applicable to guarantors.The Seldin defendants are ordered to answer plaintiff CBB’s complaintwithin 10 days.

Moving parties to give notice.

JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYMay 17, 2013 at 2:00 PMTentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing,whenever possible. The rulings will also be posted outside the courtroom on the bulletin board by noon onthe day of the scheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer tosubmit the matter on your papers without oral argument, advise all counsel first and then telephonethe clerk at (657)622-5212. If the moving party has submitted the matter and there are noappearances by any party at the hearing, the tentative ruling will be the final ruling. Unless otherwiseindicated, the moving party shall provide written notice of all rulings or prepare an Order for the court’ssignature per CRC 3.1312. If no one has telephoned the clerk to submit and there are no appearances byany party, the tentative will become the final order of the court.Department C12 has an assigned court reporter for all Law & Motion matters.Once the tentative ruling has been posted on the Internet, no supplemental papers may be filedand no continuances will be permitted.# Case Name Tentative1 13-629505McFerson vs. Zenni1) Defendant Rami M. Zenni’s Motion to Strike Portions of Plaintiff AlisonA. McFerson’s ComplaintGrant. The motion to strike is GRANTED with 20 days leave toamend. Plaintiff must allege more than that Defendant voluntarilyingested an intoxicating substance and drove afterwards. He must allegealso that at the time he ingested the substance, he knew that it wouldimpair his ability to drive, he knew he would be driving, and he knew ofthe hazards of driving while intoxicated with the substance. Taylor v.Superior Court (1979) 24 Cal.3d 890, 896.In addition, Plaintiff must allege that Defendant ran a red light. PerDawes v. Superior Court (1980) 111 Cal.App.3d 82, 89-90 (cited withapproval in Peterson v. Superior Court (1982) 31 Cal.3d 147), Plaintiffmust allege that Defendant’s driving made injury probable, not merelypossible. This requirement is satisfied if Plaintiff alleges that Defendantran a red light while Plaintiff was in the intersection.The Court will not consider whether these authorities apply toprescription drug intoxication because this issue was raised for the firsttime in the Reply. Nor will the Court consider Defendant’s version of thefacts in ruling on the sufficiency of a pleading. His remedy, if any, islikely to be a motion for summary adjudication.Defendant is to give notice.5 12-595763California Bank & Trustvs. Fralin1) Cross-Defendant Sherry Sharona Zarneigan’s Demurrer to Cross-Complainant K. Joseph Shabani’s Cross-ComplaintOverrule. The demurrer by Cross defendant Shery Sharona Zarnegin tothe 1 st c/a for declaratory relief in the Cross-Complaint on grounds of

failure to state, uncertainty, and another action pending, isoverruled. Cross-defendant failed to establish that another action ispending via the divorce action. Cross-defendant failed to establish thatCross-Complainant’s interpretation of the Guaranty is unreasonable andimproper, or that the cause of action fails, as a matter of law. Crossdefendantfailed to articulate how the cause of action is uncertain.2) Cross-Defendant Sherry Sharona Zarneigan’s Motion to StrikePortions of Cross-Complainant K. Joseph Shabani’s Cross-ComplaintDeny. The motion by xΔ Shery Sharona Zarnegin to strike portions ofCross-Complaint as the following: (1) Page 3, 6:11-16; (2) page 4, 8(c):3-6, is denied. Cross-defendant failed to show that the challengedlanguage in the Cross-Complaint is false or improper.Cross-Defendants' Answer shall be served and filed within 10 days. Theobjection to the declaration of Shery Sharona Zarnegin issustained. Counsel for cross-complainant to give notice.7 11-474454Gearless Designs &Manufacturing, Inc. vs.Action Broaching, Inc.1 & 2) Defendant Action Broaching, Inc.’s Motion to Compel PlaintiffGearless Designs and Manufacturing, Inc. to Further Respond toRequests for Production of Documents and Form Interrogatories andRequest for Monetary Sanctions against Plaintiff in amount to beDetermined by the Court9 12-588533Jensen vs. Nghiem1) Defendant Darlene Ngheim’s Motion to Have the Genuineness ofDocuments and the Requests for Admissions Propounded by PlaintiffTyler Nguyen be Deemed Admitted and Request for Sanctions in theamount of $1,954.00GRANT. Defendant Nghiem’s motion to deem his requests foradmission to plaintiff Nguyen admitted is granted. See, C.C.P. §2033.280(b). Defendant Nghiem’s request for sanctions is granted inthe amount of $1,204.00 payable by plaintiff Nguyen and his counsel ofrecord in 30 days. See, C.C.P. § 2033.280(c). Moving party to givenotice.2) Defendant Darlene Ngheim’s Motion to Have the Genuineness ofDocuments and the Requests for Admissions Propounded by PlaintiffXuyen Jensen be Deemed Admitted and Request for Sanctions in theamount of $631.50GRANT. Defendant Nghiem’s motion to deem his requests foradmission to plaintiff Jensen admitted is granted. See, C.C.P. §2033.280(b). Defendant Nghiem’s request for sanctions is granted inthe amount of $1,204.00 payable by plaintiff Jensen and his counsel ofrecord in 30 days. See, C.C.P. § 2033.280(c). Moving party to givenotice.

3) Defendant Vince Lu’s Motion to Request for Admissions, Set OnePropounded on Plaintiff Tyler Nguyen be Deemed Admitted and Requestfor Sanctions in the amount of $444.44GRANT. Defendant Vu’s motion to deem his requests for admission toplaintiff Tyler Nguyen is granted and the RFAS’s are deemed admitted.See, C.C.P. § 2033.280(b). Defendant Vu’s request for sanctions isgranted. Sanctions are awarded in the amount of $454.00 payable byplaintiff Tyler Nguyen and his counsel of record in 30 days. See, C.C.P.§ 2033.280(c). Moving party to give notice.4) Defendant Vince Lu’s Motion to Request for Admissions, Set OnePropounded on Plaintiff Xuyen Jensen be Deemed Admitted and Requestfor Sanctions in the amount of $631.50GRANT. Defendant Vu’s motion to deem his requests for admission toplaintiff Jensen is granted and the RFAS’s are deemed admitted. See,C.C.P. § 2033.280(b). Defendant Vu’s request for sanctions isgranted. Sanctions are awarded in the amount of $454.00 payable byplaintiff Xuyen Jensen and his counsel of record in 30 days. See, C.C.P.§ 2033.280(c). Moving party to give notice.10 11-493293Sanchez vs. Webb1) Defendants Mexpan Trucking and Juventino Serrano’s Motion forTerminating Sanctions of Dismissal of Plaintiffs Teresa Sanchez andAlejandro Sanchez Complaint for Failure to Comply with the Court’sOrder dated April 12, 2013Grant. The motion for terminating sanctions by defendants MexpanTrucking and Juventino Serrano is GRANTED. See, Laguna Auto Body v.Farmers Ins. Exchange (1991) 231 Cal.App.3d 481. The complaint byplaintiffs Teresa Sanchez and Alejandro Sanchez as to defendantsMexpan Trucking and Juventino Serrano is dismissed with prejudice.Plaintiffs’ claims against the other defendants remain as well as thecross-complaints between the various defendants in this civilaction. The trial date of June 10, 2013 remains on calendar.Moving parties to give notice.12 12-574276Miller vs. Gonzalez1) Plaintiff Hazel Miller’s Attorney of Record, Gene J. Goldsman’s Motionto be Relieved as Counsel of Record13 11-501359Koshak vs. Leventhal1) Plaintiff Norman Koshak’s Motion to Strike or Tax Costs entered byDefendant Neil H. Leventhal

14 13-622860Nguyen vs. Wells FargoBank, N.A.1) Plaintiff Christian T. Nguyen’s Order to Show Cause RegardingPreliminary Injunction2) Defendant Wells Fargo Bank, N.A.’s Demurrer to Plaintiff Christian T.Nguyen’s Complaint3) Defendant Wells Fargo Bank, N.A.’s Motion to Strike Plaintiff ChristianT. Nguyen’s Complaint15 13-644295Moore vs. Lynch1) Plaintiffs Thomas A. Moore and Consumer Affairs Law Center, Inc.’sMotion for Order to Show Cause Regarding Preliminary Injunction

JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYMay 31, 2013 at 2:00 PMTentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing,whenever possible. The rulings will also be posted outside the courtroom on the bulletin board by noon onthe day of the scheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer tosubmit the matter on your papers without oral argument, advise all counsel first and then telephonethe clerk at (657)622-5212. If the moving party has submitted the matter and there are noappearances by any party at the hearing, the tentative ruling will be the final ruling. Unless otherwiseindicated, the moving party shall provide written notice of all rulings or prepare an Order for the court’ssignature per CRC 3.1312. If no one has telephoned the clerk to submit and there are no appearances byany party, the tentative will become the final order of the court.Department C12 has an assigned court reporter for all Law & Motion matters.Once the tentative ruling has been posted on the Internet, no supplemental papers may be filedand no continuances will be permitted.# Case Name Tentative1 12-569832Jeff Tracy, Inc. vs.Olguin1) Defendant and Cross-Complainant Cris B. Olguin’s Attorney ofRecord, William M. Crosby’s Motion to be Relieved as Counsel of Record2) Defendant Jessica Olguin’s Attorney of Record, William M. Crosby’sMotion to be Relieved as Counsel of Record3) Defendant and Cross-Complainant Craig Johnson’s Attorney ofRecord, William M. Crosby’s Motion to be Relieved as Counsel of RecordGrant. The Motions to be Relieved as Counsel are GRANTED.3 13-622933Weng’s Enterprises vs.Global NetworksEnterprises &Technologies, Inc.The Order shall include notification of the hearing on the Demurrer setfor July 12, 2013 at 2pm as well as the CMC of 6/3/13.M/p to give notice.1) Cross-Defendant Weng’s Enterprises, Inc.’s Demurrer to Cross-Complainant Global Networks Enterprises and Technologies and EricChoi’s Cross- Complaint2) Cross-Defendant Weng’s Enterprises, Inc.’s Motion to Strike Portionsof Cross-Complainant Global Networks Enterprises and Technologies andEric Choi’s Cross- Complaint

4 13-631263Deployment Partners,Inc. vs. NetworkdCorporation1) Defendant Verismic Software, Inc.’s Demurrer to Plaintiff DeploymentPartners, Inc. dba Managed Planet Software’s Complaint2) Defendant Verismic Software, Inc.’s Motion to Strike Portions ofPlaintiff Deployment Partners, Inc. dba Managed Planet Software’sComplaint

JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYJune 07, 2013 at 2:00 PMTentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing,whenever possible. The rulings will also be posted outside the courtroom on the bulletin board by noon onthe day of the scheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer tosubmit the matter on your papers without oral argument, advise all counsel first and then telephonethe clerk at (657)622-5212. If the moving party has submitted the matter and there are noappearances by any party at the hearing, the tentative ruling will be the final ruling. Unless otherwiseindicated, the moving party shall provide written notice of all rulings or prepare an Order for the court’ssignature per CRC 3.1312. If no one has telephoned the clerk to submit and there are no appearances byany party, the tentative will become the final order of the court.Department C12 has an assigned court reporter for all Law & Motion matters.Once the tentative ruling has been posted on the Internet, no supplemental papers may be filedand no continuances will be permitted.# Case Name Tentative1 13-6225051)Defendant Hermanne, LLC’s Motion to Strike Portions of the PlaintiffDavid Jon de Langis’ ComplaintJon de Langis vs.Hermanne, LLCGrant. Defendant Hermanne’s anti-SLAPP motion is GRANTED.Defendant Hermanne carried its initial burden of establishing protectedactivity given plaintiff’s claims of alleged perjured declarations andfailure to serve the notice of entry of default on plaintiff DeLangis in theunderlying actions. See, C.C.P. § 425.16(e)(1) and (e)(2) and Brill MediaCo., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4 th 324, 330. Sincedefendant Hermanne carried his initial burden of establishing protectedactivity, the burden shifted to plaintiff DeLangis to demonstrate that hiscomplaint is both legally sufficient and supported by a prima facieshowing of facts to sustain a favorable judgment. See, Premier Med.Mgt. Systems, Inc. v. California Ins. Guar. Ass’n (2006) 136 Cal.App.4 th464, 472. Plaintiff DeLangis has not met his burden. All of plaintiffDeLangis’ claims are barred under the litigation privilege. See, Civil Code§ 47, Flatley v. Mauro (2006) 39 Cal.4 th 299, Silberg v. Anderson (1990)50 Cal. 3d 205, and Rusheen v. Cohen (2006) 37 Cal.4 th 1048.Next, even assuming the litigation privilege is not applicable, plaintiffDeLangis has not stated any legally sufficient cause of action supportedby a prima facie showing of facts based on admissible evidence.As to plaintiff’s first cause of action for extrinsic fraud, plaintiff DeLangisalleged knowledge of the existence of the cross-complaint, yet he failedto respond, as well as the court in the underlying action denied plaintiffDeLangis’s motion to set aside default and default judgment on theground of lack of diligence. A party must demonstrate an absence ofneglect and diligence to obtain relief based on extrinsic fraud. See, Cruzv. Fagor America, Inc. (2007) 146 Cal.App.4 th 488.

As to plaintiff’s second cause of action for injunctive relief, injunctiverelief is a remedy and not a cause of action. See, Marlin v. AimcoVenezia, LLC (2007) 154 Cal.App.4 th 154.As to plaintiff’s third cause of action for abuse of process, plaintiffDeLangis has not pled fact as to a willful act in the use of process notproper in the regular conduct of the proceedings in light of the litigationprivilege.As to plaintiff DeLangis’ fourth cause of action for violation of RICO,plaintiff has not alleged facts or presented evidence that defendantHermanne obtained income as a result of some racketeering activitywithin the meaning of RICO. In addition, plaintiff DeLangis has not pledsufficient facts as to any close-ended conspiracy or an open-endedconspiracy to state a cause of action for violation of RICO. See, MidwestGrinding Co. v. Spitz, 976 F.2d 1016 (1992) and Thompson v. Paasche,950 F.2d 306 (1991).Finally, defendant Hermanne is awarded his reasonable attorney’s feesand costs in the sum of $11,444.00 payable by plaintiff DeLangis. Theattorney fees on an anti-SLAPP motion are limited to those associatedwith the anti-SLAPP motion so the $3,200.00 in claimed attorney’s feeson associated with the TRO was deducted. See, Lafayette Morehouse,Inc. v. Chronicle Pub.Co. (1995) 39 Cal.App.4 th 1379. An additional 3hours in fees were deducted for 4/16/13 and 4/18/13 asexcessive: totaling $750.00. Moving party to give notice.Defendant Hermanne’s Evidentiary Objections: Declaration ofPlaintiff’s Attorney Kenneth Sisco: OVERRULED as to Objections Nos.6 and 8. SUSTAINED as to Objection Nos. 1, 2, 3, 4, 5 and 7, principallyon the ground of lack of personal knowledge. Declaration of Plaintiff’sAttorney Brian D. Mabee: OVERRULED as to Objection Nos. 5, 8 and9. SUSTAINED as to Objection Nos. 1, 2, 3, 4, 6, 7, and 9, principally onthe grounds of lack of personal knowledge and/or argumentative.Declaration of Plaintiff’s Attorney Brian J. Jacobs: SUSTAINED asto Objection Nos. 1 and 2. Declaration of Plaintiff David Jon deLangis: OVERRULED as to Objection No. 4. SUSTAINED as to ObjectionNos. 1, 2, 3 and 5, on the grounds of lack of personal knowledge,hearsay or relevance as to Objection No. 3.Defendant Hermanne’s Request for Judicial Notice: DefendantHermanne requested that the court take judicial notice of the followingdocuments in support of its anti-SLAPP motion: Exhibit A, Declaration ofDavid Kekich in Support of Default Prove-Up in the Underlying Action ofO.C.S.C. Case No. 30-2008-00108868, Exhibit B, Notice of Sheriff’s Salescheduled for 1-9-13, Exhibit C, Notice of Bankruptcy of David Jon deLangis filed in the Central District of California, Case No. 2:13-bk-10654-ER and DeLangis’ Notice of Removal of this civil action to U.S.Bankruptcy Court, Exhibit D, Complaint in O.C.S.C. Case No. 30-2011-00456021 filed 3-8-11, Exhibit E, Bankruptcy Dismissal Order filed3-15-13, Exhibit F, Notice of Ruling Denying Motion to Set Aside theDefault Judgment in O.C.S.C. Case No. 30-2008-00108688, Exhibit G,Notice of Appeal from Underlying Case O.C.S.C. Case No. 30-2008-00108688, Exhibit H, Notice of Dismissal of Appeal filed 10-3-12 andRemittitur filed 12-5-12, Exhibit I, Order Denying Ex Parte Applicationfor a TRO to Stay Enforcement of Judgment in the Third Action, O.C.S.C.Case No. 30-2013-00622505 filed 1-8-13, Exhibit J, Dismissal filed on 8-9-11 and docket in O.C.S.C. Case No. 30-2011-00456021, Exhibit K,Docket and Complaint in L.A.S.C. Case No. YC067378, Exhibit L,Abstract of Judgment filed in L.A.S.C. on 7-17-12 in L.A.S.C. Case No.BS138330, Exhibit M, Order for Sale of De Langis’ Property filed 9-14-12in L.A.S.C. Case No. BS138330, Exhibit O, Abstract of Judgment in

Underlying Case against David Jon de Langis records in the County ofLos Angeles on 9-7-10, Exhibit P, Bankruptcy Court Order Remandingthe current civil action back to state court, Exhibit W, DeLangis’ Motionto Set Aside Default and Default Judgment in the Underlying Action andSupporting Declarations filed 5-31-12, Exhibit X, Hermanne’s Oppositionto Motion to Set Aside the Default and Default Judgment in theUnderlying Action and Supporting Declarations filed on 7-11-03, andExhibit Y, DeLangis’ Reply in Support of Motion to Set Aside Default andDefault Judgment in the Underlying Action filed 6-16-12. DefendantHermanne’s request that the court take judicial notice should beGRANTED as to Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, O, P, W, Xand Y, but such notice should be limited to the filing of these documentsand/or pleadings and not as to the truth of any claims or contentions setforth therein. See, Evidence Code § 452(d) and (h) and Day v. Sharp(1975) 50 Cal.App.3d 904, 914.6 12-581764Cortez vs. Davis1) Defendants Dolores M. Davis, John E. Davis and the John E, Davisand Dolores M. Davis 2001 Revocable Family Trust’s Demurrer toPlaintiff Bertha Cortez’s Second Amended ComplaintSustain in part and overrule in part. The demurrer to the 1st, 2dand 4th causes of action for fraud, constructive trust and elder abuse areSUSTAINED without leave to amend. The demurrer to the 3d cause ofaction for breach of contract is OVERRULED. Defendants have 20 daysto answer.The Court takes judicial notice of 20 of the First Amended Complaint inwhich Plaintiff admitted that the alleged fraud was only concealed untilsix years prior to the filing of the complaint. Therefore, she was oninquiry notice; the fact that the loan had been paid and the Propertyreconveyed by the lender could have been easily discovered from publicrecords. The applicable statutes of limitations bar any claims based onthe alleged promise to reconvey. In addition, Plaintiff has not attemptedto oppose the demurrer.However, the Court notes that 17 of the complaint alleges an oralagreement that if Plaintiff transferred the property, she could continue tolive on it and Defendants would pay taxes and insurance. The Courthas previously ruled that the breach of contract cause of actionadequately states a claim based on failure to pay taxes in 2011. Also, itappears that there has been no breach of the promise to allow Plaintiff tocontinue to live on the Property.This hearing has been previously continued and shall not be continuedfurther.M/p to give notice.7 12-584260Cassaniti vs. Bank ofAmerica, N.A.1) Defendants Bank of America, N.A. and Recontrust Company, N.A.’sDemurrer to Plaintiff Renee Cassaniti’s First Amended ComplaintSustain. The Court has considered all papers filed by both parties inmaking the following ruling.Defendants’ Request for Judicial Notice is GRANTED.

Defendants’ Demurrer to the First Amended Complaint isSUSTAINED without leave to amend.While the Court concludes that tender was not required and thatdefendants did not establish compliance with Civil Code §2923.5 beforethey filed the Notice of Default, the First Amended Complaint establishesthat discussion of a loan modification occurred in July, 2012. FirstAmended Complaint. 26. No foreclosure sale is alleged, leading to theconclusion that it has been postponed. Because the only remedyavailable to plaintiff for a violation of this cause of action is apostponement of the foreclosure sale until statutory compliance hasoccurred, plaintiff is not entitled to any additional relief and, as such, isunable to state a cause of action. Mabry v. Superior Court (2010)185Cal.App.4 th 208Moving party to give notice.8 12-595763California Bank & Trustvs. Fralin9 12-619154Noory vs. Sorensen1) Plaintiff California Bank & Trust’s Motion to Strike Answer and EnterDefault as to Defendant K. Joseph Shabani aka Kambiz Joseph Shabaniand for Award of Monetary SanctionsOff Calendar per written notice of moving party.1) Defendants IRA Resources, Inc. FBO Barbara Barsky, IRA BarbaraBarsky and Pacific Coast Title’s Demurrer to Plaintiffs Frishta Noory andManagement Resources Group’s First Amended Complaint2) Defendants IRA Resources, Inc. FBO Barbara Barsky, IRA BarbaraBarsky and Pacific Coast Title’s Motion for Sanctions against PlaintiffsFrista Noory and Management Resources Group, Inc. and their Attorneyof RecordContinued to 6/14/2013 per telephonic notice of moving party.10 11-463995Huntington Shorecliff, LPvs. City of HuntingtonBeach1) Defendant City of Huntington Beach’s Motion to Compel PlaintiffHuntington Shorecliff, LP to Further Respond to Demand for Productionof Documents, Set Two Nos. 75,76 and 77 and Request for Award ofMonetary Sanctions against Plaintiff and their Counsel of Record in theamount of $8,600.0011 12-582061Wilson vs. Bank ofAmerica Corporation13 13-631145Orange CountyTransportation Authorityvs. I&M Pinsky, LLC1) Defendant Bank of America, N.A.’s Motion for Summary Judgment or,in the alternative for Summary Adjudication against Plaintiff RebeccaWilsonContinued to 07/19/13 at 2:00 pm per Stipulation and Order.1) Plaintiff Orange County Transportation Authority’s Motion forPrejudgment Order of Possession of the Property that OCTA is seeking toacquire under the Power of Eminent Domain in this Pending ActionDeny. The motion for possession is DENIED without prejudice.OCTA does not provide an expert appraisal “that satisfies therequirements” of CCP §1255.010. (See CCP §1255.410(d)(1) and

§1255.010(b). ) Ms. Riggs’ declaration only authenticates Ex.4, anappraisal summary which states “See attached” for principaltransactions, replacement cost analysis, and narrative explanation. Yetnothing is attached to Ex.4. If there is an appraisal, it is buried in otherexhibits and is not authenticated.Section 1244.010(a) requires deposit with the State Treasury theprobable amount of compensation based on the option of a qualifiedexpert’s appraisal. Per sub§(b), her report must include:(A) The date of valuation, highest and best use, and applicablezoning of the property.(B) The principal transactions, reproduction or replacement costanalysis, or capitalization analysis, supporting the appraisal.(C) If the appraisal includes compensation for damages to theremainder, the compensation for the property and for damages tothe remainder separately stated, and the calculations and anarrative explanation supporting the compensation, including anyoffsetting benefits.M/p to give notice.14 13-631176Orange CountyTransportation Authorityvs. Zetterlund1) Plaintiff Orange County Transportation Authority’s Motion forPrejudgment Order of Possession of the Property that OCTA is seeking toacquire under the Power of Eminent Domain in this Pending ActionGrant. The motion for possession is GRANTED.The motion was served on all parties named in the complaint more than30 days prior to the hearing. No one has opposed it and therefore theCourt can rule under CCP §1255.410(d)(1).The Michael Sudbeck declaration has established a right to temporarypossession, necessary to complete a project for the public benefit. Theexpert appraisal by Ms. Kiley satisfies the requirements of CCP§1255.010(b). The amount of probable compensation based on thatappraisal has been deposited with the State Treasurer.M/p to give notice and prepare the order.15 13-631173Orange CountyTransportation Authorityvs. SVF Walnut Fullerton1) Plaintiff Orange County Transportation Authority’s Motion forPrejudgment Order of Possession of the Property that OCTA is seeking toacquire under the Power of Eminent Domain in this Pending ActionDeny. The motion for possession is DENIED without prejudice.OCTA does not provide an expert appraisal “that satisfies therequirements” of CCP §1255.010. (See CCP §1255.410(d)(1) and§1255.010(b). ) Ms. Riggs’ declaration only authenticates Ex.4, anappraisal summary which states “See attached” for principaltransactions, replacement cost analysis, and narrative explanation. Yetnothing is attached to Ex.4. If there is an appraisal, it is buried in otherexhibits and is not authenticated.Also, it is unclear if there are any tenants in the “industrial businesspark” who may have compensable interests under CCP §1263.510.Per Los Angeles Unified School District v. Pulgarin (2009) 175Cal.App.4th 101, 104, the owner of a business on property taken byeminent domain may be compensated for loss of good will under CCP§1263.510.

Moving party to give notice.18 12-564933Liang vs. LevyConsolidated: 12-565052; AutomotiveRemarketing Exchange,LLC. vs. Levy1) Defendants Benjamin Berger and Berger Harrison, APC’s Motion forJudgment of the Pleadings as to the First Amended ComplaintGrant. First of all, Plaintiff’s 2d Amended Complaint filed 5/28/13 isstricken, as it was filed without leave of court.Defendants Benjamin Berger and Berger Harrison, APC’s Motion forJudgment of the Pleadings as to the First Amended Complaint isgranted.Plaintiff’s attorney must appear at the hearing and explain 1) when theGroup 3 opportunity arose and 2) when Plaintiff completed herinvestment in the Partnership.Plaintiff failed to show that she can allege that she was injured by theBerger defendants’ failure to disclose a conflict of interest related to theplot to sell AWG to another entity. In fact, the 2d Amended Complaintsuggests that she cannot. She alleges that she made her investmentsince 10/28/10 and that she received her interest in Huey andAssociates and ARX in November of 2010. 8 & 12. She alleges that inApril 2011 the defendants purported to solicit the purchase of AWG thatwould enable them to pay back the money she had alreadyinvested. 14. Instead, they diverted the opportunity in12/2011. 17.Therefore, it appears that Plaintiff invested a year before the opportunitywas diverted. It is not possible that she suffered injury in 2010 becausethe Berger defendants failed to disclose an opportunity if thatopportunity did not arise until 2011.The only wrongdoing by the Berger defendants that is alleged is thatthey helped broker the sale to Group 3 Auctions. If Plaintiff had alreadyinvested when negotiations for that sale began, she suffered no injuryfrom the alleged conflict of interest. She does not allege that theseDefendants participated in or knew of any fraud by Levy and Holsteinprior to that sale; her cause of action is based on negligence.Plaintiff cannot base the cause of action on her claim of diversion ofcorporate opportunities, because that harm was to the corporations, notPlaintiff personally. Unlike the plaintiffs in Crain v. ElectronicMemories & Magnetics Corp. (1975) 50 Cal.App.3d 509, she does notallege that the value of her stock was reduced while the value of Levyand Holsteins stock was not.M/p to give notice.

JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYJune 14, 2013 at 2:00 PMTentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing,whenever possible. The rulings will also be posted outside the courtroom on the bulletin board by noon onthe day of the scheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer tosubmit the matter on your papers without oral argument, advise all counsel first and then telephonethe clerk at (657)622-5212. If the moving party has submitted the matter and there are noappearances by any party at the hearing, the tentative ruling will be the final ruling. Unless otherwiseindicated, the moving party shall provide written notice of all rulings or prepare an Order for the court’ssignature per CRC 3.1312. If no one has telephoned the clerk to submit and there are no appearances byany party, the tentative will become the final order of the court.Department C12 has an assigned court reporter for all Law & Motion matters.Once the tentative ruling has been posted on the Internet, no supplemental papers may be filedand no continuances will be permitted.# Case Name Tentative1 12-614534Couig vs. Peterson1) Defendant Hunt, Ortmann, Palffy, Nieves, Darling & Mah, Inc.’sDemurrer to Plaintiff Stephen Couig’s ComplaintSustain. The demurrer by defendant Hunt, Ortmann, et al., to plaintiffCouig’s third cause of action for aiding and abetting is SUSTAINED with20 days leave to amend. Plaintiff has presently not alleged sufficientfacts as to affirmative acts on the part of defendant Hunt, Ortmann, etal., to constitute substantial assistance or encouragement to state acause of action for aiding and abetting. See, Schulz v. Neovi Data Corp.(4 th Dist. 2007) 152 Cal.App.4 th 86, 94 to 97. Mere knowledge of, orfailure to prevent a breach of fiduciary duty by other attorneys, does notstate sufficient facts to state a claim for aiding and abetting. See, Emeryv. Visa International Service Ass’n (2002) 95 Cal.App.4 th 952,962. Moving party to give notice.2) Defendant Hunt, Ortmann, Palffy, Nieves, Darling & Mah, Inc.’sMotion to Strike Portions of Plaintiff Stephen Couig’s ComplaintGrant. Defendant Hunt, Ortmann, et al.’s motion to strike plaintiffCouig’s claims for punitive damages, and the associated prayer, isGRANTED with 20 days leave to amend. Plaintiff Couig has not clearlyalleged an attorney-client relationship with defendant Hunt, Ortmann, etal., particularly in light of the more specific allegations of no attorneyclientrelationship set forth in plaintiff’s third cause of action for aidingand abetting as to DOE 1. In addition, plaintiff has not pled sufficientfacts as to any “despicable conduct” on the part of defendant Hunt,Ortmann, et al., in regard to plaintiff’s claims for breach of fiduciary dutyand for aiding and abetting.Moving party to give notice.

2 13-626738Carroll vs. Wells FargoBank1) Defendants Select Portfolio Servicing, Inc., Wells Fargo Bank, N.A.and Mortgage Electronic Registration Systems, Inc.’s Demurrer toPlaintiff Susan S. Carroll’s First Amended Complaint4 13-628597Advanced MedicalDiagnostics, LLC. vs.Liberty-Dayton RegionalM.C.1) Defendant Liberty-Dayton Regional Medical Center’s Motion to QuashService of Summons based on Lack of Jurisdiction or in the alternativeStay the Action based on Forum Non Conveniens5 12-561977Lee vs. H.H.KDevelopment, Inc.1) Defendant Heidi K. Robbins’ Motion to Set Aside entry of Defaultentered on January 15, 2013Grant. Defendant Robbins’ motion for set aside default on the ground ofattorney fault is GRANTED. See, C.C.P. § 473(b) and Vaccaro v. Kaiman(1998) 63 Cal.App.4 th 761, 770. Defendant Robbins is ordered to e-fileher proposed answer within 3 court days. Finally, attorney Chandler isordered to pay sanctions of $1,600.00 payable to plaintiff Lee and hercounsel of record for attorney time associated with obtaining the defaultand completing default prove-up package in this case. Sanctions arepayable within 30 days. See, C.C.P. § 473(b). Moving party to givenotice.CMC is set for 6/21/13 at 9:30am.6 09-312445Kim vs. N.R.L.L. East,LLC1) Plaintiff Priscilla Kim’s Motion to Amend Judgment to Add Alter EgoAuction.com as Judgment DebtorDeny. The motion to deem Auction.com and Auction.com, Inc. to bealter egos of the judgment debtor is DENIED. However, the Courtexpresses no opinion on whether or not Plaintiff will be able to bring aseparate action based on some other theory of liability. See e.g.,McClellan v. Northridge Park Townhome Owners Ass'n, Inc.(2001) 89 Cal.App.4th 746.Because the judgment in this case was a default judgment, the alter egotheory of liability cannot be used in this action. The responding partieswere under no duty to appear and defend; allowing alter ego liabilitywould be a denial of due process. Motores De Mexicali, S. A. v.Superior Court In and ForLos Angeles County (1958) 51 Cal.2d172; NEC Electronics, Inc. v. Hurt (1989) 208 Cal.App.3d 772.In addition, the Court notes the lack of sufficient admissible evidence insupport of the motion.R/p to give notice.7 12-615946Correia vs. Mission1) Defendant Mission Courts Maintenance Corporation’s Motion forAttorneys’ FeesGrant. The motion of Mission Courts Maintenance Corporation for

Courts MaintenanceCorporationattorney fees is GRANTED under CC 1354. Plaintiff Linda Correia is topay attorney fees of $5,525.25. As there is no opposition, no reply orhearing time is necessary. Defendant is to give notice and, if necessary,prepare a judgment.8 05CC11160Affan vs. Portofino CoveHomeowners Association9 12-618588Torres vs. Ford MotorCompany1) Plaintiffs Akil Affan and Cenan S. Affan’s Motion for Attorney Fees andCosts against Defendants Portofino Cove Homeowners Association1 & 2) Plaintiff Claudia Torres’ Motion to Compel Defendant Ford MotorCompany to Answer to Requests to Special Interrogatories and Requestsfor Admissions, Set One and Award for Monetary Sanctions3) Defendant Ford Motor Company’s Motion for Relief from Waiver ofObjections to First Sets of Special Interrogatories, Form Interrogatories,Requests for Admission and Requests for Production10 12-584877Iwamoto Family Trustvs. The Heathers SeniorCare, Inc.1) Plaintiffs Iwamoto Family Trust by and through Trustee WayneIwamoto, Gilbert S. Iwamoto Survivor’s Trust A, by and through TrusteeWayne Iwamoto, Wayne Iwamoto, David Iwamoto and Carol Brack’sMotion to Compel Defendant The Heathers- Pierce, LLC dba TheHeathers Pierce to Further Respond to Production of Documents, SetOne, numbers 4,5,8,11,12,17,191,20-27,29-37,39-50,53,54,56-61,68-73,75,76,79, and 822) Plaintiffs Iwamoto Family Trust by and through Trustee WayneIwamoto, Gilbert S. Iwamoto Survivor’s Trust A, by and through TrusteeWayne Iwamoto, Wayne Iwamoto, David Iwamoto and Carol Brack’sMotion to Compel Defendant The Heathers Senior Care, Inc. toFurther Respond to Production of Documents, Set One, numbers 2-6 &9-123) Plaintiffs Iwamoto Family Trust by and through Trustee WayneIwamoto, Gilbert S. Iwamoto Survivor’s Trust A, by and through TrusteeWayne Iwamoto, Wayne Iwamoto, David Iwamoto and Carol Brack’sMotion to Compel Defendant The Heathers- Pierce, LLC dba TheHeathers Pierce to Further Respond to Production of Documents, SetThree, numbers 1,3,5,7,9,11,13,15,17,19,21,23 and 254) Plaintiffs Iwamoto Family Trust by and through Trustee WayneIwamoto, Gilbert S. Iwamoto Survivor’s Trust A, by and through TrusteeWayne Iwamoto, Wayne Iwamoto, David Iwamoto and Carol Brack’sMotion to Compel Defendant The Heathers- Pierce, LLC dba TheHeathers Pierce to Further Respond to Production of Documents, SetFour, number 45) Plaintiffs Iwamoto Family Trust by and through Trustee WayneIwamoto, Gilbert S. Iwamoto Survivor’s Trust A, by and through TrusteeWayne Iwamoto, Wayne Iwamoto, David Iwamoto and Carol Brack’sMotion to Compel Defendant Heather Armbruster to Further Respondto Production of Documents, Set One, numbers 2-7,9,10-12 & 14-16All Motions Continued to 6/28/2013 at 2:00 pm in departmentC12 per telephonic request of M.P.

11 12-577733Crouch vs. TrinityChristian Center ofSanta Ana, Inc.1) Defendants Trinity Christian Center of Santa Ana, Inc., Jan Crouchand John B. Casoria’s Motion to Compel Non-Party Deponent, TawnyCrouch to Produce Personal Electronic Devices for Inspection andImaging2) Plaintiff Cara Crouch’s Motion for Sanctions against Defendants TrinityChristian Center of Santa Ana, Crouch & Casoria and Disqualification ofCounsel, Douglas Mahaffey, Michael King, Ted Nelson and Maria Caliguriand Revocation of Pro Hac ViceMotion #2 ONLY Continued to 7/19/2013, per stipulation andorder.3 & 4) Cross-Defendants Paul Crouch Jr., Tawny Crouch and BrandonCrouch’s Motion for Protective Order re: Deposition of Tawny Crouch andMotion to Quash Requests for Production of Documents, by Cross-Complainant Trinity Christian Center of Santa Ana, Inc. and Request forMonetary Sanctions against Cross-Complainant and its attorney of recordin the amount of $2,260.005) Plaintiff Carra Crouch’s Motion to Quash and/or for Protective OrderConcerning Deposition Subpoena for Personal Appearance andProduction of Documents and Things Addressed to Charles L. Richardsonand for Sanctions in the amount of $1,200.006) Defendant Trinity Christian Center of Santa Ana, Inc.’s Motion toStrike 2/26/2013 and 4/16/2013 Declarations of David R. Keesling andSupporting Declaration of Matthew Crouch and Supplemental Declarationof Ted Nelson, ESQ.7) Case Management Conference

JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYJune 21, 2013 at 2:00 PMTentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing, wheneverpossible. The rulings will also be posted outside the courtroom on the bulletin board by noon on the day of thescheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer to submit thematter on your papers without oral argument, advise all counsel first and then telephone the clerk at(657)622-5212. If the moving party has submitted the matter and there are no appearances by any party atthe hearing, the tentative ruling will be the final ruling. Unless otherwise indicated, the moving party shallprovide written notice of all rulings or prepare an Order for the court’s signature per CRC 3.1312. If no one hastelephoned the clerk to submit and there are no appearances by any party, the tentative will become the finalorder of the court.Department C12 has an assigned court reporter for all Law & Motion matters.Once the tentative ruling has been posted on the Internet, no supplemental papers may be filed andno continuances will be permitted.2 12-612973Allred vs. Barber1) Cross-Defendant Michele E. Barber’s Motion to Strike Punitive DamagesClaims from David Barber’s Cross-ComplaintGrant. Cross-Defendant Michele E. Barber’s Motion to Strike PunitiveDamages Claims from David Barber’s Cross-Complaint is granted. The CrossComplaint contains only broad allegations that Michele incurred debts,obligations, liabilities, and encumbrances against community propertyinterests. David’s vague contentions fail to meet the requirements for malice,fraud, or oppression to justify his claim. Further, David cites todistinguishable family law cases involving fraud, one addressing whethermotive need be pleaded. Here, David has failed to provide clear and concisefacts to support punitive damages claims, as required by CC§3294(c). Thealleged breach of fiduciary duty for which punitive damages are sought ispremised on fraud and should be plead with particularity.10 days leave to amend is granted.M/p to give notice.3 12-610184Carr vs. Bank of America1) Defendants Bank of America, N.A. and Recontrust Company’s Demurrer toPlaintiff Cynthia I. Carr’s Second Amended ComplaintOverrule in part and sustain in part. Defendants' Request for JudicialNotice is GRANTED.The court rules on the Demurrer to First Amended Complaint as follows:First Cause of Action: Violation of Business & Professions Code §17200:SUSTAINED without leave to amend. The allegations are insufficient to statewith particularity unfair, fraudulent or illegal activity. When given leave toamend, Plaintiff failed to make any significant effort to correct the defect.Second Cause of Action: Promissory Estoppel: OVERRULED.On the Demurrer to the First Cause of Action, the court previously overruled

the Demurrer to this cause of action. Since there were no changes in thiscause of action, this Demurrer is essentially a Motion forReconsideration. Defendants failed to comply with C.C.P. §1008.Third Cause of Action: False Advertising: SUSTAINED with 10 days leave toamend. Plaintiff has failed to state her claim with particularity, as required.Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4 th 612.Moving party to give notice.4 13-641914K Milan Construction, Inc.vs. Great AmericanChicken Corp., Inc.1) Defendant Great American Chicken Corporation Inc.’s Demurrer to PlaintiffK. Milan Construction, Inc. dba U.S. Builders and Maintenance’s ComplaintOverrule in part and sustain in part. Defendant’s Demurrers to the 1 st ,2 nd , 4 th , and 9 th causes of action of the Complaint are OVERRULED. Factssupporting the elements of each cause of action have been sufficiently allegedand none of the causes of action is uncertain. CCP §430.10(e), (f). Theallegations of the 1 st and 2 nd causes of action for breach of contract allegecontracts implied by conduct. CCP §430.10(g). The 4 th cause of action forgoods and services rendered is based on the 1 st and 2 nd which are adequatelypled.The 9 th cause of action for false promise is adequate. The “who-what-where”is said to be GAC’s COO Anthony Frazier on multiple occasions – a promise K.Milan would be awarded the 2013 Remodel Contract if it lowered the price ofthe 2012 Remodel Contract. [137-138] Under these facts, knowledge offalsity and the intent not to perform the promise may be inferred from theallegation that the reason for making the promise was to get a better deal onthe 2012 Remodel Contract. These allegations are specificenough. Beckwith v. Dahl (2012) 205 Cal.App. 4 th 1039, 1061Defendant’s Demurrer to the 3 rd cause of action for Unjust Enrichmentis SUSTAINED WITHOUT LEAVE TO AMEND. Authority in this appellatedistrict holds there is no cause of action for unjust enrichment. Levine v.Blue Shield of California (2010) 189 Cal.App.4 th 1117. Since a claim forunjust enrichment is synonymous with restitution, if this a remedy for anyother COA, the prayer may seek restitution.Defendant is to answer the remaining causes of action within 10 days.2) Defendant Yum Restaurant Services Group, Inc.’s Motion for OrderGranting Pro Hac Vice Application of David J. BradfordDeny. Attorney David J. Bradford’s Application for Admission Pro Hac Viceis DENIED, without prejudice.Notice of the Motion was insufficient. CCP §1005(b). No proof ofservice of the Application and supporting papers on the State Bar of Californiais established. No proof the required fee for admission isestablished. California Rule of Court Rule 9.40(e).Plaintiff to give notice.

5 12-575694Bertels vs. Mullins1) Defendant Brian Mullins’ Demurrer to Plaintiffs Todd Bertels and ChristineM. Bertels’ ComplaintOverrule. Defendant’s demurer is OVERRULED. Defendant has thirty daysto answer.The demurrer is premised on the theory that Plaintiffs are bringing aderivative action on behalf of SEIS. The complaint cannot be interpreted tobe an action on behalf of SEIS. Plaintiffs have sold all their interest inSEIS. It is clear that the only injury alleged is injury to Plaintiffs personally,i.e., the fact that they remain personally liable on the SEIS note and theirhome is encumbered by it. Even though the constructive trust cause ofaction seeks to have the SEIS note paid, this request is not made to benefitSEIS but to benefit Plaintiffs individually.2) Defendant Brian Mullins’ Motion to Strike Plaintiffs Todd Bertels andChristine M. Bertels’ ComplaintGrant. The motion to strike is GRANTED without leave to amend. There isno contractual right to attorney fees because the Transfer Agreement, Ex.D tothe complaint, has no attorney fee provision. The 2d cause of action does notattempt to plead either a contractual right or a statutory right to attorneyfees.The clerk is to give notice.6 13-631176Orange CountyTransportation Authorityvs. Zetterlund1) Cross-Defendant Orange County Transportation Authority’s Demurrer toCross-Complainant David Zetterlund’s Cross-ComplaintOverrule. The demurrer by cross-defendant Orange County TransportationAuthority (“OCTA”) to the cross-complaint for inverse condemnation ongrounds of failure to state and another action pending is overruled. The faceof the cross-complaint does not show that it seeks the same damages asthose damages cross-complainants are entitled to seek in their Answer to theComplaint for eminent domain.2) Cross-Defendant Orange County Transportation Authority’s Motion toStrike Cross-Complainant David Zetterlund’s Cross-ComplaintDeny. The motion by cross-defendant Orange County TransportationAuthority (“OCTA”) to strike portions of cross-complaint at: (1) paragraph 4,page 3, line 5; and (2) paragraph 7, page 3, lines 23-24, is denied.OCTA’s Answer to Cross-Complainant David Zetterlund’s Cross-Complaint tobe served and filed within 10 days. Counsel for cross-complainants to givenotice.9 13-622204Gordon vs. SilveradoSenior Living Escondido,Inc.1) Defendant Palomar Medical Center’s Motion for Change of Venue to theSuperior Court of the State of California for the County of San DiegoGrant, see below.2) Defendant Bruce Lasker, M.D.’s Joinder in Defendant Palomar MedicalCenter’s Motion for Change of Venue to the Superior Court of the State ofCalifornia for the County of San Diego3) Defendant Silverado Senior Living Escondido, Inc. dba Silverado SeniorLiving – Escondido’s Joinder in Defendant Palomar Medical Center’s Motion

for Change of Venue to the Superior Court of the State of California for theCounty of San Diego4) Defendant Silverado Senior Living Escondido, Inc. dba Silverado SeniorLiving – Escondido’s Motion for Change of Venue to the Superior Court of theState of California for the County of San Diego5) Defendant Beverly Brito’s Joinder in Defendants Palomar Medical Center,Bruce Lasker, MD and Silverado Senior Living- Escondido’s Motion for Changeof Venue to the Superior Court of the State of California for the County of SanDiego and request for sanctions6) Defendant Beverly Brito’s Motion for Change of Venue to the SuperiorCourt of the State of California for the County of San Diego and request forsanctionsGrant. The Motions of defendants Palomar Medical Center, Silverado SeniorLiving Escondido, Inc. and Beverly Brito to Change Venue to San DiegoSuperior Court, Northern District are granted. The joinders of SilveradoSenior Living Escondido, Inc. and Beverly Brito are granted. Plaintiffconcedes that transfer is required.The motion of Dr. Lasker is DENIED because the Court is unable to find aproof of service for the motion. However, his motion is not necessary tosupport the transfer.Beverly Brito’s motion for sanctions is DENIED; it was wholly unnecessary forher to incur the fees. At the time she filed her motion, there were alreadythree meritorious motions to transfer venue. Transfer is mandatory underCCP §394(a) because Palomar Medical Center is a public agency.Plaintiff is responsible for transfer fees. CCP §399.M/p Palomar Medical Center is to give notice.13 12-552619Kantzavelos vs. BusinessAlliance Insurance1) Defendant Business Alliance Insurance Company’s Motion for SummaryJudgment of the Cause of Action for Bad Faith (or Breach of the ImpliedCovenant of Good Faith and Fair Dealing) and/or the Claim for PunitiveDamages set Forth in the Plaintiffs George Kantzavelos dba Olympic FlameBurgers14 12-564933Liang vs. LevyConsolidated: 12-565052; AutomotiveRemarketing Exchange,LLC. vs. Levy1) Plaintiff Huey Jiuan Liang’s Motion for Leave to Amend the Complaint toadd a Fraudulent Concealment Cause of Action against Defendants BenjaminBerger and Berger Harrison, APCGrant. The Motion for Leave to Amend the Complaint is granted. Theproposed Third Amended Complaint (Exhibit 5) is deemed filed andserved. Defendants shall respond to the Third Amended Complaint withinfifteen (15) days.

In order to avoid prejudice as a result of the amendment, the trial will becontinued for 90 to 120 days. The new trial date will be treated as the“initial trial date” for purposes of discovery and experts. The Court proposes11/4/13 or 12/2/13.Plaintiff to give notice.15 12-618588Torres vs. Ford MotorCompany1 & 2) Plaintiff Claudia Torres’ Motion to Compel Defendant Ford MotorCompany to Answer to Requests to Special Interrogatories and Requests forAdmissions, Set One and Award for Monetary Sanctions3) Defendant Ford Motor Company’s Motion for Relief from Waiver ofObjections to First Sets of Special Interrogatories, Form Interrogatories,Requests for Admission and Requests for ProductionGrant. Defendant’s request for relief from waiver of objections is GRANTEDunder CCP §2030.290(a) and §2033.280(a). Plaintiff’s motion to compelresponses to interrogatories and admission requests is OFF CALENDAR; nosanctions will be awarded.Defendant has shown that its untimely responses were the result if mistake,advertence and excusable neglect of counsel, resulting from an inordinatelyheavy influx of cases which led to failure of staff to calendar the responsedate and ignorance of counsel that the discovery had been served. Mr. Linacted promptly to provide the discovery, serving responses less than 30 daysafter learning that the discovery existed and before the motion for relief wasfiled. Plaintiff makes no attempt to show that they were deficient.Furthermore, Mr. Lin kept Plaintiff’s counsel informed of the status of theattempts to obtain responses and the reason for delay, i.e., the need toobtain client approval of the responses. Given that trial isn’t until Decemberand given that Defendant is a large company with over 50 cases beingdefended by Sanders Roberts LLP alone, the delay in obtaining client approvaland verifications should have been accommodated.There is no attempt to show that Plaintiff was prejudiced by delay in receivingthe verified discovery. The Court notes that, unlike Appleton v. SuperiorCourt (1998) 206 Cal.App.3d 632, there were not several fruitless attemptsto get verifications once the unverified response were received; theverification issue was merely raised in opposition to the motion for relief.Taking the motion to compel off calendar without consideration of whetherthe responses are sufficient is an option the Court has under SinaikoHealthcare Consulting Inc. v. Pacific Healthcare Consultants (2007)148 Cal.App.4th 390, 396.The Court will not award sanctions for the motion to compel. Thecommunications of the parties leads the Court to conclude that the motionwas not a bona fide attempt to obtain discovery to which Plaintiff wasentitled, but was filed solely to obtain a court ruling that objections had beenwaived. In addition, claiming over $6,000 for a simple motion to compel isoverreaching.Defendant is to give notice.

JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYJune 28, 2013 at 2:00 PMTentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing, wheneverpossible. The rulings will also be posted outside the courtroom on the bulletin board by noon on the day of thescheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer to submit thematter on your papers without oral argument, advise all counsel first and then telephone the clerk at(657)622-5212. If the moving party has submitted the matter and there are no appearances by any party atthe hearing, the tentative ruling will be the final ruling. Unless otherwise indicated, the moving party shallprovide written notice of all rulings or prepare an Order for the court’s signature per CRC 3.1312. If no one hastelephoned the clerk to submit and there are no appearances by any party, the tentative will become the finalorder of the court.Department C12 has an assigned court reporter for all Law & Motion matters.Once the tentative ruling has been posted on the Internet, no supplemental papers may be filed andno continuances will be permitted.1 13-638278Jackson vs. KloecknerMetals Corporation1) Defendant Kloeckner Metals Corporation’s Motion for Out-of-State Counselto Associate Pro Hac Vice with Local Counsel for Defendant Kloeckner MetalsDeny. The motion of Defendant Kloeckner Metals Corporation for an ordergranting the applications of “out of state counsel” to appear pro hac vice isDENIED without prejudice.The motion is brought under former CRC 983, not the current rule,CRC 9.40. The declarations only address prior pro hac vice appearances inCalifornia, not whether the applicants are otherwise regularly employed orengaged in business, professional or other activities here. See Rule9.40(a)(2) & (3).Also, it is unclear that the Louisiana state bar is the only bar to which theattorneys are admitted.In addition, Mr. Moorhead’s declaration is unclear as to whether the State Barfees have been paid for both applicants as it states “the fee” (singular) hasbeen paid.Defendant should file a separate motion for each attorney and notices ofmotion should clearly state who Defendant is seeking to have admitted prohac vice.M/p to give notice.2 12-548712Conn vs. Rubio1) Plaintiff Tim Lee Conn’s Motion to Set Aside Dismissal and Return Case tothe Civil Active CalendarGrant. Plaintiff Tim Lee Conn’s Motion to Set Aside Dismissal and ReturnCase to the Civil Active Calendaris granted. No opposition was filed. The Court orders the dismissal of theentire action dated 3-21-13 set aside. The case is returned to the civil activelist. The Court sets an OSC re dismissal as to defendant Esther Rubio and

also a CMC for 7-17-13 at 9 am in C12. Plaintiff is to prepare the order andto give notice.3 13-630782Ice vs. Wells Fargo Bank1) Defendants Wells Fargo Bank, N.A., successor by merger with Wells FargoBank Southwest, N.A., f/k/a Wachovia Mortgage, FSB, f/k/a World SavingsBank, FSB (sued as Wells Fargo Bank, National Association; Wells FargoHome Mortgage) Demurrer to Plaintiff Hye Cha Ice’s First Amended ComplaintSustain. The Demurrer to the Frist Amended Complaint is SUSTAINEDwithout leave to amend as to these five causes of action.The First Cause of Action for Negligence fails to state a cause of action,because Defendant had no duty of care owed to Plaintiff. “‘Liability to aborrower for negligence arises only when the lender 'actively participates' inthe financed enterprise 'beyond the domain of the usual money lender.' ”Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089,1096.The Second Cause of Action for Fraud fails to state a cause of action, becauseDefendant did not misrepresent an existing or past fact. “[A]n actionablemisrepresentation must be made about past or existing facts; statementsregarding future events are merely deemed opinions.” San Francisco DesignCenter Associates v. Portman Companies (1995) 41 Cal.App.4th 29, 44.The Third Cause of Action for Violation of Rosenthal Fair Debt CollectionPractices Act fails to state a cause of action, because Defendant was a debtcollector as defined by the statutes. “[F]oreclosing on [a] property pursuantto a deed of trust is not the collection of a debt within the meaning of theFDCPA.” Izenberg v. ETS Services, LLC 589 F.Supp.2d 1193,1199 (C.D.Cal.,2008).The Fourth Cause of Action for Conversion fails to state a cause of action,because Defendant did not convert property by “wrongful act or disposition ofproperty rights. . . .” Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066.The Fifth Cause of Action for Violation of Business and Professions Code17200 fails to state a cause of action, because this cause of action merelyincorporated the prior defective causes of action. “A plaintiff alleging unfairbusiness practices under these statutes must state with reasonableparticularity the facts supporting the statutory elements of the violation.”Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.The court takes Judicial Notice of both Requests, but the court does not takejudicial notice of the truth of the contents of the documents. “Takentogether, the decisions discussed above establish that a court may takejudicial notice of the fact of a document's recordation, the date the documentwas recorded and executed, the parties to the transaction reflected in arecorded document, and the document's legally operative language, assumingthere is no genuine dispute regarding the document's authenticity.” Fontenotv. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 266.Essentially, this case appears to be for Breach of Contract. The parties aredisputing how much is owed on the home equity line of credit. Apparently,the amount in controversy is less than $2,000.00. Therefore, the courtgrants leave to amend on this single cause of action. The parties encouragedto resolve the matter via binding arbitration.M/p to give notice.

4 13-636828Mendez vs. Sham1) Plaintiff Mireya Cabanas Mendez’s Demurrer to Defendants KalapanaSham, OM America LLC, OM America LLC dba PM Gas & Mini Mart’s AnswerSustain in part and overrule in part. Plaintiff’s demurrer to defendant’sanswer is sustained without leave as to the 6 th , 11 th and 12 th affirmativedefenses; as to the 1 st -3 rd , 5 th -9 th , and 13 th defenses, overrule: as to the 4 th ,10 th , and14 th -17 th , sustain with 15 days leave to amend.M/p to give notice.5 13-644961Walker vs. Parilla &Ettinger, LLP1) Defendants Parilla & Ettinger, LLP’s Demurrer to the Cause of Action forBreach of Fiduciary Duty of Plaintiff Stephen G. Walker’s ComplaintOverrule. Defendants Parilla & Ettinger, LLP’s Demurrer to the Cause ofAction for Breach of Fiduciary Duty of Plaintiff Stephen G. Walker’s Complaintis overruled. Allegations of a breach of fiduciary have been adequatelyalleged.Defendants’ Request for Judicial Notice is grated to the extent of theirexistence but not the truth or interpretation of any matters statedtherein. Party City Corp. v. Superior Court (2008) 169 Cal App 4 th 497.2) Defendants Parilla & Ettinger, LLP’s Motion to Strike Portions of PlaintiffStephen G. Walker’s ComplaintDeny. Defendants Parilla & Ettinger, LLP’s Motion to Strike Portions ofPlaintiff Stephen G. Walker’s Complaint is denied. Allegations supporting theexistence of an offer are sufficient. A breach of fiduciary duty supports aclaim for punitive damages if facts showing a willful failure to avoid knownconsequences of inaction are established. American Airlines, Inc. v.Sheppard Mullin et al (2002) 96 Cal App 4 th 1017. This is alleged here.Defendants are to Answer within 10 days.Defendants are to give notice within 5 days of this hearing.6 12-607656Igo vs. Little1) Cross-Defendants Jodi S. Igo, an individual and as Representative of TheClelah Mae Little 2012 Separate Property Trust, Estate of Clelah Mae Little’sDemurrer to Cross-Complainant Sidney Bernard Little’s Cross-ComplaintSustain. The demurrer by cross-defendants Igo and Igo Trustee isSUSTAINED with leave to amend. See, C.C.P. § 430.10(b). Cross-complainantSidney Bernard Little is an incompetent adult and thus lacks capacity to sue.See, C.C.P. § 372. Cross-complainant is granted 60 days leave to amend tofirst seek leave to have a guardian appointed under the procedures discussedin In re Jessica G. (2001) 93 Cal.App.4 th 1180 as to appointment of aguardian for an incompetent adult. Moving party to give notice.Evidentiary Objections by Cross-Defendants Igo and Igo Trustee:Cross-complainant’s counsel submitted a declaration in support of theopposition by cross-complainant Sidney Bernard Little. A demurrer is limitedto the face of the complaint and items subject to judicial notice. See, Blank v.Kirwan (1985) 39 Cal.3d 311, 318. The court has not considered thedeclaration of attorney Steven A. Ehrlich in support of cross-complainant’sopposition. Therefore the evidentiary objections to the declaration of attorneyEhrlich are moot since his declaration has not been considered.Cross-Defendant Igo and Igo Trustee’s Request for Judicial Notice:Cross-defendants Igo and Igo Trustee requested that the court take judicialnotice of the following documents: Request No. 1, Exhibit A, Declaration ofRobert E. Naghash in Opposition to Petition to Compel Trustee to ProduceDocuments, Request No. 2, Exhibit 1 to Declaration of Robert E. Naghash,Request No. 3, Exhibit C, Petition for Appointment of Conservator in Probate

Case No. 30-2012-00598756-PR-CP-LJC, Request No. 4, Exhibit C, OrderAppointing Temporary Conservator, Request No. 5, Letters of TemporaryConservatorship issued on 12-30-12, and Request No. 6, Copy of PremaritalProperty Agreement attached as Exhibit A to First Amended Complaint.GRANTED as to Request Nos. 1, 2, 3, 4, 5 and 6, but as to Exhibits 1, 2, 3,and 6 such notice is limited to the filing of these pleadings and not as to thetruth of any claims or contentions set forth therein. See, Evidence Code §452(d) and Day v. Sharp (1975) 50 Cal.App.3d 904, 914.Cross-Defendant Igo and Igo Trustee’s Request for Judicial Notice inSupport of Reply: Cross-Defendant Igo and Igo Trustee’s requested that thecourt take judicial notice of the following matters: Request 7, the matter of Inre Clelah Mae 2012 Separate Property Trust, O.C.S.C. Case No. 30-2013-00626350 is now pending before the Probate Division of the CaliforniaSuperior Court, Request No. 8, this Trust Action is on Appeal, and RequestNo. 9, this Trust Action is the same trust that is the subject matter of theFourth Action in the Cross-Complaint. DENY as to Request Nos. 7, 8 and 9 asno documents have been submitted as to the claimed probate action or anyappeal therein. See, Rules 3.1113(m) and2) Cross-Defendants Jodi S. Igo, an individual and as Representative of TheClelah Mae Little 2012 Separate Property Trust, Estate of Clelah Mae Little’sMotion to Strike Portions of Cross-Complainant Sidney Bernard Little’s CrosscomplaintMoot. Cross-defendants’ motion to strike cross-complainant Sidney BernardLittle’s claims for punitive damages is MOOT because cross-defendants’demurrer to all of the cross-claims by cross-complainant Sidney Bernard Littlehave been sustained.Moving party to give notice.7 13-626753College Park Realty, Inc.vs. Waddle1) Cross-Defendant College Park Realty, Inc.’s Demurrer to Cross-Complainant Bill Waddle’s Cross-ComplaintSustain in part and overrule in part. Cross-Defendant College ParkRealty, Inc.’s Demurrer to Cross-Complainant Bill Waddle’s Cross-Complaint is sustained in part and overruled in part.The First Cause of Action for Breach of Contract fails, because Waddle failedto allege the proper basis for delayed discovery of the cause of action. Hemust allege “‘(1) the time and manner of discovery and (2) the inability tohave made earlier discovery despite reasonable diligence.’ ”Czajkowski v.Haskell & White, LLP (2012) 208 Cal.App.4th 166, 175. The Demurrer isSUSTAINED with leave to amend.The Second Cause of Action for Breach of the Covenant of Good Faith andFair Dealing failed, because “‘The implied covenant of good faith and fairdealing is limited to assuring compliance with the express terms of thecontract, and cannot be extended to create obligations not contemplated bythe contract.’ ” Spinks v. Equity Residential Briarwood Apartments (2009) 171Cal.App.4th 1004, 1034. The Demurrer is SUSTAINED without leave toamend.The Third Cause of Action for Fraud & Deceit, Fourth Cause of Action forConcealment & Fifth Cause of Action for Intentional Misrepresentation failed,because “In California, fraud must be pled specifically; general andconclusory allegations do not suffice. . . . A plaintiff's burden in asserting afraud claim against a corporate employer is even greater. In such a case, theplaintiff must “allege the names of the persons who made the allegedlyfraudulent representations, their authority to speak, to whom they spoke,what they said or wrote, and when it was said or written.” Lazar v. SuperiorCourt (1996) 12 Cal.4th 631, 645. The Demurrer is SUSTAINED with leave to

amend.The Sixth Cause of Action for Unjust Enrichment fails, because “[T]here is nocause of action in California for unjust enrichment.” Durell v. SharpHealthcare (2010) 183 Cal.App.4th 1350, 1370. The Demurrer is SUSTAINEDwithout leave to amend.The Seventh Cause of Action for Accounting is OVERRULED. “A cause ofaction for an accounting requires a showing that a relationship exists betweenthe plaintiff and defendant that requires an accounting, and that somebalance is due the plaintiff that can only be ascertained by anaccounting.” Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872,910.Cross-complainant Waddle shall file a First Amended Cross-complaint withinfourteen (14) days.2) Cross-Defendant College Park Realty, Inc.’s Motion to Strike Portions ofCross-Complainant Bill Waddle’s Cross-ComplaintThe Motion to Strike is moot in light of the ruling on the Demurrer.M/p to give notice.8 12-619154Noory vs. SorensenConsolidated: 12-614795; IRA ResourceInc. FBO Barbara Barskyvs. Noory1) Defendants IRA Resources, Inc. FBO Barbara Barsky, IRA Barbara Barskyand Pacific Coast Title’s Demurrer to Plaintiffs Frishta Noory and ManagementResources Group’s First Amended ComplaintAmended Tentative on 6-27 at 1:55pm: In light of the declaration ofPlaintiff’s counsel e-filed after court hours on 6-26 after this tentative wasposted, the Court invites counsel to appear and argue why the declarationshould be considered and also whether leave to amend should begranted. No modifications have been made to the original tentative set outbelow.Sustain. Judicial notice is GRANTED.The Barsky defendants’ demurrer to Ms. Noory’s 1st Amended Complaint isSUSTAINED without leave to amend. Their demurrer to the complaint ofManagement Resources Group [MRG] is SUSTAINED with leave to amend asto the 2d cause of action. It is SUSTAINED without leave to amend as to the1st, 3d and 4th causes of action.Pacific Coast Title’s demurrer to the entire complaint is SUSTAINED withoutleave to amend.Judicial notice is taken of admissions in the bankruptcy documents and theCalifornia Secretary of State certificate, which have been properlyauthenticated by filing certified copies. No objection to their authenticationhas been raised. The Court will take judicial notice of Ms. Noory’sadmissions in the bankruptcy documents that she filed under penalty ofperjury as agent for MRG; allegations that contradict these admissions will bedisregarded. Del E. Webb Corp. v. Structural Materials Co. (1981) 123Cal.App.3d 593, 604-605.For the most part, the allegations of the amended complaint are unchanged,despite the Court’s ruling that no operative facts had been stated and itsinstruction to plead them in clear and plain language. Therefore, except forthe one claim of inadvertence, the Court presumes that Plaintiffs have statedall the facts upon which their claims are based as strongly as possible andfurther leave to amend will be denied if the allegations are stillinsufficient. Logan v. Southern Cal. Rapid Transit Dist. (1982) 136Cal.App.3d 116, 127; Green v. Travelers Indemnity Co. (1986) 185Cal.App.3d 544, 556.

Ms. Noory: The documents attached to the complaint, particularly Exs. H & I,show that the only party with an interest in the property is MRG. Ms. Nooryhas not responded to the demurrer as an individual or shown how she canamend to state a claim in her own name.Pacific Coast Title: Plaintiffs make no attempt to explain why they have suedthis entity or to respond to its demurrer.1st cause of action: Quiet title: MRG alleges defects in its own chain of titleand has not complied with the Court’s order to explain the factual basis of itsclaim. In addition, it contends that the cause of action is based on defects inthe foreclosure process but no operative facts were pled explaining why thesale was improper. Even if it was improper, MRG has no right to quiet title initself, free of the encumbrance. At most it has a claim of wrongfulforeclosure.2d cause of action: Cancellation of instruments. MRG admits that thecomplaint is defective. The Court will grant leave to amend but MRG’sproposed amendment is insufficient. Given MRG’s admissions in bankruptcy,it cannot base a claim on any defect in the deed of trust. In addition, as tothe Notice of Default, it is not enough to allege that Action ForeclosureServices [Action] was not the proper trustee, because CC §2924(b)(6)permits notice to be given by an agent of the beneficiary.It is possible that a claim for wrongful foreclosure may be stated as Actionclaimed to be the foreclosing trustee in the Notice of Trustee’s sale and theTrustee’s deed and Plaintiff alleges that it was not. However, Plaintiff willhave to allege an actual tender of payment or be prepared to provideauthority that a tender is not required. See Abdallah v. United SavingsBank (1996) 43 Cal.App.4th 1101, 1109.3d cause of action: Usury. MRG is not a person; nevertheless, it claimsrights under Cal. Const. Art. 15, §1. However, §1 applies to loans made forpersonal, family or household purposes and expressly excludes loans madefor purchase or improvement of real property. It is not possible to amendthis cause of action to state a claim under this provision.4th cause of action: Rescission. MRG alleges no wrongdoing in connectionwith the loan and admits that the loan was made. Also, it admitted inbankruptcy that the debt was undisputed. In violation of this Court’s order,MRG alleges no factual basis whatsoever for its claims of fraud andunconscionability.Plaintiff has not obeyed the Court’s order to eliminate footnotes. The Courtstrikes all footnotes sua sponte.MRG is given 15 days to amend to allege a single cause of action for wrongfulforeclosure. All allegations unrelated to this claim are to be eliminated,including all claims attacking the underlying transaction. All claims of Ms.Noory and all claims against Pacific Coast Title are to beeliminated. Footnotes may not be used. Failure to follow the Court’sdirections again will result in the next demurrer being sustained without leaveto amend.Defendants are to give notice.2) Defendants IRA Resources, Inc. FBO Barbara Barsky, IRA Barbara Barskyand Pacific Coast Title’s Motion for Sanctions against Plaintiffs Frista Nooryand Management Resources Group, Inc. and their Attorney of RecordContinue. The motion is continued to August 30, 2013 at 2pm, to be heard

with Defendant’s next demurrer, if there is one. If the complaint is dismissedas to the moving parties or Ms. Norry, or if there is no further demurrer, thismotion will nevertheless remain on calendar. If the complaint is dismissed inits entirety as to the moving parties, the Court will award all the requestedsanctions without the need for further briefing or motion.If the complaint survives the next demurrer, the Court will award sanctionsattributable to the demurrer being heard this day and to at least a part of thecost of the motion. The Court will also award sanctions attributable to atleast part of the costs of the original demurrer as it relates to the causes ofaction dismissed this day.Plaintiffs failed to amend the complaint in accordance with this Court’s order,necessitating a duplicative demurrer. Plaintiffs continue to evade judicialreview by failing to plead the facts they depend on in plain, clearlanguage. Defendants have shown the allegations that they never providedthe subject loan are false and were known by Plaintiff to be false at the timethey were made.Defendants have also shown that Ms. Noory has no standing to sue as anindividual. Plaintiffs have failed to articulate the factual basis of any claimagainst Pacific Coast Title.Defendants have leave to serve and subsequently file an additional §127.8motion to seek recover the costs of the next demurrer and the secondmotion.To show that MRG’s wrongful foreclosure claim is viable, MRG must presentevidence of its ability to tender payment of the required amount. Abdallahv. United Savings Bank (1996) 43 Cal.App.4th 1101.No later than 15 court days prior to the hearing, MRG is to file a supplementalbrief of not more than 5 pages (not counting evidence) with citations toauthority that permit it to file suit in California despite its suspension in thatstate. It must provide evidence to show that its transfer to Wyoming was notdone to avoid paying California taxes. Alternately, MRG may presentevidence that is has reinstated its California standing or is in the process ofdoing so. If the latter, MRG must show why it has not been able to reinstatewithin the 60 days that this continuance provides. The evidence of its abilityto tender must be provided at the same time.Defendants may reply no later than 7 court days before the hearing in asupplemental brief of not more than five pages (not counting evidence). Nosur-reply is permitted.Defendants are to give notice.9 11-501359Koshak vs. Leventhal1) Plaintiff Norman Koshak’s Motion to Vacate and Set Aside Order AwardingDefendant Neil H. Leventhal’s Attorneys Fees of March 8, 2013Deny. Plaintiff’s motion to vacate the Court’s attorney fee award isdenied. The motion is a motion for reconsideration because it asks the Courtto modify, amend, or revoke the prior order. CCP §1008(a).Judgment was entered on 5/30/13 and notice of entry of judgment wasserved on 6/4/13. This Court has lost jurisdiction to modify its priorruling. APRI Ins. Co. v. Superior Court (Schatteman) (1999) 76Cal.App.4th 176, 181-182.In addition, the motion is moot. The Court considered Plaintiff’s contentions

egarding the bankruptcy stay in connection with his motion to tax costs andrejected them on 5/17/13.Defendants' claim for attorney fees is denied. In 1998, the legislatureamended §1008(d) to state that sanctions are to be brought in accordance w/§128.7. To get sanctions, Defendants had to serve (but not file) a separatemotion for sanctions and give Plaintiff time to withdraw thismotion. CCP §128.7(c)(1).R/p to give notice.10 12-586190Iguchi vs. Sanyo FoodsCorporation of America1) Defendant Sanyo Foods Corporation of America’s Motion for SummaryJudgment, or in the alterative, Summary AdjudicationDeny in part and Grant in part. Defendant Sanyo’s motion for summaryjudgment, and motion for summary adjudication as to plaintiff Iguchi’s firstcause of action for discrimination based on disability, second cause of actionfor failure to prevent discrimination, and third cause of action for wrongfultermination in violation of public policy, is DENIED.Plaintiff Iguchi carried his initial burden of establishing a prima facie case ofdiscrimination as plaintiff Iguchi has a physical disability after a work relatedaccident, plaintiff Iguchi was promoted to assistant manager in 2010 despitethe various events in 2009, plaintiff was terminated, and there arecircumstances surrounding his return to work and Mr. Morikawa’s responsesto his return that satisfy plaintiff’s initial burden.Next, defendant Sanyo met its burden of presenting evidence of a legitimate,non-discriminatory business reason for plaintiff Iguchi’s termination based ona claim lack of attentiveness to safety that could have caused an injury toanother mechanic at the plant. [See, Defendant Sanyo’s UMF Nos. 43, 44, 45,46, 47 and 48.]The burden thus shifted back to plaintiff Iguchi to present evidence to createtriable issues of material fact as to pretext. See, Guz v. Bechtel (2000) 24Cal.4 th 317, 354 to 356. Plaintiff Iguchi has presented sufficient evidence tocreate triable issues of material fact as to pretext. [See, Plaintiff’s Responseto Defendant Sanyo’s UMF Nos. 40, 41 and 42 and Plaintiff’s Add’l UMF Nos.121, 122, 123, 125, 126 and 132.] Plaintiff Iguchi presented evidence thathis duties and hours changed, that Mr. Morikawa’s attitudes toward himchanged, that plaintiff was initially not permitted to return to work by Mr.Morikawa in late April/early May, that plaintiff’s position was advertised to befilled, that Mr. Morikawa contacted plaintiff Iguchi while he was out ondisability asking him not to sue, and that plaintiff Iguchi denies that he turnedon the machine with a mechanic inside that is the primary basis for defendantSanyo’s termination of plaintiff.In addition, plaintiff Iguchi’s first cause of action for discrimination alsoasserted a claim for failure to engage in the interactive process and providereasonable accommodations. (See, Complaint, 17.) In Jensen v. WellsFargo Bank (2000) 85 Cal.App.4 th 245, the Jensen court explained that onsummary judgment involving such claims, a defendant must establishthrough “…undisputed facts that (1) reasonable accommodation was offeredand refused; (2) there simply was no vacant position within the employer'sorganization for which the disabled employee was qualified and which thedisabled employee was capable of performing with or withoutaccommodation; or (3) the employer did everything in its power to find areasonable accommodation, but the informal interactive process broke downbecause the employee failed to engage in discussions in good faith.” Id., at262 to 263. No such evidence has been submitted by defendant Sanyo.Hence, defendant Sanyo failed to meet its burden on plaintiff Iguchi’s claimfor failure to engage in the interactive process and to provide reasonable

accommodations.As to plaintiff’s second cause of action for failure to prevent discriminationand third cause of action for wrongful termination in violation of public policy,the same triable issues of material fact as to discrimination are applicable tothese two causes of action also. Similarly, the claims of failure to engage inthe interactive process and failure to provide reasonable accommodations inviolation of FEHA will support plaintiff Iguchi’s third cause of action forwrongful termination.Defendant Sanyo’s motion for summary adjudication as to plaintiff Iguchi’sfourth cause of action for wrongful termination/negligence is GRANTED.First, plaintiff Iguchi has not properly pled a cause of action for violation ofLabor Code § 4558. The pleadings determine the scope of the relevant issuesthat may be summarily adjudicated. See, Hutton v. Fidelity Nat’l Title Co.(2013) 213 Cal.App.4 th 486, 493. Second, even assuming plaintiff Iguchi hassufficiently pled a cause of action for violation of Labor Code § 4558, theevidence is the noodle cutting machine with blades that caused plaintiff’swork related injury is not a power press machine within the meaning of LaborCode § 4558. As the Graham and McCoy court explained, the power pressexception is limited to machines with a die that is formed or cut to create animage of the die. See, Graham v. Hopkins (1993) 13 Cal.App.4 th 1483, 1486and McCoy v. Zahniser Graphics, Inc. (1995) 39 Cal.App.4 th 107, 111. Also,Labor Code § 132(a) will not support a claim for wrongful termination inviolation of public policy. See, Dutra v. Mercy Medical Center Mt. Shasta(2012) 209 Cal.App.4 th 750, 756.No cause of action for wrongful termination/negligence can be based on aviolation of Labor Code § 132(a). Also, plaintiff has not established a fact tocreate a triable issue of material fact that the power press exception set forthat Labor Code § 4558 is applicable. Absent some exception, a work-relatedinjury as plaintiff Iguchi has alleged is pre-empted by workers’ compensation.See, Labor Code § 3602 and Weber v. United Parcel Service (2003) 107Cal.App.4 th 801, 806.Moving party to give notice.Plaintiff Iguchi’s Evidentiary Objections: Plaintiff Iguchi objected todefendant Sanyo’s separate statement rather than the evidence. Rule 3.1354provides that objections should be declaration, deposition testimony and/orexhibits relied upon, not the separate statement. See, Rule 3.1354(b). Also,plaintiff Iguchi’s objections failed to comply with Rule 3.1354(b). Thusplaintiff Iguchi’s evidentiary objections to defendant Sanyo’s separatestatement are overruled.Plaintiff Iguchi’s Evidentiary Objections: Plaintiff Iguchi objected todefendant Sanyo’s separate statement rather than the evidence. Rule 3.1354provides that objections should be declaration, deposition testimony and/orexhibits relied upon, not the separate statement. See, Rule 3.1354(b). Also,plaintiff Iguchi’s objections failed to comply with Rule 3.1354(b). Thusplaintiff Iguchi’s evidentiary objections to defendant Sanyo’s separatestatement are overruled.Defendant Sanyo’s Evidentiary Objections: Declaration of AttorneyJaneen Carlberg: SUSTAIN as to Objection No. 1. Declaration of SoichiIguchi: OVERRULED as to Objection No. 2 as to plaintiff Iguchi’s entiredeclaration. First, the declaration is e-filed and has a “/s/ “ at the signatureline for plaintiff. Second, Rule 2.257(a) provides that: “When a document tobe filed electronically provides for signature under penalty of perjury, thefollowing applies: (1) The document is deemed signed by the declarant if,before filing, the declarant has signed a printed form of the document.” After

such filing, any party may serve a demand for production of the originalsigned document, and the party submitting the declaration must, within 5days of service, make the original available for inspection and copying. See,Rule 2.257(a)(3) and (a)(4), and Rutter, Civil Procedure Before Trial, Section9:94.10. Defendant Sanyo should proceed in compliance with Rule 2.257 if ithas questions about the original signed declaration by plaintiff Iguchi.OVERRULED as to Objection Nos. 5, 7, 8, 9, 10, 11, 13, 14, 16, 18 and 20.SUSTAINED as to Objection Nos. 3, 4, 6, 12, 15, 17 and 19.13 12-584877Iwamoto Family Trust vs.The Heathers Senior Care,Inc.1) Plaintiffs Iwamoto Family Trust by and through Trustee Wayne Iwamoto,Gilbert S. Iwamoto Survivor’s Trust A, by and through Trustee WayneIwamoto, Wayne Iwamoto, David Iwamoto and Carol Brack’s Motion toCompel Defendant The Heathers- Pierce, LLC dba The Heathers Pierceto Further Respond to Production of Documents, Set One, numbers4,5,8,11,12,17,191,20-27,29-37,39-50,53,54,56-61,68-73,75,76,79, and 822) Plaintiffs Iwamoto Family Trust by and through Trustee Wayne Iwamoto,Gilbert S. Iwamoto Survivor’s Trust A, by and through Trustee WayneIwamoto, Wayne Iwamoto, David Iwamoto and Carol Brack’s Motion toCompel Defendant The Heathers Senior Care, Inc. to Further Respond toProduction of Documents, Set One, numbers 2-6 & 9-123) Plaintiffs Iwamoto Family Trust by and through Trustee Wayne Iwamoto,Gilbert S. Iwamoto Survivor’s Trust A, by and through Trustee WayneIwamoto, Wayne Iwamoto, David Iwamoto and Carol Brack’s Motion toCompel Defendant The Heathers- Pierce, LLC dba The Heathers Pierceto Further Respond to Production of Documents, Set Three, numbers1,3,5,7,9,11,13,15,17,19,21,23 and 254) Plaintiffs Iwamoto Family Trust by and through Trustee Wayne Iwamoto,Gilbert S. Iwamoto Survivor’s Trust A, by and through Trustee WayneIwamoto, Wayne Iwamoto, David Iwamoto and Carol Brack’s Motion toCompel Defendant The Heathers- Pierce, LLC dba The Heathers Pierceto Further Respond to Production of Documents, Set Four, number 45) Plaintiffs Iwamoto Family Trust by and through Trustee Wayne Iwamoto,Gilbert S. Iwamoto Survivor’s Trust A, by and through Trustee WayneIwamoto, Wayne Iwamoto, David Iwamoto and Carol Brack’s Motion toCompel Defendant Heather Armbruster to Further Respond to Production ofDocuments, Set One, numbers 2-7,9,10-12 & 14-16All motions are off calendar per telephonic request of Moving Party.14 12-577733Crouch vs. TrinityChristian Center of SantaAna, Inc.1) Defendant Trinity Christian Center of Santa Ana, Inc.’s Motion to Strike2/26/2013 and 4/16/2013 Declarations of David R. Keesling and SupportingDeclaration of Matthew Crouch and Supplemental Declaration of Ted Nelson,ESQ.Deny. The Motion to Strike is DENIED without prejudice.A motion to strike concerns pleadings not declarations. See C.C.P. § 435 (b)(1). If there is a defect with a declaration, the proper procedure is to objectto it. See Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th601, 608. In Kulshrestha, the Supreme Court held “We can only concludethat an out-of-state declaration which materially deviates from section 2015.5in this regard cannot be used as evidence.” Ibid, 619.Whether the contents of the declarations were “false” is asubstantive ruling

that should be made at the time of the hearing of the Motion toDisqualify. The Motion is currently set for July 19, 2103.R/p to give notice.

JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYJuly 5, 2013 at 2:00 PMTentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing, wheneverpossible. The rulings will also be posted outside the courtroom on the bulletin board by noon on the day of thescheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer to submit thematter on your papers without oral argument, advise all counsel first and then telephone the clerk at(657)622-5212. If the moving party has submitted the matter and there are no appearances by any party atthe hearing, the tentative ruling will be the final ruling. Unless otherwise indicated, the moving party shallprovide written notice of all rulings or prepare an Order for the court’s signature per CRC 3.1312. If no one hastelephoned the clerk to submit and there are no appearances by any party, the tentative will become the finalorder of the court.Department C12 has an assigned court reporter for all Law & Motion matters.Once the tentative ruling has been posted on the Internet, no supplemental papers may be filed andno continuances will be permitted.1 13-636205Hulsey vs. Onorio1) Defendants Heritage Manufactured Homes, LLC, Nancy Sandstrom andStephen Sandstrom’s Demurrer to Plaintiff Annette Hulsey’s Complaint –Second, Third, Fourth and Seventh Causes of ActionSustain. The Demurrer of Defendants Heritage Manufactured Homes, LLC,Nancy Sandstrom and Stephen Sandstrom’s to the Second, Third, Fourth andSeventh Cause of Action of plaintiff’s Complaint is SUSTAINED with fourteen(14) days leave to amend.Plaintiff must allege a sufficient factual basis for these causes ofaction. Fraud and Unfair Business Practices must be alleged withparticularity. Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 and Khouryv. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.While not required, it would be helpful to attach the subject contract ifwritten. It is unclear what the representations were, by whom and to whom,whether oral or written, who were the parties to the transaction, whether realestate was involved and who owned the mobilehome when sold. When was itsold and when and how did title transfer? What is the role of HeritageManufactured Homes LLC? These are some of the defects but is notexhaustive.3 13-640589Barstad vs. EquipmentWholesalers, Inc.M/p to give notice.1) Defendant Dave Rogers’ Demurrer to Plaintiff Sophie Barstad’s ComplaintSustain in part and overrule in part. Defendant Rogers’ demurrer toplaintiff Barstad’s complaint should be overruled in part and sustained in part.SUSTAINED, with leave to amend, as to plaintiff Barstad’s first cause of actionfor sexual harassment. Plaintiff has pled some facts that could support aclaim for sexual harassment based on 2009, but no sufficient facts toovercome the several years relationship and the allegation that plaintiffBarstad terminated the relationship win mid-October 2013 because defendantRogers indicated he did not want to get married and have children. Plaintiff is

granted leave to allege additional facts as to a term of employment that wasexpressly or impliedly conditioned upon acceptance of defendantRogers’ unwelcome sexual advances. See, Mogilefsky v. Superior Court(1993) 20 Cal.App.4 th 1409, 1414. OVERRULED as to plaintiff Barstad’s fourthcause of action for conversion. A cause of action for conversion can be basedon alleged interference with right of possession and is not limited toownership. See, Moore v. Regents of the University of Calif. (1990) 51 Cal.3d120, 134. As a minimum, at this pleading stage, plaintiff Barstad has allegedsufficient facts as to interference with her right of possession of the LandRover from mid-October 2012 through March 15, 2013. (See, Complaint, 14, 22, 63 and 64.) Moving party to give notice.2) Defendant Equipment Wholesalers, Inc. dba EWCO Services’ Demurrer toPlaintiff Sopihe Barstad’s ComplaintSustain in part and overrule in part. Defendant EWCO’s demurrer toplaintiff Barstad’s complaint should be overruled in part and sustained in part.SUSTAINED, with leave to amend, as to plaintiff Barstad’s first cause ofaction for sexual harassment. Plaintiff has pled some facts that could supporta claim for sexual harassment based on 2009, but not sufficient facts toovercome the several years relationship and the allegation that plaintiffBarstad terminated the relationship in mid-October 2013 because defendantRogers indicated he did not want to get married and have children. Plaintiff isgranted leave to allege additional facts as to a term of employment that wasexpressly or impliedly conditioned upon acceptance of defendantRogers’ unwelcome sexual advances. See, Mogilefsky v. Superior Court(1993) 20 Cal.App.4 th 1409, 1414. OVERRULED as to plaintiff Barstad’ssecond cause of action for wrongful termination based on retaliation and thirdcause of action for failure to engage in interactive process. As to wrongfultermination based on retaliation, plaintiff has alleged facts that she was amember of a protected class by filing a complaint for sexual harassment anda DFEH complaint, that she was performing her tasks as a payroll/HRspecialist in a commendable manner, that she was terminated on 11-16-12,and that various statements by defendant Rogers were indicia of retaliation.(See, Complaint, 11, 16, 41, 44, 45 and 47.) See, Guthrey v. State ofCalifornia (1998) 63 Cal.App.4 th 1108, 1125. Whether plaintiff Barstad cansatisfy the standard for constructive termination in March 2013 is not relevantas she alleged she was terminated and then rehired in November 2012. As tofailure to engage in the interactive process, plaintiff Barstad’s claim that shehad a medical disability, sought accommodation to continue to workremotely, and that CEO Little denied this request is sufficient at this pleadingstage to state a cause of action for failure to engage in the interactiveprocess. (See, Complaint, 11, 50, 52, 53, 55, 56, and 58.) See, Jensen v.Wells Fargo Bank (2000) 85 Cal.App.4 th 245, 262 to 263. Moving party togive notice.Defendants’ Request for Judicial Notice:Grant in part and deny in part. Defendants Dave Rogers and EWCO jointlyrequested that the court take judicial notice of the following documents andfacts: Exhibit A, 6-4-13 decision by the California Unemployment InsuranceAppeals Board, that plaintiff Barstad acknowledged that she had no directcontact with defendant Rogers since January 2013, and that plaintiffacknowledged that she would not have resigned on March 21, 2013 if she hadbeen allowed continued use of a company car. GRANTED as to Exhibit A beinga decision by the California Unemployment Insurance Appeals Board, butsuch notice is limited to this being a decision by the board and not as to theclaims and conclusions set forth therein. See, Evidence Code § 452(h) andKilroy v. State California (2004) 119 Cal. App. 4th 140, 145 citing Lockley v.Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal. App. 4th875, 882.

To the extent leave to amend has been granted, 14 days leave to amend isgranted. M/p to give notice.4 12-597150Lucero vs. Thaiyananthan1) Plaintiffs Beverly Lucero and Danny Lucero’s Motion to Extend Time toProve Default against Defendant against Chapman Neurosurgical SpineInstituteGrant. The Motion to Extend the Time to Prove Default isGRANTED. Plaintiffs may set the Default Prove-up between when there is anarbitration award and the ADR Review hearing set for January 13, 2014.M/p to give notice.5 13-633850Hollins Law vs. VeatchCarlson, LLP1) Plaintiff Hollins Law’s Motion to Compel Phil Borini’s Attendance atDeposition and Request for Sanctions against Defendant Veatch Carlson, LLPGrant. Plaintiff Hollins’ motion to compel the deposition of Phil Borini isGRANTED. See, C.C.P. § 2025.450. The parties are ordered to meet andconfer and set a date for Mr. Borini’s deposition to be completed on or before8-30-13, with this deposition to have priority when Mr. Borini is in OrangeCounty and not attending to an ailing family member out of state. A twomonth window is sufficient time for Mr. Borini to accommodate a depositionand attend to family matters. Finally, plaintiff Hollins’ request for sanctions isDENIED. First, plaintiff a failed to set forth in its notice of motion the natureof the sanction sought and any sum against defendant Veatch. See, C.C.P. §2023.040. Second, plaintiff Hollins is proceeding in pro se and thus attorney’sfees on discovery motions are not recoverable. See, Argaman v. Ratan(1999) 73 Cal.App.4 th 1173, 1180 to 1181.Moving party to give notice.7 09-126504Family InvestmentCompany, Inc. vs. Mach-1Autogroup1) Judgment Creditors Mach-1 Autogroup, Mach-1 RSMH, LLC and CraigBaptiste’s Motion for a Charging Order against Candace Spizziri’s CommunityProperty Membership Interest in Auto Orange II, LLC and Related ReliefGrant. The motion for a charging order will be granted if counsel for Mr.Spizzirri confirms that he is also appearing on behalf of Mrs.Spizzirri. Otherwise, the motion will be continued to 8/9/13 and Plaintiff willbe required to personally serve Mrs. Spizzirri.For post judgment proceedings, service on a defendant must be personalunless the defendant has consented to service on his attorney. CCP§684.020. A fortiori, service on the attorney of a former defendant who hasbeen dismissed from the case must also be personal unless she hasconsented to the representation.If representation is confirmed, the motion for a charging order will begranted. Mrs. Spizzirri’s interest is subject to enforcement of the judgmentagainst her husband under Family Code §910(a). This is not disputed by hercounsel in opposing the motion.There is no showing that any 3d parties have an interest in Auto Orange II(“AOII”); therefore, the Court does not see why their interest in itsproperty, if any, must be considered at this time. Until levy on the propertyis attempted, the issue is premature.The Court believes that it is unlikely that the limitations in Corp. Code §17302would apply to a creditor which has foreclosed upon and purchased 100% ofthe membership interests in a limited liability company. However, whether ithas acquired all management rights as well as the right to distribution is an

issue that is reserved until Mr. Spizzirri’s bankruptcy stay is lifted.A foreclosure hearing will be set for August 9, 2013 at 2pm. Prior to thehearing, the parties must brief whether Mr. Spizzirri has standing to object toforeclosure of Mrs. Spizzirri’s interest in light of the facts that 1) hismembership interest has been foreclosed upon and 2) his remaining interestin AOII, if any, is an asset of the bankruptcy estate. Statutory deadlines forbriefing apply.Plaintiffs are to give notice.8 10-346521Passport Management,LLC vs. Olson1-3) Plaintiff Passport Management, LLC’s Motion to Compel DefendantsHorse Power Investments, LLC, Vistas Infinitas LLC, Charmoya EnterprisesLLC, Sugerbere Enterprises LLC to Further Respond to FormInterrogatories, Set One, Special Interrogatories, Set One & Two andCompliance with Responses to Inspection Demands, Set One & Two andRequest for Monetary Sanctions against Defendants in the amount of $500.00Continued to 7/26/2013 at 2:00 pm in department C12

JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYJuly 12, 2013 at 2:00 PM*NO TENTATIVE RULINGS WILL BE POSTED FOR JULY 12, 2013 CALENDAR*Tentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing,whenever possible. The rulings will also be posted outside the courtroom on the bulletin board by noon onthe day of the scheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer tosubmit the matter on your papers without oral argument, advise all counsel first and then telephonethe clerk at (657)622-5212. If the moving party has submitted the matter and there are noappearances by any party at the hearing, the tentative ruling will be the final ruling. Unless otherwiseindicated, the moving party shall provide written notice of all rulings or prepare an Order for the court’ssignature per CRC 3.1312. If no one has telephoned the clerk to submit and there are no appearances byany party, the tentative will become the final order of the court.Department C12 has an assigned court reporter for all Law & Motion matters.Once the tentative ruling has been posted on the Internet, no supplemental papers may be filedand no continuances will be permitted.2 13-636357Calderon vs. Morris1) Defendants Geoff Morris and The Morris Law Group’s Demurrer toPlaintiff Benjamin Calderon’s First Amended Complaint3 12-569832Jeff Tracy, Inc. vs.Olguin1) Cross-Defendant Jeff Tracy, Inc. dba Land Forms Construction’sDemurrer to Cross-Complainant Cris B. Olguin aka Cristerfer BrandonOlguin, Craig Johnson dba United Shade, Kole Alexander Gutierres-Carr’sFirst Amended Cross-Complaint5 11-463995Huntington Shorecliff, LPvs. City of HuntingtonBeach1) Cross-Defendant State of California’s Demurrer to Cross-ComplainantCity of Huntington Beach’s Cross-Complaint2) Cross-Defendant State of California’s Demurrer to Cross-Complainantof M.M.R. Family, LLC and R.F.R. Family LLC6 11-529719American ExpressCenturion Bank vs.Ruppert1) Plaintiff American Express Centurion Bank’s Motion to VacateDismissal entered on 3/29/2013 and Enter Judgment pursuant to CCP.664.6

7 13-638832Choi vs. Iggee, Inc.1) Plaintiff Yi Re Choi aka Janet Choi’s Motion to Quash the DepositionSubpoena for Personal Appearance of Yang Suk Choi’s or in thealternative for a Protection Order and Request for Sanctions in theamount of $2,985.008 11-4894121) Defendant Shane Demirjian’s Motion to Tax CostsSeraji, as Trustee of theRer Children’s Trust vs.Demirjian9 12-539362Stadium Promenade,LLC vs Om Ras Inc.1-3) Plaintiff Stadium Promenade, LLC’s Motion to Compel DefendantTavinder K. Sawhney to Provide Responses to Form Interrogatories,Requests for Admission and Requests for Production of Documents andRequest for Attorney’s Fees in the amount of $2,450.0011 13-637481Orange Tree Plaza vs.Prothero Enterprises,Inc.1) Defendant Prothero Enterprises, Inc.’s Special Motion to StrikePlaintiff Orange Tree Plaza’s Complaint pursuant to California’s Anti-SLAPP Statute

JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYJuly 19, 2013 at 2:00 PMTentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing,whenever possible. The rulings will also be posted outside the courtroom on the bulletin board by noon onthe day of the scheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer tosubmit the matter on your papers without oral argument, advise all counsel first and then telephonethe clerk at (657)622-5212. If the moving party has submitted the matter and there are noappearances by any party at the hearing, the tentative ruling will be the final ruling. Unless otherwiseindicated, the moving party shall provide written notice of all rulings or prepare an Order for the court’ssignature per CRC 3.1312. If no one has telephoned the clerk to submit and there are no appearances byany party, the tentative will become the final order of the court.Department C12 has an assigned court reporter for all Law & Motion matters.Once the tentative ruling has been posted on the Internet, no supplemental papers may be filedand no continuances will be permitted.1 13-634658Bastida vs. One WestBank1) Defendants One West Bank, FSB and OWB REO, LLC’s Demurrer tothe Plaintiffs Victoria Bastida and Rogelio Bastida’s ComplaintSustain in part and overrule in part. Defendant’s Request forJudicial Notice is GRANTED. Plaintiffs filed no Objection to the Request.The court will not consider the Declaration of Attorney Steven Vondranin connect with this Demurrer. “[A] court cannot consider . . . thesubstance of declarations, matter not subject to judicial notice, ordocuments judicially noticed but not accepted for the truth of theircontents.” Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,994.The Demurrer to the First Cause of Action for Wrongful Foreclosure isSUSTAINED without leave to amend.The judicial noticed documents show that in the Deed of Trust, MERSwas the beneficiary. Ex. A. On 9/11/09, MERS assigned its interest toOneWest. (Ex. C). On 6/28/10, OneWest assigned is interest to OWBREO, LLC. (Ex. E). Therefore OWB REO, LLC was the beneficiary at thetime of sale. (Ex. F). Therefore, there was not error in the foreclosureproceeding. Plaintiff failed to allege tender of the debt or a properexception to that requirement. Lona v. Citibank, N.A. (2011) 202Cal.App.4th 89, 113-114.The Demurrer to the Second Cause of Action for Violations ofBusiness & Professions Code 17200 is SUSTAINED with fourteen (14)days leave to amend. This cause of action is based on other causes ofaction which are not viable.The Demurrer to the Third Cause of Action for Quiet Title isSUSTAINED without leave to amend. “[A] mortgagor of real propertycannot, without paying his debt, quiet his title against themortgagee.” Miller v. Provost (1994) 26 Cal.App.4th 1703,1707. Plaintiffs failed to allege tender of their debt.

The Demurrer to the Fourth Cause of Action for Bad Faith Breach ofSettlement is OVERRULED. Plaintiff alleged the elements of breach ofcontract.The Demurrer to the Fifth Cause of Action for Fraudulent Inducement,the Demurrer to the Sixth Cause of Action for Deceit, the Demurrer tothe Seventh Cause of Action for Financial Elder Abuse and theDemurrer to the Tenth Cause of Action for NegligentMisrepresentation are SUSTAINED with fourteen (14) days leave toamend. ’In California, fraud must be pled specifically; general andconclusory allegations do not suffice.’ . . . Thus, a plaintiff must pleadfacts which show how, when, where, to whom, and by what means therepresentations were made.” Lazar v. Superior Court (1996) 12 Cal.4th631, 645.The Demurrer to the Eighth Cause of Action for Violation ofHomeowner’s Bill of Rights is SUSTAINED without leave to amend. Thisrecent legislation is not retroactive.The Demurrer to the Ninth Cause of Action for IntentionalMisrepresentation is SUSTAINED without leave to amend. This cause ofaction is a duplication of the Demurrer to the Sixth Cause of Action forDeceit,The Demurrer to the Eleventh Cause of Action for Tort in Se isSUSTAINED without leave to amend. Plaintiff failed to identify anystatute, ordinance, or regulation that was violated.In the Declaration of Attorney Steven Vondran, he request leave toallege the Breach of the Covenant of Good Faith and Fair Dealing.(Paragraph 19). The court DENIED this request for leave toamend. “Outside of the insured-insurer relationship and others withsimilar qualities, breach of the implied covenant of good faith and fairdealing does not give rise to tort damages.” Ragland v. U.S. Bank Nat.Assn. (2012) 209 Cal.App.4th 182, 206.M/p to give notice.2 12-614302Raygoza vs. Arroyo RealPartners1) Defendants Arroyo Real Partners, LP, Arroyo Real, LLC., JoseGallegos and Jose Rosales’ Motion to Strike Plaintiff Eric Raygoza’sSecond Amended ComplaintGrant in part and deny in part. The Motion to Strike references toattorney’s fees specified in items 1 – 4 of the Notice of Motion isGRANTED without leave to amend. The tort causes of action here arenot of significant benefit to the public interest to permit an award ofattorney’s fees under CCP 1021.5.Defendants’ Motion to Strike references to punitive damagesfrom the Third Amended Complaint, items 5 – 7 of the Notice of Motion,is DENIED. The Third Amended Complaint sufficiently alleges factssupporting the claim and prayer for punitive damages against theemployer defendants.M/p to give notice.3 12-539970Galerie Homeowners1) Defendants Bickley Nguyen and Labarre\Oksnee Insurance Agency,Inc.’s Demurrer to Plaintiff Galerie Homeowners Association’s Third-Amended Complaint

Association vs. NationalUnion Fire InsuranceCompany of PittsburghSustain. Judicial notice is GRANTED. The demurrer is SUSTAINEDwithout leave to amend. Defendants are to give notice and lodge ajudgment of dismissal.Plaintiff does not oppose Defendants’ request for judicial notice or denythe authenticity of Ex.2, Plaintiff’s request to cancel the Travelers policyeffective 5/23/08, or the authenticity of the additional exhibits showingthat the policy was cancelled as requested.The policy is a claims made policy. (Complaint, Ex.A, insuringagreement, §A.1. It applies only to claims made during theendorsement period. §A.3. Plaintiff admits that the lawsuit wasn’t fileduntil January 2009, after the coverage ended, and therefore notice tothe insurer must have occurred even after that. Plaintiff has simplyignored Defendants’ contention that the policy had ceased to exist longbefore any claim was made. It does not suggest that it will be able toplead any facts to refute this contention.Plaintiff also has ignored the Court’s instruction to state whether it hadrequested anything other than a claims made policy and, if so, whatkind of coverage it requested. This shows that it cannot allege that itasked for anything else. It admits that it doesn’t even know if therewas a written agreement for anything else, yet it alleges that theagreement was made with its own agent. Clearly it had the ability toinquire of the agent whether there was a written contract; it doesn’tneed discovery from Defendants.M/p to give notice.4 11-441508Teamsters DistrictCouncil No.2 vs.Grabhorn1) Cross-Complainants David Grabhorn and Ramona Soto’s Motion toStrike or Tax Costs claimed by Cross-Defendants Fred Correll, JennySherard and Dolores CorrellGrant. The motion to strike the cross-defendants’ cost memorandum isGRANTED, rendering the portion of the motion that seeks to tax costsmoot. Moving parties are to give notice.Moving parties have presented evidence that the items in the costmemorandum have been paid by the Plaintiff’s insurer. See GrabhornReply declaration, Ex.9, 2d paragraph, in which Mr. Treadwell admitshaving received “some payments” but claims that the amount owed is“substantially greater than the cost bill.”When a cost bill is challenged, the party who filed it has the burden tojustify the costs. Perko’s Enterprises Inc. v. RRNS Enterprises(1992) 4 Cal.App.4th 238, 243. In this case, the challenge is that fullpayment has been made and Ex. 9, by inference, supports thatclaim. Therefore, the burden is on the prevailing parties to prove thatamount claimed by the cost memo has not been paid.Their reliance on the collateral source rule is further evidence that theyhave been paid their costs; if they had not been paid, they would notneed to claim a right to double recovery. The collateral source ruledoes not apply to a prevailing defendant or to costs of suit. Its purposeis require a tortfeasor to fully compensate an injured plaintiff for theinjuries he has suffered without depriving him of the benefit ofinsurance that he has purchased to protect against the injury. Plut v.Fireman’s Fund Inc. Co. (2000) 85 Cal.App.4th 98. 107-108. In thiscase, the cross-defendants are not plaintiffs, have suffered no injuries,and have not purchased the insurance that they seek to benefitfrom. Nor have cross-complainants been found to be tortfeasors. Noneof the justifications for the rule apply in this case.

5 12-607656Igo vs. Little1) Defendant Sidney Bernard Little’s Motion for Order to Expunge theNotice of Pendency of Action recorded on October 25, 2012 and Requestfor Attorney’s Fees and Costs in the amount of $3,255.00Grant. Defendant Sidney Bernard Little's motion to expunge lispendens is GRANTED. See, C.C.P. § 405.30. Plaintiff’s written oppositionon the merits to defendant’s motion to expunge lis pendens waived anydefect as to proper notice. See, Carlton v. Quint (2000) 77 Cal.App.4 th690, 697.On the merits, plaintiff failed to file a notice of lis pendens with thecourt in a timely fashion as required by C.C.P. § 405.22. Also, afterdefendant Sidney Bernard Little’s demurrer to plaintiff’s first amendedcomplaint was sustained as to the various real property causes ofaction, without leave to amend, plaintiff has not stated any proper realproperty claim. See, C.C.P. § 405.31 and Kirkeby v. Superior Court(2004) 33 Cal.4 th 642. Further, plaintiff has not presented admissibleevidence demonstrating, by a preponderance of the evidence, theprobable validity of any real property claim. See, C.C.P. § 405.32. Ofnote, the evidence reflects that the subject Laguna Niguel property washeld in joint tenancy at the time of Clelah Mae Little’s death and thusthe property transferred to defendant Sidney Bernard Little at suchtime. See, Grothe v. Corland Corp. (1992) 11 Cal.App.4 th 1313, 1317[“A distinctive feature of joint tenancy, as opposed to other interests inland, is the right of survivorship. This means that when one joint tenantdies, the entire estate belongs automatically to the surviving jointtenant(s).”] Finally, defendant Sidney Bernard Little is awardedattorney’s fees and costs in the sum of $2,555.00, pursuant to C.C.P. §405.38, payable by plaintiff Jodi S. Igo as representative and trustee forClelah Mae Little. Moving party to give notice.Plaintiff’s Evidentiary Objections: SUSTAINED as to Objection No. 1on the ground of hearsay. Defendant is attempting to establish the truththat no notice of lis pendens was filed based on an absence of such afiling in the court’s docket. OVERRULED as to Objection Nos. 2, 3 and4.Plaintiff’s Request for Judicial Notice: Plaintiff Jodi S. Igo,Representative of the Estate of Clelah Mae Little, requested that thecourt take judicial notice of the following matters and documents:Exhibit 1, that decedent, Clelah Mae Little entered into a PremaritalProperty Agreement with Defendant, Sidney Bernard Little, prior to theirmarriage that is attached as Exhibit A to plaintiff’s First AmendedComplaint, and Exhibit 2, on March 7, 2012, decedent Clelah Mae Littleand defendant Sidney Bernard Little secured a mortgage against thesubject Laguna Niguel property that is recorded with the Orange CountyRecorders’ office. Plaintiff’s request for judicial notice is granted only inlimited part that the Premarital Property Agreement is attached asExhibit A to plaintiff’s First Amended Complaint that is filed with thiscourt, and that a Deed of Trust was recorded on 3-7-12 with the OrangeCounty Recorder’s office in regard to the property located at 25341Fallen Oak, Laguna Niguel, California 92677. See, Evidence Code §452(d) and (h) and Fontenot v. Wells Fargo Bank, N.A. (2011) 198Cal.App.4 th 256, 265.Plaintiff’s request for judicial notice as to this Premarital PropertyAgreement be entered into before marriage between Clelah Mae Littleand Sidney Bernard Little, as well as any further facts other than that amortgage was recorded on 3-7-12 against the Laguna Niguel propertyare DENIED as being evidentiary matters not subject to judicialnotice.Defendant Sidney Bernard Little’s Evidentiary Objection:

Defendant’s objection to Paragraphs 5 to 14 of attorney Nagash’sdeclaration are granted on the ground of lack of personal knowledge.7 12-564933Liang vs. LevyConsolidated: 12-565052; AutomotiveRemarketing Xchange,LLC vs. Levy1) Defendants Peter M. Levy and Marc Holestein’s Motion to CompelPlaintiff Huey Jiuan Lian to Production of DocumentsMoot in light of ruling. The Court sua sponte modifies its 5/24/13order denying Ms. Liangs motion to substitute to change “withoutprejudice” to “with prejudice.” The motion to compel production is OFFCALENDAR as this ruling obviates the need to determine when thepurported assignments were executed. Case number 2012-00565052,Automotive Remarketing Xchange LLC v. Levy is DISMISSED as there isno plaintiff with standing to prosecute it. Defendants are to give noticeand to prepare a proposed order of dismissal.The Court’s 5/24/13 ruling whereby the motion was denied withoutprejudice was based on declarations attesting that Ms Liang had beenassigned the rights of Automotive Remarketing XChange LLC and Hueyand Associates LLC on 12/1/13, prior to the cancellation of theLLCs. However, Defendants have presented evidence that at least oneof those declarations was false and that the attestation on one of theassignments was false.Mr. Bonnard signed an assignment stating that it was “executed…as ofDecember 1, 2012.” Since Mr. Goodman declared that the assignmentswere created on 12/1/12, this can only mean that it was executed onthat date. In addition, in a declaration in support of Ms. Liang’s motionto substitute in place of the LLCs, Mr. Bonnard stated under penalty ofperjury, “On December 1, 2012, I executed the Assignments of LegalClaims…”The Court takes judicial notice that 12/1/12 was a Saturday. In hisdeposition, Mr. Bonnard admitted on pp. 471 & 473 that he executedthe assignment in Mr. Goldman’s office and that he had never been tothat office on a weekend.This, it is clear that Mr. Bonnard’s declaration was false and that theattestation on the Assignment was false. As there is no credibleevidence that both of the assignments were executed on 12/1/12, thereis no credible evidence that Ms. Liang was assigned the rights of theLLCs prior to their cancellation. Nor will she be able to seekreconsideration of the Court’s 5/24 order by presenting evidence ofexecution after 12/1/12 but before cancellation, because such evidence,if it exists (which the Court doubts), would have been available beforethe motion to substitute and cannot be used in a motion forreconsideration. In re Marriage of Herr (2009) 174 Cal.App.4th1463, 1468.Sanctions to Plaintiff are DENIED. The court will not reward suchactions on the part of litigants and particularly on the part of theirattorneys.M/p to give notice.9 12-600613Young vs. Bhakta1) Plaintiffs David Young and Elizabeth Young’s Motion for IssueSanctions and for Monetary Sanctions against Defendant and Cross-Complainant Hitendra Bhakta in the amount of $3,400.00

Deny in part and grant in part. Plaintiffs' motion for issue andmonetary sanctions is denied in part and granted in part. Althoughuntimely and offered without excuse, the discovery sought has nowbeen provided and is available to plaintiffs for use at deposition andtrial. Although defendants’ conduct is highly objectionable, it does notrise to the level necessary to warrant the harsh sanctions sought.Plaintiffs are entitled to monetary sanctions pursuant to CCP2023.030(a). Sanctions of $1,400 for four hours @ $350 per hour areawarded against defendant Hitendra Bhakta and his counsel, payablewithin 30 days.M/p to give notice.13 10-346521Passport Management,LLC vs. Olson1) Defendants Horsepower Investments, LLC, Vistas Infinitas, LLC,Sugurbere Enterp., LLC and Charamoya Enterprises, LLC’s Attorney ofRecord Weiss & Spees, LLP and Michael H. Weiss’ Motion to be Relievedas Counsel of RecordDeny. The motion of Weiss & Spees, LLP and Michael H. Weiss to berelieved as counsel of record is DENIED without prejudice to the right ofWeiss and Spees LLP to refile the motion. As Mr. Weiss is not attorneyof record for any of the entities, he need not move to withdraw.Notice on all the clients was insufficient. The clients were served bymail only 16 court days plus 2 days prior to the hearing. For Californiaclients, 5 days must be added for mailed service. For out-of-stateclients, 10 days must be added and for foreign clients, 20 days must beadded.Although Ms. Olsen’s attorneys were served timely with the motion,they are not representing her in her role as manager of the entities, sothat service does not constitute service upon the entities.Counsel has admitted that he is unsure whether Ms. Olson is the properperson to serve on behalf of the entities. Also, she was served at botha California and a Nevada address. Where does she reside or conductbusiness? The Court suggests that counsel contact their clients’ agentsfor service of process to determine whether she is authorized. If notand if counsel is unable to determine who is authorized to acceptservice, it should serve the agent for service of process.Plaintiff’s request for a continuance is DENIED without prejudice to file anoticed motion.M/p to give notice.2) Defendant Jana Olson’s Attorney of Record Louis J. Khoury’s Motionto be Relieved as Counsel of RecordDeny. The motion of Louis J. Khoury to be relieved as attorney ofrecord for Ms. Olson is DENIED without prejudice. The Court recorddoes not indicate that a declaration and proof of service were filed withthe motion. In addition, Mr. Khoury is not attorney of record; theattorney of record is Law Offices of Louis J. Khoury.Plaintiff’s request for a continuance is DENIED without prejudice to file anoticed motion.3) Plaintiff Passport Management, LLC’s Motion to Compel Defendant

Jana Olson to Answer Questions Propounded and Production ofDocuments Subpoenaed at ExamGrant in part and deny in part. The motion to compel furtherresponses to deposition questions 1, 2, 4 and 5 is GRANTED. Themotion to compel further responses to questions #3 is DENIED. Themotion to enforce the deposition subpoena is DENIED. Sanctions of$3000 are awarded against Ms. Olson in favor of Plaintiff payable in 60days.Plaintiff has wholly failed to address the relevance and breadth of the 29items in the subpoena. The Court declines to take on the task ofmaking this determination itself. In addition, the Court notes that thereare no time limitations for most of the items.Plaintiff has not explained the relevance of the question about who gavethe interrogatory verification to Ms. Olson.Sanctions are limited because there is no explanation why threeattorneys were needed to prepare this motion, or why it had to bereviewed by a junior associate. It was unnecessary to prepare aseparate statement because this motion is not brought under theDiscovery act. Plaintiff did not prevail on the subpoena issue.M/p to give notice.15 12-565721Dominguez vs.Chapman MedicalCenter1) Plaintiff Manuel Dominguez’s Motion to Compel Defendants DebraPolitowski and Preferred Health Care Registry to Provide FurtherResponses to Form Interrogatories 16.1 and Request for MonetarySanctions against Defendants and their counsel of Record in the amountof $2,310.00Deny. Plaintiff Dominguez’s motion to compel a further response toForm Rog. Nos. 16.1 by defendants Politowski and Preferred Health isDENIED. Defendants had not had a reasonable opportunity to conductdiscovery before responding to Form Rog. No. 16.1 in May 2013. Butdefendants’ request for sanctions is DENIED because plaintiffDominguez made a reasonable offer to wait until 7 days after thedeposition of plaintiff’s surgeon, Dr. Rahman, to receive a supplementalresponse and defendants’ never responded to this reasonable meet andconfer offer. (See, Allor Declaration, 8 and 9, and Exhibit 9, Letterof 6-4-13.) Hence other circumstances preclude an award of sanctionsin favor of defendants Politowski and Preferred Health.Moving party to give notice.2) Plaintiff Manuel Dominguez’s Motion to Compel the Deposition ofDebra Politowski and to Continue the Trial Date and Request forMonetary Sanctions against Defendant and her Attorney of Record inthe amount of $1,860.00Grant in part. Plaintiff Dominguez’s motion to compel the depositionof defendant Deborah Politowski is GRANTED. See, C.C.P. §2025.450(a). This deposition will proceed in plaintiff’s counsel office inLos Angeles as defendant Politowski did not establish that her residenceis not within 75 miles of plaintiff counsel’s office in Los Angeles anddefendant Politowski raised no timely objection in this regard. See,C.C.P. §§ C.C.P. § 2025.250(a) and 2025.410(a). The deposition shallbe completed by 8-9-13.Plaintiff Dominguez’s request for sanctions is DENIED based on othercircumstances. First, while defendant Politowski did not file a motion tostay, motion to quash and/or a motion for a protective order, as

provided for by C.C.P. §§ 2025.410(c) and 2025.420, and unavailabilityof counsel is not a ground to object to a deposition notice under thecode, a claim of unavailability is acknowledged as matter of professionalcourtesy and generally leads to the selection of an alternative depositiondate without court intervention. Second, plaintiff Dominguez objected toa short continuance of trial proposed by defendants Politowski andPreferred Health that would have permitted all dates to be continued,including the expert witness exchange date. Third, defendant Politowskianswered plaintiff’s complaint on 2-15-13, but plaintiff waited until 5-21-13 to notice her deposition with only the minimum time provided forunder the code by setting her deposition for 6-5-13.The request to continue trial is moot.M/p to give notice.3) Plaintiff Manuel Dominguez’s Motion for Protective Order precluding aSecond Deposition of Plaintiff Manuel DominguezDeny. Plaintiff Dominguez’s motion for protective order to condition hissecond deposition on defendant Politowski and Preferred Health firstproperly responding to Form Rog. No. 16.1 is DENIED. Plaintiff’s claimarises from around June 1, 2011 so plaintiff has had over two years,plus litigation with Chapman Medical Center, to determine whetherother potentially responsible parties exist or not without confirmation bydefendants Politowski and Preferred Health. Counsel are ordered tomeet and confer about a date for plaintiff Dominguez’s seconddeposition that is convenient to all counsel in this case, includingdefendant Chapman Medical Center, with such deposition to proceed inthe offices for defendants Politowski and Preferred Health in LosAngeles. This deposition shall be completed by 8-16-13.The request for sanctions by defendants Politowski and Preferred Healthis DENIED based on other circumstances. Plaintiff had proposeddeferring a supplemental response to Form Rog. No. 16.1 by defendantsPolitowski and Preferred Health until the deposition of Dr. Rahman wascompleted in late June 2013 but plaintiff received no response fromdefendants. (See, Allor Declaration, 8 and 9, and Exhibit 9, Letter of6-4-13.) Also, defendants Politowski and Preferred Health raised theaffirmative defenses of intervening or superseding cause andcomparative fault of plaintiff or others in their answer to plaintiff’scomplaint. (See, Answer by Defendants Politowski and Preferred Health,5 th and 10 th Affirmative Defenses.) Form Rog. No. 16.1 is directed atdetermining who defendants Politowski and Preferred Health mightcontend are other potentially responsible parties. Thus othercircumstances exist that do not warrant an award of sanctions in favorof defendants Politowski and Preferred Health against plaintiffDominguez. Moving parties to give notice.16 13-638832Choi vs. Iggee, Inc.1) Plaintiff Yi Re Choi aka Janet Choi’s Motion to Quash the DepositionSubpoena for Personal Appearance of Yang Suk Choi’s or in thealternative for a Protection Order and Request for Sanctions in theamount of $2,985.00Deny. The Motion to Quash Deposition Subpoena and for a ProtectiveOrder is DENIED. Plaintiff failed to establish good cause for the court toissue a protective order.The witness, Yang Suk Choi, has knowledge of information that isrelevant and could lead to admissible evidence. This evidence includes,but not limited to Plaintiff’s emotional distress, Plaintiff’s prior workexperience, Conversations with Plaintiff and Conversions with

Defendants.The parties are ordered to meet and confer to schedule the depositionat a convenient time, date and place to accommodate the witnesses’schedule.Since both sides acted with substantial justification, both requests forsanctions are DENIED.R/p to give notice.17 13-637481Orange Tree Plaza vs.Prothero Enterprises,Inc.1) Defendant Prothero Enterprises, Inc.’s Special Motion to StrikePlaintiff Orange Tree Plaza’s Complaint pursuant to California’s Anti-SLAPP StatuteDeny. Defendant Prothero’s anti-SLAPP motion is DENIED. DefendantProthero did not carry its initial burden of demonstrating any protectedspeech within the meaning of C.C.P. § 425.16(e). Plaintiff OTP’scomplaint for declaratory relief, while it is in response to defendantProthero’s service of a notice of default, it does not “arise from,” i.e. isnot based on protected speech, but instead seeks a declaration ofvarious rights in regard to the First Amended Ground Lease as providedfor pursuant to C.C.P. § 1060. See, City of Cotati v. Cashman (2002) 29Cal.4 th 69, 80, Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4 th154, 161 to 162, and City of Alahambra v. D’Ausilio (2011) 193Cal.App.4 th 1301, 1307 to 1308. Also, the Marlin court explained that:“An injunction is a remedy, not a cause of action. Accordingly, theSLAPP statute does not apply where it is the prayer for an injunctionwhich arises from an act in furtherance of a person's right of petition orfree speech.” Id., at 162. Similarly, plaintiff OTP’s prayer for injunctionrelief in association with its cause of action for declaratory relief is notsubject to the anti-SLAPP statute.Next, even assuming defendant Prothero carried its initial burden ofdemonstrating protected activity, plaintiff OTP has established a legallytenable cause of action for declaratory relief that has at least minimalmerit. See, Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4 th260, 291. In this case, there is an issue as to whether plaintiff OTPexpressly or impliedly assumed all prior debts and liabilities of itspredecessor under the agreements between these parties. See, Ray v.Alad Corp. (1977) 19 Cal.3d 22, 28. Further, as to defense of thelitigation privilege, pursuant to Civil Code § 47, plaintiff OTP has notasserted any derivative tort claims against defendant Prothero. Also,terminating a tenancy does not constitute an activity taken infurtherance of right of petition or free speech. See, Marlin v. AimcoVenezia, LLC (2007) 154 Cal.App.4 th 154, 160 to 161. Moving party togive notice.Plaintiff OTP’s Evidentiary Objections: OVERRULED as to ObjectionNos. 1 and 2. SUSTAINED as to Objection Nos. 3, 4 and 5.Defendant Prothero’s Evidentiary Objections: Declaration ofThomas R. Brown, M.D.: OVERRULED as to Objection Nos. 2 and 3.SUSTAINED as to Objection Nos. 1, 4, 5, 6, 7 and 8. Declaration ofAttorney Joseph S. Dzida: SUSTAINED as to Objection Nos. 9, 10, 11,12, 13, 14, 15, 16, 17, 18, 19 and 20. Declaration of George Bahou:OVERRULED as to Objection No. 21. SUSTAINED as to Objection No.22.Plaintiff to give notice.

JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYJuly 26, 2013 at 2:00 PMNO TENTATIVE RULINGS WILL BE POSTED FOR 07/26/2013 CALENDARTentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing,whenever possible. The rulings will also be posted outside the courtroom on the bulletin board by noon onthe day of the scheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer tosubmit the matter on your papers without oral argument, advise all counsel first and then telephonethe clerk at (657)622-5212. If the moving party has submitted the matter and there are noappearances by any party at the hearing, the tentative ruling will be the final ruling. Unless otherwiseindicated, the moving party shall provide written notice of all rulings or prepare an Order for the court’ssignature per CRC 3.1312. If no one has telephoned the clerk to submit and there are no appearances byany party, the tentative will become the final order of the court.Department C12 has an assigned court reporter for all Law & Motion matters.Once the tentative ruling has been posted on the Internet, no supplemental papers may be filedand no continuances will be permitted.1 13-623665Valenzuela vs.Valenzuela2 13-629099City of Westminster vs.Rehab FinancialCorporation1) Defendant Lilia Valenzuela’s Demurrer to Plaintiff John Valenzuela’sComplaint1) Defendant Gayle R. Bloomingdale’s Demurrer to Plaintiff City ofWestminster’s Complaint2) Defendant Gayle R. Bloomingdale’s Motion to Strike Portions ofPlaintiff City of Westminster’s3 13-626911Safeway BuildingServices, Inc vs. Pyke1) Cross-Defendant College Health Enterprises, Inc.’s Demurrer to theAmended Cross-Complaint of Cross-Complainant Robert Marcus Pykeindividually and dba Integrated Construction Management Services2) Cross-Defendant CHCM, Inc. dba College Hospital Costa Mesa’sDemurrer to the Amended Cross-Complaint of Cross-Complainant RobertMarcus Pyke individually and dba Integrated Construction ManagementServices4 13-650571Feldsott & Lee, a LawCorporation vs. ForsterHighlands CommunityAssociation1) Defendant Forster Highlands Community Associations’ Motion toCompel Arbitration and Stay the Complaint Pending Mandatory FeeDispute Arbitration

5 12-572030Weatherite Corporationvs. Smith6 12-591736Wells Fargo MerchantServices, LLC vs.Tobacco & Gifts 4 Less,LLC7 12-560082Suarez vs. Bank of NewYork Mellon1) Cross-Complainant John Hancock’s Motion for Leave to AttachInadvertently Omitted Exhibits or alternatively, to have the ExhibitsAttached to John Hancock’s Original Cross-Complaint Deemed Attachedto its First Amended Cross-Complaint1) Plaintiff/Judgment Creditor Wells Fargo Merchant Services, LLC’sMotion for Assignment Order2) Plaintiff/Judgment Creditor Wells Fargo Merchant Services, LLC’sMotion for Order Charging Members’ Interests1) Plaintiff Pauline Suarez’s Motion to Compel Defendant Bank of NewYork Mellon Person Most Knowledgeable for Deposition and Production ofDocuments and Request for Sanctions against Defendant and theirCounsel of Record in the amount of $2,250.002) Plaintiff Pauline Suarez’s Motion to Compel Defendant Bank of NewYork Mellon to Produce the Oral Testimony of Kathy Oriard and Requestfor Sanctions against Defendant and their Counsel of Record in theamount of $1,900.008 05CC11160Affan vs. Portofino CoveHomeowners Association1) Defendants Portofino Cove Homeowners Association and PortofinoCove Condominium Association’s Motion to Tax Costs9 11-442847Hong vs. Park10 10-346521Passport Management,LLC vs. Olson1) Plaintiff Soobok L. Hong’s Motion for Summary Judgment1-3) Plaintiff Passport Management, LLC’s Motion to Compel DefendantsHorse Power Investments, LLC, Vistas Infinitas LLC, CharmoyaEnterprises LLC, Sugerbere Enterprises LLC to Further Respond toForm Interrogatories, Set One, Special Interrogatories, Set One & Twoand Compliance with Responses to Inspection Demands, Set One & Twoand Request for Monetary Sanctions against Defendants in the amountof $500.004) Judgment Debtor Erlend Olson’s Motion to Quash or ModifySubpoena, or in the alternative limiting, the Deposition Subpoena forProduction of Business Records

JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYAugust 02, 2013 at 2:00 PMTentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing,whenever possible. The rulings will also be posted outside the courtroom on the bulletin board by noon onthe day of the scheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer tosubmit the matter on your papers without oral argument, advise all counsel first and then telephonethe clerk at (657)622-5212. If the moving party has submitted the matter and there are noappearances by any party at the hearing, the tentative ruling will be the final ruling. Unless otherwiseindicated, the moving party shall provide written notice of all rulings or prepare an Order for the court’ssignature per CRC 3.1312. If no one has telephoned the clerk to submit and there are no appearances byany party, the tentative will become the final order of the court.Department C12 has an assigned court reporter for all Law & Motion matters.Once the tentative ruling has been posted on the Internet, no supplemental papers may be filedand no continuances will be permitted.2 13-624351Dyer vs. Wells FargoHome Mortgage, Inc1) Defendant Wells Fargo Bank, N.A.’s Demurrer to Plaintiff Jeffrey S.Dyer and Louissa C. Dyer First Amended ComplaintSustain. Defendants’ demurrer is SUSTAINED without leave toamend. Defendants are to give notice.CC §2924 and declaratory relief: This court has already ruled thatPlaintiffs have not stated a claim that the entity initiating the foreclosurewas unauthorized, as they have admitted in their pleading that WellsFargo Home Mortgage was the beneficiary at the time notice of defaultwas issued on 7/22/09. [1st Amended Complaint 4] The allegedlyimproper assignment occurred on 9/9/09. [1st Amended Complaint,Ex.A] CC §2924(a)(6) relates only to notice of default.Plaintiffs were given leave to try to state a cause of action fordeclaratory relief based on their claim that the party threatening aforeclosure sale was unauthorized. However, they declaratory reliefcause of action (if it is a cause of action) states no facts. Nor havePlaintiffs provided authority that they have a cause of action based uponthis. The sole authority cited in their opposition to the demurrer is§2924(a)(6).Under Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216Cal.App.4th 497, 510, 513, the foreclosure statutes are exclusive and donot provide for a preemptive cause of action to determine theauthorization of a foreclosing beneficiary to foreclose.Nor do Plaintiffs cite any authority that they have a right to sue todetermine whether the foreclosing trustee is authorized toforeclose. The Court is under no obligation to do their legal research forthem.Accounting: Unless Plaintiffs could have cured their default if not for theallegedly excessive fees, they have not been injured; leave was given topermit Plaintiffs to allege this. They failed to do so. When a parties are

instructed to amend and fail to do so, it is assumed they have statedtheir claim as strongly as possible. Cal Francisco Inv. Corp. v.Vrionis (1971) 14 Cal.App.3d 318, 321. No further leave to amend isrequired.The motion to strike is moot.2) Defendant Wells Fargo Bank, N.A.’s Motion to Strike Portions ofPlaintiff Jeffrey S. Dyer and Louissa C. Dyer First Amended ComplaintMoot. The motion to strike is moot in light of the ruling on thedemurrer.5 13-634051Cox vs. Rodriguez1) Defendant Hector Rodriguez’s Motion to Compel Plaintiff Dina Cox toFurther Respond to Special Interrogatories, Set One and Request forMonetary Sanctions against Plaintiff and her attorney of record in theamount of $1444.95Grant, see below.2) Defendant Hector Rodriguez’s Motion to Compel Plaintiff Dina Cox toFurther Respond to Form Interrogatories, Set One and Request forMonetary Sanctions against Plaintiff and her attorney of record in theamount of $1444.95Grant. The Motions to Compel Further Responses to Form and SpecialInterrogatories are GRANTED. The objections to this discovery were notappropriate.Within fifteen (15) days, Plaintiff shall respond without objection toSpecial Interrogatory Nos. 8, 15 & 16 and Form Interrogatories Nos. 6.4,6.5, 7.2, 8.2, 8.5, 8.6 & 8.7.Within thirty days, Plaintiff and/or her attorney of record, joint andseverally, shall pay total sanctions in the sum of $720 ($200.00 per hourx 3 hours) + $120 filing fees.Moving party to give notice.6 12-568552Pacific Mercantile Bankvs. NP Gas, Inc.1) Court Appointed Receiver Karl T. Anderson’s Motion to TerminateReceivership for NP Gas, Inc., US GASUP, Inc. et al-The Court orders the Receiver and defense counsel Douglas Vanderpoolto appear at the hearing on the Receiver’s motion to terminate thereceivership and the Plaintiff’s motion for summary judgment.Mr. Vanderpool has filed a form entitled “Notice of Stay of Proceedings,”claiming that the action is stayed as to “all parties.” However, herepresents only Naresh and Jayshree Patel, not all the parties.Furthermore, he failed to indicate the reason for the stay. The box hechecked, “Automatic stay by a filing in another court,” requires a copy ofthe document that shows the stay is in effect, and specifically thebankruptcy petition (if that is the reason for the stay). No document isattached. Accordingly, he must file an amended notice of stay andappear explain to whom the stay applies.If NP Gas, Inc. and US Gasup, Inc. have not filed bankruptcy, the staywould not affect them and the Receiver’s motion could go forward. TheCourt is concerned that the reason the Receiver failed to comply with theCourt’s 6/21/13 order is that he believes a stay is in effect. If this is notthe reason, he must explain why he has not complied with the order.

2) Plaintiff Pacific Mercantile Bank’s Motion for Summary Judgment as toDefendants Jayshree Patel and Naresh Patel- No tentative pending resolution of the issue of whether there is astay. The court notes no opposition was filed.7 11-458429Lee vs. New Star Realty,Inc.1) Defendants New Star Realty, Inc.’s Motion for Judgment notWithstanding the Verdict2) Defendants New Star Realty, Inc and Chris Moonkey Nam’s Motion forNew Trial8 10-346521Passport Management,LLC vs. Olson1-8) Plaintiff Passport Management, LLC’s Motion to Compel DefendantsHorse Power Investments, LLC aka Horse Power, LLC; Vistas Infinitas,LLC; Sugurbere Enterprises, LLC and Charamoya Enterprises, LLC toRespond to Third Inspection Demand and the Third Set SpecialInterrogatories and Request for the Award of Monetary Sanctions againstDefendants in the amount of $1,200.00, plus $40.00 filing feeGrant. Vistas Infinitas LLC, Sugurbere Enterprises LLC, Horse PowerInvestments LLC, and Charamoya Enterprises LLC are ordered to provideresponses without objection to Plaintiff’s 3d set of special interrogatoriesand 3d set of production demands within 30 days after the effective dateof service of notice of this ruling upon them. They are jointly andseverally ordered to pay sanctions of $1240 to Plaintiff.In addition to serving the attorney of record for the LLCs, Plaintiff is toserve notice of ruling on their agents for service of process, if any, in thesame manner as required for service of a summons and complaint. IfPlaintiff cannot determine who the agent for service of process is, it willbe sufficient to serve notice on current counsel.9-10) Plaintiff Passport Management, LLC’s Motion to Compel DefendantJana Olson to Respond to the Fourth Inspection Demand and the FourthSet of Special Interrogatories and Requests for Monetary Sanctionsagainst Defendant in the amount of $1,200.00, plus $40.00 filing feeGrant, see below.11-14) Plaintiff Passport Management, LLC’s Motion to CompelDefendant Jana Olson to Respond Further to Requests to FormInterrogatories Set One & Two, Special Interrogatories Set One & Two,First Supplemental Interrogatory and Second Set of Requests forAdmission and Request for Award of Monetary Sanctions againstDefendant in the amount of $8,502.00Grant. The motion to compel verified responses without objection isGRANTED. Defendant Jana Olson is ordered to provide responseswithout objection to Plaintiff’s 4th set of special interrogatories and 4thset of production demands and to pay sanctions of $1240 toPlaintiff within 30 days due to failure to timely respond to the subjectdiscovery. Plaintiff is to give notice.

10 12-560082Suarez vs. Bank of NewYork Mellon1) Plaintiff Pauline Suarez’s Motion to Compel Defendant Bank of NewYork Mellon Person Most Knowledgeable for Deposition and Production ofDocuments and Request for Sanctions against Defendant and theirCounsel of Record in the amount of $2,250.002) Plaintiff Pauline Suarez’s Motion to Compel Defendant Bank of NewYork Mellon to Produce the Oral Testimony of Kathy Oriard and Requestfor Sanctions against Defendant and their Counsel of Record in theamount of $1,900.00

JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYAugust 09, 2013 at 2:00 PMTentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing, wheneverpossible. The rulings will also be posted outside the courtroom on the bulletin board by noon on the day of thescheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer to submit thematter on your papers without oral argument, advise all counsel first and then telephone the clerk at(657)622-5212. If the moving party has submitted the matter and there are no appearances by any party atthe hearing, the tentative ruling will be the final ruling. Unless otherwise indicated, the moving party shallprovide written notice of all rulings or prepare an Order for the court’s signature per CRC 3.1312. If no one hastelephoned the clerk to submit and there are no appearances by any party, the tentative will become the finalorder of the court.Department C12 has an assigned court reporter for all Law & Motion matters.Once the tentative ruling has been posted on the Internet, no supplemental papers may be filed andno continuances will be permitted.2 13-647867Paladin vs. Ford MotorCompany1) Defendant Ford Motor Company’s Motion to Strike Portions of PlaintiffRonald Paladin’s ComplaintDeny. The Motion to Strike is DENIED. Within fourteen (14) days,Defendant shall answer the Complaint.The running of the statute must appear ‘clearly and affirmatively’ from thedates alleged. It is not sufficient that the complaint might bebarred.” Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 325(Emphasis original).Since the Complaint does not allege the dates of repair, the court cannotdetermine when the statute of limitations was automatically tolled underCivil Code § 1795.6 (a). In addition, Plaintiff alleged that the vehicle wasnot repaired, which would extend the warranty period. [Civil Code §1795.6 (b).]“The court does not need to take Judicial Notice to consider the LegislativeHistory. A trial court “can consider the legislative history of statuteswithout taking judicial notice of that legislative history.’” Coker v. JPMorgan Chase Bank, N.A. 2013 WL 3816978, 6 (Cal.App. 4Dist.) (Cal.App. 4 Dist.2013) fn. 6.Plaintiff to give notice.3 13-631263Deployment Partners, Inc. vs.Networked Corporation1) Plaintiff Deployment Partners, Inc. aka Managed Planet Software’sDemurrer to Defendants Verismic Software, Inc. and Ashley Leonard’sAmended AnswerOverrule. Plaintiff’s demurrer to defendants’ verified answer is overruledin its entirety. Despite its criticism of defendants, it is plaintiff’s demurrerthat is boilerplate and lacking in legitimate arguments. The answerexceeds that necessary to provide plaintiff fair notice of the defensesasserted, as well as the specificity set forth in the individual causes ofaction.

R/p to give notice.5 13-644677Sanchez Vs. ASAP Escrow,Inc.1) Defendant ASAP Escrow, Inc.’s Demurrer to Plaintiff Cameron Sanchez’sComplaintSustain. The Demurrer to the Complaint is SUSTAINED with fourteen(14) days leave to amend.The Complaint failed to allege the required elements for NegligentMisrepresentation and Intentional Misrepresentation.In addition, Plaintiff failed to allege the causes of action specifically. Lazarv. Superior Court (1996) 12 Cal.4th 631, 645.2) Defendant ASAP Escrow, Inc.’s Motion to Strike Claims of PunitiveDamages of Plaintiff Cameron Sanchez’s ComplaintMoot. In light of the ruling on the Demurrer, the Motion to Strike is moot.M/p to give notice.8 12-606428Chiaravalloti-Larson vs. Kim1) Intervener Liberty Mutual Insurance Company on behalf of, BrianTaihuan and Yong Kim’s Motion for Leave to InterveneDeny. The Motion for Leave to Intervene is DENIED, without prejudice.CCP §387(a) requires service of this Motion and the Complaint-in-Intervention on all parties who have appeared. Defendants Brian Kim andYong Kim appeared in this case with the filing of an Answer on March 22,2013. Counsel for the Kims purports to also represent proposedIntervenor Liberty Mutual Insurance Company. Service of this Motion wasnot made Kims. While counsel may believe that because it represents bothKims and Liberty Mutual service on Kims was not required, this is not theintent of the service requirement. Should Liberty Mutual renew thisMotion, it must be served on the Kims.9 12-569832Jeff Tracy, Inc. vs. OlguinFurther, there is no declaration supporting averments in the pointsand authorities that counsel or Liberty Mutual attempted to contactKims. Attorney Kased’s declaration at 3f is insufficient to establish whatefforts were made to contact them. Should Liberty Mutual renew thisMotion, a declaration or declarations of those with personal knowledge ofthe efforts must be submitted. Of particular interest to the Court will bewhat addresses and phone numbers were used and how they wereobtained and confirmed.M/p to give notice.1) Plaintiff and Cross-Defendant Jeff Tracy, Inc. dba Land FormsConstruction’s Motion to Compel Defendants and Cross-Complainants CrisOlguin and Craig Johnson to Appear at Deposition and Request forMonetary Sanctions against Cross-Complainants in the amount of$2,475.002) Plaintiff and Cross-Defendant Jeff Tracy, Inc. dba Land FormsConstruction’s Motion to Compel Defendant Craig Johnson to Answer 134Special Interrogatories, Set Two and Request for Sanctions in the amountof $5,467.50, and Request to Enter a Terminating Sanction againstDefendant Craig Johnson, Striking his Pleadings3) Plaintiff and Cross-Defendant Jeff Tracy, Inc. dba Land FormsConstruction’s Motion to Compel Defendant Cris Olguin to Answer 134Special Interrogatories, Set Two and Request for Sanctions in the amountof $5,467.50, and Request to Enter a Terminating Sanction againstDefendant Cris Olguin, Striking his Pleadings

Grant. The Motion to Compel Attendance at Depositions isGRANTED. Defendants Chis Olguin and Craig Johnson are ordered to beappear for their depositions within the next thirty (30) days as noticed byPlaintiff.The Motions to Respond to Special Interrogatories (Set Two) areGRANTED. Defendants Chis Olguin and Craig Johnson shall respondwithout objection to this discovery within twenty (20) days.With regard to the Motion to Compel Attendance at Depositions,Defendants Chis Olguin and Craig Johnson shall each pay $800 in sanctionwithin thirty (30) days.With regard to the Motion to Respond to Special Interrogatories (Set Two),Defendants Chis Olguin and Craig Johnson shall each pay $800 in sanctionwithin thirty (30) days.M/p to give notice.10 10-346521Passport Management, LLCvs. Olson1) Plaintiff Passport Management, LLC’s Motion to Compel DefendantsHorse Power Investments, LLC, Vistas Infinitas LLC, Charmoya EnterprisesLLC, Sugurbere Enterprises LLC Appearances and Production ofDocuments and Depositions following their Failure to AppearContinue. Plaintiff’s to compel deposition and production of documents isCONTINUED to 9/20/13 at 2pm. The Court sua sponte continues trial to3/24/14. All dates to run from the new trial date.In addition to serving the attorney of record for the LLCs with notice ofcontinuance, Plaintiff is to attempt to serve the moving papers and noticeof continuance on the agents for service of process for the respondingparties, if any, not later than 5 calendar days following this hearing. Seethe declaration of Michael Weiss, filed 7/23/13 in connection with hismotion to withdraw for the last known addresses for the entities and theiragents.No later than 10 court days prior to the continued hearing, Plaintiff is to filea supplemental declaration regarding its attempts to serve the entities.Given the uncertainty regarding whether Ms. Olson was authorized toretain counsel for the entities, and given counsel’s failure to take anyaction to protect their interests, the Court is concerned that the persons incharge of the entities may not have notice of this action and theopportunity to respond to the discovery requests. Because this motionseeks to have some persons most qualified travel to California fromNevada or possibly Nevis to appear at depositions, the Court believes thatanother attempt should be made to give actual notice and opportunity torespond.Plaintiff is to give notice.2) Defendants Horsepower Investments, LLC, Vistas Infinitas, LLC,Sugurbere Enterp., LLC and Charamoya Enterprises, LLC’s Attorney ofRecord Weiss & Spees, LLP and Michael H. Weiss’ Motion to be Relieved as

Counsel of RecordGrant in part. The motion of Weiss & Spies to withdraw as attorney ofrecord for Sugurbere Enterprises, LLC, is GRANTED. The motion towithdraw as attorney of record for Horsepower Investments, LLC, VistasInfinitas, LLC, and Charamoya Enterprises, LLC, is DENIED withoutprejudice. While Sugurbere was served with the original papers, onlynotice of continuance and a supplemental declaration appear to have beenserved to the other entities at their last known addresses or that of theirlast known agents. Rather than attempt to correct these problems, theCourt believes it would be easiest to start over, particularly given theextended service requirements for out-of-state entities of CCP §1005(b).M/p to give notice.3) Defendant Jana Olson’s Attorney of Record Louis J. Khoury’s Motion tobe Relieved as Counsel of RecordDeny. The motion of [the Law Office of] Louis J. Khoury to be relieved ascounsel of record is DENIED without prejudice.There was no proof of service with the original notice of motion; the onlyproof of service attached was for a “substitution of attorney,” not a motionto withdraw. On 7/19, Mr. Khoury was given leave to cure the servicedefect, but he has filed nothing since that order that relates to this motion.M/p to give notice.11 09-126504Family Investment Company,Inc. vs. Mach-1 Autogroup1) Judgment Creditors Mach-1 Autogroup, Mach-1 RSMH, LLC and CraigBaptiste’s Motion for a Charging Order against Candance Spizziri’sCommunity Property Membership Interest in Auto Orange II, LLC andRelated ReliefPossibly continue. The moving party has failed to show proper serviceon Candace Spizzirri. Substituted service was not accomplished until 7/18and, for no discernible reason, mailing was not until 7/22. Thus, theeffective date of service was 8/1, only 8 days before the hearing. This isclearly insufficient. There is no showing of due diligence as required byCCP §415.20(b) and no showing that Ms. Spizzirri was evading service.As Mr. Spizzirri has not filed a supplemental pleading, the Court assumeshe has conceded he has no standing to appear at this hearing. The Courtnotes that, although he contended he filed bankruptcy, no notice of stayhas been filed on his behalf. He is instructed to file notice of stay,including a copy of his bankruptcy petition.Prior to the hearing, the moving party is to file a declaration from theprocess server regarding his attempts to serve Mrs. Spizzirri prior to subservingher daughter. In addition, he is to provide evidence, if any, thatthe Spizzirri’s reside at the same address. At the hearing, the Court willdecide whether the matter must be continued again, and, if so, how long acontinuance will be required. If the Spizzirris reside at the same address,the fact that Mr. Spizzirri attempted to appear on his wife’s behalf will betreated as evidence that she had actual notice of the hearing.The moving party is to give notice of this ruling, including all the languageherein.

LAW & MOTION TENTATIVE RULINGSDepartment C14Judge Franz E. MillerCALENDAR DATE(S): 8/13/13LAW AND MOTION CALENDARSLaw and Motion calendars are heard Tuesdays at 1:30 p.m. (except during weeks with a Monday or Tuesdayholiday, in which case it is heard Thursday at 1:30 p.m.).TENTATIVE RULINGS:Tentative rulings will be posted on the internet, usually by 1:30 p.m. the Monday before the scheduled Tuesdayhearing (or Wednesday before a Thursday hearing). If an attorney does not have access to internet service forany reason, he or she may contact Dept. C-14 at (657) 622-5214 for the tentative ruling.PLEASE DO NOT CALL THE COURT IF NO TENTATIVES ARE POSTED – THE ANSWER WILL ALWAYS BE THEY ARENOT READY YET. “Pending” means the tentative ruling is not ready yet.PLEASE DO NOT CALL THE CLERK OR COURT ATTENDANT TO ASK WHAT A TENTATIVE RULING MEANS. Theyare not able to give that information. Moreover, “tentative” means just that: It is subject to change after thecourt hears argument.GIVING NOTICE AND/OR PREPARING ORDERS/JUDGMENTS AFTER THE COURT RULES:The prevailing party shall give notice of the final ruling to each party, unless notice is waived by all parties. Theprevailing party shall prepare an order/judgment for the court’s signature if the ruling disposes of a party or thecase.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will benecessary and the tentative will become the final ruling. If no one appears at the hearing and the court has notbeen notified all parties submit on the tentative ruling, the matter may go off calendar.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely regurgitate theirpoints and authorities.No case law or other authority may be cited at oral argument unless: (1) the citing party reasonably did notbelieve it was pertinent at the time the party filed its briefs; and (2) the party has given reasonable notice ofthe new authority, including citation, to all other parties before the hearing.Motions generally will not be continued after the tentative has been posted.

# Case Name Motion Tentative1 Chauncey/Bella Palermo HOA Atty feesHear argMP: PsRP: Ds2 Cimeni/Bank of AmerDemurrer to complReasoning: No basis for atty feesagainst tenants Pulido or mgmt. coIndep Mgmt; CC&Rs provide basis rePerez and Bella Palermo; re Perez,jury found him negl but found he didnot breach CC&Rs; re CC 1369.520,pltfs’ claim was for > small claimslimit; under CC&Rs atty fees areawardable in action “to enforce anyof the provisions contained in (theCC&Rs),” and CC&Rs deem viol oftheir terms as private nuisance, sosuit was brought to enforce them;Kim, Kai and Talan prevailed butAsher did not; re fees, attys’ hrlyrates are reasonable; re contract vs.other causes of action, nuisance was,by the CC&Rs, part of them, but neglwas not, and it’s impossible toapportion; ct has discretion to limitaward to amt reasonable in light ofthe results; claimed fees should bereduced due to Asher’s failure toprevail; further reduction should bemade in lt of resultsSustain w/ 10 days leave to amdMP: Ds BoA and RecontrustReasoning: Take j/n per reqst; recause 1 for viol of CC 2923.6, complRP: Ps Cimeni and Gonzalesalleges denial ltr fails to list prop valused to calc NPV, but 2923.6(f)(3)only reqrs that if NPV is the reasonfor denial, and the denial ltr says thereason was inadequate income anddoesn’t allege how, if at all, NPV isinvolved, and re material changenotice per 2923.6(g), to ‘document’and ‘submit’ a material change incircumstance means more thansimply stating asserting income is upand expenses are down – otherwise,such a barebones description wouldeasily sidestep the entire purpose ofsubsection (g), which is meant torelieve mortgage servicers fromevaluating multiple loan modificationapplications submitted for thepurpose of delay; re cause 2 for B&P17200 viol, it depends on othercauses; re cause 3 for negl, loanmod consideration falls squarely w/inthe scope of deft’s conventional roleof a lender of $ (Ragland 209 A4182, 207); re cause 4 for acctg, pltfsdo not allege they are due some amtfrom defts3 Cox/Wells Fargo Bank Demurrer to 2d amd compl Overrule re causes 1 & 2; sust w/o

MP: D WellsRP: Ps Cox4 Friedman/Jack in the Boxleave to amd as to causes 2-6Reasoning: Take j/n per reqst; reuncertainty, the allegs are suff to putdeft on reasonable notice of thenature of the claim and theories; recause 1 for prom estoppel, pltfsadequately plead promise by deft togrant loan mod at $2,192/mo if pltfmade 3 conseq trial pmts and pltfsrelied to their detriment by notpursuing Chap 13, short sale etc; recause 2 for breach of contract, pltfsadequately plead agmt to grant loanmod at $2,192/mo if pltf made 3conseq trial pmts; re cause 3 forfalse advertising under B&P 17500,complaint fails to allege thestatements were false andmisleading; re cause 4 for viol of FairDebt Collection Practices Act, the Actdoes not apply to foreclosureactivities (Pfeifer 211 A4 1250, 1261-1264); re cause 5 for negl, loan modconsideration falls squarely w/in thescope of deft’s conventional role of alender of $ (Ragland 209 A4 182,207); re cause 6 for B&P 17200 viol,it depends on acts beyond breach ofcontract/promissory estoppelAtty fees Grant in amt of $12,955MP: Ds HavilandRP: P Friedman8 R/Western Transit SystMP: P Celene RRP: D Western Transit10 Rancho Los AlimitosFoundation/Tsychiyama KainoSun & CarterMP: P RanchoRP: Ds Tsychiyama et al13 Eddleman/GrayMP: D GrayQuash subpoenaLeave to file 1 st amd complLeave to deposit fundsReasoning: MPs prevailed; re amt,rate is reas as is most of the time, sobased on MPs’ concessions, amt of$12,955 is reasonableGrant and deny in partReasoning: Ct balances rt of privacyvs need for disclosure and RP hasburden to show particularized need(Britt 20 C3 844); balance favorsdisclosure of: percipient wits andtheir stmts and contact info, otherinstances of sexual misconduct byCorrigan or other Western Transitemployee, and anyinvestigation/repts of the incident;records should be limited to 4/1/10to present; protective order nec toprevent disclosure of info beyondpties, counsel, expt wits and the ctGrantReasoning: Liberal grant; MP pltfseeks to correct deft’s name and addrecently discovered defects anddamages; court would entertain mofor contDeny w/o prejReasoning: Deft MP wants to deposit

RP: Ps Eddleman~$72K to confess jmt in that amt;pltfs RP object, claiming that becausepltfs rejected a 998 offer of $100K,pre-jmt interest accrued as a cost,and deft improperly assigned her badfaith claim against the carrier to thecarrier (in return for the carrierpaying her criminal restitution of~$28K) because that claim was anasset of her bkcy; the bkcy issueshould be resolved before this ctmoves fwd on the confession of jmtissue

JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYAugust 23, 2013 at 2:00 PMTentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing, wheneverpossible. The rulings will also be posted outside the courtroom on the bulletin board by noon on the day of thescheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer to submit thematter on your papers without oral argument, advise all counsel first and then telephone the clerk at(657)622-5212. If the moving party has submitted the matter and there are no appearances by any party at thehearing, the tentative ruling will be the final ruling. Unless otherwise indicated, the moving party shall providewritten notice of all rulings or prepare an Order for the court’s signature per CRC 3.1312. If no one has telephonedthe clerk to submit and there are no appearances by any party, the tentative will become the final order of thecourt.Department C12 has an assigned court reporter for all Law & Motion matters.Once the tentative ruling has been posted on the Internet, no supplemental papers may be filed and nocontinuances will be permitted.1 11-500776Bank of America vs. LaurusConstruction Corporation2 12-595763California Bank & Trust vs.Fralin1) Defendant Laurus Construction Corporation’s Attorney of Record, LewisB. Adelson’s Motion to be Relieved as Counsel of RecordGrant. Defendant Laurus Construction Corporation’s Attorney of Record,Lewis B. Adelson’s Motion to be Relieved as Counsel of Record isgranted. The Court notes that the defendant corporation’s agent for serviceof process Eric Reyes is a defendant and has previously substituted in proper. This order will be effective on filing proof of service of this order. TheMSC 9/2013 and the jury trial 10/15/13 both remain on calendar.M/p to give notice.1) Defendant K. Joseph Shabani’s Attorney of Record, H. Joseph Nourmand& L/O H. Joseph Nourmand, APC’s Motion to be Relieved as Counsel ofRecord2) Defendant Curtis Fralin’s Attorney of Record, H. Joseph Nourmand & L/OH. Joseph Nourmand, APC’s Motion to be Relieved as Counsel of RecordContinue. Defendants K. Joseph Shabani and Curtis Fralin’s Attorney ofRecord, H. Joseph Nourmand & Law Offices of H. Joseph Nourmand, APC’sMotion to be Relieved as Counsel of Record is continued to 8/30/13 at 2pmto confirm valid service of the motions on the clients and counsel forCalifornia Bank & Trust. The proofs of service are based on hearsay sincedeclarant states that she “caused” the motions to be handdelivered. Providing there are proper proofs of service filed by 8/29/13,these motions will be granted and the orders will be effective on filingproofs of service and notice of the ruling.3 13-638278 1) Attorney Joseph Hugg’s Application to Appear Pro Hac Vice on behalf ofDefendant Kloeckner Metals Corporation

Jackson vs. Kloeckner MetalsCorporation2) Attorney Eve Masinter’s Application to Appear Pro Hac Vice on behalf ofDefendant Kloeckner Metals CorporationGrant. Both motions for counsel to appear pro hac vice on behalf ofDefendant Kloeckner Metals Corporation are granted. M/p to give notice.5 10-360536Lopez vs. Pedrosa1) Plaintiff Antonio Lopez’s Motion for Leave to file a First AmendedComplaintGrant in part and Deny in part. Plaintiff Lopez’s motion for leave to file afirst amended complaint is granted in part and denied in part. GRANTED asto defendants Julio Cesar Aguilar and Faar Investments, Inc. as to allcauses of action including the new causes of action set forth plaintiff Lopez’sfirst amended complaint. See, C.C.P. § 473(b) and Morgan v. SuperiorCourt (1959) 172 Cal.App.2d 527, 530. DENIED without prejudice as todefendant Wilfredo Pedrosa as to adding the proposed two new causes ofaction for securities fraud and civil conspiracy in light of the bankruptcycourt’s discharge order of 5-14-12. On 5-24-13, plaintiff’s motion for leaveto amend was continued so that plaintiff could seek an order from thatbankruptcy to authorize his proceeding with his proposed new causes ofaction securities fraud and civil conspiracy against defendant WilhelmPedrosa. Plaintiff has not filed any supplemental brief and/or declarationevidencing an order has been obtained from the bankruptcy court at thistime. Plaintiff Lopez is ordered to amend his proposed first amendedcomplaint so as to delete his new causes of action for securities fraud andcivil conspiracy as to defendant Wilfredo Pedrosa only before e-filingplaintiffs’ first amended complaint with the court. Moving party to givenotice.Other Matter: Since the hearing on 5-24-13, plaintiff Lopez has served codefendantsJulio Cesar Aguilar and Faar Investments, LLC. Plaintiff Lopezwill now need to serve these defendants with his first amended complaint.According to the proofs of service of summons these co-defendants wereboth served on 4-2-13. Plaintiff is ordered to serve co-defendants JulioAguilar and Faar Investments, LLC with his first amended complaint within30 days because at this time these defendants have not appeared in thiscivil action.6 12-539362Stadium Promenade, LLC vs.Om Ras Inc.1) Plaintiff Stadium Promenade, LLC’s Motion for Order to Deem Facts withRegard to Plaintiff Stadium’s Requests for Admissions, Set One propoundedon Defendant Tavinder K. SawhneyContinue. Plaintiff Stadium Promenade, LLC’s Motion for Order to DeemFacts with Regard to Plaintiff Stadium’s Requests for Admissions, Set Onepropounded on Defendant Tavinder K. Sawhney is continued to 9-20-13 at2pm. Plaintiff shall serve the moving papers on the defendant who is nowin pro per.The Motion to Deem Requests for Admission Admitted was served by e-mailon 7/17/13 to Darin Dominquez, Esq. The Motion was filed on 7/17/13 at1:29 p.m. The substitution of attorneys was filed shortly thereafter at2:42 p.m. on 7/17/13. Technically, Plaintiff properly served the motionon the attorney of record. Attorney Dominquez was obligated to providethe motion to his client. To be abundantly safe, Defendant could haveserved the Motion directly on Plaintiff upon receipt of the substitution ofattorney form. Since there is no opposition filed it is unclear to the Courtwhen and if the defendant received the subject RFA’s or the subject Motionto Deem the RFA’s Admitted in a timely manner.Moving party shall serve the notice of continuance of hearing and the

subject motion and supporting papers including the subject RFA’s ondefendant.7 13-650571Feldsott & Lee, a LawCorporation vs. ForsterHighlands CommunityAssociation1) Defendant Forster Highlands Community Associations’ Motion to CompelArbitration and Stay the Complaint Pending Mandatory Fee DisputeArbitrationGrant. Defendant Forster Highlands’ motion for compel mandatory feearbitration, pursuant to Bus. & Prof. Code § 6200(a), is GRANTED. First, theOCBA has already concluded that a timely petition for attorney feearbitration was filed by defendant Forster Highlands in regard to theattorney fee claims by plaintiff Feldsott & Lee. (See, Zakay Declaration, 9,and Exhibit H, Letter of June 7, 2013.) Second, the court finds thatdefendant Forster Highlands has presented evidence of a timely petition formandatory attorney fee arbitration in this case. (See, Zakay Declaration, 2, and Exhibit A.) Also, defendant Forster Highlands’ request that this civilaction be stayed during the pendency of this attorney fee arbitration,pursuant to Bus. & Prof Code § 6201(c), is also GRANTED. Finally, anarbitration status conference is set on 10-28-13, at 10:00, in DepartmentC-12.Moving party to give notice.8 12-608186Flores vs. The Irvine LandCompany, LLC1) Defendant The Irvine Land Company, LLC’s Motion for a Court Order toAllow the Inspection of a Boat Held by Orange County Sheriff’s DepartmentDeny. Defendant The Irvine Land Company’s Motion for an Order to AllowInspection of a Boat held by the Orange County Sheriff’s Department isDENIED. No authority supporting the issuance of an Order is cited. ARequest for Production is ineffective to require compliance by a nonpartywitness. CCP §2025.280M/p to give notice.9 12-562409Advanced MP Technology, Inc.vs. Mass Integrated Systems,Inc.1) Plaintiff Advanced MP Technology, Inc.’s Motion for Award of Attorney’sFees and CostsGrant in part. Plaintiff’s motion for an award of attorney’s fees againstdefendant is granted in the amount of $130,402.07. The Court has takeninto consideration the amount of the judgment, the specific invoiceschallenged by defendant and that there were two attorneys at trail whenone would have sufficed. Moving party to give notice.11 12-544245Kiewit Infrastructure West Co.vs. Orange County SanitationDistrictRelated: 12-544802; KiewitInfrastructure West Co. vs.Orange County SanitationDistrict1) Plaintiff Kiewit Infrastructure West Co.’s Motion for Summary Judgmentor in the alternative, Summary Adjudication of Issues in its favor andagainst Defendant Orange County Sanitation District2) Defendant Orange County Sanitation District’s Motion for SummaryJudgment in its favor on the First Amended Complaint of Plaintiff KiewitInfrastructure West Co.

12 12-586627Plastic Surgery Institute ofCalifornia Inc. vs. CaliforniaSurgical Institute, Inc.1) Plaintiff Plastic Surgery Institute of California, Inc. and Mazin Al-Hakeem,M.D.’s Motion to Compel Defendant California Surgical Institute, Inc. toFurther Respond to First Set of Requests for Admissions and Request forMonetary Sanctions against Defendant in the amount of $1,225.052) Plaintiff Plastic Surgery Institute of California, Inc. and Mazin Al-Hakeem,M.D.’s Motion to Compel Defendant Tarick Kamal Smaili to FurtherRespond to First Set of Requests for Admissions and Request for MonetarySanctions against Defendant in the amount of $1,225.053) Plaintiff Plastic Surgery Institute of California, Inc. and Mazin Al-Hakeem,M.D.’s Motion to Compel Defendant California Surgical Institute, Inc. toFurther Responses to Form Interrogatories, Set One and Request forMonetary Sanctions against Defendant in the amount of $1,083.804) Plaintiff Plastic Surgery Institute of California, Inc. and Mazin Al-Hakeem,M.D.’s Motion to Compel Defendant Tarick Kamal Smaili to FurtherResponses to Form Interrogatories, Set One and Request for MonetarySanctions against Defendant in the amount of $1,083.805) Plaintiff Plastic Surgery Institute of California, Inc. and Mazin Al-Hakeem,M.D.’s Motion to Compel Defendant California Surgical Institute, Inc. toFurther Responses to First Request for Production of Documents andRequest for Monetary Sanctions against Defendant in the amount of$1,394.306) Plaintiff Plastic Surgery Institute of California, Inc. and Mazin Al-Hakeem,M.D.’s Motion to Compel Defendant Tarick Kamal Smaili to FurtherResponses to First Request for Production of Documents and Request forMonetary Sanctions against Defendant in the amount of $1,394.30Continue for further meet and confer.1) Plaintiffs’ motion to compel further responses to request for admissionsby defendant CSI is CONTINUED to 9-27-13, at 2:00 p.m., in DepartmentC-12, with plaintiffs’ counsel and new counsel for defendants CSI ordered tomeet and confer further over the remaining RFA No. 30 that has not beenwithdrawn by plaintiffs’ counsel. The court finds that plaintiffs commenced abelated meet and confer in regard to the requests for admissions and with atrial continuance to 1-27-14 that a further meet and confer is warranted toattempt to informally resolve this discovery dispute. See, Obregon v.Superior Court (1998) 67 Cal.App.4 th 424, 433 to 434. Based on theevidence presented, the court finds that defendant CSI’s responses wereserved by mail and thus plaintiffs’ motion to compel, which was filed andserved on 7-23-13, was timely. If the parties cannot resolve this discoverydispute, plaintiffs are ordered to file a supplemental brief 9 court daysbefore the continued hearing date, and defendant CSI can file asupplemental brief 5 court days before the continued hearing date settingforth the further meet and confer efforts and why this matter remains indispute. Moving party to give notice.2) Plaintiffs’ motion to compel further responses to request for admissionsby defendant Smaili is CONTINUED to 9-27-13, at 2:00 p.m., in DepartmentC-12, with plaintiffs’ counsel and new counsel for defendant Smaili ordered

to meet and confer further over the remaining RFA No. 30 that has notbeen withdrawn by plaintiffs’ counsel. The court finds that plaintiffscommenced a belated meet and confer in regard to the requests foradmission and with a trial continuance to 1-27-14 that a further meet andconfer is warranted to attempt to informally resolve this discovery dispute.See, Obregon v. Superior Court (1998) 67 Cal.App.4 th 424, 433 to 434.Based on the evidence presented, the court finds that defendant Smaili’sresponses were served by mail and thus plaintiffs’ motion to compel, whichwas filed and served on 7-23-13, was timely. If the parties cannot resolvethis discovery dispute, plaintiffs are ordered to file a supplemental brief 9court days before the continued hearing date, and defendant Smaili can filea supplemental brief 5 court days before the continued hearing date settingforth the further meet and confer efforts and why this matter remains indispute. Moving party to give notice.3) Plaintiffs’ motion to compel further responses to form interrogatories bydefendant CSI is CONTINUED to 9-27-13, at 2:00 p.m., in Department C-12, with plaintiffs’ counsel and new counsel for defendant CSI ordered tomeet and confer further over the remaining Form Rog. No. 15.1 that hasnot been withdrawn by plaintiffs’ counsel. The court finds that plaintiffscommenced a belated meet and confer in regard to these forminterrogatories and with a trial continuance to 1-27-14 that a furthermeet and confer is warranted to attempt to informally resolve this discoverydispute. See, Obregon v. Superior Court (1998) 67 Cal.App.4 th 424, 433 to434. Based on the evidence presented, the court finds that defendant CSI’sresponses were served by mail and thus plaintiffs’ motion to compel, whichwas filed and served on 7-23-13, was timely. If the parties cannot resolvethis discovery dispute, plaintiffs are ordered to file a supplemental brief 9court days before the continued hearing date, and defendant CSI can file asupplemental brief 5 court days before the continued hearing date settingforth the further meet and confer efforts and why this matter remains indispute. Moving party to give notice.4) Plaintiffs’ motion to compel further responses to form interrogatories bydefendant Smaili is CONTINUED to 9-27-13, at 2:00 p.m., in Department C-12, with plaintiffs’ counsel and new counsel for defendant Smaili ordered tomeet and confer further over the remaining Form Rog. No. 15.1 that hasnot been withdrawn by plaintiffs’ counsel. The court finds that plaintiffscommenced a belated meet and confer in regard to these forminterrogatories and with a trial continuance to 1-27-14 that a further meetand confer is warranted to attempt to informally resolve this discoverydispute. See, Obregon v. Superior Court (1998) 67 Cal.App.4 th 424, 433 to434. Based on the evidence presented, the court finds that defendantSmaili’s responses were served by mail and thus plaintiffs’ motion tocompel, which was filed and served on 7-23-13, was timely. If the partiescannot resolve this discovery dispute, plaintiffs are ordered to file asupplemental brief 9 court days before the continued hearing date, anddefendant Smaili can file a supplemental brief 5 court days before thecontinued hearing date setting forth the further meet and confer efforts andwhy this matter remains in dispute. Moving party to give notice.5) Plaintiffs’ motion to compel further RFPD responses by defendant CSI isCONTINUED to 9-27-13, at 2:00 p.m., in Department C-12, with plaintiffs’counsel and new counsel for defendant CSI ordered to meet and conferfurther over RFPD Nos. 3, 9, 10, 11, 15, 16, 17, 18, 19, 20, 21, 22 and 25that remain in dispute. The court finds that plaintiffs commenced a belatedmeet and confer in regard to these document requests and with a trialcontinuance to 1-27-14 that a further meet and confer is warranted toattempt to informally resolve this discovery dispute. See, Obregon v.Superior Court (1998) 67 Cal.App.4 th 424, 433 to 434. Based on theevidence presented, the court finds that defendant CSI’s responses were

served by mail and thus plaintiffs’ motion to compel, which was filed andserved on 7-23-13, was timely. If the parties cannot resolve this discoverydispute, plaintiffs are ordered to file a supplemental brief 9 court daysbefore the continued hearing date, and defendant CSI can file asupplemental brief 5 court days before the continued hearing date settingforth the further meet and confer efforts and why this matter remains indispute. In addition, plaintiffs are ordered to submit a revised separatestatement as to any document requests that remain in dispute with suchdocument request set forth in ascending numerical order. Moving party togive notice.6) Plaintiffs’ motion to compel further RFPD responses by defendant Smailiis CONTINUED to 9-27-13, at 2:00 p.m., in Department C-12, withplaintiffs’ counsel and new counsel for defendant Smaili ordered to meetand confer further over RFPD Nos. 3, 9, 10, 11, 15, 16, 17, 18, 19, 20, 21,22 and 25 that remain in dispute. The court finds that plaintiffs commenceda belated meet and confer in regard to these document requests and with atrial continuance to 1-27-14 that a further meet and confer is warranted toattempt to informally resolve this discovery dispute. See, Obregon v.Superior Court (1998) 67 Cal.App.4 th 424, 433 to 434. Based on theevidence presented, the court finds that defendant Smaili’s responses wereserved by mail and thus plaintiffs’ motion to compel, which was filed andserved on 7-23-13, was timely. If the parties cannot resolve this discoverydispute, plaintiffs are ordered to file a supplemental brief 9 court daysbefore the continued hearing date, and defendant Smaili can file asupplemental brief 5 court days before the continued hearing date settingforth the further meet and confer efforts and why this matter remains indispute. In addition, plaintiffs are ordered to submit a revised separatestatement as to any document requests that remain in dispute with suchdocument request set forth in ascending numerical order. Moving party togive notice.Other Matter: On 8-21-12, plaintiffs filed proofs of service on defendantsIham Kharma, dba Clear Media and Clear Media Incorporated. On 7-16-13,plaintiffs’ filed an application for publication of plaintiffs’ right to seekpunitive damages as to defendants Ihab Kharma and Clear MediaIncorporated which was granted. Defendants Iham Kharma, Iham Kharmadba Clear Media and Clear Media Incorporated have not appeared in thisaction and the defaults of these named defendants have not been taken.The court inquires why the defaults of these defendants have not beentaken or whether plaintiffs are intending to dismiss their complaint as todefendants Iham Kharma, Iham Kharma dba Clear Media and Clear MediaIncorporated.13 09-327291Fein vs. Powell1) Defendant Desmond E. McGuire, M.D.’s Motion for Summary JudgmentGrant. Defendant Dr. McGuire’s motion for summary judgment as to theFein plaintiffs’ unverified complaint is GRANTED. See, C.C.P. § 437c.Defendant Dr. McGuire carried his initial burden that as an ophthalmologisthe complied with the standard of care at all times and that no act oromission on his part contributed to plaintiff Leslie Fein’s loss of vision. See,Sinz v. Owens (1949) 33 Cal.App.2d 749, 753 and Jones v. OrthoPharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402. [See, Defendant Dr.McGuire’s UMF Nos. 5, 6 and 7.] Also, plaintiff Michael Fein’s claim for lossof consortium is simply derivative of his wife’s claim for medicalmalpractice. See, Blain v. Doctor’s Co. (1990) 222 Cal.App.3d 1048, 1067.Since defendant Dr. McGuire carried his initial burden on the standard ofcare and lack of causation, the burden shifted to plaintiffs Leslie Fein and

Michael Fein to present expert testimony that Dr. McGuire’s care andtreatment fell below the standard of care and was a cause of injury toplaintiff Leslie Fein. Plaintiffs have not filed any opposition or submitted anyexpert declaration in opposition to Dr. McGuire’s expert. Thus Fein plaintiffshave not presented any admissible evidence to demonstrate that any triableissue of material fact exists in regard to the standard of care and causationon the part of Dr. McGuire. Thus Dr. McGuire’s motion for summaryjudgment is granted. Moving party to give notice and to submit a proposedjudgment within 21 days.2) Defendant Thomas R. Powell, M.D.’s Motion for Summary JudgmentGrant. Defendant Dr. Powell’s motion for summary judgment as to theFein plaintiffs’ unverified complaint is GRANTED. See, C.C.P. § 437c.Defendant Dr. Powell carried his initial burden that as a specialist inrheumatology and internal medicine that he complied with the standard ofcare at all times and that no act or omission on his part contributed toplaintiff Leslie Fein’s loss of vision. See, Sinz v. Owens (1949) 33Cal.App.2d 749, 753 and Jones v. Ortho Pharmaceutical Corp. (1985) 163Cal.App.3d 396, 402. [See, Defendant Dr. Powell’s UMF Nos. 28, 29, 30 and31.] Also, plaintiff Michael Fein’s claim for loss of consortium is simplyderivative of his wife’s claim for medical malpractice. See, Blain v. Doctor’sCo. (1990) 222 Cal.App.3d 1048, 1067. Since defendant Dr. Powell carriedhis initial burden on the standard of care and lack of causation, the burdenshifted to plaintiffs Leslie Fein and Michael Fein to present expert testimonythat Dr. Powell’s care and treatment fell below the standard of care and wasa cause of injury to plaintiff Leslie Fein. Plaintiffs have not filed anyopposition or submitted any expert declaration in opposition to Dr. Powell’sexpert. Thus Fein plaintiffs have not presented any admissible evidence todemonstrate that any triable issue of material fact exists in regard to thestandard of care and causation on the part of Dr. Powell. Thus Dr. Powell’smotion for summary judgment is granted. Moving party to give notice andto submit a proposed judgment within 21 days.3) Defendant John I. Kleinberg, M.D.’s Motion for Order ImposingTerminating Sanctions by Dismissing the Complaint of Plaintiff Leslie Feindue to her Willful Failure to Answer Form and Special Interrogatories asRequired by Court Order of March 15, 2013Grant. Defendant Dr. Kleinberg’s motion for sanctions is GRANTED. TheCourt awards monetary sanctions of $500 as against plaintiff Leslie Feinpayable to counsel for defendant Kleinberg within 60 days. Plaintiff LeslieFein shall comply with the court’s discovery order of 3-15-13 by 9-30-13. Failure to comply may subject plaintiff to potential further sanctions upto and including dismissal of her complaint as to this defendant. Counselfor defendant Kleinberg is ordered to attach the subject discovery with thenotice of ruling.Defendant Dr. Kleinberg’s Request for Judicial Notice: Defendant Dr.Kleinberg requested that the court take judicial notice of the followingdocuments: Exhibit 1, Dr. Kleinberg’s motion to compel plaintiff Leslie Feinto answer defendant’s form interrogatories and special interrogatories,Exhibit 2, Court’s Minute Order of 3-15-13 granting defendant Dr.Kleinberg’s motion to compel responses by plaintiff Leslie Fein to defendantDr. Kleinberg’s form interrogatories and special interrogatories. GRANTEDas to Exhibits 1 and 2, but as to Exhibit 1 such notice should be limited tothe filing of this motion and supporting declarations with the court and notas to the truth of any claims or contentions set forth therein. See, EvidenceCode § 452(d) and Day v. Sharp (1975) 50 Cal.App.3d 904, 914.

Moving party to give notice.4) Defendant John I. Kleinberg, M.D.’s Motion to Compel Plaintiff MichaelFein to Answer Special Interrogatories, Set One and Request for MonetarySanctions in the amount of $1,840.00Grant. Defendant Dr. Kleinberg’s motion to compel responses todefendant’s special interrogatories by plaintiff Michael Fein is GRANTED.See, C.C.P. § 2030.290(b). Plaintiff Michael Fein is ordered to provideresponses to defendant’s special interrogatories, without objections, within30 days. The court denies the request for sanctions under thecircumstances of this case. Moving party to give notice.

JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYAugust 30, 2013 at 2:00 PMTentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing, wheneverpossible. The rulings will also be posted outside the courtroom on the bulletin board by noon on the day of thescheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer to submit thematter on your papers without oral argument, advise all counsel first and then telephone the clerk at(657)622-5212. If the moving party has submitted the matter and there are no appearances by any party atthe hearing, the tentative ruling will be the final ruling. Unless otherwise indicated, the moving party shallprovide written notice of all rulings or prepare an Order for the court’s signature per CRC 3.1312. If no one hastelephoned the clerk to submit and there are no appearances by any party, the tentative will become the finalorder of the court.Department C12 has an assigned court reporter for all Law & Motion matters.Once the tentative ruling has been posted on the Internet, no supplemental papers may be filed andno continuances will be permitted.2 13-648511AA Accident Attorneys vs.Grecian Chiropractic1) Defendant Todd Grecian, an individual, and as assignee of GrecianChiropractic & Wellness’ Demurrer to Plaintiff AA Accident Attorneys,P.L.C.’s ComplaintOverrule. The demurrer is OVERRULED; Defendant has 10 days toanswer. Plaintiff is to give notice.Defendant cites no authority that prohibits naming co-conspirators asDoes. See e.g., Building Enterprises, Inc. v. Riviera Lend-Lease, Inc.(1999) 72 Cal.App.4th 1111 where this was done without objection. Theallegations of the complaint show clearly that there must have been atleast one other conspirator for the alleged falsified invoices to have beeninput into Plaintiff’s computer system.Defendant was clearly not prejudiced by the failure to include the 5thcause of action on the face of the Complaint. CRC Rule 3.2110 isinapplicable; Rule 2.111(6) does not state that individual causes of actionmust be listed.3 13-636205Hulsey vs. Onorio1) Defendants Nancy Sandstrom, Stephen Sandstrom and HeritageManufactured Homes, LLC’s Demurrer to Plaintiff Annette Hulsey’s FirstAmended ComplaintSustain. The demurrer of the Sandstroms and Heritage ManufacturedHomes is SUSTAINED with 20 days leave to amend. Defendants are togive notice.Plaintiff’s opposition cites no authority and does not address the issuesraised; it is the equivalent of no opposition at all.2d and 3d causes of action for fraud: Plaintiff alleges the same general“representations” for each of the persons she has sued, without statingwhat any of them actually said. She must allege the names of thepersons making the representations, their authority to speak, to whom

they spoke, what specifically each one said/wrote, and when it wassaid/written. Robinson Helicopter Co. Inc. v. Dana Corp. (2004) 34Cal.4th 979, 993.5th cause of action for strict products liability: Under Bay SummitCommunity Assn. v. Shell Oil Co. (1996) 51 Cal.App.4th 762, a retailer isin the chain of distribution. However, Brejcha v. Wilson Machinery, Inc.(1984) 160 Cal.App.3d 630, 652, held that an auctioneer selling onconsignment was not because he had no role in the manufacturingprocess and no duty to inspect.Plaintiff must clarify these defendants’ actual roles to permit the court todetermine which of these cases should be applied; she may not hidebehind a string of clearly inapplicable roles. These defendants had nopart in the manufacturing process; according to Plaintiff’s Exhibit 1, themotorhome was manufactured in 1985.However, these defendants did advertise the Home for sale. On the nextdemurrer, the Court invites briefing, with citations, on whether an agentwho sells a motorhome has duties similar to those of a seller of realestate.6th cause of action for negligence. Plaintiff does not allege negligence infailing to inspect or warn; her allegations appear to apply to themanufacturing process. She does not allege that these defendantscontributed in any way to causing the home to be defective. Again, shemust clarify their roles.7th cause of action for express and implied warranties. Plaintiff appearsto be claiming that the defendants’ advertisement constituted an expresswarranty. Even if it did, she does not allege that any of the express“terms” were breached.Plaintiff must allege the statutory basis for her claims of impliedwarranties of merchantability and fitness. She cannot rely on CC §1792&/or §1792.1 because they apply to the sale of “consumer goods.” UnderCC §1791(a), “consumer goods” means a new product. If she relies onany other statute, she must expressly cite it in the pleading. If she relieson common law, she must say so in the pleading and be prepared todefend her position if there is another demurrer.Defendants have cited no authority or evidence of legislative intent thatwould permit the Court to hold that “as shown” is the same as “as is” or“with all faults.” The legislature was very specific about the language thatconstitutes a disclaimer; it did not say “or similar language.” To prevailon this issue on demurrer, Defendants must cite authority permitting theCourt to expand the statutory language.2) Defendant Victor Onorio’s Demurrer to Plaintiff Annette Hulsey’s FirstAmended ComplaintSustain. The demurrer of Mr. Onorio is SUSTAINED with 20 days leaveto amend. Defendant is to give notice.Plaintiff’s opposition cites no authority and does not address the issuesraised; it is the equivalent of no opposition at all.1st cause of action for fraud: Plaintiff alleges the same general“representations” for each of the persons she has sued, without statingwhat any of them actually said. She must allege the names of thepersons making the representations, their authority to speak, to whom

they spoke, what specifically each one said/wrote, and when it wassaid/written. Robinson Helicopter Co. Inc. v. Dana Corp. (2004) 34Cal.4th 979, 993.7th cause of action for express and implied warranties. Plaintiff appearsto be claiming that Mr. Onorio’s co-defendants’ advertisement constitutedan express warranty. Even if it was, she does not allege that thisdefendant gave the warranty or that any of the express “terms” werebreached.Plaintiff must allege the statutory basis for her claims of impliedwarranties of merchantability and fitness. She cannot rely on CC §1792&/or §1792.1 because they apply to the sale of “consumer goods.” UnderCC §1791(a), “consumer goods” means a new product. If she relies onany other statute, she must expressly cite it in the pleading. If she relieson common law, she must say so in the pleading and be prepared todefend her position if there is another demurrer.Defendants have cited no authority or evidence of legislative intent thatwould permit the Court to hold that “as shown” is the same as “as is” or“with all faults.” The legislature was very specific about the language thatconstitutes a disclaimer; it did not say “or similar language.” To prevailon this issue on demurrer, Defendants must cite authority permitting theCourt to expand the statutory language.4 11-440272Tse vs. Ferrado Newport, LLC1) Defendant/Cross-Defendant/Cross-Complainant Ferrado Newport,LLC’s Motion for Leave to File Cross-Complaint against Defendant PacificMonarch Resorts, Inc.Grant. Defendant/cross-defendant Ferrado Newport’s motion for leave tofile a cross-complaint to re-assert cross-claims for indemnity, contributionand declaratory relief, and a new cross-claim for express indemnity,against defendant/cross-defendant Pacific Monarch Resort is GRANTED.See, C.C.P. § 428.50 and Foot’s Transfer & Storage Co., Ltd. v. SuperiorCourt (1980) 114 Cal.App.3d 897, 902.Defendant/cross-defendant Ferrado Newport has alleged it is entitled toindemnity and/or express indemnity and defendant/cross-defendantPacific Monarch Resorts has denied this claim. The court cannot determinefrom the face of the cross-complaint and items subject to judicial noticewhether defendant/cross-defendant Pacific Monarch Resorts has agreedand is indemnifying Ferrado Newport or not. Also, a mini-summaryjudgment on this issue at the stage of a request for leave to amend is notauthorized by code and pertinent case law. Further, no prejudice is shownas defendant Pacific Monarch Resort has been a defendant in this civilaction since it filed its answer to plaintiffs’ complaint on 10-4-11.Defendant/cross-defendant/cross-complainant Ferrado Newport is orderedto e-file its proposed cross-complaint by 9-6-13 and serve all parties withthe cross-complaint that is e-filed.Moving party to give notice.7 12-564933Liang vs. LevyConsolidated:12-565052;Judgment on the PleadingsGranted 6/26/20131) Plaintiffs Huey Jiuan Liang, Automotive Remarketing Xchange, LLC andHuey and Associates, LLC’s Motion to Strike or Tax CostsGrant. The motion of Ms. Liang to strike the cost memorandum of Mr.Holstein and Mr. Levy is GRANTED. The cost memorandum was filed incase #564933, but the Defendants have not yet prevailed in thatcase. No cost memorandum by these defendants was filed in case#5659052.

The motion to tax cost is OFF CALENDAR [moot]. Plaintiff Liang is to givenotice.8 12-611704Chen vs. Zhang1) Plaintiff Hui Chen’s Motion to Enforce Written Settlement Agreementbetween Plaintiff and the Defendants Granada Wood & Cabinets, Inc., TaoZhang aka Tony Zhang and Bo Zhang aka Roman ZhangTo be re-set in Dept. C23. The Chen v. Zhang civil action is deemedrelated to Granada Wood & Cabinets, Inc. v. Chen et al., O.C.S.C. CaseNo. 30-2012-00604813, and ordered re-assigned to Department C-23.See, Rule 3.300(h)(1)(A). Plaintiff Chen is ordered to contact the clerk inDepartment C-23 to have her motion to enforce written settlementagreement, pursuant to C.C.P. § 664.6, re-set for hearing inDepartment C-23.Moving party to give notice.Other Matter: Judge Moss has determined that the case of Chen v.Granada Wood & Cabinets, Inc., et al., O.C.S.C. Case No. 30-2012-00611704 is related to the earlier filed civil action of Zhang v. Chen, etal., O.C.S.C. Case No. 30-2013-00662379 that was previously pending inDepartment C-23. See, Rule 3.300(h)(1)(A). Both of these civil actionswere dismissed in light of the written settlement agreement that is thesubject matter of the pending motion before this court. Since plaintiffChen is now seeking to enforce the written settlement agreement thatencompassed both of these civil actions, these actions should be foundrelated with the pending motion to enforce to be re-set for hearing inDepartment C-23.In addition, there is now a related civil action for alleged breach of the 1-17-13 written settlement agreement pending before Judge Horn that wasfiled on 7-16-13. This is the case of Zhang v. Chen, et al., O.C.S.C. CaseNo. 30-2013-00662379. It would make sense to consolidate this Zhangmatter pending in Department C-31 with Granada Wood & Cabinets, Inc.v. Chen et al., O.C.S.C. Case No. 30-2012-00604813 also.11 13-641914K Milan Construction Inc. vs.Great American ChickenCorp. Inc.1) Defendant Yum Restaurant Services Group, Inc.’s Motion for Judgmenton the Pleadings as to the Third and Fourth Causes of Action of Plaintiff K.Milan Construction, Inc. dba US Builders and Maintenance’s ComplaintGrant. The motion for judgment on the pleadings is GRANTED as to the3d cause of action for unjust enrichment without leave to amend for lackof opposition. Per Hertzberg v. County of Plumas (2005) 133Cal.App.4th 1, 20, where a party addresses some contentions but notothers, it is deemed to have abandoned the claim that was not addressed.The motion as to the 4th cause of action for goods and services renderedis GRANTED with 20 days leave to amend. Farmers Ins. Exchange v.Zerin (1997) 53 Cal.App.4th 445, 456, held that a demurrer to acommon count could be sustained where there was neither an express norimplied promise between the parties.Pike v. Zadig (1915) 171 Cal. 273 involved an open book accountbetween the plaintiff and the defendant, not the liability of a 3d party on acontract between two other entities. Thus, it is not authority on thisissue. Chevron U.S.A., Inc. v. Workers' Comp. Appeals Bd. (1999)19 Cal.4th 1182, 1195.McBride v. Boughton (2004) 123 Cal.App.4th 379 is not on pointbecause the decision was based on policy considerations concerning childsupport and the welfare of a child.

Plaintiff must allege facts creating an implied promise to pay thefranchisee’s debt, not just an interest in supervising the projects. If thereis a demurrer, briefing is requested concerning whether a franchisor’sright to assure compliance with franchise requirements gives rise toliability on contracts between the plaintiff and the franchisee under anytheory.Plaintiff is to give notice.13 13-662642Excel Mortgage Servicing,Inc. vs. Falce1) Plaintiff Excel Mortgage Servicing, Inc.’s Order to Show Cause re:Preliminary Injunction against Defendant Michael D. FalceGrant. Plaintiff’s motion for a preliminary injunction isGRANTED. Plaintiff is to give notice.Defendant’s agreement not to solicit Plaintiff’s employees isenforceable. Loral Corp. v. Moyes (1985) 174 Cal. App. 3d 268. Suchan agreement is not a significant restraint on trade and does not preventemployees from leaving their employment; it only prohibits Defendantfrom urging them to do so. Id. at 278-280.Defendant’s cases are not on point because they did not concernsolicitation of employees. Edwards v. Arthur Anderson, LLP (2008) 44Cal.4th 937 involved a non-competition provision and a claim that theplaintiff’s customers were solicited. Metro Traffic Control, Inc. v.Shadow Traffic Network (1994) 22 Cal.App.4th 853 involved acompetitors’ solicitation of employees, inducing them to violate their noncompetitionagreements. In Fillpoint, LLC v. Maas (2012) 208Cal.App.4th 1170, even though there was a non-solicitation of employeesprovision in the contract, the discussion concerned the enforceability of aprovision prohibiting solicitation of customers, i.e., a non-competitionprovision.There is sufficient evidence that Defendant solicited employees to leaveemployment with Plaintiff. Wood admitted in email that she had receivedthe Bank’s employment application from Defendant. [Wichmandeclaration, Ex.H, 5/17/13 email.] In addition, although both Maitlin andTreichler provide declarations, there is no declaration from Wood, raisingan inference under Evid. Code §413 that her declaration would have notfavored Defendant if it had been provided.Section 413 also applies to Defendant’s equivocal declaration that he isnot “planning” to solicit and that he never did any “improper”solicitation. Defendant does not deny all solicitation; nor does he denythat he will NOT solicit in the future.Section 413 also applies to the fact that Defendant presents no evidenceregarding whose idea it was for Maitlin to work for the Bank. In fact,Maitlin declares in 4 that this was a “joint decision” while Defendant in3 claims it was an “independent” one.The balance of hardships favors the Plaintiff. The Pollard declaration,14, states that Plaintiff is understaffed and having trouble meetingdemands of the business due to the loss of key employees. While thedeclaration is somewhat conclusory, no objections were filed, andDefendant admits that an injunction will not impose any hardshipwhatsoever because he says he is not planning on soliciting any more ofPlaintiff’s employees.15 12-613414 1) Defendant Jerry Wimpey’s Motion to Compel Plaintiff National

National Collegiate StudentLoan Trust 2005-3 vs.GaddertCollegiate Student Loan Trust 2005-3 to Further Respond to Requests forProduction, Set One and Request for Monetary Sanctions against Plaintiffin the amount of $500.00Deny. Defendant Wimpey’s motion to compel further RFPD by plaintiffNational Collegiate Trust is DENIED. First, defendant Wimpey’s motion tocompel further RFPD responses is untimely for non-compliance with the45 day rule. See, C.C.P. § 2031.310(c) and Sexton v. Superior Court(1997) 58 Cal.App.4 th 1403, 1410. A meet and confer letter sent seekingan extension on the 45 day cutoff is not an agreement to extend the 45day cutoff even if no response is received. Second, even assuming thatdefendant Wimpey’s motion was timely filed and served, it is defective forlack of a required separate statement. See, Rule 3.1345(a)(3). Third,even assuming that defendant Wimpey’s motion was timely filed andserved, it is defective for lack of a required supporting memorandum.See, Rule 3.1112(a)(3).Plaintiff to give notice.

Rulings 1http://www.occourts.org/tentativerulings/jmoberlyrulings.htmPage 1 of 69/5/2013JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYSeptember 6, 2013 at 2:00 PMTentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing,whenever possible. The rulings will also be posted outside the courtroom on the bulletin board by noonon the day of the scheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer tosubmit the matter on your papers without oral argument, advise all counsel first and thentelephone the clerk at (657)622-5212. If the moving party has submitted the matter and thereare no appearances by any party at the hearing, the tentative ruling will be the final ruling. Unlessotherwise indicated, the moving party shall provide written notice of all rulings or prepare an Order forthe court’s signature per CRC 3.1312. If no one has telephoned the clerk to submit and there are noappearances by any party, the tentative will become the final order of the court.Department C12 has an assigned court reporter for all Law & Motion matters.Once the tentative ruling has been posted on the Internet, no supplemental papers may befiled and no continuances will be permitted.1 10-346521Passport Management,LLC vs. Olson1) Defendants Horsepower Investments, LLC, Vistas Infinitas, LLC,and Charamoya Enterprises, LLC’s Attorney of Record Weiss &Spees, LLP and Michael H. Weiss’ Motion to be Relieved as Counselof RecordGrant. The motion of Weiss & Spees, LLP and Michael H. Weiss tobe relieved as counsel of record for Defendants HorsepowerInvestments LLC, Vistas Infinitas, LLC and Charamoya EnterprisesLLC is GRANTED. The moving parties have complied with theCourt’s orders regarding service.However, the proposed order is outdated; the moving party mustlodge a correct order forthwith. A separate order should besubmitted reflecting that Court granted the motion to withdraw ascounsel for Sugurbere Enterprises, LLC on 8/9/13.The withdrawals will be effective upon service of the orders. M/pto give notice.2 13-650571Feldsott & Lee, a LawCorporation vs. ForsterHighlands CommunityAssociation3 13-626738Carroll vs. Wells FargoBank, N.A.1) Plaintiff Feldsott & Lee’s Demurrer to Forster HighlandsCommunity Association’s First Amended AnswerOFF CALENDAR per Telephonic Request of Moving Party.1) Defendants Select Portfolio Servicing, Inc., Wells Fargo Bank,N.A. and Mortgage Electronic Registration Systems, Inc.’sDemurrer to Plaintiff Susan S. Carroll’s Second AmendedComplaint

Rulings 1http://www.occourts.org/tentativerulings/jmoberlyrulings.htmPage 2 of 69/5/2013Off Calendar. Full Dismissal Entered on 9/05/134 12-571744Muyderman vs. HSBCBank USA1) Defendant HSBC Bank USA, National Association as Trustee forWells Fargo Asset Securities Corporation, Mortgage Pass-ThroughCertificates, Series 2007-4’s Demurrer to Plaintiff MichaelMuyderman’s ComplaintOff Calendar; Amended Complaint filed on 09/05/2013.5 13-630048Flanagan vs. AndronesiRelated: 10-433740;Andronesi vs. Flanagan(Settled Case)1) Cross-Defendant Richard Flanagan’s Demurrer to Cross-Complainant Ieronim Andronesi’s Cross-ComplaintSustain. Cross-defendant’s demurrer to the cross-complaint isSUSTAINED with 20 days leave to amend on grounds ofuncertainty. Cross-defendant is to give notice.CC §1688 permits rescission due to fraud. Cross-defendant citesno authority that a party must suffer past damages to seekrescission. Cross-complainant is has legal obligation to pay$25,000, allegedly incurred as a result of fraud.However, the settlement agreement obligations do not specificallymention taxes. Cross-complaint must allege in greater detail whatrepresentations were made concerning taxes and what term in thesettlement agreement obligated Cross-complainant to pay them.What representations were made about the corporation to raise aclaim that tax obligations were concealed?6 13-641914K Milan Construction Inc.vs. Great AmericanChicken Corp1) Cross-Defendant K. Milan Construction, Inc. dba U.S. Buildersand Maintenance’s Demurrer to the Cross-Complaint of GreatAmerican Chicken Corp., Inc.’s Sixth Cause of ActionSustain. The demurrer to the 6th cause of action for anaccounting is SUSTAINED without leave to amend. Crossdefendantis to give notice.An accounting does not lie unless specification of the amount dueis so complicated that it cannot be determined in an ordinary legalaction for damages. Jolley v. Chase Home Finance, LLC (2013)213 Cal.App.4th 872, 910. GAC fails to articulate why anaccounting is needed to ascertain the damages alleged in the 1stthrough 5th causes of action. None of those causes of actionallege improper payments to or from subcontractors, vendors orother third persons. Nor do they claim that subcontractors ormaterialmen have filed mechanics liens or made claims againstGAC. Information about subcontractors’ names, contractualobligations and licenses (if they become relevant) can bedetermined through ordinary discovery.The moving party is warned that in the future, its papers may notbe considered by the Court if not accompanied by a proof ofservice.

Rulings 1http://www.occourts.org/tentativerulings/jmoberlyrulings.htmPage 3 of 69/5/20137 13-630057Carver vs. Helen K.Quivey, as Trustee of theHelen K. Quivey Trust1) Defendant L. Diana Alladio, individually and as Trustee of theHelen K. Quivey Trust’s Demurrer to Plaintiff Michael R. Carver’sFirst Amended ComplaintOverrule in part and sustain in part. Defendant Alladio’sdemurrer to plaintiff Carver’s first amended complaint is overruledin part and sustained in part. OVERRULED as to plaintiff Carver’sfirst cause of action for breach of contract because this cause ofaction is asserted against co-defendant Quivey and not defendantAlladio. SUSTAINED, with 14 days leave to amend, as to plaintiffCarver’s second cause of action for breach of contract, third causeof action for common counts, and fourth cause of action forquantum meruit. A demurrer is limited to the face of thecomplaint and items subject to judicial notice. See, Blank v.Kirwan (1985) 39 Cal.3d 311, 318. Also, the doctrine of shampleadings is applicable to unverified complaints. See, Pierce v.Lyman (1991) 1 Cal.App.4 th 1093, 1109. Plaintiff Carver has notset forth in his pleading a sufficient explanation of his change inregard to the date of the alleged breach of contract from 1-28-09in his initial complaint and 10-15-09 in his first amendedcomplaint. See, Owens v. Kings Supermarket (1988) 198Cal.App.3d 379, 383 to 384. Plaintiff Carver is granted leave toamend to set forth such an explanation in a second amendedcomplaint. Moving party to give notice.Plaintiff Carver’s Request for Judicial Notice: Plaintiff Carverrequested that the court take judicial notice of Exhibit A, theDeclaration of Michael R. Carver filed on 7-3-13. GRANTED as toExhibit A, but this notice is limited to the filing of this declarationwith the court and not as to the truth of any of the claims orcontentions set forth therein. See, Evidence Code § 452(d) andDay v. Sharp (1975) 50 Cal.App.3d 904, 914.Defendant Alladio’s Request for Judicial Notice: DefendantAlladio requested that the court take judicial notice of theCertificate of Death issued by the County of San Bernardino forHelen Q. Quivey. Defendant Alladio’s request that the court takejudicial notice of this Certificate of Death for Helen Q. Quivey isGRANTED. See, Evidence Code § 452(c).2) Defendant L. Diana Alladio, individually and as Trustee of theHelen K. Quivey Trust’s Motion to Strike Portions of PlaintiffMichael R. Carver’s First Amended ComplaintGrant on Court’s Motion. The court exercises its discretion and,on its own motion, strikes plaintiff Carver’s first cause of action forbreach of contract because plaintiff Quivey is now deceased. (See,Defendant’s RJN, Certificate of Death issued by the County of SanBernardino for Helen Q. Quivey.) Plaintiff is granted 14 days leaveto amend to name a personal representative, or successor ininterest, for decedent Helen K. Quivey in compliance with C.C.P. §377.40. Otherwise defendant Alladio’s motion to strike plaintiff’ssecond cause of action for breach of contract, third cause of actionfor common counts and fourth cause of action for quantum meruitis MOOT because defendant Alladio’s demurrer to these causes ofaction has been sustained. Moving party to give notice.

Rulings 1http://www.occourts.org/tentativerulings/jmoberlyrulings.htmPage 4 of 69/5/20138 12-588533Jensen vs. Nghiem1) Defendants Darlene Ngheim’s Motion to Dismiss the Actionand/or Striking the Complaint and Request for Sanctions in theamount of $1,284.90Grant. Defendant Nghiem’s motion for terminating sanctions isGRANTED. See, C.C.P. § 2023.030(d) and Ruvalcaba v.Government Employees Ins. Co. (1990) 222 Cal.App.3d 1579,1580 to 1581. Plaintiffs have failed to comply with this court’sdiscovery order of 4-26-13, failed to oppose defendant Nghiem’smotion to compel responses to her initial discovery, defendantNghiem’s motion to deem her requests for admission to plaintiffsadmitted, and failed to oppose defendant Nghiem’s present motionfor terminating sanctions and provide an explanation for theirfailure to comply with their discovery obligations in this case. Thusdefendant Nghiem’s motion for terminating sanctions is granted,and plaintiffs’ complaint is ordered stricken. Next, defendantNghiem’s request for additional monetary sanctions is denied. Thecourt finds that the striking of plaintiffs’ complaint is sufficient andthat additional monetary sanctions should not be awarded. Movingparty to give notice.2) Defendant Vince Q. Lu’s Motion to Dismiss the Action and/orStriking the Complaint and Request for Sanctions in the amount of$489.80Grant. Defendant Lu’s motion for terminating sanctions isGRANTED. See, C.C.P. § 2023.030(d) and Ruvalcaba v.Government Employees Ins. Co. (1990) 222 Cal.App.3d 1579,1580 to 1581. Plaintiffs have failed to comply with this court’sdiscovery order of 4-26-13, failed to oppose defendant Lu’smotion to compel responses to her initial discovery, defendantLu’s motion to deem her requests for admission to plaintiffsadmitted, and failed to oppose defendant Lu’s present motion forterminating sanctions and provide an explanation for their failureto comply with their discovery obligations in this case. Thusdefendant Lu’s motion for terminating sanctions is granted, andplaintiffs’ complaint is ordered stricken. Next, defendant Lu’srequest for additional monetary sanctions is denied. The courtfinds that the striking of plaintiffs’ complaint is sufficient and thatadditional monetary sanctions should not be awarded. Movingparty to give notice.9 13-663212American FinanceSolutions, LLC vs. SoccerPro RC, LLC1) Plaintiff American Finance Solutions, LLC’s Application for Writof Possession and for Temporary Restraining OrderContinue. Moving party is required to give notice of sixteen (16)court days plus additional time based on the method of service.Since Plaintiff failed to give adequate notice, this matter iscontinued to September 27, 2013. The Temporary RestrainingOrder shall remain effective until September 28, 2013.Moving party shall give notice of this continuance.

Rulings 1http://www.occourts.org/tentativerulings/jmoberlyrulings.htmPage 5 of 69/5/201310 11-440272Tse vs. Ferrado Newport,LLC11 09-126504Family Investmentcompany vs. Mach-1Autogroup1) Plaintiff Helen Tse’s Motion to Compel Witness Paul Chariez toTestify at Deposition and Request for Sanctions in the amount of $1,790.0OFF CALENDAR per Telephonic request of moving party.1) Judgment Creditors Mach-1 Autogroup, Mach-1 RSMH, LLC andCraig Baptiste’s Motion for a Charging Order against CandanceSpizziri’s Community Property Membership Interest in AutoOrange II, LLC and Related ReliefGrant. The motion for a charging order is GRANTED. Plaintiff hasfiled evidence that service was to Mrs. Spizzirri’s present address,i.e., the 10/26/12 tax return and the process server’s declarationthat the daughter merely stated that she was out of town, not thatshe did not live at the residence. Because the moving paperswere properly served, the Court deems notice of continuanceserved by mail to be adequate.Mrs. Spizzirri’s interest is subject to the judgment against herhusband. Fam. Code §910(a).There is no showing that any 3d parties have an interest in AOII;therefore, the Court does not see why their interest in itsproperty, if any, must be considered at this time. Until levy onthe property is attempted, the issue is premature.The Court believes that it is unlikely that the limitations in Corp.Code §17302 would apply to a creditor which has foreclosed uponand purchased 100% of the membership interests in a limitedliability company. However, whether it has acquired allmanagement rights as well as the right to distribution is an issuethat is reserved until Mr. Spizzirri’s bankruptcy stay is lifted.A foreclosure hearing will be set for October 4, 2013 at 10:30am. Prior to the hearing, the parties must brief whether Mr.Spizzirri has standing to object to foreclosure of his wife’s interestin light of the facts that 1) his membership interest has beenforeclosed upon and 2) his remaining interest in AOII, if any, is anasset of the bankruptcy estate. Statutory deadlines for briefingapply.Plaintiffs are to give notice. Mrs. Spizzirri is to be personallyserved with notice.12 12-568552Pacific Merchantile Bankvs. NP Gas, Inc.1) Court Appointed Receiver Karl T. Anderson’s Motion toTerminate Receivership for NP Gas Inc., US Gasup, Inc., Approvalof Receiver’s Final Account, Exoneration of Bonds and for Paymentof Fees and Costs Incurred by ReceiverContinue. The Receiver’s motion to terminate the Receivership iscontinued to 10/21/2013 at 10:00 AM in Department C12, to beheard concurrently with the bankruptcy review hearing. At thathearing, the Court will determine whether there is an outstandingdispute regarding the $25,000 claimed by Mr. Patel to havebelonged to him, or whether the bankruptcy trustee will either

Rulings 1http://www.occourts.org/tentativerulings/jmoberlyrulings.htmPage 6 of 69/5/2013waive the claim entirely or waive any claim against the Receiverand pursue the claim for this money against the Plaintiff only.Absent a waiver, the Court cannot approve the report andexonerate the Receiver’s bond. However, if there is a waiver, themotion will be granted unless there is a timely opposition orservice is again defective.Although the Amended Notice of Motion was served, it was notfiled. The Receiver is to properly submit it for e-failing forthwith.It does not have to be served again.The Receiver is to prepare a notice of continuance [withoutadditional papers], a notice of all these rulings and a proposedorder specifying the amount of fees claimed, and is to serve themby mail no later than 9/21/13. The amended motion was nottimely served because it was served 16 days before the hearing,without adding five days for mailed service. CCP §1013(a).No other papers may be filed unless there is a timely opposition tothe motion, to which the Receiver may file a timely reply.The Receiver is to give notice.13 13-652851Salisbury vs. AmegaWorldwide, Inc.1) Defendant Amega Worldwide, Inc.’s Motion for Special Motionto Strike the Fourth Cause of Action in the Complaint of PlaintiffCarol Salisbury and Request for Attorney’s Fees in the amount of$2,820.00Off Calendar per telephonic request of moving party.14 12-577733Crouch vs. TrinityChristian Center of SantaAna, Inc.1) Plaintiff Cara Crouch’s Motion for Sanctions against DefendantsTrinity Christian Center of Santa Ana, Crouch & Casoria andDisqualification of Counsel, Douglas Mahaffey, Michael King, TedNelson and Maria Caliguri and Revocation of Pro Hac Vice

Rulings 1http://www.occourts.org/tentativerulings/jmoberlyrulings.htmPage 1 of 49/13/2013JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYSeptember 20, 2013 at 2:00 PMTentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing,whenever possible. The rulings will also be posted outside the courtroom on the bulletin board by noonon the day of the scheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer tosubmit the matter on your papers without oral argument, advise all counsel first and thentelephone the clerk at (657)622-5212. If the moving party has submitted the matter and thereare no appearances by any party at the hearing, the tentative ruling will be the final ruling. Unlessotherwise indicated, the moving party shall provide written notice of all rulings or prepare an Order forthe court’s signature per CRC 3.1312. If no one has telephoned the clerk to submit and there are noappearances by any party, the tentative will become the final order of the court.Department C12 has an assigned court reporter for all Law & Motion matters.Once the tentative ruling has been posted on the Internet, no supplemental papers may befiled and no continuances will be permitted.1 12-611369Sheidayi vs. Wells FargoBank, N.A.2 12-614534Couig vs. Peterson1) Plaintiff Berhman Bert Shidayi’s Attorney of Record, RA &Associates, APC (Anton Abramyan, ESQ)’s Motion to be Relievedas Counsel of Record1) Defendant Hunt, Ortmann, Palffy, Nieves, Darling & Mah, Inc.’sDemurrer to Plaintiff Stephen Couig’s First Amended Complaint2) Defendant Hunt, Ortmann, Palffy, Nieves, Darling & Mah, Inc.’sMotion to Strike Portions of Plaintiff Stephen Couig’s FirstAmended Complaint3 12-604624Laguna HeightsCommunity Associationvs. Spragg1) Plaintiff Laguna Heights Community Association’s Motion forLeave to File a First Amended Complaint4 12-613414National CollegiateStudent Loan Trust2005-3 vs. Gaddert1) Plaintiff National Collegiate Student Loan Trust 2005-3’sMotion to Set Aside and Vacate Dismissal entered on August 12,2013 as to Defendant Kellee Gaddert

Rulings 1http://www.occourts.org/tentativerulings/jmoberlyrulings.htmPage 2 of 49/13/20135 12-608186Flores vs. The Irvine LandCompany, LLC1) Defendant The Irvine Land Company, LLC’s Motion to CompelPlaintiff Jessica Flores, by and through her Guardian Ad LitemIlene Flores to Further Respond to Demands for Documents, SetOne and Request for Monetary Sanctions against Plaintiff and herCounsel of Record in the amount of $960.002) Defendant The Irvine Land Company, LLC’s Motion to CompelPlaintiff Johnny Flores, by and through her Guardian Ad LitemIlene Flores to Further Respond to Demands for Documents, SetOne and Request for Monetary Sanctions against Plaintiff and herCounsel of Record in the amount of $960.006 12-554372Thamatrakoln vs. St.Joseph Health System1) Plaintiff Ellie Thamatrakoln, a minor, by and through herguardian ad litem, Melissa Bernard and Melissa Bernard, anidividual’s Motion to Lift Stay of Proceedings and Motion to SetCase for a Preferential Trial Date7 12-554372Stadium Promenade, LLCvs. Om Ras, Inc.1) Plaintiff Stadium Promenade, LLC’s Motion for Order to DeemFacts with Regard to Plaintiff Stadium’s Requests for Admissions,Set One propounded on Defendant Tavinder K. Sawhney8 13-651353Reumont vs. The Bank ofNew York Mellon9 13-667498Scafferty vs. Pacific Bell,AT&T Corp.1) Plaintiff Allan W. Reumont’s Order to Show Cause re:Preliminary InjunctionOFF CALENDAR per Written request of moving party.1) Defendant Pacific Bell Telephone Company’s Motion to QuashService of Summons and/or Demurrer to Plaintiff Gregory AllenScafferty’s Complaint for Unlawful Detainer10 12-585384 1) Plaintiffs Sidney Bastanchury, LLC and Sherry Siskin Sidney’sLeave to File First Amended Complaint

Rulings 1http://www.occourts.org/tentativerulings/jmoberlyrulings.htmPage 3 of 49/13/2013Sidney Bastanchury, LLCvs. St. Jude HospitalYorba Linda2) Defendants St. Jude Hospital Yorba Linda and St. JudgeHospital’s Motion for Summary Judgment or AlternativelySummary Adjudication on Plaintiffs’ ComplaintAll Motions OFF CALENDAR per telephonic request ofMoving Parties11 13-662315Bank of America, N.A. vs.Ed Aschoff & Associates,Inc.1) Plaintiff Bank of America, N.A.’s Application for Order to Attachand Writ of Attachment against William E. Aschoff2) Plaintiff Bank of America, N.A.’s Application for Order to Attachand Writ of Attachment against Dansure Incorporated3) Plaintiff Bank of America, N.A.’s Application for Order to Attachand Writ of Attachment against Ed Aschoff & Associates, Inc.4) Plaintiff Bank of America, N.A.’s Application for Order to Attachand Writ of Attachment against Construction Specialty Services,LLC12 10-346521Passport Management,LLC. vs. Olson1) Plaintiff Passport Management, LLC’s Motion to CompelDefendants Horse Power Investments, LLC, Vistas Infinitas LLC,Charmoya Enterprises LLC, Sugurbere Enterprises LLCAppearances and Production of Documents and Depositionsfollowing their Failure to Appear2) Judgment Debtor Erlend Olson’s Motion to Quash or in thealternative limiting, the Deposition Subpoena for Production ofBusiness Records served on Wells Fargo Bank3) Judgment Debtor Erlend Olson’s Motion to Quash or in thealternative limiting, the Deposition Subpoena for Production ofBusiness Records served on Bank of America4) Judgment Debtor Erlend Olson’s Motion to Quash or in thealternative limiting, the Deposition Subpoena for Production ofBusiness Records served on Harris-Ginsberg, LLP5) Judgment Debtor Erlend Olson’s Motion to Quash or in thealternative limiting, the Deposition Subpoena for Production ofBusiness Records served on Wells Fargo Bank, HSBC Bank andCitibank6) Judgment Debtor Erlend Olson’s Motion to Quash or in thealternative limiting, the Deposition Subpoena for Production ofBusiness Records served on Harris-Ginsberg, LLP

Rulings 1http://www.occourts.org/tentativerulings/jmoberlyrulings.htmPage 4 of 49/13/2013

JUDGEJAMOA A. MOBERLYLAW & MOTIONDEPARTMENT C-12FRIDAYSeptember 20, 2013 at 2:00 PMTentative Rulings will be posted on the Internet by 5:00 pm on the day before the scheduled hearing, wheneverpossible. The rulings will also be posted outside the courtroom on the bulletin board by noon on the day of thescheduled hearing.The court will hear oral argument on all matters at the time noticed for the hearing. If you prefer to submit thematter on your papers without oral argument, advise all counsel first and then telephone the clerk at(657)622-5212. If the moving party has submitted the matter and there are no appearances by any party atthe hearing, the tentative ruling will be the final ruling. Unless otherwise indicated, the moving party shallprovide written notice of all rulings or prepare an Order for the court’s signature per CRC 3.1312. If no one hastelephoned the clerk to submit and there are no appearances by any party, the tentative will become the finalorder of the court.Department C12 has an assigned court reporter for all Law & Motion matters.Once the tentative ruling has been posted on the Internet, no supplemental papers may be filed andno continuances will be permitted.1 12-611369Sheidayi vs. Wells FargoBank, N.A.2 12-614534Couig vs. Peterson1) Plaintiff Berhman Bert Shidayi’s Attorney of Record, RA & Associates,APC (Anton Abramyan, ESQ)’s Motion to be Relieved as Counsel of Record1) Defendant Hunt, Ortmann, Palffy, Nieves, Darling & Mah, Inc.’sDemurrer to Plaintiff Stephen Couig’s First Amended Complaint2) Defendant Hunt, Ortmann, Palffy, Nieves, Darling & Mah, Inc.’s Motionto Strike Portions of Plaintiff Stephen Couig’s First Amended Complaint3 12-604624Laguna Heights CommunityAssociation vs. Spragg1) Plaintiff Laguna Heights Community Association’s Motion for Leave toFile a First Amended Complaint4 12-613414National Collegiate StudentLoan Trust 2005-3 vs.Gaddert1) Plaintiff National Collegiate Student Loan Trust 2005-3’s Motion to SetAside and Vacate Dismissal entered on August 12, 2013 as to DefendantKellee Gaddert

5 12-608186Flores vs. The Irvine LandCompany, LLC1) Defendant The Irvine Land Company, LLC’s Motion to Compel PlaintiffJessica Flores, by and through her Guardian Ad Litem Ilene Flores toFurther Respond to Demands for Documents, Set One and Request forMonetary Sanctions against Plaintiff and her Counsel of Record in theamount of $960.002) Defendant The Irvine Land Company, LLC’s Motion to Compel PlaintiffJohnny Flores, by and through her Guardian Ad Litem Ilene Flores toFurther Respond to Demands for Documents, Set One and Request forMonetary Sanctions against Plaintiff and her Counsel of Record in theamount of $960.006 12-554372Thamatrakoln vs. St. JosephHealth System1) Plaintiff Ellie Thamatrakoln, a minor, by and through her guardian adlitem, Melissa Bernard and Melissa Bernard, an idividual’s Motion to LiftStay of Proceedings and Motion to Set Case for a Preferential Trial Date7 12-554372Stadium Promenade, LLC vs.Om Ras, Inc.1) Plaintiff Stadium Promenade, LLC’s Motion for Order to Deem Factswith Regard to Plaintiff Stadium’s Requests for Admissions, Set Onepropounded on Defendant Tavinder K. Sawhney9 13-667498Scafferty vs. Pacific Bell,AT&T Corp.1) Defendant Pacific Bell Telephone Company’s Motion to Quash Serviceof Summons and/or Demurrer to Plaintiff Gregory Allen Scafferty’sComplaint for Unlawful Detainer12 10-346521Passport Management, LLC.vs. Olson1) Plaintiff Passport Management, LLC’s Motion to Compel DefendantsHorse Power Investments, LLC, Vistas Infinitas LLC, Charmoya EnterprisesLLC, Sugurbere Enterprises LLC Appearances and Production ofDocuments and Depositions following their Failure to Appear2) Judgment Debtor Erlend Olson’s Motion to Quash or in the alternativelimiting, the Deposition Subpoena for Production of Business Recordsserved on Wells Fargo Bank

3) Judgment Debtor Erlend Olson’s Motion to Quash or in the alternativelimiting, the Deposition Subpoena for Production of Business Recordsserved on Bank of America4) Judgment Debtor Erlend Olson’s Motion to Quash or in the alternativelimiting, the Deposition Subpoena for Production of Business Recordsserved on Harris-Ginsberg, LLP5) Judgment Debtor Erlend Olson’s Motion to Quash or in the alternativelimiting, the Deposition Subpoena for Production of Business Recordsserved on Wells Fargo Bank, HSBC Bank and Citibank6) Judgment Debtor Erlend Olson’s Motion to Quash or in the alternativelimiting, the Deposition Subpoena for Production of Business Recordsserved on Harris-Ginsberg, LLPMotions 2 through 6 are off calendar per request of moving party.

2 13-622860Nguyen vs. Wells Fargo Bank1) Defendant Wells Fargo Bank, N.A.’s Demurrer to Plaintiff Christian T.Nguyen First Amended ComplaintSustain in part and overrule in part.Plaintiff’s Request for Judicial Notice is GRANTED. Defendant’s Requestfor Judicial Notice is GRANTED, except for the truthful of the documents,because that is disputed. Herrera v. Deutsche Bank Nat. TrustCo. (2011)196 Cal.App.4th 1366, 1375.The Demurrer to First Cause of Action for Violation of Civil Code § 2923.6is OVERRULED.In FAC, Plaintiff added allegations that on or around 4/18/13, Plaintiffsubmitted a new application with all required financial documents. It isalleged that Defendant failed to review the documents and proceededwith foreclosure. (Paragraph 102). These new allegations set forth aproper cause of action under Civil Code § 2923.6.The Demurrer to Second Cause of Action for Violation of Business &Professions Code § 17200 is OVERRULED.Potentially, “dual tracking” might be an unfair practice prior to theenactment of the new legislation. Jolley v. Chase Home Finance,LLC (2013) 213 Cal.App.4th 872, 908. Plaintiff has alleged loss of equityas an actual injury.The Demurrer to Third Cause of Action for Promissory Estoppel isSUSTAINED without leave to amend.Plaintiff failed to allege “a promise clear and unambiguous in its terms.”Advanced Choices, Inc. v. Department of Health Services (2010) 182Cal.App.4th 1661, 1672. The parties did not agreed on a loanmodification. When the request for modification was denied, Defendantproceeded with the foreclosure.The Demurrer to Fourth Cause of Action for Negligence isSUSTAINED without leave to amend.A financial lender in its traditional role does not owe a duty of care to theborrower. Oaks Management Corp. v. Superior Court (2006) 145 Cal.App. 4 th 453, 466. There are no allegations that Defendants exceeded therole of a traditional lender. “[T]he handling of loan modificationnegotiations or servicing is a typical lending activity that precludesimposition of a duty of due care.” Aspiras v. Wells Fargo Bank,N.A. 2013 WL 5229769, 10 (Cal.App. 4 Dist.) (Cal.App. 4 Dist.2013)The Demurrer to Fifth Cause of Action for Demand for Accounting isSUSTAINED without leave to amend.“A cause of action for an accounting requires a showing that a relationshipexists between the plaintiff and defendant that requires an accounting,and that some balance is due the plaintiff that can only be ascertained byan accounting.” Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.“No fiduciary duty exists between a borrower and lender in an arm'slength transaction” Ragland v. U.S. Bank Nat. Assn. (2012) 209Cal.App.4th 182, 206.Defendant Wells Fargo Bank, N.A. is ordered to file an answer to the FirstAmended complaint in 10 days.M/p to give notice.

3 13-649030Ganiere vs. Title Trust DeedService Company1) Plaintiff Susan Ganiere’s Order to Show Cause re: PreliminaryInjunctionDeny. Plaintiff’s motion for a preliminary injunction is DENIED. Plaintiffhas not provided any supporting evidence for her claims of defects insecuritization, improper assignments, and/or violations of the Pooling andService Agreement applicable to this loan. As the moving party, it is upto her to present evidence to support her claims; she cannot simply arguethat Defendant will be unable to prove its position.Most of Plaintiff’s authorities concern mortgages, not deeds oftrust. Under current California law, physical possession of the note is notrequired to pursue judicial foreclosure where the power of sale is in thedeed of trust. Dubrunner v. Deutsche Nat. Trust Co. (2012) 204Cal.App.4th 433, 440.Plaintiff’s complaint does not allege violation of the Homeowner’s Bill ofRights.M/p to give notice.4 12-575694Bertels vs. Mullins1) Defendants Donald Paul Mayer and Stone Robotics, Inc.’s Motion forSummary Judgment or Alternatively, Summary AdjudicationGrant. Summary judgment is GRANTED in favor of Defendants DonaldPaul Mayer and Stone Robotics, Inc. Defendants are to give notice.The Transfer Agreement provides that Defendant Stone Robotics, Inc. wasto pay up to $10,000/month for four years, i.e., up to $480,000. Mayerdeclaration, Ex. 1. It has more than fulfilled that obligation. Mayerdeclaration, 6. Plaintiff’s failure file opposition evidences a consciousintention not to address the merits. Sacks v. FSR Brokerage Inc. (1992)7 Cal.App.4th 950, 961.5 12-593263Mohammed vs. JasmineMediterranean Restaurant1) Defendant Jr. Fixture, Inc.’s Motion for Summary Adjudication ofPlaintiff Alaa Mohammed’s Strict Liability ClaimGrant in part. The motion for summary adjudication of Plaintiff’s3d cause of action for strict products liability is GRANTED. It motion forsummary adjudication of a portion of the cross-complaint isDENIED. Moving party is to give notice.The moving party has shown that it sold the allegedly defective ovenused and did not repair or modify it. All it did was test to make surethat it was functioning and not leaking gas. See Defendant’s facts #4, 7-17, 22-24. The only dispute that Plaintiff raises regarding these facts isto claim that Defendant installed the oven. However, this is immaterialbecause Plaintiff does not allege that any defect in installation contributedto his injury; his claim is that a safety valve was defective. Plaintiff’sadditional disputed fact #21.Under Wilkenson v. Hicks (1981) 126 Cal.App.3d 515, a dealer in usedproducts is not strictly liable for defects in a product if it makes noadjustments, repairs or modifications to the product but merely tries itout to assure it is working. Barrett v. Superior Court (1990) 222Cal.App.3d 1176 affirmed this rule but did not apply it because there weretriable issues about whether the defendant had modified themachine. Plaintiff has raised no such issue here.See also Larosa v. Superior Court (1918) 122 Cal.App.3d 741, in whichthe court held that the factual questions raised by the plaintiff related tonegligence, not strict liability. The same is true here. In fact, Plaintiff

admits in his points and authorities that his claim against the movingparty is that it was negligent. He can pursue this claim through hissecond cause of action for products liability based on negligence, whichhas not been challenged.As to the cross-complaint, the moving party seeks adjudication “to theextent plaintiff’s award against ITW is based on strict liability.” Summaryadjudication is proper only if it addresses an entire cause of action, notjust part of one. CCP §437c(f). This issue is not cognizable.6 13-633850Hollins Law vs. VeatchCarlson, LLP1) Plaintiff Hollins Law’s Motion to Compel Defendant Veatch Carlson, LLPto Provide Further Responses to Second Set of Requests for AdmissionsGrant. Plaintiff Hollins Law’s motion to compel a further response to RFANos. 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38,39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 and 50 by defendant Veatch isGRANTED. See, C.C.P. § 2033.290(a). These requests for admissionsought defendant Veatch to admit that it has no facts to support any of itsaffirmative defenses, with each RFA addressed to a single affirmativedefense in defendant’s answer. Hence, these requests for admission arenot vague and ambiguous, call for speculation or compound. Also,information known to a party’s attorney or expert witnesses is deemedobtainable by a party in regards to responding to requests for admission.See, Chodros v. Superior Court (1963) 215 Cal.App.2d 318, 322. Further,as in Cembrook v. Superior Court (1961) 56 Cal.2d 423, defendantVeatch has not adequately explained why it cannot admit or deny theserequests, or at least admit or deny in part. Id., at 429 to 430. Relatedly,as defendant Veatch concedes, this civil action involving a dispute over adivision of attorney’s fees, and recovery of costs advanced, between twolaw firms representing that same client at different times. Hence,defendant should be able to at least admit or deny in part whether it hasany facts to support its 29 affirmative defenses asserted in defendant’sanswer to plaintiff’s complaint. Defendant Veatch is ordered to servesupplemental responses within 14 days. Moving party to give notice.2) Plaintiff Hollins Law’s Motion to Compel Defendant Veatch Carlson, LLPto Comply Compliance with its Response to Request for Production ofDocuments, Set OneGrant. Plaintiff Hollins Law motion to compel compliance by defendantVeatch as to plaintiff RFPD, Set No. One, as to all responsive nonprivilegeddocuments is GRANTED. See, C.C.P. § 2031.320(a). DefendantVeatch is ordered to produce all responsive, non-privileged documents asagreed within 14 days and in compliance with C.C.P. § 2031.280(a).Moving party to give notice.3) Plaintiff Hollins Law’s Motion to Compel Defendant Veatch Carlson, LLPto Comply Compliance with its Response to Request for Production ofDocuments, Set TwoGrant. Plaintiff Hollins Law motion to compel compliance by defendantVeatch as to plaintiff RFPD, Set No. Two, as to all responsive nonprivilegeddocuments is GRANTED. See, C.C.P. § 2031.320(a). DefendantVeatch is ordered to produce all responsive, non-privileged documents asagreed within 14 days and in compliance with C.C.P. § 2031.280(a).Moving party to give notice.

4) Plaintiff Hollins Law’s Motion to Compel Defendant Veatch Carlson, LLPFurther Responses to Form Interrogatories, Set OneGrant. Plaintiff Hollins Law’s motion to compel a further response toForm Rog. Nos. 15.1 and 50.1 is GRANTED. See, C.C.P. § 2030.300(a).Plaintiff presented evidence that the three retainer agreements at issueare in the possession and control of defendant Veatch. Also, attorneySchechter is now working at defendant Veatch. Defendant Veatch hassufficient information to respond, without simply objecting as to FormRog. No. 15.1, and as to Form Rog. 50.1 its possesses the agreementsthat form the basis of plaintiff’s complaint. Defendant Veatch is ordered toprovide supplemental responses to Form Rog. Nos. 15.1 and 50.1 within14 days. Moving party to give notice.5) Plaintiff Hollins Law’s Motion to Compel Defendant Veatch Carlson, LLPFurther Responses to Form Interrogatories, Set TwoGrant. Plaintiff Hollins Law’s motion to compel a further response toForm Rog. Nos. 17.1 is GRANTED. See, C.C.P. § 2030.300(a). DefendantVeatch is ordered to provide supplemental responses to plaintiff’s RFAs.Form Rog. No. 17.1 is in conjunction with plaintiff’s RFAs. Also, defendantVeatch should be able to identify at least some fact, witnesses anddocuments in support of its affirmative defenses. Defendant Veatch isordered to provide a supplemental response to Form Rog. No. 17.1 within14 days. Moving party to give notice.6) Plaintiff Hollins Law’s Motion to Compel Defendant Veatch Carlson, LLPFurther Responses to Special Interrogatories, Set OneGrant. Plaintiff Hollins Law’s motion to compel a further response toSpecial Rog. Nos. 3, 4, 5, 10, 11, 15, 16, 17, 18, 19, 24 and 25 isGRANTED. See, C.C.P. § 2030.300(a). As to Special Rog. Nos. 3, 4, 5, 15,16, 17, 18 and 19, defendant Veatch has had more than sufficient time tocompile the information necessary to provide supplemental responses asto how the settlement funds were distributed. As to Special Rog. Nos. 10,11, 24 and 25, a party is entitled to serve and obtain responses tocontention interrogatories. See, Burke v. Superior Court (1969) 71 Cal.2d276, 281 to 282. Whether defendant Veatch contends that plaintiff HollinsLaw is entitled to nothing, or something, on its liens claims is a propersubject of discovery, as well as the facts supporting defendant’scontention. Defendant Veatch is ordered to provide supplementalresponses to these special interrogatories within 14 days. Moving partyto give notice.7) Plaintiff Hollins Law’s Motion to Compel Defendant Veatch Carlson, LLPFurther Responses to Special Interrogatories, Set TwoConditionally Deny. Plaintiff Hollins Law’s motion to compel a furtherresponse to Special Rog. Nos. 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36,37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55,56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74,75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93,94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108,109, 110, 111, and 112 is conditionally DENIED because these specialinterrogatories are duplicative of Form Rog. No. 15.1. See, C.C.P. §2019.030(a)(1) and Fairmont Ins. v. Superior Court (2000) 22 Cal.4 th245, 254. The court notes that defendant Veatch’s objection to Form Rog.No. 15.1 as compound is specifically overruled. In addition, this denial isconditioned on defendant Veatch providing a full response to Form Rog.

No. 15.1 as to each of its 29 affirmative defenses in its answer andanswering all of the subparts in Form Rog. No. 15.1 as to each of these29 affirmative defenses. If defendant Veatch elects not to respond to allof the subparts in Form Rog. No. 15.1 as to each of its 29 affirmativedefenses, defendant Veatch is ordered to respond to plaintiff Hollins Law’ssecond set of special interrogatories in full. Moving party to givenotice.7 12-586627Plastic Surgery Institute ofCalifornia, Inc. vs. CaliforniaSurgical Institute, Inc.1) Plaintiff Plastic Surgery Institute of California, Inc. and Mazin Al-Hakeem, M.D.’s Motion to Compel Defendant California SurgicalInstitute, Inc. to Further Respond to First Set of Requests forAdmissions and Request for Monetary Sanctions against Defendant in theamount of $1,225.052) Plaintiff Plastic Surgery Institute of California, Inc. and Mazin Al-Hakeem, M.D.’s Motion to Compel Defendant Tarick Kamal Smaili toFurther Respond to First Set of Requests for Admissions and Request forMonetary Sanctions against Defendant in the amount of $1,225.053) Plaintiff Plastic Surgery Institute of California, Inc. and Mazin Al-Hakeem, M.D.’s Motion to Compel Defendant California SurgicalInstitute, Inc. to Further Responses to Form Interrogatories, Set Oneand Request for Monetary Sanctions against Defendant in the amount of$1,083.804) Plaintiff Plastic Surgery Institute of California, Inc. and Mazin Al-Hakeem, M.D.’s Motion to Compel Defendant Tarick Kamal Smaili toFurther Responses to Form Interrogatories, Set One and Request forMonetary Sanctions against Defendant in the amount of $1,083.805) Plaintiff Plastic Surgery Institute of California, Inc. and Mazin Al-Hakeem, M.D.’s Motion to Compel Defendant California SurgicalInstitute, Inc. to Further Responses to First Request for Production ofDocuments and Request for Monetary Sanctions against Defendant in theamount of $1,394.306) Plaintiff Plastic Surgery Institute of California, Inc. and Mazin Al-Hakeem, M.D.’s Motion to Compel Defendant Tarick Kamal Smaili toFurther Responses to First Request for Production of Documents andRequest for Monetary Sanctions against Defendant in the amount of$1,394.30On the Court’s own motion, all motions continued to 11/08/2013at 2:00 pm in department C12.

1 13-654345Karim-Panahi vs. The IrvineCompany, LLC1) Defendants The Irvine Company, LLC, Irvine Company ApartmentCommunities, Inc, Kevin Baldridge, Thomas Verdugo and Lauren Brecht'sMotion for Relief from Default entered on July 26, 2013Deny. The motion for relief from default is DENIED withoutprejudice. Defendants have not presented competent evidence that thedefault was the result of mistake, inadvertence, surprise, or neglect of anattorney or of any staff member he is responsible for supervising.In Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179Cal.App.4th 868, there was a declaration from “the original attorney” whomade the mistake. Id. at 897. In Hu v. Fong (2002) 104 Cal.App.4th 61,there was a declaration from the paralegal who made the mistake and adeclaration from the attorney that he was responsible for supervising him.Mr. Chilleen never testifies that HE did anything wrong in connection withthe failure to calendar a response to the complaint. Instead, he claimsthat “Greenberg Taurig” and “my office” made the mistake. There is nodeclaration from the person who made the “clerical error.” Mr.Chilleenstates that he is “of counsel” for Greenberg Taurig. It is unclear what thismeans. Does he have any supervisory responsibilities for its staff?In addition, the proposed answer must name each person who isanswering. “Group I” is not an entity.Default was taken against The Irvine Company LLC, University TownCenter Apt. Homes Dartmouth Court, and Cedar Creek Apartment Homesonly. The other defendants have no standing to join in themotion. However, as they have done so, they have made a generalappearance and must answer forthwith. Plaintiff is instructed not to taketheir defaults unless and until they have failed to file and serve theiranswer[s] within 5 court days.If relief is granted, the Court will award Plaintiff any out of pocket costshe incurred in taking the default and opposing both the motions if heprovides a declaration stating what those costs were.Plaintiff is advised that proofs of service must be signed by the personwho actually mailed the papers. It cannot be thePlaintiff. CCP §1013a(1).Moving party to give notice.2 13-6471974G Wireless, Inc. vs.Ghoreshi1) Defendant Matthew Ghoreishi’s Demurrer to Plaintiffs 4G Wireless,Inc., Mohammad Honarker and Marquis Marine, LLC’s ComplaintSustain. Defendant Matthew Ghoreishi’s general demurrer to plaintiff 4GWireless, et al.’s complaint is SUSTAINED with 21 days leave to amend.Plaintiffs 4G Wireless, et al., have not alleged sufficient facts as to theclaimed rate of usurious interest or the terms and maturity of thecontract. See, Commercial Credit Co. v. Semon (1928) 33 F.2d 356, 358.No opposition has been filed.Moving party to give notice.3 12-620879Velazquez vs. JPMorganChase Bank1) Defendant JPMorgan Chase Bank, N.A.’s Demurrer to Plaintiff ManuelR. Velazquez and JPMorgan Chase Bank’s First Amended ComplaintSustain. The demurrer is SUSTAINED without leave to amend as to allcauses of action. However, this ruling is without prejudice to Plaintiffs’

ight to file a new complaint stating causes of action for violation ofCC §2923.5 and violation of Bus. & Prof. Code §17200 if and when thosecauses of action accrue. Defendant is to give notice.1st cause of action: Violation of CC §2923.5. The complaint ispremature. Defendant has duties under §2923.5 that it must performbefore recording notice of default. Until and unless Defendant recordsnotice of default without performing its statutory duties, there is noviolation because it still may comply with the statute.2d cause of action: Breach of the implied covenant of good faith & fairdealing. Per Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 349-500, the covenant is implied to prevent frustration of a parties’ rightsunder the contract; it cannot create independent duties that are not tiedto specific terms of the contract. Plaintiffs do not quote any term of thecontract that would create an implication that there is a contractual dutyto modify a loan.Nor do Plaintiffs suggest what term(s) of the loan agreement they couldbase this cause of action on if given leave to amend. Under Per Goodmanv. Kennedy (1976) 18 Cal.3d 335, 349, this is justification for denyingleave.In addition, Plaintiffs admit that an element of this cause of action is theirown performance; they also admit they couldn’t even make the trialmodification reduced payments, much less pay what was due under theloan.3d cause of action: Negligence. Under Nymark v. Heart Fed. Savings &Loan Assn. (1991) 231 Cal.App.3d 1089, 1096, a lender is liable to aborrower for negligence only if it steps outside its conventional role andactively participates in the financed enterprise.Anaselli v. JP Morgan Chase Bank, NA. 2011 WL 1134451 (ND Cal. Mar.28, 2011) misstates this holding by adding substituting “silent” for“conventional.” Nor does the court attempt to analyze the conventionalrole of a residential lender.This Court has considered all the case cited by the parties on this issueand agrees with the analysis of Gutierrez v. PNC Mort., 2012 WL 1033063at *4 (S.D. Cal. Mar. 26, 2012), Johnston v. Ally Financial Inc. 2011 WL3241850 (S.D. Cal. July 29, 2011), Bunce v. Ocwen Loan Servicing, LLC,2013 WL 3773950 (E.D. Cal. July 16, 2013) and Armstrong v. ChevyChase Bank, 2012 WL 4747165 at *4 (N.D. Cal. Oct. 3, 2012), which heldthat a modification of a loan is like issuing or renegotiating the terms of aloan, a “key function of” or “intimately tied to” the conventional role of alender.Even if the Court were to analyze the factors cited by Nymark, 231Cal.App.3d @ 1096, the primary cause of any injury to the Plaintiffs istheir inability to meet their loan obligations. The policy of preventingfuture harm has been addressed by the legislature, which enacted§2923.5 and the Homeowners’ Bill of Rights, delineating the duties of aresidential lender. It is neither necessary nor proper for the Court tocreate another duty.4th cause of action, violation of Bus. & Prof. Code §17200: Because theunderlying causes of action fail, this cause of action fails also. To theextent that it is based on violation of CC §2923.5, it is premature.

8 12-560082Suarez vs. Bank of New YorkMellon1) Defendant The Bank of New York Mellon’s Motion for Judgment on thePleadings as to Plaintiff Pauline Suarez’s Entire First Amended Complaint2) Plaintiff Pauline Suarez’s Motion for Issue and Evidence Sanctions forBank of New York Mellon, N.A.’s Failure to Produce a Competent PersonMost Knowledgeable9 12-575694Bertels vs. Mullins1) Defendant Brian Mullins’ Motion to Compel Plaintiff Todd Bertels toRespond to Form Interrogatories, Set One and Request for MonetarySanctions against Plaintiff and his Counsel of Record in the amount of$1,560.002) Defendant Brian Mullins’ Motion to Compel Plaintiff Todd Bertels toRespond to Special Interrogatories, Set One and Request for MonetarySanctions against Plaintiff and his Counsel of Record in the amount of$810.003) Defendant Brian Mullins’ Motion to Compel Plaintiff Todd Bertels toRespond to Request for Production of Documents, Set One and Requestfor Monetary Sanctions against Plaintiff and his Counsel of Record in theamount of $810.004) Defendant Brian Mullins’ Motion to Compel Plaintiff Todd Bertels forRequest for Admissions, Set One to be Deemed Admitted or in thealternative, to Compel Verified Responses and Request for MonetarySanctions against Plaintiff and his Counsel of Record in the amount of$810.00Grant. The motions to compel responses to form interrogatories, specialinterrogatories, and requests for production are GRANTED. Responseswithout objections are due in 15 days. The motion to deem mattersadmitted is GRANTED. Sanctions against Plaintiff Todd Bertels and hisattorney of record are granted in the amount of $560 for each of the fourmotions payable in 60 days. As the moving party can submit on thetentative, there is no need for an appearance. The moving party is togive notice.10 12-600613Young vs. Bhakta1) Plaintiff and Cross-Defendants David Young and Elizabeth Young’sMotion to Compel Defendant and Cross-Complainant Chitra Bhakta toRespond to Form Interrogatories, Set One and Request for MonetarySanctions in the amount of $700.002) Plaintiff and Cross-Defendants David Young and Elizabeth Young’sMotion to Compel Defendant and Cross-Complainant Chitra Bhakta toDeem Requests Admitted and Request for Monetary Sanctions in theamount of $700.003) Plaintiff and Cross-Defendants David Young and Elizabeth Young’sMotion to Compel Defendant and Cross-Complainant Hitendra Bhakta toRespond to Special Interrogatories, Set Two and Request for MonetarySanctions in the amount of $700.004) Plaintiff and Cross-Defendants David Young and Elizabeth Young’sMotion to Compel Defendant and Cross-Complainant Hitendra Bhakta toProduction of Documents, Set One and Request for Monetary Sanctions$700.00Moot in part and grant in part. Since Defendants served responses to

the discovery prior to the hearing, the motions to compel are moot. Onthe remaining issue of sanctions, the court awards $2,800.00 to Plaintiffsand against Defendants Hitendra & Chitra Bhakta payable in thirty days.The motions were served timely on August 29, 2013.C.C.P. § 1013 provides that “Service is complete at the time of thedeposit . . . .” Evidence Code § 641 states that “A letter correctlyaddressed and properly mailed is presumed to have been received in theordinary course of mail.” The fact that Defendant did not receive themotions does not render the service improper.Plaintiffs were forced to file the motions. If the motions had not beenfiled, Defendants would not have responded to the outstandingdiscovery. Plaintiffs served the discovery on June 14, 2013. Defendantsresponded on October 1, 2013, 3 ½ months later.M/p to give notice.

1 12-609173Airline Visions, LLC vs.Delgado1) Defendant Eduardo Delgado aka Ed Delgado’s Attorney of Record,Patrick C. Quinlivan’s Motion to be Relieved as Counsel of Record2 13-654625Cernicky vs. Troy LeeDesigns, Inc.1) Defendant Vision Quest Industries Inc.’s Motion to Strike Portions ofPlaintiff Mark Cernicky’s Complaint6 12-621541Morgan vs. Prickett1) Defendants Kevin J. Bush and Seaboard Inc.’s Demurrer to PlaintiffsRudy B. Morgan and Shelah Spiegel’s First Amended Complaint8 13-640589Barstad vs. EquipmentWholesalers, Inc.1) Defendant Equipment Wholesalers, Inc. dba EWCO Services’ Demurrerto Plaintiff Sophie Barstad’s First Amended Complaint2) Defendant Dave Rogers’ Demurrer to Plaintiff Sophie Barstad’s FirstAmended Complaint9 13-644677Sanchez vs. ASAP Escrow,Inc.1) Defendant ASAP Escrow, Inc.’s Demurrer to Plaintiff CameronSanchez’s First Amended Complaint2) Defendant ASAP Escrow, Inc.’s Motion to Strike Portions of PlaintiffCameron Sanchez’s First Amended Complaint11 13-627072Burke vs. McPeak1) Plaintiff Kevin Burke’s Motion for Issuance of a Commission to TakeOut of State Deposition of Diana M. Butler in San Antonio, Texas12 13-665863Rodriguez vs. Catalina1) Defendants Cataling Restaurant Group, Inc. dba Coco’s, J. ThomasOchoa and Jim Kensinger’s Motion to Compel Plaintiff Karen Rodriguez toArbitrate this Matter

Restaurant Group, Inc.15 12-593263Mohammed vs. JasmineMediterranean Restaurant16 12-598675Murphy vs. Bank of America,N.A.1) Defendant Jasmine Mediterranean Restaurant’s Motion for SummaryJudgment against Plaintiff Alaa Mohammed’s First Amended Complaint1) Defendant Bank of America’s Motion for Summary Judgment againstPlaintiff Jennifer Murphy’s First Amended Complaint

1 12-577733Crouch vs. Trinity ChristianCenter of Santa Ana, Inc.1) Cross-Defendant Brandon Crouch’s, Attorney of Record DomineAdams, LLP/Jason M. Adams’ Motion to be Relieved as Counsel of Record2) Cross-Defendant Paul Crouch, Jr.’s, Attorney of Record Domine Adams,LLP/Jason M. Adams’ Motion to be Relieved as Counsel of Record3) Cross-Defendant Tawny Crouch’s, Attorney of Record Domine Adams,LLP/Jason M. Adams’ Motion to be Relieved as Counsel of RecordDeny without prejudice. The Motions to be Relieved as Counsel isDENIED without prejudice.The Moving papers did not include a Proof of Service for the clients and allcounsel. The proposed Order did not list the discovery motions forOctober 25, 2013 and November 1, 2013.M/p to give notice.4 13-662642Excel Mortgage Servicing,Inc. vs. Falce1) Defendant Michael D. Falce’s Demurrer to Plaintiffs Excel MortgageServicing, Inc.’s ComplaintSustain. Defendant Michael D. Falce’s Demurrer to the Third and FourthCauses of Action is sustained with fourteen (14) days leave to amend. Atthis time, it is unclear if Defendant was a fiduciary based on the factualallegations of the complaint. The Complaint does not allege whetherDefendant had management authority.“[A]n officer who participates in management of the corporation,exercising some discretionary authority, is a fiduciary of the corporationas a matter of law. Conversely, a ‘nominal’ officer with no managementauthority is not a fiduciary. Whether a particular officer participates inmanagement is a question of fact.” GAB Business Services, Inc. v.Lindsey & Newsom Claim Services, Inc. (2000) 83 Cal.App.4th 409,421 disapproved on other grounds in Reeves v. Hanlon (2004) 33 Cal.4th1140, 1154.Moving party to give notice.8 13-627072Burke vs. McPeak1) Plaintiff Kevin Burke’s Motion to Compel Deposition Responses ofDorothy Alynn McPeak and Monetary Sanctions against Dorothy AlynnMcPeak in the amount of $3,645.009 13-639372Simmonds vs. Gerra1) Defendant Peter Gerra’s Motion to Compel Plaintiff Victoria Simmondsto Further Respond to Special Interrogatories, Set One and Request forSanctions against Plaintiff and her Attorney of Record in the amount of$1,000.00Continue. Defendant’s motion to compel a further response to specialinterrogatories is CONTINUED to November 22, 2013 at 2pm. The partiesare to meet and confer in good faith on all items at issue and attempt toeliminate as many issues as possible. No later than November 1, 2013,Defendant is to file an amended separate statement and may file adeclaration regarding the meet and confer. No later than November 8,2013, Plaintiff is to file a response to the separate statement and may filea declaration regarding the meet and confer. No other papers are to befiled. Sanctions are DENIED.Plaintiff’s separate statement must quote not only the interrogatory andthe response but also the language of the complaint to which it refers. If

the interrogatory is one that asks for witnesses and the interrogatory towhich it refers is not included in the separate statement, it should also bequoted.For the guidance of the parties, the Court notes that identifying “OCSquash” and “Equinox” as witnesses is non-responsive to an interrogatorythat asks for witnesses with personal knowledge. An entity cannot be awitness.In addition, it is insufficient to simply parrot the allegations of thecomplaint unless those allegations are completely factual. For example,interrogatory #25 asks for facts in support of 9a of the Complaint, whichincludes the allegation that Defendant “frequently” made certain types ofcomments. It is within the scope of a request for supporting facts forPlaintiff to seek more information about when the statements were made,i.e., to support the use of the word “frequently.”Another example is interrogatory #3, which asks for facts to support theclaim that Defendant regularly hired more than 5 employees. As a formeremployee, Plaintiff should be able to state how many employeesDefendant regularly employs.A good example of what Defendant may and may not seek isinterrogatory #16, addressing 8(a) of the complaint. For the most part,this allegation is sufficiently factual in itself to constitute a properresponse. However, it includes the allegation that Plaintiff was “unable toarrange for a separate room for herself at any hotel in the area.” It iswithin the scope of the interrogatory to demand more detail about whatefforts she made, i.e., why she was “unable” to do this. However, it isnot within the scope of the interrogatory to require her to addresswhether she tried to stay with friends in the area. Exploring this wouldrequire another interrogatory.An example of overreaching by Defendant is interrogatory #128(A), inwhich he seeks extensive information that the interrogatory does not askfor.It is not sufficient that Plaintiff may not have personal knowledgenecessary to respond; she is required to also respond according to factswhich a good faith inquiry will disclose. CCP §2030.220(c). This wouldinclude contact information for witnesses she intends to call.If Plaintiff is withholding information based on her objections, she maynot do so. She has not met her burden to justify any of herobjections. See HLC Properties Ltd v. Sup.Ct (2005) 35 Cal.4th 54,59-60.If the contentions of the parties are identical as to a number ofinterrogatories, Plaintiff is urged to reduce the burden on the court byidentifying such interrogatories in an attachment to the supplementaldeclaration.Plaintiff is not entitled to sanctions due to failure to meet and confer ingood faith. In addition, some of the responses are clearly improper, e.g.,those identifying entities as witnesses.Moving party to give notice.10 13-632085Antonov vs. FarheapSolutions, Inc.1) Plaintiff Roumen Antonov’s Motion to Compel Defendant FarheapSolution, Inc. to Further Respond to Form Interrogatories- General andRequest for Monetary Sanctions against Defendant and their Counsel ofRecord in the amount of $880.00

2) Plaintiff Roumen Antonov’s Motion to Compel Defendant FarheapSolution, Inc. to Further Respond to Requests for Production ofDocuments, Set One and Request for Monetary Sanctions againstDefendant and their Counsel of Record in the amount of $1,670.003) Cross-Defendant Roumen Antonov’s Motion to Compel Cross-Complainant Farheap Solution, Inc. to Further Respond to Requests forProduction of Documents, Set One and Request for Monetary Sanctionsagainst Cross-Complainant and their Counsel of Record in the amount of$1,670.004) Cross-Defendant Roumen Antonov’s Motion to Compel Cross-Complainant Opensoft Technologies. Inc. to Further Respond to Requestsfor Production of Documents, Set One and Request for MonetarySanctions against Cross-Complainant and their Counsel of Record in theamount of $1,670.0012 11-440272Tse vs. Ferrado Newport, LLC1) Cross-Defendant Pacific Monarch Resort’s Motion for SummaryJudgment or in the Alternative Summary Adjudication against Cross-Complainant Koll Company

1 12-591704Alai vs. ShangRelated: 13-669922; Alai vs.Shang1) Plaintiffs Nili N. Alai, M.D. and Sam Nabili’s, Attorney of Record StevenSelig of Brentwood Legal Services, LLP.’s Motion to be Relieved asCounsel of RecordContinue. The motion to withdraw by counsel for plaintiffs is continuedto 12-6-13 at 2pm. Counsel for plaintiffs to: (1) serve counsel fordefendant Ha-Sui Shang, M.D. with this motion to comply with C.C.P. §1014, (2) submit and serve a completed proposed order, particularly theaddress and telephone number for plaintiffs and the date of the continuedtrial setting/status conference on 4-14-14, (3) counsel for plaintiffs toidentify the basis for the withdraw, which can be as generic as differenceshaving arisen between counsel and plaintiffs in this case, and (4) givenotice to plaintiffs Nili Alai, M.D. and Sam Nabili of the continued hearingdate and the proposed order of withdrawal.M/p to give notice.2 12-554809Brigham vs. Perez1) Defendant Bucilia C. Munford’s Motion to Set Aside the Entry of Defaultentered on 5/14/2012 and Default Judgment entered on 4/12/2013Deny. Defendant Munford’s motion to set aside the default and defaultjudgment is DENIED. Defendant Munford’s default was entered on 5-14-12. (See, Request for Entry of Default filed 5-14-12.) The filing on4-2-13 was a request for court judgment, not a request for entry ofdefault. (See, Request for Court Judgment filed 4-2-13.) Relatedly, theRequest for Court Judgment filed on 4-2-13 sets forth that defendantMunford’s default was entered on 5-14-12. (See, Request for CourtJudgment filed 4-2-13.) Defense counsel concedes it was not retained torepresent defendant Munford until July 2012, which is after defendantMunford’s default had already been entered on 5-14-12. (See, BurrowsDeclaration, 9.) Thus, as a matter of law, no mistake or neglect on thepart of Tseng & Associates was a proximate cause of the default beingentered against defendant Munford, so mandatory relief based onattorney fault is not available. See, Cisneros v. Vueve (1995) 37Cal.App.4 th 906, 911 to 912 and 8 Witkin, Cal. Proc. (5 th Ed. 2008) Attack,§ 195. In addition, since Tseng & Associates did not represent defendantMunford when her default was entered on 5-14-12, no basis fordiscretionary relief under the rules discussed in Smith is applicable sinceTseng & Associates was not counsel of record for defendant Munford inMay of 2012 when her default was entered.Plaintiff Brigham’s Request for Judicial Notice: Plaintiff Brighamrequested that the court take judicial notice of Exhibit 1, the Register ofActions in Brigham v. Perez, et al., O.C.S.C. Case No. 30-2012-00554809.GRANTED as to the court taking judicial notice of Exhibit 1, the Register ofActions in this civil action, but such notice is limited to this be a true andcorrect copy of the court’s Register of Actions but not as to the truth ofany claims or contentions set forth in the Register of Actions. See,Evidence Code § 452(d) and Day v. Sharp (1975) 50 Cal.App.3d 904,914.Plaintiff to give notice.

4 13-658391Hemric vs. Ford MotorCompany1) Defendant Ford Motor Company’s Demurrer to Plaintiffs Marc Hemricand Krista Weismar-Hemric’s First Amended Complaint5 12-575694Bertels vs. Mullins1) Defendant Brian Mullins’ Motion to Compel Plaintiff Todd Bertels toRespond to Form Interrogatories, Set Two and Request for Sanctions inthe amount of $1,590.00 against Plaintiff and his Counsel of Record2) Defendant Brian Mullins’ Motion to Compel Plaintiff Todd Bertels toRespond to Requests for Production of Documents, Set Two and Requestfor Monetary Sanctions in the amount of $840.00 against Plaintiff and hisCounsel of Record3) Defendant Brian Mullins’ Motion to Compel Request Plaintiff ToddBertels for Admissions , Set Two to be deemed Admitted or in thealternative, to Compel Verified Responses and Request for MonetarySanctions in the amount of $840.00 against Plaintiff and his Counsel ofRecord7 12-604812McElvain vs. WesternNational Securities1) Plaintiff Mark McElvain’s Motion to Compel Defendant Julie Manthey toFurther Respond to Requests to Form Interrogatories, Set One andRequest for Monetary Sanctions against Defendant and her Counsel ofRecord in the amount $4,365.002) Plaintiff Mark McElvain’s Motion to Compel Defendant Western NationalSecurities to Further Respond to Employment Interrogatories, Set Oneand Request for Monetary Sanctions against Defendant and their Counselof Record in the amount of $4,365.003) Plaintiff Mark McElvain’s Motion to Compel Defendant Western NationalSecurities to Further Respond to Form Interrogatories, Set One andRequest for Monetary Sanctions against Defendant and their Counsel ofRecord in the amount of $9,084.504) Plaintiff Mark McElvain’s Motion to Compel Defendant Western NationalSecurities to Further Respond to Special Interrogatories, Set One andRequest for Monetary Sanctions against Defendant and their Counsel ofRecord in the amount of $4,365.005) Plaintiff Mark McElvain’s Motion to Compel Defendant Western NationalSecurities to Further Respond to Request for Production, Set One andRequest for Monetary Sanctions against Defendant and their Counsel ofRecord in the amount of $4,365.008 12-569832Jeff Tracy, Inc. vs. Olguin1) Cross-Defendant Jeff Tracy, Inc. dba Land Forms Construction’s Motionfor Termination Sanctions in the amount of $4100.00 against Cross-Complainant Cris B. Olguin----The Court’s file shows that the Proof of Service of this Motion is notsigned. Without the signature, plaintiff has not established service wasmade. If there is no signed proof of service available, this Motion isCONTINUED to permit proper service.

In the event proper service is provided to the Court at the time ofthe hearing, the Court rules as follows:Plaintiff’s Motion for an Order Striking defendant/cross-complainantCris Olguin’s First Amended Cross-Complaint is DENIED. Defendants havenot established willful disobedience of the Court’s order of August 9,2013. The Motion is silent as to the Court’s order of that date compellingresponses to the Special Interrogatories. From this, the Court fairly mayinfer that the Special Interrogatories have been responded to, which doesnot evidence willful disobedience of the Court’s order.However, the Court concludes that a lesser sanction iswarranted. Therefore, as an alternative to striking the First AmendedComplaint, the Court orders that the Cross-Complaint be stayed. Thestay will remain effective until Olguin appears for deposition. This staydoes not preclude plaintiff Tracy from asking questions about claimsasserted in the Cross-Complaint at any deposition for which Olguin isnoticed to appear as a defendant.In addition, Olguin is ordered to pay monetary sanctions of $1395due in 45 days.M/p to give notice.10 12-564933Liang vs. LevyConsolidated: 12-565052;Automotive RemarketingXchange, LLC vs. Levy-Judgment on the PleadingsGranted on 6/26/1311 13-638278Jackson vs. Kloeckner MetalsCorporation12 13-627072Burke vs. McPeak1) Plaintiff Huey Jiuan Liang’s Motion to Compel Defendants Peter Levyand Marc Holstein to Further Respond to Requests for Production ofDocuments and Tangible Things, Set Two, nos. 52,53,54,56,57 and 58and Request for Monetary Sanctions against Defendants and their Counselof Record in the amount of $8,910 and Attorney Fees in the amount of$70.002) Defendants Marc Holstein and Peter M. Levy’s Motion for Leave to Filea Cross-Complaint against William Bonnaud1) Defendant Kloeckner Metals Corporation’s Judgment on the PleadingsGrant. Defendant’s motion for judgment on the pleadings is GRANTEDwithout leave to amend the FEHA causes of action. The FEHA causes ofaction are the first through sixth causes oa action of theComplaint. Plaintiff must request leave to add new causes of action bynoticed motion in the absence of a stipulation.Defendant is to give notice.1) Plaintiff Kevin Burke’s Motion to Compel Deposition Responses ofDorothy Alynn McPeak and Monetary Sanctions against Dorothy AlynnMcPeak in the amount of $3,645.00(Continued from 10/18/2013, No additional papers to be filed)

1 12-613414National Collegiate StudentLoan Trust 2005-3 vs.GaddertNovember 1 at 10:00 am1) Defendant Jerry Wimpey’s Motion for Reconciliation of Courts’Dismissal of Defendant’s Motion to Compel at hearing on August 30,2013Deny. Defendant Wimpey’s motion for reconsideration, mislabeled“reconciliation,” is DENIED. The court notes that by electing to representhimself in pro per, defendant Wimpey must adhere to the same statutoryand procedural rules as an attorney. See, Nelson v. Gaunt (1981) 125Cal.App.3d 623, 638 to 639. First, defendant Wimpey’s motion forreconsideration, mislabeled motion for reconciliation, is procedurallydefective for lack of a supporting declaration in compliance with C.C.P. §1008(a). Second, plaintiff’s motion for reconsideration is procedurallydefective for lack of a supporting memorandum. See, Rule 3.1112(a)(3).Third, defendant Wimpey’s motion to compel further Requests forProduction of Documents (RFPD) responses was and remains untimely.See, C.C.P. § 2031.310(c) and Sexton v. Superior Court (1997) 58Cal.App.4 th 1403, 1410. Fourth, defendant Wimpey has still not presenteda separate statement in compliance with Rule 3.1345(a)(3). Fifth,defendant Wimpey cannot present any good reason why his motion tocompel further RFPD responses lacked a supporting memorandum andseparate statement at the time of the hearing on 8-30-13. See, Garcia v.Hejmadi (1997) 58 Cal.App.4 th 674, 690.Moving party to give notice.2 10-376213Pacific Western Bank vs.Prospect Village, LP3 11-458429Lee vs. New Star Realty, Inc.1) Plaintiff Pacific Western Bank’s Motion for Further Award of PrevailingParty Attorney’s Fees after AppealGrant. Plaintiff’s Request for Judicial Notice is GRANTED. The Motion forAttorney Fees on Appeal is GRANTED. The hourly rates and timeexpended were reasonable and necessary. No opposition wasfiled. Plaintiff is awarded $87,597.00 in additional attorney fees onappeal.M/p to give notice.1) Plaintiff Steve H. Lee’s Motion for Award of Prevailing Party after TrialAttorney’s FeesDeny. Plaintiff Lee’s motion for attorney’s fees, pursuant to C.C.P. §1021.5, is DENIED. The evidence demonstrates that plaintiff Lee’sprincipal objective and the primary consequence of his litigation was theadvancement of his personal economic interests. In DiPirro v. BondoCorporation (2007) 153 Cal.App.4 th 150, the court explained that: “Ourreview of the record indicates to us that both the principal objective andconsequence of the defense of the Proposition 65 lawsuit was to advanceor vindicate Bondo's economic interests. Where the enforcement oradvancement of any public interest with the defense of the action wassecondary and incidental to achieving personal business goals, an awardof fees under Code of Civil Procedure section 1021.5 is not warranted.[Citations omitted.]” See, DiPirro, at 200. See also, Pacific LegalFoundation v. California Coastal Commission (1982) 33 Cal.3d 158, 167.Several of the cases cited by plaintiff Lee on the issue of important publicright are distinguishable as they do not involved determination of animportant public right in relation to an award of attorney’s fees pursuantto C.C.P. § 1021.5. The Bridge Fund court was addressing the issue ofenforcement of arbitration provisions that conflicted with the CFIL. TheBencharsky court was addressing enforcement of choice of law rules inregard to enforceability of an arbitration clause in light of the CFIL. TheAmerican Online, Inc. court was addressing a forum selection clause

issue.Moving party to give notice.6 12-607656Igo vs. Little1) Plaintiffs Jodi S. Igo,Estate of Clelah Mae Little and The Clelah MaeLittle 2012 Separate Property Trust’s Motion to Compel Defendant SidneyBernard Little to Further Respond to Form Interrogatories 6.1-6.6, 7.1-7.3, 8.1-8.8, 9.1-9.2, 10.1-10.3, 11.1-11.2, 16.1-16.10 and Request forMonetary Sanctions against Defendant and his Counsel of Record in theamount of $4,104.80Deny in part and grant in part. Plaintiffs’ motion to compel furtherresponses to form interrogatories by defendant Sidney Bernard Little isgranted in part and denied in part. See, C.C.P. § 2030.300(a). The courtnotes that the new objections raised in defendant Sidney Bernard Little’samended responses were improper and waived. See, Scottsdale Ins. Co.v. Superior Court (1997) 59 Cal.App.4 th 263, 272 to 273. Also, defendantLittle’s initial objection on the ground of incompetency was notestablished as defendant Little’s answer to plaintiffs’ first amendedcomplaint and his cross-complaint were both filed in his individualcapacity. GRANTED as to compelling a further response to Form Rog. Nos.6.1, 6.2, 6.4, 6.5, 6.6, 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 9.1, 9.2, 10.1,10.2, 10.3, 11.1, 11.2, 16.1, 16.2, 16.3, 16.4, 16.5, 16.6, 16.7, 16.8,16.9 and 16.10. Defendant Sidney Bernard Little is ordered to answerthese form interrogatories as defendant/cross-complainant. DENIED as toForm Rog. Nos. 6.3, 6.7 and 8.8 because defendant Sidney Bernard Littleis now deceased and hence cannot have present medical conditions,future need for medical treatment or future loss of earnings and/orearnings capacity. (See, Declaration of Sidney R. Little filed on 9-19-13.)Plaintiffs’ request for sanctions is DENIED based on other circumstances.See, C.C.P. § 2030.300(d). First, there was uncertainty created sinceplaintiffs’ form interrogatories were served on Sidney Bernard Little as“defendant” and not “defendant/cross-complainant.” What plaintiffs/crossdefendantswould be entitled to from defendant/cross-complainant SidneyBernard Little is broader than what plaintiffs/cross-defendants would beentitled to as Sidney Bernard Little as “defendant.” Second, the resultswere partially mixed. Third, plaintiffs likely had evidence that defendantSidney Bernard Little was not gainfully employed when Clelah Mae Littlepassed away in September 2012. Hence, the 8.1 to 8.8 series of forminterrogatories were not supported by a “good faith” belief that any suchclaim was at issue.Plaintiffs’ Evidentiary Objections: Declaration of Attorney Ehrlichand Exhibits Thereto: OVERRULED as to Objection Nos. 1, 2, 3, 4, 5, 6,7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25.SUSTAINED as to Objection No. 26 as to lack of personal knowledge.Defendant Sidney Bernard Little’s Evidentiary Objections:Declaration of Robert Naghash re: Motion to Compel FurtherResponses to Form Interrogatories: SUSTAINED as to Paragraphs 5 to12 on the grounds of lack of foundation/ personal knowledge. SUSTAINEDas to Paragraphs 13 and 14 on the grounds of hearsay and lack offoundation. OVERRULED as to Paragraph 16, 17, 18, 19, 20, 21, 22, 23,25 and 26.2) Plaintiffs Jodi S. Igo,Estate of Clelah Mae Little and The Clelah MaeLittle 2012 Separate Property Trust’s Motion to Compel Defendant SidneyBernard Little to Further Respond to Demands for Production ofDocuments 11,13,14,15,16,17,18,19,20 and 21 and Request for MonetarySanctions against Defendant and his Counsel of Record in the amount of$4,104.80

Grant. Plaintiffs’ motion to compel further RFPD responses by defendantSidney Bernard Little is GRANTED. See, C.C.P. § 2032.310(a). The courtnotes that the new objections raised in defendant Sidney Bernard Little’samended RFPD responses were improper and waived. See, Scottsdale Ins.Co. v. Superior Court (1997) 59 Cal.App.4 th 263, 272 to 273. Also,defendant Little’s initial objection on the ground of incompetency was notestablished as defendant Little’s answer to plaintiffs’ first amendedcomplaint and his cross-complaint were both filed in his individualcapacity. GRANTED as to compelling a further response to RFPD Nos. 11,13, 14, 15, 16, 17, 18, 19, 20 and 21. Defendant Sidney Bernard Little isordered to answer document requests as defendant/cross-complainant.Plaintiffs’ request for sanctions is DENIED based on other circumstances.See, C.C.P. § 2031.310(h). There was uncertainty created since plaintiffs’form interrogatories and RFPD were served on Sidney Bernard Little as“defendant” and not “defendant/cross-complainant.” What plaintiffs/crossdefendantswould be entitled to from defendant/cross-complainant SidneyBernard Little is broader than what plaintiffs/cross-defendants would beentitled to as Sidney Bernard Little as “defendant.” Moving party to givenotice.Plaintiffs’ Evidentiary Objections: Declaration of Attorney Ehrlichand Exhibits Thereto: OVERRULED as to Objection Nos. 1, 2, 3, 4, 5, 6,7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25.SUSTAINED as to Objection No. 26 as to lack of personal knowledge.Defendant Sidney Bernard Little’s Evidentiary Objections re:Motion to Compel Further RFPD Responses: Declaration of RobertNaghash: SUSTAINED as to Paragraphs 5 to 12 on the grounds of lack offoundation/ personal knowledge. SUSTAINED as to Paragraphs 13 and 14on the grounds of hearsay and lack of foundation. OVERRULED as toParagraph 16, 17, 18, 19, 20, 21, 22, 23, 25 and 26.7 12-577733Crouch vs. Trinity ChristianCenter of Santa Ana, Inc.1) Defendant/Cross-Complainant Trinity Christian Center of Santa Ana,Inc., Jan Crouch and John B. Casoria’s Motion for Award of MonetarySanctions against Cross-Defendant Tawny Crouch and her Attorney ofRecord for Failure to Comply with the Court’s Order on June 14, 2013Deny. The Motion for Sanctions is DENIED without prejudice.“’Only two facts are absolutely prerequisite to imposition of the sanction:(1) there must be a failure to comply ... and (2) the failure must bewillful.’” Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.In the moving papers, TCCSA did not file any exhibits referenced in theDeclaration of Attorney Douglas Mahaffey. At this time, the court is notpositioned to make a determination whether Tawny Crouch willfully failedto comply with the court’s order.M/p to give notice.8 12-618306Robinson vs. City of San JuanCapistrano1) Defendants City of San Juan Capistrano and Orange CountyConservation Corp’s Motion for Summary Judgment or in the alternativeSummary Adjudication

1 13-641914K Milan Construction Inc. vs.Great American ChickenCorp. Inc.1) David J. Bradford’s Pro Hac Vice Application for Defendant YumRestaurant Services Group, Inc.Continue. The application for pro hac vice is continued to 11-22-13 at2pm in Dept C12 to provide attorney Bradford sufficient time to submit asupplemental declaration addressing the factors required by Rule 9.40(a).m/p to give notice.2) Defendant and Cross-Complainant Great American Chicken Corp.,Inc.’s Motion to Compel Plaintiff and Cross-Defendant K. MilanConstruction dba Builders and Maintenance to Respond to Requests forProduction of Documents, Set OneGrant. The motion to compel a further response to requests forproduction ##21 & 22 is GRANTED. Plaintiff is to provide a responsewithout objection and produce responsive documents within 10 days. Themoving party is to give notice.The requested documents are relevant to the claims in the crosscomplaintthat work was not done properly. It is relevant to discover whoperformed the work and what work was performed by each person/entity;the requested documents would show the identity of workers,subcontractors, etc. and possibly what work they performed. Theamounts paid, even if not relevant to contract damages, would berelevant to the claim that Plaintiff “cut corners.”It is not necessary to reach the issue of whether licensing laws wereviolated (which has not yet been pled in the cross-complaint or theanswer).Plaintiff has not shown that the protective order is inadequate to protectthird party privacy rights.The moving party has is not required to rely on a list of persons that theadverse party has provided; it has the right to conduct its owndiscovery. All authorized modes of discovery are available to it.Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733,739 Even if some information is provided, the moving party has the rightto seek additional information through discovery. City of King City v.Community Bank of Central California (2005) 131 Cal.App.4th 913, 933.M/p to give notice.4 13-659305Bank of America vs.Cummins1) Defendants William B. Cummins, Mary E. Cummins, Sean Cummins,Tina Cummins, Norris Barnhill, Yeager Manufacturing Corporation, JemmInvestments, LLC., Phil Jemmett and Breakwater Equity Partners, LLC.’sDemurrer to Plaintiff Bank of America Complaint6 13-654500Potter vs. Wilson1) Defendants Glen D. Duvel and Duvel & Duvel, Inc.’s Demurrer toPlaintiff Keri J. Potter’s First Amended Complaint2) Defendants David E. Arvidson and Optimus Financial Services, Inc.’sDemurrer to Plaintiff Keri J. Potter’s First Amended Complaint

7 13-662902Abdelsamia vs. UniversalServices of America, Inc.1) Defendant Universal Protection Service, LP’s Demurrer to PlaintiffMohamed Abdelsamia’s First Amended Complaint2) Defendant Universal Protection Service, LP’s Motion to Strike PunitiveDamages of Plaintiff Mohamed Abdelsamia’s First Amended Complaint8 09-313324Crispo vs. One West Bank1) Plaintiff Andelita V. Crispo’s Motion to Vacate Decision and JudgmentDeny. Under CCP §663a(b), unless extended by §12a (re holidays andweekends):the power of the court to rule on a motion to set aside and vacatea judgment shall expire . . . if [notice of entry of judgment] hasnot been given, then 60 days after filing of the first notice ofintention to move to set aside and vacate the judgment. Ifthat motion is not determined within the 60-day period, or withinthat period, as extended, the effect shall be a denial of the motionwithout further order of the court.MP admits that the “first notice of intention to move to set aside andvacate the judgment” was filed on 5/7/13. The Court’s power to ruleexpired in August.The motion to vacate the Court’s order of 4/15/13 is DENIED. Judgmentwas entered on 4/15/13. When no notice of entry of judgment has beengiven, the Court’s power to rule expires 60 days after notice of intentionto move to vacate is first given. CCP §663a(b). That notice was filed on5/7/13. The Court no longer has power to rule on Plaintiff’s motion.Moving party to give notice.9 12-569832Jeff Tracy, Inc. vs. Olguin1) Plaintiff Jeff Tracy, Inc. dba Land Forms Construction’s Motion forTermination Sanctions in the amount of $4100.00 against DefendantCraig Johnson11 13-638832Choi vs. Iggee, Inc.1) Plaintiff Yi Re Choi aka Janet Choi’s Motion to Compel Defendant KevinHong to Provide Supplemental Responses to Form Interrogatories, SetOne and Request for Sanctions against Defendant and his counsel ofrecord in the amount of $2,985.002) Plaintiff Yi Re Choi aka Janet Choi’s Motion to Compel Defendant TinaHong to Provide Supplemental Responses to Form Interrogatories, SetOne and Request for Sanctions against Defendant and his counsel ofrecord in the amount of $2,985.003) Plaintiff Yi Re Choi aka Janet Choi’s Motion to Compel Defendant AndyLee to Provide Supplemental Responses to Form Interrogatories, Set Oneand Request for Sanctions against Defendant and his counsel of record inthe amount of $2,985.004) Plaintiff Yi Re Choi aka Janet Choi’s Motion to Compel DefendantSergio Doe to Provide Supplemental Responses to Form Interrogatories,

Set One and Request for Sanctions against Defendant and his counsel ofrecord in the amount of $2,985.005) Plaintiff Yi Re Choi aka Janet Choi’s Motion to Compel DefendantSunny Choi to Provide Supplemental Responses to Form Interrogatories,Set One and Request for Sanctions against Defendant and his counsel ofrecord in the amount of $2,985.006) Plaintiff Yi Re Choi aka Janet Choi’s Motion to Compel Defendant JackyHong to Provide Supplemental Responses to Form Interrogatories, SetOne and Request for Sanctions against Defendant and his counsel ofrecord in the amount of $2,985.00

Hon. Robert J MossOrange County Superior CourtBorn: 1946Undergraduate: University of California, IrvineLaw School: Loyola Law SchoolAdmitted to Practice: 1973Appointed to the Bench: 2002Appointed by: Governor Davis, DemocratCareer as an AttorneyPartner (1978-86) and Associate (1973-77) - Parker, Stanbury, McGee, Babcock &Combs, CA (specialized in civil litigation including personal injury, insurancebad faith, construction defect, professional malpractice, governmental entityand business tort litigation)Founding Partner - Howard, Moss, Loveder, Strickroth and Parker, Santa, Ana, CA,1987-02Relevant Organizational AffiliationsMember:American Board of Trial Advocates, 1989— (Member, National Board of Directors,1997—; O.C. Chapter President, 1999)California Judges Association, 2001— (Member, Executive Board, 2004—)Trustee: Orange County Public Law Library, 2003—CJER Technology CommitteeBoard of Directors, Ninth Judicial Circuit Historical Society, 1984—Vice-Chair, Constitutional Rights Foundation of Orange County Judicial AdvisoryBoardAssociation of Business Trial Lawyers’ Judicial Advisory BoardOCSC: Executive Committee; Chairperson, Technology Committee; Rules and FormsCommittee; Community Focused Planning Committee; Employee AppreciationCommittee; Annual Dinner CommitteeFormer Member:Orange County Bar Association

Association of Southern California Defense CounselAssociation of Business Trial LawyersAssociation of Defense Trial LawyersVice President, Executive Board, California Judges’ AssociationRecipient:Judge of the Year Award, Orange County Chapter of the American Board of TrialAdvocates, 2005Jerrold Oliver Memorial Award, Orange County Trial Lawyers Association, 2007Military ExperienceServed from E-1 PUT. to E-6 SGT., U.S. Army Reserves, 1969-75Teaching/Lectures/PanelistTeaching:Faculty Member, California Center for Judicial Education and Research, 2003—(Technology Committee)Other InformationPolitical Affiliation/Religion: Democrat/Non-denominationalInterests: Enjoys golfing, sailing, reading, computers, and skiing

Superior Court of the State of CaliforniaCounty of OrangeDEPT C23 TENTATIVE RULINGSJudge Robert J. MossThe court will hear oral argument on all matters at the time noticed for the hearing.If you would prefer to submit the matter on your papers without oral argument,please advise the clerk by calling (657) 622-5223. If no appearance is made byeither party, the tentative ruling will be the final ruling. Rulings are normally postedon the Internet by 4:00 p.m. on the day before the hearing.Date: February 15, 2013# Case Name Tentative1. Pensco v Douglas CMC: Counsel to appear to select trial date.2012-005694912. Patel v BAC HomeLoans2010-00388759Defendants’ demurrer to plaintiff’s third amendedcomplaint. Demurrer sustained without leave toamend. First, the statute of limitations is a bar tothis action. The alleged misrepresentations occurredin May of 2007 when the loan was originated. Theoriginal complaint was filed in July of 2010, morethan 3 years later. Secondly, plaintiff has failed toallege reasonable reliance. Defendants’ allegedrepresentation that “interest rates were expected togo down” was a statement of opinion, not fact. Noone can predict what interest rates will do and it isnot reasonable to rely on such statements. Withrespect to the 17200 claim, to the extent it relies onthe alleged misrepresentations as the predicate act,this claim fails for the same reason the fraud claimsfail. To the extent plaintiff relies on MER’s allegedlack of standing to file foreclosure proceedings, thatproposition is not correct. See Gomes. To the extentit is based on “robo-signing” there is no allegationthat defendant suffered injury as a result thereof. Tothe extent it is based on a violation of CCP §2329.5, the only remedy for a violation of thisstatute is a delay in the foreclosure sale. Theproperty has been sold in a “short sale.”Defendant’s request for judicial notice is denied withrespect to exhibit E and otherwise granted.Moving party to give notice.3. Ehrenberg v 1. Defendant Washington’s motion for judgment

Washington2011-004506024. Diaz v Tapout2011-004621715. Botz v Mann2011-004702526. Gottlieb vInterinsuranceExchange2011-00512832on the pleadings with respect to the third(Corp. Code § 25400) and fourth (Bus. &Prof. Code § 17200) causes of action ofplaintiff’s first amended complaint. Noopposition. Motion granted. The third causeof action is barred by the 2 year period oflimitation set forth in Corp. Code § 25506(b).The complaint alleges that defendantadmitted his attempts to manipulate themarket in September of 2008 and theoriginal complaint was not filed until morethan three years thereafter. Regarding thefourth cause of action, the claims are basedon a security transaction and are not theproper subject of a 17200 claim. Bowen vZiasun (2004) 116 Cal. App. 4 th 777.2. Defendant Washington’s motion for summaryjudgment/adjudication. Motion denied inpart and moot in part. The motion is mootas regards the third and fourth causes ofaction in light of the court’s ruling on themotion for judgment on the pleadings above.With respect to the first (fraud) and second(negligent misrepresentation) causes ofaction moving party has failed to meet hisburden of establishing that there is no triableissue of fact. The first amended complaint isbased on more allegations than are attackedby the motion. For example, moving partyhas not addressed the allegations thatmoving party made misrepresentation aboutthe licensure in China, Carlos Slim beinginterested in acquiring shares or that afavorable business report was forthcomingfrom Fox business news. While the “pumpand dump” allegations are prominent in thepleadings, they are not the only basisalleged. Since moving party has notaddressed all of the allegations ofmisrepresentation in the first amendedcomplaint it is unnecessary to address theevidentiary objections of the parties.Moving party to give notice.[Continued to 3/15/13.][Notice of settlement filed 1/29/13.]1. Defendant’s demurrer to plaintiff’s thirdamended complaint. Demurrer sustainedwithout leave to amend. The only damagespecifically alleged by plaintiff is the premiumsurcharge of $600.00. Plaintiff has failed to

7. Zborowsky v Biogen2011-005239868. State Farm v Baxter2011-00528986exhaust her administrative remedies byseeking review of the premium increase withthe Department of Insurance. Ins. Code §1858. Also, the plaintiff has failed to allegeany language in the policy that would requirethe defendant to supply counsel so thatplaintiff could appeal the judgment againsther in the small claims case.2. CMC: Moot in light of the court’s ruling ondemurrer.Moving party to give notice.[Continued on court’s motion.]Plaintiff’s motion to deem RFA’s admitted. Noopposition. Motion granted. Sanctions are awardedto plaintiff and against defendant in the sum of$460.00. Moving party to give notice.9. Golden Eagle v Blake2011-00534132 Cross-complainant’s motion for leave to file crosscomplaint.No opposition. Motion granted. Crosscomplaintto be filed no later than 2/22/13. Movingparty to give notice.10. Cesar P. v OrangeUnified SchoolDistrict2012-005710951. Demurrer by defendants OUSD, Lentini & Coeto plaintiff Oscar P’s first amended complaint.Demurrer overruled in part andsustained in part. OVERRULED as todefendant Coe’s demurrer to plaintiffs CesarP., et al.’s first cause of action for violation ofCivil Code §§ 51, 51.5 and 51.7 and secondcause of action for violation of 42 U.S.C. §1983. As to plaintiffs’ first cause of action forviolation of the Unruh Civil Rights Acts,plaintiffs have alleged sufficient facts as toabuse and discrimination by defendantLentini, and facts as to aiding by defendantCoe to state this cause of action. See, CivilCode §§ 51, 51.5, 51.7 and 52, and Nicole M.v. Martinez Unified School Dist. (1997) 964F.Supp. 1369. As to plaintiffs’ second causeof action for violation of 42 U.S.C. § 1983,plaintiffs have alleged sufficient facts as toknowledge and failure to preventharassment, abuse and discrimination, andeven facts as to attempts to intimidate schoolemployees reporting defendant Lentini’sconduct, by defendant Coe to state thiscause of action at this pleading stage. See,Stoneking v. Bradford Area School Dist.(1989) 882 F.2d 720. The Stoneking courtspecifically held that there was aconstitutional right to freedom from sexualabuse and other abuse. Id., at 726 to 727.

SUSTAINED, without leave to amend, as toplaintiffs’ fifth cause of action fordiscrimination on the basis of disability inviolation of Section 504 because plaintiffshave not demonstrated that Section 504 isgiven the broad type of construction like theUnruh Civil Rights Act and have not allegedfacts as to denial of access to this elementaryschools or it special education services bydefendants. Moving party to give notice.2. Demurrer by defendants OUSD, Lentini & Coeto plaintiff S.O’s first amended complaint.Demurrer overruled in part andsustained in part. OVERRULED as toplaintiff S.O.’s second cause of action forviolation of 42 U.S.C. § 1983 and ninth causeof action for violation of Civil Code § 51.9and 52, and SUSTAINED without leave toamend as to plaintiff S.O.’s sixth cause ofaction for IIED. The right to be free fromsexual abuse is a federally protected right.Stoneking v. Bradford Area School Dist.(1989) 882 F.2d 720, 725 to 726. Also,plaintiff S.O. has alleged sufficient facts ofdefendant Coe failing to respond to variousreports of sexual harassment anddiscrimination by co-defendant Lentiniinvolving plaintiff S.O. and other parties tostate this claim at this pleading stage. As toplaintiff’s cause of action for violation of CivilCode §§ 51.9 and 52, plaintiff S.O. hasalleged sufficient facts as to sexualharassment and aiding by defendant Coe tostate this claim at this pleading stage. As toplaintiff S.O.’s sixth cause of action for IIED,this is based on the alleged failure initiatediscipline and/or discipline defendant Lentini,and such a failure is a discretionary actentitled to immunity pursuant to Gov’t Code§ 820.2. See, Annamaria M. v. Napa ValleyUnified School Dist. 2006 WL 1525733 (N.D.Cal. 2006) and Kemmerer v. County ofFresno (1988) 200 Cal.App.3d 1426, 1438.SUSTAINED, without leave to amend, as toplaintiff S.O.’s fifth cause of action fordiscrimination on the basis of disability.Plaintiff S.O. has again not alleged facts as todiscrimination as to any denial of access oraccommodation to this elementary school orany of the special needs programs by thiselementary school. Misconduct by a teacherat a school, while covered by other statutes,is not within the scope of Section 504.

Finally, SUSTAINED as to defendant District,without leave to amend, as to plaintiff S.O.’sninth cause of action for violation of CivilCode §§ 51.9 and 52 because defendantDistrict is not a “person” within the meaningof the Unruh Civil Rights Act. The Dorgercase is distinguishable because it involvesCivil Code § 52.1 and also involved a Monellclaim against the governmental entity.Plaintiff S.O. has not alleged any facts as tosupport a Monell claim against defendantDistrict. Moving parties to give notice.3. Demurrer by defendants OUSD, Lentini & Coeto plaintiff Oscar D’s complaint. Demurrermoot. A first amended complaint was filedon 1/2/13. Moving party to give notice.4. Demurrer by defendants OUSD, Lentini & Coeto plaintiff Oscar D’s first amendedcomplaint. Demurrer overruled in partand sustained in part. OVERRULED as todefendant Coe’s demurrer to plaintiff OscarD.’s second cause of action for violation of 42U.S.C. § 1983. The right to be free fromsexual abuse and abuse is a federallyprotected right. Stoneking v. Bradford AreaSchool Dist. (1989) 882 F.2d 720, 725 to726. Also, plaintiff Oscar D. has allegedsufficient facts of defendant Coe failing torespond to various reports of harassment,abuse and discrimination by co-defendantLentini involving plaintiff Oscar D. and otherparties to state this claim at this pleadingstage. SUSTAINED, without leave to amend,as to plaintiff’s fifth cause of action fordiscrimination in violation of Section 504 ofthe Rehabilitation Act because facts as todiscrimination as to any denial of access oraccommodation at this elementary school orany of the special needs programs by thiselementary school are not alleged.Misconduct by a teacher at a school, whilecovered by other statutes, is not shown to bewithin the scope of Section 504. Movingparty to give notice.5. Defendants OUSD, Lentini & Coe’s motion tostrike portions of plaintiff S.O’s first amendedcomplaint (punitive damages.) Motionmoot. The claim for punitive damages wasbased on plaintiff’s sixth cause of action forIIED the demurrer to which has beensustained without leave to amend.6. Defendant Lentini’s motion to strike portionsof plaintiff Oscar D’s complaint (punitive

11. Hasso v Griffith2012-0057271312. Interline Brands Inc vThe SavoyContractor’s Group2012-57839113. Kurtin v Gulfstream2012-0059375814. Gillespie v AmericanFamily HomeInsurance2012-00594080damages.) [Off calendar.]7. Defendant Lentini’s motion to strike portionsof plaintiff Oscar D’s first amended complaint(punitive damages.) Motion granted inpart and denied in part. GRANTED as todefendant Coe, without leave to amend, asfacts are not pled to support any finding ofmalice, oppression or fraud on the part ofdefendant Coe. Plaintiff has not articulatedwhat additional facts can be pled to state aproper claim for punitive damages againstdefendant Coe. DENIED as to defendantLentini because while not very strong, at thispleading stage plaintiff Oscar D. has allegedsufficient facts as to oppression within themeaning of Civil Code § 3294(c)(2). Thecourt notes that this is merely at thepleading stage and whether plaintiff Oscar D.can articulate sufficient facts and presentevidence to survive a motion for summaryadjudication on this issue is not before thecourt at this time. Moving parties to givenotice.8. CMC: Counsel to appear to select trial date.Defendant’s motion to set aside default/judgment.Motion granted. The court finds excusable neglecton the part of defendant’s counsel. The request forfees and costs in denied. Moving party to givenotice.Application for right to attach order/writ ofattachment. Application denied. In light of theevidentiary objections, plaintiff has failed tosufficiently submit admissible evidence showing thatthe claim for money is: (1) based on a contract; (2)is of a fixed or readily ascertainable amount not lessthan $500; and (3) is probably valid. Moving partyis to give notice.Defendant’s Evidentiary Objections: Defendant’sevidentiary objections are SUSTAINED in part andare OVERRULED in part. The objections areSUSTAINED as to nos. 1, 3, 4, 5, 6, 7, and 8. Theobjections are OVERRULED as to nos. 2, 9, and 11.Moving party to give notice.[Continued to 3/29/13.]Defendant’s demurrer to plaintiff’s complaint. Noopposition. Demurrer overruled. Defendant’s solecontention is that the complaint does not saywhether the contract was written or oral. Thecomplaint alleges at paragraph 3 that American“wrote” the policy. Defendant shall file an answer by2/22/13. Moving party to give notice.

15. Gaar v Schumann2012-0060172316. CH Bus Sales vCaterpillar Inc2012-00610421[First amended complaint filed.]1. Defendant’s demurrer to plaintiff’s complaint.Demurrer overruled. Plaintiff has allegedthat defendant made the allegedmisrepresentations as part of an advertisingcampaign. While claims of fraud mustordinarily be made with specificity (who saidwhat to whom, where, when & how) it wouldbe difficult for plaintiff to do so at this pointin the litigation. Defendant is on notice of theclaim against it and discovery can unearthmore detail about specific representations.Defendant to file answer by 2/22/13. Movingparty to give notice.2. Defendant’s motion to strike portions ofplaintiff’s complaint. Motion denied. Fraudis a sufficient predicate for punitive damages.Moving party to give notice.

Department C16 Law & Motion CalendarDate: February 26, 2013The Court will hear oral argument on all matters at the time noticed for the hearing. If youwould prefer to submit the matter on your papers without oral argument, please advise theclerk by calling (657) 622-5216. Court Call appearances are permitted. Court Call must becontacted to appear by phone. Call 1-888-88Court for more details. The court will notentertain a request for continuance nor filing of further documents once the rulinghas been posted.http://www.occourts.org/directory/civil/tentative-rulingsTo Counsel and litigants,Because I am not available to hear your case today, I have asked my research attorney to serve astemporary judge for the law & motion calendar. The court seeks out only the most highly qualifiedindividuals to serve as research attorneys and those selected work closely with the judicial officers inassessing each motion. As a result, my research attorney will be familiar with your case, as well asmy anticipated ruling. Stipulation is, however, entirely voluntary and you are entitled to acontinuance should you decline. If you choose not to stipulate, you may call the Department at(657)622-5216 and speak to the clerk in lieu of appearance. Thank you.Judge William M. MonroeBeth Eagleson – Temporary JudgeMs. Eagleson has practiced as an insurance defense attorney, as in-house litigation counsel for aFortune 500 company, as a sole practitioner representing both plaintiffs and defendants, primarily inSan Diego County. She has been a Research Attorney with the Orange County Superior Court sinceJanuary, 2008. She attended Southwestern University School of Law in Los Angeles and haspracticed since 1985 and is AV-rated.1 2010-00388821Magdalena Annanvs.Timothy Ghalbi2 2011-00514923Caliber One WirelessIncvs.Dish Television Inc3 2012-00550731Dennis Koire by andthrough hisSuccessor in interestRichard Koirevs.THC- OrangeCounty, Inc4 2012-00557948Joanie Mainesvs.Wild RiverWaterpark5 2012-00586068SpectrumInformation Servicesvs.SpectrumInformation ServicesPlaintiff Magdalena Annan’s Motion to Set Aside/VacateDismissalDefendants Dish Television Inc., Shawn A. Aguilar’s Motion toEnter JudgmentContinued to 4/9/13Defendant Kindred Healthcare Operating, Inc’s1) Motion for Summary Judgment and/or AdjudicationTHC-Orange County, Inc DBA Kindred Hospital-Westminster’s2) Motion for Summary Judgment and/or AdjudicationOff CalendarDefendant Wild River Waterpark’s Motion to BifurcateOff CalendarCase Management ConferenceDefendants Glenn O'dell, Lisa Lynn Kays, and SpectrumInformation Servies NW’s Motion to Quash Service of Summons

NW6 2012-00592063Esfandiarvs.Wells Fargo Bank,N.A.7 2012-00598220Andersonvs.Bank of America,N.A.8 2012-00610441Miguel Chavezvs.Bank of Americacorporation aDelawarecorporationCase Management ConferenceDefendant Wells Fargo Bank, NA’s Demurrer to ComplaintContinued to 4/4/13Case Management ConferenceDefendants Bank of America, N.A. and Recontrust Company,NA’s Demurrer to Amended ComplaintDefendants Bank of America, Mortgage Electronic RegistrationSystems, Inc and The Bank of New York Mellon’s Demurrer toComplaintDismissed

Superior Court of the State of CaliforniaCounty of OrangeDEPT C23 TENTATIVE RULINGSJudge Robert J. MossThe court will hear oral argument on all matters at the time noticed for the hearing. If you wouldprefer to submit the matter on your papers without oral argument, please advise the clerk bycalling (657) 622-5223. If no appearance is made by either party, the tentative ruling will be thefinal ruling. Rulings are normally posted on the Internet by 4:00 p.m. on the day before thehearing.Date: May 17, 2013# Case Name Tentative3. Vestar/Kimco, L.P. vs.Kboby, Inc2011-00514253Defendant’s motion for attorney fees and costs. Motiongranted. Having considered the parties’ supplemental briefing, thecourt grants Defendant Ayoub Sesar’s motion for an award ofattorney’s fees pursuant to Civ. Code, § 1717, subd. (a). Defendantis hereby awarded, and is to recover against Plaintiff Vestar/KimcoTustin, L.P. attorney’s fees equal to $22,230.00. The court deniesPlaintiff’s request for judicial notice made in connection with thismotion.The court finds that Defendant is the prevailing party under Section1717 as to the commercial lease agreement at issue in Plaintiff’sFirst Cause of Action. Defendant is therefore entitled to fees inconnection with litigating that cause of action pursuant to Article 24of that lease and Section 1717. (See CDF Firefighters v. Maldonado(2011) 200 Cal.App.4th 158, 167.)At the 04/12/13 oral argument on this motion, Plaintiff raised forthe first time a contention that attorney’s fees are not availablebecause no formal order was entered dismissing the First Cause ofAction after Defendant’s demurrer was sustained to that claimwithout leave to amend. Plaintiff’s supplemental briefing clarifiesthat Plaintiff’s true concern is whether Plaintiff has preserved itsright to appeal from the order sustaining the demurrer. NeitherDefendant nor Plaintiff requested a formal dismissal, though it waswithin either’s right to do so. Indeed, Plaintiff now concedes thatthe order adjudicated the First Cause of Action on itsmerits. Nevertheless, Plaintiff chose to voluntarily dismiss the“entire action” without prejudice to avoid trial on the Second Causeof Action To the extent that doing so created an appealability issuegiven the lack of any formal dismissal of the First Cause of Action,such issue is entirely Plaintiff’s fault.It remains Plaintiff’s right to move the court for an order vacatingthe voluntary dismissal and entering judgment upon a propershowing (e.g. of surprise, mistake, or excusable neglect), butPlaintiff has not done so and Plaintiff’s opposition to the instantmotion is not the proper forum to make such a determination.The court again finds, however, that there is no prevailing party asto the guaranty at issue in Plaintiff’s Second Cause of Action,because Plaintiff voluntarily dismissed that cause ofaction. Defendant has not shown that the dismissal was effectivelyinvalid or moved to have it set aside. (See, e.g., Bank of America,N.A. v. Mitchell (2012) 204 Cal.App.4th 1199, 1209 [plaintiffattempted dismissal after demurrer sustained without leave toamend]; Kelly v. Bredelis (1996) 45 Cal.App.4th 1819, 1832[defendant set aside dismissal after plaintiff requested trial de novo

following judicial arbitration award in defendant’sfavor].) Accordingly, Defendant is not entitled to fees in connectionwith litigating the Second Cause of Action.The court find that the hourly rates requested by Defendant ($375for Mr. Ghods and $325.00 for Mr. Escobedo) are reasonable in lightof prevailing market rates charged by attorneys of similarexperience in this community based on the evidence and argumentbefore the court on this motion. Defendant met his burden ofestablishing that Mr. Ghods reasonably spent 18.4 hours and Mr.Escobedo spent 29.5 hours successfully litigating Plaintiff’s FirstCause of Action and the instant motion. Defendant also met hisburden of establishing that Mr. Ghods reasonably spent 6.3 hoursand Mr. Escobedo spent 10.4 hours in connection with thesupplemental briefing on this motion. Plaintiff failed to meet itsburden of showing that any particular time spent was notreasonable or recoverable. Therefore, and because Defendant didnot seek a multiplier, the lodestar is $22,230.00.Defendant is also awarded costs against Plaintiff equal to $477.00under Code Civ. Proc., §§ 1032 and 1033.5, as requested in hisverified Memorandum of Costs, filed and served on 12/14/12.Moving party to give notice.5. Michael A Midyette vs.AssociatedGastroenterology MedicalGroup2012-005369106. California Strand VillageInvestors, LLP vs. BruceH. Furst2012-00551378Defendant Kuettel and Winkle’s motions for summaryjudgment. Motions granted. These motions were continued from4/19/13 in order to give plaintiff a chance to submit correctedexpert declarations. As of the time of the court’s review, correcteddeclarations have not been filed. Moving party to give notice.Defendant’s motion to set aside default. Motion granted. Themotion is brought under CCP § 473(b). However, neither mistake,surprise, inadvertence nor excusable neglect has been shown. Thecourt deems the motion to be made under CCP § 473.5, for lack ofactual notice. In light of the over-arching policy of resolvingdisputes on their merits, the court is not persuaded that defendantis the person upon whom the process server attemptedservice. While the points and authorities indicate that the processserver had a photo of defendant, the process server’s declarationdoes not so indicate. Also, the plaintiff is not “middle aged,” he is61 years old. Further, the Ford Flex automobile is the defendant’sdaughter’s car. He normally drives a Mini. In addition, a copy ofthe pleading was mailed to his wife’s home, not his residence inNevada. Finally, when the matter was originally filed in 2009,defendant came to plaintiff attorney’s office and accepted service,suggesting that he was not avoiding service.Defendant’s objections to the evidence are overruled. Defendant’srequest for judicial notice is granted.Defendant may have until 5/24/13 to file his answer.Moving party to give notice.8. Stella Nguyen Vovan vs.Thomas Thai Nguyen2012-0058759310. Walter Harris, by andthrough his Attorney-inFact Randeleigh Harris,vs. Savaseniorcare, LLCPlaintiff’s motion to strike unverified answer to verifiedcomplaint. Motion granted. Defendant may have until 5/24/13 tofile a properly verified answer to the verified complaint. Movingparty to give notice.1. Plaintiff’s motion for trial preference. [Off calendar.]2. CMC: Counsel to appear to select trial date.

2012-0059771611. James R. Lammon vs.Knott's Berry Farm2012-00609538Defendant’s motion to reclassify action as limited jurisdiction. Noopposition. Motion granted. All current hearings, including trial,set in this department are vacated. The matter shall be transferredto department C3. Moving party to give notice.12. CH Bus Sales Inc vs.Caterpillar Inc2012-0061042114. WS Packaging Group,Inc. vs. Gabriel Camacho2013-00628765Plaintiff’s motion to correct minute order. No opposition. Motiongranted. The minute order of 2/15/13 does not accurately reflectthe order of the court. The motion to strike as to item 3 of theprayer, for exemplary damages, is denied. Moving party to givenotice.Defendant’s motion to change venue to Los AngelesCounty. Motion granted. The cross motions for fees and costs aredenied. Defendant has failed to submit a declaration setting forthhis fees and costs incurred. In addition, defendant failed to requesta stipulation to change venue before filing his motion. As forplaintiff’s request, plaintiff has failed to submit a declaration settingforth the hourly fee charged, the time spent, and any expensesincurred. Plaintiff is ordered to pay the appropriate transfer fee perCCP § 399 within 10 days. Plaintiff to give notice.15.Ronald Goudey vs. SCMEMortgage Bankers, Inc2012-00575895Defendants’ Aurora Loan Services and MERS’s motion to liftstay. No opposition. Motion granted. Plaintiff’s request that thecourt vacate its 2/22/13 (erroneously stated as 2/8/13) ruling onthe demurrer of MERS is granted. Plaintiff may file its firstamended complaint by 5/27/13. Moving party to give notice.

Superior Court of the State of CaliforniaCounty of OrangeDEPT C23 TENTATIVE RULINGSJudge Robert J. MossThe court will hear oral argument on all matters at the time noticed for the hearing. If you wouldprefer to submit the matter on your papers without oral argument, please advise the clerk bycalling (657) 622-5223. If no appearance is made by either party, the tentative ruling will be thefinal ruling. Rulings are normally posted on the Internet by 4:00 p.m. on the day before thehearing.Date: May 31, 2013# Case Name Tentative1. Gard v The Bread Defense counsel’s motion to withdraw. No opposition. MotionCompanygranted. Moving party to give notice.2009-001219582. Covarrubias v Flores2010-00424441Defendants’ motion to strike portions of the third amendedcomplaint. Motion denied. The factual contentions set forth in theSecond Amended Complaint and the Third Amended Complaint insupport of the declaratory relief CofA are substantively and substantiallysimilar. The Court overruled the demurrer to the declaratory relief CofAof the Second Amended Complaint. Defendants are now improperlyattempting to demurrer to that CofA by way of a motion to strike.Defendants first contend that Plaintiffs have improperly incorporated thequiet title CofA into the declaratory relief CofA. Defendants cite toTostevin v. Douglas (1958) 160 Cal.App.2d 321 in support of thiscontention. That case, however, is distinguishable because when thetrial court sustained the prior demurrer with leave to amend to thesecond amended complaint, it ordered that any factual allegations thatvaried the prior factual allegations must be explained. (Id. at 324.) Theplaintiff in that case filed a third amended complaint and failed toexplain the changes that have been made. (Id.) Therefore, the trialcourt granted defendants’ motion to strike. (Id.) Unlike the trial court inTostevin, the Court in this case did not specially order plaintiff to pleadand/or withdraw any factual allegations of the underlying SecondAmended Complaint. Thus, unlike the issue in Tostevin, Defendantshave failed to sufficiently establish that the Third Amended Complaint isnot drawn or filed in conformity with an order of the Court.Defendants also contend that the declaratory relief claim hascrystallized into the accounting and unjust enrichment CofAs, and istherefore improper. This contention is proper for a demurrer, but not amotion to strike. (See, Cardellini v. Casey (1986) 181 Cal. App. 3d 389,397-398 [This case sets forth the general rule that a declaratory reliefclaim is improper if it has crystallized into other CofAs.].)

In sum, Defendants have failed to sufficiently establish that theallegations contained in the Third Amended Complaint are irrelevant,false, improper, and/or not drawn or filed in conformity with the laws ofthis state, a court rule, or an order of the court.Defendants shall file their answer to the third amended complaint by6/11/13. Moving party to give notice.3. Rosen v HarborShowcasePlaintiff’s motion for assignment order. No opposition. Motiongranted. Moving party to give notice.2011-004689344. Der Torrosian vOrange County FairHousing Council2011-005253121. Defendants’ demurrer to plaintiff’s the third (harassment) andfourth (invasion of privacy) causes of action of the thirdamended complaint. Demurrer overruled.Third Cause of Action (Harassment). Defendants argue thatPlaintiff has not adequately pled that: (1) she was a member of aclass protected by the FEHA; and (2) she experiencedharassment based on her membership in that protectedclass. Plaintiff alleges that Defendants’ “actions and omissionscaused [her] to have a stress-related high-blood pressuredisability which required Plaintiff to take a medical leave ofabsence and ultimately file a workers’ compensationclaim.” (TAC, 24.) Plaintiff also appears to allege that sheexperienced harassment both before and after she becamedisabled. (See TAC, 60, 62.) While terse and far from amodel of clear pleading, these allegations are sufficient to putDefendants on notice of the basis of the alleged harassment andto allege the elements addressed in Defendants’ demurrer.Fourth Cause of Action (Invasion of Privacy). Plaintiff’sopposition to the instant demurrer confirms that this claim is forpublic disclosure of private facts. Defendants argue that Plaintiffhas not adequately pled this cause of action because she has notalleged: (1) a disclosure of private facts by OCFHC; (2) that anydisclosure was “public” within the meaning of this tort; or (3) anyresulting damages. As to OCFHC’s conduct, Plaintiff alleges thather workers’ compensation attorney contacted OCHFC’s attorneyto obtain the address to which Plaintiff’s medical claims shouldbe sent and OCFHC intentionally provided the address for RuralCommunities Assistance Corporation rather than the address forits workers’ compensation carrier. (TAC, 30-31.) Althoughnot a direct disclosure, these allegations are sufficient to pleadthat OCFHC intentionally caused the alleged disclosure to occurand Defendants cite no authority that would preclude OCFHC’sliability under these circumstances. As to whether the disclosurewas “public,” Plaintiff alleges that OCFHC caused her privateinformation to be disclosed to the whole of the RuralCommunities Assistance Corporation. (TAC, 75.) While it isunclear at this stage whether the disclosure was sufficientlybroad as to become “public,” that issue appears to be one bestexplored in discovery. Finally, as to damages, Plaintiff allegesthat she suffered experienced “great emotional distress” aboutthe alleged intentional and public dissemination of her privatemedical information. (TAC, 78.)The court GRANTS Defendants’ request for judicial notice inconnection with the instant demurrer. The court declines toconsider the declaration and other extrinsic evidence proffered

y Plaintiff in opposition, because such evidence may not beconsidered unless it is subject to judicial notice and Plaintiff doesnot ask the court to take such notice of her proffered evidence.2. Defendants’ motion to strike portions of plaintiff’s third amendedcomplaint. Motion denied. Defendants argue that Plaintiffexceeded the scope of her leave to amend her complaint byadding her Third Cause of Action for harassment. It is unclearfrom the record whether Defendants are correct. However,granting the instant motion would elevate form oversubstance. Plaintiff’s FAC contained factual allegations ofdisability, disability-related leave, and Defendants’ resultingconduct that are substantially identical to those at issue in theTAC. (Compare FAC, 23-25 with TAC, 23-24; see alsoFAC, 46, 48-49 [Second Cause of Action for Retaliation inViolation of FEHA, discussing Defendants’ “retaliation” and“harassment” of Plaintiff].) While no separate claim forharassment was brought in the FAC, it appears that Defendantswere reasonably on notice at that time of Plaintiff’s contentionthat she suffered unlawful harassment on the grounds at issue inher TAC. Moreover, it appears virtually certain that granting theinstant motion to strike would only prompt Plaintiff to file amotion for leave to amend, which would likely be granted underCode Civ. Proc., § 473. The only effect, then, would be tofurther prolong the proceedings.The court GRANTS Defendants’ request for judicial notice inconnection with the instant demurrer. The court declines toconsider the declaration and other extrinsic evidence profferedby Plaintiff in opposition, because such evidence may not beconsidered unless it is subject to judicial notice and Plaintiff doesnot ask the court to take such notice of her proffered evidence.Defendants may have until 6/10/13 to file an answer to the thirdamended complaint. Moving party to give notice.5. Jacques vMorningside Recovery2012-005580988. Park v Kim2012-00583892Plaintiff’s motion to file second amended complaint. Noopposition. Motion granted. Plaintiff to file second amendedcomplaint to be filed by 6/7/13. Moving party to give notice.1. Defendant’s demurrer to plaintiff’s complaint. Noopposition. Demurrer overruled. A demurrer is aninappropriate procedural vehicle for challenging a particular typeof damage or remedy. See King v City of Hawaiian Gardens(2002) 108 Cal. App. 4 th 1028, 1047. Moving party to givenotice.2. Defendant’s motion to strike punitive damageallegations. Motion granted. Plaintiff has filed a notice of“non-opposition” with respect to the owner. No opposition wasfiled on behalf of defendant Kim. Moving party to give notice.9. Peterson v Kohani2012-00591850Cross-defendant’s demurrer to the eighth (ejectment) cause of action ofthe first amended cross-complaint. Demurrer sustained withoutleave to amend. The court’s order enforcing the settlementagreement contemplated two concurrent conditions to the transfer oftitle, delivery of the deed and payment of money. The cross-complaintalleges that Peterson did not receive her purchase money funds. Thus,the cross-complaint does not plead legal title and the cause of action for

ejectment must fail. Moving party to give notice.10. Flores v Brandt2012-0060641612. OCTA v EastgroupProperties1. Defendant’s demurrer to plaintiff’s complaint. Demurreroverruled. Regarding indemnity, no tort claim is required. Aduty to indemnify may be implied from the obligation ofcontracting parties. With respect to the 2 nd , 3 rd , and 4 th causesof action (SOL defense) the delayed discovery rule is relaxedwhere a fiduciary duty exists between the parties. Because ofthe relationship, facts that might otherwise prompt aninvestigation may not incite suspicion because the principal isrelying on the agent. For this reason, the SOL against a fiduciarydoes not begin to run until the principal has actual knowledge ofthe breach. Whether or not the principal has sufficientknowledge to prompt an investigation and whether such inquirywould disclose the fiduciary’s breach are questions offact. Finally, with respect the accounting cause of action, thecomplaint alleges that funds were misused and rents, issues andprofits were collected by Brandt. There is no sum certain and acause of action for accounting has been properlystated. Defendant shall file an answer by June 11,2013. Moving party to give notice.Plaintiff’s motion for pre-judgment possession (CCP 1255.410.) Noopposition. Motion granted. Moving party to give notice.2013-0063079213. Vasquez v StearnsLending2013-0063495415. Midyette v AssociatedGastroenterolgyMedical Group2012-00536910Defendant’s demurrer to plaintiff’s complaint. No opposition. Demurrersustained without leave to amend. The court infers from the lack ofopposition that the demurrer is well-taken and there are no additionalfacts plaintiff could plead that would rescue the matter. Moving party togive notice.Defendants Kuettel and Winkle’s motions for summaryjudgment. Motions granted. These motions were first heard on4/19/13. The court found that defendant had met its burden and thatplaintiff had failed to raise a triable issue of fact due to the fact thatplaintiff’s expert’s declaration did not properly authenticate the medicalrecords upon which he relied. Because it appeared to the court that thisevidentiary issue could be easily cured, and in furtherance of the policyto adjudicate matters on their merits, the motion was continued andplaintiff was given an opportunity to submit a proper declaration. Thesecond hearing was on 5/17/13. Plaintiff had still not submitted anadequate declaration. Again the court continued the hearing and gaveplaintiff a third chance to correct the evidentiary problem. As of thisdate, the court has still not received the curative declarations with noexplanation as to why they are not forthcoming. Thus, the motion isgranted. Moving party to give notice.

Superior Court of the State of CaliforniaCounty of OrangeDEPT C23 TENTATIVE RULINGSJudge Robert J. MossThe court will hear oral argument on all matters at the time noticed for the hearing. If you wouldprefer to submit the matter on your papers without oral argument, please advise the clerk bycalling (657) 622-5223. If no appearance is made by either party, the tentative ruling will be thefinal ruling. Rulings are normally posted on the Internet by 4:00 p.m. on the day before thehearing.Date: June 07, 2013# Case Name Tentative2. US Legal ManagementServices, Inc vs. Lawoffices of Roger E.Naghash2009-00313736Defendant’s motion to enter order and judgment consistent with theorder of the appellate division of the superior court. The courtcontinues the motion by Defendants Law Offices of Roger E.Naghash and Roger E. Naghash for an order entering judgment inthis matter to 7/12/14 at 10:00 AM to permit the parties to submitfinal briefing and evidence on the following issues only:1. Have the parties entered into an enforceable agreement thatresolves the payment of attorney’s fees in connection withthis case, as Plaintiffs US Legal Management Services, Inc.and American Legal Investigation Services, Inc. contend,such that the fees issue is now moot?2. If the parties have not entered into an agreement resolvingthe payment of attorney’s fees in this case, is US LegalManagement Services entitled to its non-appellate attorney’sfees in this case? The parties should specifically address therelationship between First Legal Support Services and USLegal Management Services, the evidence presented inconnection with Plaintiffs’ withdrawn motion for attorney’sfees on appeal that the two companies may be separate legalentities, and the relevant implications of that relationship.3. If the parties have not entered into an agreement resolvingthe payment of attorney’s fees in this case, does the Law ofthe Case doctrine apply to the Appellate Division’s remittiturin this matter, filed on 09/26/12, or does this court have anydiscretion to find that neither Plaintiff is entitled to nonappealattorney’s fees based on evidence proffered for thefirst time following the remittitur?Defendants shall file and serve any briefing (not to exceed 10pages) and evidence on these issues at least 9 court days before thecontinued hearing date. Plaintiffs shall file and serve any briefing(not to exceed 10 page) and evidence on these issues at least 5court days before the continued hearing date.Plaintiffs are to serve notice of this order.3. Hoai Le vs. Alwin Lee2011-004380795. Hesham Shehab vs.Paragon Systems, Inc.2011-00480823Defendant Kim’s motion for leave to file cross-complaint. Noopposition. Motion granted. Defendant to file cross-complaint by6/13/13. Moving party to give notice.Defendant’s motion for terminating sanctions and monetarysanctions. Motion granted in part and denied in part. Whilethe court finds that terminating sanctions are not currentlyappropriate based on Plaintiff’s willful failure to comply with its

12/07/12 discovery order, the court strongly admonishes Plaintiff tocomply with his discovery obligations in this matter or riskterminating sanctions in the future.The court GRANTS Defendants’ request for monetary sanctionsagainst Plaintiff in the amount of $2,812.50. Moving party to givenotice.9. Rieden vs. Bank ofAmerica N.A.2012-00584947Defendant’s demurrer to plaintiff’s second amendedcomplaint. Demurrer sustained without leave to amend. As toplaintiffs’ first cause of action for breach of contract-promissoryestoppel, the Rieden plaintiffs still have not alleged sufficient factsas to the terms of the purported loan modification agreement thatwould support a claim for promissory estoppel. See, Garcia v. WorldSavings, FSB (2010) 183 Cal.App.4 th 1031, 1044 and Laks v. CoastFederal Savings & Loan Ass’n (1976) 60 Cal.App.3d 885, 891. Also,Section 2923.5 does not require any lender to rewrite or modify aloan. See, Mabry v. Superior Court (2010) 185 Cal.App.4 th 208, 231.Plaintiffs were already granted final leave to amend to see if theycould allege facts as discussed in Garcia and Laks to state a cause ofaction for promissory estoppel. They were unable to do so. As suchand because the Plaintiff has provided no other justification, nofurther leave is warranted. Moving party to give notice.11. TRAVDOG, INC. vs.ONCORE CABLES, LLC2012-00602013Plaintiff’s Motions compelling further responses withoutobjections and monetary sanctions from Defendant with respect to:1. China Cables' Form Interrogatories, Set One, Nos. 12.1, 12.2,12.3, 12.4, 15.1, and 17.1 is GRANTED. Defendant and Cross-Complainant Oncore Cables, LLC's is ordered to provide fulland complete further responses, without objections, to ChinaCables' Form Interrogatories, Set One, Nos. 12.1, 12.2, 12.3,12.4, 15.1, and 17.1. Oncore is further ordered to paymonetary sanctions to China Cables in the sum of $1,382.50for the reasonable and necessary expenses and attorney feesincurred by China Cables in connection with this Motion.2. China Cables' Form Interrogatories, Set Two, Nos. 17.1 isGRANTED. Defendant and Cross-Complainant Oncore Cables,LLC's is ordered to provide full and complete furtherresponses, without objections, to China Cables' FormInterrogatories, Set Two, Nos. 17.1. Oncore is further orderedto pay monetary sanctions to China Cables in the sum of$1,195.00 for the reasonable and necessary expenses andattorney fees incurred by China Cables in connection with thisMotion.3. China Cables' Special Interrogatories, Set One, Nos. 1, 2, 3, 4,5, 6, and 7 is GRANTED. Defendant and Cross-ComplainantOncore Cables, LLC's is ordered to provide full and completefurther responses, without objections, to China Cables' SpecialInterrogatories, Set One, Nos. 1, 2, 3, 4, 5, 6, and 7. Oncoreis ordered to pay monetary sanctions to China Cables in thesum of $1,195.00 to compensate China Cables for thereasonable and necessary expenses and attorney fees incurredby China Cables in connection with this Motion.4. China Cables' Special Interrogatories, Set Two, Nos. 9 isGRANTED. Defendant and Cross-Complainant Oncore Cables,LLC's is ordered to provide a full and complete furtherresponse, without objections, to China Cables' SpecialInterrogatory, Set Two, No. 9. Oncore to pay monetarysanctions to China Cables in the sum of $1,382.50 for thereasonable and necessary expenses and attorney fees incurred

y China Cables in connection with this Motion.5. China Cables' Requests for Production, Set One, No. 3 isGRANTED. Defendant and Cross-Complainant Oncore Cables,LLC's is ordered to produce or permit the inspection of allproducts responsive to China Cables' Requests for Production,Set One, No. 3. Oncore to pay monetary sanctions to ChinaCables in the sum of $1,382.50 for the reasonable andnecessary expenses and attorney fees incurred by ChinaCables in connection with this Motion.6. China Cables' Requests for Production, Set Two, No. 7, 8, 9,and 10. is GRANTED. Defendant and Cross-ComplainantOncore Cables, LLC's are ordered to produce all documentsresponsive to China Cables' Requests for Production, Set Two,Nos. 7, 8, 9, and 10. Oncore to pay monetary sanctions toChina Cables in the sum of $1,195.00 for the reasonable andnecessary expenses and attorney fees incurred by ChinaCables in connection with this Motion.Responding party shall provide properly verified further responses(including copies of documents requested) without objection by6/27/13. Moving party to give notice.15. Michael A Midyette vs.AssociatedGastroenterology MedicalGroup2012-00536910Motions for summary judgment by defendants Kuettel andMidyette. Motion granted. This motion was originally set forhearing on 4/3/13. The court found that moving parties had mettheir initial burden of establishing compliance with the requisitestandard of care. In his opposition plaintiff offered the declarationof Dr. Candor. The conclusions stated by Dr. Candor were enoughto create a triable issue of fact, however the court sustaineddefendants’ objection to the declaration that no foundation had beenlaid for the medical records upon which plaintiff’s expertrelied. Rather than grant the motion based on this evidentiaryruling, the court in its discretion decided to continue the hearing togive plaintiff a chance to cure the defect in his expert’sdeclaration. The motion was continued to 4/19/13. At the hearingon 4/19/13 supplemental declarations were provided, but againobjections were sustained to Dr. Candor’s declaration because thefoundation for the medical records had still not been properlyestablished. Again, rather than allow the case to be decided on anevidentiary technicality (that in all probability could be cured) thecourt continued the matter to this date to give the plaintiff one morechance to lay a proper foundation for his expert’s opinion. The newdeclaration from Dr. Candor is still not adequate and the defendant’sobjection thereto is sustained.Defendant correctly notes his supplemental reply that thesupplemental declaration still lacks the proper foundation. Candordeclares that the medical records were obtained by Plaintiff, whichwas forwarded to his attorneys of record, who then forwarded thesame to Candor. There is no evidence showing that a true andcorrect copy of the medical records was forwarded from Plaintiff tohis attorneys and subsequently to the declarant. Thus, thedeclaration still lacks the proper foundation. For example, in orderto properly lay the foundation, Plaintiff should have submitted aseparate declaration stating that he obtained a true and correctcopy of his medical records from the listed third-parties andforwarded the same to his attorneys of record. In addition, theattorneys of record should have also submitted a declaration statingthat they forwarded a true and correct copy of the medical recordsto the declarant. This was not done.In addition, the documents attached to the supplemental

Declaration of David Candor, M.D. are missing some of the medicaldocuments attached to the Declaration of Larry Dunlap in support ofthe moving papers. The missing documents are as follows: (1) theconsent forms for the gastrointestinal endoscopy with Plaintiff’ssignature; (2) the discharge instructions dated 10/13/10; (3) theinitial discharge assessment checkbox form issued by AnaheimRegional Medical Center (Decl. of Dunlap, Exhibit 1 at pg. 31); (4)the consultation assessment issued by Anaheim Regional MedicalCenter (Decl. of Dunlap, Exhibit 1 at pgs. 32-37); (5) the postoperative/invasiveprocedure note and checklist issued by AnaheimRegional Medical Center (Decl. of Dunlap, Exhibit 1 at pgs. 42-43);(6) the operative report issued by Anaheim Regional Medical Center(Decl. of Dunlap, Exhibit 1 at pgs. 44-45).While the court has tried to give the plaintiff a chance to cure thisdefect, the rules of evidence are in place for a reason. Likewise, theprocedural requirements of a motion for summary judgment are setforth by statute. The plaintiff must provide competent evidence toestablish a triable issue of fact and plaintiff has failed to do so. Theplaintiff has been given three opportunities to do so and hasfailed. The role of this court is not to assist one represented sideover another. Rather, the court’s role is to rule on the issues andevidence submitted to it.Plaintiff’s evidentiary objections are overruled for failure to complywith CRC 3.134.Moving party to give notice.

Superior Court of the State of CaliforniaCounty of OrangeDEPT C23 TENTATIVE RULINGSJudge Robert J. MossThe court will hear oral argument on all matters at the time noticed for the hearing. If you wouldprefer to submit the matter on your papers without oral argument, please advise the clerk bycalling (657) 622-5223. If no appearance is made by either party, the tentative ruling will be thefinal ruling. Rulings are normally posted on the Internet by 4:00 p.m. on the day before thehearing.Date: June 07, 2013# Case Name Tentative2. US Legal ManagementServices, Inc vs. Lawoffices of Roger E.Naghash2009-00313736Defendant’s motion to enter order and judgment consistent with theorder of the appellate division of the superior court. The courtcontinues the motion by Defendants Law Offices of Roger E.Naghash and Roger E. Naghash for an order entering judgment inthis matter to 7/12/13 at 10:00 AM to permit the parties to submitfinal briefing and evidence on the following issues only:1. Have the parties entered into an enforceable agreement thatresolves the payment of attorney’s fees in connection withthis case, as Plaintiffs US Legal Management Services, Inc.and American Legal Investigation Services, Inc. contend,such that the fees issue is now moot?2. If the parties have not entered into an agreement resolvingthe payment of attorney’s fees in this case, is US LegalManagement Services entitled to its non-appellate attorney’sfees in this case? The parties should specifically address therelationship between First Legal Support Services and USLegal Management Services, the evidence presented inconnection with Plaintiffs’ withdrawn motion for attorney’sfees on appeal that the two companies may be separate legalentities, and the relevant implications of that relationship.3. If the parties have not entered into an agreement resolvingthe payment of attorney’s fees in this case, does the Law ofthe Case doctrine apply to the Appellate Division’s remittiturin this matter, filed on 09/26/12, or does this court have anydiscretion to find that neither Plaintiff is entitled to nonappealattorney’s fees based on evidence proffered for thefirst time following the remittitur?Defendants shall file and serve any briefing (not to exceed 10pages) and evidence on these issues at least 9 court days before thecontinued hearing date. Plaintiffs shall file and serve any briefing(not to exceed 10 page) and evidence on these issues at least 5court days before the continued hearing date.Plaintiffs are to serve notice of this order.3. Hoai Le vs. Alwin Lee2011-004380795. Hesham Shehab vs.Paragon Systems, Inc.2011-00480823Defendant Kim’s motion for leave to file cross-complaint. Noopposition. Motion granted. Defendant to file cross-complaint by6/13/13. Moving party to give notice.Defendant’s motion for terminating sanctions and monetarysanctions. Motion granted in part and denied in part. Whilethe court finds that terminating sanctions are not currentlyappropriate based on Plaintiff’s willful failure to comply with its

12/07/12 discovery order, the court strongly admonishes Plaintiff tocomply with his discovery obligations in this matter or riskterminating sanctions in the future.The court GRANTS Defendants’ request for monetary sanctionsagainst Plaintiff in the amount of $2,812.50. Moving party to givenotice.9. Rieden vs. Bank ofAmerica N.A.2012-00584947Defendant’s demurrer to plaintiff’s second amendedcomplaint. Demurrer sustained without leave to amend. As toplaintiffs’ first cause of action for breach of contract-promissoryestoppel, the Rieden plaintiffs still have not alleged sufficient factsas to the terms of the purported loan modification agreement thatwould support a claim for promissory estoppel. See, Garcia v. WorldSavings, FSB (2010) 183 Cal.App.4 th 1031, 1044 and Laks v. CoastFederal Savings & Loan Ass’n (1976) 60 Cal.App.3d 885, 891. Also,Section 2923.5 does not require any lender to rewrite or modify aloan. See, Mabry v. Superior Court (2010) 185 Cal.App.4 th 208, 231.Plaintiffs were already granted final leave to amend to see if theycould allege facts as discussed in Garcia and Laks to state a cause ofaction for promissory estoppel. They were unable to do so. As suchand because the Plaintiff has provided no other justification, nofurther leave is warranted. Moving party to give notice.11. TRAVDOG, INC. vs.ONCORE CABLES, LLC2012-00602013Plaintiff’s Motions compelling further responses withoutobjections and monetary sanctions from Defendant with respect to:1. China Cables' Form Interrogatories, Set One, Nos. 12.1, 12.2,12.3, 12.4, 15.1, and 17.1 is GRANTED. Defendant and Cross-Complainant Oncore Cables, LLC's is ordered to provide fulland complete further responses, without objections, to ChinaCables' Form Interrogatories, Set One, Nos. 12.1, 12.2, 12.3,12.4, 15.1, and 17.1. Oncore is further ordered to paymonetary sanctions to China Cables in the sum of $1,382.50for the reasonable and necessary expenses and attorney feesincurred by China Cables in connection with this Motion.2. China Cables' Form Interrogatories, Set Two, Nos. 17.1 isGRANTED. Defendant and Cross-Complainant Oncore Cables,LLC's is ordered to provide full and complete furtherresponses, without objections, to China Cables' FormInterrogatories, Set Two, Nos. 17.1. Oncore is further orderedto pay monetary sanctions to China Cables in the sum of$1,195.00 for the reasonable and necessary expenses andattorney fees incurred by China Cables in connection with thisMotion.3. China Cables' Special Interrogatories, Set One, Nos. 1, 2, 3, 4,5, 6, and 7 is GRANTED. Defendant and Cross-ComplainantOncore Cables, LLC's is ordered to provide full and completefurther responses, without objections, to China Cables' SpecialInterrogatories, Set One, Nos. 1, 2, 3, 4, 5, 6, and 7. Oncoreis ordered to pay monetary sanctions to China Cables in thesum of $1,195.00 to compensate China Cables for thereasonable and necessary expenses and attorney fees incurredby China Cables in connection with this Motion.4. China Cables' Special Interrogatories, Set Two, Nos. 9 isGRANTED. Defendant and Cross-Complainant Oncore Cables,LLC's is ordered to provide a full and complete furtherresponse, without objections, to China Cables' SpecialInterrogatory, Set Two, No. 9. Oncore to pay monetarysanctions to China Cables in the sum of $1,382.50 for thereasonable and necessary expenses and attorney fees incurred

y China Cables in connection with this Motion.5. China Cables' Requests for Production, Set One, No. 3 isGRANTED. Defendant and Cross-Complainant Oncore Cables,LLC's is ordered to produce or permit the inspection of allproducts responsive to China Cables' Requests for Production,Set One, No. 3. Oncore to pay monetary sanctions to ChinaCables in the sum of $1,382.50 for the reasonable andnecessary expenses and attorney fees incurred by ChinaCables in connection with this Motion.6. China Cables' Requests for Production, Set Two, No. 7, 8, 9,and 10. is GRANTED. Defendant and Cross-ComplainantOncore Cables, LLC's are ordered to produce all documentsresponsive to China Cables' Requests for Production, Set Two,Nos. 7, 8, 9, and 10. Oncore to pay monetary sanctions toChina Cables in the sum of $1,195.00 for the reasonable andnecessary expenses and attorney fees incurred by ChinaCables in connection with this Motion.Responding party shall provide properly verified further responses(including copies of documents requested) without objection by6/27/13. Moving party to give notice.15. Michael A Midyette vs.AssociatedGastroenterology MedicalGroup2012-00536910Motions for summary judgment by defendants Kuettel andMidyette. Motion granted. This motion was originally set forhearing on 4/3/13. The court found that moving parties had mettheir initial burden of establishing compliance with the requisitestandard of care. In his opposition plaintiff offered the declarationof Dr. Candor. The conclusions stated by Dr. Candor were enoughto create a triable issue of fact, however the court sustaineddefendants’ objection to the declaration that no foundation had beenlaid for the medical records upon which plaintiff’s expertrelied. Rather than grant the motion based on this evidentiaryruling, the court in its discretion decided to continue the hearing togive plaintiff a chance to cure the defect in his expert’sdeclaration. The motion was continued to 4/19/13. At the hearingon 4/19/13 supplemental declarations were provided, but againobjections were sustained to Dr. Candor’s declaration because thefoundation for the medical records had still not been properlyestablished. Again, rather than allow the case to be decided on anevidentiary technicality (that in all probability could be cured) thecourt continued the matter to this date to give the plaintiff one morechance to lay a proper foundation for his expert’s opinion. The newdeclaration from Dr. Candor is still not adequate and the defendant’sobjection thereto is sustained.Defendant correctly notes his supplemental reply that thesupplemental declaration still lacks the proper foundation. Candordeclares that the medical records were obtained by Plaintiff, whichwas forwarded to his attorneys of record, who then forwarded thesame to Candor. There is no evidence showing that a true andcorrect copy of the medical records was forwarded from Plaintiff tohis attorneys and subsequently to the declarant. Thus, thedeclaration still lacks the proper foundation. For example, in orderto properly lay the foundation, Plaintiff should have submitted aseparate declaration stating that he obtained a true and correctcopy of his medical records from the listed third-parties andforwarded the same to his attorneys of record. In addition, theattorneys of record should have also submitted a declaration statingthat they forwarded a true and correct copy of the medical recordsto the declarant. This was not done.In addition, the documents attached to the supplemental

Declaration of David Candor, M.D. are missing some of the medicaldocuments attached to the Declaration of Larry Dunlap in support ofthe moving papers. The missing documents are as follows: (1) theconsent forms for the gastrointestinal endoscopy with Plaintiff’ssignature; (2) the discharge instructions dated 10/13/10; (3) theinitial discharge assessment checkbox form issued by AnaheimRegional Medical Center (Decl. of Dunlap, Exhibit 1 at pg. 31); (4)the consultation assessment issued by Anaheim Regional MedicalCenter (Decl. of Dunlap, Exhibit 1 at pgs. 32-37); (5) the postoperative/invasiveprocedure note and checklist issued by AnaheimRegional Medical Center (Decl. of Dunlap, Exhibit 1 at pgs. 42-43);(6) the operative report issued by Anaheim Regional Medical Center(Decl. of Dunlap, Exhibit 1 at pgs. 44-45).While the court has tried to give the plaintiff a chance to cure thisdefect, the rules of evidence are in place for a reason. Likewise, theprocedural requirements of a motion for summary judgment are setforth by statute. The plaintiff must provide competent evidence toestablish a triable issue of fact and plaintiff has failed to do so. Theplaintiff has been given three opportunities to do so and hasfailed. The role of this court is not to assist one represented sideover another. Rather, the court’s role is to rule on the issues andevidence submitted to it.Plaintiff’s evidentiary objections are overruled for failure to complywith CRC 3.134.Moving party to give notice.

Superior Court of the State of CaliforniaCounty of OrangeDEPT C23 TENTATIVE RULINGSJudge Robert J. MossThe court will hear oral argument on all matters at the time noticed for the hearing. If you would preferto submit the matter on your papers without oral argument, please advise the clerk by calling (657) 622-5223. If no appearance is made by either party, the tentative ruling will be the final ruling. Rulings arenormally posted on the Internet by 4:00 p.m. on the day before the hearing.Date: June 21, 2013# Case Name Tentative1. That v ProfessionalCommunity ManagementDefendant’s motion for attorney fees and costs. Motiongranted. Attorney fees and costs are awarded to defendant and againstplaintiff in the sum of $305,953.99.07CL05523Procedurally, the opposition is defective for numerous reasons. The briefexceeds the page limit, CRC 3.113(d); does not contain a table ofcontents or authorities, CRC 3.113(f); and is single spaced, CRC3.113(g). Plaintiff was warned about these types of defects in priorpleadings.Substantively, the opposition is virtually incomprehensible. It consists ofquotations from case summaries and other authorities that lackrelevance and materiality. Plaintiff’s attempts at analysis are illogicaland unsound. Plaintiff was warned about this kind of briefing in priorpleadings.Defendant was clearly the prevailing party. Equally clear, defendant isentitled to an award of attorney fees under CC § 1354, CC § 1363.09(b),CC § 1717, and B&P § 17200.In his rambling opposition, plaintiff does not even attempt to contest thereasonableness or necessity of any of the fees claimed. Thus, they aredeemed as such for the purposes of this motion.Moving party to give notice.3. The Kansas City ArtInstitute v Dodge2011-00495420Defendant Kathleen Dodge’s motion for order determining claim ofexemption. Claim of exemption denied. The Defendant has failed toestablish that the $10,000 at issue is necessary for the supportdefendant herself. The Defendant has not presented evidence that shesupports her family in whole or in part or that the $10,000 is necessaryto support her family.The evidence submitted by the moving party consists of twodeclarations- one from her and one from her co-defendant husband LarryDodge. The moving party’s declaration consists of two statements. (1)She asserts that she will suffer undue hardship if the Order GrantingExemption and Vacating Turnover Order is not granted. (2) She assertsthat she is unemployed and the $10,000 is necessary for her to live andsupport her husband, their 2 1/2 yr. old triplets and 14 yr olddaughter. She attaches a copy of a joint financial statement ofDefendants. The other declaration relied upon by the moving party isthat of her co-defendant husband Larry Dodge (the case is stayed withrespect to Larry Dodge due to BK filing). His declaration contains nofacts but rather simply attaches his bankruptcy projections and summary

of schedules filed in his bankruptcy case. The declaration contains nofacts at all.The moving party provides no explanation of the three documentsattached to the declarations. The court understands that the Defendantswould rather keep as much information about their financial situation tothemselves in light of the judgment against them and the bankruptcy butthey can’t have it both ways. If the moving party wants the court to findthat an envelope with at least $10,000 cash is necessary for her and herfamilies living expenses, she must provide the evidence to support suchfinding. The moving party cannot expect the court to draw suchconclusions from the schedules, projections and financial statement. Themoving party simply has not provided evidence upon which the court canfind that the money at issue is necessary for her support or the supportof her family. Responding party to give notice.5. Amega Worldwide Inc vMLM ConsultantsInternationalPlaintiffs’ motion to enforce settlement agreement. Noopposition. Motion granted. Moving party to give notice.2011-005092216. Scotti v LogicalMaintenance SolutionsDefendant’s motion for summary judgment/adjudication. Noopposition. Motion granted. Moving party to give notice.2012-005722549. Kim v Moon2012-005873041. Defendants’ demurrer/motion to strike to plaintiff’s amendedcomplaint. Demurrer overruled. Motion to strikedenied. Defendants’ demurrer to the complaint is overruled inits entirety. The complaint sufficiently identifies the partiesclaiming injury as well as the persons who caused such injury. Asto the misrepresentation causes of action, plaintiffs entrustedtheir children to defendants, in reliance upon defendants’representations as to the type of care that they would provideand their high moral values. Plaintiffs allege that defendantsactually concealed a history of violence, extortion and their intentto mistreat the children instead. The motion to strike isdenied. Plaintiff has suffered no prejudice. Defendant shall haveuntil 6/28/12 to file an answer. Moving party to give notice.2. Discovery motions. The court orders that the pending discoverymotions and all future discovery motions be referred to adiscovery referee pursuant to CC § 639(a)(5). If the partiescannot agree on a referee each side shall submit the names ofthree candidates no later than 6/26/13 from which the court willselect. Because of the lack of civility demonstrated by thedeposition transcript submitted with the moving papers, thereferee shall attend all depositions. The referee shall spend nomore than 50 hours at a rate not to exceed $550.00/hr. If thereferee determines that more time is necessary, he or she mayseek leave of court for that purpose. The referee shall be paid50% by all plaintiffs and 50% by all defendants. The prevailingparty will be permitted to recover the cost of the referee at theconclusion of the case. Plaintiff to prepare a written orderpursuant to CCP § 639(d). If the referee deems it necessary tocontinue the existing trial date to make his/her orders, he/shemay make an appropriate recommendation to the court. Plaintiffto give notice.

10. Toffler v Kohani2012-00577136Demurrers by cross-defendants Ticor and Chicago Title to first amendedcross-complaint. Demurrers sustained without leave toamend. The Court (C22) sustained the demurrers to the original crosscomplaint but provided the cross complainant the opportunity to amendto correct the statute of limitations defect and to allege terms of thealleged third party beneficiary contract.Kohani/Williams attempt to correct the statute of limitation defect byadding to each cause of action that ".. ..no appreciable or actualdamages accruing until Cross-Complainants' motion for relief from theautomatic stay was granted and Plaintiff filed an action for cancellation ofdeed” does not cure the defect. This statement is not consistent withprior allegations of the original Cross-Complaint which, cannot beignored, and based on other allegations contained within the FACC.An action for failure to comply with the instructions is an action on awritten contract and the applicable statute of limitations is four years.Code Civ. Proc. §339.1. The "four year limitation of Code of CivilProcedure § 337, subdivision 1 for actions on a contract or obligationfounded upon a written instrument governed [the plaintiffs] causes ofaction rather than the shorter provisions for fraud, mistake, oralcontracts, or negligence. ..." Bruckman v. Parliament Escrow Corporation(1987) 190 Cal.App.3d 1051, 1056. , "[T]he plaintiff discovers the causeof action when he at least suspects a factual basis, as opposed to a legaltheory, for its elements, even if he lacks knowledge thereof—when,simply put, he at least 'suspects ... that someone has done somethingwrong' to him [citation], 'wrong' being used, not in any technical sense,but rather in accordance with its 'lay understanding. Norgart v. UpjohnCo. (1999) 21 Cal.4th 383, 397-398, 87 Cal.Rptr.2d 453.Kohani and Williams allege in the Amended Cross-Complaint that CTCfailed to comply with the escrow instructions by ".. .authorizing Cross-Defendant TICOR TITLE to return the funds to the lender rather than donothing and let the funds remain on account until an adjudication couldbe rendered, or turn the funds over to the bankruptcy trustee."(Amended Cross-Complaint at 26)Kohani and Williams allege in the Amended Cross-Complaint atparagraph 40 that Ticor ",. .failed and refused to tender... the loanproceeds, and returned the funds to the lender rather than do nothingand let the funds remain on account until an adjudication could berendered, or turn the funds over to the bankruptcy trustee" and, atparagraph 45, that Ticor "breached its duty by failing to exercise aproper standard of care in disbursing the loan proceeds,.." and ".. .failingto strictly comply with its duties and the escrow instructions or otherwiseviolating the escrow instructions in a negligent manner."Furthermore, cross-complainants allege that their Motion for Relief fromAutomatic Stay ".. .was denied based only because Cross-DefendantTICOR TITLE returned the loan proceeds to the lender." (AmendedCross-Complaint at 17).It is clear from the allegations in the Amended Cross Complaint thatKohani and Williams were aware of the alleged acts on the part of CTCand Ticor which give rise to the causes of action for breach of contract,negligence and breach of fiduciary duty when Kohani and Williams'motion seeking relief from the automatic stay was denied "...onlybecause Cross-Defendant TICOR TITLE, ...returned the funds to thelender...." (Amended Cross-Complaint at 17). The Motion of Kohani andWilliams for Relief from Stay was heard and denied on October 25, 2005.[ RJN No. 1]The complaint was filed August 17, 2012 nearly 7 years after the causesof action accrued. There is still nothing alleged in the Amended Crosscomplaint which tolls or postpones accrual of the causes of action against

Ticor and Chicago Title. Moving party to give notice.11. Cerda v Fragoso2013-0063332812. Reddy v Acacia PatentAcquisition2013-00633328Target defendants’ demurrer to plaintiff’s complaint. Demurrersustained without leave to amend. An employer is not strictly liablefor an employee’s conduct. In order to show that the employee’sconduct of drinking on the job was within the course and scope ofemployment, plaintiffs must allege that the conduct was incidental to,customarily connected with, or reasonably necessary for theperformance of his work duties. They have not done so. Thus, theplaintiffs have failed to allege that he was within the course and scope ofemployment when he consumed alcohol on the job. Also, the accidentoccurred long after the employee left the job and no exception to the“going and coming” rule has been pled. The court is willing to consider arequest for leave to amend, but infers that plaintiffs have pled all thefacts they can. Moving party to give notice.Defendants’ demurrer to plaintiff’s complaint. Demurrer sustained inpart and overruled in part with leave to amend. The demurrer issustained with respect to the 3 rd and 6 th causes of action and overruledwith respect to the remaining causes of action. The simple failure to paymoney does not constitute conversion. A cause of action for conversionof money can only be stated where defendant interferes with plaintiff’spossessory interest in a specific, identifiable fund.It would be against public policy for plaintiff to provide expert witnessservices for a fee. However, the complaint only alleges that the plaintiffprovided consulting services which would not be against public policy.Plaintiff adequately alleges alter ego under the “single –enterprise rule.”Plaintiff may have until July 1, 2013 to file a first amended complaint forthe sole purpose of amending causes of action 3 and 6.Defendants’ request for judicial notice is granted, however this does notestablish facts set forth in the declaration of Botsch as true.Moving party to give notice.15. Diaz v Tapout2011-00462171Motion for summary judgment/adjudication by defendants AuthenticBrands Group, LLC and ABG Tapout, LLC. Motion denied.The Defendant presents two declarations in support of its motion – onefrom Attorney Belzer and the other from an officer of Defendant, Mr.Kevin Clarke. Responding party’s objection to the declaration of Clarkeis sustained.Mr. Clarke did not work with ABG at the time of the transactions inquestion here. In fact, he only became affiliated with Defendant in orabout November of 2010 (See Exhibit "6" Lodged by Plaintiff: ClarkeDeposition at p. 5-6). Mr. Clarke therefore lacks the personal knowledgeof the facts surrounding the creation, negotiation and maintenance of therecords at issue in the Defendants motion in violation of CaliforniaEvidence Code sections 403 et seq. and Code of Civil Procedure section437c(d). The Clarke declaration is not based upon the declarant’spersonal knowledge. (CCP 437c(d).) Mr. Clark has not established thathe has personal knowledge of the negotiations, dealings or any othermatter which pre-dates his employment in November of 2010.He has not set forth facts which establish that the documents attachedqualify and can be authenticated as a business record of the Defendant.In People v. Shirley (not cited by the parties) Payne, as senior advisorytitle officer with Safeco Title Insurance, the successor to Security Title

Insurance Company, was testifying from records of Safeco Title, and hadno personal knowledge of the transaction. His testimony was that ofrelating what the hearsay entries by Security Title employees set forth inSecurity Title's records. Payne's testimony was insufficient to qualifySecurity Title's records as admissible under the business-recordsexception to the hearsay rule established by Evidence Code section1271. Payne's testimony did not meet the requirement of Evidence Codesection 1271, subdivision (c), which provides that the custodian or otherqualified witness must testify to the identity and mode of preparation ofthe business record. Such testimony is essential in order for the court tobe able to make a finding (that can be implied from a ruling onadmissibility), as required by the Evidence Code section 1271,subdivision (d), that the sources of information for the business-recordentries and the method and time of preparation of such entries weresuch as to indicate trustworthiness of the entries. People v. Shirley 78Cal.App.3d 424, 438, 144 Cal.Rptr. 282, 291 (Cal.App. 1978)The Defendant attempts to remedy this problem by including anotherdeclaration regarding the same exact facts with its reply brief. Theinclusion of additional evidence in reply to the Plaintiff’s Opposition isimproper. The Defendants argue that there is no new evidence becausethe facts were the same facts set forth in the Clarke declaration. This isnot a persuasive argument. The facts were set forth improperly in theClarke Declaration. The facts set forth in the Clarke declaration wereinadmissible since, the declarant had not established personalknowledge. As such, the facts were not at issue.The Defendant is left with Attorney Belzer’s declaration which attachesPlaintiff’s deposition and declaration testimony and discoveryresponses. As ABG has failed to present admissible evidence to supportits motion for summary judgment, the Court DENIES the summaryjudgment motion in its entirety based upon the moving party's failure toproduce admissible evidence sufficient to meet its burden of persuasion.(See C.C.P. §437c(p)(2).) Moving party to give notice.

Superior Court of the State of CaliforniaCounty of OrangeDEPT C23 TENTATIVE RULINGSJudge Robert J. MossThe court will hear oral argument on all matters at the time noticed for the hearing. If you would preferto submit the matter on your papers without oral argument, please advise the clerk by calling (657) 622-5223. If no appearance is made by either party, the tentative ruling will be the final ruling. Rulings arenormally posted on the Internet by 4:00 p.m. on the day before the hearing.Date: June 21, 2013# Case Name Tentative1. That v ProfessionalCommunity ManagementDefendant’s motion for attorney fees and costs. Motiongranted. Attorney fees and costs are awarded to defendant and againstplaintiff in the sum of $305,953.99.07CL05523Procedurally, the opposition is defective for numerous reasons. The briefexceeds the page limit, CRC 3.113(d); does not contain a table ofcontents or authorities, CRC 3.113(f); and is single spaced, CRC3.113(g). Plaintiff was warned about these types of defects in priorpleadings.Substantively, the opposition is virtually incomprehensible. It consists ofquotations from case summaries and other authorities that lackrelevance and materiality. Plaintiff’s attempts at analysis are illogicaland unsound. Plaintiff was warned about this kind of briefing in priorpleadings.Defendant was clearly the prevailing party. Equally clear, defendant isentitled to an award of attorney fees under CC § 1354, CC § 1363.09(b),CC § 1717, and B&P § 17200.In his rambling opposition, plaintiff does not even attempt to contest thereasonableness or necessity of any of the fees claimed. Thus, they aredeemed as such for the purposes of this motion.Moving party to give notice.3. The Kansas City ArtInstitute v Dodge2011-00495420Defendant Kathleen Dodge’s motion for order determining claim ofexemption. Claim of exemption denied. The Defendant has failed toestablish that the $10,000 at issue is necessary for the supportdefendant herself. The Defendant has not presented evidence that shesupports her family in whole or in part or that the $10,000 is necessaryto support her family.The evidence submitted by the moving party consists of twodeclarations- one from her and one from her co-defendant husband LarryDodge. The moving party’s declaration consists of two statements. (1)She asserts that she will suffer undue hardship if the Order GrantingExemption and Vacating Turnover Order is not granted. (2) She assertsthat she is unemployed and the $10,000 is necessary for her to live andsupport her husband, their 2 1/2 yr. old triplets and 14 yr olddaughter. She attaches a copy of a joint financial statement ofDefendants. The other declaration relied upon by the moving party isthat of her co-defendant husband Larry Dodge (the case is stayed withrespect to Larry Dodge due to BK filing). His declaration contains nofacts but rather simply attaches his bankruptcy projections and summary

of schedules filed in his bankruptcy case. The declaration contains nofacts at all.The moving party provides no explanation of the three documentsattached to the declarations. The court understands that the Defendantswould rather keep as much information about their financial situation tothemselves in light of the judgment against them and the bankruptcy butthey can’t have it both ways. If the moving party wants the court to findthat an envelope with at least $10,000 cash is necessary for her and herfamilies living expenses, she must provide the evidence to support suchfinding. The moving party cannot expect the court to draw suchconclusions from the schedules, projections and financial statement. Themoving party simply has not provided evidence upon which the court canfind that the money at issue is necessary for her support or the supportof her family. Responding party to give notice.5. Amega Worldwide Inc vMLM ConsultantsInternationalPlaintiffs’ motion to enforce settlement agreement. Noopposition. Motion granted. Moving party to give notice.2011-005092216. Scotti v LogicalMaintenance SolutionsDefendant’s motion for summary judgment/adjudication. Noopposition. Motion granted. Moving party to give notice.2012-005722549. Kim v Moon2012-005873041. Defendants’ demurrer/motion to strike to plaintiff’s amendedcomplaint. Demurrer overruled. Motion to strikedenied. Defendants’ demurrer to the complaint is overruled inits entirety. The complaint sufficiently identifies the partiesclaiming injury as well as the persons who caused such injury. Asto the misrepresentation causes of action, plaintiffs entrustedtheir children to defendants, in reliance upon defendants’representations as to the type of care that they would provideand their high moral values. Plaintiffs allege that defendantsactually concealed a history of violence, extortion and their intentto mistreat the children instead. The motion to strike isdenied. Plaintiff has suffered no prejudice. Defendant shall haveuntil 6/28/12 to file an answer. Moving party to give notice.2. Discovery motions. The court orders that the pending discoverymotions and all future discovery motions be referred to adiscovery referee pursuant to CC § 639(a)(5). If the partiescannot agree on a referee each side shall submit the names ofthree candidates no later than 6/26/13 from which the court willselect. Because of the lack of civility demonstrated by thedeposition transcript submitted with the moving papers, thereferee shall attend all depositions. The referee shall spend nomore than 50 hours at a rate not to exceed $550.00/hr. If thereferee determines that more time is necessary, he or she mayseek leave of court for that purpose. The referee shall be paid50% by all plaintiffs and 50% by all defendants. The prevailingparty will be permitted to recover the cost of the referee at theconclusion of the case. Plaintiff to prepare a written orderpursuant to CCP § 639(d). If the referee deems it necessary tocontinue the existing trial date to make his/her orders, he/shemay make an appropriate recommendation to the court. Plaintiffto give notice.

10. Toffler v Kohani2012-00577136Demurrers by cross-defendants Ticor and Chicago Title to first amendedcross-complaint. Demurrers sustained without leave toamend. The Court (C22) sustained the demurrers to the original crosscomplaint but provided the cross complainant the opportunity to amendto correct the statute of limitations defect and to allege terms of thealleged third party beneficiary contract.Kohani/Williams attempt to correct the statute of limitation defect byadding to each cause of action that ".. ..no appreciable or actualdamages accruing until Cross-Complainants' motion for relief from theautomatic stay was granted and Plaintiff filed an action for cancellation ofdeed” does not cure the defect. This statement is not consistent withprior allegations of the original Cross-Complaint which, cannot beignored, and based on other allegations contained within the FACC.An action for failure to comply with the instructions is an action on awritten contract and the applicable statute of limitations is four years.Code Civ. Proc. §339.1. The "four year limitation of Code of CivilProcedure § 337, subdivision 1 for actions on a contract or obligationfounded upon a written instrument governed [the plaintiffs] causes ofaction rather than the shorter provisions for fraud, mistake, oralcontracts, or negligence. ..." Bruckman v. Parliament Escrow Corporation(1987) 190 Cal.App.3d 1051, 1056. , "[T]he plaintiff discovers the causeof action when he at least suspects a factual basis, as opposed to a legaltheory, for its elements, even if he lacks knowledge thereof—when,simply put, he at least 'suspects ... that someone has done somethingwrong' to him [citation], 'wrong' being used, not in any technical sense,but rather in accordance with its 'lay understanding. Norgart v. UpjohnCo. (1999) 21 Cal.4th 383, 397-398, 87 Cal.Rptr.2d 453.Kohani and Williams allege in the Amended Cross-Complaint that CTCfailed to comply with the escrow instructions by ".. .authorizing Cross-Defendant TICOR TITLE to return the funds to the lender rather than donothing and let the funds remain on account until an adjudication couldbe rendered, or turn the funds over to the bankruptcy trustee."(Amended Cross-Complaint at 26)Kohani and Williams allege in the Amended Cross-Complaint atparagraph 40 that Ticor ",. .failed and refused to tender... the loanproceeds, and returned the funds to the lender rather than do nothingand let the funds remain on account until an adjudication could berendered, or turn the funds over to the bankruptcy trustee" and, atparagraph 45, that Ticor "breached its duty by failing to exercise aproper standard of care in disbursing the loan proceeds,.." and ".. .failingto strictly comply with its duties and the escrow instructions or otherwiseviolating the escrow instructions in a negligent manner."Furthermore, cross-complainants allege that their Motion for Relief fromAutomatic Stay ".. .was denied based only because Cross-DefendantTICOR TITLE returned the loan proceeds to the lender." (AmendedCross-Complaint at 17).It is clear from the allegations in the Amended Cross Complaint thatKohani and Williams were aware of the alleged acts on the part of CTCand Ticor which give rise to the causes of action for breach of contract,negligence and breach of fiduciary duty when Kohani and Williams'motion seeking relief from the automatic stay was denied "...onlybecause Cross-Defendant TICOR TITLE, ...returned the funds to thelender...." (Amended Cross-Complaint at 17). The Motion of Kohani andWilliams for Relief from Stay was heard and denied on October 25, 2005.[ RJN No. 1]The complaint was filed August 17, 2012 nearly 7 years after the causesof action accrued. There is still nothing alleged in the Amended Crosscomplaint which tolls or postpones accrual of the causes of action against

Ticor and Chicago Title. Moving party to give notice.11. Cerda v Fragoso2013-0063332812. Reddy v Acacia PatentAcquisition2013-00633328Target defendants’ demurrer to plaintiff’s complaint. Demurrersustained without leave to amend. An employer is not strictly liablefor an employee’s conduct. In order to show that the employee’sconduct of drinking on the job was within the course and scope ofemployment, plaintiffs must allege that the conduct was incidental to,customarily connected with, or reasonably necessary for theperformance of his work duties. They have not done so. Thus, theplaintiffs have failed to allege that he was within the course and scope ofemployment when he consumed alcohol on the job. Also, the accidentoccurred long after the employee left the job and no exception to the“going and coming” rule has been pled. The court is willing to consider arequest for leave to amend, but infers that plaintiffs have pled all thefacts they can. Moving party to give notice.Defendants’ demurrer to plaintiff’s complaint. Demurrer sustained inpart and overruled in part with leave to amend. The demurrer issustained with respect to the 3 rd and 6 th causes of action and overruledwith respect to the remaining causes of action. The simple failure to paymoney does not constitute conversion. A cause of action for conversionof money can only be stated where defendant interferes with plaintiff’spossessory interest in a specific, identifiable fund.It would be against public policy for plaintiff to provide expert witnessservices for a fee. However, the complaint only alleges that the plaintiffprovided consulting services which would not be against public policy.Plaintiff adequately alleges alter ego under the “single –enterprise rule.”Plaintiff may have until July 1, 2013 to file a first amended complaint forthe sole purpose of amending causes of action 3 and 6.Defendants’ request for judicial notice is granted, however this does notestablish facts set forth in the declaration of Botsch as true.Moving party to give notice.15. Diaz v Tapout2011-00462171Motion for summary judgment/adjudication by defendants AuthenticBrands Group, LLC and ABG Tapout, LLC. Motion denied.The Defendant presents two declarations in support of its motion – onefrom Attorney Belzer and the other from an officer of Defendant, Mr.Kevin Clarke. Responding party’s objection to the declaration of Clarkeis sustained.Mr. Clarke did not work with ABG at the time of the transactions inquestion here. In fact, he only became affiliated with Defendant in orabout November of 2010 (See Exhibit "6" Lodged by Plaintiff: ClarkeDeposition at p. 5-6). Mr. Clarke therefore lacks the personal knowledgeof the facts surrounding the creation, negotiation and maintenance of therecords at issue in the Defendants motion in violation of CaliforniaEvidence Code sections 403 et seq. and Code of Civil Procedure section437c(d). The Clarke declaration is not based upon the declarant’spersonal knowledge. (CCP 437c(d).) Mr. Clark has not established thathe has personal knowledge of the negotiations, dealings or any othermatter which pre-dates his employment in November of 2010.He has not set forth facts which establish that the documents attachedqualify and can be authenticated as a business record of the Defendant.In People v. Shirley (not cited by the parties) Payne, as senior advisorytitle officer with Safeco Title Insurance, the successor to Security Title

Insurance Company, was testifying from records of Safeco Title, and hadno personal knowledge of the transaction. His testimony was that ofrelating what the hearsay entries by Security Title employees set forth inSecurity Title's records. Payne's testimony was insufficient to qualifySecurity Title's records as admissible under the business-recordsexception to the hearsay rule established by Evidence Code section1271. Payne's testimony did not meet the requirement of Evidence Codesection 1271, subdivision (c), which provides that the custodian or otherqualified witness must testify to the identity and mode of preparation ofthe business record. Such testimony is essential in order for the court tobe able to make a finding (that can be implied from a ruling onadmissibility), as required by the Evidence Code section 1271,subdivision (d), that the sources of information for the business-recordentries and the method and time of preparation of such entries weresuch as to indicate trustworthiness of the entries. People v. Shirley 78Cal.App.3d 424, 438, 144 Cal.Rptr. 282, 291 (Cal.App. 1978)The Defendant attempts to remedy this problem by including anotherdeclaration regarding the same exact facts with its reply brief. Theinclusion of additional evidence in reply to the Plaintiff’s Opposition isimproper. The Defendants argue that there is no new evidence becausethe facts were the same facts set forth in the Clarke declaration. This isnot a persuasive argument. The facts were set forth improperly in theClarke Declaration. The facts set forth in the Clarke declaration wereinadmissible since, the declarant had not established personalknowledge. As such, the facts were not at issue.The Defendant is left with Attorney Belzer’s declaration which attachesPlaintiff’s deposition and declaration testimony and discoveryresponses. As ABG has failed to present admissible evidence to supportits motion for summary judgment, the Court DENIES the summaryjudgment motion in its entirety based upon the moving party's failure toproduce admissible evidence sufficient to meet its burden of persuasion.(See C.C.P. §437c(p)(2).) Moving party to give notice.

Superior Court of the State of CaliforniaCounty of OrangeDEPT C23 TENTATIVE RULINGSJudge Robert J. MossThe court will hear oral argument on all matters at the time noticed for the hearing. If you would preferto submit the matter on your papers without oral argument, please advise the clerk by calling (657) 622-5223. If no appearance is made by either party, the tentative ruling will be the final ruling. Rulings arenormally posted on the Internet by 4:00 p.m. on the day before the hearing.Date: June 21, 2013# Case Name Tentative1. That v ProfessionalCommunity ManagementDefendant’s motion for attorney fees and costs. Motiongranted. Attorney fees and costs are awarded to defendant and againstplaintiff in the sum of $305,953.99.07CL05523Procedurally, the opposition is defective for numerous reasons. The briefexceeds the page limit, CRC 3.113(d); does not contain a table ofcontents or authorities, CRC 3.113(f); and is single spaced, CRC3.113(g). Plaintiff was warned about these types of defects in priorpleadings.Substantively, the opposition is virtually incomprehensible. It consists ofquotations from case summaries and other authorities that lackrelevance and materiality. Plaintiff’s attempts at analysis are illogicaland unsound. Plaintiff was warned about this kind of briefing in priorpleadings.Defendant was clearly the prevailing party. Equally clear, defendant isentitled to an award of attorney fees under CC § 1354, CC § 1363.09(b),CC § 1717, and B&P § 17200.In his rambling opposition, plaintiff does not even attempt to contest thereasonableness or necessity of any of the fees claimed. Thus, they aredeemed as such for the purposes of this motion.Moving party to give notice.3. The Kansas City ArtInstitute v Dodge2011-00495420Defendant Kathleen Dodge’s motion for order determining claim ofexemption. Claim of exemption denied. The Defendant has failed toestablish that the $10,000 at issue is necessary for the supportdefendant herself. The Defendant has not presented evidence that shesupports her family in whole or in part or that the $10,000 is necessaryto support her family.The evidence submitted by the moving party consists of twodeclarations- one from her and one from her co-defendant husband LarryDodge. The moving party’s declaration consists of two statements. (1)She asserts that she will suffer undue hardship if the Order GrantingExemption and Vacating Turnover Order is not granted. (2) She assertsthat she is unemployed and the $10,000 is necessary for her to live andsupport her husband, their 2 1/2 yr. old triplets and 14 yr olddaughter. She attaches a copy of a joint financial statement ofDefendants. The other declaration relied upon by the moving party isthat of her co-defendant husband Larry Dodge (the case is stayed withrespect to Larry Dodge due to BK filing). His declaration contains nofacts but rather simply attaches his bankruptcy projections and summary

of schedules filed in his bankruptcy case. The declaration contains nofacts at all.The moving party provides no explanation of the three documentsattached to the declarations. The court understands that the Defendantswould rather keep as much information about their financial situation tothemselves in light of the judgment against them and the bankruptcy butthey can’t have it both ways. If the moving party wants the court to findthat an envelope with at least $10,000 cash is necessary for her and herfamilies living expenses, she must provide the evidence to support suchfinding. The moving party cannot expect the court to draw suchconclusions from the schedules, projections and financial statement. Themoving party simply has not provided evidence upon which the court canfind that the money at issue is necessary for her support or the supportof her family. Responding party to give notice.5. Amega Worldwide Inc vMLM ConsultantsInternationalPlaintiffs’ motion to enforce settlement agreement. Noopposition. Motion granted. Moving party to give notice.2011-005092216. Scotti v LogicalMaintenance SolutionsDefendant’s motion for summary judgment/adjudication. Noopposition. Motion granted. Moving party to give notice.2012-005722549. Kim v Moon2012-005873041. Defendants’ demurrer/motion to strike to plaintiff’s amendedcomplaint. Demurrer overruled. Motion to strikedenied. Defendants’ demurrer to the complaint is overruled inits entirety. The complaint sufficiently identifies the partiesclaiming injury as well as the persons who caused such injury. Asto the misrepresentation causes of action, plaintiffs entrustedtheir children to defendants, in reliance upon defendants’representations as to the type of care that they would provideand their high moral values. Plaintiffs allege that defendantsactually concealed a history of violence, extortion and their intentto mistreat the children instead. The motion to strike isdenied. Plaintiff has suffered no prejudice. Defendant shall haveuntil 6/28/12 to file an answer. Moving party to give notice.2. Discovery motions. The court orders that the pending discoverymotions and all future discovery motions be referred to adiscovery referee pursuant to CC § 639(a)(5). If the partiescannot agree on a referee each side shall submit the names ofthree candidates no later than 6/26/13 from which the court willselect. Because of the lack of civility demonstrated by thedeposition transcript submitted with the moving papers, thereferee shall attend all depositions. The referee shall spend nomore than 50 hours at a rate not to exceed $550.00/hr. If thereferee determines that more time is necessary, he or she mayseek leave of court for that purpose. The referee shall be paid50% by all plaintiffs and 50% by all defendants. The prevailingparty will be permitted to recover the cost of the referee at theconclusion of the case. Plaintiff to prepare a written orderpursuant to CCP § 639(d). If the referee deems it necessary tocontinue the existing trial date to make his/her orders, he/shemay make an appropriate recommendation to the court. Plaintiffto give notice.

10. Toffler v Kohani2012-00577136Demurrers by cross-defendants Ticor and Chicago Title to first amendedcross-complaint. Demurrers sustained without leave toamend. The Court (C22) sustained the demurrers to the original crosscomplaint but provided the cross complainant the opportunity to amendto correct the statute of limitations defect and to allege terms of thealleged third party beneficiary contract.Kohani/Williams attempt to correct the statute of limitation defect byadding to each cause of action that ".. ..no appreciable or actualdamages accruing until Cross-Complainants' motion for relief from theautomatic stay was granted and Plaintiff filed an action for cancellation ofdeed” does not cure the defect. This statement is not consistent withprior allegations of the original Cross-Complaint which, cannot beignored, and based on other allegations contained within the FACC.An action for failure to comply with the instructions is an action on awritten contract and the applicable statute of limitations is four years.Code Civ. Proc. §339.1. The "four year limitation of Code of CivilProcedure § 337, subdivision 1 for actions on a contract or obligationfounded upon a written instrument governed [the plaintiffs] causes ofaction rather than the shorter provisions for fraud, mistake, oralcontracts, or negligence. ..." Bruckman v. Parliament Escrow Corporation(1987) 190 Cal.App.3d 1051, 1056. , "[T]he plaintiff discovers the causeof action when he at least suspects a factual basis, as opposed to a legaltheory, for its elements, even if he lacks knowledge thereof—when,simply put, he at least 'suspects ... that someone has done somethingwrong' to him [citation], 'wrong' being used, not in any technical sense,but rather in accordance with its 'lay understanding. Norgart v. UpjohnCo. (1999) 21 Cal.4th 383, 397-398, 87 Cal.Rptr.2d 453.Kohani and Williams allege in the Amended Cross-Complaint that CTCfailed to comply with the escrow instructions by ".. .authorizing Cross-Defendant TICOR TITLE to return the funds to the lender rather than donothing and let the funds remain on account until an adjudication couldbe rendered, or turn the funds over to the bankruptcy trustee."(Amended Cross-Complaint at 26)Kohani and Williams allege in the Amended Cross-Complaint atparagraph 40 that Ticor ",. .failed and refused to tender... the loanproceeds, and returned the funds to the lender rather than do nothingand let the funds remain on account until an adjudication could berendered, or turn the funds over to the bankruptcy trustee" and, atparagraph 45, that Ticor "breached its duty by failing to exercise aproper standard of care in disbursing the loan proceeds,.." and ".. .failingto strictly comply with its duties and the escrow instructions or otherwiseviolating the escrow instructions in a negligent manner."Furthermore, cross-complainants allege that their Motion for Relief fromAutomatic Stay ".. .was denied based only because Cross-DefendantTICOR TITLE returned the loan proceeds to the lender." (AmendedCross-Complaint at 17).It is clear from the allegations in the Amended Cross Complaint thatKohani and Williams were aware of the alleged acts on the part of CTCand Ticor which give rise to the causes of action for breach of contract,negligence and breach of fiduciary duty when Kohani and Williams'motion seeking relief from the automatic stay was denied "...onlybecause Cross-Defendant TICOR TITLE, ...returned the funds to thelender...." (Amended Cross-Complaint at 17). The Motion of Kohani andWilliams for Relief from Stay was heard and denied on October 25, 2005.[ RJN No. 1]The complaint was filed August 17, 2012 nearly 7 years after the causesof action accrued. There is still nothing alleged in the Amended Crosscomplaint which tolls or postpones accrual of the causes of action against

Ticor and Chicago Title. Moving party to give notice.11. Cerda v Fragoso2013-0063332812. Reddy v Acacia PatentAcquisition2013-00633328Target defendants’ demurrer to plaintiff’s complaint. Demurrersustained without leave to amend. An employer is not strictly liablefor an employee’s conduct. In order to show that the employee’sconduct of drinking on the job was within the course and scope ofemployment, plaintiffs must allege that the conduct was incidental to,customarily connected with, or reasonably necessary for theperformance of his work duties. They have not done so. Thus, theplaintiffs have failed to allege that he was within the course and scope ofemployment when he consumed alcohol on the job. Also, the accidentoccurred long after the employee left the job and no exception to the“going and coming” rule has been pled. The court is willing to consider arequest for leave to amend, but infers that plaintiffs have pled all thefacts they can. Moving party to give notice.Defendants’ demurrer to plaintiff’s complaint. Demurrer sustained inpart and overruled in part with leave to amend. The demurrer issustained with respect to the 3 rd and 6 th causes of action and overruledwith respect to the remaining causes of action. The simple failure to paymoney does not constitute conversion. A cause of action for conversionof money can only be stated where defendant interferes with plaintiff’spossessory interest in a specific, identifiable fund.It would be against public policy for plaintiff to provide expert witnessservices for a fee. However, the complaint only alleges that the plaintiffprovided consulting services which would not be against public policy.Plaintiff adequately alleges alter ego under the “single –enterprise rule.”Plaintiff may have until July 1, 2013 to file a first amended complaint forthe sole purpose of amending causes of action 3 and 6.Defendants’ request for judicial notice is granted, however this does notestablish facts set forth in the declaration of Botsch as true.Moving party to give notice.15. Diaz v Tapout2011-00462171Motion for summary judgment/adjudication by defendants AuthenticBrands Group, LLC and ABG Tapout, LLC. Motion denied.The Defendant presents two declarations in support of its motion – onefrom Attorney Belzer and the other from an officer of Defendant, Mr.Kevin Clarke. Responding party’s objection to the declaration of Clarkeis sustained.Mr. Clarke did not work with ABG at the time of the transactions inquestion here. In fact, he only became affiliated with Defendant in orabout November of 2010 (See Exhibit "6" Lodged by Plaintiff: ClarkeDeposition at p. 5-6). Mr. Clarke therefore lacks the personal knowledgeof the facts surrounding the creation, negotiation and maintenance of therecords at issue in the Defendants motion in violation of CaliforniaEvidence Code sections 403 et seq. and Code of Civil Procedure section437c(d). The Clarke declaration is not based upon the declarant’spersonal knowledge. (CCP 437c(d).) Mr. Clark has not established thathe has personal knowledge of the negotiations, dealings or any othermatter which pre-dates his employment in November of 2010.He has not set forth facts which establish that the documents attachedqualify and can be authenticated as a business record of the Defendant.In People v. Shirley (not cited by the parties) Payne, as senior advisorytitle officer with Safeco Title Insurance, the successor to Security Title

Insurance Company, was testifying from records of Safeco Title, and hadno personal knowledge of the transaction. His testimony was that ofrelating what the hearsay entries by Security Title employees set forth inSecurity Title's records. Payne's testimony was insufficient to qualifySecurity Title's records as admissible under the business-recordsexception to the hearsay rule established by Evidence Code section1271. Payne's testimony did not meet the requirement of Evidence Codesection 1271, subdivision (c), which provides that the custodian or otherqualified witness must testify to the identity and mode of preparation ofthe business record. Such testimony is essential in order for the court tobe able to make a finding (that can be implied from a ruling onadmissibility), as required by the Evidence Code section 1271,subdivision (d), that the sources of information for the business-recordentries and the method and time of preparation of such entries weresuch as to indicate trustworthiness of the entries. People v. Shirley 78Cal.App.3d 424, 438, 144 Cal.Rptr. 282, 291 (Cal.App. 1978)The Defendant attempts to remedy this problem by including anotherdeclaration regarding the same exact facts with its reply brief. Theinclusion of additional evidence in reply to the Plaintiff’s Opposition isimproper. The Defendants argue that there is no new evidence becausethe facts were the same facts set forth in the Clarke declaration. This isnot a persuasive argument. The facts were set forth improperly in theClarke Declaration. The facts set forth in the Clarke declaration wereinadmissible since, the declarant had not established personalknowledge. As such, the facts were not at issue.The Defendant is left with Attorney Belzer’s declaration which attachesPlaintiff’s deposition and declaration testimony and discoveryresponses. As ABG has failed to present admissible evidence to supportits motion for summary judgment, the Court DENIES the summaryjudgment motion in its entirety based upon the moving party's failure toproduce admissible evidence sufficient to meet its burden of persuasion.(See C.C.P. §437c(p)(2).) Moving party to give notice.

Superior Court of the State of CaliforniaCounty of OrangeDEPT C23 TENTATIVE RULINGSJudge Robert J. MossThe court will hear oral argument on all matters at the time noticed for the hearing. If you wouldprefer to submit the matter on your papers without oral argument, please advise the clerk bycalling (657) 622-5223. If no appearance is made by either party, the tentative ruling will be thefinal ruling. Rulings are normally posted on the Internet by 4:00 p.m. on the day before thehearing.Date: June 21, 2013# Case Name Tentative1. That v ProfessionalCommunity ManagementDefendant’s motion for attorney fees and costs. Motiongranted. Attorney fees and costs are awarded to defendant andagainst plaintiff in the sum of $305,953.99.07CL05523Procedurally, the opposition is defective for numerous reasons. Thebrief exceeds the page limit, CRC 3.113(d); does not contain a tableof contents or authorities, CRC 3.113(f); and is single spaced, CRC3.113(g). Plaintiff was warned about these types of defects in priorpleadings.Substantively, the opposition is virtually incomprehensible. Itconsists of quotations from case summaries and other authoritiesthat lack relevance and materiality. Plaintiff’s attempts at analysisare illogical and unsound. Plaintiff was warned about this kind ofbriefing in prior pleadings.Defendant was clearly the prevailing party. Equally clear, defendantis entitled to an award of attorney fees under CC § 1354, CC §1363.09(b), CC § 1717, and B&P § 17200.In his rambling opposition, plaintiff does not even attempt tocontest the reasonableness or necessity of any of the feesclaimed. Thus, they are deemed as such for the purposes of thismotion.Moving party to give notice.3. The Kansas City ArtInstitute v Dodge2011-00495420Defendant Kathleen Dodge’s motion for order determining claim ofexemption. Claim of exemption denied. The Defendant hasfailed to establish that the $10,000 at issue is necessary for thesupport defendant herself. The Defendant has not presentedevidence that she supports her family in whole or in part or that the$10,000 is necessary to support her family.The evidence submitted by the moving party consists of twodeclarations- one from her and one from her co-defendant husbandLarry Dodge. The moving party’s declaration consists of twostatements. (1) She asserts that she will suffer undue hardship ifthe Order Granting Exemption and Vacating Turnover Order is notgranted. (2) She asserts that she is unemployed and the $10,000 isnecessary for her to live and support her husband, their 2 1/2 yr.old triplets and 14 yr old daughter. She attaches a copy of a jointfinancial statement of Defendants. The other declaration reliedupon by the moving party is that of her co-defendant husband LarryDodge (the case is stayed with respect to Larry Dodge due to BK

filing). His declaration contains no facts but rather simply attacheshis bankruptcy projections and summary of schedules filed in hisbankruptcy case. The declaration contains no facts at all.The moving party provides no explanation of the threedocuments attached to the declarations. The court understands thatthe Defendants would rather keep as much information about theirfinancial situation to themselves in light of the judgment againstthem and the bankruptcy but they can’t have it both ways. If themoving party wants the court to find that an envelope with at least$10,000 cash is necessary for her and her families living expenses,she must provide the evidence to support such finding. The movingparty cannot expect the court to draw such conclusions from theschedules, projections and financial statement. The moving partysimply has not provided evidence upon which the court can find thatthe money at issue is necessary for her support or the support ofher family. Responding party to give notice.5. Amega Worldwide Inc vMLM ConsultantsInternationalPlaintiffs’ motion to enforce settlement agreement. Noopposition. Motion granted. Moving party to give notice.2011-005092216. Scotti v LogicalMaintenance SolutionsDefendant’s motion for summary judgment/adjudication. Noopposition. Motion granted. Moving party to give notice.2012-005722549. Kim v Moon2012-005873041. Defendants’ demurrer/motion to strike to plaintiff’s amendedcomplaint. Demurrer overruled. Motion to strikedenied. Defendants’ demurrer to the complaint is overruledin its entirety. The complaint sufficiently identifies the partiesclaiming injury as well as the persons who caused suchinjury. As to the misrepresentation causes of action, plaintiffsentrusted their children to defendants, in reliance upondefendants’ representations as to the type of care that theywould provide and their high moral values. Plaintiffs allegethat defendants actually concealed a history of violence,extortion and their intent to mistreat the children instead.The motion to strike is denied. Plaintiff has suffered noprejudice. Defendant shall have until 6/28/12 to file ananswer. Moving party to give notice.2. Discovery motions. The court orders that the pendingdiscovery motions and all future discovery motions bereferred to a discovery referee pursuant to CC §639(a)(5). If the parties cannot agree on a referee each sideshall submit the names of three candidates no later than6/26/13 from which the court will select. Because of the lackof civility demonstrated by the deposition transcriptsubmitted with the moving papers, the referee shall attendall depositions. The referee shall spend no more than 50hours at a rate not to exceed $550.00/hr. If the refereedetermines that more time is necessary, he or she may seekleave of court for that purpose. The referee shall be paid50% by all plaintiffs and 50% by all defendants. Theprevailing party will be permitted to recover the cost of thereferee at the conclusion of the case. Plaintiff to prepare awritten order pursuant to CCP § 639(d). If the refereedeems it necessary to continue the existing trial date tomake his/her orders, he/she may make an appropriate

ecommendation to the court. Plaintiff to give notice.10. Toffler v Kohani2012-00577136Demurrers by cross-defendants Ticor and Chicago Title to firstamended cross-complaint. Demurrers sustained without leaveto amend. The Court (C22) sustained the demurrers to the originalcross complaint but provided the cross complainant the opportunityto amend to correct the statute of limitations defect and to allegeterms of the alleged third party beneficiary contract.Kohani/Williams attempt to correct the statute of limitation defectby adding to each cause of action that ".. ..no appreciable or actualdamages accruing until Cross-Complainants' motion for relief fromthe automatic stay was granted and Plaintiff filed an action forcancellation of deed” does not cure the defect. This statement isnot consistent with prior allegations of the original Cross-Complaintwhich, cannot be ignored, and based on other allegations containedwithin the FACC.An action for failure to comply with the instructions is an action on awritten contract and the applicable statute of limitations is fouryears. Code Civ. Proc. §339.1. The "four year limitation of Code ofCivil Procedure § 337, subdivision 1 for actions on a contract orobligation founded upon a written instrument governed [theplaintiffs] causes of action rather than the shorter provisions forfraud, mistake, oral contracts, or negligence. ..." Bruckman v.Parliament Escrow Corporation (1987) 190 Cal.App.3d 1051, 1056. ,"[T]he plaintiff discovers the cause of action when he at leastsuspects a factual basis, as opposed to a legal theory, for itselements, even if he lacks knowledge thereof—when, simply put, heat least 'suspects ... that someone has done something wrong' tohim [citation], 'wrong' being used, not in any technical sense, butrather in accordance with its 'lay understanding. Norgart v. UpjohnCo. (1999) 21 Cal.4th 383, 397-398, 87 Cal.Rptr.2d 453.Kohani and Williams allege in the Amended Cross-Complaint thatCTC failed to comply with the escrow instructions by ".. .authorizingCross-Defendant TICOR TITLE to return the funds to the lenderrather than do nothing and let the funds remain on account until anadjudication could be rendered, or turn the funds over to thebankruptcy trustee." (Amended Cross-Complaint at 26)Kohani and Williams allege in the Amended Cross-Complaint atparagraph 40 that Ticor ",. .failed and refused to tender... the loanproceeds, and returned the funds to the lender rather than donothing and let the funds remain on account until an adjudicationcould be rendered, or turn the funds over to the bankruptcy trustee"and, at paragraph 45, that Ticor "breached its duty by failing toexercise a proper standard of care in disbursing the loanproceeds,.." and ".. .failing to strictly comply with its duties and theescrow instructions or otherwise violating the escrow instructions ina negligent manner."Furthermore, cross-complainants allege that their Motion for Relieffrom Automatic Stay ".. .was denied based only because Cross-Defendant TICOR TITLE returned the loan proceeds to the lender."(Amended Cross-Complaint at 17).It is clear from the allegations in the Amended Cross Complaint thatKohani and Williams were aware of the alleged acts on the part ofCTC and Ticor which give rise to the causes of action for breach ofcontract, negligence and breach of fiduciary duty when Kohani andWilliams' motion seeking relief from the automatic stay was denied"...only because Cross-Defendant TICOR TITLE, ...returned the

funds to the lender...." (Amended Cross-Complaint at 17). TheMotion of Kohani and Williams for Relief from Stay was heard anddenied on October 25, 2005. [ RJN No. 1]The complaint was filed August 17, 2012 nearly 7 years after thecauses of action accrued. There is still nothing alleged in theAmended Cross complaint which tolls or postpones accrual of thecauses of action against Ticor and Chicago Title. Moving party togive notice.11. Cerda v Fragoso2013-0063332812. Reddy v Acacia PatentAcquisition2013-00633328Target defendants’ demurrer to plaintiff’s complaint. Demurrersustained without leave to amend. An employer is not strictlyliable for an employee’s conduct. In order to show that theemployee’s conduct of drinking on the job was within the course andscope of employment, plaintiffs must allege that the conduct wasincidental to, customarily connected with, or reasonably necessaryfor the performance of his work duties. They have not doneso. Thus, the plaintiffs have failed to allege that he was within thecourse and scope of employment when he consumed alcohol on thejob. Also, the accident occurred long after the employee left the joband no exception to the “going and coming” rule has been pled. Thecourt is willing to consider a request for leave to amend, but infersthat plaintiffs have pled all the facts they can. Moving party to givenotice.Defendants’ demurrer to plaintiff’s complaint. Demurrersustained in part and overruled in part with leave toamend. The demurrer is sustained with respect to the 3 rd and 6 thcauses of action and overruled with respect to the remaining causesof action. The simple failure to pay money does not constituteconversion. A cause of action for conversion of money can only bestated where defendant interferes with plaintiff’s possessory interestin a specific, identifiable fund.It would be against public policy for plaintiff to provide expertwitness services for a fee. However, the complaint only alleges thatthe plaintiff provided consulting services which would not be againstpublic policy.Plaintiff adequately alleges alter ego under the “single –enterpriserule.”Plaintiff may have until July 1, 2013 to file a first amendedcomplaint for the sole purpose of amending causes of action 3 and6.Defendants’ request for judicial notice is granted, however this doesnot establish facts set forth in the declaration of Botsch as true.Moving party to give notice.15. Diaz v Tapout2011-00462171Motion for summary judgment/adjudication by defendants AuthenticBrands Group, LLC and ABG Tapout, LLC. Motion denied.The Defendant presents two declarations in support of its motion –one from Attorney Belzer and the other from an officer ofDefendant, Mr. Kevin Clarke. Responding party’s objection to thedeclaration of Clarke is sustained.Mr. Clarke did not work with ABG at the time of the transactions inquestion here. In fact, he only became affiliated with Defendant inor about November of 2010 (See Exhibit "6" Lodged by Plaintiff:Clarke Deposition at p. 5-6). Mr. Clarke therefore lacks the personal

knowledge of the facts surrounding the creation, negotiation andmaintenance of the records at issue in the Defendants motion inviolation of California Evidence Code sections 403 et seq. and Codeof Civil Procedure section 437c(d). The Clarke declaration is notbased upon the declarant’s personal knowledge. (CCP 437c(d).) Mr.Clark has not established that he has personal knowledge of thenegotiations, dealings or any other matter which pre-dates hisemployment in November of 2010.He has not set forth facts which establish that the documentsattached qualify and can be authenticated as a business record ofthe Defendant. In People v. Shirley (not cited by the parties) Payne,as senior advisory title officer with Safeco Title Insurance, thesuccessor to Security Title Insurance Company, was testifying fromrecords of Safeco Title, and had no personal knowledge of thetransaction. His testimony was that of relating what the hearsayentries by Security Title employees set forth in Security Title'srecords. Payne's testimony was insufficient to qualify Security Title'srecords as admissible under the business-records exception to thehearsay rule established by Evidence Code section 1271. Payne'stestimony did not meet the requirement of Evidence Code section1271, subdivision (c), which provides that the custodian or otherqualified witness must testify to the identity and mode ofpreparation of the business record. Such testimony is essential inorder for the court to be able to make a finding (that can be impliedfrom a ruling on admissibility), as required by the Evidence Codesection 1271, subdivision (d), that the sources of information for thebusiness-record entries and the method and time of preparation ofsuch entries were such as to indicate trustworthiness of the entries.People v. Shirley 78 Cal.App.3d 424, 438, 144 Cal.Rptr. 282, 291(Cal.App. 1978)The Defendant attempts to remedy this problem by includinganother declaration regarding the same exact facts with its replybrief. The inclusion of additional evidence in reply to the Plaintiff’sOpposition is improper. The Defendants argue that there is no newevidence because the facts were the same facts set forth in theClarke declaration. This is not a persuasive argument. The factswere set forth improperly in the Clarke Declaration. The facts setforth in the Clarke declaration were inadmissible since, the declaranthad not established personal knowledge. As such, the facts werenot at issue.The Defendant is left with Attorney Belzer’s declaration whichattaches Plaintiff’s deposition and declaration testimony anddiscovery responses. As ABG has failed to present admissibleevidence to support its motion for summary judgment, the CourtDENIES the summary judgment motion in its entirety based uponthe moving party's failure to produce admissible evidence sufficientto meet its burden of persuasion. (See C.C.P. §437c(p)(2).) Movingparty to give notice.

Superior Court of the State of CaliforniaCounty of OrangeDEPT C23 TENTATIVE RULINGSJudge Robert J. MossThe court will hear oral argument on all matters at the time noticed for the hearing. If you wouldprefer to submit the matter on your papers without oral argument, please advise the clerk bycalling (657) 622-5223. If no appearance is made by either party, the tentative ruling will be thefinal ruling. Rulings are normally posted on the Internet by 4:00 p.m. on the day before thehearing.Date: July 19, 2013# Case Name Tentative1. That v ProfessionalCommunity Managementof California07CL05523Plaintiff’s motion to strike costs, to return his bond and to rescindthe order declaring him to be a vexatious litigant. Motiondenied. The costs sought by defendant are both allowed by lawand are supported in detail. Additionally, pursuant to CCP §391.1,plaintiff is not entitled to release of his bond, as its statutorypurpose is to ensure payment to defendant, who has previouslybeen awarded $305,953.99 in attorney fees and is now awardedcosts of $21,484.25. Lastly, plaintiff cites no legal basis forrescinding his status as a vexatious litigant—a status that is furthersubstantiated by his lack of success in this action.3. Tran v Pham2010-003916684. Ornelia v Cilliani2011-00454482Defendants’ motions for summary judgment/adjudication. Motionsdenied. There is a triable issue of fact as to whether thedefendants’ efforts to hide the keys were sufficient under thecircumstances to negate implied permission. The jury will decide ifthe defendants’ efforts to keep the keys from co-defendant AndyPham were reasonable under all the circumstances. Moving party togive notice.Defendant’s motion for summary adjudication of the second (NIED)and third (IIED) causes of action of the second amendedcomplaint. Motion granted. The bases for both claims are thingsdefendant said to police during a criminal investigation. Suchstatements are absolutely privileged. CC § 47(b); Hagberg vCalifornia Federal Bank (2004) 32 Cal. App. 4 th 350. There is noauthority for the proposition asserted by plaintiff that the privilegeonly applies to a person initiating a criminal investigation. Suchcommunications are privileged even, as plaintiff contends, they weremade in bad faith and/or with malice.Even if the comments made by defendant were not privileged, thefacts are undisputed that CMPD did not speak with defendant untilafter they first questioned plaintiff and searched her home (Depo. ofDiaz, 55:20-56:19; 67:17-68:19.) Further, when CMPD requestionedplaintiff and re-searched her home, it had “nothing todo” with what defendant told the police. (Depo. of Diaz, 55:20-56:19.) Thus, there is no triable issue of fact on the issue ofcausation.Moving party to give notice.

5.Madison Harbor vSalazar2011-00457480Plaintiff’s motion for leave to amend judgment. Motionstayed. Debtor Cruz has filed a Chapter 7 bankruptcy petition thatautomatically stays proceedings in this court against her. Even if abankruptcy petition had not been filed, the court would deny themotion. Cruz was dismissed from the action without prejudice on11/14/11. Adding her as a defendant to the default judgment wouldviolate her due process rights. The matter is set for abankruptcy review hearing on 1/20/14 at 8:30 AM. Movingparty to give notice.6. Nguyen v OC Imports2012-005745667. U.S. Flash &Technologies v Rager2012-005745818. Kirby v Cabrera2012-005983659. Lasagna v Lopez2012-00600252Plaintiff’s demurrer to defendant’s answer. Noopposition. Demurrer sustained with leave toamend. Defendant may have until 7/26/13 to file a first amendedanswer. Moving party to give notice.Defendants’ motions to quash deposition subpoenas and forprotective order. Motions denied. The motion to quash appearsto be moot in light of plaintiff serving a Trade Secret Identificationand reserving the deposition notices. Moreover, despite defendants’argument to the contrary, plaintiff’s Trade Secret Identificationappears to comply with Section 2019.210 of the Code of CivilProcedure. The instant action is unlike either Brescia v. Angelin(2009) 172 Cal.App.4th 133 and Perlan Therapeutics, Inc. v.Superior Court (2009) 178 Cal.App.4th 1333. Both of those casesrequired more specificity because they dealt with more complicatedtrade secrets. Neither Brescia nor Perlan deal with a protectedvendor/customer/ client list, pricing structure, advertising, ormarketing program – as in the case at bar. Defendants to payplaintiff sanctions of $1,595 pursuant to Section 2025.420(h) of theCode of Civil Procedure. Moving party to give notice.Defendant’s motion for summary judgment. Motion granted. Aresidential property owner is not strictly liable for injuries that occuron his property resulting from dangerous conditions. In order torecover plaintiff must show that defendant had notice, actual orconstructive, of the dangerous condition. Here, the structure inquestion was a 6’ high, 5’ long wing wall on the east side ofdefendant’s home. The wall was in place when defendant moved inin 1997 and he never modified it. He states it never had any cracksin it or other visible problems and appeared to be sturdy. There isno legal requirement that the home owner remove the capstone andpeer down into the wall, even assuming he would know what to lookfor. Absent some visual indication that the wall was unstable(cracking, leaning, wobbling, etc.) he met his duty to inspect byvisually examining the wall. Defendant met his burden and plaintiffhas failed to set forth a triable issue of fact. Moving party to givenotice.Defendant’s motion to quash service of summons. Motiongranted. Defendants argue correctly that that Plaintiffs have failedto carry their burden to prove that service by publication wascompleted in compliance with statutory standards.First, Plaintiff has filed a copy of the notice of publication that isillegible, so the court cannot verify that the notice wasproper. Second, the court file contains no record that Plaintiffsapplied for or obtained an order for publication. (CCP 415.50 (b).)And Plaintiff has submitted no evidence of any such courtorder. The minute order from the 2/01/13 CMC hearing makes nomention that the court considered or issued an order for publication.Accordingly, the court need not consider Plaintiff’s other arguments,

ecause this first argument is dispositive.A defendant is under no duty to respond in any way to a defectivelyserved summons. It makes no difference that defendant had actualknowledge of the action. Such knowledge does not dispense withthe statutory requirements for service of summons. (Kappel v.Bartlett (1988) 200 Cal.App. 3d 1457, 1466; Ruttenberg v.Ruttenberg (1997) 53 Cal.App.4 th 801, 808.)Although Defendant is the moving party, the burden of proving validservice rests with Plaintiff, who must show the existence ofjurisdiction. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4 th1426, 1439-1440.)Filing a proof of service that complies with statutory standardscreates a REBUTTABLE PRESUMPTION that service was proper. (Dillv. Berquist Construction Co. (1994) 24 Cal.App.4 th 1426, 1441-1442; Floveyor International Ltd. V. Superior Court (1997) 59Cal.App.4 th 789, 795.) But here, Plaintiffs have failed to carry theirburden to show that they filed a valid proof of service by publicationand that they complied with the statutory requirements for properservice by publication.The court DENIES Defendant’s request for sanctions on 2grounds. First, in her notice of motion, Defendant failed to givePlaintiff proper notice of the request for sanctions. Second,Defendant failed to cite any case law or statute authorizingsanctions in this situation. Moving party to give notice.10. Nguyen v Lai2013-006392141. Defendant B of A’s demurrer to plaintiff’scomplaint. [Dismissal filed as to B of A on 7/17/13.]2. CMC: Counsel to appear to set trial date.11. Taitague v El Toro WaterDistrict2013-0064087612. Adams v Manorcare2013-00642442Defendant’s demurrer to and motion to strike portions of plaintiff’scomplaint. No opposition. Demurrer sustained without leave toamend. Motion to strike is moot. The court infers from the lackof opposition that the demurrer is well-taken and that plaintiffcannot allege additional facts that would rescue thepleading. Moving party to give notice.1. Defendants’ demurrer to the first cause of action (elderabuse) of plaintiff’s complaint. Demurrer overruled.Enhanced remedies. A demurrer may not be sustained toa cause of action on the grounds that the plaintiff has notadequately alleged a right to a remedy sought. (CaliberBodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th365, 384-385.) While the Elder Abuse Act limits thecircumstances under which a plaintiff may recover certainenhanced, statutory remedies, nothing precludes Plaintiffsfrom obtaining other remedies for Defendant’s allegedneglect, even in the absence of conduct sufficient to supportthose enhanced remedies. (See CACI 3103 [Neglect –Essential Factual Elements], 3104 [Neglect – EnhancedRemedies Sought], VF-3103, VF-3014.)Neglect. Neglect under the Elder Abuse Act “refers ‘to thefailure of those responsible for attending to the basic needsand comforts of elderly or dependent adults, regardless of

their professional standing, to carry out their custodialobligations.’” (Carter v. Prime Healthcare Paradise ValleyLLC (2011) 198 Cal.App.4th 396, 404.) A violation of 22C.C.R. § 72311 “in caring for an elder constitutes elder abuseneglect under the Act.” (Norman v. Life Care Centers of Am.,Inc. (2003) 107 Cal.App.4th 1233, 1246.) The following,non-exhaustive factual allegations are sufficient to allegeelder neglect:Despite knowing Sadako was a high risk for falling,Defendant did not take any precautions, such as using tabalarms and floor mats, to prevent or reduceinjury. (Complaint, 19.) When Linda asked Defendant’sstaff about floor mats to prevent injury, they lied to her andtold her mats were used but temporarily removed whenfamily visited. (Complaint, 21.)Pursuant to 22 C.C.R. § 72311(a)(3)(B), Defendant owed aduty to promptly notify the attending licensed healthcarepractitioner of a patient’s “sudden and/or marked adversechange in signs, symptoms or behavior.” (Complaint, 29.) But at 8:00 a.m. Defendant’s staff “had not yet spokenwith a physician” even though they discovered at 4:30 a.m.that Sadako fallen. (Complaint, 22.)Causation. The Complaint’s allegations of neglect andinjury reasonably give rise to an inference of causation. Forexample, had Defendant used floor mats where Sadako fell,she would not have been hurt or her injuries would not havebeen as severe. And had Defendant immediately notified adoctor or called an ambulance, Sadako would not havesuffered an infection or had to have undergone surgery withthat complication.2. Defendant’s motion to strike portions of plaintiff’s complaint(punitive damages and attorney fees.) Motion denied.Punitive Damages. Plaintiffs have adequately alleged factssufficient to establish malice and/or oppression byDefendant. (See Complaint, 18-19, 21-22, 28-33, 37-38,40-47, 53-54.)Attorney Fees. Plaintiffs may recover attorney fees if theysuccessfully plead and prove a basis for enhanced remediesunder Welf. & Inst. Code, § 15657. In order to obtain thoseenhanced remedies, Plaintiffs must allege and prove conduct“essentially equivalent to conduct that would supportrecovery of punitive damages.” (Country Villa ClaremontHealthcare Center, Inc. v. Superior Court (2004) 120Cal.App.4th 426, 432.) As discussed above, Plaintiffs haveadequately alleged facts sufficient to support the impositionof punitive damages against Defendant.Defendants shall file their answer to the complaint by7/16/13. Moving party to give notice.

Superior Court of the State of CaliforniaCounty of OrangeDEPT C23 TENTATIVE RULINGSJudge Robert J. MossThe court will hear oral argument on all matters at the time noticed for the hearing. If you wouldprefer to submit the matter on your papers without oral argument, please advise the clerk bycalling (657) 622-5223. If no appearance is made by either party, the tentative ruling will be thefinal ruling. Rulings are normally posted on the Internet by 4:00 p.m. on the day before thehearing.Date: July 26, 2013# Case Name Tentative2. US Legal ManagementServices Inc v LO ofNagash2009-00313736Defendants’ motion for entry of judgment. Motiondenied. Defendants have made no showing that they are entitledto the judgment they seek. The Naghash Defendants argue that thecourt must enter their proposed amended judgment, providing thatneither Plaintiff is entitled to an award of attorney’s fees. Thisargument is based on numerous misstatements regarding theseproceedings. The following two are the most significant: The Remand. The Appellate Division remanded the postjudgmentorder awarding attorney’s fees “for the limitedissue of which respondent is entitled to recover attorneyfees.” Contrary to the Naghash Defendants’ position, theAppellate Division did not include the phrase, “if any[respondent].” The 03/08/13 Hearing. As Plaintiffs point out, the NaghashDefendants were neither personally present at the hearingnor present through counsel. The hearing transcript reflectsthat this matter was called for the limited purpose ofdetermining Plaintiffs’ motion for attorney’s fees onappeal. The court expressed some concern as to whetherthe evidence actually supported an award of appellate fees toeither Plaintiff. The court then offered to continue thehearing for further evidence and briefing. Plaintiffs insteadchose to withdraw their motion for attorney’s fees on appealbefore it was decided on the merits. Both the transcript andthe minute order reflect that only the motion re appellatefees was withdrawn. No other issue was decided by thecourt.Plaintiffs have established that Plaintiff US Legal ManagementServices, Inc. is entitled to attorney’s fees in connection with thetrial proceedings. The court finds that Plaintiffs have sufficientlyestablished an AKA/DBA relationship between First Legal SupportServices and US Legal Management Services. (See, Declarationsattached as Exhibit E to the Supplemental Opposition Papers.) TheDeclaration of Russell Ortiz provides that “First Legal | SupportServices” referenced in the buck slips is not First legal SupportService, LLC or any other LLC. (Decl. of Ortiz, at 7.) Rather, “FirstLegal | Support Services” is a trade name for Plaintiff US LegalManagement Services, Inc. (Decl. of Ortiz, at 5-6.) In addition,Plaintiff submits declarations from the legal administrator of LewisBrisbois and the office administrator of Theodora Oringher, P.C.,who have used Plaintiff’s services. The Declarations provide thatthe buck slips reference “First Legal | Support Services,” and thatthe legal community/industry knows that “First Legal | Support

Services” is a trade name for US Legal Management Services, Inc.(Decl. of Elijah Bernal, at 6-8; Decl. of Barbara Buchfield, at 5-7.)Plaintiffs are to submit a proposed judgment. Moving parties are togive notice.4. Albritton v Moushey2011-00439329Defendant’s motion to set aside default and defaultjudgment. Motion granted. A defendant seeking relief under CCP§ 473.5 must show that his or her lack of actual notice in time todefend was not caused by inexcusable neglect or avoidance ofservice. (Tunis v. Barrow (1986) 184 CA3d 1069, 1077–1078; TheRutter Group, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 5-G at5:426.) Here, Defendant Moushey Jr. states that:He never lived at 20342 Laguna Canyon Road.He only recently moved to 20326 after 2/23/12. Previously,he resided at 318 Robinson, Tustin, CA 92782.His father lives at 20342 Laguna Canyon Road.He has been estranged from his father since December of2012.He was not served with any papers or authorize his father toreceive service of process.He did not become aware of this action until his real estatebroker informed him of this lawsuit in October of 2012.He was unable to retain counsel until recently because hecould not afford one.(Decl. of Moushey, at 7-14, 16.)Here, it is arguable that service has not resulted in actual notice toDefendant Moushey Jr. It appears that the attorneys are bickeringabout whether Defendant first learned of this lawsuit through hisbroker (Decl. of Moushey, at 14), or by corresponding withPlaintiffs’ attorney of record at the subject property on June 23,2011 (Decl. of Carter Judge, at 10). It does not matter either waybecause constructive notice of the lawsuit is not actual notice.(Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895.) Here,Defendant has sufficiently established that he lacked actual notice ofthe lawsuit, and that he was not attempting to avoid service or hasengaged in inexcusable neglect.In addition, the 2 year time limit has not run. Default judgment wasentered on 3/16/12, and the instant motion was filed on5/20/13. Further, the subject notice of entry of default judgmentwas served on Defendant at 20342 Laguna Canyon Road. Thus,Plaintiff has failed to offer sufficient evidence showing that properwritten notice of the judgment was served on Defendant, and thattherefore Defendant is limited to 180 days after service on him ofthe subject written notice.Also significant is that the law favors disposing of cases on theirmerits, “any doubts in applying [CCP] section 473 must be resolvedin favor of the party seeking relief from default [citations].” (Elstonv. City of Turlock (1985) 38 Cal.3d 227, 233.)Although Defendant attaches a copy of the proposed Answer,Defendant is ordered to file the Answer by 8/5/13 because unlessthe Answer is separately filed, the answer does not get separatelyentered onto the court’s internal imaging system. Moving party is togive notice.

5. Airlift Helicopter Servicev Federal InsuranceCompanyMotion to admit counsel in pro hac vice. No opposition. Motiongranted. Moving party to give notice.2011-004541226. Hasso v Griffith2012-005727139. Lopez v Tom’s TruckCenter2012-00600693Plaintiff’s motion to compel responses to interrogatories. Motionmoot. Responses were served after the motion was filed, butbefore hearing on 6/13/13. Sanctions are awarded to plaintiff andagainst defendant in the sum of $890.00. Moving party to givenotice.Cross-complainant’s motion for leave to file crosscomplaint.Motion granted. The court finds that the crosscomplaintis not brought in bad faith. Responding party’s requestthat the trial date be continued is denied. Moving party to givenotice.11. Moatazedi v Kurtz2012-0061418312. Nikolaou v Honikel2012-00619249Defendant’s motion to compel arbitration and stay action. Motiongranted. There is a strong public policy in favor of enforcingarbitration agreements. Plaintiff is incorrect that related fraud in theinducement claims cannot be subject to an arbitration clause in thecontract. Likewise, the law is clear that non-signatory agents of acontracting party can compel arbitration. The conduct of defendantsin answering the complaint, filing a cross-complaint and initiatingdiscovery in this case plus a 5 month delay in seeking to compelarbitration are not, by themselves, enough to constitute a waiver ofthe right to arbitrate. Moving party to give notice.1. Defendant’s demurrer to first amended complaint. Noopposition. Demurrer sustained with leave toamend. Plaintiff will file the second amended complaint by8/5/13. Moving party to give notice.2. CMC: The CMC is continued to 10/21/13 at 8:30 AM inDepartment C23. Plaintiff to give notice.13. Walker v BMW2012-0061954216. Sayre v Meshekow2013-00639124Defendant’s motion for leave to file amended answer. Noopposition. Motion granted. The amended answer shall be filedby 8/5/13. Moving party to give notice.1. Plaintiff’s demurrer to defendant’s first amendedanswer. Demurrer overruled. Moving party is orderedto pay the filing fee for this motion.The court takes judicial notice of the fact that Exhibits A-Didentified in Defendants’ request for judicial notice were filedin their respective cases, “but not of the truth of thestatements contained in them.” (Espinoza v. Calva (2008)169 Cal.App.4th 1393, 1396.)Based on the facts alleged, Defendant has stated sufficientgrounds of extrinsic fraud to vacate the Default Judgment.After six months from entry of default judgment, “a trialcourt may still vacate a default on equitable grounds even ifstatutory relief is unavailable.” (Rappleyea v. Campbell(1994) 8 Cal.4th 975, 981.) “Notwithstanding the bar to a

subsequent action that may result from application of thedoctrine of res judicata, a party may still seek relief from afinal judgment by appealing to the equitable power of thecourt” on the grounds that the judgment was obtained byfraud. (City & Cnty. of San Francisco v. Cartagena (1995) 35Cal.App.4th 1061, 1066.) “Extrinsic fraud occurs when aparty is deprived of the opportunity to present his claim ordefense to the court . . ..” (Id. at 1067.)Here, the FAA alleges Plaintiff made false representations tothe court which resulted in an invalid order permitting serviceby publication. Defendant was never properly served, had noopportunity to defend himself, and was never properly beforethe court. In other words, Defendant was prevented fromhaving his day in court.Under normal circumstances, Defendant’s extrinsic frauddefense should be raised in LA Superior Court where thedefault judgment was obtained. But it is apparent that the12/20/12 Default Judgment has expired. (See Code Civ.Proc., § 683.020, subd. (a) [money judgment may not beenforced after 10 years after date of entry ofjudgment].) Because Plaintiff has brought the instant actionin this court to enforce the expired default judgment,Defendant can assert the fraud defense here.Finally, the court notes that there is no record that Plaintiffhas paid the $60 motion fee for the instant demurrer to thefirst amended answer. Plaintiff is ordered to bring proof ofpayment of the fee or pay the fee within five calendar daysof the hearing.Defendant is ordered to give notice.2. CMC: Counsel to appear to set trial date.

Superior Court of the State of CaliforniaCounty of OrangeDEPT C23 TENTATIVE RULINGSJudge Robert J. MossThe court will hear oral argument on all matters at the time noticed for the hearing. If you wouldprefer to submit the matter on your papers without oral argument, please advise the clerk bycalling (657) 622-5223. If no appearance is made by either party, the tentative ruling will be thefinal ruling. Rulings are normally posted on the Internet by 4:00 p.m. on the day before thehearing.Date: August 2, 2013# Case Name Tentative1. Williams v Toffler02CC13681Defendant Peterson’s (seller’s) motion to enforcesettlement. Motion denied. This matter was settled by stipulationin open court in August of 2004. The settlement, in essence, wasthat defendant would sell the property in question to plaintiffs for$420,000.00. Before escrow could close on the property, defendantfiled for bankruptcy relief resulting in a stay of the transaction.In June of 2012, defendants obtained relief from the stay. However,since then defendants have still not paid for the property so as tocomplete the sale. Defendant wishes the court to cancel thetransaction for failure to comply with conditions thereto.While the court agrees with the defendant that she must be paid forthe property, the court is persuaded that defendant has preventedthe plaintiffs from completing the purchase by forbidding access tothe property for the purpose of conducting an appraisal and byfailing to obtain quitclaim deeds from the persons to whom sheattempted transfer of title after the underlying transaction wasentered into.Plaintiffs have established that they have a lender in place and needonly the appraisal and cancellation of the quitclaim deeds tocomplete funding of the transaction.2. Sobieski v Leon2011-00459515In their opposition to this motion plaintiffs request the court to orderdefendant to allow access to the property to for the purpose ofperforming the appraisal. The court cannot grant affirmative reliefbased on a request in an opposition to another motion. Plaintiffsmust file their own motion seeking such relief. Moving party to givenotice.Defendant’s motion for summary judgment/adjudication. Motiondenied. Defendant, City of Fullerton’s motion for summaryjudgment or alternatively for summary adjudication is treated bythis Court as a motion for summary judgment only based upondefendant’s procedural defects in failing to comply with CCP437c(f)(1), and Cal. Rule of Court, R. 3.1350. A motion foradjudication shall set forth the issues to be adjudicated in thenotice, and those issues shall then be set forth verbatim in theseparate statement. Here, defendant fails to set forth any issues inits notice or in its separate statement. The moving defendant’sfailure to comply with the Rules of Court specifying the specificcause of action, affirmative defense, claims for damages, or issuesof duty on which summary adjudication is sought, by itself, issufficient to support this Court’s denial of the motion for

adjudication. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4 th728, 744.)The motion for summary judgment is denied based on the Court’sfinding that there are triable issues of material fact as to whether ornot the condition was dangerous, if Mr. Leon was the sole cause ofplaintiff’s injury, whether plaintiff was using the crosswalk with duecare, and whether there is a causal connection between the defectand the injury. The Court further finds that defendant failed to meetits initial burden of proof to establish that the design immunityapplies.ObjectionsΔ’s Objections:Overruled: 3, 6, 9, 10, 12.Sustained: 1, 2, 4, 5, 7, 8, 11, 13, 14, 15, 16, 17.Π’s Objections:Supplemental Declaration of Mark Miller: Sustained (untimely – SanDiego Watercrafts, Inc. v. Wells Fargo Bank N.A. (2002) 102Cal.App.4 th 308.)Plaintiff to give notice of ruling.3. 21 st Century v RayneCorporation2012-005546784. Grandview/Crest HOA vMollePlaintiff’s motion to file first amended complaint. Noopposition. Motion granted. Plaintiff shall file its first amendedcomplaint by 8/7/13. Moving party to give notice.Plaintiff’s motion for summary judgment/adjudication. Noopposition. Motion granted. Moving party to give notice.2012-005600295. Nguyen v OC Imports2012-005745661. Cross-defendant Del Rio’s demurrer to the 1 st (fraud) and 2 nd(negligent misrep) causes of action of the crosscomplaint.Demurrers sustained with leave toamend. Neither cause of action is pled with the requireddegree of specificity. While the “relation back” theory doesnot apply because the original complaint was filed more thanthree years after the alleged misrepresentation, the problemis the cross-complaint does not set forth when damage wassustained, a necessary element of a cause of action based onmisrepresentation. Cross-complainant may file firstamended cross-complaint by 8/12/13.2. Cross-defendant Del Rio’s motion to strike portions of thecross-complaint. Motion moot in light of court’s ruling ondemurrer.Moving party to give notice.8. Dickerson v Hope By theSea Inc2013-00627056Defendant Hope by the Sea’s demurrer and motion tostrike. Demurrer overruled and motion to strike denied.1. DemurrerThird Cause of Action: Invasion of privacy (based on publicdisclosure of private facts)A claim for invasion of privacy based on public disclosure does not

equire that the offensive conduct be committed by Plaintiff. (SeeShulman v. Grp. W Prods., Inc. (1998) 18 Cal.4th 200, 214.) It issufficient that the conduct alleged was perpetrated on the Plaintiff,so long as publication of such conduct would be highly offensive to areasonable person. (See M.G. v. Time Warner, Inc. (2001) 89Cal.App.4th 623, 630 [children in little league team photo used bypublication to illustrate stories about adult coaches who sexuallymolest youths playing team sports demonstrated a prima facie casefor invasion of privacy for public disclosure of a private fact].)COA 3: Invasion of privacy (based on intrusion)COA 5: Sexual batteryThe California Supreme Court has recognized that “except wheresexual misconduct by on-duty police officers against members of thepublic is involved, the employer is not vicariously liable to the thirdparty for such misconduct.” (Farmers Ins. Grp. v. Cnty. of SantaClara (1995) 11 Cal.4th 992, 1006 [internal citations omitted].)Aside from the doctrine of respondeat superior, “[a]n employee’sactions may be ratified after the fact by the employer’s voluntaryelection to adopt the employee’s conduct by, in essence, treatingthe conduct as its own.” (Delfino v. Agilent Technologies, Inc.(2006) 145 Cal.App.4th 790, 810.) “The failure to discharge anemployee after knowledge of his or her wrongful acts may beevidence supporting ratification.” (Ibid.)Here, the FAC alleges that Defendant ratified the conduct by (1)knowing its much of its staff had prison records and felonyconvictions; (2) were previously sued for negligent hiring practicesresulting in sexual assaults at its facilities; (3) failing to takeappropriate actions; (4) knowing Haynie and Ramirez had a historyof violence or abuse; and (5) failing to report these subject incidentsand instead trying first to cover them up. (FAC, 15-19, 62-65.) For pleading purposes, these allegations are sufficient tosupport ratification by Defendant.COA 6: Dependent adult abusePlaintiff has sufficiently alleged that he is a dependent adult, underWelf. & Inst. Code, § 15610.23, subd. (b), because he is a personbetween the ages of 18 and 64 years who was admitted as aninpatient to Defendant’s 24-hour health facility. Contrary toDefendant’s claim, Plaintiff does not also need to separatelyestablish that he falls under the definition of Section 15610.23,subd. (a). (See CACI 3112 [dependent adult established undersubd. (a) definition or subd. (b) definition].)COA 8: Breach of contractThe FAC sufficiently alleges that the documents in Exhibit Acomprise a contract between Plaintiff and Defendant. It is open fordispute whether page 18, titled “Client’s Rights,” was an express orimplied contractual promise by Defendant to conduct the program ina certain manner. The contract is ambiguous in this respect, andPlaintiff’s interpretation of the contract documents must be acceptedas correct at the demurrer stage. (Aragon-Haas v. Family Sec. Ins.Servs., Inc. (1991) 231 Cal.App.3d 232, 239.)2. Motion to StrikePlaintiff seeks punitive damages under the third through seventhcauses of action, which are for invasion of privacy, sexualharassment, sexual battery, dependent adult abuse, and fraud. Asargued by Plaintiff, none of them are based on professionalnegligence. Code Civ. Proc., § 425.13 thus does not apply to bar

Plaintiff’s request for punitive damages.Plaintiffs have adequately alleged facts sufficient to establish fraud,malice and/or oppression under Civ. Code, § 3294. (FAC, 18-19,23-28, 33-37, 43-59, 61-65.) These allegations appear sufficient, ifproven, to support a conclusion that (1) Defendant misrepresentedthe desirability and efficacy of its rehab program so that clientswould pay thousands of dollars to join; and (2) Defendant eitherintended to cause Plaintiff the harassment and abuse that heendured or—at a minimum—that Defendant engaged in despicableconduct that subjected Plaintiff to cruel and unjust hardship inconscious disregard of his rights.The FAC does allege facts sufficient to show fraud on the part ofChad Carlsen, Defendant’s Executive Director. It alleges thatDefendant’s website shows the recovery story of its co-founder andExecutive Director, Chad Carlsen, representing that he has beensubstance-free since Dec. 2000, despite the fact that in Feb. 2010he was arrested for and charged with drug related offenses. (FAC, 23-28.)Defendant to file an answer to the complaint by 8/12/13. Plaintiff isordered to serve notice.9. Shariff v AllstateIndemnity Company2013-006305341. Defendant’s demurrer to the second (breach of contract) andthird (fraud) causes of action of the plaintiff’scomplaint. Demurrer sustained with leave toamend. While the court sustains the demurrer to the breachof contract cause of action, it is not for the reason argued bydefendant (that the arbitration award was ultimatelypaid.) Rather, the plaintiff fails to specify which terms in theattached policy were allegedly breached. The demurrer tothe fraud count is sustained for lack of specificity. Plaintifffails to allege who made any misrepresentations, whatspecifically was said to whom, when and where. Plaintiff alsofails to allege the authority of the person or persons whoallegedly made misrepresentations. Plaintiff may have until8/12/13 to file a first amended complaint.2. Defendant’s motion to strike portions of the plaintiff’scomplaint. Motion moot in light of the court’s ruling on thedemurrer.3. Defendant’s special motion to strike (anti-SLAPP) plaintiff’scomplaint. Motion denied. Defendant has failed to meet itsinitial burden of establishing that the conduct complained ofwas protected activity. The gravamen of plaintiff’s claim isthat defendant failed to settle his claim fairly andpromptly. This conduct does not arise out of an “officialproceeding authorized by law” (the arbitration.) Rather,plaintiff’s whole point is he should not have been forced tolitigate his claim. The court declines to rule on defendant’sevidentiary objections because the court did not considerplaintiff’s proffered evidence. Moving party to give notice.10. Reininger v Cedars-Sinai2013-00633250Defendant’s motion to compel arbitration and stay action. Motiongranted. The court finds that Defendants did not waive their rightto arbitration. There was no unreasonable delay in moving tocompel arbitration and there was no prejudice toPlaintiff. Furthermore, Plaintiff merely asserts that the Agreement

was procedurally unconscionable, but he fails to carry his burden tocite any evidence to prove it. (Crippen v. Central Valley RV OutletInc. (2004) 124 Cal.App. 4 th 1159, 1165-1166.) And the courtfinds that the failure to attach a copy of the AAA rules, standingalone, did not render the Agreement substantively unconscionable,because that is merely one factor among many that the court mustconsider.Moving party to give notice.14. Kim v JP Morgan2013-00649876Plaintiff’s motion to consolidate. Motion denied. Plaintiff has failedto serve all defendants in both actions with notice of ruling on theEx Parte hearing and briefing schedule, and serve the Ex ParteApplication and motion to consolidate on all the defendants. Plaintiffwas previously ordered on 6/28/13 to serve all defendants with theSummons and Complaint in this action and to serve all parties withthe Ex Parte Application to Consolidate. Plaintiff appears to havefiled proofs of service on defendants JP Morgan and NorthwestTrustee Services, Inc., but there is no proof of service fordefendant/plaintiff PDQ Investments LLC. Further, there is no proofof service filed with the Court that any of the parties were servedwith Notice of Ruling for the 6/28/13 hearing giving notice of theContinued Hearing to 8/2/13. Moving party to give notice.

Superior Court of the State of CaliforniaCounty of OrangeDEPT C23 TENTATIVE RULINGSJudge Robert J. MossThe court will hear oral argument on all matters at the time noticed for the hearing. If you would preferto submit the matter on your papers without oral argument, please advise the clerk by calling (657) 622-5223. If no appearance is made by either party, the tentative ruling will be the final ruling. Rulings arenormally posted on the Internet by 4:00 p.m. on the day before the hearing.Date: August 9, 2013# Case Name Tentative2. Heindl v Martinelli2010-00394198Defendant Martinelli’s motion to correct clerical errors injudgment. Motion granted in part and denied in part. The Courtgrants Martinelli’s motion to correct clerical errors only as follows: thetransposition of the sums $4,666.67 apportioned to Hamilton shouldhave been apportioned to Deering and the $7,000 apportioned toDeering should have been apportioned to Hamilton. Judgment in favorof Martinelli on Mission Grove’s cross-complaint was inadvertentlyomitted. The remainder of modifications sought by Martinelli are notclerical in nature, nor is the existing judgment inconsistent with thespecial verdict. Defendant to prepare amended judgment in accordancewith this order and give notice of ruling.3. Pickett v Wells Fargo2012-005469164. Hasso v Griffith2012-005727136. Johnson v City of GardenGrove2012-00598140Receiver’s motion to terminate receivership. No opposition. Motiongranted. Receiver to give notice.Plaintiff’s motion to compel responses to interrogatories. Motionmoot. Responses were served on 6/13/13. The request for sanctions isdenied. Moving party to give notice.Defendant City of Garden Grove’s motion for summaryjudgment/adjudication. Motion denied. [First cause of action isdismissed per stipulation of plaintiff.] First, Defendant contends that thisclaim fails because Plaintiff has failed to exercise due care while walkingon the sidewalk. However, Defendant has failed to establish that adefect is not “dangerous” as a matter of law when the defect is readilyapparent. In addition, “reasonably foreseeable with due care” refers touse by the public generally and not by the particular plaintiff. (Mathewsv. City of Cerritos (1992) 2 Cal.App.4th 1380, 1384.) Even if Plaintiffwas negligent, the issue of contributory negligence is a matter ofdefense. (Id.) Finally, Defendant has failed to meets its initial burden ofestablishing that Plaintiff was not exercising due care. Defendant hasfailed to cite to any authority showing that looking ahead while walkingis not exercising due care.Second, Defendant contends that this claim fails because thedisplacement of the sidewalk panel is a trivial defect as a matter oflaw. Defendant, however, has failed to cite to any legal authority whichestablishes that a raise of 1½ inches is trivial as a matter of law.Third, Defendant contends that this claim fails because Plaintiff had priorknowledge of the defect, and that awareness renders it not “dangerous”within the meaning of Gov. Code § 830(a). Defendant cites to Fredettev. City of Long Beach (1986) 187 Cal.App.3d 122, 131 in support of this

contention. However, in Fredette, the Court of Appeal merely stated thatthe negligence of a plaintiff-user of public property is a defense whichmay be asserted by a public entity, and it has no bearing upon thedetermination of whether the condition is “dangerous” in the first place.(Id. at 131.)Plaintiff’s Evidentiary Objections: Plaintiff’s written objections fails tocomply with CRC 3.1354(b). Thus, Plaintiff’s objections are OVERRULEDin their entirety.Defendant’s Evidentiary Objections: Defendant’s written objections failto comply with CRC 3.1354(b), in that it fails to quote or set forth theobjectionable statement or material. Thus, Defendant’s evidentiaryobjections are OVERRULED in their entirety.Moving party is to give notice.7. Fischmann v WesternMedical CenterDefendant Burchell’s motion for summary judgment. Noopposition. Motion granted. Moving party to give notice.2012-006025838. Tice v Pierce2013-006287329. Sano v Shockley2013-00650967Garrett defendants’ demurrer, motion to strike, and special motion tostrike (anti-SLAPP.) This matter is transferred to Department C7 as arelated case to other pending matters. Moving party to contact clerk inthat Department re rescheduling these motions. Moving party to givenotice.Defendant Shockley’s special motion to strike (anti-SLAPP.) Motionmoot. Plaintiff filed a voluntary dismissal on 8/7/13.The court DENIES both parties’ requests for costs and attorney’s fees.Moving party to give notice.10. Noble v PHC Builders2013-00644729Defendant’s demurrer to plaintiff’s complaint. The demurrer isoverruled in part, sustained in part with leave to amend andsustained in part without leave to amend.Overruled as to COA 1: Breach of ContractThe Complaint sufficiently alleges that Defendant offered the Car in aparticular condition and sold a car with frame damage. (Complaint, 44, 50.)Sustained with leave to amend as to:COA 2: FraudCOA 4: Negligent MisrepresentationFacts supporting fraud must be pleaded with particularity sufficient toshow how, when, where, to whom, and by what means therepresentations were tendered. (Lazar v. Superior Court (1996) 12Cal.4th 631, 645.) To allege fraud against a corporation, the complaintalso must identify who made the misrepresentations and his or herauthority to speak for the company. (Ibid.)The Complaint alleges that Plaintiff specifically asked the Defendantabout the car’s history and condition, and the misrepresentations madeby Defendant in response. Plaintiff thus should be able to identify or at

least describe who made those misrepresentations.Overrule as to:COA 5: Consumer Legal Remedies ActCOA 6: Violation of Bus. & Prof. Code, § 17200COA 9: Violation of Veh. Code, § 11713COA 11: Violation of Implied Warranty of Merchantability andFitness (Civ. Code, § 1791.1 et seq.)Pursuant to the CLRA, the representation that goods are of a particularstandard, quality, or grade, if they are of another, is an unfair method ofcompetition and unfair or deceptive act or practice. (Civ. Code, § 1770,subd. (a)(7).)Veh. Code, § 11713, subd. (a), prohibits untrue or misleadingstatements by auto dealers and salespersons, among others.With respect to the implied warranty of merchantability, “[t]he core testof merchantability is fitness for the ordinary purpose for which suchgoods are used. [Citations.] Such fitness is shown if the product is insafe condition and substantially free of defects.” (Mexia v. Rinker BoatCo., Inc. (2009) 174 Cal.App.4th 1297, 1303 [internal quotationsomitted].)The “unlawful” prong of Bus. & Prof. Code, § 17200 makes a violation ofanother law a violation of § 17200 as well. (Cel-Tech Communications,Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.)Here, the Complaint alleges that Defendant represented the Car was freefrom mechanical and structural defects or damage, when in fact it hadframe damage. This is sufficient to allege a violation of all four statutes.Sustain without leave to amend as to:COA 3: Bait and SwitchCOA 7: Violation of Bus. & Prof., § 17500“Bait advertising is an alluring but insincere offer to sell a product orservice which the advertiser in truth does not intend or want to sell. Itspurpose is to switch consumers from buying the advertised merchandise,in order to sell something else, usually at a higher price or on a basismore advantageous to the advertiser. The primary aim of a baitadvertisement is to obtain leads as to persons interested in buyingmerchandise of the type so advertised.” (16 C.F.R. § 238.0.)Bus. & Prof. Code, § 17500 forbids false advertising in connection withthe disposition of real or personal property or services. This section“applies only to advertising.” (Stern, Bus. & Prof. C. § 17200 Practice(The Rutter Group 2013) Ch. 4-B, 4:6.)Here, the only advertising alleged is the website page attached as Ex. 1to the Complaint. There is no representation in Ex. 1 regarding the Car’shistory or the condition of the frame that could be considered bait orfalse advertising.Sustain without leave to amend as to:COA 10: Violation of Veh. Code, § 11713.21Pursuant to Veh. Code, § 11713.21, subd. (a)(1), a dealer shall not sell aused vehicle, “without offering the buyer a contract cancellation optionagreement that allows the buyer to return the vehicle withoutcause.” The statute contemplates that the contract cancellation optionagreement will be sold—not given—to the buyer. (Veh. Code §11713.21, subd. (a)(2) [listing maximum prices for cancellationoptions].)Plaintiff attaches Ex. 3 to the Complaint to show that the cancellation

option provided by Defendant did not meet statutory requirements. Ex.3, however, is simply an acknowledgement that Plaintiff had the right toobtain a cancellation option but chose not to.Sustain without leave to amend as to:COA 8: Violation of Veh. Code, § 9993Veh. Code, §§ 9990-9993 apply only to new vehicles. (See Veh. Code, §9991 [“new or previously unregistered motor vehicle”]; Bourgi v. W.Covina Motors, Inc. (2008) 166 Cal.App.4th 1649, 1660 [damagedisclosure law for new vehicles].) Because Plaintiff bought a used car,these statutes do not apply.Sustain without leave to amend as to:COA 12: Declaratory Relief“Declaratory relief operates prospectively to declare future rights, ratherthan to redress past wrongs.” (Cnty. of San Diego v. State (2008) 164Cal.App.4th 580, 607.) The only dispute is whether Defendant hasalready breached the contract. Thus Plaintiff is seeking relief for a pastwrong.Plaintiff may have until 8/19/13 to file a first amended complaint.

Superior Court of the State of CaliforniaCounty of OrangeDEPT C23 TENTATIVE RULINGSJudge Robert J. MossThe court will hear oral argument on all matters at the time noticed for the hearing. If you would preferto submit the matter on your papers without oral argument, please advise the clerk by calling (657) 622-5223. If no appearance is made by either party, the tentative ruling will be the final ruling. Rulings arenormally posted on the Internet by 4:00 p.m. on the day before the hearing.Date: August 16, 2013# Case Name Tentative1. Hout vs. SlaskiPlaintiff attorney’s motion to be relieved as counsel. Noopposition. Motion granted. Moving party to give notice.2009-003013255. Cosgrove vs UnilocCorporation Pty. LTD2012-005863451. Defendant’s motion to amend answer. Moot. The partiesstipulated to permit the filing of an amended answer.2. Defendant’s motion to continue trial. Motion granted. Goodcause is shown by defendants for a continuance of trial toJanuary or February 2014, based on unavailability of defensecounsel due to the trial scheduled for October 15, 2013 in JudgeRodriguez’ department in the case of McLarand Vasquez Emsiek& Partners, Inc. v. The Hartford Financial Services Group, Inc.#2011-463182, with an estimated time of 4-5 weeks, and on thebasis that the case is not yet at issue and parties’ excusedinability to obtain essential testimony, documents, or othermaterial evidence despite diligent efforts prevents them fromproceeding to trial. Plaintiff has failed to show he will beprejudiced by the unavailability of his lead counsel, Ms. Keller, asthere was insufficient evidence that Ms. Keller will be engaged inany trial during the first two months of 2014.3. Defendant’s motion to compel deposition of plaintiffCosgrove. Motion granted. Plaintiff is ordered to appear for anoral deposition at a reasonable time and place to be determinedby defense counsel.Moving party to give notice.7. Tracy vs. EducationManagement Corporation2012-00613917Plaintiff’s motion to compel further responses to request for productionof documents. Motion granted, with limitations. The Court seesthis dispute as one about the relevance of documents requested. Onthis basis, it concludes that requests are reasonably calculated to leadto the discovery of admissible evidence and good cause has been shownfor production. CCP §2031.310(b) However, it also appears to the

Court that some of the requests are overbroad. These requests areNos. 15, 26, 41, 59, 60, and 72. Given the number of EDMCinstitutions and the number of students the Court believes any responseconcerning the entire system and all students is, on the face of it,burdensome. However, the Court does not agree with defendants’position that only evidence related to plaintiff’s work location isrelevant. Therefore, at this point in the litigation, allowing production ofrecords pertaining to institutions located in Southern California(specifically Orange, Los Angeles, Riverside, San Bernardino and SanDiego Counties) and California students is warranted. Production shallbe limited in this way.Further, Request No. 26 necessarily implicates the privacy ofthird parties – students. Therefore, responses to this Request shallredact all personal identifying information.Finally, the Court makes no ruling on claims of attorney-clientprivilege or attorney work-product because it has been given insufficientinformation to do so. When production occurs, if there are documentswithheld on these grounds, defendants are ordered to produce aprivilege log listing each item withheld along with sufficient informationto permit the Court to decide whether a privilege applies.With the foregoing limitations, production of documents is tooccur no later than September 16, 2013.The request for sanctions is denied.Moving party to give notice.8. Nikolaou vs. Honikel2012-006192499. Morrow vs. Brea AutoBody, Inc.2013-00628463Defendant’s motions to compel further responses to forminterrogatories, responses to special interrogatories and request forproductions, and to deem RFA’s admitted. Motions moot. Themotions were filed on 5/6/13. Supplemental responses were filed on7/3/13. With respect to the RFA’s there is a dispute as to whether ornot verification was attached. The ruling on the RFA’s is conditioned onthe plaintiff providing proper verification within 10 days. Plaintiff, whenrepresenting himself, did make an attempt to respond to thediscovery. When counsel was hired, he promptly provided supplementalresponses. The case is not at issue. The request for sanctions isdenied. Moving party to give notice.Plaintiff’s motion to compel compliance with written stipulation forinspection. Motion granted in part and denied in part.First, the parties shall meet and confer and agree upon a neutral partywho shall store the car, keep it safe, and control access to it. If theparties cannot agree on a neutral party by 8/23/13, each party willsubmit three names to the court by 8/26/13 and the court will selectthe neutral party.Second, either party may inspect the car, upon reasonable notice to theneutral and to the opposing party.Third, the inspection may take place either at the storage locationcontrolled by the neutral party, at Brea’s shop, or at a locationcontrolled by Morrow’s expert. However, if an inspection takes longerthan 8 hours on one day, it cannot be stored overnight at Brea’slocation or at Morrow’s location. The car may be stored overnight onlyat a location controlled exclusively by the neutral. The cost oftransporting the vehicle to and from another facility for inspection shallbe borne by the party requesting the other location.

Fourth, the neutral shall be present at each inspection.Fifth, at least one representative of the opposing party shall be presentat each inspection. But the opposing party may have up to a maximumof three representatives present – consisting of one attorney, one carexpert, and Morrow himself (or an officer, owner, or agent of Brea).Sixth, any storage or transportation costs or charges by the neutralshall be shared equally between the parties.Seventh, the parties may modify, alter, or supplement any of theseterms by a stipulation signed by counsel for both parties and by theneutral, and lodged with the court.Plaintiff’s request for monetary sanctions is DENIED.Moving party to give notice.10. Vasquez vs. StearnsLending Inc2013-0063495412. APEKS INVESTMENTGROUP, LLC vs. GRANT2013-00665423Defendant RJ Comm Properties demurrer to plaintiff’s first amendedcomplaint. Demurrer sustained with leave to amend.The 1 st c/a for cancellation of instruments fails to state a cause of actionbecause the allegations do not support cancellation of the Assignment,Notice of Default, and Notice of Sale, as against defendant RJ CommProperties, Inc., who purchased the subject property at the Trustee’sSale, and who is erroneously alleged to be the Trustee.The 2 nd c/a for violation of B&P § 17200 fails to allege thatdefendant RJ Comm Properties, Inc., engaged in an unlawful, unfair orfraudulent business act.The 3 rd c/a for declaratory relief fails to allege the existence of anactual controversy between plaintiff and defendant RJ Comm Properties,Inc. relating to the legal rights and duties of the respective partiesunder a contract or written instrument.The First Amended Complaint is uncertain because it containsconfusing and erroneous allegations.Plaintiff is granted 10 days leave to amend. The request forjudicial notice is granted. Counsel for moving party to give notice.Defendant’s (pro per) demurrer to plaintiff’s complaint. Demurreroverruled. The Court finds the verification to the complaint by theattorney for plaintiffs, valid pursuant to CCP §396a, and further findsservice was properly effectuated under CCP §1162, and that CCP §1013is inapplicable to unlawful detainer actions.Defendant is ordered the file and serve his Answer to the complaintwithin 5 days of the hearing in accordance with CCP §1167.3.

Superior Court of the State of CaliforniaCounty of OrangeDEPT C23 TENTATIVE RULINGSJudge Robert J. MossThe court will hear oral argument on all matters at the time noticed for the hearing. If you would prefer tosubmit the matter on your papers without oral argument, please advise the clerk by calling (657) 622-5223. If no appearance is made by either party, the tentative ruling will be the final ruling. Rulings arenormally posted on the Internet by 4:00 p.m. on the day before the hearing.Date: August 16, 2013# Case Name Tentative1. Hout vs. SlaskiPlaintiff attorney’s motion to be relieved as counsel. Noopposition. Motion granted. Moving party to give notice.2009-003013255. Cosgrove vs UnilocCorporation Pty. LTD2012-005863451. Defendant’s motion to amend answer. Moot. The partiesstipulated to permit the filing of an amended answer.2. Defendant’s motion to continue trial. Motion granted. Goodcause is shown by defendants for a continuance of trial to Januaryor February 2014, based on unavailability of defense counsel dueto the trial scheduled for October 15, 2013 in Judge Rodriguez’department in the case of McLarand Vasquez Emsiek & Partners,Inc. v. The Hartford Financial Services Group, Inc. #2011-463182,with an estimated time of 4-5 weeks, and on the basis that thecase is not yet at issue and parties’ excused inability to obtainessential testimony, documents, or other material evidence despitediligent efforts prevents them from proceeding to trial. Plaintiff hasfailed to show he will be prejudiced by the unavailability of his leadcounsel, Ms. Keller, as there was insufficient evidence that Ms.Keller will be engaged in any trial during the first two months of2014.3. Defendant’s motion to compel deposition of plaintiffCosgrove. Motion granted. Plaintiff is ordered to appear for anoral deposition at a reasonable time and place to be determined bydefense counsel.Moving party to give notice.7. Tracy vs. EducationManagement Corporation2012-00613917Plaintiff’s motion to compel further responses to request for production ofdocuments. Motion granted, with limitations. The Court sees thisdispute as one about the relevance of documents requested. On thisbasis, it concludes that requests are reasonably calculated to lead to thediscovery of admissible evidence and good cause has been shown for

production. CCP §2031.310(b) However, it also appears to the Court thatsome of the requests are overbroad. These requests are Nos. 15, 26, 41,59, 60, and 72. Given the number of EDMC institutions and the numberof students the Court believes any response concerning the entire systemand all students is, on the face of it, burdensome. However, the Courtdoes not agree with defendants’ position that only evidence related toplaintiff’s work location is relevant. Therefore, at this point in thelitigation, allowing production of records pertaining to institutions locatedin Southern California (specifically Orange, Los Angeles, Riverside, SanBernardino and San Diego Counties) and California students iswarranted. Production shall be limited in this way.Further, Request No. 26 necessarily implicates the privacy of thirdparties – students. Therefore, responses to this Request shall redact allpersonal identifying information.Finally, the Court makes no ruling on claims of attorney-clientprivilege or attorney work-product because it has been given insufficientinformation to do so. When production occurs, if there are documentswithheld on these grounds, defendants are ordered to produce a privilegelog listing each item withheld along with sufficient information to permitthe Court to decide whether a privilege applies.With the foregoing limitations, production of documents is to occurno later than September 16, 2013.The request for sanctions is denied.Moving party to give notice.8. Nikolaou vs. Honikel2012-006192499. Morrow vs. Brea AutoBody, Inc.2013-00628463Defendant’s motions to compel further responses to form interrogatories,responses to special interrogatories and request for productions, and todeem RFA’s admitted. Motions moot. The motions were filed on5/6/13. Supplemental responses were filed on 7/3/13. With respect tothe RFA’s there is a dispute as to whether or not verification wasattached. The ruling on the RFA’s is conditioned on the plaintiff providingproper verification within 10 days. Plaintiff, when representing himself,did make an attempt to respond to the discovery. When counsel washired, he promptly provided supplemental responses. The case is not atissue. The request for sanctions is denied. Moving party to give notice.Plaintiff’s motion to compel compliance with written stipulation forinspection. Motion granted in part and denied in part.First, the parties shall meet and confer and agree upon a neutral partywho shall store the car, keep it safe, and control access to it. If theparties cannot agree on a neutral party by 8/23/13, each party willsubmit three names to the court by 8/26/13 and the court will select theneutral party.Second, either party may inspect the car, upon reasonable notice to theneutral and to the opposing party.Third, the inspection may take place either at the storage locationcontrolled by the neutral party, at Brea’s shop, or at a location controlledby Morrow’s expert. However, if an inspection takes longer than 8 hourson one day, it cannot be stored overnight at Brea’s location or atMorrow’s location. The car may be stored overnight only at a locationcontrolled exclusively by the neutral. The cost of transporting the vehicleto and from another facility for inspection shall be borne by the partyrequesting the other location.

Fourth, the neutral shall be present at each inspection.Fifth, at least one representative of the opposing party shall be present ateach inspection. But the opposing party may have up to a maximum ofthree representatives present – consisting of one attorney, one carexpert, and Morrow himself (or an officer, owner, or agent of Brea).Sixth, any storage or transportation costs or charges by the neutral shallbe shared equally between the parties.Seventh, the parties may modify, alter, or supplement any of these termsby a stipulation signed by counsel for both parties and by the neutral, andlodged with the court.Plaintiff’s request for monetary sanctions is DENIED.Moving party to give notice.10. Vasquez vs. StearnsLending Inc2013-0063495412. APEKS INVESTMENTGROUP, LLC vs. GRANT2013-00665423Defendant RJ Comm Properties demurrer to plaintiff’s first amendedcomplaint. Demurrer sustained with leave to amend.The 1 st c/a for cancellation of instruments fails to state a cause of actionbecause the allegations do not support cancellation of the Assignment,Notice of Default, and Notice of Sale, as against defendant RJ CommProperties, Inc., who purchased the subject property at the Trustee’sSale, and who is erroneously alleged to be the Trustee.The 2 nd c/a for violation of B&P § 17200 fails to allege thatdefendant RJ Comm Properties, Inc., engaged in an unlawful, unfair orfraudulent business act.The 3 rd c/a for declaratory relief fails to allege the existence of anactual controversy between plaintiff and defendant RJ Comm Properties,Inc. relating to the legal rights and duties of the respective parties undera contract or written instrument.The First Amended Complaint is uncertain because it containsconfusing and erroneous allegations.Plaintiff is granted 10 days leave to amend. The request forjudicial notice is granted. Counsel for moving party to give notice.Defendant’s (pro per) demurrer to plaintiff’s complaint. Demurreroverruled. The Court finds the verification to the complaint by theattorney for plaintiffs, valid pursuant to CCP §396a, and further findsservice was properly effectuated under CCP §1162, and that CCP §1013 isinapplicable to unlawful detainer actions.Defendant is ordered the file and serve his Answer to the complaint within5 days of the hearing in accordance with CCP §1167.3.

Superior Court of the State of CaliforniaCounty of OrangeDEPT C23 TENTATIVE RULINGSJudge Robert J. MossThe court will hear oral argument on all matters at the time noticed for the hearing. If you would preferto submit the matter on your papers without oral argument, please advise the clerk by calling (657) 622-5223. If no appearance is made by either party, the tentative ruling will be the final ruling. Rulings arenormally posted on the Internet by 4:00 p.m. on the day before the hearing.Date: August 30, 2013# Case Name Tentative2. Schulte vs. Golden Coast 1. Defendant’s demurrer to plaintiff’s second amendedSenior Living, Inc.complaint. Demurrer overruled in part and sustained inpart without leave to amend. This is plaintiff’s third attempt2012-00585675to properly plead this case. While still far from a modelpleading, the demurrer is overruled with respect to the first(elder abuse) and fifth (negligence) causes of action. Thedemurrer is sustained with respect to all other causes ofaction. Fraud is still not pled with sufficientparticularity. Plaintiff fails to allege who said what to whom,when and where. In addition, plaintiff has failed to allegesufficient facts to hold the employer responsible formisrepresentations made by an employee. As for breach offiduciary duty, plaintiff has failed to cite the court to anyauthority that a fiduciary duty exists between a nursing homeand its clients. With respect to IIED and NIED, plaintiff hascombined these two separate torts in one cause of action failedto set forth the elements of either. Besides, damages foremotional distress are available if plaintiff succeeds on the elderabuse or negligence causes of action. As regards the “Tort perse” cause of action and the cause of action based on P.C. § 368,the court is not familiar with the existence of such causes ofaction and plaintiff does not cite any authority for the propositionthat such a cause of action exists. Finally, as for battery,plaintiffs have failed to allege an unconsented, wrongfultouching. Defendant may have until 9/6/13 to file itsanswer. Moving party to give notice.2. CMC: Counsel to appear to select trial date.3. Schessler vs. Delker2012-005950295. Johns vs. Fuhrmann2012-00621231Plaintiff’s motion to set aside dismissal. No opposition. Motiongranted. The Plaintiff (incarcerated pro per) has established that hedid not believe he needed to file a Notice of Non-Appearance for the5/28/13 hearing because he believed that such hearing would be takenoff calendar as a result of his filing the ex parte Application on5/20/13. Such mistake or inadvertent error is sufficient to support anorder setting aside the dismissal entered on 5/28/13 due to Plaintiff’sfailure to appear at the hearing. CCP 473(b). The Petitioner is granted asixty (60) day extension to serve the summons and complaint upon alldefendants including Diana Delker and file Proofs of Service,respectively. Clerk to give notice.Defendant’s motions to deem RFA’s admitted. No opposition. Motionsgranted. Sanctions are awarded to defendant in the amount of $860against each plaintiff. Moving party to give notice.

6. Navi vs. RDH GroupDevelopment Corporation2013-006350661. Defendant County of Orange’s demurrer to first amendedcomplaint. Demurrer overruled in part and sustained inpart, with leave to amend. The demurrer to the first fourcauses of action is overruled as these causes of action are notdirected against the County. Plaintiff has admitted as much inhis opposition. The demurrer to the fifth cause of action forinjunctive relief is sustained with leave to amend. The FACrequests the court to order the County to “act affirmatively” andto “fulfill its governmental duties.” Such allegations areinsufficient to support a request for injunctive relief. Plaintiffsmay have until 9/9/13 to file a second amendedcomplaint. Moving party to give notice.2. Defendant County of Orange’s motion to strike portions of thefirst amended complaint. Motion moot. See discussionabove. Moving party to give notice.

http://www.occourts.org/tentativerulings/rmossrulings.htmPage 1 of 39/5/2013Superior Court of the State of CaliforniaCounty of OrangeDEPT C23 TENTATIVE RULINGSJudge Robert J. MossThe court will hear oral argument on all matters at the time noticed for the hearing. Ifyou would prefer to submit the matter on your papers without oral argument, pleaseadvise the clerk by calling (657) 622-5223. If no appearance is made by either party, thetentative ruling will be the final ruling. Rulings are normally posted on the Internet by4:00 p.m. on the day before the hearing.Date: August 30, 2013# Case Name Tentative1. Golden EagleInsurance Corporationvs. Blake AirConditioning &Service Co Inc.[Continued to 9/27/13.]2011-005341322. Schulte vs. GoldenCoast Senior Living,Inc.2012-005856751. Defendant’s demurrer to plaintiff’s second amendedcomplaint. Demurrer overruled in part andsustained in part without leave to amend. Thisis plaintiff’s third attempt to properly plead this case.While still far from a model pleading, the demurrer isoverruled with respect to the first (elder abuse) andfifth (negligence) causes of action. The demurrer issustained with respect to all other causes of action.Fraud is still not pled with sufficient particularity.Plaintiff fails to allege who said what to whom, whenand where. In addition, plaintiff has failed to allegesufficient facts to hold the employer responsible formisrepresentations made by an employee. As forbreach of fiduciary duty, plaintiff has failed to cite thecourt to any authority that a fiduciary duty existsbetween a nursing home and its clients. With respectto IIED and NIED, plaintiff has combined these twoseparate torts in one cause of action failed to setforth the elements of either. Besides, damages foremotional distress are available if plaintiff succeedson the elder abuse or negligence causes of action.As regards the “Tort per se” cause of action and thecause of action based on P.C. § 368, the court is not

http://www.occourts.org/tentativerulings/rmossrulings.htmPage 2 of 39/5/2013familiar with the existence of such causes of actionand plaintiff does not cite any authority for theproposition that such a cause of action exists.Finally, as for battery, plaintiffs have failed to allegean unconsented, wrongful touching. Defendant mayhave until 9/6/13 to file its answer. Moving party togive notice.2. CMC: Counsel to appear to select trial date.3. Schessler vs. Delker2012-005950294. CH Bus Sales Inc. vs.Caterpillar Inc.Plaintiff’s motion to set aside dismissal. No opposition.Motion granted. The Plaintiff (incarcerated pro per) hasestablished that he did not believe he needed to file a Noticeof Non-Appearance for the 5/28/13 hearing because hebelieved that such hearing would be taken off calendar as aresult of his filing the ex parte Application on 5/20/13. Suchmistake or inadvertent error is sufficient to support an ordersetting aside the dismissal entered on 5/28/13 due toPlaintiff’s failure to appear at the hearing. CCP 473(b). ThePetitioner is granted a sixty (60) day extension to serve thesummons and complaint upon all defendants including DianaDelker and file Proofs of Service, respectively. Clerk to givenotice.[Off calendar.]2012-006104215. Johns vs. Fuhrmann2012-006212316. Navi vs. RDH GroupDevelopmentCorporation2013-00635066Defendant’s motions to deem RFA’s admitted. Noopposition. Motions granted. Sanctions are awarded todefendant in the amount of $860 against each plaintiff.Moving party to give notice.1. Defendant County of Orange’s demurrer to firstamended complaint. Demurrer overruled in partand sustained in part, with leave to amend. Thedemurrer to the first four causes of action isoverruled as these causes of action are not directedagainst the County. Plaintiff has admitted as much inhis opposition. The demurrer to the fifth cause ofaction for injunctive relief is sustained with leave toamend. The FAC requests the court to order theCounty to “act affirmatively” and to “fulfill itsgovernmental duties.” Such allegations areinsufficient to support a request for injunctive relief.Plaintiffs may have until 9/9/13 to file a secondamended complaint. Moving party to give notice.2. Defendant County of Orange’s motion to strikeportions of the first amended complaint. Motionmoot. See discussion above. Moving party to givenotice.

http://www.occourts.org/tentativerulings/rmossrulings.htmPage 3 of 39/5/20137.Jarosch vs. Allergan,Inc.2013-00646924Multiple applications to appear in pro hac vice. Noopposition. Applications granted. Pursuant to the jointrequest of counsel the matter is hereby transferred toJudge Ronald Bauer, Department CX 103 for all furtherproceedings. Moving parties to give notice.

http://www.occourts.org/tentativerulings/wmonroerulings.htmPage 1 of 29/13/2013Department C16 Law & Motion CalendarDate: September 10, 2013The Court will hear oral argument on all matters at the time noticed for the hearing. If you wouldprefer to submit the matter on your papers without oral argument, please advise the clerk by calling(657) 622-5216. Court Call appearances are permitted. Court Call must be contacted to appear byphone. Call 1-888-88Court for more details. The court will not entertain a request forcontinuance nor filing of further documents once the ruling has been posted.http://www.occourts.org/directory/civil/tentative-rulingsThe court having taken the matter undersubmission now rules as follows:2 2012-00580763Traxelvs.ChapinNone of the cases were precisely on point since they do notdeal with discovery sanctions, I think the cases finding 128.5sanctions and anti-SLAPP fees can be awarded after dismissalwhen the motion was filed before dismissal are applicable hereand I conclude that the court does have jurisdiction. FrankAnnino & Sons Contr. V McArthur Restaurants, Inc. (1989) 215Cal. App. 3d 353, 357: Eichenbaum v Alon (2003) 106 Cal.App. 4 th 967. S.B. Beach Properties v Berti (2006) 39 Cal. 4 th374, 380.DEFENDANT MARTIN RAYMUNDO’S REQUEST FORSANCTIONS IN CONJUNCTION WITH HIS PREVIOUSLYFILED MOTION TO COMPEL FURTHER RESPONSES TOSPECIAL INTERROGATORIES IS GRANTED.DEFENDANT IS AWARDED SANCTIONS IN THE AMOUNTOF $2,441.25 AGAINST PLAINTIFF ROBERT TRAXEL ANDHIS COUNSEL.TENTATIVE RULING FROM 9/10/13Defendant Martin Raymundo’s Motion to Compel FurtherResponses to Special Interrogatories & Request forSanctionsMotion to Compel Further Responses to SpecialInterrogatories is off CalendarRequest for Sanctions remainsPlaintiff seeks to justify his stated objection to the 133 specialinterrogatories (and to forestall sanctions) by pointing to theprior written discovery propounded by Chapin, to which Plaintiffresponded, and 3 days of deposition. Plaintiff does not explainthe substance of the prior written discovery or his depositiontestimony, but contends that Raymundo obtained all thediscovery he needs through those vehicles. Accordingly, the133 special interrogatories he served on Plaintiff were, Plaintiffcontends, harassing and unduly burdensome. Plaintiff did notmove for a protective order, however.

http://www.occourts.org/tentativerulings/wmonroerulings.htmPage 2 of 29/13/2013By serving his responses after the deadline, Plaintiff waived hisobjections – including the one he stands on. A deposition isnot a substitute for responses to interrogatories.Interrogatories and depositions serve different discoverypurposes. An interrogatory may seek legal contentions,whereas deposition question may not.Counsel to address issue as to whether or not this Court hasjurisdiction.

Superior Court of the State of CaliforniaCounty of OrangeDEPT C23 TENTATIVE RULINGSJudge Robert J. MossThe court will hear oral argument on all matters at the time noticed for the hearing. If you would preferto submit the matter on your papers without oral argument, please advise the clerk by calling (657) 622-5223. If no appearance is made by either party, the tentative ruling will be the final ruling. Rulings arenormally posted on the Internet by 4:00 p.m. on the day before the hearing.Date: September 20, 2013# Case Name Tentative2. Pickett vs. Wells Fargo &Company2012-00546916Monroe defendant’s motion for determination of good faithsettlement. Motion granted. Moving parties and responding partieswere co-guarantees on a loan from Wells secured by commercial realproperty. Wells, the lender, has foreclosed on the property and isseeking a deficiency judgment against the guarantors. Wells seeksdamages of $2.2 million. Moving party has settled with Wells for$210,000.00. While this sum is less than 10% of the amount claimed,the court cannot find that it is “out of the ball park.” Both moving partyand responding party claim that the lender engaged in fraud and otherwrongful conduct is securing a swap agreement without disclosing theconsequences of such an arrangement. The court does not agree withresponding party that the guarantors would share potential liability toWells in proportion to their respective interests in the GS1-4 LLC or thatmoving party was the cause of the default because it could not pay therent. In addition, it was responding party who negotiated the loan withWells and agreed to a $700,000 early termination fee that was notdisclosed to moving party. Moreover, there is no suggestion of fraud,collusion or other tortious conduct between the settling parties. Finally,it is expected that a settling defendant will pay less in settlement than itwould if found liable in trial.The responding party’s request to continue the hearing on this motionto conduct discovery is denied.Moving party to give notice.3. Nguyen vs. O.C.Imports/LR DIV, LLC2012-005745664. Goudey vs. SCMEMortgage Bankers, Inc2012-00575895Plaintiffs’ motions to compel further responses to RFD’s. Motionsgranted. Sanctions are awarded to plaintiffs against defendantSequoia in the sum of $690.00 and against defendant Brian Aquafrescain the sum of $1590.00. Defendants are ordered to produce copies ofdocuments requested along with a properly verified response by10/4/13. If defendants contend any of the requested documents areprivileged, defendants to prepare a privilege log to be served along withthe further responses. Moving party to give notice.1. Demurrer to first amended complaint by defendants Aurora,MERS, and Nationstar. Demurrer sustained in part withoutleave and in part with leave to amend. The demurrer issustained without leave to amend to causes of action 1, 2, 4, 5,6, and 8. Demurrer sustained with leave to amend as to the 3 rdand 9 th causes of action.Regarding the fraud count, although not argued by Defendantshere, Defendant Emery points out in Motion 3, infra, that theFAC alleges monthly payments increased in 2009 and Plaintiff

was required to apply for a loan modification with DefendantAurora. (FAC, 14.) Plaintiff received communications fromAurora no later than March 2009. (Ibid.) As a result, Plaintiffshould have known about the problem by March 2009. Thus, theaction was filed 06/11/12—after the 3-year limitations period forthe first cause of action for fraud had run. (Code Civ. Proc.,§ 338, subd. (d).)Contrary to Plaintiff’s position, “[i]t is irrelevant that the plaintiffis ignorant of his legal remedy or the legal theories underlyinghis cause of action. Thus, if one has suffered appreciable harmand knows or suspects that professional blundering is its cause,the fact that an attorney has not yet advised him does notpostpone commencement of the limitations period.” (Gutierrezv. Mofid (1985) 39 Cal.3d 892, 898.)Finally, the statute of limitations is four years for contract claims(Code Civ. Proc., § 337) and Bus. & Prof. Code, §§ 17200 and17500 (Bus. & Prof. Code, § 17208). The discovery rule wouldthus extend the limitations period to March 2013 based on theMarch 2009 discovery. The four-year period applies as well fordeclaratory relief and breach of fiduciary duty claims when thenature of the underlying cause of action is on contract. (SeeHensler v. City of Glendale (1994) 8 Cal.4th 1, 22–23[declaratory relief]; City of Vista v. Robert Thomas Sec., Inc.(2000) 84 Cal.App.4th 882, 889 [breach of fiduciaryduty].) Thus, for pleading purposes, the second, third, fifth, andseventh causes of action are not time barred.Regarding the cancellation of contract, breach of impliedcovenant and declaratory relief counts, Defendants are notparties to the loan contractRegarding the 17200 claim, The four-year statute of limitationsfor Bus. & Prof. Code, §§ 17200 and 17500 controls, even if the“borrowed” law being sued upon provides a shorter limitationsperiod. And the delayed discovery rule applies to these Bus. &Prof. Code sections. (Aryeh v. Canon Business Solutions, Inc.(2013) 55 Cal.4th 1185, 1196.) As a consequence, based on theFAC allegations, the limitations period on the third cause ofaction has not run, even though it is based on allegations offraud which are time barred.Notwithstanding the above, Plaintiff fails to plead fraud withrequisite specificity. (Lazar v. Superior Court (1996) 12 Cal.4th631, 645.)Regarding the conspiracy and equitable estoppel claims, they arenot causes of action. Civil conspiracy is a legal doctrine andequitable estoppel is a defense.Finally, as to the cause of action for lack of standing, Glaski v.Bank if America (2013) 218 Cal.App.4th 1079, 1083 provides, "aborrower may challenge the securitized trust's chain ofownership by alleging the attempts to transfer the deed of trustto the securitized trust (which was formed under New York law)occurred after the closing date. Transfers that violate the termsof the trust instrument are void under New York trust law, andborrowers have standing to challenge void assignments of theirloans even though they are not a party to, or a third partybeneficiary of, the assignment agreement."

Here, the FAC does not allege Plaintiff's loan was transferredoutside the closing of a securitized trust closing date or identifywhich law renders such a transfer void.The request for judicial notice is granted. Plaintiff may haveuntil 9/30/12 to file a second amended complaint. Moving partyto give notice.2. Motion to strike portions of first amended complaint bydefendants Aurora, MERS, and Nationstar (punitivedamages.) Motion moot based on the court’s ruling on thedemurrer. Moving party to give notice.3. Demurrer to first amended complaint by defendantEmery. Demurrer sustained in part with leave to amendand in part without leave to amend. The demurrer issustained without leave to amend as to causes of action 1, 2, 5,6, and 8. The demurrer is sustained with leave to amend as tocauses of action 3 and 7. See discussion above. Also, plaintiffcites no authority for the proposition that defendant Emery owesa fiduciary duty to plaintiff.The request for judicial notice is granted. Plaintiff may haveuntil 9/30/12 to file a second amended complaint. Moving partyto give notice.4. Motion to strike portions of first amended complaint bydefendant Emery. Motion moot base on court’s ruling on thedemurrer. Moving party to give notice.5. M3 Federal ContractPractice Group vs.International CustomEnterprises, Inc2012-006036596. American Express Bank,FSB, Federal Savings Bankvs. Hooper2012-006174598. Carter vs. Fannie Mae2013-00647896Cross-defendants’ demurrers to first amended crosscomplaint.Demurrers overruled. As indicated by the prior ruling onthe demurrer, Cross-complainant needed only identify the person orpersons to whom the misrepresentations were made and state withgreater specificity upon what portions of the M3 website it relied. Thecourt previously found that the remainder of these causes of action wassufficiently alleged. The amended pleading now provides theinformation required by the court’s prior ruling. The Cross Complainanthas identified the person to whom the misrepresentations were made -Tom Tonelli. Furthermore, the Cross Complainant has alleged withgreater specificity the portions of the M3 website it relied. Crossdefendantsmay have until 9/30/13 to file answers. Moving party togive notice.Plaintiff’s motion for summary judgment. No opposition. Motiongranted. Moving party to give notice and prepare judgment.1. Application by Bernabei to be admitted in pro hac vice. Noopposition. Application granted. Moving party to give notice.2. Defendant’s motion to compel arbitration. Motion denied. TheDefendant has not established that the Plaintiff and Defendantentered into an arbitration agreement. Specifically, theDefendant has not established that the Arbitration Agreementwas actually included with the August 18, 2008 EmploymentOffer. Furthermore, the Defendant has not established that thePlaintiff actually accepted the August 18, 2008 EmploymentOffer. To the contrary, the plaintiff has presented evidence that

she did not receive the arbitration agreement attached to anyoffer and did not accept the August 18, 2008 offer. The plaintiffhas presented evidence which establishes that the August 18,2008 offer was rescinded and the Plaintiff’s employment was aresult of a subsequent offer made on September 5,2008. There is no evidence to support a finding that theSeptember 5, 2008 offer included an arbitrationprovision. Moving party to give notice.9. Douglas G. Holte, Trusteeof the Holte Living Trustdated September 24, 1993vs. MSSK Ventures, LLC2013-00649154Defendant’s demurrer to plaintiff’s complaint. Demurrer sustained inpart and overruled in part. The demurrer to the 1 st cause of actionfor Quiet Title and 3 rd cause of action for Trespass is OVERRULED. Theface of the Complaint and the judicially noticeable documents do notclearly and affirmatively show that the statute of limitations has run. Inaddition, Plaintiff has alleged sufficient facts establishing thatDefendant’s entry onto Plaintiff’s property was wrongful and/orunlawful. Further, Defendant has failed to sufficiently establish that, asa matter of law, its entry was not wrongful and/or unlawful.The demurrer to the 2 nd cause of action for Nuisance is OVERRULED.The face of the Complaint and the judicially noticeable documents donot clearly and affirmatively show that the statute of limitations hasrun. In addition, Defendant has failed to meet its initial burden ofestablishing that, as a matter of law, the facts alleged in the Complaintare insufficient to establish a “substantial or unreasonable interference”with the use and enjoyment of Plaintiff’s property.The demurrer to the 4 th cause of action for declaratory relief isSUSTAINED, without leave to amend. This claim has crystallized intoother causes of action asserted in the Complaint, and is thereforeimproper.Defendant’s RJN: This Court GRANTS judicial notice of the uncertifiedcopies of the Easement (Exhibit A) and the Trustee’s Deed Upon Salerecorded against the property (Exhibit B). (Evid. Code §452(h).) However, the Court will not take judicial notice of hearsaystatements contained therein. The court only takes notice that thedocuments were filed. The court cannot take judicial notice of the truthof the matter contained in the recorded title documents unless it isindisputably true. That is not the case here. (See Weil & Brown CivilProcedure Before Trial § 7:15 citing Fremont Indemnity Co. v. FremontGene. Corp. (2007) 148 Cal. App. 4th 97,113; see also Arce v. KaiserFoundation Health Plan, Inc. (2010) 181 Cal. App. 4th 471, 482.)Moving party is to give notice.

# Case Name Tentative1. Airlift Helicopter ServiceInc. v Federal InsuranceCompany2011-00454122Defendant’s motion to compel responses to written discovery. Motionsgranted in part and denied in part. The motion to compel financialrecords, including tax returns (RFP Nos. 8, 22, and 23) is denied. Themotion to compel compliance with all other discovery at issue in thismotion is granted. Specifically, the Plaintiff is ordered to produce allnon-privileged documents in possession, custody, or control of Airlift'sformer counsel (RFP Nos. 12, 13, 18, 24, 26, 38, and 40); andcorrespondence between Airlift and Chartis (RFP Nos. 14 and 39) by10/7/13. The Plaintiff is ordered to provide further responses to SpecialInterrogatories Nos. 64 through 140 by 10/7/13. Moving party to givenotice.2. Pudles v Robertshaw2011-00515856Defendant Robertshaw’s motion for summary judgment. Matterstayed. All parties are ordered to appear to discuss the status of theconsolidated actions and forthcoming scheduled matters on calendar.The consolidated actions of Pudles v. Robertshaw, #2011-00515856and Answernet v. Bilrob, LLC #2012-00583757 are stayed pursuant tothe Court’s Minute Order of May 3, 2013, and the signed Order of theCourt filed May 16, 2013, which are not inconsistent with each other. Astay ordered in a consolidated action for trial, stays the entire action,otherwise, staying only one of the matters results in a de factoseverance of the consolidation.Based on this Court’s prior findings in ordering these actionsconsolidated and staying the consolidated actions, that collateral issuesin the Federal case may affect the issues in these consolidated actions,the three pending Motions for Summary Judgment or AlternativelySummary Adjudication will be continued approximately 120 days. Thescheduled trial date of 11/18/13 will be continued to a dated toaccommodate the pending motions which will be set at thehearing. Moving party to give notice.5. Hasso v Griffith2012-00572713Plaintiff’s motions to compel compliance with responses to RFP and tocompel further responses to RFP. Motions granted.Plaintiff’s motion to compel further responses to requests 1-8 and 12-15is granted, as the responses do not fully comply with CCP 2031.230’srequirement that the responding party “set forth the name and addressof any natural person or organization known or believed by that party tohave possession, custody, or control of that item or category of item.”Defendant is obligated to conduct a diligent search, includingidentification of a person, such as a former manager or accountant, whowould have custody of the records sought. The bare response providedis inadequate.Plaintiff’s motion to compel compliance with responses to productionrequests 9-11 is granted as modified. If the documents are inpossession of any third-party and accessible to defendant, such asthose filed with the Secretary of State or in the possession of anaccountant, he is obligated to produce them. In the event they are heldby other third-parties, defendant is to provide the parties’ names andaddresses.Sanctions are awarded to plaintiff and against defendant in the sum of$2,180.00. Moving party to give notice.6. Miller v OC Register 1. Defendant’s motion to quash service of summons. No

2012-00582668opposition. Motion granted.2. CMC: Continued to 12/2/13 at 8:30 AM in Department C23.Clerk to give notice.7. 1. Dugoncevic vGolden RainFoundation2012-006051771. Defendant’s demurrer to plaintiff’s first amendedcomplaint. Demurrer overruled. Defendant may have until10/7/13 to file an answer. Moving party to give notice.2. CMC: Counsel to appear to select trial date.10. Lombardo v GuardianClient Services2013-00630559Plaintiff’s motions to compel responses to written discovery and todeem RFA’s admitted. Motions granted in part and moot in part.The motions to compel responses to written discovery are moot asdefendant filed responses after the motions were filed.The court grants Plaintiff’s motion to deem admitted the genuineness ofdocuments and truth of matters specified in his first set of requests foradmission. (CCP 2033.280 (a).)The court declines to consider Defendant’s Opposition because it wasfiled 5 court days late, without leave of court. Even if the court were toconsider it, the court would find that the Opposition fails to demonstratethat Defendant (i) subsequently served a response that is in substantialcompliance with CCP 2033.210, 2033.220, and 2033.230, or that (ii)Defendant’s failure to serve a timely response was the result ofmistake, inadvertence, or excusable neglect.Plaintiff’s request for $3,780 in monetary sanctions isexcessive. Defendant is ordered to pay $1,200 in monetary sanctionsto Plaintiff. Moving party to give notice.11. Mortgagedocs.com vNational Real EstateInformation ServicesDefense counsel’s motion to be relieved. No opposition. Motiongranted. Moving party to give notice.2013-0063352512. Adams v Manorcare2013-00642442Plaintiff’s motions to compel further responses to writtendiscovery. Motions granted in part, denied in part and continuedin part until 10/25/13 at 10:00 AM in this department.1. Motion re: Form InterrogatoriesThe court grants in part the motion to compel further responses andcontinues the hearing with respect to Defendant’s privilege objectionto 10/25/13.GRANT: FI No. 12.3 and 12.6First, even assuming the work product privilege applies, Defendant isstill obligated to answer to the extent possible. (Code Civ. Proc.,§ 2030,220, subd. (b).) At minimum, Defendant must to state whetherit obtained any non-privileged statements.Second, Defendant has failed to make a preliminary showing in support

of the asserted privilege.“[W]itness statements obtained as a result of an interview conducted byan attorney, or by an attorney’s agent at the attorney’s behest,constitute work product protected by section 2018.030.” (Coito v.Superior Court (2012) 54 Cal.4th 480, 494.) But “a statementindependently prepared by a witness does not become protected workproduct simply upon its transmission to an attorney.” (Ibid.)“An attorney resisting discovery of a witness statement based onabsolute privilege must make a preliminary or foundational showingthat disclosure would reveal his or her ‘impressions, conclusions,opinions, or legal research or theories.’ (§ 2018.030, subd. (a).) Uponan adequate showing, the trial court should then determine, by makingan in camera inspection if necessary, whether absolute work productprotection applies to some or all of the material.” (Id. at 495-496.)The matter is continued to 10/25/13, the date of the hearing onPlaintiff’s motion to compel deposition. Defendant is to file and servepapers, not to exceed 5 pages, to make a preliminary showing thatdisclosure would reveal its counsel’s protected work product. Plaintiffmay file and serve any reply, not to exceed 5 pages, to rebut same.2. Motion re: Special InterrogatoriesThe court (1) sustains Plaintiff’s objections to the SchroepferDeclaration; (2) denies Defendant’s motion to strike the ChesanowDeclaration; (3) grants the motion to compel further responses; and(4) grants the request for monetary sanctions of $2,985.In its opposition, Defendant moves to strike Plaintiff’s expert declarationof Sheila Chesanow, RN, on the ground that Defendant is entitled totake her deposition before the hearing on this motion and Plaintiff hasyet to produce her. The motion is denied. Defendant did not providethe requisite 16-court-day notice, as argued by Plaintiff. Furthermore,if Defendant wished to take the expert’s declaration before thesemotions were heard, it could have sought to continue the hearing onthese motions. It did not.Plaintiff’s objections to paragraphs 7-11 of the declaration of MarkSchroepfer are sustained. Declarant’s belief on what information isprotected under the HIPAA privacy rule is improper as a legalconclusion.MOOT or GRANT: SI No. 18-19, 23-24, 27, 29, 33, 37, and 40In its opposition separate statement, Defendant states that, after themotion was filed, it has provided Plaintiff with the requested homeaddresses and telephone numbers. (Opp. Separate Statement, p. 3:19-20.) In the reply, Plaintiff insists Defendant has not done so. Eitherway, Defendant has agreed to provide the information. As to theseinterrogatories, the motion is moot if Defendant shows proof ofcompliance at the hearing. Otherwise, the motion is granted as tothese interrogatories, in light of Defendant’s agreement to comply.GRANT: SI No. 43In its opposition, Defendant contends it properly responded, under CodeCiv. Proc., § 2030.230, by providing Sadako’s medical records and theServices Agreement in lieu of creating a compilation of Defendant’s

services. Defendant’s response to this interrogatory, however, onlyrefers to the medical records.Defendant shall provide a further response stating that theaforementioned Services Agreement encompasses all available servicesoffered by Defendant and either has or will be produced. In addition,the further response must comply with Code Civ. Proc., § 2030.230, asthe current answer does not.GRANT: SI Nos. 45-46The discovery sought is relevant to obtain the identity of potentialwitnesses, but the serious privacy concerns raised by such disclosureare obvious. To address these privacy concerns, Plaintiff has proposedthat Defendant send out a Colonial Life letter which requires theresident to opt-in if he or she wishes to be contacted and sharepersonal contact information with the parties’ counsel. (PioneerElectronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 3741-375, discussing Colonial Life & Accident Ins. Co. v. Superior Court(1982) 31 Cal.3d 785.) The letter sufficiently addresses any privacyconcerns because it requires the individual to affirmatively consent tothe disclosure. For this reason, the court should grant Plaintiff’s requestthat Defendant send out the Colonial Life letters and response card, asset forth in Exs. 19-20.GRANT: SI No. 48Defendant objected that this information is equally accessible to Plaintiffand on relevance grounds. But Defendant did not defend its position inthe meet-and-confer process (see Motion 1/2, Wallace Decl., Exs. 8, 13)or in the opposition. It thus has conceded the merits of Plaintiff’sposition. (People v. Stanley (1995) 10 Cal.4th 764, 793; see alsoKurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 867 [trial courtmay find in favor of moving party based on lack of opposing argumentand authorities].) Moreover, the information is relevant to Plaintiff’sallegation that Defendant was previously sued for similar violations andstill failed to correct these deficiencies.GRANT: Monetary Sanctions against Defendant and its counselSanctions are appropriate against Defendant and its counsel for failureto meet and confer and for opposing the motion without substantialjustification. First, Defendant did not satisfy its obligation to meet andconfer in good faith on a number of the issues. Defendant’s argumentsin opposition to the form interrogatories were never raised inDefendant’s meet-and-confer letters. Nor did Defendant attempt todefend its objections to SI Nos. 43 and 48. Second, Defendant did nothave substantial justification for its refusal to further respond to theinterrogatories.3. Motion re: Requests for Production of DocumentsThe court (1) grants in part and denies in part the motion to compelfurther responses and production of documents; and (2) grants therequest for monetary sanctions in the reduced amount of $1,125.GRANT: RFP No. 2Plaintiff seeks to inspect original documents because portions of thecopies are cut off and it is important to determine if any erasures were

made on the documents. Plaintiff also has the right under 42 CFR §483.10(b)(2) to access all her records within 24 hours of therequest. Defendant argues it has provided a complete response andproduced responsive documents (Opposition, p. 2:17-19), but does notaddress the request to inspect the originals. Because it appears thatproduction of copies are inadequate, Plaintiff will be permitted to inspectthe originals within 5 court days of the notice of this order.GRANT: RFP No. 6Defendant limited document production to the time period when Sadakowas in residency (about a week) and produced only a programattendance sheet. Defendant argues it has provided a completeresponse and produced responsive documents. (Opposition, p. 2:17-19.) Relying on the expert declaration of Chesanow, Plaintiff arguesthere should be more documents produced, such as calendar of trainingevents, handout materials, and program evaluations.Defendant’s limitation of the time period for these documents isunreasonable. Plaintiff alleges Defendant failed to train its staff. Tosupport the claim, Plaintiff seeks documents relating to staff training fora 6-month time period. It is not necessary for the court to consider theexpert declaration to conclude this information is relevant and thetimeframe reasonable. As for Plaintiff’s contention that Defendantshould be made to produce documents other than sign-in sheets, thereis no indication that such documents exist. It is possible that Defendantdoes not possess any other documents relating to its staff training,perhaps, because no other documents were created for the training.DENY: RFP No. 7Although Defendant did not raise this objection before its opposition, itnow argues the request is incomplete because it asks for all documentswherein any person said anything to anyone at any time before04/23/13. Defendant’s argument has merit. As worded, the request isoverbroad in scope and time.DENY: RFP No. 9Defendant argues it has provided a complete response and produceddocuments to this request. (Opposition, p. 2:17-19.) Plaintiff arguesDefendant should have more responsive documents, but there is noindication that any other documents exist.GRANT: RFP No. 17Contrary to Defendant’s objections of relevance and overbreadth, whichare not addressed in the opposition, the request is relevant to whetherDefendant was on notice of any substandard care provided by itsemployees and the 6-month timeframe is not overly broad.GRANT: RFP No. 18, 20-22Although Defendant objected on privacy grounds, the requestsspecifically state Plaintiff can redact the names of all employees fromthe initial production. As discussed above in RFP no. 17, Defendant’srelevance and overbreadth objections are without merit.In the opposition, Defendant argues it has provided a completeresponse and produced responsive documents. (Opposition, p. 2:17-19.) However, the responses to RFP no. 18 and 21 areambiguous. They refer the reader to Defendant’s response to RFP no.

19, which states that responsive documents do not exist. If that isindeed the case with RFP no 18 and 21, Defendant must clearly stateso.GRANT: RFP No. 23Defendant objected on the grounds of privacy and relevance. But inopposition Defendant argues it has provided a complete response andproduced responsive documents. (Opposition, p. 2:17-19.) Defendantmust provide a further response to reflect that it has complied andproduced responsive documents.GRANT: RFP No. 32-33Defendant argues it has provided a complete response and produceddocuments to RFP no. 32. (Opposition, p. 2:17-19.) Defendant mustprovide a further response to reflect that it has complied and producedresponsive documents.As for RFP no. 33, Plaintiff correctly contends that such reports are notprivileged because Defendant is required under 22 CCR § 72541 tocreate and retain such reports for review by the local health officer. Tothe extent that Defendant has created reports pursuant to 22 CCR §72641, it must produce them.GRANT: Monetary Sanctions against Defendant and its counselSanctions are appropriate against Defendant and its counsel becausethere is no evidence of Defendant’s position on these issues beforePlaintiff filed this motion. The court cannot evaluate whether Defendantsufficiently defended its objections and responses in order to avoidPlaintiff filing this motion. Defense counsel’s declaration does notexplain his efforts at informal resolution, nor does he attach any meetand-conferletters addressing the issues raised in the motion.Deadline For Compliance And Service Of NoticeMoving Party is ordered to serve notice of this order. The furtherresponses and document production ordered above are to be servedwithin 20 days after service of notice of this order.13. Parsons v InterinsuranceExchange2013-006483931. Defendant’s demurrer to plaintiff’s complaint. Demurrersustained with leave to amend. The complaint fails to setforth the terms of the insurance contract defendant is alleged tohave breached and, alternatively, has failed to attached a copiesof the policies as exhibits to the complaint. Plaintiff may haveuntil 10/7/13 to file a first amended complaint.2. Defendant’s motion to strike portions of plaintiff’s complaint(punitive damages.) Motion moot in light of the court’s rulingon the demurrer.Moving party to give notice.

14. Villa Balboa v Hacker2011-00450526Plaintiff’s motion to enforce settlement. Motion denied. The PlaintiffAssociation has not established that they are entitled to judgmentpursuant to the settlement agreement. First, the Plaintiff has notestablished that the settlement agreement has been breached. Second,the Plaintiff has not established what judgment should be entered if ithad been breached.By the terms of the August 27, 2012 Settlement Agreement atparagraph 26 subsection b page 13 the association may file a noticedmotion for entry of judgment pursuant to stipulation if Hacker breachesthe stipulation and fails to cure her breach. The Plaintiff has presentedno evidence that the Defendant Hacker breached and failed to cure herbreach.At best, the Plaintiff has established that the Defendant breachedcertain terms of the agreement (but that is not even clear). Movingparty to give notice.15. Lund v Alzheimer’s FamilyService Center2013-006605541. Defendant’s demurrer to plaintiff’s complaint. Demurreroverruled. The Plaintiff alleges Elder Care Abuse in addition toNegligence and Wrongful Death. The Defendant only demurrersto the Elder Care Abuse cause of action. The Plaintiff must allege(and ultimately prove by clear and convincing evidence) factsestablishing that the Defendant:had responsibility for meeting the basic needs of the elderor dependent adult, such as nutrition, hydration, hygieneor medical care;knew of conditions that made the elder or dependentadult unable to provide for his or her own basic needs;anddenied or withheld goods or services necessary to meetthe elder or dependent adult's basic needs, either withknowledge that injury was substantially certain to befallthe elder or dependent adult (if the Plaintiff allegesoppression, fraud or malice) or with conscious disregardof the high probability of such injury (if the Plaintiffalleges recklessness).The Plaintiff must also allege (and ultimately prove byclear and convincing evidence) that the neglect caused the elderor dependent adult to suffer physical harm, pain or mentalsuffering. Finally, the facts constituting the neglect andestablishing the causal link between the neglect and the injury"must be pleaded with particularity," in accordance with thepleading rules governing statutory claims. Carter v. PrimeHealthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396,406-07 (internal citations omitted). The Plaintiff has allegedfacts which meet each of the necessary elements for ElderAbuse. Under the circumstances, risk associated with theparticular neglect and severity of the resulting injury (i.e.,death), there is no need for the allegations to plead a pattern ofneglect. Once was enough. The patient died. There could be nopattern. The facts pled make it clear that according to thePlaintiff, the Defendant was specifically informed prior to thedecedent’s admission, that he needed to be supervised when heate because he had a history of putting too much food in his

mouth and choking. The Defendant allegedly told the Plaintiffsthat they understood, had other such patients and would takesteps necessary to protect him from chocking. The Plaintiffalleges that despite such warning and assurances, they left himunattended and he died as a result. The actions of theDefendants alleged in the compliant are sufficient to allege thatthe defendant denied the decedent necessary services (i.e.,watching him while eating) with knowledge that injury wassubstantially certain to befall the elder sufficient to show fraud,oppression or malice or with a conscious disregard of the highprobability of such injury to show recklessness. That issufficient to establish Elder Abuse and trigger the enhancedremedies available under the act.2. Defendant’s motion to strike portions of plaintiff’s complaint(punitive damages and attorney fees.) Motion denied. theallegations in the complaint that the Defendant failed to watchthe decedent despite warnings that he had a history of puttingtoo much food in his mouth and choking are sufficient toestablish malice. The actions of the Defendants alleged in thecompliant are sufficient to allege that the defendant denied thedecedent necessary services (i.e., watching him while eating)with knowledge that injury was substantially certain to befall theelder sufficient to show fraud, oppression or malice or with aconscious disregard of the high probability of such injury to showrecklessness. This is sufficient to support a request for punitivedamages and attorney fees.3. Defendant’s motion for protective order. Motion denied. TheDefendant has not presented good cause to support an orderstalling necessary discovery in this case. The case was filed inJuly. It is now September. There is no reason to delaydiscovery. The sooner the discovery is sought the fresher therecollections of the witnesses and the more accurate theresults. There is nothing about this case that makes isextraordinary. The pleadings are now at issue since thedemurrer and motions to strike will be decided this date.The Defendant has not presented any authority to supportstaying discovery because their challenge to the sufficiency ofthe pleadings is pending. The Defendant has presented noauthority to support a finding that discovery is stayed during apending non-criminal Department of Public Healthinvestigation. In any event, the Plaintiff has established that theinvestigation concluded in July. Specifically, the Plaintiff hasestablished that the Department of Public Health has concludedits investigation of the Defendants and found that theDefendants "failed to provide adequate supervision to (ErikLund) during meal (sic). As a result, (Erik Lund) stuffed hismouth with food and choked." Artigliere Decl, Exhibit "2", Copyof the Department of Public Health Statement of Deficiencies andPlan of Correction for an investigation completed on July 18.2013.The depositions are not overly burdensome. Plaintiffs noticedoes not require the production of all staff on duty, but ratherthe notice merely requires production of the singular personmost qualified to testify regarding the facts and circumstancesregarding Plaintiffs transfer. The Plaintiff is entitled to takethe Depositions needed to proof its case. Plaintiff may servedeposition notices at any time beginning 20 days after service ofsummons or appearance of any defendant. See Code of Civil

Procedure §2025.210(b). This rule prevents plaintiffs fromoverwhelming defendants with discovery before they have achance to obtain counsel, commence investigations, etc. SeeWaters v. Superior Court (1962) 58 Cal.2d 885, 892. The noticeswere served after the 20 day waiting period. As such, there isabsolutely nothing "expedited" or "accelerated" about thesedepositions.Moving party to give notice.

# Case Name Tentative2. Madison Harbor v Salazar2011-00457480Defendants Martinez and Forero’s motion to set aside defaultjudgment. Motion denied. First, Defendants were not entitled toNotice of the Motion to Vacate Dismissal pursuant to CCP § 1010.Second, with respect to the issue of Defendants’ former counselengaging in the purported positive misconduct, Defendants have failedto sufficiently establish that they were diligent in seeking to set asidethe default once it was discovered. Even if we disregarded the firstentry of default, waiting over 7 months to retain counsel after entry ofthe second default reflects that Defendants have not exercised duediligence, especially after they continued to receive documents viamail. Moreover, if this Court considers the initial entry of defaultagainst Defendants, then the record reflects that Defendants waitedover 1.5 years to retain counsel to set aside the first entry of default.Defendants’ Objections: Defendants’ evidentiary objection isOVERRULED.Moving parties are to give notice.3. Pudles v Robertshaw2011-00515856Defendant William Robertshaw’s motion for summaryjudgment/adjudication. Motion denied.Defendant failed in his moving papers to address all theories of liabilityraised by plaintiff in his Second Amended Complaint. He focused only onthe provisions in the Operating Agreement giving him sole exclusiveauthority to act and his immunity from liability to negate why plaintiffcould not prevail on some of the theories alleged in the SecondAmended Complaint. Although this constitutes a failure on defendant’spart to meet his initial burden of persuasion required by CCP §437c,plaintiff’s presentation of disputed facts create a triable issue as to otherpotential theories of liability, to defeat the granting of adjudication ofany of the 13 issues and to prevent summary judgment.Even though defendant relies on §4.7 of the Operating Agreementwhich limits William Robertshaw’s liability for any act or omission whichmay cause or result in loss or damage to the Company of the Members,the protection exists only if Robertshaw’s actions were done in goodfaith to promote the best interests of the Company. The issue of goodfaith or state of mind cannot be resolved on summary judgment.(Northrup Corp. v. Stinson Sales Corp. (1984) 151 Cal.App.3d 653,657.)There is a question of fact whether William Robertshaw’s acts resultedin a loss to the members of Bilrob, who ultimately reaped the results ofthe sale. Defendant asserts he sold the shares of Startel, CA at a $2.25million profit to plaintiff and Barbara Robertshaw. (UMF # 29.) But,plaintiff declares that William admitted prior to the sale that the value ofStartel’s assets was approximately $4-5 million. (Pudles’Decl. 61-62;PAF #199.) Whether there was a loss to plaintiff as a member is amaterial fact in dispute; whether the loss resulted from an act byRobertshaw in good faith is a triable issue of fact.Defendant argues that plaintiff has no standing to sue defendantbecause he divested all authority for selling the company to defendantpursuant to the Operating Agreement under §4.3 and defendant isinsulated from liability under § 4.7. §4.3 may protect defendant frombeing sued by plaintiff as a co-manager in failing to inform or consult asto the sale, but it does not protect plaintiff from suing as an injuredmember/50% shareholder of Bilrob, in derivative form, based on

Robertshaw’s acts not in good faith that resulted in loss to themembers. §4.7 does not limit liability on this basis.Whether plaintiff was a director of Startel, CA is a material fact indispute. (UMF #6, 23, 25, 26., 86-87.) This raises a triable issuewhether defendant Robertshaw owed plaintiff a fiduciary duty as boardof director to advise him of the sale and hold a formal meeting of theBoard of Directors of Startel, CA, before approving of its assets beingsold to Startel, DE. (PAF #172, 187-188, 192.)Plaintiff presents evidence to question Robertshaw's validity as the soleDirector, and plaintiff’s position as a Director of Startel, CA. Williamsand Pudles discussed and agreed that they would be the directors ofStartel, CA. (PAF #86-87.) The Bylaws of Startel, CA, provide for theappointment of no less than 2 and not more than 5 directors. (PAF#186.) This fact alone calls into question defendant’s only evidence ofthe Statement of Information filed with the Secretary of State forCalifornia listing Robertshaw as the sole director. Pudles never saw theStatement of Information and never approved Robertshaw being listedas the only director. (PAF #70.) Pudles referred to himself as a directorof the corporation to William, Barbara and Lane without any objectionfrom them. (PAF #90-94.)Defendant argues that plaintiff cannot sue defendant for improper saleof Startel, CA under Corp. Code §1001, because he was not ashareholder of Startel, CA, Bilrob was as 100% shareholder. Plaintiff hassued Robertshaw for breach of his fiduciary duty based on multiplegrounds including Robertshaw’s duty and subsequent failure as anOfficer and co-director of the corporation to properly notify andmisrepresent the sale to plaintiff as a Director on Startel, CA’sboard. Defendant’s argument doesn’t negate plaintiff’s claim for breachof fiduciary duty.Plaintiff’s Objections to defendant Robertshaw’s Declaration:Sustained: # 4-10, 13.Overruled: #1-3, 11-12.Defendant’s Objection to plaintiff Pudles Declaration and Evidence:Sustained: # 6, 28-32, 34, 35, 37, 39, 42, 44-45, 58-59, 61-64, 69,73, 76, 78,Overruled: # 1-5, 7-27, 33, 36, 38, 40-41, 43, 46-57, 60, 65-68, 70-72, 74-75, 77, 79-114.Plaintiff’s Objection to and Request to Strike improperly filed documentsin support of defendant’s Reply:Overruled as to Declaration of Shannon Jenkins in Reply;Overruled as to Declaration of William Robertshaw in support of ReplyOverruled as to Reply to plaintiff’s response to defendant’s SeparateStatement of Undisputed Facts in Support of MSJ.Moving party to give notice.4. Midyette v AssociatedGastroenterology2012-00536910Defendant Associated Gastroenterlogy’s motion for summaryjudgment. Motion stayed pending appeal. This motion is based onthe court’s ruling on the MSJ’s of defendants Winkle and Kuttel. Thoserulings are on appeal. Since the ruling on this motion would be affectedby the ruling on appeal, it is stayed pending the appeal. CCP §

916(a). Moving party to give notice.5. Saddleback Inn LLC vCertain Underwriters atLloyds2012-005371796. Hasso v Griffith2012-005727137. Cubbison v Moore2012-00596740Plaintiff’s motion for summary adjudication of affirmativedefenses. Motion denied. The Plaintiff has not sustained its initialburden. Therefore, the burden does not shift to the Defendant. ThePlaintiff asserts that Defendant has no evidence to establish that amaterial misrepresentation has been made such as to support theiraffirmative defenses of rescission, material misrepresentation, fraud,unclean hands and breach of warranty. The Plaintiff relies upon theDefendant’s discovery responses to establish that none of themisrepresentations relied upon by the Defendant to support itsaffirmative defenses are sufficient to support the affirmative defensesalleged. However, it is clear from evidence presented by the Plaintiffand specifically the Defendant’s responses to Special Interrogatories 91-94 that these are not the only misrepresentations upon which theDefendant is basing its affirmative defenses. As such, the Plaintiff hasnot presented evidence that completely disposes of an affirmativedefense or defenses. Therefore, the motion is denied. Plaintiff’sobjections to evidence submitted by defendant are moot. Moving partyto give notice.Plaintiff’s motion to compel further responses to interrogatories bydefendant Patel. Motion moot. Sanctions issued. The motion ismoot because defendant filed further responses on10/21/13. Sanctions are awarded to plaintiff and against defendant inthe sum of $1,240.00. Moving party to give notice.1. Defendant’s motions to compel further responses to writtendiscovery. Motions granted. Plaintiff shall serve properlyverified responses without objection, including copies of alldocuments requested, by 11/11/13. Sanctions are awarded todefendant and against plaintiff in the sum of $1400.00. Movingparty to give notice.2. CMC: Counsel to appear to select trial date.8. Dinh v Pediatric CareMedical Group2012-00596740Defendant’s motion for summary judgment/adjudication. Motiondenied.Evidentiary objectionsAs to Plaintiff Huong Dinh’s declaration, the court overrules Defendants’objection nos. 1-3.As to Kristina Lim’s declaration, the court rules as follows: Sustainobjection no. 1 only to the extent it is being used to establish theopinions of other research coordinators, otherwise overrule; sustainobjection no. 2; and overrule objection no. 3.(1) As to all causes of action, there is a triable issue of fact asto whether Defendants knew Plaintiff was pregnant when theydecided to terminate her positionTo make out a prima facie case of discrimination based on pregnancyunder FEHA, the employee must present evidence that the employerknew she was pregnant. (Trop v. Sony Pictures Entm't Inc. (2005) 129Cal.App.4th 1133, 1145.) “When the pregnancy is apparent, or whereplaintiff alleges that she has disclosed it to the employer, then aquestion of the employer’s knowledge would likely preclude summaryjudgment. If the pregnancy is not apparent and the employee has notdisclosed it to her employer, she must allege knowledge and present, aspart of her prima facie case, evidence from which a rational jury couldinfer that the employer knew that she was pregnant.” (Ibid. [internalquotes omitted].)

In this case, Defendants have met their initial burden of producingevidence that they decided to close Plaintiff’s position on 07/20/10 andthat they did not know Plaintiff was pregnant at the time. (UMF 7-8.)But “summary judgment may be denied in the discretion of the court,where the only proof of a material fact offered in support of thesummary judgment is an affidavit or declaration made by an individualwho was the sole witness to that fact; or where a material fact is anindividual’s state of mind, or lack thereof, and that fact is sought to beestablished solely by the individual’s affirmation thereof.” (Code Civ.Proc., § 437c, subd. (e).) Defendants’ evidence on this point consistssolely of the declaration of the two individual Defendants attesting totheir subjective, undisclosed intent and private discussions with oneanother. Accordingly, the court declines to grant summary judgment onthis ground.Furthermore, Plaintiff has met her burden of showing a triable issue offact exists as to when Defendants learned of Plaintiff’s pregnancy andwhen they decided to terminate Plaintiff. (See Plaintiff’s response toUMF 7-8.) Specifically, Plaintiff declares she informed Defendants of herpregnancy in July 2010 and was not terminated until November 2010,when she was visibly pregnant. When she was let go, the departmentwas very busy (or at least the workload was average), which suggeststhat Defendants’ reason for closing Plaintiff’s position—that work wasslow—was not true. Indeed, if business was slow in July whenDefendants maintain they decided to close Plaintiff’s position, it remainsto be explained why Defendants waited until November to terminatePlaintiff.(2) As to all causes of action, there is a triable issue of fact asto whether Defendants’ proffered reason for termination waspretextualOne way for Plaintiff to avoid summary judgment is to present a triableissue that the reason Defendants gave for her termination was false,coupled with evidence of pregnancy-discriminatory motive ondefendant’s part. (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th1088, 1101.) Evidence that the employer’s reasons were false can alsosupport “an inference that the actual reason for plaintiff’s terminationwas the discriminatory one she alleged.” (Ibid.) In other words,“evidence of dishonest reasons, considered together with the elementsof the prima facie case, may permit a finding of prohibited bias.” (Guzv. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 356.) Plaintiff here has metthis burden.Plaintiff has satisfied her initial burden of making a prima facie showingof unlawful discrimination, establishing that she is a member of aprotected class, that she was qualified for her position, and that shewas discharged under conditions that give rise to an inference ofunlawful discrimination. (Geraci v. Moody-Tottrup, Int'l, Inc. (3d Cir.1996) 82 F.3d 578, 580.) In this case, Plaintiff was a pregnantfemale. She was qualified for her position. Indeed, Defendants’ noticeof termination stated that Plaintiff was a hard worker and loyalemployee. (See Dinh Decl., Ex. A) And she was terminated when shewas six months into her pregnancy and replaced 5 months later by amale employee.Although Defendants contend that business was slow and Plaintiff’stermination was a result of the reorganization of the business,“downsizing alone is not necessarily a sufficient explanation, under theFEHA, for the consequent dismissal of [a protected] worker. Anemployer’s freedom to consolidate or reduce its work force, and toeliminate positions in the process, does not mean it may ‘use theoccasion as a convenient opportunity to get rid of [protected]workers.’ [Citations.] Invocation of a right to downsize does not

esolve whether the employer had a discriminatory motive for cuttingback its work force, or engaged in intentional discrimination whendeciding which individual workers to retain and release.” (Kelly v.Stamps.com Inc., supra, 135 Cal.App.4th at 1098, quoting Guz v.Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 358.)The evidence reflects a triable issue whether the claim that Defendantseliminated Plaintiff’s position was true or untrue. (See Plaintiff’sresponse to UMF 17-18, 20.)First and foremost, as noted above, the collective timing of Defendants’decision to close Plaintiff’s research assistant position in July 2010, toterminate Plaintiff’s position in November 2010, and to hire a new male“research assistant” in April 2011 suggests that the business was not soslow that Plaintiff’s job was to be eliminated entirely. In fact, KristinaLim, one of Defendants’ former research coordinators, declares that thedepartment was very busy when Plaintiff was let go, that Lim haddifficulty to take over Plaintiff’s duties, and that the new male employeeperformed some of the same tasks that Plaintiff did. (See Lim Delc., 6, 8.) “And even if plaintiff’s exact position were determined to havebeen eliminated, defendant could still face liability if plaintiff wasremoved from employment because of her pregnancy.” (Kelly v.Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1102.)Second, Defendants do not adequately explain why Plaintiff, as opposedto one of Defendants’ other 25 employees, was terminated. Plaintiffwas undoubtedly a good employee. Defendant Qaqunduh even offeredPlaintiff a promotion to research coordinator (see Qaqunduh Decl., 5),which appears to have been a promotion in title, but not pay (see DinhDecl., 11). Although Defendants maintain a medical bill examinerposition was also closed, Defendant Qaqunduh simply declares theydecided to close Plaintiff’s position because “it seemed that it would notbe cost-effective to keep [Plaintiff’s] position open.” (Qaqunduh Decl., 6.) That Plaintiff was let go despite her good work history tends tocast doubt on the genuineness of Defendants’ explanation for herdischarge. (See Kelly v. Stamps.com Inc., supra, 135 Cal.App.4th at1099.)Third, the circumstances indicate that Plaintiff was about to take herallotted 14 weeks of paid family leave. The parties do not dispute thatwhen Plaintiff had her first child while working for Defendants, she took14 weeks of paid family leave. (See Supp. Wuchetich Decl., Ex. A, p.24:15-25.) Defendants offer this fact to show their support forpregnant employees. But when Plaintiff told Defendant Qaqundah thatshe was pregnant with her second child, his response was:“Again?” (See Supp. Wuchetich Decl., Ex. B, p. 28:5-17.) From thesefacts, a trier of fact could conclude that Defendants did not want toprovide Plaintiff with a second paid leave of absence.Finally, Defendants argue that Plaintiff’s declaration in opposition to thismotion should be disregarded because it contradicts her depositiontestimony. Generally, the declarations and evidence offered inopposition to the motion must be liberally construed, while the movingparty’s evidence must be construed strictly, in determining theexistence of a triable issue of fact. (D’Amico v. Board of MedicalExaminers (1974) 11 Cal.3d 1, 21.) With respect to competingstatements in a declaration and deposition, “[a] summary judgmentshould not be based on tacit admissions or fragmentary and equivocalconcessions, which are contradicted by other credible evidence.” (Pricev. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482, overruled onother grounds in Riverisland Cold Storage, Inc. v. Fresno-MaderaProduction Credit Association (2013) 55 Cal.4th 1169, 1182.)Here, Plaintiff declares that she believes she was terminated because ofher pregnancy. (See Huong Decl., 8.) In her deposition, Plaintiff saidshe was “not sure” when asked if her pregnancy played a role in the

decision to terminate her. (See Supp. Wucetich Decl., Ex. A, p. 31:13-15.) At best, Plaintiff’s deposition testimony is an equivocalconcession. Plaintiff does not admit that her pregnancy did not play arole. And there is other credible evidence of Plaintiff’s belief that shewas discriminated against because of her pregnancy, namely thereasons stated in Plaintiff’s DFEH complaints filed in October2011. (See Wucetich Decl., Exs. D-F.)(3) As to the second cause of action, there is a triable issue offact as to whether Defendants perceived Plaintiff’s pregnancy asa disabilityDefendants argue there is no basis for any claim that Defendantsdiscriminated against Plaintiff based on the perception that she wasdisabled as a result of her pregnancy. Defendants, however, attributetoo narrow a definition to “disability.”“Being unable to work during pregnancy is a disability for the purposesof [Govt. Code] section 12940.” (Sanchez v. Swissport, Inc. (2013)213 Cal.App.4th 1331, 1340.) “Physical disability” under the FEHAincludes “[b]eing regarded or treated by the employer . . . as having, orhaving had, a disease, disorder, condition, cosmetic disfigurement,anatomical loss, or health impairment that has no present disablingeffect but may become a physical disability as described in paragraph(1) or (2).” (Govt. Code, § 12926, subd. (l)(5) [emphasis added].)In addition to the provisions that govern pregnancy in Sections 12926and 12940, it is an unlawful employment practice, inter alia, (1) for anemployer to refuse to allow a female employee disabled by pregnancyto take a leave for a reasonable period of time not to exceed fourmonths and thereafter return to work; (2) for an employer to refuse tomaintain and pay for coverage for an eligible female employee whotakes leave under a group health plan for the duration of the leave; and(3) for an employer to interfere with, restrain, or deny the exercise of,or the attempt to exercise, any right provided under Section12945. (Govt. Code, § 12945, subds. (a)(1), (a)(2), and (a)(4).)Here, in response to whether Plaintiff required disabilityaccommodation, Plaintiff stated that she “was pregnant and wouldrequire family medical leave and time off for doctor’sappointments.” (See Wuchetich Decl., Ex. C, response to FormInterrogatory no. 204.5.) Plaintiff’s deposition testimony that she couldperform her job at the time does not foreclose a claim for disabilitydiscrimination. A reasonable interpretation of Plaintiff’s claim is thatDefendants perceived Plaintiff would soon be disabled as a result of herpregnancy and terminated her position before she could request paidmedical leave again (see Supp. Wuchetich Decl., Ex. A, p. 24:15-25).(4) As to all causes of action, there is a triable issue of fact asto whether Defendants replaced Plaintiff with a male “researchassistant” four to five months after terminating Plaintiff“[T]he fact that the employer needs to find another person to performthat job after the employee is gone raises the same inference ofdiscrimination that the continuation of a search does in the hiringsituation.” (Pantoja v. American NTN Bearing Mfg. Corp. (7th Cir.2007) 495 F.3d 840, 846.)Defendants contend that although the new male employee was hired asa research assistant, which is the same title as Plaintiff’s old position, hedid not perform the same job as Plaintiff did.First, it is arguable whether Defendants offered evidence sufficient toshow that the new male employee did not fill Plaintiff’s oldposition. Defendants describe certain of Plaintiff’s former duties anddeclare that the new employee does not perform those duties. But

Defendants’ recitation of Plaintiff’s job duties is nonexhaustive. (SeeCornelsen Decl., 4 [“her typical daily tasks would include . . .”], 9[new position “does not call for . . .” said tasks].)Second, whether the new male research assistant performed differenttasks from Plaintiff is a disputed question of fact. Although Defendantsargue that the new research assistant provides only general assistance,Defendants do not declare or otherwise offer evidence that Plaintiff didnot perform such general tasks in addition to her more skilledduties. Plaintiff, on the other hand, offers evidence that she performedmany of the same tasks of the new research assistant. (See Dinh Decl., 3; Lim Decl., 8.)Third, that the new position paid $10 an hour instead of $16.50 or$18.86, as Defendants argue, does not refute Plaintiff’s claim that shewas replaced by a male research assistant.And as stated above, “even if plaintiff’s exact position were determinedto have been eliminated, defendant could still face liability if plaintiffwas removed from employment because of her pregnancy.” (Kelly v.Stamps.com Inc., supra, 135 Cal.App.4th 1088, 1102.)(5) In light of Plaintiff’s representation that all causes of actionare based on Defendants’ wrongful termination, Plaintiff hasexhausted her administrative remedies as to the second throughfourth causes of actionAs Plaintiff notes, where the allegations of a complaint are “like orreasonably related” to the claims in the administrative charge, Plaintiffhas exhausted administrative remedies with respect to thoseallegations. (See Yurick v. Superior Court (1989) 209 Cal.App.3d 1118,1121-1122.)Here, Plaintiff argues that her disability, failure to preventdiscrimination, and retaliation causes of action all arise from the sameact and circumstances concerning Plaintiff’s termination as a result ofher pregnancy. This allegation was clearly set forth in Plaintiff’s DFEHcomplaints. As a result, Plaintiff’s causes of action based on terminationdue to pregnancy are proper.Furthermore, the second and fourth causes of action are not barred byany failure to exhaust administrative remedies because Plaintiff haspremised such claims on violations of both the FEHA and publicpolicy. As the California Supreme Court has held, because “the FEHA’sremedies for employment discrimination are not exclusive and do notsupplant common law claims, a plaintiff need not exhaust administrativeremedies under the FEHA before asserting a common law claim” fortortious discharge claim in violation of fundamental publicpolicy. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 890.)Plaintiff is to give notice.10. American Express vHooper2012-006174591. Defendant’s motion for summary judgment. Noopposition. Motion granted. Moving party to give notice.2. CMC: The matter is set for an OSC re dismissal on 12/2/13 at8:30 AM in Department C23. Defendant to give notice.11. Johns v Fuhrmann2012-00621231[These motions were continued on 9/13/13 to give plaintiffs time toretain counsel.]

1. Fuhrmann defendants’ demurrer to first amended complaint. Noopposition. Demurrer sustained without leave toamend. Defendant may have until 11/11/13 to file an answerto the remaining causes of action.2. Fuhrmann defendants’ motion to strike portions ofcomplaint(punitive damages.) No opposition. Motiongranted.3. Fuhrmann defendants’ motions to compel responses to writtendiscovery. No opposition. Motions granted. Plaintiffs areordered to provide properly verified responses to interrogatoriesand RFP’s, including copies of documents requested, withoutobjection, by 11/11/13. Request for monetary sanctionsdenied.4. CMC: Parties to appear to select trial date.Plaintiff to give notice.12. Partners Bank v AuroraBreast MRI2012-0062123114. Conway v Kote2013-00657910Defendant’s motion to set aside default. No opposition. Motiongranted. Proposed answer deemed filed and served. Moving party togive notice.Defendants’ demurrer to plaintiff’s complaint. Demurrer sustainedwithout leave to amend. There is another action pending betweenthe parties. Jurisdiction of claims concerning the Sean ConwayIrrevocable Trust has been assumed by the Probate Court.Defendant Kote’s Request for Judicial Notice of OCSC Case No. 13-641931, Conway Trust, is GRANTED. The remainder of his Requestmade in the Demurrer filed 07/22/13 is DENIED. Information about theother two matters for which judicial notice is requested is incomplete.Defendant Kote’s Request for Judicial Notice filed October 8, 2013 isDENIED.Moving party to give notice.15. Baldwin v First Bank2013-00659291Demurrer by Sunranch defendants to the first (fraud), second (breachof contract), third (bad faith), fourth (17200), fifth (economic duress),eighth (elder abuse) and tenth (declaratory relief) causes of action ofplainitff’s complaint. Demurrer sustained in part and overruled inpart. The demurrer is sustained without leave to amend as to the fifthcause of action (economic duress.) The demurrer is overruled withrespect to the tenth cause of action (declaratory relief.) The demurreris sustained as to all remaining causes of action with 10 days leave toamend.The court finds that the business judgment rule is an affirmativedefense, which could be asserted in the context of a summary judgmentor at trial, but does not bar plaintiffs’ claims. Further, there is norecognized cause of action for “damages due to economic duress,” asthis doctrine may offer an equitable defense to a breach of contract or aremedy after breach.

As to Spearfish’ status as a forfeited California corporation, it hasbrought this action as a British Virgin Islands LTD. Defendants haveoffered no reason as to why it cannot do so. Moreover, its status duringthe financial transaction at issue is not clear.Regarding the fraud claims, the alleged fraud has not been pled withsufficient specificity. As to the breach of contract causes of action, theterms of the agreement alleged to have been breached and the specificconduct that constitute breach have not been adequately setforth. Moving party to give notice.

# Case Name Tentative1. Sabet v Kavandi2011-000506610Plaintiff’s motion to strike defendant’s answer. Motion denied. Whileplaintiff is correct that the binding arbitration determined all issues thatwere raised or could have been raised, the motion to strike ispremature as the award has not been reduced to judgment. Themotion can be re-made, if necessary, after the petition to confirm hasbeen granted. Moving party to give notice.2. Pudles v Robertshaw2011-00515856Motion for summary judgment/adjudication by defendant BarbaraRobertshaw. Motion denied.Defendant Barbara Robertshaw has stated as undisputed material factsin her separate statement (e.g., UMFs #17, 27), facts which were foundto be in dispute in William Robertshaw’s motion for summary judgmentand adjudication. These two specific facts state that 1) Bilrob, LLC wasmanaged pursuant to its operating agreement, and 2) that all of theactions undertaken by William Robertshaw regarding the sale of StartelCA., was done in accordance with the authority vested in him pursuantto the Bilrob Operating Agreement. The court ruled on 11/1/13 thatthere was a triable issue as to whether William Robertshaw’s actionswere done in good faith to promote the best interests of the companyas required by Section 4.7 of the Operating Agreement.Defendant Barbara Robertshaw fails in her motion to meet her initialburden of proof to establish that William’s actions were performed ingood faith. Additionally, as in William Robertshaw’s motion, plaintiffpresented sufficient evidence to show there is clearly a triable issue asto whether the selling of Bilrob’s only asset – Startel, CA.’s shares wasin the best interest of Bilrob and its members. On this ground alone,summary judgment is denied.A triable issue of fact is raised by plaintiff Pudles on the issue ofwhether defendant Barbara Robertshaw owed plaintiff a fiduciary duty.The facts are disputed whether defendant Barbara Robertshaw, despiteher equal 50% status as a member of Bilrob with plaintiff, was a“majority” shareholder who exercised control and/or through her powerand influence, adversely affected the actual conduct of the LLC’sinterest, to make plaintiff a vulnerable minority shareholder.In March 2011, Barbara Robertshaw consulted with attorney Mark Doyleregarding William’s authority to sell Startel CA’s assets. (Heller Decl. 36; Exh. “74”.) In June 2011, Barbara gave her consent to her father,William to negotiate the sale of Startel CA’s assets. (Heller Decl. 9;B.R. Depo, Exh. “46”.) On September 14, 2011, Barbara gave her finalclearance to pursue the deal [sale of Startel, CA to Startel DE] withStewart. (Heller Decl. 16; Lane Depo, Exh. “54”; Heller Decl. 7;W.R. Depo, Exh. “45”.) (UMFs #37, 38.) Then, on Sept. 27, 2011,Barbara received the Asset Purchase Agreement from Stewart via Lane.(Heller Decl. 19; Stewart Depo, Exh”57”.) (UMF #39, 40.)Consequently, defendant’s material facts that she didn’t pursue orparticipate in the negotiations or the sale of Startel, CA’s assets,supported by only her father’s and her declarations are disputed withsufficient evidentiary support by plaintiff.

Further, plaintiff has presented evidence that Barbara knew that plaintiffdid not want to sell Startel, CA, and despite consulting with attorneyMark Doyle regarding William’s authority to sell, and giving consent tonegotiate the sale and ultimately final clearance to pursue the deal withStewart, Barbara never told Pudles about the legal opinion she obtainedfrom Doyle, or that William was negotiating the sale of with Stewart.Pudles had no knowledge of any of Barbara’s activities in connectionwith the future sale and did not have any knowledge that William wasnegotiating and proceeding with the sale prior to the Notice of Intent of8/26/11. (Heller Decl. 8, B.R. Depo, Exh. “46” & “47; Heller Decl. 36; Exh. “74”; Heller Decl. 16; Lane Depo, Exh. “54”; Heller Decl. 7; W.R. Depo, Exh. “45” & “49”.) This places UMFs #40-43, 47-48, 51-52, 55, 57, 61-62, 75 as to Issue #2 squarely in dispute as well.Defendant’s declaration stating that she was not involved in theoperations, management or control of Bilrob, and didn’t participate inthe negotiations or sale of Startel, CA are conclusory and self-serving.Likewise, her declaring that she did not prevent plaintiff from receivinginformation about the sale or hinder plaintiff from communicating withWilliam Robertshaw are conclusory impressions of her acts. The entiredeclaration is comprised of defendant’s conclusions as to her conduct.The opinions of her conduct are further disputed by the evidenceindicated above. Defendant’s credibility cannot be determined onsummary judgment.These disputed facts prevent adjudication of the 1 st and 2 nd causes ofaction.A significant number of the above disputed facts in Issues #1 & 2 arere-asserted in Issues # 3-15 [though the facts are numberedcontinuously to #432.] Key to each of these remaining issues iswhether defendant Barbara was merely an equal member, or if sheexercised some form of control over the business affairs of the LLC – inconjunction with William Robertshaw to create a duty on her part toplaintiff as a vulnerable minority shareholder. Consequently, a triableissues of fact are raised as to whether defendant Barbara Robertshawconspired, aided and abetted, engaged in fraudulent concealment ofmaterial information to plaintiff pursuant to a duty, breached theoperating agreement or any other agreements, and the covenants ofgood faith and fair dealing encompassed within the agreements, to denyadjudication of the 3 rd – 7 th and the 16 th causes of action.OBJECTIONS:Plaintiff’s Objections to defendant B. Robertshaw’s Declaration; W.Robertshaw’s Declaration; & Martin Dack’s Declaration:Sustained: # 2-11, 13, 15 -16, 19 -24, 28, 31, 33 -44, 47-49, 51-60,63-70, 72-81, 84-89.Overruled: #12, 14, 17 -18, 25-27, 29–30, 32, 45-46, 50, 61-62, 71,82-83.Defendant’s Objection to plaintiff Pudles Declaration; Heller’sDeclaration and Evidence:Sustained: # 6, 28-29, 31, 34, 36, 37, 42, 44, 47, 49-50, 53, 66-67,69-70, 71-72, 77, 81, 84, 86.Overruled: # 1-5, 7-27, 30, 32-33, 35, 36, 38, 39-41, 43, 45, 46, 48,51-52, 54-65, 68, 70a, 73-76, 78-80, 82-83, 85, 87-142.Moving party to give notice.

3. Grandview/Crest HOA vMolle2012-005600295. Salcedo v B of A2012-005740156. Nguyen v O.C. Imports/LRDiv2012-005745667. LBS Financial CU v Tittle2012-00574840Defendant’s motion for summary judgment/adjudication. Noopposition. Motion granted. [This motion was originally set to beheard on 8/2/13. Pro per plaintiff’s husband appeared indicating hiswife was in the hospital. The matter was continued to today’s date toallow plaintiff time to submit opposition. No opposition wasfiled.] Defendant’s request for judicial notice is granted. Moving partyto give notice.Plaintiff’s motion to set aside dismissal. No opposition. Motiongranted. The matter is set for a CMC on 3/10/14 at 8:30 AM in thisdepartment. Moving party to give notice.Defendant’s motion for judgment on the pleadings. Motiondenied. First, the motion is procedurally defective because the noticeof motion fails to set forth the grounds upon which it is made. On themerits, the court has already ruled on the grounds raised by defendantwhen it ruled on the demurrer to the complaint. Finally, the question ofwhether the claims are really derivative in nature is a mixed question oflaw and fact that cannot be resolved on motion for JOP. Moving partyto give notice.1. Defendant’s motion to set aside default. Motiongranted. Defendant is granted discretionary relief. The courtfinds it was excusable neglect to believe that the defendant’sattorney had also been served with the notice ofdefault. Defendant to electronically file the response by11/13/13. Moving party to give notice.2. OSC re dismissal for not moving forward with the default. Thecourt finds there is good cause not to dismiss theaction. A CMC is set for 310/14 at 8:30 AM in thisdepartment. Plaintiff to give notice.9. Waterfield FinancialServices v Bofi Holding Inc2012-00581534Plaintiff’s motion for leave to file second amended complaint. Motiongranted. Defendant’s request for judicial notice is granted. Movingparty to give notice.13. Frescos Mexican Grill vAVT Inc2012-00620366Defendant’s motion to strike portions of first amended complaint(punitive damages and attorney fees.) Motion denied. Plaintiff hasalleged intentional misrepresentation as a predicate for punitivedamages and the Business Purchase Agreement has an attorney feesclause. Moving party to give notice.14. Vidal v Rodriguez2013-0062243516. Yorba Linda Estates LLC vRichards2013-00650665Plaintiffs’ motion to consolidate. No opposition. Motiongranted. Moving party to give notice.1. Defendant’s demurrer to plaintiff’s complaint. Demurrersustained with leave to amend. The demurrer to the first,third, fourth and fifth causes of action is sustained with21 days leave to amend. The unopposed demurrer to thesecond cause of action for Easement by Implication issustained without leave to amend because the Plaintiff haselected not to oppose the Demurrer as to the second cause ofaction for "quiet title - easement by implication." The Plaintiff

has not alleged sufficient facts to support a finding of standingrequired to support the causes of action pled. The complaint isnot clear as to what interest the Plaintiff has in the Yorba TrailProperty. As such, the court cannot determine whether theinterest is sufficient to support the causes of action.The demurrer to third cause for Easement by Necessity is furthersustained on the basis that the Complaint does not allege thatthe property is landlocked. It alleges that it waslandlocked. The Plaintiff alleges that “the partition of the CarrilloRanch Property resulted in Esperanza Allotment Parcel 3 beinglandlocked which gave rise to the necessity of a fifty (50) footeasement for rad and public utility purposes over” the other twoproperties. [Complaint 35]. As such, it is clear that the Plaintiffis alleging that the property was landlocked at the time of thepartition in 1958 but the complaint does not make an allegationthat it is currently landlocked. As such, the demurrer to the thirdcause is sustained with leave for this reason in addition thefailure to allege standing with certainty.The Defendants’ Request for Judicial Notice in support ofdemurrer is granted with respect to both Exhibits 2 and3. Moving party to give notice.2. CMC: Counsel to appear to select trial date.17. Oliveiria v Bennett05CC03642Plaintiff’s motion to compel responses to written discovery. Noopposition. Motion granted. Defendant is ordered to provide properlyverified responses to the discovery without objection, including copies ofdocuments requested, by 11/18/13. Sanctions are awarded to plaintiffand against defendant in the sum of $780.00. Moving party to givenotice.

HON. GREGORY MUNOZSuperior Court of Orange CountyBorn: 1937, Puritan, ColoradoUndergraduate School: UCLA, 1960Law School: University of Southern CaliforniaAdmitted to Practice: 1964Appointed to the Bench: 1999Appointed by: “Gray” Davis, Jr., DemocratCareer as an AttorneyDeputy District Attorney, Los Angeles County, California, 1963-65Associate, Dryden Harrington & Fox, Los Angeles, California, 1965-69Partner/President, Hews & Munoz, (later Munoz & Swift), Santa Ana, California, 1969-2000Relevant Organizational AffiliationsMemberAmerican Board of Trial Advocates, 1971- (President, 1977)Hispanic Bar Association, Orange County, California, 1974 (Founder, 1974 & President,1978)ABTL, Orange County, California, (President, 1976)Former Member:Delegate to Convention, Orange County Bar Association, California, 1976Judicial Council, 1976-78Chair, Orange County Bar Association Judiciary Committee, 1978Admissions:U.S. District CourtPolitical/Religious AffiliationDemocrat/Roman CatholicPanelist:CEB, Personal Injury & LitigationOther Information

Department C-13 – Judge Gregory MunozDate: MAY 30, 2013OBTAINING TENTATIVE RULINGS: All rulings will be posted on the internet athttp://www.occourts.org/tentativerulings/gmunozrulings.htm by 4:00 P.M. (or soon thereafter) on the daybefore the scheduled hearing. The rulings will also be posted outside the courtroom on the bulletin board,no later than 12:00 P.M. on the day of the scheduled motion. The Law and Motion hearings are scheduledon Thursdays at 2:00 P.M. All arguments will be heard at that time. No supplemental or additional paperswill be allowed to be submitted following posting of the ruling on the internet. Nor will the Court entertaina request for continuance once the ruling has been posted.The court will hear oral argument on all matters at the time noticed for the hearing. If you would preferto submit the matter on your papers without oral argument, advise all counsel first and then telephone theclerk at (657) 622-5213. If the moving party has submitted the matter and there are no appearances byany party at the hearing, the tentative ruling will be the final ruling. Moving party is to prepare the Noticeof Ruling for all matters which are submitted.IF NO ONE HAS TELEPHONED THE CLERK TO SUBMIT AND THERE ARE NO APPEARANCES BYANY PARTY, THE MATTER WILL BE TAKEN OFF CALENDAR.# Case Name Tentative2 2012-00607666CROAN VS ARCO CORPPlaintiff Gary Croan’s motion to compel further response torequest for production is granted in part and denied in part asfollows:The motion is granted with regard to items 1, 2 and 5. Plaintiffacknowledges he received supplemental response to theserequests but had not received the verifications. RespondingParty shall provide the verifications for the supplementalresponses within three (3) days.The motion is denied as to the remaining requested relief. Therequests are not “either by specifically describing eachindividual item or by reasonably particularizing each category ofitem” in violation of CCP §2031.030( c)(l).Sanctions are denied as to all parties.

3 2011-00521275FIVE POINT CAPITAL VSPOULIN AUTODefendants Poulin Auto Sales, Inc. dba Twin State Auto Center,Norman Poulin, and Stephanie Nadeau’s Motion to Set AsideDefault and Default Judgment and to Dismiss the Action forLack of Personal Jurisdiction denied. A forum-selection clauseis prima facie valid and will be enforced unless the resistingparty meets the heavy burden of proving enforcement would beunreasonable under the circumstances of the case. (IntershopCommunications v. Superior Court (2002) 104 Cal.App.4th 191,198-201; see Carnival Cruise Lines, Inc. v. Shute (1991) 499U.S. 585, 590.) Defendants consented to California jurisdictionby consenting “to the jurisdiction of the courts located in SanDiego County, California”; defendants have failed todemonstrate that enforcing the subject provisions would beunreasonable under the circumstances of this case. As fordefendants’ request that the court set aside the entry of defaultand default judgment on the ground of “extrinsic mistake,”defendants have failed to show that they have a meritoriouscase or that they acted diligently in seeking to set aside defaultand default judgment. Defendants admit they breached thecontracts at issue by failing to return the equipment leased ormake payment on the continued/renewed lease of theequipment. Waiting until April 29, 2013 to bring this motion,when they do not deny service of the summons and complainton November 17, 2011, or service of the proposed requests forentry of default and default judgment in February and April2012, and when they admit having knowledge of the judgmentagainst them by “early February 2013 when plaintiff attemptedto domesticate their judgment by filing an action in Vermont,”does not show diligence.

5 2011-00526006HEINL VS ADAMSThe demurrer by defendant American Contractor’s IndemnityCompany to the Second Amended Complaint is continuedto 6/27. Plaintiffs appeared ex parte on 5-14-13 seeking leaveto file a late Opposition, and the instant hearing was continuedat that time. Defendant’s Reply indicates that an Oppositionwas served, but none was filed with the court. Plaintiffs areordered to file a copy of the Opposition papers which wereserved on defendants with the court by 6/4..The hearing is also continued for the parties to file additionalbriefing to address: (1) the fact that judgment was entered inOCSC Case No. 2011-444501on 10-28-11; (2) whether plaintiffsmay still seek recovery against the Receiver’s bond in Case No.2011-444501 despite the time limitations of CCP 996.440(b);and (3) if plaintiffs are time-barred by CCP 996.440(b) fromseeking recovery against the bond in Case No. 2011-444501,whether they may do so in the instant action. Further briefs arelimited to 10 pages, exclusive of any requests for judicialnotice. Defendant’s brief is to be filed by 6/10. Plaintiffs’Supplemental Opposition brief is to be filed by 6/19. No furtherReply. Moving party to give notice.7 2012-00591378HUNTER VS TRUONG10 2012-00593826PATHOLOGY VS DEVLINThe demurrer by cross-defendant City of Brea to the FirstAmended Cross-complaint by cross-complaints John C. Heinland Kathy A. Heinl is sustained, with 10 days leave to amend,on grounds of failure to state facts sufficient to constitute acause of action. (CCP 430.10(e).) Moving party’s request forjudicial notice is granted. (Ev. 452(d)(1).) The first cause ofaction fails to allege facts supporting the formation and/oroperation of a conspiracy; rather, these are alleged asconclusions only, which is insufficient for a claim against agovernment entity, which must be pled with specificity. (Lopezv. Southern California Rapid Transit District (1985) 40 Cal.3d780, 795.) The first cause of action also fails because no validunderlying tort is alleged, which is required for a conspiracyclaim. (Worldwide Commerce, Inc. v. Fruehauf Corp. (1978) 84Cal.App.3d 803, 811.) City sought appointment of a receiver toenforce a preliminary injunction against cross-complainants’tenant, which injunction was entered in the City’s nuisanceaction. (First Amended Cross-complaint at Paras. 12-14;Moving Party Request for Judicial Notice RJN, Exs. A-C.) Enforcement of a nuisance action is not a “taking” for thepurpose of eminent domain law. (People ex rel. Dept. of Pub.Works v. Adco Advertisers (1973) 35 Cal.App.3d 507,512.) The second cause of action is derivative of the first causeof action and fails for the same reasons. Moving party to givenotice.Motion by Attorney William M. Crosby to Withdraw as Counsel ofRecord For Clients Ruby Hunter & Art Masaoka is granted, to beeffective upon service of Order upon Clients. The Order shall beserved at the Client’s last known mailing address and by e-mailat their confirmed e-mail addresses. Moving Party to GiveNotice.Cross-Defendant Pathology, Inc.’s Special Motion to Strike FirstAmended Cross-Complaint is denied. All three causes of actionalleged in the FAXC are based on the allegation that Pathologyused illegal noncompete/nonsolicit agreements with itsemployees to unfairly/unlawfully compete with its competitors inviolation of the UCL/common law. The allegation that Pathologyalso threatened to enforce those agreements is merely collateralto the principal thrust of the claims.

13 2013-00642051SCARPINE VS CHOC14 2012-00554789SERNA VS EZ LUBE15 2012-00617193TOTAL CABLE SOLUTIONSVS ONCORE CABLESThe motion by defendants CHOC Children’s Specialists andCHOC Children’s Hospital to strike portions of the complaint isgranted in part, with leave to amend, and denied in part. Therequest is granted as to Item Nos. 1 and 2 of the notice ofmotion, as these allegations are irrelevant to the wrongful deathclaim alleged. The motion is also granted as to Item Nos. 3 and5 of the Notice of Motion, as damages for mental and emotionaldistress, including grief and sorrow, are not recoverable in awrongful death action. (CACI 3922; Krouse v. Graham (1977)19 Cal.3d 59, 72.) The motion is denied as to Item No. 4 of theNotice of Motion, as moving parties have cited no authority thatfuneral expenses are insufficient for an award of prejudgmentinterest. Defendant’s request for judicial notice is granted. (Ev.452(d)(1).) Plaintiff is granted 10 days leave toamend. Moving parties to give notice.Defendant Oscar Tena’s request for joinder in defendant EZLube, LLC’s motion for judgment on the pleadings isgranted. Tena’s motion to strike the declaration of JeffreyVetter submitted in support of the opposition isgranted. Defendants’ request for judicial notice is granted. Themotion for judgment on the pleadings is granted with 30 daysleave to amend. Plaintiff Desiree Ann Serna does not havestanding to maintain this action; all of the claims asserted in thecomplaint belong to the bankruptcy estate.Motion by attorney John Stephens of Stephens Friedland LLP, towithdraw as counsel of record for defendant Oncore Cables, LLCis continued to 6/13 to allow counsel to (1) use and serve allrequired forms pursuant to CRC, rule 3.1362, subds. (a), (c),(e, and (2) properly serve a copy of all moving papers on allparties that have appeared in this action and file a proof ofservice in compliance with CCP Section 1013, subd. (a) showingthe same (CRC, rule 3.1362, subd. (d).

16 2012-00611141WIGMORE VSBEARBOWERThe motions by defendant Tod Bearbower to compel plaintiffWigmore Insurance, Inc. to provide responses and furtherresponses to Request for Production of Documents, Set One,and to compel plaintiff Wigmore Insurance, Inc. to provideresponses to Request for Production of Documents, Set Two,are granted. Plaintiff Wigmore Insurance, Inc. is ordered toprovide full, complete and verified further responses, withoutobjection, and to produce all responsive documents, withoutobjection, to Request for Production of Documents, Set One,Request Nos. 1-10, 12-20, 25, and 26. Moving party has showngood cause for production of the requested documents, andresponding party has not substantiated its objections. (CCP2031.310.)Plaintiff Wigmore Insurance, Inc. is further ordered to providefull, complete and verified responses, without objection, and toproduce all responsive documents, without objection, toRequest for Production of Documents, Set One, Request Nos.11, 21 and 27, as well as Request for Production of Documents,Set Two, in its entirety, as no responses to these requests havebeen served. (CCP 2030.300.)Responses and document production are to be provided within10 days and are to be produced to defense counsel’s office.17 2013-00632922WILKINSON VS ONEWESTBANK18 2009-00116828GILMAKER VS STANTON19 2012-00534315SEPETJIAN VS KHADIGE20 2013-00649470MEDICAL STAFF VSFOUNTAIN VALLEYREGIONAL HOSPITALThe court finds that plaintiff’s failure to respond to discoverywas without substantial justification and imposes monetarysanctions in the amount of $2,140 on the motion regarding thefirst set of discovery requests, and $1,420 on the motionregarding the second set of discovery requests. Sanctions areimposed against plaintiff and its attorney of record, Dickson &Dickson, jointly and severally, and are payable to counsel formoving party within 30 days.Moving party to give noticeOff-calendar.Continued to 6/13 on Court’s motion.Plaintiff's Motion For Attorney's Fees is denied, based uponPlaintiff’s failure to establish that Plaintiff made a demand formediation before filing this action and that Defendant refused tomediate. Settlement talks without the use of a mediator are not“mediation”. Plaintiff is awarded $2,147.85 in costs.Moving party to give notice.Petitioner medical Staff of Fountain Valley Regional Hospital andMedical Center’s motion for preliminary injunction isdenied. Although petitioner has shown a strong probability ofprevailing on the merits, petitioner has not shown sufficientirreparable harm to justify the requested relief.

Department C-13 – Judge Gregory MunozDate: JUNE 06, 2013OBTAINING TENTATIVE RULINGS: All rulings will be posted on the internet athttp://www.occourts.org/tentativerulings/gmunozrulings.htm by 4:00 P.M. (or soon thereafter) on the daybefore the scheduled hearing. The rulings will also be posted outside the courtroom on the bulletin board,no later than 12:00 P.M. on the day of the scheduled motion. The Law and Motion hearings are scheduledon Thursdays at 2:00 P.M. All arguments will be heard at that time. No supplemental or additional paperswill be allowed to be submitted following posting of the ruling on the internet. Nor will the Court entertaina request for continuance once the ruling has been posted.The court will hear oral argument on all matters at the time noticed for the hearing. If you would preferto submit the matter on your papers without oral argument, advise all counsel first and then telephone theclerk at (657) 622-5213. If the moving party has submitted the matter and there are no appearances byany party at the hearing, the tentative ruling will be the final ruling. Moving party is to prepare the Noticeof Ruling for all matters which are submitted.IF NO ONE HAS TELEPHONED THE CLERK TO SUBMIT AND THERE ARE NO APPEARANCES BYANY PARTY, THE MATTER WILL BE TAKEN OFF CALENDAR.# Case Name Tentative1 2012-00579083AYOUB VS. MUHSINDefendant American Contractors Indemnity Company’s motion forleave to file cross-complaint is granted. ACIC is ordered to serve andfile its proposed cross-complaint within 2 days of this order.2 2013-00630572BURKE VS NOWLAND4 2009-00116828GILMAKER VS STANTON5 2013-00636289HOFFMAN VS EL TOROMEDICALDefendant Thomas F. Nowland dba Law Offices of Thomas F.Nowland’s Special Motion to Strike Pursuant to Code of Civil ProcedureSection 425.16. Nowland’s request for judicial notice isgranted. Plaintiff Gregory Burke’s request for judicial notice isgranted. The motion is granted. Plaintiff’s causes of action formalicious prosecution and intentional infliction of emotional distressboth arise out of the filing of the underlying lawsuit and constituteprotected activity. Plaintiff has failed to demonstrate a probability ofprevailing on the merits of his claims. Plaintiff has failed to discuss ordemonstrate malice in support of the first cause of action for maliciousprosecution and has entirely failed to address the merits of the secondcause of action for intentional infliction of emotional distress. Attorneyfees and costs are denied. Nowland is a self-represented litigant.Defendant Thomas F. Nowland dba Law Offices of Thomas F.Nowland’s Demurrer is moot in light of the ruling above.The motion in limine by cross-complainant Stanton is denied. Themotion is an improper motion for summary judgment. (Johnson v.Chiu (2011) 199 Cal.App.4th 775, 780-781.) Even if it were not, theissues presented by the motion are also more properly determined ona case-by-case basis during trial. Cross-defendant to give notice.Defendants El Toro Medical Investors Limited Partnership, et al.’smotion to compel arbitration is denied. While the subject ArbitrationAgreements are not, as a matter of law, unconscionable, only theclaim for Elder Abuse is subject to arbitration. The claims for Violationof Patient’s Bill of Rights and Wrongful Death are not subject toarbitration. As such, there is a possibility of conflicting rulings oncommon issues of law or fact and the court exercises its discretionunder CCP §1281.2(c) to deny the motion to compel arbitration.

6 2012-00591378HUNTER VS TRUONG7 2011-00495243KIM VS CHAMBI8 2012-00584635RODRIGUEZ VS NORTHGATE9 2012-00605919ROJAS VS HOSPICE TOUCH10 2012-00621246VAUGHN VS ANDERSON11 2011-00468051BANK OF AMERICA VSCHRYSILIOS13 2012-00585817MAYERS VS. CITY OFLAGUNA BEACH(1) Defendant Lannie Truong’s Motion For Judgment on the Pleadingsis granted as to the 1 st , 4 th , 7 th & 8 th Causes of Action with leave toamend. Denied as to the remaining Causes of Action.Plaintiffs shall file and serve their Amended Complaint within thirtydays of the hearing of this motion per CCP § 438(h)(2).Moving party to give notice.(2) Defendant Lannie Truong’s Motion to Expunge Lis Pendens andMechanic’s Lien is granted. The court orders Plaintiff Ruby Hunter’smechanic’s Lien, recorded 08/28/12, as instrument Number2012000498888 and Plaintiff’s Notice of Pending Action recorded thesame date as instrument Number 2012000498876 expungedforthwith. Defendant’s request for attorney’s fees is denied on thebasis that Defendant is self-represented. See Trope v. Katz (1995) 11Cal. 4 th 274.Moving party to give notice.Defendant’s motion to continue trial is granted. The current trial dateof 9/9/13 is continued to 9/16/13 at 8:30 in department 13. Movingparty to give notice.Defendant’s Motions For Order Compelling Plaintiff Cynthia Rodriguezto Serve Verified Responses Without Objections to DefendantNorthgate Gonzales, LLC’s Special Interrogatories, Set No.1, Form Interrogatories, Set No. 1, Request For Production ofDocuments, Set No. 1 are all granted. Plaintiff shall serve verifiedresponses to the discovery without objections and all responsivedocuments within twenty days of the hearing of this motion.Defendant’s Motion For Order Deeming Defendant NorthgateGonzales, LLC’s Request For Admissions, Set No. 1 AgainstPlaintiff Cynthia Rodriguez is granted. Defendant’s Request ForAdmissions, Set No. 1 is deemed admitted by Plaintiff. The court alsoimposes monetary sanctions on all motions in the total sum of$1800.00 against Plaintiff and her counsel of record.Moving party to give notice.SEE ATTACHMENT AT THE END OF THE CALENDAR(1) Defendant Robert Anderson’s Demurrer to The First Cause ofAction in the FAC for Breach of Contract is sustained with leave toamend, on the basis that the FAC fails to adequately allege the termsof the contract between the parties.The Demurrers to the Second and Third Causes of Action areoverruled.(2) The court’s ruling on the Defendant’s Demurrer renders this motionmoot.Plaintiff shall file her amended complaint within ten days of thehearing of this motion.Moving party to give notice.See tentative ruling at end of calendar.Defendant’s motion to continue trial is granted. Trial is continued to9/23/13 at 8:30 am. Deft. to give notice.

11 BANK OF AMERICA VS.CHRYSILIOSCross-defendants Kent Dale Erickson, Karen Erickson, Jeffrey TaylorErickson, Jenna Kristine Erickson, and Christopher Kent Erickson’sDemurrer to Second Amended Cross-Complaint The demurrer issustained in its entirety without leave to amend. 1st cause of actionfails because the postnuptial agreement does not require the Ericksonsto transfer an interest in the partnership to cross-complainants andthe remainder of the claim has not been alleged with the requisitespecificity for the third time. 2nd cause of action fails because crosscomplainantshave failed to allege the existence of a fiduciary oranalogous relationship that gives rise to a duty to account; thepostnuptial agreement does not impose a fiduciary duty or duty toaccount on the Ericksons and Family Code section 721 and 1100impose a statutory fiduciary duty between spouses only. 3rd cause ofaction fails because a cause of action for quiet title for partnershipproperty should be alleged against the partnership, not its individuallimited partners; a limited partner is not a proper party to proceedingsby or against the limited partnership for partnership debts, obligations,or liabilities. Although the court did not grant cross-complainantsleave to add the 4th cause of action for breach of fiduciary duty, thecourt will allow it, but it fails as discussed above under the 2nd causeof action. 7th cause of action fails because cross-complainants havefailed to allege sufficient facts in support of any of their causes ofaction against the Ericksons.Cross-defendants Bank of America, N.A., Successor Trustee of theSmithsoni Family Trust established September 4, 1996 and Executor ofthe Estate of Ireme Hohnstein (Bank of America), and SmithsoniFamily Limited Partnership’s (SFLP) Demurrer to Second AmendedCross-Complaint Bank of America and SFLP’s request for judicialnotice is granted. The demurrer is overruled as to the 3rd cause ofaction; cross-complainants have alleged sufficient facts in support ofthe claim that would justify invalidating BofA and SFLP’s legal title tothe appropriate partnership interest in SFLP. The demurrer issustained without leave to amend as to the 4th cause of action;sections 721 and 1100 impose a statutory fiduciary duty betweenspouses only and to the extent that a fiduciary duty is alleged to arisefrom the postnuptial agreement, it fails because the agreement doesnot impose such a duty. (Wolf v. Superior Court (2003) 106Cal.App.4th 625, 31.) Moreover, given that cross-complainants allegetheir relationship with BofA and SLFP with respect to the subject $6million arose by virtue of BofA’s decision to challenge thecharacterization of the $6 million by bringing this lawsuit, it does notappear that cross-complainants will be able to properly amend thisclaim. The demurrer is overruled as to the 7th cause of action; crosscomplainantshave alleged sufficient facts in support of a constructivetrust against BofA and SFLP.Bank of America and SFLP’s Motion to Strike Portions of SecondAmended Cross-Complaint The motion is moot with respect to the4th cause of action and granted with respect to paragraph 136 per theruling above.

9 2012-00605919ROJAS VS HOSPICE TOUCHThe motions by plaintiff Rosario Rojas to compel defendant HospiceTouch, Inc. to provide further responses to discovery are granted inpart and denied in part, as follows:Form Interrogatories – General, Set One, Interrogatory Nos. 12.1,12.6, 15.1, and 17.1; Form Interrogatories – Employment, Set One,Interrogatory Nos. 201.1, 201.3, 201.4, 201.6, 207.2, and 217.1:Grant. Defendant is ordered to provide full, complete and verifiedfurther responses, without objection, within 10 days. Contactinformation of witnesses is discoverable. (CCP 2017.010.) Plaintiff’sneed for the information outweighs privacy rights of third parties inthis information. Production of information pertaining to third partiesis ordered to be subject to a protective order that the information isnot to be disclosed to anyone other than the parties, their counsel andstaff, or expert witnesses, is not to be used for any purpose outside ofthis litigation, and is to be destroyed after final disposition of thislitigation.Special Interrogatories, Set One:Interrogatory Nos. 6, 9, 24, 30, 33, 48, 73, 78: Grant. Defendant isordered to provide full, complete and verified further responses,without objection, within 10 days. Information to be produced subjectto the protective order described above.Interrogatory Nos. 38, 39, 52, 54, 57: Deny. Witness contactinformation was not requested by these interrogatories.Interrogatory Nos. 63 and 64: Grant. Defendant is ordered to providefull, complete and verified further responses, without objection, within10 days. Information to be produced subject to the protective orderdescribed above.Interrogatory Nos. 65 and 66: Grant in part and deny in part. Furtherresponses are ordered, but are limited to investigations anddisciplinary action taken as a result of the complaints identified inresponse to Interrogatory No. 63 only. Information to be producedsubject to the protective order described above.Interrogatory Nos. 79-82: Grant in part and deny in part. Furtherresponses are ordered, but are limited to complaints of disabilitydiscrimination. Information to be produced subject to the protectiveorder described above.Interrogatory No. 85: Deny. The response to this Interrogatory issufficient.

Rojas v. Hospice Touch (continued):Request for Production of Documents, Set One:Request Nos. 3 and 4: Deny. Moving party has not shown a particularized need for the broad scope ofinformation sought, sufficient to overcome defendant’s privacy objections. This denial is without prejudiceto moving party’s ability to propound more specific requests.Request Nos. 10, 11, 12, 16: Grant. Defendant is ordered to provide full, complete and verified furtherresponses, without objection, and to produce all responsive documents, within 10 days.Request No. 26: Grant in part and deny in part. Further responses are ordered, but document productionis limited to the complaints themselves. Information to be produced subject to the protective orderdescribed above.Request No. 27: Grant. Defendant is ordered to provide full, complete and verified further responses,without objection, and to produce all responsive documents, within 10 days. Information to be producedsubject to the protective order described above.Request No. 28: Grant in part and deny in part. Further responses are ordered, but limited to documentsregarding disciplinary action as a result of investigations prompted by any complaints which are thesubject of Request Nos. 26 and 27. Information to be produced subject to the protective order describedabove.Request No. 32: Grant. Defendant is ordered to provide full, complete and verified further responses,without objection, and to produce all responsive documents, within 10 days. Defendant’s further responseis to comply with CCP 2031.230.Request No. 34: Deny. Other than records pertaining to complaints against Murillo, any resultinginvestigation by defendant, and any disciplinary action taken against Murillo as a result, which are soughtby other document requests, the other documents in Murillo’s personnel file are protected by privacyrights, and moving party has not shown a particularized need for such documents which overcomesMurillo’s privacy rights.Request Nos. 51, 52, 54: Grant. Defendant is ordered to provide full, complete and verified furtherresponses, without objection, and to produce all responsive documents, within 10 days. Information to beproduced subject to the protective order described above.The court declines to impose sanctions.Moving party to give notice.

Department C-13 – Judge Gregory MunozDate: JUNE 13, 2013OBTAINING TENTATIVE RULINGS: All rulings will be posted on the internet athttp://www.occourts.org/tentativerulings/gmunozrulings.htm by 4:00 P.M. (or soon thereafter) on the daybefore the scheduled hearing. The rulings will also be posted outside the courtroom on the bulletin board,no later than 12:00 P.M. on the day of the scheduled motion. The Law and Motion hearings are scheduledon Thursdays at 2:00 P.M. All arguments will be heard at that time. No supplemental or additional paperswill be allowed to be submitted following posting of the ruling on the internet. Nor will the Court entertaina request for continuance once the ruling has been posted.The court will hear oral argument on all matters at the time noticed for the hearing. If you would preferto submit the matter on your papers without oral argument, advise all counsel first and then telephone theclerk at (657) 622-5213. If the moving party has submitted the matter and there are no appearances byany party at the hearing, the tentative ruling will be the final ruling. Moving party is to prepare the Noticeof Ruling for all matters which are submitted.IF NO ONE HAS TELEPHONED THE CLERK TO SUBMIT AND THERE ARE NO APPEARANCES BYANY PARTY, THE MATTER WILL BE TAKEN OFF CALENDAR.# Case Name Tentative2 2013-00642810ARAUJO VS NORTHGATEDefendant, Northgate Gonzales, LLC’s Demurrer to the First Cause ofAction in Plaintiff’s Complaint for Premises Liability is overruled on thebasis that the defect raised by the motion does not appear on the faceof the complaint or by judicial notice, thus it cannot be raised via ademurrer.Moving party to give notice3 2012-00588836BLASMAN VS MCMAHON RVTentative ruling is located at end of calendar.5 2013-00631603DECKARD VS GWCWARRANTY6 2011-00522762ESTRADA VS G.W. BURKE &ASSOCIATES7 2009-00116828GILMAKER VS STANTONDefendant GWC Warranty Corporation’s demurrer to the complaint issustained in its entirety with ten days leave to amend. Plaintiff hasnot alleged the terms of either the express warranty or the impliedwarranty. Further there are insufficient facts to show this used vehiclefalls under the purview of the Song-Beverly Consumer Warranty Act.Motion by defendant Burke to set aside default and default judgment isgranted based on the liberal policy of granting suchmotions. Sanctions are denied, they are not expressly authorized byCCP 473.5. Moving party to give notice.The motion by cross-defendant Deborah Gilmaker to continue trial isdenied. Moving party has not sufficiently shown that a decision inFleischman v. Stanton would operate as res judicata or collateralestoppel in this action. Cross-complainant to give notice.

8 2012-00564406HEURLIN VSCITI MORTGAGEBased upon Plaintiffs’ failure to comply with CCP § 1005(b), Plaintiff’srepeated failure to meet statutory deadlines for responsive pleadingsduring the pendency of this action, and the fact that Plaintiffs untimelyserved Opposition prejudiced the Defendant’s ability to effectivelyreply to such opposition, the court exercises its discretion and declinesto consider Plaintiff’s untimely served & filed opposition. CRC3.1300(d); Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614[overruled on other grounds in Colmenares v. Braemar Country Club,Inc. (1999) 29 Cal.4th 1019].The court determines that based upon the demurrers to the precedingiterations of the Plaintiff’s complaint; Plaintiffs’ failure to cure defectsraised in the prior demurrers; and Plaintiffs’ failure to demonstrate areasonable possibility that the defects in their complaint can be curedby further amendment, that granting further leave to amend would befutile, and on that basis, sustains each of the Defendant’s demurrerswithout leave to amend.Defendant, California Housing Finance Agency’s Demurrer to The FifthCause of Action For Breach of The Implied Covenant of Good Faith andFair Dealing is sustained without leave to amend, on the basis thatthe action appears barred by governmental immunity & Plaintiff’sfailure to present a timely governmental claim, and on the basis thatthe SAC fails to allege the existence of a relationship between Plaintiffsand Defendant that would support this cause of action.The Demurrer to The Twelfth Cause of Action For Negligence issustained without leave to amend, on the basis that the action appearsbarred by governmental immunity & Plaintiff’s failure to present atimely governmental claim, and on the basis that the SAC fails toallege the existence of statutory or regulatory authority that wouldgive rise to a duty of due care.The Demurrer to the Thirteenth Cause of Action For Liability forActions of Independent Contractor Negligence is sustained withoutleave to amend, on the basis that the action appears barred bygovernmental immunity & Plaintiffs’ failure to present a timelygovernmental claim, and on the basis that the SAC fails to allege theexistence of facts that would create an exception to the general rulethat the employer is not liable to third parties for the torts of anindependent contractor.The Demurrer to the Fourteenth Cause of Action For Liability forActions of Employee is sustained without leave to amend, on the basisthat the action appears barred by governmental immunity & Plaintiff’sfailure to present a timely governmental claim, and on the basis thatthe SAC fails to allege the existence of a relationship between Plaintiffsand Defendant that would support this cause of action.10 2012-00590284MARK VS MARKThe Demurrer to the Fifteenth Cause of Action For Violation ofMandatory Duty is sustained without leave to amend, on the basis thatthe action appears barred by governmental immunity & Plaintiff’sfailure to present a timely governmental claim, and on the basis thatthe SAC fails to allege any statutory or regulatory enactment, at eitherfederal or state level, that would give rise to a mandatory duty on thepart of Defendant to give Plaintiffs assistance.Defendant Esther Mark’s motion to compel further response to requestfor production of documents, set one, is granted. Plaintiff shall servefurther, verified responses within ten (10) days.Defendant is awarded sanctions against defendant Richard Mark in theamount of $975.00.

12 2012-00601859RAMIREZ VS BANK OFAMERICADefendants Bank of America, NA, HSBC Bank USA, NA As Trustee ForThe Holders of The JPMorgan Alterative Loan Trust 2006-A7 &Recontrust Company, NA’s Demurrer to The First Cause of Action ForViolation of Civ. Code § 2923.5 is overruled.The Demurrer to The Second Cause of Action For Fraud is sustainedwith leave to amend, on the basis that it fails to sufficiently allege theDefendant’s misrepresentations and the Plaintiff’s proximately causeddamages.The Demurrer to The Third Cause of Action For Cancellation of Deedof Trust is sustained with leave to amend, on the basis that it fails tostate a cause of action and on the basis that a borrower cannot quiettitle against the lender’s deed of trust without full tender of the Loanbalance.The Demurrer to The Fourth Cause of Action For DeclaratoryRelief is sustained without leave to amend, on the basis that thecause of action, seeking a judicial declaration of the rights of theDefendants to conduct the pending non-judicial foreclosure is barredby the holding of Gomes v. Countrywide Home Loans, Inc. (2011) 192Cal.App.4 th 1149, 1155.The Demurrer to The Fifth Cause of Action For Violation of Bus. &Prof. Code § 17200, et seq. is sustained with leave to amend, onthe basis that the FAC fails to allege that the Plaintiff’s claimed injuryin fact is due to the wrongful acts of the Defendants as opposed toPlaintiff’s failure to repay their Loan as agreed.13 2012-00596768AMERICAN EXPRESS VSGHOREISHIPlaintiff’s amended complaint shall be filed an served with ten days ofthe hearing of this motion.Moving party to give notice.Plaintiff American Express Bank, FSB’s motion for leave to file firstamended complaint is granted. Plaintiff is ordered to serve and filethe proposed first amended complaint within 2 days.

3 BLASMAN V. MCMAHON RV Defendant Navistar RV LLC’s Demurrer to First AmendedComplaint – sustained in part and overruled in part. Second cause ofaction for intentional misrepresentation – overruled; the economic lossrule does not bar a cause of action for fraud. Robinson Helicopter Co.,Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 991 (Robinson).) Thirdcause of action for negligent misrepresentation – sustained withoutleave to amend; the claim is barred by the economic loss rule, whichrequires a purchaser to recover in contract for purely economic lossdue to disappointed expectations, unless he can demonstrate harmabove and beyond a broken contractual promise. (Robinson, supra,34 Cal.4th at pp. 988-991.) Sixth cause of action for declaratory relief– overruled; Navistar has entirely failed to address this claim in itsmemorandum of points and authorities. Seventh cause of action forviolation of the Song-Beverly Consumer Warranty Act (Song-BeverlyAct) – overruled; the subject contract was a shipment contract, and itappears that “delivery” was made in California when both partiessigned the subject contract per its express terms (FAC at 9, Exh. A[“Seller agrees to deliver the vehicle to you on the date this contract issigned by Seller and you”]). (Com. Code, § 2401(2); California StateElectronics Assn. v. Zeos Internat. Ltd. (1996) 41 Cal.App.4th 1270,1277; Aquair Ventures, LLC v. Gulf Stream Coach, Inc. (N.D. Cal.2009) 2009 WL 150963.) Eighth cause of action for violation of theConsumer Legal Remedies Act (CLRA) – overruled; improper venue isnot a ground for demurrer. Also, plaintiffs seek both injunctive reliefand damages under this claim; plaintiffs do not need to comply withthe notice and demand provision of the CLRA in order to bring anaction for injunctive relief (Civ. Code, § 1782, subd. (d); Morgan v. AT& T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1260); thusthe demurrer does not dispose of the entire CLRA claim.Navistar’s Motion to Strike is denied in its entirety. The punitivedamages allegations have been requested under the second cause ofaction for intentional misrepresentation. A fraud cause of actionseeking punitive damages need not include an allegation that the fraudwas motivated by the malicious desire to inflict injury upon thevictim. The pleading of fraud is sufficient.Defendant Mega RV Corp. dba McMahon’s RV’s Demurrer toFirst Amended Complaint – McMahon’s request for judicial notice isdenied. The demurrer is sustained in part and overruled in part. Firstcause of action for breach of contract – overruled; plaintiffs havealleged sufficient facts. Second cause of action for intentionalmisrepresentation – overruled; see above under Navistar’sdemurrer. Third cause of action for negligent misrepresentation –sustained without leave to amend; see above. Seventh and eighthcauses of action for violation of Song-Beverly Act and CLRA –overruled; see above.Defendant Mega RV Corp. dba McMahon’s RV’s Motion to Strike– denied in its entirety; see above under Navistar’s motion to strike.

Department C-13 – Judge Gregory MunozDate: JUNE 20, 2013OBTAINING TENTATIVE RULINGS: All rulings will be posted on the internet athttp://www.occourts.org/tentativerulings/gmunozrulings.htm by 4:00 P.M. (or soon thereafter) on the day beforethe scheduled hearing. The rulings will also be posted outside the courtroom on the bulletin board, no later than12:00 P.M. on the day of the scheduled motion. The Law and Motion hearings are scheduled on Thursdays at2:00 P.M. All arguments will be heard at that time. No supplemental or additional papers will be allowed to besubmitted following posting of the ruling on the internet. Nor will the Court entertain a request for continuanceonce the ruling has been posted.The court will hear oral argument on all matters at the time noticed for the hearing. If you would prefer tosubmit the matter on your papers without oral argument, advise all counsel first and then telephone the clerk at(657) 622-5213. If the moving party has submitted the matter and there are no appearances by any party atthe hearing, the tentative ruling will be the final ruling. Moving party is to prepare the Notice of Ruling for allmatters which are submitted.IF NO ONE HAS TELEPHONED THE CLERK TO SUBMIT AND THERE ARE NO APPEARANCES BY ANYPARTY, THE MATTER WILL BE TAKEN OFF CALENDAR.the contract between the parties and on the basis that the cause of action# Case Name Tentative1 2013-00639438AUGUSTINUS VS HOAGMEMORIAL HOSPITALMotion No. 1. Demurrer.Defendant Hoag Memorial Hospital Presbyterian’s Demurrer to the FirstCause of Action For Breach of Contract is sustained with leave to amend,on the basis that the Complaint fails to adequately allege the elements ofappears to be barred by the applicable statute of limitations.The Demurrer to the Second Cause of Action For Common Counts and tothe Fifth Cause of Action for Intentional Infliction of Emotional Distress issustained without leave to amend, based upon the concession in Plaintiff’sOpposition.The Demurrer to the Third Cause of Action For Breach of Implied in FactContract is sustained with leave to amend, on the basis that the Complaintfails to adequately allege the elements of the contract between the partiesand on the basis that the cause of action appears to be barred by theapplicable statute of limitations.The Demurrer to the Fourth Cause of Action For Wrongful Termination inViolation of Public Policy is sustained with leave to amend, on the basis thathe Complaint fails to adequately allege the elements of the termination ofplaintiff’s employment was a violation of public policy, that terminationwas the proximate cause of plaintiff’s damages. Also, the cause of actionappears to be barred by the applicable statute of limitations.2 2011-00474475BECHAROFF CAPITAL VSTOHERMotion No. 2. Motion To Strike.The court’s ruling on the Defendant’s demurrer renders this motion moot.Plaintiff shall file and serve his amended complaint within ten days of thehearing of this motion.Moving party to give notice.Plaintiff’s motion for an assignment order against judgment debtor MaryleaToher is granted.

5 2012-00568740HESSAMI VS SAATCHIJEWELRY6 2012-00566217JACKSON VS NORTHAMERICAN TITLE7 2011-00534180KEA VS HONG11 2013-00633192ORANGE COUNTYTRANSPORTATION VSFULLERTON EAST BUSINESS12 2012-00601597QUINN VS FREDERICK13 2008-00107111SOLLOSY VS HOFFMAN(1) Plaintiff’s motion to compel Defendant Farid Saatchi to respond torequest for production of documents is granted. Defendant shall provideverified responses, without objection, within ten (10) days. Plaintiff isawarded sanctions in the amount of $750.00.(2) Plaintiff’s motion to deem matters admitted in connection with Requestfor Admissions served on Defendants Farid Saatchi and Saatchi JewelryTrading is granted.(Refer to attached tentative ruling at end of calendar).Claimant Russ Redondo’s Motion for Order Satisfying Judgment Creditor’sLien Pursuant to Code of Civil Procedure Section 708.410 is denied withoutprejudice on the ground that it is unnecessary. Under the predecessorstatute to section 708.410, a judgment lien was not created automaticallyby the filing of a notice of lien. Instead, the judgment creditor had to file amotion to obtain a lien, which the court had discretion to grant ordeny. (See Cetenko v. United California Bank (1982) 30 Cal.3d 528, 530,fn. 1.) The motion requirement has not been continued in section 708.410“Subdivision (b) of [s]ection 708.410 provides for the creation of the lienby filing in the pending action or proceeding a notice of lien and an abstracor certified copy of the judgment creditor’s money judgment. Therequirement of a prior court hearing authorizing the creation of the lienunder former [s]ection 688.1 is not continued. … Section 708.410 avoidsthe need for a court hearing before a lien can be created.” (Code Civ.Proc., § 708.410, legislative committee comments.)Plaintiff’s motion for prejudgment possession is granted.Plaintiff Jack Quinn’s Motion For Issuance of Terminating Sanctions isgranted. The court finds that Defendant Blayne Frederick has willfullydisobeyed the court’s order to provide basic, fundamental verifieddiscovery, that Defendant’s failure to provide basic discoveryresponses has caused moving Plaintiff substantial prejudice in hispreparation for trial. Prior less severe sanctions imposed by the court havefailed to obtain Defendant’s compliance, thus issuance of terminatingsanctions is appropriateThe court orders that Defendant Blayne Frederick’s Answer to Plaintiff’sComplaint be stricken and his default entered.Moving party to give notice.Motions nos. 1 and 2 by Plaintiff to set aside Plaintiff’s deemed admissionsto request for admissions, Set No. 1 from Defendants Martin and JenniferHoffman are both granted. Plaintiff is ordered to pay sanctions of $500.00on each motion, in addition to the previously issued sanctions, toDefendants’ counsel within 30 days.Motion no. 3 by Plaintiff to enter Defendants’ default is rendered moot bybased upon the filing and service of an answer to the third amendedcomplaint by Defendants on 5/14/13.Motion no. 4 by Plaintiff for leave to file and serve a fourth amendedcomplaint is denied without prejudice, based upon Plaintiff’s failure to fullycomply with the mandatory requirements of CRC 3.1324(a)(1) and(b). Moving party to give notice.

14 2012-00564101STEWART TITLE VS FIDELITYNATIONAL6 2012-00566217JACKSON VS NORTHAMERICAN TITLECross-defendant Orange Coast Title Company’s Demurrer to the 1 st and 2 ndcauses of action of cross-complainant Pacific Coast Title Company’s crosscomplaintis overruled. Orange Coast Title Company is to answer within 10days.Defendants Long Beach Restaurants Properties, LLC, Fountainhead Delta,LLC and Craig Smith’s demurrer to the second amended complaint (SAC) issustained with 10 days leave to amend. All of plaintiffs’ claims againstthese defendants are barred by the applicable statutes of limitation. Whileplaintiffs attempt to allege delayed discovery, there are insufficient factspled to show that plaintiffs were unable to have made earlier discoverydespite reasonable diligence. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35Cal.4 th 797, 808-809.) Plaintiffs have alleged three defects in the grantdeed: an incorrect address, an incorrect legal description, and an incorrectassessor’s parcel number. The SAC alleges facts explaining why plaintiffsdid not discover that the legal description and assessor’s parcel numberwere incorrect until November 2010. However, there are no facts allegedas to how plaintiffs failed to discover the address on the grant deed wasincorrect at the time the grant deed was delivered. Furthermore, there arinsufficient facts alleged to show how plaintiff Sharon Jackson has standingto allege any claim against moving parties. There are no allegations as towhen Sharon Jackson gained an ownership interest in the property.Defendants Long Beach Restaurants Properties, LLC, Fountainhead Delta,LLC and Craig Smith’s motion to strike is moot in light of the above.Defendants First American Title Insurance Company (First American) andNorth American Title Insurance Company’s (NATIC) demurrers to the SACare sustained. The second cause of action fails because it is based on theescrow agreement; First American and NATIC were not parties to theescrow agreement. (SAC at Exh. F.) The third cause of action failsbecause First American and NATIC were not parties to the escrowagreement (ibid.), First American and NATIC did not issue the preliminarytitle report (id. at Exh. G), NATIC did not issue the policy of title insurance(id. at Exh. B), First American could not have breached the policy of titleinsurance before it was issued (see id. at 52c), and the preliminary titlereport does not impose an obligation to prepare or record the grant deed oto verify the legal description in the grant deed (id. at Exh. G). The fifthcause of action fails because tort liability does not lie for errors inpreliminary title reports or title insurance policies. (Ins. Code, § 12340.11Siegel v. Fidelity National Title Ins. Co. (1996) 46 Cal.App.4th 1181,1193.) The seventh cause of action falls with the second and third causesof action. (See Love v. Fire Insurance Exchange (1990) 221 Cal.App.3d1136, 1153.) The ninth cause of action fails to allege facts showing a dutyto disclose. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th634.) The tenth cause of action fails because it is predicated on all ofplaintiffs’ other causes of action, which fail as discussed above. Theeleventh cause of action fails because it is duplicative of plaintiffs’ otherclaims. Finally, there are no facts alleged to show how plaintiff SharonJackson has standing to allege any claim against these movingparties. Plaintiffs are granted 10 days leave to amend the third, seventh,ninth, and tenth causes of action. The demurrer is sustained as to thesecond, fifth, and eleventh causes of action without leave to amend.Defendant North American Title Company (NATC)’s request for joinder toNATIC’s demurrer is denied. NATC fails to adopt the requests and thepoints and authorities contained in the joining motion and does not seekaffirmative relief on behalf of NATC. (See Barak v. Quisenberry Law Firm(2006) 135 Cal.App.4th 654, 661.)Moving parties to give notice.

Department C-13 – Judge Gregory MunozDate: JUNE 27, 2013OBTAINING TENTATIVE RULINGS: All rulings will be posted on the internet athttp://www.occourts.org/tentativerulings/gmunozrulings.htm by 4:00 P.M. (or soon thereafter) on the day beforethe scheduled hearing. The rulings will also be posted outside the courtroom on the bulletin board, no later than12:00 P.M. on the day of the scheduled motion. The Law and Motion hearings are scheduled on Thursdays at2:00 P.M. All arguments will be heard at that time. No supplemental or additional papers will be allowed to besubmitted following posting of the ruling on the internet. Nor will the Court entertain a request for continuanceonce the ruling has been posted.The court will hear oral argument on all matters at the time noticed for the hearing. If you would prefer tosubmit the matter on your papers without oral argument, advise all counsel first and then telephone the clerk at(657) 622-5213. If the moving party has submitted the matter and there are no appearances by any party atthe hearing, the tentative ruling will be the final ruling. Moving party is to prepare the Notice of Ruling for allmatters which are submitted.IF NO ONE HAS TELEPHONED THE CLERK TO SUBMIT AND THERE ARE NO APPEARANCES BY ANYPARTY, THE MATTER WILL BE TAKEN OFF CALENDAR.privilege. Defendant is ordered to produce copies of the records to Plaintif# Case Name Tentative1 2010-00434087DEATON VS CASA COLINAPlaintiffs’ motion to compel further response to Request no. 53 which wascontinued from 5/23 is granted. The Court has conducted an In Camerareview of the records and finds that said records are not protected by theattorney client and work productwithin 10 days.3 2013-00627469CROULET VS COLLEENO’HARA’S BEAUTYPlaintiff’s motions to quash the deposition subpoenas for production ofbusiness records are granted in part and denied in part. The motion isgranted in part as to the deposition subpoenas for production of businessrecords. (CCP 1987.1). The Court exercises its discretion under 1987.1 tomodify the subpoenas seeking records from the medical providers. Thesesubpoenas are ordered modified to limit production to records of complaintand injuries of urinary tract infections, abdominal pain, kidney infections,and hernia, for a period of five years prior to the date of plaintiff’s hire bydefendant (1/3/11) to the present. The motion is granted as to thesubpoenas to plaintiff’s prior employers. Defendant has not shown acompelling interest in obtaining the records which outweighs plaintiff’sprivacy rights, or that the information sought cannot be obtained by lessintrusive means. Plaintiff’s request for sanctions is denied. Moving party tgive notice.4 2012-00560152GILBOY VS VENTURA FOODS6 2012-00593826PATHOLOGY VS DEVLINDefendant Ventura Foods, LLC’s Motion For Summary Judgment and/orAdjudication is continued to July 18, 2013, for Defendant to file a copy ofthe Notice of Lodgment of Evidence (This is missing in court’s file) insupport of its motion. The parties are authorized to each submitsupplemental briefing, not to exceed six pages to be filed with the court atleast five court days before the continued hearing date, limited to thefollowing issue: Does the court have the authority to hear the Defendant’smotion at all, given electronic service of the motion on 04/12/13 and thenoticed 06/27/13 hearing date, and Plaintiff’s failure to raise service timinin his Opposition. CCP 437c(a) requires 75 plus 2 days for service for atotal of 77 days notice. Here, only 76 days were given. Unless the partiescan stipulate to shortened notice, it does not appear that the Court canshorten time or that Plaintiff has waived it by not raising it. Hence, theCourt requires the above additional briefing.See tentative ruling at end of calendar.

7 2012-00593772PATHOLOGY VS GUERRERO8 2012-00620061UNDERWOOD VS PATELDefendants Robin Champion Scott and West Pacific Medical Laboratory,LLC’s respective Motions to Compel Further Responses to SpecialInterrogatories, Set One, Form Interrogatories, Set One, Requests forProduction, Set One, and Requests for Admission, Set One, are continuedto 7/18. The parties are ordered to further meet and confer in person, andconsider the court’s ruling on defendant Aviir, Inc.’s motions to compel inthe related case, Pathology, Inc. v. Devlin, et al., within 10 days. Theparties are ordered to file joint separate statements on any remainingissues by July 12, 2013, and to deliver courtesy copies of the separatestatements to department C13. One joint separate statement should befiled with respect to Champion-Scott’s discovery and another with respectto West Pacific’s discovery. The court will consider the parties’ request forsanctions with respect to these motions at that time.Motion to be relieved as counsel for plaintiffs is continued to 7/25 at 2pm tallow counsel to serve orders per CRC rule 3.1362 which requires service oorders with respect to 2 of the 3 plaintiffs (Carly Martin and DouglasUnderwood). MC-053 form of order is mandatory.

6 PATHOLOGY V. GUERRERO 1. Defendant Aviir, Inc.’s (Aviir) Motion to Compel Further Responses toSpecial Interrogatories, Set One Granted. Plaintiff Pathology, Inc.days. No. 26 asks “how” defendants purportedly took Pathology’s tradeneeds to explain by what means the trade secrets were taken; eachinterrogatory must be answered completely and to the full the extenta proper objection to an interrogatory. Pathology’s response to No. 66 isconsist of. As for Nos. 69 and 81, the motion is not moot; to utilize Codewritings from which the answer may be derived or ascertained” and thislocate and to identify, as readily as the responding party can, theof Aviir and against Pathology in the amount of $1,500.00.2. Aviir’s Motion to Compel Further Responses to Form Interrogatories, SeOne Granted. Pathology is ordered to provide further full, complete, andstraightforward responses to form interrogatory Nos. 9.2 and 17.1 within15 days. The motion is not moot with respect to No. 9.2; Pathology hasfailed to properly invoke section 2030.230; see above. Pathology’sresponse to No. 17.1 is largely incomplete, omits a response to at least onesubpart of the interrogatory on all but three of the requests for admission(RFA) addressed, entirely fails to address RFA Nos. 21, 22, 33, and 38, andis insufficient where it promises to produces documents in lieu of providinga response per section 2030.230 for the same reasons discussedabove. Sanctions are granted in favor of Aviir and against Pathology in theamount of $1,400.00.3. Aviir’s Motion to Compel Further Responses to Requests for Production,Set One Moot in part and granted in part. The motion is moot as towhether Pathology should be compelled to provide a further response.Pathology produced supplemental responses on May 17, 2013, after thismotion was filed. Whether this purported “document dump” constitutes aproper supplemental response is not at issue in this motion. As forsanctions, given that (1) Aviir served its request for production onPathology on October 4, 2012, (2) Pathology was granted multipleextensions to respond through February 11, 2013, (3) at which pointPathology failed to produce a single document, (4) the fact that Pathologycontinued to refuse to produce a single document along with its amendedresponses on April 1, 2013, and (5) the fact that Pathology did not produceany documents until a month after this motion was filed and more thanseven months after the discovery was served, sanctions are granted infavor of Aviir and against Pathology in the amount of $1,780, payablewithin 20 days..

6 PATHOLOGY V. DEVLIN 4. Aviir’s Motion to Compel Further Responses to Requests for Admission,Set One Granted in part and denied in part.to make a reasonable inquiry concerning the matter and this does notinclude asking its competitors whether they know who its customerswaived the objection; the court agrees that No. 34 can be misleading buttrue, either as expressed in the request itself or as reasonably and clearlyin the request as is untrue.” (Code of Civ. Proc., § 2033.220, subd.(b).) Sanctions are granted in favor of Aviir and against Pathology in theamount of $1,150.00.

Department C-13 – Judge Gregory MunozDate: JUNE 27, 2013OBTAINING TENTATIVE RULINGS: All rulings will be posted on the internet athttp://www.occourts.org/tentativerulings/gmunozrulings.htm by 4:00 P.M. (or soon thereafter) on the day beforethe scheduled hearing. The rulings will also be posted outside the courtroom on the bulletin board, no later than12:00 P.M. on the day of the scheduled motion. The Law and Motion hearings are scheduled on Thursdays at2:00 P.M. All arguments will be heard at that time. No supplemental or additional papers will be allowed to besubmitted following posting of the ruling on the internet. Nor will the Court entertain a request for continuanceonce the ruling has been posted.The court will hear oral argument on all matters at the time noticed for the hearing. If you would prefer tosubmit the matter on your papers without oral argument, advise all counsel first and then telephone the clerk at(657) 622-5213. If the moving party has submitted the matter and there are no appearances by any party atthe hearing, the tentative ruling will be the final ruling. Moving party is to prepare the Notice of Ruling for allmatters which are submitted.IF NO ONE HAS TELEPHONED THE CLERK TO SUBMIT AND THERE ARE NO APPEARANCES BY ANYPARTY, THE MATTER WILL BE TAKEN OFF CALENDAR.privilege. Defendant is ordered to produce copies of the records to Plaintif# Case Name Tentative1 2010-00434087DEATON VS CASA COLINAPlaintiffs’ motion to compel further response to Request no. 53 which wascontinued from 5/23 is granted. The Court has conducted an In Camerareview of the records and finds that said records are not protected by theattorney client and work productwithin 10 days.3 2013-00627469CROULET VS COLLEENO’HARA’S BEAUTYPlaintiff’s motions to quash the deposition subpoenas for production ofbusiness records are granted in part and denied in part. The motion isgranted in part as to the deposition subpoenas for production of businessrecords. (CCP 1987.1). The Court exercises its discretion under 1987.1 tomodify the subpoenas seeking records from the medical providers. Thesesubpoenas are ordered modified to limit production to records of complaintand injuries of urinary tract infections, abdominal pain, kidney infections,and hernia, for a period of five years prior to the date of plaintiff’s hire bydefendant (1/3/11) to the present. The motion is granted as to thesubpoenas to plaintiff’s prior employers. Defendant has not shown acompelling interest in obtaining the records which outweighs plaintiff’sprivacy rights, or that the information sought cannot be obtained by lessintrusive means. Plaintiff’s request for sanctions is denied. Moving party tgive notice.4 2012-00560152GILBOY VS VENTURA FOODSDefendant Ventura Foods, LLC’s Motion For Summary Judgment and/orAdjudication is continued to July 18, 2013, for Defendant to file a copy ofthe Notice of Lodgment of Evidence (This is missing in court’s file) insupport of its motion. The parties are authorized to each submitsupplemental briefing, not to exceed six pages to be filed with the court atleast five court days before the continued hearing date, limited to thefollowing issue: Does the court have the authority to hear the Defendant’smotion at all, given electronic service of the motion on 04/12/13 and thenoticed 06/27/13 hearing date, and Plaintiff’s failure to raise service timinin his Opposition. CCP 437c(a) requires 75 plus 2 days for service for atotal of 77 days notice. Here, only 76 days were given. Unless the partiescan stipulate to shortened notice, it does not appear that the Court canshorten time or that Plaintiff has waived it by not raising it. Hence, theCourt requires the above additional briefing.

7 2012-00593772PATHOLOGY VS GUERRERO8 2012-00620061UNDERWOOD VS PATELDefendants Robin Champion Scott and West Pacific Medical Laboratory,LLC’s respective Motions to Compel Further Responses to SpecialInterrogatories, Set One, Form Interrogatories, Set One, Requests forProduction, Set One, and Requests for Admission, Set One, are continuedto 7/18. The parties are ordered to further meet and confer in person, andconsider the court’s ruling on defendant Aviir, Inc.’s motions to compel inthe related case, Pathology, Inc. v. Devlin, et al., within 10 days. Theparties are ordered to file joint separate statements on any remainingissues by July 12, 2013, and to deliver courtesy copies of the separatestatements to department C13. One joint separate statement should befiled with respect to Champion-Scott’s discovery and another with respectto West Pacific’s discovery. The court will consider the parties’ request forsanctions with respect to these motions at that time.Motion to be relieved as counsel for plaintiffs is continued to 7/25 at 2pm tallow counsel to serve orders per CRC rule 3.1362 which requires service oorders with respect to 2 of the 3 plaintiffs (Carly Martin and DouglasUnderwood). MC-053 form of order is mandatory.

6 PATHOLOGY V. GUERRERO 1. Defendant Aviir, Inc.’s (Aviir) Motion to Compel Further Responses toSpecial Interrogatories, Set One Granted. Plaintiff Pathology, Inc.days. No. 26 asks “how” defendants purportedly took Pathology’s tradeneeds to explain by what means the trade secrets were taken; eachinterrogatory must be answered completely and to the full the extenta proper objection to an interrogatory. Pathology’s response to No. 66 isconsist of. As for Nos. 69 and 81, the motion is not moot; to utilize Codewritings from which the answer may be derived or ascertained” and thislocate and to identify, as readily as the responding party can, theof Aviir and against Pathology in the amount of $1,500.00.2. Aviir’s Motion to Compel Further Responses to Form Interrogatories, SeOne Granted. Pathology is ordered to provide further full, complete, andstraightforward responses to form interrogatory Nos. 9.2 and 17.1 within15 days. The motion is not moot with respect to No. 9.2; Pathology hasfailed to properly invoke section 2030.230; see above. Pathology’sresponse to No. 17.1 is largely incomplete, omits a response to at least onsubpart of the interrogatory on all but three of the requests for admission(RFA) addressed, entirely fails to address RFA Nos. 21, 22, 33, and 38, andis insufficient where it promises to produces documents in lieu of providinga response per section 2030.230 for the same reasons discussedabove. Sanctions are granted in favor of Aviir and against Pathology in theamount of $1,400.00.3. Aviir’s Motion to Compel Further Responses to Requests for Production,Set One Moot in part and granted in part. The motion is moot as towhether Pathology should be compelled to provide a further response.Pathology produced supplemental responses on May 17, 2013, after thismotion was filed. Whether this purported “document dump” constitutes aproper supplemental response is not at issue in this motion. As forsanctions, given that (1) Aviir served its request for production onPathology on October 4, 2012, (2) Pathology was granted multipleextensions to respond through February 11, 2013, (3) at which pointPathology failed to produce a single document, (4) the fact that Pathologycontinued to refuse to produce a single document along with its amendedresponses on April 1, 2013, and (5) the fact that Pathology did not produceany documents until a month after this motion was filed and more thanseven months after the discovery was served, sanctions are granted infavor of Aviir and against Pathology in the amount of $1,780, payablewithin 20 days..

6 PATHOLOGY V. DEVLIN 4. Aviir’s Motion to Compel Further Responses to Requests for Admission,Set One Granted in part and denied in part.to make a reasonable inquiry concerning the matter and this does notinclude asking its competitors whether they know who its customerswaived the objection; the court agrees that No. 34 can be misleading buttrue, either as expressed in the request itself or as reasonably and clearlyin the request as is untrue.” (Code of Civ. Proc., § 2033.220, subd.(b).) Sanctions are granted in favor of Aviir and against Pathology in theamount of $1,150.00.

Department C-13 – Judge Gregory MunozDate: JULY 25, 2013OBTAINING TENTATIVE RULINGS: All rulings will be posted on the internet athttp://www.occourts.org/tentativerulings/gmunozrulings.htm by 4:00 P.M. (or soon thereafter) on the daybefore the scheduled hearing. The rulings will also be posted outside the courtroom on the bulletin board,no later than 12:00 P.M. on the day of the scheduled motion. The Law and Motion hearings are scheduledon Thursdays at 2:00 P.M. All arguments will be heard at that time. No supplemental or additional paperswill be allowed to be submitted following posting of the ruling on the internet. Nor will the Court entertaina request for continuance once the ruling has been posted.The court will hear oral argument on all matters at the time noticed for the hearing. If you would preferto submit the matter on your papers without oral argument, advise all counsel first and then telephone theclerk at (657) 622-5213. If the moving party has submitted the matter and there are no appearances byany party at the hearing, the tentative ruling will be the final ruling. Moving party is to prepare the Noticeof Ruling for all matters which are submitted.IF NO ONE HAS TELEPHONED THE CLERK TO SUBMIT AND THERE ARE NO APPEARANCES BYANY PARTY, THE MATTER WILL BE TAKEN OFF CALENDAR.# Case Name Tentative1 2012-00583769ALLSTATE VS PACIFIC(1) Plaintiff Allstate’s motion for summary adjudication is denied in itsentirety. There are triable issues of fact as to whether or notdefendant’s refusal to defend the underlying action wasreasonable. Specifically, there are triable issues of fact as to UMF no.7 and defendant’s additional disputed material facts 1 through 17.(2) Defendant Pacific Specialty Insurance Company’s motion forsummary judgment, or in the alternative, summary adjudication isdenied in its entirety. There are triable issues of fact as to whether ornot defendant’s refusal to defend the underlying action wasreasonable. Specifically, there are triable issues of fact as to UMF #5,8, 18, 21 and Additional Disputed Material Facts 1 through 7.

2 2011-00502774BUI VS BAC HOME LOANS3 2011-00529550KIM VS LEE4 2011-00489741KOLOSOW VS A.L.ENGINEERINGMotion no. 1. Defendant, Bank of America, NA’s Motion to CompelFurther Responses to Defendant’s Special Interrogatories, Set No. 1and For Sanctions is granted. Plaintiff Steven Bui is ordered to servefurther full and complete responses, without objections, as to SpecialInterrogatories, Set No, 1, Interrogatories No. 1-4, 6, 7, 8, 13-15. Tothe extent Plaintiff has made a good faith investigation in order torespond to the interrogatory and lacks information to provide acomplete response, the verified response shall so state. The courtimposes monetary sanctions against Plaintiff and his counsel in theamount of $980.00.Motion no. 2. Defendant’s Motion to compel further responses toform interrogatories and sanctions is granted. Plaintiff is ordered toserve further full and complete responses, without objections, as toform interrogatories, Set No. 1 nos. 4.1, 8.7, 8.8, 9.1, 9.2, 14.1, and17.1. To the extent plaintiff has made a good faith investigation inorder to response to the interrogatory and lacks information to providecomplete a response, the verified response shall so state. Sanctionsare imposed against plaintiff and his counsel in the amount of$980.00.Motion no. 3. Defendant’s motion to compel further responses todefendant’s request for production of documents and for sanctions isgranted. Plaintiff is ordered to serve further full and completeresponses, without objections, as to Nos. 1-4, 15-17, 22 and 23. Theresponses shall be limited to an unconditional statement of complianceor an unconditional statement of inability to comply in accordance withCCP 2031.230. Sanctions imposed against plaintiff and his attorney inthe sum of $980.00.Motion no. 4. Defendant’s motion to compel further responses torequests for admissions and for sanctions is granted. Plaintiff isordered to serve further full and complete responses, withoutobjections as to nos. 1 through 12, inclusive, in conformity with CCP2033.280. Sanctions are imposed against plaintiff and his counsel inthe sum of $1250.00.Plaintiff is ordered to serve responses to the four motions within 15days from the date of the hearing of these motions. Defendant is togive notice as to all four motions.Motion by plaintiff Kim to compel further responses to discovery andfor terminating sanctions against defendant Hye Young Lee, arecontinued to 12/12/13 at 2PM. Plaintiff’s counsel is to file a report asto the status of the bankruptcy no later than 12/03/13.Motion No. 1. Demurrer.Plaintiff Alexander Kolosow’s Demurrers to the Fourth Cause of Actionin the First Amended Cross-Complaint For Failure to State a Cause ofAction, Uncertainty and Failure to Allege Whether the Contract wasOral, Written or Implied by Conduct are all overruled.Motion No. 2. Motion To Strike.Plaintiff Alexander Kolosow’s Motion to Strike Attorney’s FeesAllegations From the First Amended Cross-Complaint is granted withleave to amend. The amended cross-complaint shall be filed andserved within ten days of the hearing of this motion.Plaintiff’s request to apply the pending SLAPP motion to any amendedcomplaint filed by Cross-Complainant is denied. The issue was notproperly noticed, cannot be raised for the first time upon reply, andthe filing of an amended pleading renders the previous pleading anullity. Morehead v. Turner (1940) 41 Cal.App.2d 414, 418. ShouldCross-Complainant choose to file an amended cross-complaint, theappropriate motions can be directed to that amended pleading withinthe statutory period.Moving party to give notice.

5 2012-00614932MARTINEZ VS O’HARA7 2012-00620061UNDERWOOD VS PATEL9 LEE VS SELECT PORTFOLIO2013-0064608310 2011-00646083LARIJANI VS BANIASSADSee ruling at end of calendar.Motion by attorney Fernando D. Vargas to withdraw as counsel ofrecord for clients Daylan Thomas Underwood, Douglas Underwood andCarly martin is granted. Attorney Vargas to give notice.The demurrer by defendant Select Portfolio Services, Inc. to thecomplaint is sustained, with leave to amend, based on failure to statefacts sufficient to constitute a cause of action. (CCP 430.10(e).) Thefirst cause of action fails to state sufficient facts to show that theycomplied with the requirements of CC 2923.6(g) to “document” and“submit” a material change in financial circumstances. The secondcause of action fails because there is no legal authority for a plaintiff tobring a lawsuit and require a defendant to prove its right toforeclose. (Gomes v. Countrywide (2011) 121 Cal.App.4 th 1149,1154-1155.) The third cause of action fails because there is no othervalid cause of action alleged which can support a violation of B&P17200. The fourth cause of action fails because there are insufficientfacts alleged to show that defendants owed a duty of care toplaintiffs. The fifth cause of action fails to allege that there is someamount due and owing to plaintiffs.Plaintiffs are granted 10 days leave to amend. Moving party to givenotice.Defendant Amir Baniassad’s objections to plaintiff Misty Larijani’sevidence are all sustained. Plaintiff’s motion for reconsideration isdenied. The first, second, and fifth “new facts” are irrelevant towhether defendant should have been granted damages sustained aresult of the preliminary injunction pursuant to Code of Civil Proceduresection 996.440, or the amount of those damages. The third “newfact” is unintelligible, unsubstantiated, and unsupported by anyexplanation as to why it was not raised at the time of the originalhearing on May 2, 2013. The fourth “new fact” is also unsubstantiatedand unsupported by any explanation as to why it was not raised onMay 2, 2013

5 MARTINEZ VS O’HARA 1. Plaintiff Fernando Martinez’s motion for reconsideration is denied.Plaintiff has not presented new or difference facts, circumstances orlaw.2. Defendants Stephen Stratton O’Hara fka Stephen John O’Hara(O’Hara), Career Solutions and Candidate Acquisitions (CSCA),Professional Realty Council, Inc. (PRC), and Pacific Valley Realty, Inc.’s(Pacific Valley) demurrer to the fourth amended complaint is overruledin part and sustained in part as discussed below. The court refuses toconsider the declaration of Benjamin Pavone submitted in support ofthe opposition. Both parties are admonished to review California Rulesof Court, rule 3.1113, subdivisions (a) and (g). First cause of actionfor fraud as alleged against CSCA, PRC, and Pacific Valley sustainedwith 10 days leave to amend; plaintiff has failed to allege sufficientfacts in support of vicarious liability and the conspiracy/alter egoallegations are conclusory. First cause of action as alleged againstO’Hara overruled; sufficient facts have been alleged. Second causeof action for false advertising overruled; plaintiff has sufficientlyalleged economic injury at paragraphs 21-23, 46-47, 210, and that hewas a consumer of CSCA’s career placement services at paragraphs104-105; a reasonable trier of fact could reasonably conclude that thepresentation that “you can expect to earn $45,000 and $65,000 inyour first year” constitutes a representation of fact. Third cause ofaction for unfair business practices overruled; plaintiff’s secondcause of action does not fail. Fouth cause of action for “Labor Code”violation overruled; the facts alleged do not show the claim is barredby res judicata/collateral estoppel as discussed in Murray v. AlaskaAirlines, Inc. (2010) 50 Cal.4th 860, 875-878; the demurrer to theportion of the claim concerning Labor Code section 2699.3 failsbecause it does not dispose of the entire cause of action Fifth cause ofaction for sexual harassment the claim is dismissed as allegedagainst PRC and Pacific Valley per plaintiff’s representation, andsustained as to the remainder of the claim with 10 days leave toamend; plaintiff has failed to allege sufficient facts showing plaintiffhas exhausted his administrative remedies. Sixth cause of action for“request for alter ego findings” overruled; defendants’ argument thatalter ego cannot be used to reverse piece the corporate veil does notdispose of the entire claim.3. Defendants’ motion to strike portions of the fourth amendedcomplaint the motion is denied with respect to the request forattorney fees at paragraph 241 of the complaint and paragraph 6 ofthe prayer per Labor Code section 218.5; the motion is granted with10 days leave with respect to the request for attorney fees per Code ofCivil Procedure section 1021.5 with 10 days leave to amend as plaintiffhas failed to allege sufficient facts demonstrating his entitlement tofees under this section; the motion is moot with respect to the requestfor fees under FEHA.Moving party to give notice.

Department C-13 – Judge Gregory MunozDate: AUGUST 01, 2013OBTAINING TENTATIVE RULINGS: All rulings will be posted on the internet athttp://www.occourts.org/tentativerulings/gmunozrulings.htm by 4:00 P.M. (or soon thereafter) on the daybefore the scheduled hearing. The rulings will also be posted outside the courtroom on the bulletin board,no later than 12:00 P.M. on the day of the scheduled motion. The Law and Motion hearings are scheduledon Thursdays at 2:00 P.M. All arguments will be heard at that time. No supplemental or additional paperswill be allowed to be submitted following posting of the ruling on the internet. Nor will the Court entertaina request for continuance once the ruling has been posted.The court will hear oral argument on all matters at the time noticed for the hearing. If you would preferto submit the matter on your papers without oral argument, advise all counsel first and then telephone theclerk at (657) 622-5213. If the moving party has submitted the matter and there are no appearances byany party at the hearing, the tentative ruling will be the final ruling. Moving party is to prepare the Noticeof Ruling for all matters which are submitted.IF NO ONE HAS TELEPHONED THE CLERK TO SUBMIT AND THERE ARE NO APPEARANCES BYANY PARTY, THE MATTER WILL BE TAKEN OFF CALENDAR.# Case Name Tentative1 2013-00631311BELTRAN VS PELICAN CRESTPlaintiffs in Intervention, Certain Underwriters For Lloyds LondonCertificate No. 09HSOM5568’s Motion For Leave to File a Complaint inIntervention is continued to 10/03/13 at 2PM to allow moving part tofile proof of electronic service of the motion containing the informationrequired by CRC 2.251, including: “…The name and electronic serviceaddress of the person served…”Moving party to give notice.3 2012-00574192CHAYET VS GREENThe motion by plaintiff Nanice Chayet to file a First AmendedComplaint is granted. (CCP 473(a).) The proposed First AmendedComplaint lodged with the moving papers is deemed filed and servedon both defendants as of the date of the hearing.Based on the ruling granting plaintiff’s motion for leave to amend,defendants’ motions for summary judgment are moot.The Court will discuss with counsel the possible need to continue theMSC and Trial dates. Plaintiff to give notice.4 2011-00485636DIAZ VS PESA’H CORP.5 2012-00608022HAYNER VS THE BANK OFNEW YORK6 2012-00575135LOCKWOOD-DEVRIES VSRESIDENCE INNMotion by attorney Jorge S. Reyes, Reyes & Barsoum, to withdraw ascounsel of record for plaintiff Diaz is denied without prejudice. Noproof of service and insufficient efforts to locate client.The demurrer to each cause of action in the verified second amendedcomplaint is sustained without leave to amend, as plaintiff’s claims arebarred by the doctrine of judicial estoppel.The motion by defendants The RIM Corporation and Holiday GardenSF, Inc. to compel the deposition of non-party Michele Lockwood-Devries, and to continue trial, is denied. Moving parties have notserved a deposition subpoena on Ms. Lockwood-Devries, which isrequired in order for the court to have jurisdiction and compel theattendance of a non-party. (CCP 2020.220(c) and 2025.280(b).) Asthe request for deposition is denied, the request to continue trial isalso denied. Plaintiffs to give notice.

9 2012-00614932MARTINEZ VS O’HARA13 2012-00601206SCHOBERT VS WESTLIFFMEDICAL14 2008-00107111SOLLOSY VS HOFFMAN17 2013-00624358THE REGENTS VS ORANGECOUNTY HEALTHDefendants Stephen Stratton O’Hara fka Stephen John O’Hara, CareerSolutions and Candidate Acquisitions, Professional Realty Council, Inc.,and Pacific Valley Realty, Inc.’s motion for sanctions pursuant to Codeof Civil Procedure section 128.7 is granted in part and denied inpart. The court finds that plaintiff Fernando Martinez and his counsel,Benjamin Pavone, have not violated section 128.7, subdivision (b)(1),but that they have violated subdivision (b)(2) by filing the subjectmotion for reconsideration without any new facts, law orcircumstances, and without an explanation as to why any of the “new”facts, law or circumstances was not raised earlier. Sanctions aregranted in favor of defendants and against plaintiff’s counsel,Benjamin Pavone, in the amount of $600 plus filing fees which aresufficient to deter repetition of the conduct at issue.Defendant Patricia Korber’s Motion to Compel Plaintiffs to Submit toArbitration and Stay action is granted. Plaintiffs are ordered to submittheir claims against Defendant Korber to arbitration pursuant to thearbitration agreement between decedent Dana Schobert and NewportBeach OB/GYN Medical Group, Inc.The action is ordered stayed as between Plaintiffs and DefendantPatricia Korber and the court sets a post arbitration conference for1/22/14 at 2PM.Moving party to give notice.Plaintiff Gail Sollosy’s Motion For Leave to File and ServeFourth Amended Complaint is granted. Because the proposedamended complaint is attached as an exhibit a copy of the 4 thamended complaint is ordered served on defendants forthwith. Ifdefendants feel that they have to conduct additional discoveryconcerning the new causes of action, the court will discuss this withthe parties. Plaintiff to give notice.Defendant Orange County Health Authority dba CalOptima’s demurrerto the first amended complaint is sustained in its entirety with 10 daysleave to amend. Plaintiff, The Regents of the University of Californiaon behalf of the University of California Irvine Medical Center, hasfailed to alleged compliance with the Tort Claims Act as required byGovernment Code section 935 and CalOptima policy No. AA.1217.( See also W&I Code section 14087.54).

Department C-13 – Judge Gregory MunozDate: AUGUST 08, 2013OBTAINING TENTATIVE RULINGS: All rulings will be posted on the internet athttp://www.occourts.org/tentativerulings/gmunozrulings.htm by 4:00 P.M. (or soon thereafter) on the day beforethe scheduled hearing. The rulings will also be posted outside the courtroom on the bulletin board, no later than12:00 P.M. on the day of the scheduled motion. The Law and Motion hearings are scheduled on Thursdays at2:00 P.M. All arguments will be heard at that time. No supplemental or additional papers will be allowed to besubmitted following posting of the ruling on the internet. Nor will the Court entertain a request for continuanceonce the ruling has been posted.The court will hear oral argument on all matters at the time noticed for the hearing. If you would prefer tosubmit the matter on your papers without oral argument, advise all counsel first and then telephone the clerk at(657) 622-5213. If the moving party has submitted the matter and there are no appearances by any party atthe hearing, the tentative ruling will be the final ruling. Moving party is to prepare the Notice of Ruling for allmatters which are submitted.IF NO ONE HAS TELEPHONED THE CLERK TO SUBMIT AND THERE ARE NO APPEARANCES BY ANYPARTY, THE MATTER WILL BE TAKEN OFF CALENDAR.points and authorities also fails to address the element of malice. Plaintiffhas also entirely failed to address the merits of the second cause of action# Case Name Tentative2 2013-00630572BURKE VS NOWLANDDefendant Bekir Besen’s Special Motion to Strike Pursuant to Code of CivilProcedure Section 425.16 is granted. Plaintiff has failed to demonstrate aprobability of prevailing on the merits of his claims. Plaintiff has failed tosubmit a copy of the underlying complaint or clearly articulate the claimsmade in the underlying action and as such, it is uncertain whether thoseclaims were brought without probable cause; plaintiff’s memorandum offor intentional infliction of emotional distress. Reasonable attorney feesand costs are granted in favor of defendant and against plaintiff in theamount of $3,445.3 2013-00647346CARROLL VS ONEWEST BANKSee tentative ruling at end of calendar.4 2013-00652315CLEAR VUE VS FIRSTAMERICAN5 2012-00590588GARCIA VS FITNESS6 2013-00628102HEITMAN VS OCWEN LOANMotion to Appear Pro Hac Vice is continued to 8/29/13 at 2PM in order thamoving party may comply with CRC 9.40(c)(1) which requires service oState Bar.The court declines to rule upon Plaintiff’s Objections, as they are objectionsto the Separate Statement, not the evidence in support of the SeparateStatement. Had the court ruled, the objections would have been overruled,as the Plaintiff’s discovery responses in support of the motions sufficientlyauthenticate the Membership Agreement.Defendant, Fitness International, LLC’s Motion For Summary Judgment isgranted. Defendant met its initial burden to show that no triable issue ofmaterial fact existed as to the affirmative defense of Express Release andWaiver of Liability, which is applicable to both causes of action in theComplaint, and Plaintiff’s Opposition failed to provide any evidence thatcreated a triable issue of material fact as to such affirmative defense.Moving party to give notice.The court exercises its discretion and has considered Plaintiff's untimelyfiled and untimely served Opposition.Ocwen Loan Servicing, LLC’s Motion To Dismiss is denied, based upon thecourt’s exercise of its discretion to allow Plaintiff’s counsel to correct hismistake of not timely filing and serving an amended complaint. Under CCP473(a), the terms for such relief are that Plaintiff shall pay Defendant’scounsel $500.00 as compensation for the costs and fees incurred in thebringing of this motion. Plaintiff is granted leave to file an amendedcomplaint in the form attached to the Opposition and shall immediately fileand serve said complaint.Moving party to give notice.

7 2011-00525763METZGER VS TOMPKINS8 2013-00624505MORENO VS WELLS FARGO9 2012-00589263NARVAEZ VS GARDEN GROVEHOSPITAL10 2011-00519887SHAPELL INDUSTRIES VSMOULTON NIGUEL WATERDISTRICTMotion for summary judgment by defendants is denied. Moving partieshave not met their initial burden on summary judgment to presentevidence showing that one or more elements of the cause of action cannotbe established, or that there is a complete defense to that cause ofaction. (See CCP 437c(o), (p)(2) and In re marriage of Borson (1974) 37Cal.App. 3d 632).Defendant Wells Fargo Bank, Na’s Demurrer to the First Cause of Action FoBreach of Contract Third Party Beneficiary is sustained. Pl. failed to pleadsufficient facts showing that she was an intended third party beneficiary ofDefendant’s HAMP and SPA agreements.The Demurrer to the 2 nd C/A For Constructive Fraud is sustained. TheComplaint fails to adequately allege facts that would create a fiduciary orother special relationship between Pl. and Defendant.The Demurrer to the 3 rd C/A For Violation of Civ. Code § 2923.5 issustained. The Complaint fails to adequately allege the facts demonstratingDefendant’s violation of the minimal assessment and inquiry requirementsunder Section 2329.5.The Demurrer to the 4th C/A For Violation of Civ. Code § 2923.5 issustained. The Complaint fails to allege facts showing that Pl. has aprivate right of action under the pre-2013 version of Sect. 2923.6.The Demurrer to the 5 th C/A For Violation of Civ. Code 2923.7 issustained. The Complaint fails to adequately allege actions by theDefendant that bring this foreclosure within its operation.The Demurrer to the 5 th C/A For Promissory Estoppel is sustained. TheComplaint fails to adequately allege how, when, where, to whom and bywhat means the representations by Wells Fargo were tendered and on thebasis that that the statements attributed to Wells Fargo employees do notconstitute a clear and unambiguous promise.The Demurrer to the 7 th C/A For Negligence is sustained. The Complaintfails to adequately allege facts that would give rise to the predicate duty ofdue care between Defendant and Plaintiff.The Demurrer to the8th C/A for negligent Misrepresentation issustained. The Complaint fails to adequately allege how, when, where, towhom and by what means the representations by Wells Fargo weretendered and on the basis that that the statements attributed to WellsFargo employees do not constitute false representations of material fact.The Demurrer to the 9 th C/A For Violation of Bus. & Prof. Code 17200 issustained. The Complaint fails to adequately allege the predicate unlawful,fraudulent or unfair conduct by Defendants. The Complaint also fails toallege facts showing Plaintiff’s injuries were proximately caused by theDefendant’s actions, as opposed to Plaintiff’s inability to repay the subjectLoan as agreed.All causes of action are sustained with leave to amend. Plaintiff shall fileand serve an amended complaint within ten days of the hearing of thismotion.Moving party to give notice.Defendant Mutual Pharmaceutical Company’s motion to quash service ofsummons and complaint is continued to 10/17/13, to give plaintiff anopportunity to conduct jurisdictional discovery.The demurrer by defendant Moulton Niguel Water District to the ThirdAmended Complaint is overruled. Defendant is ordered to file an Answer tthe Third Amended Complaint within 10 days. Plaintiff to give notice.

11 2013-00643916SUPER COLOR DIGITAL VSPOWERS12 2012-00617193TOTAL CABLE SOLUTIONS VSONCORE CABLES13 2013-00649854ZALDIVAR VS THE BANK OFNEW YORKDefendants’ motion for protective order is granted in part and denied inpart as to plaintiff’s request for a site inspection of the business premises odefendant D’Andrea Visual Communications, LLC. The court orders thatplaintiff may inspect and photograph the interior layout only. Theinspection is to take place within 30 days, on a date mutually agreeable tothe parties, and is not to last more than one business day (eighthours). The court further orders that any photographs of the premises aresubject to a protective order that they not be disclosed to anyone outsideof this litigation, other than the parties, staff, counsel and experts.The motion is denied as to the written discovery demands, withoutprejudice to defendants’ ability to assert any applicable objections as to anindividual request. The court declines to issue a blanket protectiveorder. The court orders that defendants are to provide responses within 15days to plaintiff’s First Set of Requests for Production to defendants. It isunclear whether these defendants have previously asserted any objectionsto this discovery, or whether there is any agreement between the parties tstay these defendants’ responses to this discovery until the instant motionis heard. Thus, the court further orders that these defendants’ right toraise objections has not been waived, and that defendants may raise anyapplicable objections in their responses to be provided in accordance withthis order.Moving parties to give notice.Plaintiff’s motion to strike defendant Oncore Cable’s answer and enterdefault is granted.Plaintiff Michael Zaldivar’s motion to consolidate is denied withoutprejudice. The defendant has not yet appeared in this action and there isno proof of service of the summons and complaint on file.

3 CARROLL V. ONEWEST BANK The Demurrer to the first cause of action for violation of the Security FirstRule is sustained without leave to amend on the basis that the SecurityFirst Rule is not a cause of action.The Demurrer to the 2 nd C/A For Breach of Contract is sustained. TheComplaint fails to adequately allege the elements of an enforceablecontract and Plaintiff’s performance.The Demurrer to the 3rd C/A For Promissory Estoppel is sustained. TheComplaint fails to adequately allege the elements of a clear andunambiguous promise and Plaintiff’s reasonable and foreseeable reliance.The Demurrer to the 4 th C/A For Negligence is sustained. The Complaintfails to allege facts to establish a relationship between the parties thatwould give rise to a duty of due care between Plaintiff and the DefendantOne West Bank, NA.The Demurrer to the 5 th C/A For Negligent Misrepresentation is sustained.The Complaint fails to adequately allege how, when, where, to whom andby what means the representations by One West Bank were tendered.The Demurrer to the 6 th C/A For Intentional Misrepresentation issustained. The Complaint fails to adequately allege how, when, where, towhom and by what means the representations by One West Bank weretendered.The Demurrer to the 7 th C/A For Violation of Bus. & Prof. Code 17200 issustained. The Complaint fails to adequately plead facts showing thepredicate unlawful, fraudulent or unfair business pract6ices by Defendant.The Complaint also fails to allege facts demonstrating Plaintiff’s injury infact caused by the actions of the Defendants, as opposed her own failure torepay her Loan as agreed.The Demurrer to the 8 th C/A For Quiet Title is sustained. The Complaintfails to adequately allege Plaintiff has tendered all sums due under herLoan.The Demurrer to the 9 th C/A For Declaratory Relief is sustained. Thiscause of action, seeking to have the court declare that the Defendants lackpower or authority to exercise the power of sale in her Deed of Trust isbarred by the holding in Gomes v. Countrywide Home Loans, Inc. (2011)192 Cal.App.4 th 1149.With the exception of the First Cause of Action, leave to amend is grantedas to all causes of action. Plaintiff shall file and serve an amendedcomplaint within ten days of the hearing of this motion.Moving party to give notice.

Department C-13 – Judge Gregory MunozDate: AUGUST 15, 2013OBTAINING TENTATIVE RULINGS: All rulings will be posted on the internet athttp://www.occourts.org/tentativerulings/gmunozrulings.htm by 4:00 P.M. (or soon thereafter) on the daybefore the scheduled hearing. The rulings will also be posted outside the courtroom on the bulletin board, nolater than 12:00 P.M. on the day of the scheduled motion. The Law and Motion hearings are scheduled onThursdays at 2:00 P.M. All arguments will be heard at that time. No supplemental or additional papers will beallowed to be submitted following posting of the ruling on the internet. Nor will the Court entertain a request forcontinuance once the ruling has been posted.The court will hear oral argument on all matters at the time noticed for the hearing. If you would prefer tosubmit the matter on your papers without oral argument, advise all counsel first and then telephone the clerk at(657) 622-5213. If the moving party has submitted the matter and there are no appearances by any party atthe hearing, the tentative ruling will be the final ruling. Moving party is to prepare the Notice of Ruling for allmatters which are submitted.IF NO ONE HAS TELEPHONED THE CLERK TO SUBMIT AND THERE ARE NO APPEARANCES BY ANYPARTY, THE MATTER WILL BE TAKEN OFF CALENDAR.# Case Name Tentative2 2009-00118716HAN VS MARMOLPlaintiff’s motion to vacate arbitration award is denied. ( See Moncharsh v.Heily & Blasé (1992) 3 Cal.4 th 1 and CCP 1286.6). Plaintiff’s request forjudicial notice is granted. Defendant to give notice.4 2011-00489871KIM VS KONAD5 2013-00631441MARUSICH VS ROBERTS6 2012-00560377O VS WESTERN DENTAL1) On Plaintiff’s Motion for attorneys’ fees and costs the court finds thatPlaintiff is the prevailing party herein and awards Plaintiff attorney’s feesin the amount of $78,797.25 and costs of $2,276.94 against DefendantsKonad USA Distribution, Inc. and Dong Whang, jointly and severally. Thecourt declines to award a multiplier on the Plaintiff’s lodestar amount ofattorney’s fees or costs.2) Defendants’ Motion for attorneys’ fees is granted in part and denied inpart. Based upon Plaintiff’s concession as to reasonableness, Defendantsare awarded $5000.00 in attorneys’ fees for the breach of contractclaim. All other requests for attorneys’ fees are denied.The demurrer is untimely and without merit. It appears that defendantsseek to somehow bolster their own defense by including OPC in thisaction, even though title is not in dispute. The reasoning is even moreunclear, as the property’s status can readily be determined through publicrecords. The demurrer is overruled in its entirety. Defendants to answerwithin 15 days.Defendant Western Dental Services, Inc.’s motion for summary judgmentis granted in its entirety. Defendant has met its initial burden showingplaintiff cannot prove an essential element of her claims. Plaintiff has notresponded with evidence raising a triable issue of fact for any of theclaims.The 1 st , 2 nd and 5 th causes of action fail as defendant has offered sufficientproof plaintiff was an “at-will” employee and could therefore be terminatedfor any reason or no reason at all. Plaintiff has not responded withevidence raising a triable issue of fact in response.The 3 rd and 4 th causes of action fail as a matter of law as they arepreempted by the Workers’ Compensation exclusivity doctrine.8 2012-00558693PINON VS THIPAVONG9 2012-00605240SANCHEZ VS MID-CENTURYINSURANCEPlaintiff’s motion for terminating sanctions will be granted if Defendantshave not complied with the 4/12/13, discovery orders by the time of the8/15 hearing.Defendant’s motions to compel Plaintiff to further respond to four sets ofdiscovery are rendered moot (except for sanctions) in view of the factthat further responses have been served to each discovery motion. Totalsanctions are imposed against Plaintiff and her attorney, jointly andseverally, in the sum of $1650.00.

10 2012-00543912SEINFELD VS GRAZIADEI11 2012-00564101STEWART TITLE VS FIDELITYNATIONAL12 2012-00612523TOWNSEND VS DICKSONDefendants’ motion to continue trial is granted. Court will discuss amutually convenient date at the hearing.Cross-defendant Orange Coast Title Company’s unopposed Demurrers tothe 1 st and 2 nd causes of action of cross-complainant Commonwealth LandTitle Insurance Company’s Cross-Complaint are SUSTAINED on thegrounds of failure to state a cause of action [CCP §430.10(e)] anduncertainty [CCP §430.10(f)] with 10 days’ leave to amend. Although theabsence of an Opposition to these Demurrers leads to the inference thatno sufficient amendment can be made, in the interests of justice the Courtwill permit 10 days’ leave to file a second Amended Complaint.In general, this First Amended Complaint has the same defect asthe original – no specific facts are alleged to support Orange Coast TitleCompany’s liability to indemnify Commonwealth for the transactionsalleged in the underlying amended complaint. Leave is granted forCommonwealth to allege specific facts that support the causes of actionalleged.The motion by Manning & Kass, Ellrod, Ramiriez, Trester, LLP for reliefpursuant to CCP 473(b) is denied. Moving party has not sufficientlydemonstrated mistake, inadvertence or excusable neglect. This denial iswithout prejudice to a later motion to withdraw as counsel.The demurrer by defendants Gordon F. Dickson, Prosper Law, and RomanM. Gonzalez to the First Amended Complaint is sustained in part andoverruled in part. The demurrer is overruled as to the second cause ofaction for breach of contract. The demurrer is sustained, with leave toamend, as to the fourth cause of action for unfair business practices, withleave to amend, on grounds of failure to state facts sufficient to constitutea cause of action. (CCP 430.10(e).) Plaintiff concedes the demurrer tothis cause of action and seeks leave to amend to delete this cause ofaction. The demurrer is also sustained, with leave to amend, as to theseventh cause of action for negligent and intentional infliction of emotionaldistress, on grounds of failure to state sufficient to constitute a cause ofaction and uncertainty. (CCP 430.10(e), (f).) Alleging two forms ofliability renders the cause of action uncertain. (Campbell v. Rayburn(1954) 129 Cal.App.2d 232, 235.) There is also no extreme andoutrageous conduct alleged, and this cause of action is also based on thealleged fraud, which is insufficient (Kruse v. Bank of America (1988) 202Cal.App.3d 38, 67).13 2013-00649854ZALDIVAR VS THE BANK OFNEW YORKThe motion to strike by these defendants is granted in part, with leave toamend, denied in part, and moot in part. As to the request to strikeattorney fee allegations at Paras. 62, 69, 83, and Para. 10 of prayer, themotion is granted, with leave to amend. As to the request to strikepunitive damages allegations, the motion is granted as to Paras. 47 and62, denied as to Paras. 83 and Para. 9 of the prayer, and moot as to Para.88, given the ruling on the demurrer. As to the request to strike emotionadistress allegations at Paras. 47, 56, 83, and Para. 3 of the prayer, themotion is granted, and as to Para. 87, the motion is moot, given the rulingon the demurrer.Pl. is granted 10 days leave to amend. Moving parties to give notice.Plaintiff Michael Zaldivar’s motion to consolidate is denied withoutprejudice. The defendant has not yet appeared in this action and there isno proof of service of the summons and complaint on file.

15 2013-00649217BORNHEIMER-CHANNELS VSSTATE FARM16 2011-00529418ARTIGA VS. MARINOThe motion by defendant 24 Hour Fitness USA, Inc. to strike punitivedamages allegations and prayer from plaintiff’s complaint at (1) Page 4,lines 24-28 (within 15, in as much as this allegation is incorporated intothe causes of action alleged against defendant 24 Hour Fitness USA, Inc.);(2) page 6, lines 8-9 ( 22, in as much as this allegation is incorporatedinto the causes of action alleged against defendant 24 Hour Fitness USA,Inc); (3) page 7, lines 25-27 (within 29); (4) page 8, lines 18-23 33);(5) page 10, lines 8-13 ( 41); (6) prayer at page 10, line 24 (Item 6) isgranted. The punitive damages allegations are conclusory and also fail toallege facts to support the requirements of CC § 3294(b). Plaintiff isgranted 10 days leave to amend. Counsel for moving party to give notice.The motion by plaintiff Robert Artiga to strike the Memorandum of Costsfiled by defendants Steve J. Marino and Barbara Marino is granted. Thesedefendants have not been dismissed and the action is still pending againstthem; thus, they are not yet prevailing parties and are not entitled tocosts.The motion by defendants to tax costs in the Memorandum of Costs filedby plaintiff Robert Artiga is granted in part and denied in part. The motionis granted as to Item No. 8 in the amount of $1,525; as to Item No. 11 inthe amount of $8,429.09; and as to Item No. 13 in the amount of$813. The remainder of the motion is denied.Plaintiff to give notice.

Department C-13 – Judge Gregory MunozDate: AUGUST 22, 2013OBTAINING TENTATIVE RULINGS: All rulings will be posted on the internet athttp://www.occourts.org/tentativerulings/gmunozrulings.htm by 4:00 P.M. (or soon thereafter) on the day beforethe scheduled hearing. The rulings will also be posted outside the courtroom on the bulletin board, no later than12:00 P.M. on the day of the scheduled motion. The Law and Motion hearings are scheduled on Thursdays at 2:00P.M. All arguments will be heard at that time. No supplemental or additional papers will be allowed to be submittedfollowing posting of the ruling on the internet. Nor will the Court entertain a request for continuance once theruling has been posted.The court will hear oral argument on all matters at the time noticed for the hearing. If you would prefer to submitthe matter on your papers without oral argument, advise all counsel first and then telephone the clerk at (657)622-5213. If the moving party has submitted the matter and there are no appearances by any party at thehearing, the tentative ruling will be the final ruling. Moving party is to prepare the Notice of Ruling for all matterswhich are submitted.IF NO ONE HAS TELEPHONED THE CLERK TO SUBMIT AND THERE ARE NO APPEARANCES BY ANYPARTY, THE MATTER WILL BE TAKEN OFF CALENDAR.amended cross-complaint and the case management conference scheduled# Case Name Tentative1 2012-00552861AMERICAN CREDIT VS FUTURECREDITMotion by defendant/cross-complainant Joseph Barkhozia to disqualifyattorney Thomas A. Moore as attorney of record is continued on the Court’smotion to 9/12/13, to be heard with the pending demurrer to the firstfor that date. Moving party to give notice.2 2013-00628412ARTEAGA VS QUACKENBUSH3 2012-00607666CROAN VS ARCODefendant Quackenbush’s demurrer to the fifth cause of action in the FACfor concealment is sustained with leave to amend on the basis that the FACfail to adequately allege plaintiff’s damages. The blanket claim of suffering“general and special damages” is not sufficient. The Plaintiff must pleadfacts showing how his damages were caused by his reasonable reliance,such as the reduction in value of his home for the unpermitted work done othe cost to either obtain the permits after the fact or to re-do work.Defendant Shahkot Gas & Mart, Inc.’s (Shakot) motion to compel furtherresponses to form interrogatories, set one, is granted. Plaintiff Gary Croanhas failed to justify the adequacy of his responses/objections to the subjectdiscovery. Plaintiff has waived any ambiguity objection by failing to raise itwithin his responses. Plaintiff has not identified any medical providers; theargument that Shahkot has already obtained “those records by subpoena”does not explain how plaintiff’s responses are sufficient and regardless, aparty is permitted to use multiple methods of obtaining discovery and thefact that information was disclosed under one method is not, standing alona proper basis for refusing to provide discovery under another method(Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 739);and plaintiff has failed to justify any of his objections.Plaintiff is ordered to provide further responses to form interrogatories 6.4,6.5, 6.7, 8.4, 8.5, 9.1, 9.2, 12.1, and 14.1 within 10 days. Sanctions aregranted in favor of Shahkot and against plaintiff in the amount of $850.00.4 2013-00622238FELIX VS FUSION LINENSDefendant Shahkot’s motion to compel further responses to requests forproduction, set one, is granted. Plaintiff’s responses are not verified. (CodCiv. Proc., § 2031.250.) Plaintiff is ordered to provide verified responses tothe subject discovery within 10 days. Sanctions are granted in favor ofShahkot and against plaintiff in the amount of $650.00.The demurrer to the first amended complaint by defendant Angel Monico isoverruled. The FAC now sufficiently alleges the second prong of the alterego. The first prong was adequately established at the lastdemurrer. Defendant is ordered to file an answer to the FAC within 10days. Plaintiffs to give notice.

5 06CC08868GLOBAL VS APEX QUITY7 2013-00652701LEE VS YON9 2012-00592792ORANGE COUNTY REVOLUTIONVS BANK OF AMERICA10 2012-00621246VAUGHN VS ANDERSON11 2012-00597224VOSOUGHKIA VS NEGRETEDefendant Frank Fischer’s motion to modify/amend second amendedjudgment after appeal under CCP 1008 and correct clerical mistakes insecond amended judgment after appeal under CCP 473(d) isdenied. Defendant’s arguments have already been rejected by the court ofappeal, which decision is res judicata as to the instant motion. Clerk to givnotice.Defendants’ demurrer to the complaint is sustained in part with 10 daysleave to amend and overruled in part as follows:The demurrer to the 2nd cause of action for negligent failure to disclose issustained. The claim is duplicative of the 1 st cause of action.The demurrer to the 3 rd cause of action for negligent misrepresentation issustained. The claim, as alleged, is duplicative of the 1 st cause of action.The demurrer to the 4 th cause of action for battery is sustained. Lack ofconsent is essential to a claim for medical battery, yet plaintiff has allegedshe consented to the surgery.The demurrer to the 5 th cause of action for breach of contract is overruled.1) Don Hodgson’s demurrer to the entire third amended complaint on thebasis of lack of certainty is overruled. His demurrer to the 2 nd , 4 th , 5 th , and6 th , causes of action is overruled. His demurrer to the 7 th cause of action issustained without leave to amend.2) Steven McNamus’ demurrer is identical to Hodgson’s demurrer and theCourt’s ruling is the same as the ruling on Hodgson’s demurrer.3) McNamus’ motion to strike portions of the TAC is denied as to punitivedamages allegations, but granted as to the attorneys’ fees and injunctiverelief.4 and 5) Defendant Fisher’s motions for joinder in McManus’ demurrer anMcManus’ motion to strike are both granted.Defendant Robert Anderson’s Demurrer to the 1 st through 3 rd causes ofaction of the 2 nd amended complaint is overruled in its entirety. Defendantshall file and serve an answer within ten (10) days. The motion to strike isdenied. Plaintiff has set forth sufficient facts to support her claim forpunitive damages.Plaintiffs’ motion to set aside is granted. Plaintiffs have timely brought thismotion within 6 months of the order of dismissal entered on March 27,2013, and have also demonstrated that the dismissal was the result of theicounsel’s mistake. The order of dismissal entered on March 27, 2013, ishereby vacated. Plaintiffs are ordered to serve their first amendedcomplaint within 2 days and to compensate defendant in the amount of$850.00.

Department C-13 – Judge Gregory MunozDate: AUGUST 29, 2013OBTAINING TENTATIVE RULINGS: All rulings will be posted on the internet athttp://www.occourts.org/tentativerulings/gmunozrulings.htm by 4:00 P.M. (or soon thereafter) on the daybefore the scheduled hearing. The rulings will also be posted outside the courtroom on the bulletin board, nolater than 12:00 P.M. on the day of the scheduled motion. The Law and Motion hearings are scheduled onThursdays at 2:00 P.M. All arguments will be heard at that time. No supplemental or additional papers will beallowed to be submitted following posting of the ruling on the internet. Nor will the Court entertain a request forcontinuance once the ruling has been posted.The court will hear oral argument on all matters at the time noticed for the hearing. If you would prefer tosubmit the matter on your papers without oral argument, advise all counsel first and then telephone the clerk at(657) 622-5213. If the moving party has submitted the matter and there are no appearances by any party atthe hearing, the tentative ruling will be the final ruling. Moving party is to prepare the Notice of Ruling for allmatters which are submitted.IF NO ONE HAS TELEPHONED THE CLERK TO SUBMIT AND THERE ARE NO APPEARANCES BY ANYPARTY, THE MATTER WILL BE TAKEN OFF CALENDAR.complainant cannot establish an essential element of his claims, or that there is# Case Name Tentative2 2011-00511497ASSET VS ROMANThe motion by cross-defendant National Enterprise Systems, Inc. for summaryjudgment as to the cross-complaint is granted in part and denied in part. Themotion is denied as to the seventh cause of action and the first throughfifth causes of action, as moving party has not provided admissible evidencesufficient to meet its initial burden under CCP 437c(p)(2) of showing that cross-a complete defense. Cross-complainant’s evidentiary objections to theDeclaration of Eric Thut in support of the motion, specifically as to that portionof Para. 1 stating “I have personal knowledge of the facts reflected in thisDeclaration,” and Paras. 3-12, are sustained in their entirety, on grounds ofhearsay, lack of foundation and lack of personal knowledge. Crosscomplainant’sevidentiary objections to moving party’s Exs. 1 and 2 are alsosustained, on grounds of lack of foundation and hearsay.3 2012-00534737CHOICEADZ.COM VS USSOURCE4 2013-00652315CLEAR VUE VS FIRSTAMERICAN TITLEPlaintiff has conceded the sixth cause of action for conversion and on that basisthe motion is granted as to this cause of action.Moving party to give notice.The Motion to Strike the Memorandum of Costs is CONTINUED toSeptember 26, 2013. The Court will address this Motion and the Motion toStrike the Memorandum of Costs filed by US Source, Russell, and Gutierrez atthat time.In connection with this Motion ONLY, the Court orders additional briefingon the sole issue of whether the Memorandum of Costs must be stricken in itsentirety if the Court concludes that one or more, but not all, of the parties arenot prevailing parties, or whether the Memorandum may be stricken as to thenon-prevailing parties only. Briefing is to be filed and served by mail by bothparties on September16, 2013. No additional briefing is authorized and will notbe considered.Motion by attorney Ralph Streza to appear as counsel pro hac vice for plaintiff isgranted.

6 2013-00629537GONZALEZ VS BANK OFAMERICA7 2011-00526006HEINL VS ADAMS8 2013-00627592LEE VS CHUNG9 2013-00647929LUCKEY VS PLAZA BANKDefendants’ demurrer is sustained in its entirety without leave to amend. The 4 thcause of action was added without leave, but is also inapplicable here becausedefendants are not debt collectors. Defendants’ request for judicial notice isgranted. The Court notes that plaintiff’s property is in foreclosure because shedid not pay her mortgage, not because of any misconduct or contractual breachon defendants’ part. Plaintiff declined a loan modification, but now attributesher failure to pay to defects in assignments and Bank of America’s supposedlack of authority to foreclose. Plaintiff is incorrect, as, even could she statesufficient facts, there is no discernible connection between her delinquency anda defective assignment.The motion by Receiver Mark S. Adams, on behalf of defendant AmericanContractors Indemnity Company, for reconsideration of the court’s 6-5-13 orderoverruling the demurrer to the Second Amended Complaint is denied. Movingparty has not shown different facts or law justifying reconsideration. Plaintiffs togive notice.Defendants’ motion for an order releasing the three UCC-1 Forms is deniedwithout prejudice. Defendants have failed to cite legal authority to support therelief sought. Commercial Code Section 9203 says nothing about removingUCC-1 Financing Statements. The motion does not specifically state thatdefendants are seeking “injunctive relief,” and the motion does not cite to anylegal authority supporting injunctive relief. Therefore, without knowing underwhat legal authority defendants are seeking relief, the Court cannot determinewhether defendants are entitled to the relief sought. Plaintiff to give notice.Defendant Plaza Bank’s request for judicial notice is granted; the court will takejudicial notice of the existence of the employment agreement but not the truthof its contents.The court will also take judicial notice on its own motion of the record in therelated case, Laurence Luckey v. Plaza Bank, case No. 30-2012-00564572,including the minute order granting Plaza Bank’s motion for summary judgmenton July 2, 2013, and the proposed judgment filed on August 16, 2013.The court stays this action as alleged against Plaza Bank pending resolution ofthe related case; the entry of judgment in the related case is imminent and theviability of plaintiff’s claims against Plaza Bank will turn on whether they areprecluded by res judicata. (See Thriftimart, Inc. v. Superior Court In and ForLos Angeles County (1962) 202 Cal.App.2d 421, 425 [where the rights of theparties to the second action cannot be properly determined until the questionsraised in the first action are settled, the second action should be stayed].)Defendants Carpenter Fund Management GP, LLC, Carpenter CommunityBancfund, L.P., and PB Holdings, Inc. dba PB Holdings-CA, Inc.’s (hereinafter,the Carpenter defendants) request for judicial notice is granted.The Carpenter defendants’ demurrer to complaint is sustained with 10 daysleave to amend with respect to the second, fourth, and fifth causes of action forintentional misrepresentation, fraudulent promise, and fraudulent concealment;plaintiff has failed to allege these claims with the requisite specificity. Thedemurrer is sustained without leave to amend with respect to the third cause ofaction for negligent misrepresentation; California does not recognize a cause ofaction for negligent misrepresentation based on an alleged promise withoutintent to perform. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2Cal.App.4th 153, 159; Magpali v. Farmers Group, Inc. (1996) 47 Cal.App.4th1024, 481.)10 2013-00641105NGUYEN VS O.A. CARGODefendants’ demurrer is sustained in its entirety. The first through 6 th causes ofaction are derivative in nature and plaintiff has not alleged compliance withCorporations Code 800. The 9 th cause of action for fraud and deceit is notalleged with the required specificity. Plaintiff is given 10 days leave to amend.

12 2012-00575188SOLIS VS NUNEZ13 2011-00507753WHITE VS WELLS FARGOCross-Complainant Matthew Nunez’s motion to vacate judgment isdenied. Cross-Complainant failed to meet the burden to vacate Judge Glass’3/25/13 order and 5/24/13 judgment under CCP 663. Judge Glass correctlyruled that the first and second prongs of CCP 425.16(e)(1) were proven byCross-Defendant.Plaintiffs’ request to stay this motion pending resolution of the appeal isdenied. Plaintiffs’ and Defendant’s requests for judicial notice are granted.Defendant’s motion for attorney’s fees is granted. Defendant shall have andrecover from Plaintiff Ronald H. White and Linda J. White, attorney’s fees in thesum of $60,805.50. Plaintiff to give notice.

Rulings 1http://www.occourts.org/tentativerulings/gmunozrulings.htmPage 1 of 49/5/2013Department C-13 – Judge Gregory MunozDate: AUGUST 29, 2013OBTAINING TENTATIVE RULINGS: All rulings will be posted on the internet athttp://www.occourts.org/tentativerulings/gmunozrulings.htm by 4:00 P.M. (or soon thereafter) onthe day before the scheduled hearing. The rulings will also be posted outside the courtroom on thebulletin board, no later than 12:00 P.M. on the day of the scheduled motion. The Law and Motionhearings are scheduled on Thursdays at 2:00 P.M. All arguments will be heard at that time. Nosupplemental or additional papers will be allowed to be submitted following posting of the ruling onthe internet. Nor will the Court entertain a request for continuance once the ruling has been posted.The court will hear oral argument on all matters at the time noticed for the hearing. If you wouldprefer to submit the matter on your papers without oral argument, advise all counsel first and thentelephone the clerk at (657) 622-5213. If the moving party has submitted the matter and there areno appearances by any party at the hearing, the tentative ruling will be the final ruling. Movingparty is to prepare the Notice of Ruling for all matters which are submitted.IF NO ONE HAS TELEPHONED THE CLERK TO SUBMIT AND THERE ARE NO APPEARANCESBY ANY PARTY, THE MATTER WILL BE TAKEN OFF CALENDAR.# Case Name Tentative1 2012-00619753Off calendar.ABRAHAM VS PACIFICMERCANTILE BANK2 2011-00511497ASSET VS ROMANThe motion by cross-defendant National Enterprise Systems,Inc. for summary judgment as to the cross-complaint is grantedin part and denied in part. The motion is denied as to theseventh cause of action and the first through fifth causes ofaction, as moving party has not provided admissible evidencesufficient to meet its initial burden under CCP 437c(p)(2) ofshowing that cross-complainant cannot establish an essentialelement of his claims, or that there is a complete defense.Cross-complainant’s evidentiary objections to the Declaration oEric Thut in support of the motion, specifically as to that portionof Para. 1 stating “I have personal knowledge of the factsreflected in this Declaration,” and Paras. 3-12, are sustained intheir entirety, on grounds of hearsay, lack of foundation and lacof personal knowledge. Cross-complainant’s evidentiaryobjections to moving party’s Exs. 1 and 2 are also sustained, ongrounds of lack of foundation and hearsay.Plaintiff has conceded the sixth cause of action for conversionand on that basis the motion is granted as to this cause ofaction.Moving party to give notice.

Rulings 1http://www.occourts.org/tentativerulings/gmunozrulings.htmPage 2 of 49/5/20133 2012-00534737CHOICEADZ.COM VS USSOURCE4 2013-00652315CLEAR VUE VS FIRSTAMERICAN TITLE5 2012-00568241CORUM VS CRANERENTAL6 2013-00629537GONZALEZ VS BANK OFAMERICA7 2011-00526006HEINL VS ADAMS8 2013-00627592LEE VS CHUNGThe Motion to Strike the Memorandum of Costs isCONTINUED to September 26, 2013. The Court will address thMotion and the Motion to Strike the Memorandum of Costs filedby US Source, Russell, and Gutierrez at that time.In connection with this Motion ONLY, the Court ordersadditional briefing on the sole issue of whether the Memoranduof Costs must be stricken in its entirety if the Court concludesthat one or more, but not all, of the parties are not prevailingparties, or whether the Memorandum may be stricken as to thenon-prevailing parties only. Briefing is to be filed and served bymail by both parties on September16, 2013. No additionalbriefing is authorized and will not be considered.Motion by attorney Ralph Streza to appear as counsel pro hacvice for plaintiff is granted.The Court will hear arguments.Defendants’ demurrer is sustained in its entirety without leaveamend. The 4 th cause of action was added without leave, butalso inapplicable here because defendants are not decollectors. Defendants’ request for judicial notice is granted. ThCourt notes that plaintiff’s property is in foreclosure because shdid not pay her mortgage, not because of any misconductcontractual breach on defendants’ part. Plaintiff declined a loamodification, but now attributes her failure to pay to defectsassignments and Bank of America’s supposed lack of authorityforeclose. Plaintiff is incorrect, as, even could she stasufficient facts, there is no discernible connection between hdelinquency and a defective assignment.The motion by Receiver Mark S. Adams, on behalf of defendantAmerican Contractors Indemnity Company, for reconsiderationof the court’s 6-5-13 order overruling the demurrer to theSecond Amended Complaint is denied. Moving party has notshown different facts or law justifying reconsideration. Plaintiffto give notice.Defendants’ motion for an order releasing the three UCC-1Forms is denied without prejudice. Defendants have failed tocite legal authority to support the relief sought. CommercialCode Section 9203 says nothing about removing UCC-1Financing Statements. The motion does not specifically statethat defendants are seeking “injunctive relief,” and the motiondoes not cite to any legal authority supporting injunctive relief.Therefore, without knowing under what legal authoritydefendants are seeking relief, the Court cannot determinewhether defendants are entitled to the relief sought. Plaintiff togive notice.

Rulings 1http://www.occourts.org/tentativerulings/gmunozrulings.htmPage 3 of 49/5/20139 2013-00647929LUCKEY VS PLAZA BANKDefendant Plaza Bank’s request for judicial notice is granted; thcourt will take judicial notice of the existence of the employmenagreement but not the truth of its contents.The court will also take judicial notice on its own motion of therecord in the related case, Laurence Luckey v. Plaza Bank, caseNo. 30-2012-00564572, including the minute order grantingPlaza Bank’s motion for summary judgment on July 2, 2013, anthe proposed judgment filed on August 16, 2013.The court stays this action as alleged against Plaza Bank pendinresolution of the related case; the entry of judgment in therelated case is imminent and the viability of plaintiff’s claimsagainst Plaza Bank will turn on whether they are precluded byres judicata. (See Thriftimart, Inc. v. Superior Court In and ForLos Angeles County (1962) 202 Cal.App.2d 421, 425 [where thrights of the parties to the second action cannot be properlydetermined until the questions raised in the first action aresettled, the second action should be stayed].)Defendants Carpenter Fund Management GP, LLC, CarpenterCommunity Bancfund, L.P., and PB Holdings, Inc. dba PBHoldings-CA, Inc.’s (hereinafter, the Carpenter defendants)request for judicial notice is granted.The Carpenter defendants’ demurrer to complaint is sustainedwith 10 days leave to amend with respect to the second, fourthand fifth causes of action for intentional misrepresentation,fraudulent promise, and fraudulent concealment; plaintiff hasfailed to allege these claims with the requisite specificity. Thedemurrer is sustained without leave to amend with respect tothe third cause of action for negligent misrepresentation;California does not recognize a cause of action for negligentmisrepresentation based on an alleged promise without intent tperform. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2Cal.App.4th 153, 159; Magpali v. Farmers Group, Inc. (1996) 4Cal.App.4th 1024, 481.)10 2013-00641105NGUYEN VS O.A. CARGO11 2012-00584635RODRIGUEZ VSNORTHGATE12 2012-00575188SOLIS VS NUNEZDefendants’ demurrer is sustained in its entirety. The firstthrough 6 th causes of action are derivative in nature and plaintihas not alleged compliance with Corporations Code 800. The 9cause of action for fraud and deceit is not alleged with therequired specificity. Plaintiff is given 10 days leave to amend.The Court continues this hearing to 9/5/13 at 2PM to giveplaintiff a chance to provide responses to the outstandingdiscovery. If plaintiff has not served verified responses by thattime the Court will dismiss the action and address the requestfor monetary sanctions.Cross-Complainant Matthew Nunez’s motion to vacate judgmenis denied. Cross-Complainant failed to meet the burden tovacate Judge Glass’ 3/25/13 order and 5/24/13 judgment undeCCP 663. Judge Glass correctly ruled that the first and secondprongs of CCP 425.16(e)(1) were proven by Cross-Defendant.

Rulings 1http://www.occourts.org/tentativerulings/gmunozrulings.htmPage 4 of 49/5/201313 2011-00507753WHITE VS WELLS FARGOPlaintiffs’ request to stay this motion pending resolution of theappeal is denied. Plaintiffs’ and Defendant’s requests forjudicial notice are granted.Defendant’s motion for attorney’s fees is granted. Defendantshall have and recover from Plaintiff Ronald H. White and LindaJ. White, attorney’s fees in the sum of $60,805.50. Plaintiff togive notice.

Rulings 1http://www.occourts.org/tentativerulings/gmunozrulings.htmPage 1 of 49/13/2013Department C-13 – Judge Gregory MunozDate: SEPTEMBER 12, 2013OBTAINING TENTATIVE RULINGS: All rulings will be posted on the internet athttp://www.occourts.org/tentativerulings/gmunozrulings.htm by 4:00 P.M. (or soon thereafter) onthe day before the scheduled hearing. The rulings will also be posted outside the courtroom on thebulletin board, no later than 12:00 P.M. on the day of the scheduled motion. The Law and Motionhearings are scheduled on Thursdays at 2:00 P.M. All arguments will be heard at that time. Nosupplemental or additional papers will be allowed to be submitted following posting of the ruling onthe internet. Nor will the Court entertain a request for continuance once the ruling has been posted.The court will hear oral argument on all matters at the time noticed for the hearing. If you wouldprefer to submit the matter on your papers without oral argument, advise all counsel first and thentelephone the clerk at (657) 622-5213. If the moving party has submitted the matter and there areno appearances by any party at the hearing, the tentative ruling will be the final ruling. Movingparty is to prepare the Notice of Ruling for all matters which are submitted.IF NO ONE HAS TELEPHONED THE CLERK TO SUBMIT AND THERE ARE NO APPEARANCESBY ANY PARTY, THE MATTER WILL BE TAKEN OFF CALENDAR.# Case Name Tentative1 2012-00552861AMERICAN CREDIT VSFUTURE CREDIT(1) Cross-Defendants’, Nguyen, Moore, Alliance Law Group P.Cand Providence Law Group, P.C., demurrer to the 3rd, 4th, and5th causes of action of the First Amended Cross-Complaint isoverruled in part and sustained in part as follows:The demurrer to the 3 rd cause of action is overruled. Thedemurrer to the 4 th and 5 th causes of action is sustained on theground of failure to state a cause of action with 10 days leave tamend. As alleged, Cross-Complainant has not stated a causeof action for abuse of process. See, CACI 1520. The wrongfulconduct alleged goes to the filing of this lawsuit, not to use ofthe Court’s processes during the lawsuit. It is the latter that isproper basis for an abuse of process claim. See, JSJ LimitedPartnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1523A cause of action for conspiracy requires a predicate tort. See,CACI 3600. Because the cause of action for abuse of process isnot sufficiently alleged, and because it is the only tort alleged,the cause of action for conspiracy, likewise, is not sufficientlyalleged.(2) The motion by defendant / cross-complainant JosephBarkhozia to disqualify attorney Thomas A. Moore as attorney orecord from representing: (1) plaintiff / cross-defendantAmerican Credit Pros, Inc.; cross-defendant Providence LawGroup, P.C.; (3) cross-defendant Alliance Law Group, PC; (4)cross-defendant Huy Nguyen is granted in part and denied inpart. The motion is granted as to plaintiff / cross-defendantAmerican Credit Pros, Inc. and cross-defendant Huy Nguyen.Moving party has shown the existence of a conflict betweenattorney Moore and these parties, and there is no evidence thatsuch actual and/or potential conflict has been waived. Theremainder of the motion is denied. Moving party to give notice

Rulings 1http://www.occourts.org/tentativerulings/gmunozrulings.htmPage 2 of 49/13/20132 2013-00655434ASHWORTH VS WATSON3 2012-00566217JACKSON VS NORTHAMERICAN TITLEThe motion by Defendants William P. Watson III, individually,and Margaret P. Issitt for a change of venue to San DiegoCounty Superior Court, and for an award of attorneys’ fees andcosts in the amount of $5,070.00 against plaintiff is denied.Moving Defendants failed to establish that venue is not proper iOrange County. Plaintiff is awarded reasonable attorneys’ feein the amount of $875.00 to be imposed against defendants'attorney, Jamie M. Ritterbeck. CCP § 396b(b). Counsel forplaintiff to give notice.The demurrers by defendants First American Title InsuranceCompany (First American) and North American Title Company(North American) to the 6 th , 7 th , 8 th , 10 th , 11 th and 12 th causesaction of the Third Amended Complaint (TAC) are sustained, ongrounds of failure to state facts sufficient to constitute a causeaction and uncertainty. (CCP 430.10(e), (f).) The 6 th cause ofaction fails to allege facts showing the existence of a duty todisclose. The 7 th cause of action fails as North American did noissue the title policy, and there are insufficient facts alleged toshow how First American breached the policy of title insurance.The 8 th cause of action fails because tort liability does not lie foerrors in preliminary title reports or title insurance policies. (InCode, § 12340.11; Siegel v. Fidelity National Title Ins. Co.(1996) 46 Cal.App.4th 1181, 1193.) The 8 th cause of action isalso duplicative of the 7 th cause of action. (Award Metals, Inc.Superior Court (1991) 228 Cal.App.3d 1128, 1135; Couch v.San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491,1504.) The 10 th cause of action falls with 7 th cause of action.(See Love v. Fire Insurance Exchange (1990) 221 Cal.App.3d1136, 1153.) The 11 th cause of action based on B&P 17200 failits dependent on a valid cause of action to support it and thereis none here. The 12 th cause of action fails because unjustenrichment is a remedy, not a separate claim (Durell v. SharpHealthcare (2010) 183 Cal.App.4 th 1350), and because all ofplaintiff’s other claims fail. Finally, there are no facts alleged toshow how plaintiff Sharon Jackson has standing to allege anyclaim against these moving parties, as she is not a party to thetitle insurance policy.Plaintiffs have had several opportunities to state a valid claimagainst these moving parties but have not been able to do so,and have not shown how these defects can be cured byamendment. Accordingly, the demurrer is sustained withoutleave to amend.

Rulings 1http://www.occourts.org/tentativerulings/gmunozrulings.htmPage 3 of 49/13/20134 2011-00534180KEA VS HONGDefendants’ motion to quash is denied. Defendants have faileto meet and confer in good faith. They also did not comply witCRC 3.1345. These defects alone are sufficient to warrant deniof the motion. Nevertheless, the Court exercises its discretionmodify the scope of production.CC 3295 is inapplicable, as plaintiffs are not seeking informatioregarding defendants’ financial worth in connection with punitivdamages. They are, instead, attempting to trace the large suof money supposedly invested in the spas.5 2012-00590786KOSHAK VS 10675 S.ORANGE PARK6 2013-00634504KOSHAK VS 10675 S.ORANGE PARK7 2010-00381599LE VS ORANGE COUNTYTRANSPORTATION8 2013-00625499LBA REALTY VS GLOBALNETWORK9 2013-00636069NNN BRITANNIA VSDAYMARK REALTYAlthough the Court does conclude that the time frame should bmodified, there is insufficient information to precisely determinwhat period is appropriate. It appears that Howard Kea died5/10, but borrowed money from family members on variouunstated dates. In 10/09, Mr. Kea acknowledged that he owe$1.4 million, which he co-invested with his former spousdefendant Linda Hong, but again on unknown dateAccordingly, the Court limits production to approximately a fivand one-half year period, beginning on 1/1/08 and ending o6/30/13. Plaintiffs may seek additional modification uponshowing of good cause. The Court further limits disclosurethe attorneys and their clerical staff.Continued to 10/24 at 2PM on Court’s motion.Continued to 10/24 at 2PM on Court’s motion.Plaintiff Le’s motion to augment his expert witness designationgranted. Plaintiff shall make his expert witness available fordeposition within ten (10) days.Defendant, Global Networks Enterprises & Technology’s Motionto Vacate Default is granted and the 03/20/13 default is orderevacated. The court imposes sanctions against Defendant in thesum of $900.00 per CCP § 473(c), payable to Plaintiff’s counselThe default prove up date is ordered vacated and the matterrestored to the civil active list. A CMC is scheduled for 12/04 at8:30 AM.Moving party to give notice.Defendant NNN Britannia Business Center 1, LLC’s Motion forJoinder is GRANTED.Defendants’ Request for Judicial Notice is GRANTED.Defendants’ Demurrer to the 1 st , 2 nd , 4 th , and 5 th COAs isOVERRULED. Lender Wachovia Bank is not an indispensable ora necessary party.Defendants are to answer within 10 days

Rulings 1http://www.occourts.org/tentativerulings/gmunozrulings.htmPage 4 of 49/13/201310 06CC02533PAN VS CHOU11 2012-00549829PRESTON VS SAAB12 2012-00578715SYPROSOFT VS STONEThe motion by π/xΔ Tony Pan for an order enforcing theSettlement Agreement pursuant to CCP § 664.6 is denied. Theentire action was dismissed with prejudice on 7/19/2011. Thedismissal does not reserve jurisdiction under CCP § 664.6 toenforce the Settlement Agreement. Therefore, this Court lacksjurisdiction to enforce the Settlement Agreement. The courtloses subject matter jurisdiction when an action is voluntarilydismissed (with or without prejudice). Thereafter, it has nopower to enforce a settlement agreement. (Viejo Bancorp, Inc.v. Wood (1989) 217 CA3d 200, 206; Hagan Engineering, Inc. vMills (2003) 115 CA4th 1004, 1008-1009.)Counsel for Chou to give notice.Continued to 9/19 at 2PM.Cross-Defendants, Syprosoft, Inc. & Dipu Ghosh’s Motion ForSummary Adjudication of 1 st ,2 nd , 3 rd & 5 th Causes of Action andPunitive Damages Claim in First Amended Cross-Complaint isgranted in part and moot in part.Based upon the dismissal of the 1 st , 2 nd , 3 rd & 5 th Causes ofAction in the First Amended Cross-Complaint on 08/27/13, theCross-Defendant’s motion is moot as to Noticed Issues No. 1-4.13 2012-00573995TRINITY VS RYNN &JANOWSKY14 2012-00584635RODRIGUEZ VSNORTHGATEAs to Notices Issue No. 5, the court grants the Cross-Defendant’s motion for summary adjudication on the basis thatCross-Defendants have shown that no triable issue exists as tosuch punitive damages claim, and Cross-Complainant has failedto meet its burden to provide evidence of a triable issue ofmaterial fact as to such noticed issue.Moving party to give notice.MODIFIED RULING.Motions 1 and 2. Defendants Rynn & Janowsky, LLP and R.Jason Read’s demurrer to the 2 nd amended complaint isoverruled in its entirety. The motion to strike is granted as tothe punitive damages allegations and prayer with ten days leavto amend. The motion to strike is denied as to all furtherrequested relief.Motions 3 and 4. Defendants McCormick Barstow, LLP,Stephen Carroll, Jeff Reid and Kristen Lieb’s demurrer to the 2 ncause of action of the 2 nd amended complaint is overruled. Themotion to strike is granted as to the punitive damagesallegations and prayer with 10 days leave to amend.Off-calendar.

Department C-13 – Judge Gregory MunozDate: SEPTEMBER 19, 2013OBTAINING TENTATIVE RULINGS: All rulings will be posted on the internet athttp://www.occourts.org/tentativerulings/gmunozrulings.htm by 4:00 P.M. (or soon thereafter) on the daybefore the scheduled hearing. The rulings will also be posted outside the courtroom on the bulletin board, nolater than 12:00 P.M. on the day of the scheduled motion. The Law and Motion hearings are scheduled onThursdays at 2:00 P.M. All arguments will be heard at that time. No supplemental or additional papers will beallowed to be submitted following posting of the ruling on the internet. Nor will the Court entertain a request forcontinuance once the ruling has been posted.The court will hear oral argument on all matters at the time noticed for the hearing. If you would prefer tosubmit the matter on your papers without oral argument, advise all counsel first and then telephone the clerk at(657) 622-5213. If the moving party has submitted the matter and there are no appearances by any party atthe hearing, the tentative ruling will be the final ruling. Moving party is to prepare the Notice of Ruling for allmatters which are submitted.IF NO ONE HAS TELEPHONED THE CLERK TO SUBMIT AND THERE ARE NO APPEARANCES BY ANYPARTY, THE MATTER WILL BE TAKEN OFF CALENDAR.other causes of action, as well as its request for judicial notice. Defendant# Case Name Tentative2 2013-00636670BROOKS VS LAKE FORESTNURSINGThe demurrer by defendant El Toro Medical Investors Ltd. Partnership dbaLake Forest Nursing Center to the fourth and fifth causes of action of thecomplaint is overruled. Defendant has withdrawn its demurrer to theis ordered to file an Answer to the complaint within 10 days. Plaintiff togive notice.3 2012-00601042BRUSHER VS BRANDMANUNIVERSITY5 2011-00520088CHOI VS BERTSCH8 2012-00590786KOSHAK VS 10675 S. ORANGEPARK9 2012-00569266MADDUX VS CITY OFFOUNTAIN VALLEY10 2012-00549829PRESTON VS SAAB CARSDefendant Brandman University’s Motion for Summary Judgment or, inthe Alternative, Summary Adjudication is continued to 10/17 per plaintiffJami Brucher’s request to obtain discovery. Plaintiff has sufficiently shownthat facts essential to justify opposition may exist but cannot yet bepresented. Any further opposition to the motion must be served and filedby 10/7 and conform to California Rules of Court, rule 3.1350, particularlysubdivision (f). Defendant may file a supplemental reply by 10/11 atnoon.Plaintiff’s Motion For Issuance of Order Approving Earnings WithholdingOrder Against Debtor’s Spouse Yang-Uk Kim is denied without prejudice,on the basis that Plaintiff (as moving party) has failed to establish thatjudgment debtor Richard Choi Bertsche and Yang-Uk Kim are, or haveever been married. The court finds the Defendant and Ms. Kim’sdeclarations more persuasive than the evidence offered by Plaintiff,including the judgment debtor’s statements in the unverified QuitclaimDeed recorded ten years ago.Moving party to give notice.The motion by defendants 10675 S Orange Park Boulevard, LLC and GaryA. Schneider to consolidate actions is granted. The court orders thatHelen Koshak v. 10675 S. Orange Park Boulevard, LLC, et al., OCSC CaseNo. 2012-00590786, is consolidated with Norman Koshak v. 10675 S.Orange Park Boulevard, LLC, et al., OCSC Case No. 2013-00634504, for alpurposes. Case No. 2012-00590786 is designated as the leadcase. Moving parties to give notice.The motion by defendants / cross-complainants / cross-defendantsRhonda Patrice Misloski, William Misloski, and Mary Misloski fordetermination of good faith settlement is granted. The court finds thesettlement between plaintiff and these defendants to be in good faith, andthat any future claims for indemnity and/or contribution by other partiesto this action are barred. Moving parties to give notice.Plaintiffs, Jeremy Preston & Jackie Applegate-Preston’s Motion to VacateDismissal is granted. The court’s 05/22/13 dismissal is vacated and thecase restored to the civil active list.Moving party to give notice.

12 2013-00633428SHEEHY VS CITY OF BUENAPARK13 2012-00599303TOLLIVER VS AT&T MOBILITYPlaintiffs’ motion to compel further responses to request for production ofdocuments is denied without prejudice. The court finds that the requesteddocuments categories fall within the requirements of Evid. Code § 1043,as they involve the disclosure of peace or custodial officer personnelrecords, or records maintained pursuant to Section 832.5 of the PenalCode, or information from those records. Based upon the evidenceprovided, the court has determined that it cannot rule on the Plaintiff’smotion to compel further responses unless Evid. Code § 1043(c) iscomplied with.The court’s ruling is without prejudice to allow a properly noticed Pitchessmotion and in camera review of the documents sought to beproduced. The parties are encouraged to further meet and confer as tothe disputed categories of documents and any stipulated protective orderthe parties deem appropriate.Moving party to give notice.Defendants AT&T Mobility Services, LLC and Scott Shaler’s motion forsummary adjudication is granted in part and denied in part as follows:Summary adjudication is denied as to both defendants with regard to thefirst cause of action for sexual harassment. There is a triable issue of factas to whether the alleged conduct was sufficiently severe and pervasive asto constitute harassment.Summary adjudication is granted as to both defendants with regard to the2 nd cause of action for discrimination based on race. Plaintiff failed toexhaust her administrative remedies. Although plaintiff filed an“amendment” to the original DFEH complaint, the claims in theamendment are not sufficiently related to the claims in the originalcomplaint for purposes of the “relation back” doctrine.Summary adjudication is granted as to defendant Shaler on the 3 rd causeof action for failure to prevent harassment. The duty to prevent sexualharassment is owed by the employer, not the employee.Summary adjudication is denied as to defendant AT&T Mobility as to the3 rd cause of action for failure to prevent harassment. There are triableissues of fact as to whether or not plaintiff actually suffered harassmentand whether defendant failed to take all reasonable steps to prevent theharassment.Summary adjudication as to the punitive damages issue isgranted. Plaintiff has not raised a triable issue of fact showing, by clearand convincing evidence, either defendant is guilty of oppression, fraud ormalice.Specifically, there are triable issues of fact as to the following UMFs: 26,28, 29, 44, 46, 47, 50-53, 56, 61, 65, 68 – 78, 80, 86.

# Case Name Tentative1 2012-00555890BROWN VS JSA DEPOTThe court declines to consider the Defendant’s Amended Notice ofDemurrer filed 10/02/13, as it was not timely filed and served incompliance with CRC 3.1320 (a), (c); CCP § 430.60.The court grants Defendant’s Request For Judicial Notice of Items A-H, butnot as to the truth of factual matters set forth therein. The court declinesto grant judicial notice of the Charging Lien, as there is no showing byPlaintiff as to why this could not have been timely presented with thedemurrer.Defendants, Foreverlawn of Southern California, Inc., JSA Depot, Inc.,Matthew Mighell & Diana Mighell’s Demurrer to the Second Amendedcomplaint is overruled. At least one of the causes of action therein states acause of action against the Defendants.2 2013-00645236CAVARICCI VS CUMMINS &WHITE4 2013-00631486CHETAKIAN VS MISSIONHOSPITAL5 2012-00613879DYNAMIC VS ABM PARKINGDefendants are ordered to file an answer to the second Amendedcomplaint within ten days of the hearing of this motion.Moving party to give notice.Defendant’s Request For Judicial Notice is granted as requested.Defendants, Daniel Wildish, Cummings & White & Wildish & Nialis’s MotionTo Stay Action is denied. The court exercises its discretion and declines tostay this action at this time. The denial of this motion is without prejudiceto a stay request closer to the trial date in this action. There are too manypotential outcomes of the appeal in the Underlying Action for the court todetermine that a stay of this action will avoid prejudice to either party.Moving party to give Notice.Attorney Thomas Cifarelli’s motion to be relieved as counsel of record forPlaintiffs Adam and Kristen Chetakian is granted. The order shall becomeeffective upon the filing of the proof of service of the executed order.Defendant ABM Parking Services’ motion for summary judgment or in thealternative, summary adjudication is denied in its entirety. Moving Partyhas not met its initial burden of showing plaintiff is not entitled todamages for diminution of value in addition to the cost of repair. MovingParty’s citation to Ray v Farmers Insurance Exchange (1988) 200 Cal.App. 3d 1411, 1418 does not support Moving Party’s position in that Rayinvolved a contractual duty to an insured. This case sounds intort. Therefore the rule set forth in Merchant Shippers Ass 'n v. KelloggExpress & Draying Co., 28 Cal. 2d 594, 600 is the applicable standard fordamages.

7 2012-00566217JACKSON VS NORTHAMERICANThe demurrers by defendants Long Beach Restaurants Properties, LLC,Fountainhead Delta, LLC, Craig Smith, and Commonwealth Land Title, tothe Third Amended Complaint are sustained, with leave to amend, ongrounds of failure to state facts sufficient to constitute a cause ofaction. All of plaintiffs’ claims are barred by the applicable statutes oflimitation. While plaintiffs attempt to allege delayed discovery, there areinsufficient facts pled to show that plaintiffs were unable to have madeearlier discovery despite reasonable diligence. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4 th 797, 808-809.)Plaintiffs have alleged three defects in the grant deed: an incorrectaddress, an incorrect legal description, and an incorrect assessor’s parcelnumber. The Third Amended Complaint alleges facts explaining whyplaintiffs did not discover that the legal description and assessor’s parcelnumber were incorrect until November 2010. However, there areinsufficient facts alleged as to why plaintiffs did not discover the addresson the grant deed was incorrect at the time the grant deed was delivered.Furthermore, there are insufficient facts alleged to show how plaintiffSharon Jackson has standing to allege any claim against movingparties. There are no allegations as to when Sharon Jackson gained anownership interest in the property, and exhibits to the Third AmendedComplaint only show standing on the part of plaintiff Thomas Jackson.Plaintiffs are granted one last opportunity to amend. The declarations byplaintiff Thomas Jackson and plaintiffs’ attorney Ken Bryant, while notconsidered in determining the sufficiency of the Third Amended Complaint,do contain facts and exhibits, which if alleged, or attached to the amendedpleading, would cure the defect as to plaintiffs’ failure to discover that thestreet address on the grant deed was incorrect. (T. Jackson Decl. insupport of Opp, Paras. 2, 4, and 6, and Ex. A thereto; K. Bryant Decl. insupport of Opp, Paras. 4 and 6.)8 2013-00654003ROTH VS ALLIEDBARTON10 2013-00641773TOOLCO VS BOWEN & GROVESThe request for judicial notice by defendants Long Beach RestaurantsProperties, LLC, Fountainhead Delta, LLC and Craig Smith is granted, inthat the court takes judicial notice of the fact that Ex. H to the SecondAmended Complaint was filed, but not of the truth of their contents.Moving parties to give notice.Motion by attorney Matthew C. Crawford to be granted permission toappear as counsel pro hac vice for defendant Allied Barton SecurityServices, LLC is granted.Defendants Bowen & Groves, Inc. and eCommerce industries, Inc.’sdemurrer to the 2 nd through 5 th causes of action of the FAC is overruled inpart and sustained in part as follows:The demurrer to the 2 nd , 3 rd and 4 th causes of action are not duplicative ofthe 1 st cause of action and are not uncertain. The demurrer is overruledwith respect to these causes of action.The demurrer to the 5 th cause of action for fraud is sustained with ten (10)days leave to amend as the claim has not been alleged with the requisitespecificity. Plaintiff has not alleged who made the representations onbehalf of either of the defendants, their authority to speak, whether therepresentations were written or oral and when the representations wereallegedly made.

11 2013-00641123TRANS VS BAC HOME LOANSDefendants Bank of America, N.A., as successor by merger to BAC HomeLoan Servicing, LP, and Recontrust Company, N.A.’s request for judicialnotice is granted. Defendants’ demurrer is sustained in its entirety with10 days leave to amend. All of plaintiff James Trans’ claims are based onthe allegation that the substitution of trustee and assignment of deed oftrust executed by MERS was invalid. (See Complaint at 16a-c.) Thedeed of trust itself, attached to the complaint as exhibit A, establishes as afactual matter that MERS has the authority to exercise all of the rights andinterests of the lender. (Siliga v. Mortgage Electronic RegistrationSystems, Inc. (2013) 219 Cal.App.4th 75, 83-84.) This includes the rightto assign the deed of trust and substitute the trustee. (Ibid.) The claimthat there is no evidence that MERS had written authorization to assignthe deed of trust is a challenge to the foreclosing party to prove in courtits authority to initiate a foreclosure and therefore invalid. (Id. at pp. 84-85; Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497,513-514.) The allegation that the assignment is void because of apurportedly defective signature is insufficient to support plaintiff’sclaims. Plaintiff has also failed to allege any prejudice as a result of theirregularity. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th256, 271-272.)

# Case Name Tentative1 2013-00642810ARAUJO VS NORTHGATE2 2012-00575257GUNN VS MAI KAICOMMUNITY4 2013-00639416LEYVA VS SANTA ANA UNIFIED6 2013-00638312MOORE VS YELLOWSTONEDefendant’s three motions to compel Plaintiff to respond to specialinterrogatories, form interrogatories and request for production ofdocuments are all granted. Plaintiff is ordered to serve complete, verifiedresponses without objections in response to each of these threemotions. Defendant’s fourth motion requesting that plaintiff is deemed tohave admitted the request for admissions is also granted. The courtawards monetary sanctions against plaintiff and her counsel of record inthe total amount of $1850.00. Moving party to give notice.Defendant, Mai Kai Community Association’s Motion For Protective Order isgranted in part and denied in part. The depositions of the PMK’s forDefendant, its managing agent, and the contractor shall be completedbefore any further depositions are taken as to the remaining individualsoriginally noticed by Plaintiff.Before the individual depositions can occur, the party seeking thosedepositions would have to submit to the court, on an ex-parte basis,declarations showing a meaningful, good faith effort to meet and conferas to limiting the scope of such depositions to evidence, documentsand facts not obtained during the PMK depositions.The Defendant’s motion is granted in part as to the request to producedocuments at the depositions. The court finds that as a sitting Boardmember, Plaintiff’s right to inspect documents in this litigation are notlimited by inspection rights of association members under the DavisStirling Act, including executive session minutes, at least those not subjectto other privileges.The court is contemplating setting an OSC re: appointment of adiscovery referee, based upon the parties’ counsels’ apparent inability towork together to resolve discovery disputes without court intervention, thelarge number of disputed issues, and the fact that the subject motionappears to be one in a continuum of upcoming discovery motions.The court also finds that the categories of documents sought by Plaintiffcould include documents subject to valid attorney-client or third partyprivacy objections. The records sought by Plaintiff in the PMK depositionnotice for Defendant are required to be produced for the deposition, andDefendant shall produce a detailed privilege log for any documentswithheld from production for any deposition, pursuant to the attorneyclientor 3 rd party privacy privileges.Moving party to give notice.Defendants’ Demurrer is SUSTAINED with ten (10) days leave toamend. Plaintiff has failed to allege facts sufficient to constitute a cause ofaction, and his claim is barred by the Worker’s Compensation Act’sexclusive remedies.Defendant Yellowstone Women’s First Step House, Inc. dba YellowstoneWomen’s Recovery of California’s demurrer to the 1 st through 3 rd cause ofaction of the First Amended Complaint is sustained with ten (10) daysleave to amend. Each cause of action fails as there are insufficient factsalleged showing the acts or omissions of defendant caused or contributedto Shana’s death.

8 2012-00601859RAMIREZ VS BANK OFAMERICA9 2012-00566993RAMS GLEN VS COMMERCIALCUSTOM11 2012-00612523TOWNSEND VS DICKSONDefendants Bank of America, NA, HSBC Bank USA, NA As Trustee For TheHolders of The JPMorgan Alternative Loan Trust 2006-A7 & RecontrustCompany, NA’s Demurrer to The First Cause of Action For Violation of Civ.Code § 2923.5 is overruled.The Demurrer to The Second Cause of Action For Violation of Civ. Code2923.6 is sustained with leave to amend, on the basis that the SAC fails toallege facts showing a statutory violation by Defendants, or that therequested modification is consistent with the lender’s contractual or otherauthority.The Demurrer to The Third Cause of Action For Violation of Bus. & Prof.Code § 17200 is sustained with leave to amend, on the basis that it failsto allege facts that show that Plaintiffs suffered injury in fact proximatelycaused by anything other than their admitted failure to repay their loan asagreed.Based upon the court’s ruling on Defendant’s demurrer, the motion tostrike is moot. Plaintiffs to file and serve an amended complaint within tendays of the hearing of this motion.Moving party to give notice.Defendant Commercial Custom Seating & Upholstery, Inc.’s motion tocompel further response to special interrogatories and request forproduction of documents is granted. Plaintiff shall provide further verifiedresponses, without objection, within 20 days. Defendant is awardedsanctions against plaintiff in the total amount of $2200.00.The demurrer by defendants Gordon F. Dickson and Prosper Law to theSecond Amended Complaint is sustained in part and overruled inpart. The demurrer is overruled as to the sixth cause of action forconversion. The demurrer is sustained as to the fifth cause of action forintentional infliction of emotional distress, on grounds of failure to statesufficient to constitute a cause of action. (CCP 430.10(e).) There is noextreme and outrageous conduct alleged. Rather, the allegations of thiscause of action and of the Second Amended Complaint in general sound inlegal malpractice and fraud. Emotional distress damages are notrecoverable in a legal malpractice case as a matter of law. (Smith v.Superior Court of Orange County (1992) 10 Cal.App.4 th 1033; Pleasant v.Celli (1993) 18 Cal.App.4th 841.) To the extent the fifth cause of action isbased on defendants’ alleged fraud, this is also insufficient to support anIIED claim. (Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 67).The motion to strike by these defendants is granted in part and moot inpart. As to the request to strike emotional distress allegations at Paras.51, 74, 86 and Para. 3 of the prayer, the motion is granted, and as toPara. 78, the motion is moot, given the ruling on the demurrer.Plaintiff has not shown how any of these defects can be cured byamendment. Accordingly, the demurrer is sustained without leave toamend, and the motion to strike is granted, without leave toamend. Moving parties are ordered to file an Answer to the SecondAmended Complaint within 10 days. Moving parties to give notice.

12 2013-00649854ZALDIVAR VS THE BANK OFNEW YORKDefendants’ demurrer to the complaint is sustained with 10 days leave toamend. First and second causes of action for quiet title and wrongfulforeclosure – plaintiff has failed to adequately allege tender or that thesale was void. A tender is an offer of performance made with the intent toextinguish the obligation; a valid tender of performance must be of the fulldebt, in good faith, unconditional, and with the ability to perform. (Civ.Code, §§ 1486, 1493, 1494, 1495; Intengan v. BAC Home Loans ServicingLP (2013) 214 Cal.App.4th 1047, 1053; Arnolds v. Management Corp. v.Eischen (1984) 158 Cal.App.3d 575, 579-580.) Plaintiff lacks standing toraise violations of Trust 2006-OA7’s pooling and service agreement; “[a]san unrelated third party to the alleged securitization, and any othersubsequent transfers of the beneficial interest under the promissory note,[plaintiff] lacks standing to enforce any agreements, including theinvestment trust’s pooling and servicing agreement, relating to suchtransactions.” (Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216Cal.App.4th 497, 514-515.) Third cause of action for fraud – plaintiff hasfailed to plead the claim with the requisite specificity

# Case Name Tentative1 2012-00534737CHOICEADZ.COM VS USSOURCE3 2012-00608853GALLAGHER-SCHOCK VSHOSSEINMotion for attorney fees by cross-defendants Maurice Chelliah Jr., AndrewCarlson and Richard Lemos is granted in the amount of $41,817.50. ThisCourt is not bound by the Swearingen case that was an unreporteddecision by a federal district court. The Swearingen court based itsconclusion on the legislative history of Penal Code Section 502(e)(2). ThisCourt disagrees with that interpretation. If the legislature intended tolimit attorney’s fees to prevailing plaintiffs it could have made its intentionunmistakably clear by saying so as it has done with so many otherstatutes. The legislature removed the words “to a prevailing party”indicating that said words were superfluous. The legislature apparentlyintended to delete the requirement that a party must prevail in order to beentitled to fees. Whereas only prevailing parties (plaintiffs or defendants)could recoup their fees before the change, now even losing parties may beentitled to fees. Whether to award fees remains within the discretion ofthe trial court.Defendants, Mohammed Hossein, Noor Jahan & Gary Brady’s Motion ForSummary Judgment is denied on the basis that they failed to meet theirinitial burden of proof to show no triable issue of material fact exists as toPlaintiff’s Complaint. Mr. Jahan as a partner with Mr. Hossein, is jointlyand severally liable for partnership debts and his partner’s torts inconnection with the operation of the partnership business.Specifically, the Defendant’s motion addresses a handful of over 90 of thePlaintiff’s responses to interrogatories and ignores other discoveryresponses showing that Plaintiff has other evidence to support her claims.Additionally, the Plaintiff’s discovery responses from six months ago do notdemonstrate that Plaintiff does not possess, and cannot reasonablyobtain evidence to support the elements attacked in Defendant’s motionfor summary judgment. Aguilar v. Atlantic Richfield Co. (2001) 25Cal.4 th 826, 854. Thus, Defendant have not met their initial burden forsummary judgment.Defendant’s Motion For Summary Adjudication of Noticed Issues No.Onethrough Six is denied on the basis that Defendants failed to meet theirinitial burden of proof to show no triable issue of material fact exists as toPlaintiff’s causes of action. Specifically, the Defendant’s motion addressesa handful of over 90 of the Plaintiff’s responses to interrogatories andignores other discovery responses showing that Plaintiff has otherevidence to support her claims.Additionally, the Plaintiff’s discovery responses from six months ago do notdemonstrate that Plaintiff does not possess, and cannot reasonablyobtain evidence to support the elements attacked in Defendant’s motionfor summary adjudication . Aguilar v. Atlantic Richfield Co. (2001) 25Cal.4 th 826, 854. Thus, Defendants have not met their initial burden forsummary adjudication of issues.4 2012-00537815GHARIB VS KARIMABADIEven assuming that Defendants had met their initial burden, Plaintiffevidence in opposition to the Defendant’s motion creates triable issues ofmaterial fact as to Defendant’s harassment, discrimination and retaliationagainst Plaintiff.Motion by attorney Mitchell Reed Sussman, to withdraw as counsel fordefendants Mosta aka Mostafa Karimabadi and Monir Zarrinnegegarcontinued to 11/21/13, at 2PM to give counsel an opportunity to file aproposed order on form MC-053 as required by CRC rule 3.1362,subdivision (e). Moving party to give notice.

5 2013-00656737HAERI VS HAERIPetitioner Maryam Haeri’s Writ of Mandate to Compel Inspection ofCorporate Records is granted. Respondents are ordered to produce forcopying and inspection by Petitioner or her agents:(a) The Bylaws of Haeri Professional Dental Corporation; (b) All Statementof Information for Haeri Professional Dental Corporation; (c) All Minutes ofthe First Meeting of Shareholders/Incorporators; (d) All Minutes ofShareholder Meetings of the Corporation; (e) All minutes of meetings of thboard of directors of HPDC; (f) All Corporate Resolutions of HPDC; (g) TheGeneral Ledger of Haeri Professional Dental Corporation; (h) The lease andany lease modifications for the dental office in which HPDC transactsbusiness; (i) Balance sheets for any open lines of credit or promissorynotes of Haeri Professional Dental Corporation; (j) All accounting records oHaeri Professional Dental Corporation; (k) All banking account records ofHaeri Professional Dental Corporation; (l) Copies of all Tax Returns filed byHaeri Professional Dental Corporation with all schedules and worksheets;and (m) Copies of profit and loss statements for Haeri Professional DentalCorporation dating back to the date of incorporation, to the extent suchrecords have not been already produced, within 20 days.6 2012-00560377O VS WESTERN DENTAL10 2008-00107111SOLLOSY VS HOFFMANThe court exercises its discretion under Corp. Code § 1604 and declines toaward Petitioner’s her attorneys’ fees incurred herein. The court finds thatgiven the broad scope of the sought records and minimal statutorynotice, the delays experienced by Petitioner in obtaining the records forinspection and copying do not constitute a failure by the corporation tocomply without justification. .Petitioner is entitled to costs exclusive ofattorney’s fees.Plaintiff Adriana O.’s motion to tax costs is denied. Defendant WesternDigital Services, Inc. is entitled to the costs at issue per Code of CivilProcedure section 1033.5, subdivision (a)(3), and the costs werereasonably incurred. An original must be stored “under conditions that wilprotect it against loss, destruction, or tampering” as a matter of law (CodeCiv. Proc., § 2025.550); it was reasonable for defendant to order certifiedcopies for its own litigation purposes, e.g., to tear apart and piecetogether for purposes of a motion for summary judgment.Defendants Martin Hoffman and Jennifer Hoffman’s demurrer to the 1 st ,4 th , 7 th , 8 th 9 th and 10 th causes of action of the 4 th amended complaint issustained in its entirety. The allegations of the complaint with regard tothe date of the will and the exhibit to the complaint are inconsistent,rendering the entire complaint uncertain.The demurrer to the 4 th and 8 th causes of action is sustained without leaveto amend. Unjust enrichment and conspiracy are not recognized inCalifornia as separate causes of action. The demurrer to the remainingcauses of action is sustained with 15 days leave to amend.

11 2012-00612523TOWNSEND VS DICKSON13 2013-00666772WERNO VS BAILYNThe motions by defendant Manning & Kass, Ellrod, Ramirez, Trester, LLPto compel plaintiff Juliette Townsend to provide responses and/or furtherresponses to discovery are granted. Plaintiff is ordered to provide full,complete and verified further responses, without objection, to defendant’sSpecial Interrogatories, Set One, Special Interrogatory Nos. 1, 71, 73, 74,77, 79, 81, 83, 85, and 87. (CCP 2030.300.) Plaintiff is further orderedto provide full, complete and verified responses, without objection, todefendant’s Special Interrogatories, Set One, Special Interrogatory Nos.97-114. (CCP 2030.290.) Plaintiff is further ordered to provide full,complete and verified responses, without objection, to defendant’sRequest for Production of Documents, Set One, in its entirety. Allresponses are to be provided within 15 days.The court finds that plaintiff’s failure to provide proper responses waswithout substantial justification, and imposes monetary sanctions againstplaintiff in the amount of $645 for the motion regarding the SpecialInterrogatories, and $525 for the motion regarding documentdemands. Moving party to give notice.Defendant Evan Bailyn’s motion for change of venue is granted. None ofthe defendants are Orange County residents (Bailyn Decl. at 4-5);Bailyn is a resident of San Francisco County (ibid.); the oral contract wasentered into in San Francisco (Complaint at 7-8); Bailyn has not beensued as the alter ego of the entity defendants.

# Case Name Tentative1 2012-00534737CHOICEADZ.COM VS USSOURCE3 2012-00608853GALLAGHER-SCHOCK VSHOSSEINMotion for attorney fees by cross-defendants Maurice Chelliah Jr., AndrewCarlson and Richard Lemos is granted in the amount of $41,817.50. ThisCourt is not bound by the Swearingen case that was an unreporteddecision by a federal district court. The Swearingen court based itsconclusion on the legislative history of Penal Code Section 502(e)(2). ThisCourt disagrees with that interpretation. If the legislature intended tolimit attorney’s fees to prevailing plaintiffs it could have made its intentionunmistakably clear by saying so as it has done with so many otherstatutes. The legislature removed the words “to a prevailing party”indicating that said words were superfluous. The legislature apparentlyintended to delete the requirement that a party must prevail in order to beentitled to fees. Whereas only prevailing parties (plaintiffs or defendants)could recoup their fees before the change, now even losing parties may beentitled to fees. Whether to award fees remains within the discretion ofthe trial court.Defendants, Mohammed Hossein, Noor Jahan & Gary Brady’s Motion ForSummary Judgment is denied on the basis that they failed to meet theirinitial burden of proof to show no triable issue of material fact exists as toPlaintiff’s Complaint. Mr. Jahan as a partner with Mr. Hossein, is jointlyand severally liable for partnership debts and his partner’s torts inconnection with the operation of the partnership business.Specifically, the Defendant’s motion addresses a handful of over 90 of thePlaintiff’s responses to interrogatories and ignores other discoveryresponses showing that Plaintiff has other evidence to support her claims.Additionally, the Plaintiff’s discovery responses from six months ago do notdemonstrate that Plaintiff does not possess, and cannot reasonablyobtain evidence to support the elements attacked in Defendant’s motionfor summary judgment. Aguilar v. Atlantic Richfield Co. (2001) 25Cal.4 th 826, 854. Thus, Defendant have not met their initial burden forsummary judgment.Defendant’s Motion For Summary Adjudication of Noticed Issues No.Onethrough Six is denied on the basis that Defendants failed to meet theirinitial burden of proof to show no triable issue of material fact exists as toPlaintiff’s causes of action. Specifically, the Defendant’s motion addressesa handful of over 90 of the Plaintiff’s responses to interrogatories andignores other discovery responses showing that Plaintiff has otherevidence to support her claims.Additionally, the Plaintiff’s discovery responses from six months ago do notdemonstrate that Plaintiff does not possess, and cannot reasonablyobtain evidence to support the elements attacked in Defendant’s motionfor summary adjudication . Aguilar v. Atlantic Richfield Co. (2001) 25Cal.4 th 826, 854. Thus, Defendants have not met their initial burden forsummary adjudication of issues.4 2012-00537815GHARIB VS KARIMABADIEven assuming that Defendants had met their initial burden, Plaintiffevidence in opposition to the Defendant’s motion creates triable issues ofmaterial fact as to Defendant’s harassment, discrimination and retaliationagainst Plaintiff.Motion by attorney Mitchell Reed Sussman, to withdraw as counsel fordefendants Mosta aka Mostafa Karimabadi and Monir Zarrinnegegarcontinued to 11/21/13, at 2PM to give counsel an opportunity to file aproposed order on form MC-053 as required by CRC rule 3.1362,subdivision (e). Moving party to give notice.

5 2013-00656737HAERI VS HAERIPetitioner Maryam Haeri’s Writ of Mandate to Compel Inspection ofCorporate Records is granted. Respondents are ordered to produce forcopying and inspection by Petitioner or her agents:(a) The Bylaws of Haeri Professional Dental Corporation; (b) All Statementof Information for Haeri Professional Dental Corporation; (c) All Minutes ofthe First Meeting of Shareholders/Incorporators; (d) All Minutes ofShareholder Meetings of the Corporation; (e) All minutes of meetings of thboard of directors of HPDC; (f) All Corporate Resolutions of HPDC; (g) TheGeneral Ledger of Haeri Professional Dental Corporation; (h) The lease andany lease modifications for the dental office in which HPDC transactsbusiness; (i) Balance sheets for any open lines of credit or promissorynotes of Haeri Professional Dental Corporation; (j) All accounting records oHaeri Professional Dental Corporation; (k) All banking account records ofHaeri Professional Dental Corporation; (l) Copies of all Tax Returns filed byHaeri Professional Dental Corporation with all schedules and worksheets;and (m) Copies of profit and loss statements for Haeri Professional DentalCorporation dating back to the date of incorporation, to the extent suchrecords have not been already produced, within 20 days.6 2012-00560377O VS WESTERN DENTAL10 2008-00107111SOLLOSY VS HOFFMANThe court exercises its discretion under Corp. Code § 1604 and declines toaward Petitioner’s her attorneys’ fees incurred herein. The court finds thatgiven the broad scope of the sought records and minimal statutorynotice, the delays experienced by Petitioner in obtaining the records forinspection and copying do not constitute a failure by the corporation tocomply without justification. .Petitioner is entitled to costs exclusive ofattorney’s fees.Plaintiff Adriana O.’s motion to tax costs is denied. Defendant WesternDigital Services, Inc. is entitled to the costs at issue per Code of CivilProcedure section 1033.5, subdivision (a)(3), and the costs werereasonably incurred. An original must be stored “under conditions that wilprotect it against loss, destruction, or tampering” as a matter of law (CodeCiv. Proc., § 2025.550); it was reasonable for defendant to order certifiedcopies for its own litigation purposes, e.g., to tear apart and piecetogether for purposes of a motion for summary judgment.Defendants Martin Hoffman and Jennifer Hoffman’s demurrer to the 1 st ,4 th , 7 th , 8 th 9 th and 10 th causes of action of the 4 th amended complaint issustained in its entirety. The allegations of the complaint with regard tothe date of the will and the exhibit to the complaint are inconsistent,rendering the entire complaint uncertain.The demurrer to the 4 th and 8 th causes of action is sustained without leaveto amend. Unjust enrichment and conspiracy are not recognized inCalifornia as separate causes of action. The demurrer to the remainingcauses of action is sustained with 15 days leave to amend.

11 2012-00612523TOWNSEND VS DICKSON13 2013-00666772WERNO VS BAILYNThe motions by defendant Manning & Kass, Ellrod, Ramirez, Trester, LLPto compel plaintiff Juliette Townsend to provide responses and/or furtherresponses to discovery are granted. Plaintiff is ordered to provide full,complete and verified further responses, without objection, to defendant’sSpecial Interrogatories, Set One, Special Interrogatory Nos. 1, 71, 73, 74,77, 79, 81, 83, 85, and 87. (CCP 2030.300.) Plaintiff is further orderedto provide full, complete and verified responses, without objection, todefendant’s Special Interrogatories, Set One, Special Interrogatory Nos.97-114. (CCP 2030.290.) Plaintiff is further ordered to provide full,complete and verified responses, without objection, to defendant’sRequest for Production of Documents, Set One, in its entirety. Allresponses are to be provided within 15 days.The court finds that plaintiff’s failure to provide proper responses waswithout substantial justification, and imposes monetary sanctions againstplaintiff in the amount of $645 for the motion regarding the SpecialInterrogatories, and $525 for the motion regarding documentdemands. Moving party to give notice.Defendant Evan Bailyn’s motion for change of venue is granted. None ofthe defendants are Orange County residents (Bailyn Decl. at 4-5);Bailyn is a resident of San Francisco County (ibid.); the oral contract wasentered into in San Francisco (Complaint at 7-8); Bailyn has not beensued as the alter ego of the entity defendants.

HON. KIRK H. NAKAMURASuperior Court of Orange County, CaliforniaUndergraduate: UC, Irvine, 1977Law School: Duke, 1980Admitted to Practice: 1980Appointed to the Bench: 2001Appointed by: Gray Davis, Jr., DemocratCareer as an AttorneyAssociate, Shield & Smith, Los Angeles, California, 1980-85Associate/Partner, Beam Di Caro, et al & Successors firms,Santa Ana, California, 1985-2001 (Specialties in practice: public entity law,insurance law, and construction law)Planning Commissioner, Yorba Linda, California, 2000-01Relevant Organizational AffiliationsMember:William P. Gray/Lex Legion Inn of Court, 2001-Legislative Relations Committee, California Judges Association, 2011-Board Member, California Asian American Judges Association, 2011-Board Member, ABTL, 2012-Former Member:Duke Alumni Interview Advisory Committee, 1991-2001Board of Directors, Orange County Bar Association, 1996-2001, (Chair,Bias Grievance Committee, 1997-2001, Co-chair, ADR Committee, 1998,Judiciary Committee, 1997-2001)President, Orange County Japanese American Lawyers Association, 1998-99President, Orange County Asian American Bar Association, 1999-2000Warren J. Ferguson Inn of Court, 2000Judicial Appointments Selection Committee, Orange County, California,(for former Gov. Arnold Schwarzenegger), 2006-10

Other InformationPublications:The Classification of Personal Injury Damages Under California CommunityProperty Law: Proposal for Application and Reform, 14 Pac. L.J. 973, 1983Between Cumis and Native Sum: The Right to Cumis Counsel Under Civil CodeSection 2860, 37 Orange County Lawyer, #7, July 1995Krusing for a Bruising: Is Total Express Indemnity Dead? 38 Orange CountyLawyer, #5, p.34, May1996The New and Expanded Bias Grievance Procedure, 39 Orange County Lawyer,#10, p.41, October 1997Expect More From The Courts Temporary Judges: The Court Does, 49 OrangeCounty Lawyer, #8, p.43, August 2007Courtroom Year 2010: Summary Judgment, (The Benches Short Story, March/April2006Better Late Than Never! The New Court Approved Mediation ProgramLaunches, 51 Orange County Lawyer, #2, p.34, February 2009Lectures:Teaching/Lectures/PanelistKeynote Speaker, Orange County Japanese American Lawyers Association, 2002Speaker, Personal Injury 101, Orange County Bar Association, 2011Speaker, Judicial Forum on Trial Practice, 2011Teaching;Adjunct Professor, Construction Law, Chapman Law School, 2004Temporary Judge Training, Elimination of Bias, Bench Demeanor, 2007, Ethics, 2010Admissions:9 th Circuit Court of AppealsFederal District Court of California, Central District

Superior Court of the State of Californiahttp://www.occourts.org/tentativerulings/knakamurarulings.htmPage 1 of 109/13/2013TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraSeptember 12, 2013Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be postedon all law and motion matters. Please read these rules carefully. Do not call the Department unless ALLparties submit on tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However,ongoing proceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THEDEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will bediligently working on posting the rulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counselintend to submit on the tentative and do not wish oral argument, please advise the courtroom assistantby calling (657) 622-5215. If all sides submit on the tentative ruling and so advise the clerk, thetentative ruling shall become the court’s final ruling and the prevailing party shall give Notice of Rulingand prepare an Order for the court’s signature, if appropriate under CRC 3.1312.Please be advised that the Orange County Superior Court still provides court reporters for civil law andmotion matters.# meTentative1 Admiral Ins. Co.v. Council forEducationalTravel USA2 The RetailProperty Trust v.Orange CountyPeople forAnimalsMotion for Bifurcation: OFF CALENDARMotion for Release of Appeals Bonds: GRANTAbsent any written objection before or oral objection at the hearing on 9-12-13 by defendants OCPA and/or Patel, plaintiff The Retail Property Trust’smotion to release appeals bond is GRANTED. See, Civil Code § 995.360(b)and 996.110(a). Defendants OCPA and Patel have each filed anAcknowledgment of Satisfaction of Judgment in Full. Thus, absent anyobjection by defendants OCPA or Patel, the purpose of the appeals bond hasbeen satisfied. Moving party to give notice to all parties that have appearedin this civil action.Moving party to give notice.3 Magpiong v.Sassco, Inc.Motion to Quash Discovery Subpena: CONTINUED to 9/26/134 Simone v. Loyd Motion to Quash Deposition Subpena: OFF CALENDAR5 Lorenzetti v.MeerMotions to Deem Facts Admitted: OFF CALENDARStipulation taking motion off calendar has been signed by the court.

Superior Court of the State of Californiahttp://www.occourts.org/tentativerulings/knakamurarulings.htmPage 2 of 109/13/20136 Levy v. Kallman Motion to Compel Answers to Form Interrogatories: MOOTMotion to Deem Facts Admitted: DENYRequest for Sanctions: GRANTSince Plaintiff has responded to the Form Interrogatories, the Motion toCompel is MOOT.On May 23, 2013, Plaintiff timely served objections to most of the Requestsfor Admissions. Objections to discovery are not required to be verified. Food4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651,657-658.Prior to the Motion to Deem the Requests Admitted, Plaintiff served hisverification. This response is substantial compliance for the non-objections.Therefore, the motion is DENIED.Defendant is still entitled to sanctions for both motions. Within fifteen (15)days, Plaintiff and his attorney shall pay total sanctions in the sum of$750.00 ($250.00 per hour x 3 hours.)Moving party to give notice.7 Lopez v. NewAlbertsonsMotions to Compel Further Responses to (1) Special Interrogatories, (2)Form Interrogatories and (3) Request for Production of Documents: GRANTALLWithin fifteen (15) days, Plaintiff shall respond without objection to thisdiscovery. Within fifteen (15) days, Plaintiff and his attorney shall paysanctions in the total sum of $840.00.[($165.00 per hour x 4 hours) + ($60.00 x 3)].Moving party to give notice.8 Shahbazi v.KabirMotion to Compel Further Responses to Request to Produce: See belowPlaintiff’s motion is OFF CALENDAR (moot) insofar as it seeks to compel afurther response to requests for production. As supplemental responseshave been provided, the motion to compel a further response is moot.It is GRANTED as to sanctions. Sanctions are $2450 against KabirInvestment Corp. [KIC] and attorney Alex Asil Mashiri if there is anappearance; if no appearance is required, sanctions are $1750. Plaintiff is togive notice; notice is to indicate whether or not there has been anappearance.

Superior Court of the State of Californiahttp://www.occourts.org/tentativerulings/knakamurarulings.htmPage 3 of 109/13/2013KIC cites no authority that notice of motion has to state specifically whatitems are at issue. The separate statement provides such notice.Sanctions are granted because Defendant improperly made this motionnecessary. The requests at issue are identical to those that Mr. Kabir wasordered to respond to on 7/18. As there is no claim that KIC has anyadditional documents, it was bad faith to continue to refuse to supplement itsresponses thereafter.The Court acknowledges Plaintiff’s contention that KICs supplementalresponses are false. However, this motion is not the procedure to use tochallenge them; it only concerns the 6/21/13 response.Moving party to give notice.9 Vo v. Huckabee Demurrer to Second Amended Complaint: See belowThe demurrer by defendants Teva, Teva USA and Ron Davenport isOVERRULED in part and otherwise MOOT.The demurrer by defendant Davenport to plaintiff Vo’s fifth cause of actionfor slander is MOOT as the parties agree plaintiff Vo has agreed to dismissthis cause of action pursuant to an agreement.As to plaintiff Vo’s third cause of action for wrongful discharge in violation ofpublic policy, plaintiff Vo has now alleged sufficient facts as to unsafe workpractices to state a cause of action for violation of Labor Code § 6301(b).(See, SAC, 87, 92, 106 and 107 in particular.) The Sequoia case isdistinguishable because plaintiff in that case was relying on Proposition 103.The Sequoia court then explained that: “In this case, the employer isaccused of violating public policy by attempting to persuade plaintiff to‘inflate’ case reserves. Unless plaintiff can point to a specific statement inProposition 103 or another statute which restricts the amount of reserves aninsurer may set aside for the anticipated cost of a pending claim, no publicpolicy can be inferred.” Id., at 1480. In contrast, plaintiff Vo is relying onLabor Code § 6301(b), which prohibits retaliation for reporting unsafe workconditions and unsafe work practices, and plaintiff has set forth suchallegations including reporting purported violation of F.D.A. regulations tomanagement at defendants Teva and Teva USA. The Teva defendants havenot cited a case where a plaintiff must set forth a sufficient statute like LaborCode § 6301(b), as well as set forth facts as to the specific underlying safetyregulations purportedly violated. A violation of Labor Code § 6301(b) willsupport a cause of action for wrongful termination in violation of publicpolicy. See, Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 303 to 304.Also, such reports to an employer are sufficient, and do not require oral orwritten reports to a governmental agency. See, Holmes v. General DynamicsCorp. (1993) 17 Cal.App.4 th 1418, 1434. As to Schulthies, the courtexplained that: “Plaintiff does not allege that when he wrote the e-mail hebelieved that Defendant AMTRAK was violating a statute or regulation or thathe believed the e-mail to disclose a violation. The e-mail itself is concernedwith efficiency, monetary waste and disruption of employees' families andcannot reasonably be interpreted to disclose a violation of a statute orregulation.” Id., at 1003. As to Ferretti, the court was not addressingwhether facts as to unsafe work matters had been pled, which they havebeen in this case. Also, the Ferretti court had explained that plaintiff in thatcase had pled a sufficient claim for wrongful termination for violation ofpublic policy based on the alleged violation of Labor Code § 1102.5(c).

Superior Court of the State of Californiahttp://www.occourts.org/tentativerulings/knakamurarulings.htmPage 4 of 109/13/2013Finally, the Teva defendants have not specified sufficiently how plaintiff Vo’sthird cause of action for wrongful termination in violation of public policy inhis second amended complaint is so uncertain, and where such uncertaintyexist, such that the Teva defendants cannot respond. See, Fenton v.Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809. Thusthe Teva defendants’ special demurrer to plaintiff Vo’s third cause of actionfor wrongful termination in violation of public policy in plaintiff’s secondamended complaint is overruled.The Teva defendants are ordered to give notice and file an answer to plaintiffVo’s second amended complaint within 15 days.10 Bagheri v. OCDentalSpecialistsDemurrer to Second Amended Complaint: OFF CALENDAR11 Brill v. EssentialHome HealthCareDemurrer to First Amended Complaint: See belowThe Demurrer to the First Cause of Action for Elder & Dependent AdultFinancial Abuse is OVERRULED.Plaintiff properly alleged vicarious liability. Plaintiff alleged specific facts thatoccurred. On many occasions, Elma took Plaintiff to the bank and told her towithdraw the funds. The Complaint alleged that Elma was a care giver thatwas “acting in the course and scope of her employment.” (Page 3, line 21).It was “foreseeable to Novales and EHHC . . . Mrs. Brill became dependentupon Elma for assistance, advice and counsel.” (Page 4, lines 6- 10).The Supreme Court case of Lisa M. involved a summary judgment motion,not a demurrer. On a Demurrer, the court cannot evaluate whetherDefendants should be held vicariously liable. The Complaint is not requiredattach or quote to the contract between Plaintiff and moving parties and thecontract between the moving parties and Elam. Otworth v. Southern Pac.Transportation Co. (1985) 166 Cal.App.3d 452, 459 refers to Demurrer to aBreach of Contract (See Reply, page 2).The Demurrer to the Second Cause of Action for Elder Abuse-Neglect isSUSTAINED with fifteen (15) days leave to amend.“[N]eglect as a form of abuse under the Elder Abuse Act refers “to thefailure of those responsible for attending to the basic needs and comforts ofelderly or dependent adults . . . ” Carter v. Prime Healthcare Paradise Valley

Superior Court of the State of Californiahttp://www.occourts.org/tentativerulings/knakamurarulings.htmPage 5 of 109/13/2013LLC (2011) 198 Cal.App.4th 396, 404-405. The term “neglect” does notencompass financial abuse.The Demurrer to the Third Cause of Action for Breach of Fiduciary Duties isOVERRULED.Since Elma was Plaintiff’s agent, she was her fiduciary. “An agent is afiduciary.” Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1579.(Emphasis original). Moving parties were alleged to be vicarious liable forElma’s actions.The Demurrer to the Fourth Cause of Action for Fraud is SUSTAINED withfifteen (15) days leave to amend.Although the cause of action states that Defendants “manipulated anddeceived” Plaintiff, the Complaint does not state that Defendantmisrepresented what would happen to the funds withdrawn from the Bank.Plaintiff has not specifically alleged misrepresentation. “In California, fraudmust be pled specifically; general and conclusory allegations do not suffice. .. . This particularity requirement necessitates pleading facts which 'showhow, when, where, to whom, and by what means the representations weretendered.' ” Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.The Demurrer to the Fifth Cause of Action for Conversion is OVERRULED.“’Money can be the subject of an action for conversion if a specific sumcapable of identification is involved.’” Avidor v. Sutter's Place, Inc. (2013)212 Cal.App.4th 1439, 1452. In this case, the money was the $90,000withdrawn from Plaintiff’s bank account.The Demurrer to the Sixth Cause of Action for Intentional Infliction ofEmotional Distress is OVERRULED.Plaintiff was 86 years old with dementia and/or Alzheimer’s disease. When aperson in a position of power injures a person susceptible to mental distress,the conduct is sufficiently outrageous. “ ‘Behavior may be consideredoutrageous if a defendant (1) abuses a relation or position that gives himpower to damage the plaintiff's interests; (2) knows the plaintiff issusceptible to injuries through mental distress; or (3) acts intentionally orunreasonably with the recognition that the acts are likely to result in illnessthrough mental distress. …’ ” Molko v. Holy Spirit Ass'n (1988) 46 Cal.3d1092, 1122 (internal citation omitted.)The Demurrer to the Seventh Cause of Action for Negligent Infliction ofEmotional Distress is OVERRULED.Defendants concede that a breach of duty arising out of pre-existingrelationship would support this cause of action. “[D]amages for severeemotional distress may be recovered ‘when they result from the breach of aduty owed the plaintiff that is assumed by the defendant or imposed on thedefendant as a matter of law, or that arises out of a special relationshipbetween the two.’” Christensen v. Superior Court (1991) 54 Cal.3d 868,891. Elma had a relationship with Plaintiff prior to the embezzlement.The Demurrer to the Eighth Cause of Action for Violation of UnfairCompetition Law is SUSTAINED with fifteen (15) days leave to amend. “Aplaintiff alleging unfair business practices under these statutes must statewith reasonable particularity the facts supporting the statutory elements ofthe violation.” Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th

Superior Court of the State of Californiahttp://www.occourts.org/tentativerulings/knakamurarulings.htmPage 6 of 109/13/2013612, 619. Plaintiff has not specifically stated how Defendant’s conduct wasunlawful, unfair or fraudulent.The Motion to Strike is GRANTED with fifteen (15) days leave to amendregarding punitive damages, treble damages and attorney fees. Theremaining items sought to be stricken are DENIED.Plaintiff has not complied with the requirements of Civil Code § 3294 (b) tohold an employer liable for punitive damages. Under Civil Code § 3345 (a),Plaintiff has not properly alleged “unfair or deceptive acts or practices orunfair methods of competition.” Pursuant to C.C.P. § 1021.5, Plaintiff hasnot alleged a basis to recovery under the private attorney general theory.Moving party to give notice.12 Wang v. TideInternationalUSADemurrer to Complaint: See belowThe demurrer by defendants Tide USA, Tide Ltd., and Yang to plaintiffWang’s complaint is overruled in part and sustained in part.OVERRULED as to plaintiff Wang’s third cause of action for breach of fiduciaryduty as to all defendants, and as to defendant Tide USA only in regard toplaintiff Wang’s fourth cause of action for involuntary dissolution. As toplaintiff’s third cause of action for breach of fiduciary duty, the majorityshareholders owe a fiduciary duty to a minority shareholder not to misusecorporate assets and property, which does not have to be brought as aderivative action. See, Jones v. H.F. Ahmanson & Co. (1969) 1 Cal.3d 93,108. Plaintiff Wang has alleged facts that he is a minority shareholder ofdefendant Tide USA and facts as to misuse of corporate assets by alldefendants that is sufficient at this pleading stage. As to plaintiff’s fourthcause of action for involuntary corporate dissolution, while plaintiff Wang isnot a 33% or more shareholder to support involuntary dissolution pursuantto Corporations Code § 1800(b)(2), plaintiff Wang has alleged sufficient factsat this pleading stage to support a claim for involuntary corporate dissolutionpursuant to Corporations Code §§ 1800(b)(4) or 1800(b)(5). In particular,involuntary dissolution pursuant to Corporations Code § 1800(b)(5) cannotbe resolved based on the face of the complaint and items subject to judicialnotice.SUSTAINED as to plaintiff Wang’s first cause of action for wrongfultermination in violation of public policy, second cause of action for anaccounting, and fourth cause of action for involuntary dissolution as todefendants Yang and Tide Ltd.As to plaintiff’s first cause of action for wrongful termination in violation ofpublic policy against defendants Tide Ltd. and Yang, plaintiff has not allegedthat either of these defendants are his employer as required, and plaintiffWang has not filed any opposition explaining that he can plead such facts tostate such a cause of action. See, Phillips v. Gemini Moving Specialists(1998) 63 Cal.App.4 th 563, 575 and Hendy v. Losse (1991) 54 Cal.3d 723,742.

Superior Court of the State of Californiahttp://www.occourts.org/tentativerulings/knakamurarulings.htmPage 7 of 109/13/2013As to plaintiff’s second cause of action for an accounting, defendant Yang isnot a corporation maintaining corporate financial records, and as todefendant Tide Ltd., plaintiff has not alleged he is a shareholder to supportinspection of any records as to defendant Tide Ltd. As to defendants Yangand Tide Ltd., plaintiff is not granted leave to amend in regard to his secondcause of action for an accounting. As to defendant Tide USA, plaintiff hasalleged he is a 20% shareholder of this corporation, but plaintiff has notalleged facts that he submitted a written application to inspect the corporatebooks and records of defendant Tide USA. Plaintiff is granted leave to amendas to his second cause of action for accounting as to defendant Tide USA.As to plaintiff’s fourth cause of action for involuntary dissolution, defendantYang is not a corporation that can be dissolved. As to defendant Tide Ltd.,plaintiff has not alleged that he is a shareholder in Tide Ltd. to potentially beable to bring a cause of action for involuntary dissolution of this corporation.Plaintiff has not filed any opposition or otherwise stated additional facts thathe can plead to state a proper cause of action for involuntary dissolutionagainst defendant Yang and/or defendant Tide Ltd. Thus the demurrer bydefendants Yang and Tide Ltd. to plaintiff Wang’s fourth cause of action forinvoluntary dissolution is sustained without leave to amend.Moving party to give notice.13 Lee v. Ybarra Motion for Summary Judgment/Adjudication: GRANTDefendants have me their initial burden by presenting evidence that Mr.Ybarra did not cause Plaintiff’s injuries, i.e., that he did not run a red light.Plaintiff has not presented any evidence to the contrary.Plaintiff has admitted that he does not recall whether he entered theintersection on a green or red light. [Response to Undisputed Fact 10] Inhis response to Interrogatory #14.1, executed on 12/13/12, Plaintiffcontended only that Defendant had run a red light. This response wasexecuted nearly a month after Mr. Ybarra’s deposition, the deposition thatPlaintiff now claims creates a question of fact.A party cannot raise a question of fact on summary judgment by adeclaration that contradicts his prior testimony. Wilkins v NationalBroadcasting Co Inc (1999) 71 Cal.App.4th 1066, 1082. The Court holdsthat the same is true about changing interrogatory responses to attempt tocreate new issues.Furthermore, because Defendants have met their initial burden, the burdenshifts to Plaintiff to present evidence sufficient to meet his burden of proof attrial. Aguilar v. Atlantic Richfield Co. (2000) 25 Cal.4th 826, 850-851.This burden cannot be met unless the inferences raised by the opposingevidence would be sufficient to meet this burden of proof; the mereexistence of conflicting inferences will not defeat summary judgment.Habitat Trust for Wildlife Inc. v. City of Rancho Cucamonga (2009)175 Cal.App.4th 1306, 1342.There is no evidence whatsoever that Defendant’s speed or 2-3 secondinattention contributed to the cause of the accident or to Plaintiff’s injuries.There is no evidence that if Mr. Ybarra had been traveling a few miles perhour slower or had looked up a second or two earlier he would have seenthat Plaintiff was about to run a red light and would have been able to stop intime or that Plaintiff’s injuries would have been less severe. There is no

Superior Court of the State of Californiahttp://www.occourts.org/tentativerulings/knakamurarulings.htmPage 8 of 109/13/2013declaration from an accident reconstructionist or a medical expert. Plaintiffhis not met his burden under Aguilar and Habitat Trust.Defendant is to give notice and is to lodge and serve a proposed judgment ofdismissal.14 Sutton v. SealBeach SwimClubMotion for Summary Judgment/Adjudication: DENYThe court GRANTS defendant unopposed request that the court take judicialnotice of (1) the Complaint, (2) the Court’s 1/17/13 Minute Order (sustainingdemurrer), (3) defendant’s Answer to the Complaint, and (4) a copy of Corp.Code, § 5341.Defendant’s Motion for Summary Judgment is DENIED. Defendant failed tomeet its burden on summary judgment. Pursuant to Section 5341, nomembership in a public benefit corporation may be terminated or suspendedexcept in good faith and through fair and reasonable procedures. (Corp.Code, § 5341(b).) A procedure is statutorily considered fair and reasonablewhen (1) it has been set forth in the articles/bylaws, (2) “It provides thegiving of 15 days prior notice of the expulsion, suspension or termination andthe reasons therefor”, and (3) an opportunity for the member to be heard,orally or in writing, was given at least five days before the effective date ofthe expulsion/suspension/termination. (Corp. Code, § 5341(c).) Fullcompliance with the above is not always required however as “a court mayalso find other procedures to be fair and reasonable when the fullcircumstances of the suspension, termination, or expulsion are considered.”(Corp. Code, § 5341(b).)In support of its motion, among other things, defendant shows that Mr.Sutton received defendant’s 1/17/12 letter expelling the Suttons. Butdefendant fails to show when the letter was actually sent. The evidenceproffered only shows that it may have been received by Mr. Sutton on1/21/12. (See, e.g., Sutton Depo. at 160:4-9, 161:22-162:16, 163:4-8;163:11-14.) To be considered statutorily fair and reasonable under Section5341(c), written notice must have been given by 1/17/12. Defendant, onReply, appears to concede that the notice given was a few days short. (SeeReply Br. at 4:9-11.) In an effort to try and overcome this apparent failing,defendant argues that there was no prejudice. But there is no exception inSection 5341(c) for lack of prejudice. Moreover, defendant failed to showthat there was a lack of prejudice as a matter of law in its moving papers.And although defendant also attempts to also argue that the court shouldnonetheless find that procedure was fair and reasonable under “the fullcircumstances of the suspension, termination, or expulsion areconsidered” (Corp. Code, § 5341(b)), defendant fails to present sufficientevidence for such a finding. Defendant’s Separate Statement is comprisedprimarily of what written communications occurred and when they occurred.It fails to mention any of the purported matters considered by either theBoard or the Expulsion Committee in deciding to terminate plaintiffs’membership. Nor does defendant proffer any declaration from any memberof the Board regarding the reasons for the expulsion/suspension.Moreover, the “notice” provided to the Suttons “of the reasons” for theexpulsion/suspension in the 1/17/12 letter appears to be lacking. The onlyreason provided in the letter was that the Board felt Mr. Sutton’s challenge tothe election was “based solely on personal reasons and does not have thebest interests of the SEAL Swim Team organization as a whole.” (SuttonDepo., Exh. B.) Nowhere in the “notice” are prior incidents mentioned orthat Mr. Sutton has a history of inappropriate conduct. As Mr. Sutton wasprovided only with an opportunity to respond in writing, as opposed to

Superior Court of the State of Californiahttp://www.occourts.org/tentativerulings/knakamurarulings.htmPage 9 of 109/13/2013present oral argument or witnesses before the Special Member ExpulsionCommittee, Mr. Suttons’ response appears to have been directed solely tohis 1/16/12 challenge letter. It is at least a question of fact as to whether hewas given a fair opportunity to address the alleged prior incidents or historyof inappropriate conduct. (Sutton Depo., Exh. I.)Finally, the court admonishes plaintiffs’ counsel for citing to an unpublishedopinion – i.e., Aluisi v. Fort Washington Golf & Country Club (1995) 36Cal.App.4th 799, 42 Cal.Rptr.2d 761. The California Rules of Court expresslyprovides that such “must not be cited or relied on by a court or a party”.(Cal. Rules of Court, rule 8.1115(a).)Plaintiff to give notice.15 Earl v. Arias Motion for Summary Judgment/Adjudication: DENYPlaintiff’s Objection to defendant’s Request for Judicial Notice isOVERRULED. Defendant’s Request for Judicial Notice is GRANTED.Plaintiff’s Request for Judicial Notice is GRANTED.Defendant’s Motion for Summary Judgment is DENIED. Defendanthas not met his burden of establishing each element of the affirmativedefense of judicial estoppel. CCP 437c(p)(2) Anderson v. MetalcladInsulation Corp. (1999) 72 Cal.App.4 th 284 It has not established that theexclusion of this case from plaintiff’s bankruptcy petition and subsequentamendments was not due to ignorance or mistake or was due to fraud. MWErectors, Inc. v. Niederhauser Ornamental & Metal Works Col, Inc. (2005) 36Cal.4 th 412Even if defendant had met his burden, plaintiff has established atriable issue of material fact. Defendant’s Separate Statement of UndisputedMaterial Facts Nos. 4, 5, 6, 7, 9, 12, 13 and evidence offered in dispute.Plaintiff’s Motion for Sanctions under CCP §128.7 is DENIED.Defendant’s request for attorney’s fees and costs is DENIED.16 Doe v. Abdallah Motion for New Trial: OFF CALENDARAlthough Defendant filed notice of intent to move for new trial, no suchmotion was ever filed.Motion for Judgment Notwithstanding the Verdict: DENYThere was substantial evidence at trial that Plaintiff suffered mental andemotional injury as a result of her rape by the Defendant. That such injuryoccurred does not require any evidence other than Plaintiff’s testimony.Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 895.Plaintiff is to give notice.

Superior Court of the State of Californiahttp://www.occourts.org/tentativerulings/knakamurarulings.htmPage 10 of 109/13/20131718

Superior Court of the State of Californiahttp://www.occourts.org/tentativerulings/knakamurarulings.htmPage 1 of 79/5/2013TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraSeptember 5, 2013Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be postedon all law and motion matters. Please read these rules carefully. Do not call the Department unless ALLparties submit on tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However,ongoing proceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THEDEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will bediligently working on posting the rulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counselintend to submit on the tentative and do not wish oral argument, please advise the courtroom assistantby calling (657) 622-5215. If all sides submit on the tentative ruling and so advise the clerk, thetentative ruling shall become the court’s final ruling and the prevailing party shall give Notice of Rulingand prepare an Order for the court’s signature, if appropriate under CRC 3.1312.Please be advised that the Orange County Superior Court still provides court reporters for civil law andmotion matters.# meTentative1 Simone v. Loyd Motion to Quash Subpoena: GRANTThe motion to quash is GRANTED. The subpoenas are quashed. Plaintiffsare awarded sanctions of $1000 against Defendants and their counsel ofrecord, jointly and severally. Plaintiffs are to give notice.The subpoenas were served after the discovery cutoff. The Court takesjudicial notice of the 1/15/13, 3/11/13, 5/9/13, and 7/22 stipulations andorders. The extensions were for specific reasons, none of which encompassthe subject subpoenas. There was no order reopening discovery in general.Therefore, the discovery is barred by CCP §2024.020.Defendants have not filed a motion to reopen discovery under §2024.010.Furthermore, because the purpose of the discovery is to permit Defendants’expert to update his opinions, trial will either have to be continued again orPlaintiffs will be prejudiced by not having the information needed toanticipate and address the revised opinion in trial. CCP §2024.050(b)(3).Defendants have not claimed that this motion is untimely under CCP §1987.1and have therefore waived any such claim.Sanctions are awarded for pursuing an unauthorized form of discoverywithout leave of Court.Moving party to give notice.

Superior Court of the State of Californiahttp://www.occourts.org/tentativerulings/knakamurarulings.htmPage 2 of 79/5/20132 Arcila v.NeumannMotion for Reclassification: DENYThe Neumann defendants’ motion to reclassify plaintiff Arcila’s unlimited civilaction as a limited civil action is DENIED. First, as a motion to reclassify,pursuant to C.C.P. § 403.040(a), the Neumann defendants’ motion isuntimely as it was not filed within their time to plead. Second, as a motion toreclassify, pursuant to C.C.P. § 403.040(b), the Neumann defendants havenot demonstrated “good cause” for bringing this motion to reclassify to beheard less than a month before the continued trial date of 9-23-13. Third,the Neumann defendants have not carried their burden of demonstrating thatplaintiff Arcila’s recovery will necessarily be less than $25,000.00 to supportreclassification of this civil action as a limited civil action. See, Walker v.Superior Court (1991) 53 Cal.3d 257, 269. Defendants have not establishedthat an award over $25,000.00 is virtually unobtainable by plaintiff Arcila.Moving party to give notice3 In re ADXComponents,Inc.The petition for a decree of dissolution of ADX Components, Inc. and relatedrelief: DENYUnless Petitioner can present evidence of compliance with the Court’s5/30/13 order for publication this motion is DENIED. Petitioner was orderedto publish notice for three consecutive weeks. However, it has providedproof of publication on 6/13/13 only. Unless proof of publication for threeconsecutive weeks is filed prior to or at the hearing, this motion will bedenied.4 In Re All WorldTechnologiestThe petition for a decree of dissolution of All World Technologies, Inc. andrelated relief: DENYUnless Petitioner can present evidence of compliance with the Court’s5/30/13 order for publication this motion is DENIED. Petitioner was orderedto publish notice for three consecutive weeks. However, it has providedproof of publication on 6/13/13 only. Unless proof of publication for threeconsecutive weeks is filed prior to or at the hearing, this motion will bedenied.5 Allied Interstate,Inc. v. SelectTrans. Inc.Motions to Compel Further Responses to Form Interrogatory and Requestsfor Admission: MOOTMoving party concedes that Plaintiff provided satisfactorySupplemental Responses.Motion to Compel Further Responses to Demand for Production Nos. 5, 6, 7& 11: GRANTMoving party has shown good cause for production. Within ten (10) days,Plaintiff shall produce without objection the requested documents.The Requests for Sanctions are DENIED. Defendant failed to engage in ameaningful meet and confer effort. Contact was not made with opposingcounsel. The motions were served within 24 hours after receipt of theresponses.

Superior Court of the State of Californiahttp://www.occourts.org/tentativerulings/knakamurarulings.htmPage 3 of 79/5/20136 California RealEstateResources, Inc.v. UNT Atia Co.IIMoving party to give notice.Demurrer to Complaint: See belowThe demurrer to the 1st cause of action for conversion is SUSTAINED withoutleave to amend. The demurrer to the 2d through 8th causes of action isOVERRULED. Defendant has 20 days to answer. Plaintiff is to give notice.1st cause of action: Conversion of money is only actionable when there is aspecified sum that the Defendant holds for the benefit of the Plaintiff or thathas been misappropriated or commingled. PCO, Inc. v. Christensen,Miller, Fink, Glaser, Weil & Shapiro (2007) 150 Cal.App.4th 384, 395.Haigler v. Donnelly (1941) 18 Cal.2d 674 and Fischer v. Machado (1996)50 Cal.App.4th 1069 both involved money received by the defendants thatshould have gone to the plaintiffs. Software Design & Application, Ltd v.Hoefer & Arnett, Inc. (1996) 49 Cal.App.4th 472 was decided on whollydifferent grounds, i.e., the fact that the bank that held the funds had notbeen told that it was a bailee for the plaintiff.In this case, the funds were received by Defendant as the result of atransaction that had nothing to do with the Plaintiff. Furthermore, Plaintiffitself does not know how much it is entitled to, as demonstrated by thecommon counts for three different amounts and the opposition to thedemurrer claiming two different amounts.Remaining causes of action (2 nd through 8 th causes of action): A generalpartner is liable for partnership debts and can be joined in an action againstthe partnership, and a judgment can be entered against him. Corp. Code§15904.04(a) and Corp. Code §15904.05(a) & (b).All but one of the conversion cases cited by Defendant relate to liability forcorporate debts. The only one involving a partner, Olivet v. Frischling(1980) 104 Cal.App.3d 831, concerned tort liability, not liability forpartnership debts.Plaintiff is not basing its claim against Mr. Ting on a conspiracy theory.The only challenge to the common counts is that the contract causes ofaction fail.Moving party to give notice.7 SpencerRecoveryCenters, Inc. v.Cigna Healthcareof CA.Demurrer to Complaint: See belowThe demurrer to all causes of action is SUSTAINED with 20 days leave toamend.1st cause of action: Breach of contract. Plaintiff has not pled sufficient factsto give Defendant notice of the claims it has to defend. However, the courtfinds that it would be burdensome to require Plaintiff to attach all 23 policiesand the breached terms of each be identified; this can be determinedthrough discovery. In addition, the Court agrees with Plaintiff that privacyinterests of the insureds should be protected.Defendant concedes that it will be sufficient to attach a spreadsheet of thedisputed claims with claim numbers, authorization numbers, insurance policynumbers and/or member ID numbers. Plaintiff contends that thisinformation was provided to the Defendant but these should also be includedin the pleading.

Superior Court of the State of Californiahttp://www.occourts.org/tentativerulings/knakamurarulings.htmPage 4 of 79/5/20132d cause of action: Breach of the implied covenant of good faith and fairdealing. Without a contact claim, this cause of action is defeated also butPlaintiff may be able to plead it. Even though the denial of coverage is abreach of contract, it can also expose an insurer to bad faith liability with tortdamages if it is unreasonable. Tomaselli v. Transamerica Ins. Co. (1994)25 Cal.App.4th 1269, 1280. However, Plaintiff must allege that there wasno legitimate dispute regarding coverage, not merely that the denials were“unfair.” Id. at 1281. Also, Plaintiff must clarify whether tort claims wereassigned. A copy of a representative assignment should be attached as anexhibit, with identifying information redacted.3d cause of action: Unfair business practices. Because the underlyingcauses of action fail, this fails also but it may be possible to amend it.Scripps Clinic v. Superior Court (2009) 108 Cal.App.4th 917, 940, statedthat the cause of action must be tethered to a constitutional, statutory orregulatory provision. However, according to a Supreme Court case recentlypublished, this remains an open question in California. Yanting Zhang v.Superior Court (2013) 57 Cal.4th 364, 304 P.3d 163, 174, fn.9.Under Yanting Zhang, common law insurance bad faith claims provide asufficient basis for an unfair practices claim. 304 P. 3d @ 174-175.However, as noted above, the bad faith claim is insufficiently pled.4th cause of action: Fraud. It is unclear if fraud claims were assigned.Plaintiff is correct that under Universal By-Products Inc. v. City ofModesto (1974) 43 Cal.App.3d 145, 151, the element of intent can be pledin general terms. However, the other elements must be specifically pled.Plaintiff must allege how, when, where, to whom, and by what means therepresentations were tendered to each of the insureds. Stansfield v.Starkey (1990) 220 Cal.App.3d 59, 73. Because Defendant is a corporation,Plaintiff must allege the names of the persons who spoke, their authority tospeak, to whom they spoke, what they said/wrote, and when it wassaid/written. Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. Also,reliance must be alleged as to each of the insureds. The insureds can beidentified by number.Is Plaintiff claiming there were advertisements promising broad coverage andthe insureds saw and relied on them? Or is this just another claim that thecoverage in the policies wasn’t given to these insureds, i.e., merely a breachof contract claim? Is Plaintiff alleging that Defendant had a practice ofdenying certain specific coverage and therefore the persons who wrote thepolicies committed fraud? If so, what coverage does it consistently deny? Isit the same for all 23 insureds? These questions should be addressed in anamended pleading.8 Avitia v. VerizonWirelessDefendant is to give notice.Defendant Airtouch Cellular’s Demurrer: OVERRRULED in part andSUSTAINED in part. (See below)OVERRULED as to plaintiff Avitia’s third cause of for discrimination based onnational origin, fourth cause of action for gender discrimination, and fifthcause of action for retaliation. Plaintiff has presented sufficient evidence thatDFEH does not print-out on a DFEH report any party listed as “defendant” or“co-defendant” on an administrative report that is submitted electronicallyand that plaintiff listed Verizon Wireless on his submission as co-defendant.This creates an issue of fact that cannot be resolved by demurrer and judicialnotice. Also the named individuals in the administrative report would beknown to defendant Airtouch Cellular dba Verizon Wireless as employees ofVerizon Wireless. See, Saavedra v. Orange County Consolidated Tranp.Services Agency (4 th Dist. 1992) 11 Cal.App.4 th 824, 826 to 828. TheSaavedra court explained that: “And so it is here. Winterbottom was the

Superior Court of the State of Californiahttp://www.occourts.org/tentativerulings/knakamurarulings.htmPage 5 of 79/5/2013only individual identified in the administrative complaint. He was the onlyperson with whom Saavedra dealt. His actions were those of CTSA. He wasput on notice and had an opportunity to pursue a ‘voluntary settlement hadhe so desired.’ ( Martin v. Fisher, supra, ante, at p. 122.)” See, Saavedra, at827. Relatedly, plaintiff’s counsel declared that he listed Verizon Wireless asa co-defendant on plaintiff Avitia’s administrative report filed on 3-24-13.This is without prejudice to defendant Airtouch Cellular bringing a motion forsummary adjudication if it can establish that Verizon Wireless was not namedin plaintiff Avitia’s report that was submitted to the DFEH on or about3-24-13.SUSTAINED, with leave to amend, as to plaintiff Avitia’s seventh cause ofaction for negligent supervision. Plaintiff’s seventh cause of action is pledsimilar to a cause of action for IIED, not negligent supervision. Plaintiff hasnot alleged facts constituting negligent supervisory conduct on the part ofdefendant Airtouch Cellular dba Verizon Wireless in regard to its VerizonWireless employees. Instead, plaintiff has presently alleged intentional andwillful conduct in this cause of action.Moving party to give notice.Defendant Airtouch Cellular’s Request for Judicial Notice: DefendantAirtouch Cellular requested that the court take judicial notice of plaintiffAvitia’s claim file with the DFEH. Defendant Airtouch Cellular’s request thatthe court take judicial notice of the DFEH claim by plaintiff Avitia isGRANTED, but such notice is limited to this being the administrativecomplaint and not as to the truth of any claims or contentions set forththerein. See, Evidence Code § 452(d) and , Day v. Sharp (1975) 50Cal.App.3d 904, 914.9 Reiter v. Countyof OrangeDemurrer to the Complaint: SUSTAINED with twenty (20) days leave toamend.The demurrer is unopposed.The Motion to Strike is MOOT.10 Ruiz v. Haight,Brown &BonesteelDemurrer to First Amended Complaint; Motion to Strike; Request forSanctions: CONTINUED to 2/13/14The two demurrers and motion for sanctions by defendants Haight, Brown &Bonesteel, et al., are hereby ordered continued to 2-13-14, at 2:00 p.m., inDepartment C-15 for hearing, because plaintiff Ruiz indicates that he isseeking exoneration relating to various criminal charges that he previouslypled no contest to. The court notes that C.C.P. section 340.6 provides for adifferent statutes of limitations when a party achieves a post-convictionexoneration where plaintiff has the burden of proving factual innocence. Asto plaintiff Ruiz, defendants contend that his claim for legal malpractice andassociated claims are barred because he cannot establish factual innocence.Plaintiff Ruiz is ordered to submit a supplemental brief 9 court days beforethe continued hearing date setting forth any exoneration of the variouscriminal charges that he has previously pled no contest to. Defendant Haight,

Superior Court of the State of Californiahttp://www.occourts.org/tentativerulings/knakamurarulings.htmPage 6 of 79/5/2013Brown & Bonesteel, et al., can file a supplemental brief on the issue ofexoneration and its effect, or lack thereof, on the statute of limitations 5court days before the continued hearing date.Moving parties to give notice.11 Franco v. Chen Motion to Strike First Amended Complaint: GRANTThe First Amended Complaint did not correct the defect in the pleadings, butmerely repeated the prior allegations of Paragraphs Nos. 21 & 22 in the newParagraphs Nos. 30 & 31. The pleading is still conclusory and without factualsupport. Plaintiff filed no Opposition to the Motion to Strike.Within twenty (20) days, Plaintiff shall file a Second Amended Complaintwithout Paragraphs 13, 21, 22, 30 & 31 and Prayer No. 2 for PunitiveDamages. Defendant shall file an Answer within twenty (20) days.Moving party to give notice.12131415161718

Superior Court of the State of Californiahttp://www.occourts.org/tentativerulings/knakamurarulings.htmPage 7 of 79/5/2013

TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraAugust 29, 2013Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be posted on alllaw and motion matters. Please read these rules carefully. Do not call the Department unless ALL parties submiton tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However, ongoingproceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THE DEPARTMENT FORTENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligently working on posting therulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counsel intend tosubmit on the tentative and do not wish oral argument, please advise the courtroom assistant by calling (657)622-5215. If all sides submit on the tentative ruling and so advise the clerk, the tentative ruling shall becomethe court’s final ruling and the prevailing party shall give Notice of Ruling and prepare an Order for the court’ssignature, if appropriate under CRC 3.1312.Please be advised that the Orange County Superior Court still provides court reporters for civil law and motionmatters.2 Drinnenberg v.OlsenMotion for Leave to File Cross-complaint: GRANTDefendant Laguna Village’s unopposed motion for leave to file a crosscomplaintis GRANTED. See, C.C.P. § 428.50(c), and Foot’s Transfer &Storage Co., Ltd. v. Superior Court (1980) 114 Cal.App.3d 897. No prejudiceis shown as trial is not until 1-27-14 and defendant Laguna Village is onlyseeking to assert cross-claims for indemnity and contribution against otherco-defendants in this civil action. Defendant Laguna Village is ordered to e-file and serve its cross-complaint within 10 days.Moving party to give notice.3 Levy v. Kallman The Demurrer to Amended Complaint: See belowThe Demurrer of all Defendants to the First Cause of Action for Fraud isSUSTAINED with 20 days leave to amend.Plaintiff must plead the allegations of fraud with specificity. Lazar v.Superior Court (1996) 12 Cal.4th 631, 645. The court is particularlyconcerned with the allegation that the representations are not limited, i.e. thephrase “Including but not limited to…” on Page 4, line 23 of the amendedcomplaint. Plaintiff must plead who made what specific misrepresentation atwhat time. The representations must be limited so that defendant need nothave to guess at what is being charged.The Demurrer of all Defendants to the Second (Negligence) Sixth (Breach ofFiduciary Duty) Eighth (Breach of Contract) and Ninth (Rescission) areOVERRULED. Plaintiff has adequately alleged these causes of action.The Demurrer of all Defendants to the Third, Fourth, Fifth and Seventh

Causes of Action is SUSTAINED without leave to amend. These causes ofaction are duplicative of the First Cause of Action for Fraud.Moving party to give notice4 Mota v. Kunter Demurrer to Cross-Complaint: See belowThe Demurrer to the Cross-Complaint is OVERRULED. The proper elementsof the causes of action were alleged.The Demurrer was properly filed. Since the original cross-complaint was notfiled, the original Demurrer was taken off calendar. In light of the Anti-SLAPPmotion stay, the Demurrer was timely filed.C.C.P. § 128.5 (b) (1) does not apply to this case, because it was filed afterDecember 31, 1994.20 days to answer.Responding party to give notice.5 Kamomas v.PappasDemurrer to First Amended Complaint: CONTINUED to 9-19-13, at 2:00p.m., in Department C-15Defendant Pappas’ demurrer was not served to the correct address forplaintiff Kalomas’ counsel as set forth in the first amended complaint.Instead, service was to the old address on plaintiff’s counsel as set forth inplaintiff’s initial complaint. See, Moghaddam v. Bone (2009) 142 Cal.App.4 th283, 288. Also, plaintiff Kalomas has not filed any written opposition thatwould waive any defect as to notice. See, Carlton v. Quint (2000) 77Cal.App.4 th 690, 697.Moving party is to re-serve his demurrer to the correct address of 3070Bristol Street, Suite 560, Costa Mesa, CA 92626 for plaintiff Kalomas’ counseland to give notice of the continued hearing date.9 Shahbazi v.KabirMotion to Stay Pending Appeal: DENYCCP §916 does not authorize a stay in this action pending the appeal ofanother action. Since the sole basis for a stay here is that there is a pendingappeal of another related action this motion is improper. The Court has noinherent power to order a stay unless authorized by statute.Plaintiff to give notice.10 Kalfin v. Kalfin Motion by defendants/cross-complainants Pershing LLC and United PlannersFinancial Services MP seeks orders: (1) authorizing cross-complainants todeposit interpleaded funds with the court clerk; (2) discharging liability ofand dismissing claims against cross-complainants; and (3) awardingattorneys’ fees and costs to cross-complainants: GRANTED, except that thecourt declines to award fees.Moving party has established the basis for an interpleader. This motion isunopposed by the plaintiff. Therefore, Plaintiff is conceding that the onlyinvolvement of cross-complainants is as stakeholders. This is despite the fact

that the allegations in the First Amended Complaint, (to which Pershing LLCand United Planners Financial Services have been named as DOE 3 and DOE4, respectively) suggest that Pershing LLC and United Planners FinancialServices are not mere stakeholders in this litigation.Responding party argues that this motion is an improper request forreconsideration of their previous motion under CCP § 386 which the Courtdenied on 4/25/2013. However, the prior motion was a motion by Pershingand UPFS under CCP § 386(f) to restrain the motion filed by Evergreen Cove,LLC and Evergreen Ocean Cove, LLC to compel arbitration of the crosscomplainantsclaims. The motion to compel arbitration wasdenied. Therefore, this motion is not a motion for reconsideration.The court declines to award fees in view of the unusual factual situationinvolved in this case.Counsel for moving party to give notice.11 Bathas v.McCluskyMotion for summary judgment by defendants Dana Sawan McCluskey,Raymond Sawan, and Jackie May Sawan is DENIED because they failed tocarry their initial burden of proof on all claims asserted by plaintiff Bathasand/or there are triable issues of material fact as to good faith and breach offiduciary duty.Motion for summary adjudication by defendants Dana Sawan McCluskey,Raymond Sawan, and Jackie May Sawan is denied in part and granted inlimited part. DENIED as to Issue Nos. 1, 2, 3, 4 and 5. As to Issue No. 1 as toacting within authority and with “good faith” defendants Dana SawanMcCluskey, Raymond Sawan, and Jackie May Sawan did not meet their initialburden of proof. Plaintiff Bathas’ first amended complaint includes claims forimproper management fees, declining income distributions to her, and failureto provide her with yearly financial reports in 2009 and 2010. (See, VerifiedFAC, 100 and 113.) Also, plaintiff presented evidence of declining SICdistributions, failure to provide annual reports, and the declaration of Mr.Farley of Del Taco, LLC, that raise triable issues of material facts as to “goodfaith” and the fairness of the $23,500.00 commission to a company owned bySIC director McCluskey involved in realty. As to Issue No. 2 on the re-electionas director barring plaintiff Bathas’ claims, the Remillard Brick court set forththat this is the general rule. First, plaintiff Bathas’ claims as to improperdistributions and failure to provide annual reports is ongoing. Second, if adirector commits “gross abuse of authority” or a “dishonest act” during oneyear and conceals these transactions from the shareholders, and is thenreelected a director the ensuing year, surely the court would not be withinpower to remove him when those acts are discovered, simply because he hasnot yet committed the same acts again during the current year.” See,Marsh’s Cal. Corp. Law § 15.04. In this case, with increased equity shares byeach shareholder of SIC, but with declining distributions, and with no annualreports for SIC to explains its cash flows and distributions, a triable issue asto potential “dishonest acts” is stated. On Issue Nos. 3 and 4 that defendantsDana Sawan McCluskey, Raymond Sawan, and Jackie May Sawan did notbreach any fiduciary duties owed to plaintiff Bathas, defendants failed tocarry their initial burden and/or there are triable issues of material fact for

the reasons discussed in regard to Issue No. 1. On Issue No. 5 that plaintiffBathas cannot seek dissolution of SIC as a 25% shareholder, the motion forsummary adjudication by defendants Dana Sawan McCluskey, RaymondSawan, and Jackie May Sawan that plaintiff Bathas is DENIED becausedefendants did not carry their burden of negating involuntary dissolutionbased on Corporations Code § 1800(b)(5).As to Issue Nos. 6, 7, 8 and 9 based on the affirmative defense of thebusiness judgment rule, the motion for summary adjudication on these issuesis DENIED because this affirmative defense was not properly pled at the timedefendants’ motion for summary judgment/summary adjudication was filedon 6-7-13. See, Laabs v. City of Victorville (2008) 163 Cal.App.4 th 1242,1258. The Laabs court explained that: “To allow an issue that has not beenpled to be raised in opposition to a motion for summary judgment in theabsence of an amended pleading, allows nothing more than a moving target.For Code of Civil Procedure section 437c to have procedural viability, theparties must be acting on a known or set stage.” Id., at 1258, fn. 7. TheState Medical Education Bd. is distinguishable as it dealt with discoveryclarifying portions of the pleading that were not at a substantial variance andwithout prejudice to the opposing party. Until defendants filed their firstamended answer on 7-19-13, their seventh affirmative defense based on thebusiness judgment rule had not been properly pled. Alternatively, the courtcan see if the parties will stipulate to continue all defendants’ issues forsummary adjudication based on the business judgment rule, which are IssueNos. 6, 7, 8 and 9, to be continued for hearing to 10-31-13 to be heard inconjunction with plaintiff Bathas’ motion for summary adjudication set forhearing on 10-31-13, at 2:00 p.m., in Department C-15. The court will wantto confirm that the parties are waiving any issue as to the 75 day noticeperiod. If these motions for summary adjudication are continued, plaintiffBathas is permitted to file a supplemental brief of no more than 10 pagesaddressing the business judgment rule and its application or not to her fourcauses of action 14 days before the continued hearing date, and defendantsDana Sawan McCluskey, Raymond Sawan, and Jackie May Sawan ispermitted to file a supplemental reply of no more than 10 pages 5 calendardays before the continued hearing date.The motion for summary adjudication as to defendants Dana SawanMcCluskey, Raymond Sawan, and Jackie May Sawan on Issue No. 10 as topunitive damages is GRANTED. On summary adjudication involving the issueof punitive damages the prism of clear and convincing evidence of malice,oppression or fraud is applicable. See, American Airlines, Inc. v. Sheppard,Mullin, Richter & Hampton (2002) 96 Cal.App.4 th 1017, 1049. Defendantspresented evidence that a lease extension of 10 years on the subjectproperty owned by SIC was entered into. (See, McCluskey Declaration, 19and 20, and Exhibit K, Amendment to Lease Agreement.) This agreementprovides that: “The Lease shall be extended for an additional 10 yearscommencing December 25, 2010 and expiring December 24, 2020.” Also,following the earlier probate court litigation with Basim Sawan, defendantMcCluskey declared that: “Pursuant to the terms of this settlementagreement, Basim Sawan dismissed all of his claims and transferred his 20%ownership interest in SIC in equal allotments of 5% each Raymond Sawan,Jackie May Sawan, plaintiff Randa Sawan Bathas, and I. Following settlementof the lawsuit filed by Basim Sawan, SIC then resumed making profitdistributions to all of its shareholders in equal allotments.” (See, McCluskeyDeclaration, 18.) A review of the other declarations by defendantsRaymond Sawan and Jackie May Sawan does not evidence any malicious,oppressive or fraudulent conduct. There appears there might be somecorporate bookkeeping errors and tax forms that had to be modified, as wellas a some issues as to proper disbursement of corporate profits, but thisdoes not rise to the level of clear and convincing evidence of any malice,oppression or fraud sufficient to submit the issue of punitive damages to thetrier of fact. Thus the motion for summary adjudication on Issue No. 10 as to

punitive damages by defendants Dana Sawan McCluskey, Raymond Sawanand Jackie May Sawan is granted.Plaintiff Bathas’ Request for Judicial Notice: Plaintiff Bathas requestedthat the court take judicial notice of the following documents: Exhibit 1, thefirst amended complaint in Basim Sawan v. McCluskey, et al., O.C.S.C. CaseNo. 30-2011-00512235, Exhibit 2, Answer by defendants Dana SawanMcCluskey and Raymond Sawan in Basim Sawan v. McCluskey, et al.,O.C.S.C. Case No. 30-2011-00512235, Exhibit 3, Court’s Register of Actionsin Basim Sawan v. McCluskey, et al., O.C.S.C. Case No. 30-2011-00512235,Exhibit 4, Ex Parte Application filed 9-26-12 in Basin Sawan v. McCluskey, etal., O.C.S.C. Case No. 30-2011-00512235, and Exhibit 5, Request forDismissal filed in Basin Sawan v. McCluskey, et al., O.C.S.C. Case No. 30-2011-00512235. GRANTED as to Exhibits 1, 2, 3, 4 and 5, but such notice islimited to the filing of these pleadings, or the court’s docket being the court’sdocket in this civil action, and not as to the claims or contentions set forth inany of these pleadings or statements in the court’s docket in Basin Sawan v.McCluskey, et al., O.C.S.C. Case No. 30-2011-00512235. See, Evidence Code§ 452(d) and Day v. Sharp (1975) 50 Cal.App.3d 904,914.Plaintiff Bathas’ Evidentiary Objections: Declaration of Dana SawanMcCluskey: OVERRULED as to Objection Nos. 1, 3, 4, 5, 6, 7, 8, 9, 12, 14,15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 32, 33, 34, 35, 36, 37, 38, 39, 40,41 and 42. SUSTAINED as to Objection Nos. 2, 10, 11, 13, 26, 27, 28, 29, 30and 31. Declaration of Raymond Sawan: OVERRULED as to Objection Nos.46, 47, 48, 49, 50, 51, 54, 56, 58, 60, 65, 66, 67 and 68. SUSTAINED as toObjection Nos. 43, 44, 45, 52, 53, 55, 57, 59, 61, 62, 63, 64, 69, 70 and 71.Declaration of Jackie May Sawan: OVERRULED as to Objection Nos. 73,74, 75, 76, 77, 78, 79, 80, 81, 82, 84, 86, 87, 89, 93 and 94.SUSTAINED as to Objection Nos. 72, 83, 85, 88, 90, 91, 92, 95, 96, 97 and98.Defendants’ Evidentiary Objections: Defendants Dana Sawan McCluskey,Raymond Sawan, Jackie May Sawan submitted evidentiary objections insupport of their reply to plaintiff Bathas’ opposition to defendants’ motion forsummary judgment/summary adjudication. Declaration of Randa SawanPlaintiff Bathas: SUSTAINED as to Objection Nos. 1, 2 and 3.2) The demurrer by plaintiff Bathas to the first amended answer bydefendants Dana Sawan McCluskey, Raymond Sawan, and Jackie May Sawanis overruled in part and sustained in part. OVERRULED as to defendants’ thirdaffirmative defense of unclean hands, fourth affirmative defense of laches,fifth affirmative defense of estoppel, tenth affirmative defense ofratification/consent/approval, thirteenth affirmative defense of waiver, andfourteenth affirmative defense of contractual bar. Unclean hands includesconduct evidencing conduct constituting a violation of conscience ordemonstrating a lack of good faith, and is also a question of fact. See,Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4 th 970,979. Laches is also generally a question of fact and defendants contend thatthe probate court litigation could have addressed issues that plaintiff Bathasis now raising. See, McClung v. Saito (1970) 4 Cal.App.3d 143, 152.Defendants have alleged sufficient facts, at this pleading stage, to state theaffirmative defense of equitable estoppel. See, City of Hollister v. MontereyIns. Co. (2008) 165 Cal.App.4 th 455, 458. As to ratification/consent/approvaland waiver, plaintiffs have alleged sufficient facts as to acceptance of benefitsby plaintiff Bathas following the probate court litigation to state thesedefenses at this pleading stage. See, Civil Code § 2310 and Fireman’s FundIns. Co. v. City of Turlock (1985) 170 Cal.App.3d 988, 1002. As tocontractual bar, defendants have alleged a Written Consent based allegedlyon the probate court order permitting the operation of SIC asperformed. SUSTAINED, without leave to amend, as to defendants’ sixth

affirmative defense of unjust enrichment, twelfth affirmative defense ofunjustness, fifteenth affirmative defense of the statute of frauds, andsixteenth affirmative defense of lawfulness and compliance with public policy.As to unjust enrichment, defendants have not alleged facts as to how plaintiffBathas has been unjustly enriched such that she would owe some money orproperty to defendants. See, Ghirardo, et al. v. Antonioli, et al. (1996) 14Cal.4 th 39, 51. The same rationale is applicable to defendants’ affirmativedefense of unjustness. Also, with defendants claiming to be operating undercourt orders and/or written operating agreements, a quasi-contractual claimfor unjust enrichment cannot be stated. See, California Medical Ass’n, Inc. v.Aetna U.S. Healthcare of California, Inc. (2001) 94 Cal.App.4 th 151. Next, nooral agreements are asserted by plaintiff Bathas to which the statute offrauds might be applicable. See, Civil Code § 1624(a). Finally, as tolawfulness and compliance with public policy, this does not state any newmatter and thus is not an affirmative defense. See, Harris v. City of SantaMonica (2013) 56 Cal.4 th 203, 229. SUSTAINED, with leave to amend, as todefendants’ eighth affirmative defense of wrongful/negligent conduct andeleventh affirmative defense of failure to mitigate. Plaintiff Bathas has allegedessentially intentional conduct as to improper payment of legal fees fordefendants, improper commission fee, and failure to maintain corporatebooks and records, which are not negligent acts. Defendants are grantedleave to amend to allege acts to which some form of comparative fault on thepart of plaintiff Bathas might be applicable. Moving parties to give notice.3) Plaintiff Bathas’ motion to strike is DENIED. As to defendants’ ninthaffirmative defense, the court previously denied defendant’s motion to strikethis affirmative defense. (See, 7-11-13 Minute Order.) Second, a pleading ofthe statute of limitations may be in a conclusory manner as long as theapplicable code sections are cited, which defendants have done. See, C.C.P. §458 and Brown v. World Church (1969) 272 Cal.App.2d 684, 691. Further,the court notes that plaintiff Bathas has no burden on summaryjudgment/summary adjudication to negate any affirmative defenses toplaintiff’s request to strike specific code sections as not relevant is denied.See, Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4 th 454, 468.Next, as to Paragraphs 123 and 124, defendants Dana Sawan McCluskey,Raymond Sawan and Jackie May Sawan have properly responded that theyhave insufficient information to admit or deny whether conduct by Basim,who is not a named defendant, occurred or not.Moving party to give notice.12 Admiral Ins. Co.v. Council forEducationalTravelThe James River Summary Judgment is DENIED.Pursuant to C.C.P. § 437c (p), moving party failed to meet its burden to showthat the Complaint had no merit.The Request for Judicial Notice is GRANTED, except for the truth of thestatements contained in the documents. Admiral’s Objections Nos. 1 to 5 areSUSTAINED. The court cannot take judicial notice of the truth of hearsaystatements in decisions or court files. Mt. Hawley Insurance Company v.Lopez (2013) 215 Cal.App.4th 1385, 1426.There are triable issues of material fact whether the professional servicesexclusion bars coverage. First, there is an issue whether the definition ofprofessional services is defined as health service under the policydefinitions. Second, there is an issue whether the accident arouse out ofprofessional services. Food Pro Intern., Inc. v. Farmers Ins.Exchange (2008) 169 Cal.App.4th 976, 991. Third, there is an issue whethercoverage would be afforded under concurrent causation. State Farm Mut.Auto. Ins. Co. v. Partridge (1973) 10 Cal.3d 94, 107.

Admiral Summary Adjudication Motion: GRANTED. Admiral established thatthere was a duty to defend, because the James River could not establish thatits insuring provisions do not cover the claim in question or any exclusioncompletely negates coverage. Admiral met its burden to establish there wasa duty to defend.“To prevail, the insured must prove the existence of a potential for coverage,while the insurer must establish the absence of any such potential. In otherwords, the insured need only show that the underlying claim may fall withinpolicy coverage; the insurer must prove it cannot.” Montrose ChemicalCorp. v. Superior Court (1993) 6 Cal.4th 287, 300 -301. (Emphasis original).Moving party to give notice.

TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraAugust 22, 2013Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be posted on all lawand motion matters. Please read these rules carefully. Do not call the Department unless ALL parties submit ontentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However, ongoingproceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THE DEPARTMENT FORTENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligently working on posting therulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counsel intend tosubmit on the tentative and do not wish oral argument, please advise the courtroom assistant by calling (657)622-5215. If all sides submit on the tentative ruling and so advise the clerk, the tentative ruling shall become thecourt’s final ruling and the prevailing party shall give Notice of Ruling and prepare an Order for the court’ssignature, if appropriate under CRC 3.1312.Please be advised that the Orange County Superior Court still provides court reporters for civil law and motionmatters.1 Chronister v.ReissMotion to Compel Further Response to Request for Production: DENIED.It is untimely.Defendant’s motion for sanctions is DENIED.There was no need for a detailed opposition; there is no showing thatDefendant even asked Plaintiff’s counsel to take the untimely motion offcalendar.An attorney not entitled to sanctions for representing himself. Kravitz v.Sup. Ct (2001) 91 Cal.App.4th 1015, 1016-1017. Defendant claims he“requested” assistance but never states that he received any assistance, thathe was billed for assistance, or that he paid Mr. Fields anything forassistance. Nor does he explain why he was incompetent to respond to thissimple motion himself. Nor is there a declaration from Mr. Field regardingthe amount of time he spent “assisting” or what he did to assist.Responding party to give notice.2 Retail PropertyTrust v. OCPeople forAnimalsPlaintiff The Retail Property Trust’s motion to release appeals bond isCONTINUED to 9-12-13, at 2:00 p.m., in Department C-15 so that plaintiffcan give notice to defendants OCPA and Patel of this motion and thecontinued hearing date.The court notes that upon remittitur the Court of Appeal remanded for thetrial court to address attorney’s fees on appeal by defendants OCPA and

Patel. Plaintiff’s motion for release of appeals bond was not served on counselfor defendants OCPA and Patel in compliance with C.C.P. § 1005(b).3 City of Santa Anav. Gallegos Bros.Motion for Order For Possession: GRANTC.C.P. § 1255.410 provides that“(a) At the time of filing the complaint or at any time after filing thecomplaint and prior to entry of judgment, the plaintiff may move the court foran order for possession under this article, demonstrating that the plaintiff isentitled to take the property by eminent domain and has deposited pursuantto Article 1 (commencing with Section 1255.010) an amount that satisfies therequirements of that article.The motion shall describe the property of which the plaintiff is seeking to takepossession, which description may be by reference to the complaint, andshall state the date after which the plaintiff is seeking to take possession ofthe property. The motion shall include a statement substantially in thefollowing form: “You have the right to oppose this motion for an order ofpossession of your property. If you oppose this motion you must serve theplaintiff and file with the court a written opposition to the motion within 30days from the date you were served with this motion.” If the writtenopposition asserts a hardship, it shall be supported by a declaration signedunder penalty of perjury stating facts supporting the hardship.. . . .(d)(1) If the motion is not opposed within 30 days of service on eachdefendant and occupant of the property, the court shall make anorder for possession of the property if the court finds each of thefollowing:(A) The plaintiff is entitled to take the property by eminent domain.(B) The plaintiff has deposited pursuant to Article 1 (commencingwith Section 1255.010) an amount that satisfies the requirements ofthat article.(2) If the motion is opposed by a defendant or occupant within 30 days ofservice, the court may make an order for possession of the property uponconsideration of the relevant facts and any opposition, and upon completionof a hearing on the motion, if the court finds each of the following:(A) The plaintiff is entitled to take the property by eminent domain.(B) The plaintiff has deposited pursuant to Article 1 (commencing withSection 1255.010) an amount that satisfies the requirements of that article.(C) There is an overriding need for the plaintiff to possess the property priorto the issuance of final judgment in the case, and the plaintiff will suffer asubstantial hardship if the application for possession is denied or limited.(D) The hardship that the plaintiff will suffer if possession is denied or limitedoutweighs any hardship on the defendant or occupant that would be causedby the granting of the order of possession.”The requirements for granting this motion have been met. The amount of theappraisal has been deposited. Defendant has filed no Opposition.Moving party to give notice.

4 Falber v.Sorrento CapitalDemurrer to Amended Complaint: See belowDefendants’ demurrer to the 1 st -5 th causes of action is OVERRULED in itsentirety. The additional facts added by plaintiff are sufficient to interpret the$100,000 loan as binding on Knohl as an individual, as well as supportingliability as to the related causes of action. Knohl’s loan request was made asan individual (promise that “I” will return” [loan]). Standing alone, the e-mailis not entirely conclusive. Plaintiff has now added her responsive e-mail,which confirms the terms/ that the loan is to Knohl personally, but that hehas instructed her to deposit the funds in the NuView account to “save time.”Accordingly, because insufficient facts as to Knohl’s accountability as anindividual constituted the only defect in the initial complaint’s claims forbreach of contract, intentional misrepresentation, negligentmisrepresentation, promissory fraud (fraud in the inducement), each cause ofaction is now adequately plead.20 days to answer.Plaintiff to give notice.6 Spotts v. Spotts Demurrer to Complaint is OVERRULED. Motion to Strike is GRANTED with 20days leave to amend.The request for judicial notice is DENIED without prejudice.Demurrer: The claim of judicial estoppel has not been established. UnderThe Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th 831, 842, arequired element is proof that the Plaintiff was successful in the positiontaken in the prior proceeding. Although Defendant claims that Plaintiffreceived a bankruptcy discharge, there is no evidence presented. Defendantrequests judicial notice only of the bankruptcy petition, not the discharge.The statute of limitations defense depends on the authenticity of thebankruptcy petition. Defendant has not filed a certified copy; nor is thereany authenticating declaration concerning how the copy wasobtained. Therefore, it has not met its initial burden to establish the defenseat this time.Motion to strike: Plaintiff has not alleged the necessary scienter to supporther claim for punitive damages. She has not alleged that any agent ofDefendant knew that her signature on the documents authorizing theliquidation was forged. The allegations that she does make are just asconsistent with innocent negligence was with culpable conspiracy.Plaintiff claims in her opposition that there was a written contract with anattorney fee clause. However, there is no allegation of any contract betweenher and Defendant, must less a written one. Nor or is there any cause ofaction for breach of a written contract. If Plaintiff continues to claim attorneyfees in her amended pleading, she must attach a copy of the contract andmust allege how it was breached.Defendant is to give notice.7 Miller v. Hoo Demurrer/Motion to Strike: OFF CALENDAR.

8 Kaminsky v. LABoxing.Defendant Sean McCully’s Demurrer to the Complaint: SUSTAINED on theground of failure to state a cause of action. CCP §430.10(e)Facts must be alleged to support the liability of any named DOEdefendant. They are not alleged here. The Court cannot consider argumentin the Opposition. The facts asserted there must be alleged in a pleading.Plaintiff is granted 10 days’ leave to amend.Based on the foregoing ruling, defendant’s Motion to Strike is offcalendaras MOOT.Moving party to give notice.9 Castillo v. GarciaJuarezConstructionPlaintiffs’ Motion to Compel Further Responses to Special Interrogatories byDefendant GJC is GRANTED in part and DENIED in part. (See below)While plaintiff did not set forth legal authority in his memorandum andseparate statement as generally required, plaintiffs’ notice of motion set forththe legal authority for a motion to compel further responses to specialinterrogatories. GRANTED as to Special Rog. Nos. 1, 5, 6, 36, 46, 48, 62, 63,64, 65 and 66. As to Special Rog. No. 1, this interrogatory inquired aboutidentification of each project, not periods of employment by each plaintiff. Ifdefendant GJC lacks information to provide a proper response it should sayso. As to Special Rog. No. 5, defendant listed several job categories inresponse to Special Rogs. Nos. 20 and 22, yet in response to Special Rog.No. 5 only set forth the prevailing wage for truck drivers. Even if defendantlacks that documentation to provided prevailing wage for each project, itshould provide the prevailing wage for each job category from the sameperiod as the truck driver it has provided. As to Special Rog. No. 6, thereference to a single 2013 document when some plaintiffs were employed forover 15 years is incomplete and evasive. If defendant GJC lacks thedocuments to properly respond to this interrogatory it should say so. SpecialRog. No. 36 is non-responsive as the interrogatory asked the method ofrecording meal periods used, not the policy of GJC as to meal periods. As toSpecial Rog. No. 46, this interrogatory asked when even plaintiff received hisfinal paycheck, not when paychecks were generally available. As to SpecialRog. No. 48, whether any of the plaintiffs provided a release has not beenanswered. As to Special Rog. Nos. 62 and 63, the grounds for defendantGJC’s contentions that it complied with wage and hour laws, and witnessesthereto, are not set forth. Such responses do not require the return ofdocuments from the district attorney’s office. As to Special Rog. No. 64, whileall documents are not available to defendant GJC, defendant GJC should beable to list as least categories of documents that it contends support itsdefenses in this case. As to Special Rog. Nos. 65 and 66, defendant GJC’sresponses are evasive and non-responsive. If defendant GJC is aware of anyof its representatives talking to any of the plaintiffs about this civil actionthose individuals/agents must be identified.DENIED as to Special Rog. Nos. 9, 10, 11, 12 and 13, because suchinformation would require documents that defendant GJC has representedhave been seized by the district attorney’s office.Similarly, DENIED as to Special Rog. Nos. 20 and 22, because defendant GJChas identified the tasks and job duties of plaintiffs, but whether theyperformed these tasks at different projects awaits more detailed

documentation that is being held by the district attorney’s office according todefendant GJC. Also, plaintiffs should have some knowledge of whether theyperformed the same or differing tasks on different projects.Further, DENIED as to Special Rog. Nos. 29 and 30 because changes in ratesof pay would call for documents that defendant GJC has represented havebeen seized by the district attorney’s office at this time.DENIED as to Special Rog. Nos. 7, 14, 15, 18, 21, 27 and 31, on conditionthat defendant GJC produce Jim Jackson, George Frost, Ruben Mendoza andVienna Jimenez pursuant to notice for deposition or trial as employees ofdefendant GJC without need for subpoena, while if any of these individualsleave the employ of defendant GJC during the pendency of this civil actionthe address and telephone number of such individual or individuals will beprovided to counsel for plaintiffs.Finally, plaintiffs’ request for sanctions of $1,500.00 is DENIED based onmixed results. See, Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223Cal.App.3d 1429, 1437.Moving party to give notice.Defendant’s Motions to Compel Further Answers to Interrogatories (7): SeebelowCounsel did not conduct a proper meet and confer under the principles setforth in Townsend v. Superior Court. Defendant GJC contends that the districtattorney’s office is still be possession of numerous documents it would needto defense itself in this civil action.The pending discovery motions by defendant GJC are ordered submitted todiscovery referee, pursuant to C.C.P. § 639, as follows: “A discovery refereeis deemed appropriate given past discovery motions and several pendingdiscovery motions. The court finds that neither party has demonstrated aninability to pay for a discovery referee. The discovery referee shall provide arecommended ruling on the following matters: (1) defendant GJC’s motion tomotion to compel further responses to special interrogatories by plaintiff JoseAdan Castillo, (2) defendant GJC’s motion to compel further responses tospecial interrogatories by plaintiff Lamberto Encinas, (3) defendant GJC’smotion to compel further responses to special interrogatories by plaintiffDavid Flores, (4) defendant GJC’s motion to compel further responses tospecial interrogatories by plaintiff Ivan Garcia, (5) defendant GJC’s motion tocompel further responses to special interrogatories by plaintiff GonzaloMendoza, (6)(6) defendant GJC’s motion to compel further responses to specialinterrogatories by plaintiff Alejandro Nunez, and (7) defendant GJC’s motionto compel further responses to special interrogatories by plaintiff RobertoOrozco.The parties are to mutually select a discovery referee within 10 days, but ifthe parties cannot agree they are ordered to comply with C.C.P. § 640(b). Ifthere are no nominees by either party, the court appoints Judge DennisChoate (ret.) as the discovery referee, who has agreed to the limitations setforth below.The maximum hourly rate to be charged by the discovery referee shall be nomore than $500.00 per hour, and a maximum of 50 hours is deemedsufficient at this time unless the discovery referee submits a requestdemonstrating that more time is needed. Any objections to the discovery

eferee’s recommendation shall be served and filed within 10 calendar daysfrom the mailing of the discovery referee’s report as provided by pursuant toC.C.P. § 643(c). The discovery referee’s report will then be ruled upon by thecourt. Finally, the parties are to split the cost of this discovery referee.The court will consider the cost of this discovery referee a recoverable item ofcost by the prevailing party in this case. See, C.C.P. § 1023 and Rutter, CivilProcedure Before Trial, Section 8:746.Trial will be continued upon stipulation or motion because of the delaysattendant to such a reference.Moving party to give notice.Defendant GJC’s Motion to Vacate the Court’s Order of 5-16-13 grantingplaintiffs’ motion that their requests for admission to defendant GJC bedeemed admitted is DENIED.When relief is available under an applicable discovery statute, relief pursuantto C.C.P. § 473 is not available. See, Zellerino v. Brown (1991) 235Cal.App.3d 1097, 1107. C.C.P. § 2033.300(b) provides for discretionary reliefso relief pursuant to C.C.P. § 473 is not available in this case. Next, as amotion for relief pursuant to C.C.P. § 2033.300(b), defendant GJC’s motion isDENIED. As to excusable neglect, to warrant discretionary relief, theproffered evidence must show that the attorney’s error was excusable. See,Huh v. Wang (2007) 158 Cal.App.4 th 1406, 1423. Neglect is excusable only ifa reasonably prudent person in similar circumstances might have made thesame error. See, Bettencourt v. Los Rios Community College Dist. (1986) 42Cal.3d 270, 276. With a pending motion to deem requests for admissionsadmitted, a reasonable attorney would not fail for almost two months beforethe hearing on plaintiffs’ motion to deem requests for admission admitted totake advantage of C.C.P. § 2033.280(c). The court notes that defendant GJChad time to file 7 motions to compel further discovery responses by plaintiffson 5-7-13, yet elected not to provide responses to plaintiffs’ requests foradmission with a motion to deem admitted pending. This is not the conductof a reasonably prudent attorney. As to inadvertence, no inadvertence isshown in failing to respond to a pending motion to deem requests foradmission admitted. Also, no mistake of law or mistake of fact is established.See, Lieberman v. Aetna Ins. Co. (1967) 249 Cal.App.2d 515, 523 to 524 andStandard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179Cal.App.4 th 868, 879. Further, no surprise is shown. In State Farm Fire &Casualty Co. v. Pietak (2001) 90 Cal.App.4 th 600, the court noted that“surprise” means some condition or situation in which a party is unexpectedlyinjured, without any default or negligence of his own, which ordinaryprudence could not have guarded against. Id., at 611, citing Credit ManagersAssn. v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166,1173. In addition, vacating the order of 5-16-13 deeming numerous mattersadmitted would prejudice plaintiffs as trial is set for 11-4-13 and thediscovery cutoff is 30 days before trial. See, C.C.P. § 2033.300(b). Finally, ifconstrued as a motion for reconsideration, defendant GJC’s motion is simplyuntimely. See, C.C.P. § 1008(a).Moving party to give notice.

12 Burgio v. Burger The Motion for JNOV and the Motion for New Trial are DENIED.The Special Verdict found the Defendant was not negligent. Plaintiff had theburden of proof on this issue. “The owner of premises is under a duty toexercise ordinary care in the management of such premises in order to avoidexposing persons to an unreasonable risk of harm. A failure to fulfill this dutyis negligence.” Brooks v. Eugene Burger Management Corp. (1989) 215Cal.App.3d 1611, 1619-1620.Plaintiff relied upon the Pre-Trial Stipulations (Exhibit B). The parties agreedthat “The restroom at G Burger had recently had a plumbing problem withinthe foundation. In order to repair the plumbing nine (9) tiles were removedin the corner of the restroom under and near the sink. At the time Plaintiffused the restroom, a floor mat was used to cover the area of the plumbingrepair.” (Page 1, lines 24 to 28). The stipulation did not determineliability. The jury could properly find that there was a lack of negligence.The statement by Diego Barba that older people could twist their legs on thearea is not determinative. For instance inCadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383,389, “[t]he opinion of Somerset's president that a defect of one-half inch ormore is ‘probably’ dangerous does not preclude our conclusion that the defecton which Cadam stumbled is trivial.”The testimony of John Grentzer, the insurance adjuster, was not anirregularity in the trial. In the offer of proof, Plaintiff only objected that theadjuster was not an expert. This objection was ineffective, because noexpert testimony was going to be offer. On the offer of proof, Plaintiff shouldhave objected on the grounds of hearsay. When Plaintiff did make hearsayobjections during his testimony, the court sustained them. Plaintiff did notmove to strike the testimony. Plaintiff did not point to any error in anevidentiary ruling.Dr. Mozan, the defense medical expert, can modify his opinion based onconsideration of additional evidence. Plaintiff did not show that the“surprise” changed his presentation of the evidence. “[T]he surprise . . .affords no grounds for the granting of a new trial because there is no showingthat plaintiffs will have other evidence which could produce a different resultupon retrial.” Wade v. De Bernardi (1970) 4 Cal.App.3d 967, 972.Responding party to give notice.

TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraAugust 15, 2013Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be posted on alllaw and motion matters. Please read these rules carefully. Do not call the Department unless ALL parties submiton tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However, ongoingproceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THE DEPARTMENT FORTENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligently working on posting therulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counsel intend tosubmit on the tentative and do not wish oral argument, please advise the courtroom assistant by calling (657)622-5215. If all sides submit on the tentative ruling and so advise the clerk, the tentative ruling shall becomethe court’s final ruling and the prevailing party shall give Notice of Ruling and prepare an Order for the court’ssignature, if appropriate under CRC 3.1312.Please be advised that the Orange County Superior Court still provides court reporters for civil law and motionmatters.3 Bowman v.KarakesisgluMotion to Strike: GRANTED without prejudiceIf discovery produces some additional aggravating factors, Plaintiff will bepermitted an opportunity to amend to allege punitive damages.Driving when operating a cellular telephone is a violation of the VehicleCode. Speeding and running a red light are also violations. Routine trafficviolations do not justify punitive damages. Plaintiff’s comparison to drivingunder the influence is unpersuasive. Use of the cellular phone is not“despicable.”The “probable consequences” are not as certain as driving under theinfluence. Until the Court of Appeal recognizes that it is, this court will grantthese motions.The Request for Judicial Notice is DENIED.4 Milnar v. Nobles Demurrer/Motion to Strike: See belowTimeliness: Plaintiff’s claim that the demurrer is untimely is rejected. CRC3.1320(j) clearly is only intended to apply when there is no amendedpleading; sub§(2) applies when a plaintiff has been given leave to amend butdoesn’t. When an amended pleading is filed, CCP §471.5 applies todemurrers as well as answers. See California Civil Practice Guide, Section9:14 and CCP §586(a)(1).Corporate defendants: The demurer of Andiamo 360, LLC is SUSTAINEDwith leave to name this entity as Doe or otherwise properly add it to thecomplaint. The claim of the other corporate entities is moot giving thefollowing ruling.Contract: The demurer to the 1st and 2d causes of action for breach of

contract is SUSTAINED without leave to amend. In its 5/9/13 ruling on thedemurrer to the FAC, the Court specified which of Plaintiff’s claims were timebarred but gave leave to amend to allege causes of action based on claimsthat were not time barred. In his opposition to the motion, Plaintiff neverasserted that any of his claims were based on written contract.Instead of complying with the Court’s order to plead only claims that werenot time barred, Plaintiff re-alleged ALL the same claims, asserting that theywere breaches of “the oral and written investment agreements.” Plaintiffadmits in his opposition that only two of his claims can arguably be based onthe written contracts, i.e. the claim that Defendants failed to deliver stockcertificates to him and the failure to treat him as a shareholder. He makesno attempt to show how he suffered damages as a result of thesebreaches. The oral contract(s) sought to be enforced are clearly time-barred.The demurrer to all remaining causes of action demurred to is SUSTAINEDwith leave to amend for the following reasons.Fraud: Whether these claims are barred by the statute of limitations is aquestion of fact. Plaintiff received his stock less than three years prior to thefiling of the complaint. Whether it was reasonable to continue to rely on Mr.Nobles’ promises to perform is a jury question.3d cause of action for promissory fraud: Plaintiff is to base liability ONLY onclaims of fraudulent promises. Statements of opinion or predictions of futureperformance are not promises; if actionable, they are treated asmisrepresentations of fact. Harazim v. Lynam (1968) 267 Cal.App.2d 127,132-133. It appears that the only promises alleged are that Plf would begiven NMT and Gyntlecare stock and treated as a shareholder. As toGyntlecare, the promise appears to have been fulfilled; it is unclear howPlaintiff was defrauded regarding this entity or how he was damaged by notbeing treated as a shareholder. Plaintiff is to plead separate and distinctcauses of action for the transactions related to Gyntlecare and NMT and limiteach cause of action to claims related to that entity. Plaintiff is NOT tomerely plead identical causes of action for both.4th and 5th causes of action for misrepresentation. Again, Plaintiff mustplead separate and distinct causes of action for the NMT and Gyntlecaretransactions. He must include all the facts necessary to establish theelements of fraud in each cause of action and may not rely on incorporationby representation as to such facts.As the alleged representation was that NMT“and/or” Gyntlecare would be sold, there does not appear to have been anymisrepresentation related to the Gyntlecare transaction and Plaintiff has notshown that he has been damaged, i.e., that the stock is worth less than hepaid for it.Plaintiff has pled sufficient facts to make opinions actionable. In 12(b) and(h), Plaintiff alleges that Mr. Nobles represented that he was the designer andcreator of successful medical products and that, because he was founder,president and a major shareholder of NMT and founder and manager ofGyntlecare, he knew the value of their assets, including their products andpatents. This is enough to raise a question of fact regarding superiorknowledge under Harazim v. Lynam (1968) 267 Cal.App.2d 127, 132-133.Brakke v. Economic Concepts Inc. (2013) 213 Cal.App.4th 761 is not onpoint because it involved predictions of governmental action that did not takeplace. In this case, it was not unreasonable to rely on promises ofgovernmental approval because Plaintiff alleges that approval was received,at least as to the NMT transaction.Negligent misrepresentation: Again, Plaintiff must plead separate and

distinct causes of action for the NMT and Gyntlecare transactions. Inaddition, the cause of action cannot be based on false promises. Tarmannv. State Farm Mutual Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158-159.Unjust enrichment: The Court instructed Plaintiff to include theseallegations as part of the supporting cause of action, not as a stand-alonecause of action. Plaintiff is to add them to the rescission cause of action only,because this is the only cause of action containing a tender.Dependent causes of action: As to all other causes of action demurred to,there are no longer any actionable facts to support them.Motion to strike: See belowMost of the motion to strike is moot. However, the motion to strike reversealter ego allegations is GRANTED with leave to amend to state an alternatetheory of vicarious liability, e.g., agency, respondeat superior, and fraudulentconveyance. The Court agrees with the rationale of Postal Instant PressInc. v. Kaswa Corp. (2008) 162 Cal.App.4th 1510, 1520, particularlyregarding unfairness to non-culpable shareholders and the availability ofother theories of liability.Plaintiff has 20 days to amend. Defendants are to give notice.6 Shahbazi v.ClarionPlaintiff Shahbazi’s Motion for Reconsideration: DENYRelief from a court’s order is not available pursuant to C.C.P. § 473. See, WizTechnology, Inc. v. Coopers & Lybrand, LLP (2003) 106 Cal.App.4 th 1, 17. Asa motion for reconsideration, plaintiff Shahbazi’s motion is procedurally andsubstantively defective. First, there is no declaration satisfying C.C.P. §1008(a). See, Branner v. Regents of the Univ. of Cal. (2009) 175 Cal.App.4 th1030, 1048. Second, plaintiff has not set forth any new or different facts,circumstances or law to support reconsideration. See, C.C.P. § 1008(a).Third, plaintiff has not set forth any new or different facts, circumstances orlaw that could not have been presented in plaintiff’s opposition or at thehearing on 6-27-13. See, Garcia v. Hejmadi (1997) 58 Cal.App.4 th 674, 690.Even if the court were to grant reconsideration, it would reaffirm the 6-27-13order as to striking plaintiff’s award of $20,000.00 in punitive damages andattorney’s fees in the sum of $75,547.00. The court did not find thatplaintiff’s statement of damages did not set forth a sum for punitive damagesin excess of $20,000.00 but that this statement of damages was not properlyserved on defendant KIC in compliance with C.C.P. § 425.115(g)(1). In VanSickle v. Gilbert (2011) 196 Cal.App.4 th 1495, the Van Sickle court explainedthat: “Similarly, a statement of punitive damages must be served ‘before adefault may be taken, if the motion for default judgment includes a requestfor punitive damages.’ (§ 425.115, subd. (f).)” Id., at 1521. Since defendantKIC never appeared in this civil action and its default was entered, plaintiffneeded to serve its statement of damages like the summons & complaint andnot by mail, which is what plaintiff did. As to attorney’s fees, plaintiffShahbazi’s complaint did not plead a statutory or contractual basis to supportan award of attorney’s fees. Also, the sum of attorney’s fees sought was notpled. In Feminist Women’s Health Center v. Blythe (1995) 232 Cal.App.4 th1641, the court explained that: “Plaintiff's complaint does not contain anyallegations concerning attorney fees, nor does it demand such fees. Ifplaintiff believed it was entitled by statute to attorney fees, it had to allegethat fact in its complaint and demand the fees in the prayer in order to obtainsuch relief against any defaulting defendants. [Citations.]” See, FeministWomen’s Health Center, at 1675. Plaintiff Shahbazi failed to allege the basisof her claim for attorney’s fees in her judicial form complaint. The Smike,Chodos, Silberfield & Anteau, Inc. case relied on by plaintiff Shahbazi isdistinguishable as the attorney’s fees in that case were awarded as part of aterminating sanction, and not based on contract as plaintiff Shahbazi is

claiming. Finally, the court notes that it did not strike any claim for statutorycosts. The $50,000.00 sum is for compensatory damages as prayed for inplaintiff Shahbazi’s complaint. Statutory costs are awarded as a matter ofright to the prevailing party and are not “damages” within the meaning ofC.C.P. § 580. See, C.C.P. § 1033(a).Moving party to give notice.Other Matter: Both parties have submitted proposed judgment anddefendant KIC has objected to plaintiff Shahbazi’s proposed modified defaultjudgment. Neither of the proposed judgments address statutory costs, whichwas clarified in the ruling that plaintiff can also recover its statutory costs.Plaintiff was awarded prejudgment interest, which needs to be calculated aswell. Plaintiff is to submit a declaration with calculation of such interestwithin 5 days; any objection to the calculation must be filed within 5 days ofservicer. The court directs that any proposed judgment should state that thejudgment against defendant KIC is a “joint judgment” as to the award againstdefendant Zaman Kabir to avoid confusion and double recovery7 SaveDaily.com,Inc. v. SolisMotion to Quash: DENY.When a complaint is amended without naming new defendants, an amendedsummons is not required. Gillette v. Burbank Community Hospital, 56Cal.App.3d 430, 433. The Court takes judicial notice of the originalcomplaint, which, like the 1st Amended Complaint, names only Mr. Solis andDoes 1-10 as defendants.Plaintiff is to give notice.9 Zamucen &Asso., Inc. v. LasVegas EquitiesPlaintiff Zamucen & Associates, Inc.’s Motion for Summary Judgment isGRANTED.The Joinder of Plaintiffs H.A. Lamm and Joni Lamm is DENIED. There was noSeparate Statement for the Joinder. Village Nurseries, L.P. v. Greenbaum(2002) 101 Cal.App.4 th 26, 46.Defendant’s Evidentiary Objections:Overrule: Nos. 2 and 13.Sustain: Nos. 1, and 3-12.Plaintiffs’ Evidentiary Objections:Overrule: No. 5 (Objection to Exhibit “11”).Sustain: Nos. 1-4 (Anderson Dec.).Defendant’s Request for Judicial Notice is granted.Plaintiffs’ Request for Judicial Notice is granted.Plaintiffs provide as Exhibit “D” to their Notice of Lodging, a Copy of a“Payment Guaranty” signed by Defendant. Defendant concedes that thesignature is hers (Exhibit “L” of Plaintiff’s Notice of Lodging, Response toForm Interrogatory 17.1); however, Defendant asserts that she executed theGuaranty as an agent for Defendant Las Vegas Equities, LLC.Importantly, the terms of the “Payment Guaranty” provides:G. Lender is unwilling to make the Loan based solely on the securityoffered by Borrower and Borrower’s own credit worthiness, unless

individuals with a credit worthiness comparable to that of Guarantorguaranty the Loan in accordance with the terms and conditions setforth below.Additionally, the signature line of the Agreement includes no references toLas Vegas Equities, LLC and gives no indication that the document wassigned on behalf of this party. (Exhibit “D” of NOL); rather, the documentstates: “each undersigned Guarantor has executed this Guaranty…” (Id.)Ultimately, Defendant’s declaration fails to establish a triable issue ofmaterial fact as the law firmly supports individual liability:Pursuant to Powerine Oil Co., Inc. v. Superior Court (2005) 37 Cal.4 th 377,“[t]he mutual intention of the parties is to be inferred, if possible, solely fromthe written provisions of the contract” and “[w]here contractual language isclear and explicit, it governs.” Id. at 396."Parties who have expressed their mutual assent are bound by the contentsof the instrument they have signed, and may not there after claim that itsprovisions do not express their intentions or understanding.” Gramercy Inv.Trust v. Lakemont Homes Nevada, Inc. (2011) 198 Cal.App.4 th 903, 911.Further, pursuant to Van Haaren v. Whitmore (1934) 2 Cal.App.2d 632,“[t]he rule is well established that extrinsic evidence is not admissible toavoid the liability of the maker of a promissory note who signs in hisindividual capacity, even though he was acting in a representative capacityfor another at the time, when the note is not uncertain, doubtful orambiguous.” Id. at 634.Based on all of the above, as the terms of the Guaranty explicitly indicate anintent to establish individual liability for the signatory, Defendant’sdeclaration fails to establish a triable issue of material fact.Additionally, in order to demonstrate entitlement to sue under the Guaranty(which was indisputably executed in favor of Datacom), Plaintiffs submitExhibit “H” which is an “Assignment of Personal Guarantee” stating:“FOR VALUE RECEIVED, the undersigned Assignor hereby assigns andtransfers all rights, title and interest to Stephen Zamucen and/orZamucen & Associates and Hal Lamm ( Assignees) held by theAssignor in the Payment Guarantee made 6/3/2008 for the benefit ofDatacom Investment Company, Inc. involving loan 21099-LH in theamount of $300,000, without recourse.”[Exhibit “H” of NOL]. The subject Assignment was executed by AlanSherman, President of Datacom Investment, Co. Inc.Importantly, Exhibit “H”/ “10” indicates Assignment of the Guaranty for “loan21099-LH” while Exhibit “D” demonstrates that the subject Guaranty wasexecuted in relation to “Loan No. 21109-LH.”To correct this error, however, Plaintiffs’ submit the Declaration of AlanSherman, President of Datacom Investment Co., Inc., which states:"On or about February 29, 2012, I, on behalf of Datacom, executed adocument entitled “ Assignment of Personal Guarantee” whichassigned and transferred all rights, title and interest in theDefendant’s Guaranty of the Note to Stephen Zamucen and/orZamucen & Associates and Hal Lamm (Assignees)(the“Assignment”)…” (2 of Dec.)“The purpose of this Assignment was to transfer all rights, title, and

interest in Defendant Anderson’s Guaranty of the Promissory Note forLoan Number 21109-LH from Datacom to the Assignees listed on theAssignment, including Plaintiffs Zamucen & Associates, Inc. andForensic Marketing, LLC.” (3 of Dec.)Additionally, Mr. Sherman declares that the “loan number is incorrectly statedas 21099-LH on the Assignment.” (4 of Dec.).Based on the above, Plaintiffs have presented sufficient evidence todemonstrate Assignment of the Guaranty from Datacom to Plaintiffs, as Mr.Sherman, President of Datacom, declares that such an Assignment wasmade.Further, as Defendant concedes that she became aware of Plaintiff’s claim forpayment, in December of 2010, after being served in a similar lawsuit,Defendant appears to concede demand. (9 of Anderson Dec.).Lastly, Defendant indicated that it is “UNDISPUTED” that, as of February 7,2013, $460,153.74 was owing under the Guaranty. (SSUF#24). Additionally, Defendant indicates that it’s undisputed that Interest onthe Guaranty accrues at a rate of $147.94 per day. (SSUF #25).Moving party to give notice.Defendant's Motion for Summary Judgment is DENIED.Defendant’s Motion for Summary Adjudication of the Second Cause of Actionis GRANTED.The remainder of Defendant’s requests for adjudication are DENIED.Plaintiffs’ Evidentiary Objections:Overrule: No. 5 (Objection to Exhibit “9”).Sustain: Nos. 1-4 (Anderson Dec.).Defendant’s Request for Judicial Notice is granted.First Cause of Action: Breach of Contract:As the terms of the Guaranty explicitly indicates an intent to establishindividual liability for the signatory, Defendant’s declaration fails to establishliability in a representative capacity. Van Haaren v. Whitmore (1934) 2Cal.App.2d 632, 634.Moreover, while Defendant argues that the failure of Plaintiffs, to explicitlyinclude her name, within the first page of the Guarantee, renders ituncertain, this argument fails; a clear reading of the documents indicatesthat the “Guarantor” is the individual executing the document.Further, while Defendant urges the Court to consider extrinsic factors, suchas the circumstances surrounding the execution of the contract andDefendant’s independent belief that she was not signing in an individualcapacity, in order to determine the “intent” of the agreement, the law is clearthat such parol evidence can be considered only “if an ambiguity is found.”Falkowski v. Imation Corp. (2005) 132 Cal.App.4 th 499, 505; McCollum v.Steitz (1968) 261 Cal.App.2d 76

Additionally, Defendant's request for rescission, based on unilateral mistakefails.Pursuant to Wal-Noon Corp. v. Hill (1975) 45 Cal.App.3d 605, “[f]ailure tomake reasonable inquiry to ascertain or effort to understand the meaning andcontent of the contract upon which one relies constitutes neglect of a legalduty such as will preclude recovery for unilateral mistake of fact.” Id. at 615.Here, as Defendant concedes that she “did not carefully read and analyzeeach and every piece of paper in the loan packet,” (Motion 11:27-28) and theterms of the agreement were clear, Defendant’s mistaken belief that the shewas executing a Guaranty on behalf of LVE arose from her neglect of a legalduty.Finally, assuming Defendant’s declaration was admissible, Plaintiffs areentitled to payment under the Guaranty, based on Commercial Code§3402(b)(2).Thus, Defendant’s requests for judgment, as to the First Cause of Action isDENIED.Second Cause of Action: Money Lent:As it is undisputed that the subject money was loaned to Defendant LasVegas Equities, Inc., this claim fails against Defendant Anderson.Thus, Defendant’s request for judgment, as to the Second Cause of Action isGRANTED, as against the Lamm Plaintiffs.Lastly, as Defendant failed to present any evidence, demonstrating Plaintiffsowed a duty to pay Defendant’s Attorney’s Fees, the request for adjudicationof this claim of duty is denied.The remainder of Defendant’s requests for adjudication violated C.C.P.§437c(f)(1), and were not considered.Motion for Summary Judgment/ Adjudication: The Lamm Plaintiffs’ Motion forSummary Judgment is DENIED.Plaintiffs’ Motion for Summary Adjudication is GRANTED as to the First Causeof Action and DENIED as to the Second Cause of Action.Defendant’s Evidentiary Objections:Overrule: No. 5Sustain: Nos. 1-4 and 6.Plaintiffs’ Evidentiary Objections:Overrule: No. 5 (Objection to Exhibit “13”).Sustain: Nos. 1-4 (Anderson Dec.).Defendant’s Request for Judicial Notice is granted.Plaintiffs’ Request for Judicial Notice is granted.First Cause of Action: Breach of Contract:Plaintiffs provides as Exhibit “D” to their Notice of Lodging, a Copy of a“Payment Guaranty” signed by Defendant. Defendant concedes that the

signature is hers (Exhibit “L” of Plaintiff’s Notice of Lodging, Response toForm Interrogatory 17.1); however, Defendant asserts that she executed theGuaranty as an agent for Defendant Las Vegas Equities, LLC.Importantly, the terms of the “Payment Guaranty” provides:G. Lender is unwilling to make the Loan based solely on the securityoffered by Borrower and Borrower’s own credit worthiness, unlessindividuals with a credit worthiness comparable to that of Guarantorguaranty the Loan in accordance with the terms and conditions setforth below.Additionally, the signature line of the Agreement includes no references toLas Vegas Equities, LLC and gives no indication that the document wassigned on behalf of this party. (Exhibit “D” of NOL); rather, the documentstates: “each undersigned Guarantor has executed this Guaranty…” (Id.)Ultimately, Defendant’s declaration fails to establish a triable issue ofmaterial fact as the law firmly supports individual liability:Pursuant to Powerine Oil Co., Inc. v. Superior Court (2005) 37 Cal.4 th 377,“[t]he mutual intention of the parties is to be inferred, if possible, solely fromthe written provisions of the contract” and “[w]here contractual language isclear and explicit, it governs.” Id. at 396."Parties who have expressed their mutual assent are bound by the contentsof the instrument they have signed, and may not there after claim that itsprovisions do not express their intentions or understanding.” Gramercy Inv.Trust v. Lakemont Homes Nevada, Inc. (2011) 198 Cal.App.4 th 903, 911.Further, pursuant to Van Haaren v. Whitmore (1934) 2 Cal.App.2d 632,“[t]he rule is well established that extrinsic evidence is not admissible toavoid the liability of the maker of a promissory note who signs in hisindividual capacity, even though he was acting in a representative capacityfor another at the time, when the note is not uncertain, doubtful orambiguous.” Id. at 634.Based on all of the above, as the terms of the Guaranty explicitly indicate anintent to establish individual liability for the signatory, Defendant’sdeclaration fails to establish a triable issue of material fact.Additionally, in order to demonstrate entitlement to sue under the Guaranty(which was indisputably executed in favor of Datacom), Plaintiffs submitExhibit “H” which is an “Assignment of Personal Guarantee” stating:“FOR VALUE RECEIVED, the undersigned Assignor hereby assigns andtransfers all rights, title and interest to Stephen Zamucen and/orZamucen & Associates and Hal Lamm ( Assignees) held by theAssignor in the Payment Guarantee made 6/3/2008 for the benefit ofDatacom Investment Company, Inc. involving loan 21099-LH in theamount of $300,000, without recourse.”[Exhibit “H” of NOL]. The subject Assignment was executed by AlanSherman, President of Datacom Investment, Co. Inc.Importantly, Exhibit “H”/ “10” indicates Assignment of the Guaranty for “loan21099-LH” while Exhibit “D” demonstrates that the subject Guaranty wasexecuted in relation to “Loan No. 21109-LH.”To correct this error, however, Plaintiffs’ reference the Declaration of AlanSherman, President of Datacom Investment Co., Inc., submitted by Co-Plaintiffs, which states:

"On or about February 29, 2012, I, on behalf of Datacom, executed adocument entitled “ Assignment of Personal Guarantee” whichassigned and transferred all rights, title and interest in theDefendant’s Guaranty of the Note to Stephen Zamucen and/orZamucen & Associates and Hal Lamm (Assignees)(the“Assignment”)…” (2 of Dec.)“The purpose of this Assignment was to transfer all rights, title, andinterest in Defendant Anderson’s Guaranty of the Promissory Note forLoan Number 21109-LH from Datacom to the Assignees listed on theAssignment, including Plaintiffs Zamucen & Associates, Inc. andForensic Marketing, LLC.” (3 of Dec.)Additionally, Mr. Sherman declares that the “loan number is incorrectly statedas 21099-LH on the Assignment.” (4 of Dec.).Based on the above, Plaintiffs have presented sufficient evidence todemonstrate Assignment of the Guaranty from Datacom to Plaintiffs, as Mr.Sherman, President of Datacom, declares that such an Assignment wasmade.Further, as Defendant concedes that she became aware of Plaintiff’s claim forpayment, in December of 2010, after being served in a similar lawsuit,Defendant appears to concede demand. (9 of Anderson Dec.).Lastly, Defendant indicated that it is “UNDISPUTED” that, as of February 7,2013, $460,153.74 was owing under the Guaranty. (SSUF#24). Additionally, Defendant indicates that it’s undisputed that Interest onthe Guaranty accrues at a rate of $147.94 per day. (SSUF #25).Thus, based on the above, judgment may be entered in the amount of$474,355.98.Second Cause of Action: Money Lent:As it is undisputed that the subject money was loaned to Defendant LasVegas Equities, Inc., this claim fails against Defendant Anderson.Plaintiff to give notice.10 Temple v. BACHome LoanServicingThe demurrer is SUSTAINED without leave to amendThere was no opposition filed.Defendant is to give notice.11 Lugo v. Kitani,Inc.Motion to Expunge Lis Pendens: DENYDefendant Kitani’s motion to expunge the lis pendens filed by plaintiff KarenLugo is DENIED. Plaintiff Karen Lugo presented evidence that the notice of lispendens was served on defendants Kitani and Jackson by her former counsel.Next, plaintiff Karen Lugo has two real property claims, her cause of action toquiet title and her cause of action for fraudulent transfer. See, Yeung v. Soos(2004) 119 Cal.App.4 th 576, 580 and Kirkeby v. Superior Court (2004) 33Cal.4 th 642, 648. Plaintiff may wish to file an errata to verify her first

amended complaint. Further, plaintiff Karen Lugo has presented sufficientevidence to demonstrate, by a preponderance of the evidence, the probablevalidity of these real property claims. See, C.C.P. § 405.32. In particular, thedeclarations of Karen Lugo and her son, Andrew Lugo, establish such aprobability based on the evidence presently presented. Finally, defendantsKitani’s requests for attorney’s fees and/or that plaintiff Karen Lugo post abond are DENIED.Moving party to give notice.12 Aldridge v.CountrywideFinancial Corp.The Motion for a Protective Order is GRANTED in part and DENIED in part.All defendants shall respond to the Form Interrogatories within thirty (30)days.They shall respond to Nos. 27, 28, 36, 38, 45, 49, 50 and 56 of the Requestfor Production the within thirty (30) days. They do not need to respond tothe other Requests.The Request for Sanctions is DENIED. Plaintiff’s counsel, who is longerinvolved in this case, failed to meet and confer. The motion did notspecifically request sanctions against Plaintiff’s counsel.Moving party to give notice.13 Be Well HomeHealth Care v.Bautista[Assuming MP presents valid proof of personal service of the Order advancingthe hearing date of these motions from 9/19/2013 to 8/15/2013, thefollowing tentative ruling applies:]Motions by defendant Angel City Hospice Care, Inc. to compel plaintiffs BeWell Home Health Care, LLC; Rafael Arshakuni; and Larissa Kassabian torespond to Form Rogs, set one, Special Rogs, set one, and RPDs, set one:GRANTEDVerified responses without objection due within 4 days due to the imminenttrial date on 8/26/2013. Monetary Sanctions of $770.00 is imposed againsteach of the plaintiffs Be Well Home Health Care, LLC; Rafael Arshakuni; andLarissa Kassabian. Sanctions payable within 90 days.Counsel for moving party to give notice.

TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraAugust 8, 2013Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be posted on alllaw and motion matters. Please read these rules carefully. Do not call the Department unless ALL parties submiton tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However, ongoingproceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THE DEPARTMENT FORTENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligently working on posting therulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counsel intend tosubmit on the tentative and do not wish oral argument, please advise the courtroom assistant by calling (657)622-5215. If all sides submit on the tentative ruling and so advise the clerk, the tentative ruling shall become thecourt’s final ruling and the prevailing party shall give Notice of Ruling and prepare an Order for the court’ssignature, if appropriate under CRC 3.1312.Please be advised that the Orange County Superior Court still provides court reporters for civil law and motionmatters.3 Admiral Inc. Co.v. Council for Ed.Travel USAMotions to Compel the Depositions of (1) Svetlana Sedukhin and (2) KayeCampbell are GRANTED.While these witnesses apparently have only limited information, they dopossess some relevant evidence or evidence that may lead to admissibleevidence.The Depositions shall take place in Washington State at a convenient locationfor the witnesses. The subject matter shall be limited to the allegations ofbreach of contract and breach of the covenant of good faith and fair dealing.The deposition shall take place on or before August 31, 2013. Since KayeCampbell is still employed, Admiral Insurance shall make her available. SinceSvetlana Sedukhin is no longer employed, she will need to be subpoenaed.The Request for Judicial Notice is GRANTED. The Request for Attorney Feesis DENIED.Moving party to give notice.4 Gregory v.FrancoMotion to Compel Plaintiff to sign authorization for release of mental healthand psychiatric records is GRANTED.Plaintiff has failed to oppose the motion and thus has waived any objectionsto the order. In addition, see Miranda v. 21st Century Ins. Co. (2004)117 Cal.App.4th 913, 928, in which the sanction of dismissal for refusal toobey an order to execute authorizations was upheld.The motions to compel compliance with subpoenas are OFF CALENDAR(moot).Moving party to give notice.

5 Martignon v.Super CenterConcepts, Inc.Plaintiff Martignon’s motion to set aside dismissal and reinstate her civilaction is GRANTED.First, calendaring errors constitute excusable neglect. See, C.C.P. § 473(b)and Elston v. City of Turlock (1985) 38 Cal.3d 227, 234. Second, the court’sdocket reflects that the notice of the OSC re: Dismissal was never served oncounsel for plaintiff Martignon. Finally, defendant Super Center is awardedsanctions of $1,000.00, pursuant to C.C.P. § 473(c)(1)(A), payable byattorney Shah only.Other Matter: Defendant Super Center has still not been served with thesummons & complaint. The court orders plaintiff Martignon to serve hercomplaint and file a proof of service with the court within 30 days. The courtsets a case management conference and an OSC re: dismissal of all unserveddefendants for 10-11-13, at 9:30 a.m., in Department C-15.Moving party to give notice.6 The Best ServiceCo. v. De LaRosaThe Motion to Vacate Dismissal as to Defendant Bill De La Rosa, individuallyand dba, DB Construction only is GRANTED.Pursuant to the Conditional Settlement Agreement, the court entersJudgment against Defendant Bill De La Rosa, individually and dba DBConstruction only in the sum of $37,191.41.Moving party shall submit a proposed judgment within 20 days and givenotice of ruling.7 Mendoza v.NguyenMotions for Attorneys Fees (2): both are GRANTED IN PART. (See below.)Plaintiff is awarded attorney fees of $1 against Double Lu, Inc. DefendantNguyen is awarded attorney fees of $1 against Plaintiff.Plaintiff’s motion. Under Hensley v. Eckerhart (1983) 461 US 424, 435, indetermining whether a party is the prevailing party under a statute, “[t]heresult is what matters.” The first issue is whether the party has obtained“significant relief”; if so, the court determines whether a reduced award isappropriate when comparing the relief obtained to “the scope of the litigationas a whole.” Id. at 439-440.In her §3344 cause of action, Plaintiff recovered only nominal damages. Thisis not “significant relief”; nor is it substantial relief in light of what Plaintiffsought or obtained in the litigation as a whole.” Plaintiff did not obtain any ofthe relief provided by §3344. The award of $1 did not reflect actualdamages, since she obtained much more than that in damages in hernegligence and appropriation causes of action. Nor was plaintiff awarded thestatutory penalty of $750 or punitive damages. Thus, a nominal award ofattorney fees is appropriate.Ms. Nguyen’s motion: There have been no cases cited, nor has the Courtbeen able to find any support for the proposition that §3344 fees can beawarded to a Defendant who suffers an adverse judgment on other causes ofaction. However, §3344 provides for fees to the “prevailing party in anyaction under this section.” Plaintiff’s interpretation would make the “underthis section” language meaningless surplusage.The language is similar to that in CC §1717 , which provides for fees to “theparty prevailing on the contract.” This language has been interpreted topermit an award to a defendant who successfully defended the contract causeof action despite losing on other causes of action. See Frog CreekPartners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4th 515 and

Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211Cal.App.4th 230. While §3344 does not have the legislative history thatthese courts relied upon, the language of the statutes are similar.However, since Plaintiff prevailed against Double Lu on her statutory cause ofaction, Ms. Nguyen can hardly claim a “victory.” See Gilbert v. NationalEnquirer, Inc. (1997) 55 Cal.App.4th 2173. Thus, under Hensley, her lackof significant relief justifies reduction of her fee award to a nominal sum aswell.Plaintiff is to give notice and lodge an amended judgment.8 Ultimate NewHome Sales v.TaschCross-defendant IPSC’s motion for attorney’s fees is STAYED pending thecompletion of the trial of this civil action, which is set for 8-12-13. See,C.C.P. § 128.The court finds it makes more sense to resolve all attorney fees claims posttrialwhen it will have been determined whether all cross-defendants haveprevailed or not on the various cross-claims by Tasch and Revive Real EstateGroup. Finally, cross-defendant IPSC’s request for posting of bond is DENIED.Moving party to give notice.9 Brueneio v.ProvencioDemurrer to Complaint: OVERRULE; answer is deemed filed and served.Upon Rehearing the Demurrer to the Complaint, the court OVERRULES theDemurrer on the merits.The Complaint properly alleged the elements of the Third Cause of Action forNegligence and the Fourth Cause of Action for Breach of Fiduciary Duty.The Demurrer on uncertainty is OVERRULED. “A demurrer for uncertainty isstrictly construed, even where a complaint is in some respects uncertain,because ambiguities can be clarified under modern discoveryprocedures.” Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612,616.Plaintiff to give notice.10 Simon v. UCIMC Defendant Regents’ motion for summary judgment is DENIED.As to the statute of limitations, defendant Regents did not carry its burden ofdemonstrating when plaintiff knew of or should have suspected the negligentcause of her injury in addition to be advised of some complication. See,Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896 and Dolan v. Borelli (1993) 13Cal.App.4 th 816, 824 to 825. The records establish that Dr. Mozzafer’sassessment was: “She does have incomplete bilateral femoral neuropathy.This has no chronic complications and should resolve within a couple ofdays.” (See, Defendants’ Exhibit A, Records from UCI Medical Center, Bate0000027, “Assessment/Plan.”) Hence the evidence presented does notdemonstrate that plaintiff Simon was advised of a permanent neurologicalinjury following her surgery or was so advised within a couple days after her

surgery as defendant contends. As to the standard of care, there is a triableissue of material fact as to whether the procedure was completed withoutcomplication. (See, Plaintiff Simon’s Response to Defendant Regents’ UMFNo. 4.) The record cited by defendant Regents does not set forth that therewere no complications. Relatedly, plaintiff Simon reported numbness whichled to the neurological consult in the recovery period. In addition, while Dr.Pine’s declaration is not very detailed, Dr. Pine did opine as to some preoperativefailure to understand the risks, and failure to detail and monitorplaintiff Simon during this lengthy procedure. (See, Dr. Pine’s Declaration, 6 and 7.) Dr. Mandel opines that Ms. Simon as positioned properly at thecommencement of surgery and at all times, while Dr. Pine declared that hefound a lack of documentation as to how Ms. Simon was positioned at thecommencement of the surgery and throughout the surgery, which creates atriable issue of material fact. On summary judgment, the declarations of theopposing party are liberally interpreted as to whether a triable issue ofmaterial fact exists. See, Johnson v. American Standard, Inc. (2008) 43Cal.4 th 56, 64. Thus defendant Regents’ motion for summary judgment isdenied because triable issues on the standard of care exist. Lastly, movingparty did not properly object to Dr. Pine’s declaration. Moving party to givenotice.Defendant Dr. Saberi’s motion for summary judgment is DENIED. As to thestatute of limitations, defendant Dr. Saberi did not carry her burden ofdemonstrating when plaintiff knew of or should have suspected the negligentcause of her injury in addition to be advised of some complication. See,Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896 and Dolan v. Borelli (1993) 13Cal.App.4 th 816, 824 to 825. The records establish that Dr. Mozzafer’sassessment was: “She does have incomplete bilateral femoral neuropathy.This has no chronic complications and should resolve within a couple ofdays.” (See, Defendants’ Exhibit A, Records from UCI Medical Center, Bate0000027, “Assessment/Plan.”) Hence the evidence presented does notdemonstrate that plaintiff Simon was advised of a permanent neurologicalinjury following her surgery or was so advised within a couple days after hersurgery as defendant contends. As to the standard of care, there is a triableissue of material fact as to whether the procedure was completed withoutcomplication. (See, Plaintiff Simon’s Response to Defendant Regents’ UMFNo. 4.) The record cited by defendant Dr. Saberi does not set forth that therewere no complications. Relatedly, plaintiff Simon reported numbness whichled to the neurological consult in the recovery period. In addition, while Dr.Pine’s declaration is not very detailed, Dr. Pine did opine as to some preoperativefailure to understand the risks, and failure to detail and monitorplaintiff Simon during this lengthy procedure. (See, Dr. Pine’s Declaration, 6 and 7.) Dr. Mandel opines that Ms. Simon as positioned properly at thecommencement of surgery and at all times, while Dr. Pine declared that hefound a lack of documentation as to how Ms. Simon was positioned at thecommencement of the surgery and throughout the surgery, which creates atriable issue of material fact. On summary judgment, the declarations of theopposing party are liberally interpreted as to whether a triable issue ofmaterial fact exists. See, Johnson v. American Standard, Inc. (2008) 43Cal.4 th 56, 64. Lastly, defendant did not properly object to Dr. Pine’sdeclaration. Thus defendant Dr. Saberi’s motion for summary judgment isdenied because triable issues on the standard of care also exist. Moving partyto give notice.Defendant Dr. Tran’s motion for summary judgment is DENIED. As to thestatute of limitations, defendant Dr. Tran did not carry his burden ofdemonstrating when plaintiff knew of or should have suspected the negligentcause of her injury in addition to be advised of some complication. See,Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896 and Dolan v. Borelli (1993) 13Cal.App.4 th 816, 824 to 825. The records establish that Dr. Mozzafer’sassessment was: “She does have incomplete bilateral femoral neuropathy.This has no chronic complications and should resolve within a couple of

days.” (See, Defendants’ Exhibit A, Records from UCI Medical Center, Bate0000027, “Assessment/Plan.”) Hence the evidence presented does notdemonstrate that plaintiff Simon was advised of a permanent neurologicalinjury following her surgery or was so advised within a couple days after hersurgery as defendant contends. As to the standard of care, there is a triableissue of material fact as to whether the procedure was completed withoutcomplication. (See, Plaintiff Simon’s Response to Defendant Regents’ UMFNo. 4.) The record cited by defendant Dr. Tran does not set forth that therewere no complications. Relatedly, plaintiff Simon reported numbness whichled to the neurological consult in the recovery period. In addition, while Dr.Pine’s declaration is not very detailed, Dr. Pine did opine as to some preoperativefailure to understand the risks, and failure to detail and monitorplaintiff Simon during this lengthy procedure. (See, Dr. Pine’s Declaration, 6 and 7.) Dr. Mandel opines that Ms. Simon as positioned properly at thecommencement of surgery and at all times, while Dr. Pine declared that hefound a lack of documentation as to how Ms. Simon was positioned at thecommencement of the surgery and throughout the surgery, which creates atriable issue of material fact. On summary judgment, the declarations of theopposing party are liberally interpreted as to whether a triable issue ofmaterial fact exists. See, Johnson v. American Standard, Inc. (2008) 43Cal.4 th 56, 64. Lastly, moving party did not properly object to Dr. Pine’sdeclaration. Thus defendant Dr. Tran’s motion for summary judgment isdenied because triable issues on the standard of care also exist. Moving partyto give notice.

TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraAugust 1, 2013Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be postedon all law and motion matters. Please read these rules carefully. Do not call the Department unless ALLparties submit on tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However,ongoing proceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THEDEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligentlyworking on posting the rulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counselintend to submit on the tentative and do not wish oral argument, please advise the courtroom assistant bycalling (657) 622-5215. If all sides submit on the tentative ruling and so advise the clerk, the tentativeruling shall become the court’s final ruling and the prevailing party shall give Notice of Ruling and preparean Order for the court’s signature, if appropriate under CRC 3.1312.Please be advised that the Orange County Superior Court still provides court reporters for civil law andmotion matters.1 Kamell v. Poteet Motion to compel discovery responses w/o objection, deem matters admitted,and order production of documents: DENIED.Requests of both parties for sanctions: DENIED.This Court ordered that papers be served both physically and byemail. There is nothing about CRC 2.251 that serves to vacate that order. Infact, sub§(c) expressly states that is does not apply if the Court ordersotherwise.However, Defendant has shown proof that the discovery was served by emailon 3/4/13 by attaching a copy of the email that indicates theattachments. In addition, he provides a copy of the proof of service of theresponses. The Court’s order did not serve to invalidate service that wasotherwise proper under CRC 2.251.In addition, Plaintiff admitted that the responses were actually received nolater than 3/25. See Plaintiff’s Ex.11. His motion is essentially a motion forfurther responses without objection due to late service. As such, it isuntimely. His citations are to statutes that have long been repealed. Plaintiffcannot recovery attorney fees for representing himself. Kravitz v. SuperiorCourt (2001) 91 Cal.App.4th 1015, 1020.Defendant is not entitled to sanctions as well. As noted, his emailed servicedid not comply with the Court’s order, an order that was intended toeliminate disputes such as this. Upon being informed that Plaintiff did nothave a copy of the discovery, instead of simply emailing it again, defendantstonewalled, made claims that the discovery could be obtained from courtrecords, that AOL charges for emailing attachments, etc. Furthermore, theCourt finds that an attorney with 12 years’ experience does not requirethe aid of another attorney to “assist” him in responding to a simplediscovery motion. This is a transparent attempt to obtain sanctions against

his opponent. Lastly, the Court is unable to find a proof of service for theopposition.This is an action by two self-represented attorneys. This is no justification forunprofessional conduct. The parties are warned that further violations of thisCourts’ orders may result in another OSC issued by the Court for sanctions orcontempt.Responding party to give notice.4 Fireman’s FundIns. Co. v. JMMHIndustriesMotion to vacate the default: GRANTED without prejudice to move toreinstate the default in the interests of justice.In Reliance Insurance v. Superior Court (2000) 84 Cal. App. 4 th 383,386-388, the Court viewed intervention as an alternative to vacating thedefault of a suspended corporation, suggesting that once intervention isgranted, taking a default is improper. If that is the case, Plaintiff erred inentering the default and is estopped from claiming that §473 does notapply. Alternately, the default can be set aside by the Court pursuant to itsinherent powers under CCP 128(a)(8).However, the purpose of the intervention is to allow the insurer to protect itsown interests, not that of the suspended corporation. Therefore, if Plaintiffhas a right to a greater recovery than the insurance covers, it may still beable to enforce a default judgment for the remainder. The court alsoreserves the right to enter default against the corporation as a discoverysanction if the plaintiff can demonstrate prejudice due to the corporation’sunwillingness or inability to response to properly served discovery.Moving party is to give notice.5 Figueroa Group,Inc. v.Pavestone, LLCMotion to Vacate Entry of Default: OFF CALENDAR

8 Gallyon v. Read The motion to strike 26 of the complaint, Plaintiff’s claim for diminution invalue: GRANTED without leave to amend.The alleged nuisances are not permanent but are capable of being abated;thus Plaintiff is not entitled to prospective damages. Gehr v. Baker HughesOil Field Operations Inc. (2008) 165 Cal.App.4th 660, 666-667.The motion to strike punitive damages is DENIED Plaintiff has alleged factsdemonstrating intent to injure, i.e., Defendant’s acts of knocking over herplants, spraying her with a hose, discarding cigarette butts and syringes onher patio and porch, and blocking access to her carport with his car. Thesecannot be accidental and they provide factual support for the allegations thatDefendant claims are conclusory.Defendant has 20 days to answer.Defendant is to give notice.

TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraJuly 25, 2013Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be postedon all law and motion matters. Please read these rules carefully. Do not call the Department unless ALLparties submit on tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However,ongoing proceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THEDEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligentlyworking on posting the rulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counselintend to submit on the tentative and do not wish oral argument, please advise the courtroom assistant bycalling (657) 622-5215. If all sides submit on the tentative ruling and so advise the clerk, the tentativeruling shall become the court’s final ruling and the prevailing party shall give Notice of Ruling and preparean Order for the court’s signature, if appropriate under CRC 3.1312.Please be advised that the Orange County Superior Court still provides court reporters for civil law andmotion matters.1 Baehr v. Sporn Motion to Quash: DENYThe motion to quash service of summons is DENIED. Mr. Sporn merelytestifies that he was not personally served but does not deny receiving thesummons and complaint at the address that he admits is a mailing addressthat he maintains. Such service is proper. CCP §415.20(a). No defect insubstituted service is addressed. His claim of lack of service on the Cortislimentities is hearsay. The proof of service shows they were served at theaddress of their agent for service of process as shown on the Secretary ofState website.Defendants are to answer within five court days.Plaintiff is to give notice.3 Allen v. Estate ofJames LewisHumpertDefendant’s Motions to Transfer case to Probate and Deny Plaintiff’sRequest for a Jury Trial: See belowDefendant’s motions to transfer this case to probate and deny Plaintiff’srequest for a jury trial are DENIED.Defendant’s claims that 1) this case belongs in probate and 2) it is anequitable action are based on the theory that it is brought under Probate

Code §21700 and/or is a promissory estoppel claim. It is neither. The actionis brought under CCP §366.3, and the claim is for breach of contract, notequitable relief. See Allen v. Stoddard (2013) 212 Cal.App.4th 807, 812,and Marvin v. Marvin (1976) 18 Cal.3d 660, 674.Plaintiff to give notice.6 Altamar v. Flores Motion for Trial Preference: DENYThe Motion for Preference under C.C.P. § 36 (a) is DENIED, because Plaintiffhas not shown prejudice if the case is not set for trial within 120days. Nevertheless, pursuant to C.C.P. § 36 (e), the court finds that in theinterests of justice, the trial date should be set in approximately six (6)months. The court proposes January 27, 2014 at 9:00 a.m. as the trial date.Defendant to give notice.9 Berberich v.PradaMotion for Summary Judgment/Adjudication Summary Judgment is DENIED.As Defendants concede, the declaration and opinions of Dr. Rudnick createtriable issues of fact regarding whether Defendants’ treatment of or failure totreat Plaintiffs’ decedent violated the applicable standard of care and whetherthat violation contributed to the decedent’s suicide.Defendants’ request in their Reply for summary adjudication on the issue ofimmunity is DENIED because it was not in initial notice of motion. Therefore,Plaintiffs had no obligation to respond to such a request if other questions offact prevented summary judgment. Furthermore, disposing of this “theory ofliability” will not defeat an entire cause of action. Therefore summaryadjudication is unavailable. CCP §437c(f).The Court will not rule on Plaintiffs’ “objections.” Evidentiary objections mustbe to evidence, not to factual contentions in a separate statement, and mustcomply with CRC 3.1354. Hodjat v. State Farm Mut. Auto. Ins. Co.(2011) 211 Cal.App.4th 1, 8-9.Plaintiff to give notice.10 First AmericanTitle Ins. Co. v.PhillipsMotions for Summary Judgment/Adjudication: See belowDefendant Phillips’ motion for summary adjudication is granted in part anddenied in part. GRANTED as to Issue No. 2 that plaintiff First American’s thirdcause of action for intentional interference with contract, fourth cause ofaction for intentional interference with prospective economic advantage, fifthcause of action for unfair competition, and twelfth cause of action for breachof fiduciary duty are preempted by the California Uniform Trade Secrets Act(“CUTSA”). See, K.C. Multimedia, Inc. v. Bank of America Technology &Operations, Inc. (2009) 171 Cal.App.4 th 939, 957.DENIED as to defendant Phillips’ motion for summary adjudication on IssueNo. 1 that plaintiff First American’s cannot establish that defendant Phillips’misappropriated any information that constitutes a trade secret. The issue ofwhether certain information qualifies as a protected trade secret is generallya question of fact. See, San Jose Construction, Inc. v. S.B.C.C., Inc. (2007)155 Cal.App.4 th 1528, 1537. The Morlife court explained that the more timean employer expends to create and generate a customer list the more likely

that information will constitute a protected trade secret. See, Morlife v. Perry(1997) 56 Cal.App.4 th 1514, 1521 to 1522. In this case, there are triableissues of material fact as to whether First American’s Client List and at leastsome of its PowerPoint presentations constitute protected trade secrets.[See, Plaintiff First America’s Response to Defendant Phillips’ UMF No. 13, 20,21, 22, 25, 26, 31, 37 and 38.] Since this is sufficient to create triable issuesof material fact in regard to Issue No. 1, the court does not address whethervarious financial documents, defendant Phillips’ job description, or similarmatters constitute protected trade secrets or not at this time.Also, DENIED as to defendant Phillips’ motion for summary adjudication onIssue No. 3 that an employee handbook cannot constitute a contract. See,Wagner v. Glendale Adventist Medical Center (1989) 216 Cal.App.3d 1379.Defendant Phillips acknowledged he received Exhibit N, the EmployeeHandbook. Defendant Phillips’ has not carried his burden that thisEmployment Handbook cannot constitute an agreement setting forth theterms and conditions of his employment with plaintiff First American, or thisEmployee Handbook creates triable issues of material fact in this regard. TheLortz case dealt with pleading and the need to plead sufficient facts as tosatisfaction of conditions and is thus distinguishable. The Kimberly QualityCare court was addressing whether an implied contract to only terminate for“good cause” could exist when there was an integrated, written agreement tothe contrary, and the Kimberly court concluded that there could not be suchan implied agreement. In contrast, there is no integrated employmentagreement between plaintiff First American and defendant Phillips.Next, defendant Phillip’s motion for summary adjudication on Issue No. 4,Issue No. 5 and Issue No. 6, that plaintiff First American’s causes of actionfor intentional interference with contract, intentional interference withprospective economic advantage, and for violation of Bus. & Prof. Code §17200 are MOOT because these causes of action are preempted under CUTSAfor the reasons set forth on defendant Phillips’ Issue No. 2 for summaryadjudication.Finally, DENIED as to defendant Phillips’ motion for summary adjudication onIssue No. 7 as to plaintiff First American’s eleventh cause of action for tradelibel because plaintiff First American has presented evidence in response tosome of the material facts set forth by defendant Phillips on this issue forsummary adjudication. [See, Plaintiff First American’s Response to DefendantPhillip’s UMF Nos. 314, 315 and 316.) Moving party to give notice.Defendant Phillips’ Evidentiary Objections: Declaration of AttorneyJeffrey A. Simon: A primary problem for defendant Phillips is he is objectingto deposition testimony submitted and attached to attorney Jeffrey Simon’sdeposition and not to attorney Simon’s declaration itself. Attorney Simonsimply attests that various deposition testimony attached to his declarationare true and correct copies of selections from the deposition referenced. Thisis not improper. OVERRULED as to Objection No. 1, 2, 3, 4, 5, 6, 7, 8, 9, 21and 22. SUSTAINED as to Objection Nos. 10, 11, 12, 13, 14, 15, 16, 17, 18,19, 20, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35 and 36. As to theexhibits attached to his declaration, attorney Simon just alleges that they aretrue and correct copies without setting forth that they were part of a verifieddiscovery response, attached to a deposition as an exhibit, or submitting adeclaration by a person with personal knowledge about the these exhibits toproperly authenticate them. The court is essentially left with depositiontestimony as evidence to determine if triable issues of material fact arecreated as to various issues presented for summary adjudication.------Cross-defendant First American’s motion for summary judgment is DENIEDas there are triable issues of material fact as set forth on several of the

issues for summary adjudication as set forth below. As to cross-defendantFirst American’s motion for summary adjudication, cross-defendant’s motionfor summary adjudication is granted in part and denied in part.GRANTED as to Issue Nos. 2, 6 and 8. As to Issue Nos. 2 and 8, relating tocross-complainant Phillips’ second cause of action for breach of retirementplan contract, cross-complainant Phillips cannot establish that he qualifiesunder the age requirement for First American’s retirement plan under theevidence presented. As to Issue No. 6, relating to cross-claim for breach ofemployment agreement as to unenforceable promissory note, crosscomplainantPhillips concedes that he received $100,000.00 from FirstAmerican and that $25,000.00 remains to be repaid. (See, Cross-DefendantFirst American’s UMF Nos. 29 and 32. Also, the promissory note provides, inpertinent part, that: “In the event of termination of employment by eitherparty for any reason, any unpaid principal and interest will be due 30 daysthereafter.” (See, Cross-Defendant FATCO’s Notice of Lodging Exhibits,Exhibit D, Form of Promissory Note.) Cross-complainant Phillips presented noadmissible evidence to support his allegations of threats, duress, economicduress, undue influence, mistake, or fraud in the inducement to render thispromissory note void or voidable.DENIED as to Issue Nos. 1, 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 16 and 17. Asto Issue No. 1, relating to Phillips’ first cross-claim for failure to payguaranteed bonus, there is a triable issue of material fact as to whetherPhillips had a guaranteed bonus. [See, Phillips’ Response to Cross-DefendantFATCO’s UMF No. 5, and Phillips’ Declaration, 5.] As to Issue No. 3 forfailure to permit exercise of Stock Options and Restricted Stock Units, andIssue No. 9 as to failure to allow exercise of stock options not beingsupported by the fact, relating to cross-complainant Phillips’ third cause ofaction for breach of stock option agreement, there is a triable issue ofmaterial fact as to whether Phillips still had the right to exercise 4,000 stockoptions or not. [See, Phillips’ Declaration, 7, and Cross-ComplainantPhillips’ Response to Cross-Defendant FATCO’s UMF No. 12.] As to Issue No.4 for failure to pay accrued Paid Time Off (“PTO”) in relation to Phillips’ firstcause of action, and Issue No. 12 for failure to pay accrued time off inviolation of Labor Code § 227.3, while cross-defendant First American carriedits burden of demonstrating a new policy applicable to executives, it failed tocarry its burden, based on admissible evidence, that cross-complainantPhillips’ had used his accrued 37.62 of PTO left. Even assuming the e-mail byMs. Cryder is admissible, a statement that cross-complainant Phillips had anintent to use 32 PTO hours at the end of December 2009, is not evidence thatcross-complainant Phillips actually used 32 hours of PTO at the end ofDecember 2009. As to Issue No. 5 for failure to pay business expensesrelating to cross-complainant Phillips’ first cause of action for breach of theemployment agreement, and Issue No. 13 for failure to reimburse businessexpenses in violation of Labor Code § 227.3, there is a triable issue ofmaterial fact as to whether cross-complainant Phillips was reimbursed for hisbusiness mileage for August, September and October 2010. [See, Cross-Complainant Phillips’ Response to Cross-Defendant FATCO’s UMF No. 25, andPhillips’ Declaration, 16 and 17.] As to Issue No. 10 for failure to nottimely pay wages due upon resignation in violation of Labor Code § 225,there are triable issues of material fact as to cross-defendant First American’sas to UMF Nos. 5, 12, 22, 23, and 25 that it incorporated into its Issue No. 10for summary adjudication. As to Issue No. 11 for violation of Labor Code §§221 and 224, there are triable issues of material fact on cross-defendant FirstAmerican’s UMF Nos. 5, 12, 22, 23, and 25 that it incorporated into its IssueNo. 11 for summary adjudication. As to Issue No. 14 for failure to providecross-complainant Phillips with wage statements, cross-complainant Phillipshas presented evidence of a failure to comply with Labor Code § 226(c) tocreate a triable issue of material fact. [See, Cross-Complainant Phillips’Response to Cross-Defendant FATCO UMF No. 18, and Phillips’ Declaration, 7, and Exhibit 7, Request for Inspection and Copying of Personnel and Payroll

Records Authorization for Release signed 11-23-10.] As to Issue No. 15 forunfair business practices, the violation of the foregoing Labor Code sectionscreate triable issues of material fact under the unlawful prong of Bus. & Prof.Code § 17200. As to Issue No. 16 for misappropriation of name, Civil Code §3344 provides for a statutory penalty of $750.00 even if actual damagescannot be demonstrated. Also, cross-complainant Phillips’ presented sufficientevidence to create a triable issue of material fact as to misappropriation bycontinuing use of his likeness after his resignation from cross-defendant FirstAmerican. [See, Phillips’ Declaration, 19.) As to Issue No. 17, crossdefendantFirst American set forth that cross-complainant Phillips’ eleventhcause of action for accounting lacked merit because Phillips’ first throughtenth causes of action lacked merit. Since there are triable issues of materialfact on several of these other causes of action, cross-defendant FirstAmerican did not carry its burden on this issue. Also, on Issue No. 17 crosscomplainantPhillips has presented evidence to create a triable issue ofmaterial fact. [See, Cross-Complainant Phillips’ Response to Cross-DefendantFirst American’s UMF Nos. 5, 12, 22, 23, and 25.]Finally, the court notes that no Issue No. 7 was set forth in cross-defendantFirst American’s notice and separate statement. Moving party to givenotice.Cross-Complainant Phillips’ Evidentiary Objections: Declaration ofMatthew MacDougall: OVERRULED as to Objection Nos. 1, 2, 3, 5, 7, 8 and9. SUSTAINED as to Objection Nos. 4, 6, 10 and 11. Declaration of KanenLanning: OVERRULED as to Objection Nos. 1, 2, 3 and 8.SUSTAINED as to Objection Nos. 4, 5, 6 and 7. Declaration of JosephTavarez: SUSTAINED as to Objection No. 1.12 Chavez v.Americana TrustDeedOSC re: Preliminary Injunction: DENYThe motion for a preliminary injunction is DENIED. The Plaintiffs have failedto show any chance of prevailing on the merits of a claim that would entitlethem to prevent foreclosure. At most, they may have a right to a moneyjudgment for the allegedly overcharged fees, assuming that the proceedsfrom foreclosure exceed the principal and interest due on the loan. There isno attempt to show that the fees exceed the undisputed amounts due on theloan; Defendant presents evidence that they do not. (Ricker declaration,11) Nor do Plaintiffs show that they would have been able to bring the loancurrent if not for the allegedly improper fees.In addition, Defendant has shown that Plaintiffs already received amodification that reduced the monthly payment and interest but theydefaulted afterwards. They are not entitled to a further modification. CCP§2923.6(g). An injunction would serve no purpose except to delay theinevitable and deprive Defendant’s principals of the right to salvage whatthey can of their investment.Defendant to give notice.

TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraJuly 18, 2013Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be postedon all law and motion matters. Please read these rules carefully. Do not call the Department unless ALLparties submit on tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However,ongoing proceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THEDEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligentlyworking on posting the rulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counselintend to submit on the tentative and do not wish oral argument, please advise the courtroom assistant bycalling (657) 622-5215. If all sides submit on the tentative ruling and so advise the clerk, the tentativeruling shall become the court’s final ruling and the prevailing party shall give Notice of Ruling and preparean Order for the court’s signature, if appropriate under CRC 3.1312.Please be advised that the Orange County Superior Court still provides court reporters for civil law andmotion matters.1 Stewart v. DocBrownProductions, LLCMotion for Issuance of Earnings Withholding Order: OFF CALENDAR2 Gilliam v. Miller Motion for Reconsideration: GRANTThe motion for reconsideration of the Court’s 5/16/13 order isGRANTED. Plaintiff’s motion to appoint a receiver is GRANTED conditioned onposting of a $10,000 undertaking forthwith and giving notice to Defendantsof the signed orders. The Court modifies the proposed order by providing in1 for a receiver’s bond of $10,000 and by adding to 16, “Costs, fees andother expenses of the receivership are not to be added to the judgmentexcept by Court order following a noticed motion.”Moving party to give notice.3 LeGasca v.AguilarMotion to be Relieved as Counsel: GRANTEDUpon filing the proof of service of the signed Order on the client, the Orderwill be effective.Counsel to give notice.

4 Milnar v. Nobles Defendant’s Motion to Compel Further Responses to Production Requests:GRANT in part as follows:##23 & 24: DENIED without prejudice to propound more narrowly drawnrequests relevant to the vehicle and investment at issue in thiscase. Defendant has not justified the breadth of these requests; that theremight exist some relevant documents is not good cause for requiringproduction of documents that are not.#26: GRANTED. This request is not a contention interrogatory. It seeksdocuments showing that Plaintiff has suffered compensable losses.##39-42: GRANTED as to documents generated from 2009 to the presentreflecting the value of the vehicle in 2009 and from the time of filing of thecomplaint to the present, including tax records.Firestone v. Hoffman (2006) 140 Cal.App.4th 1408 was not limited tostatutory claims; the court also held @ 1419-1420 that the tax recordprivilege under the California Constitution does not apply to foreign nationals.##43 & 46: GRANTED. These documents are relevant to Plaintiff’sknowledge regarding what the money he received was for and the value heattributed to his investment. If Plaintiff has no responsive documents, heshould state so in a verified response.#47: GRANTED. A production request is directed only to documents inPlaintiff’s possession, custody and control and is therefore limited to Plaintiff’sclaim that he currently owns the vehicle.#48: DENIED. Documents regarding relevant value are requested in#41. This request is overbroad; if Defendant wants Plaintiff to producedocuments showing that he still owns the vehicle, he should specially requestthem.##49, 50 & 55: DENIED. These requests are overbroad. Defendant mustdraft requests more narrowly related to the issues he seeks to prove ordisprove. The Court is already ordering production of tax records concerningvaluation of the Ferrari. (#42)##51A & 51B: DENIED. Defendant has presented no evidence thatPlaintiff’s claim of expertise regarding value is based on prior purchases; hemust conduct further discovery on the source of Plaintiff’s expertise beforeseeking documents to support this assumption.##53 & 54: DENIED. Defendant has not provided authority for his claimthat he has a defense based on the SEC rules or why using someone else’smoney to invest is a material breach of contract. Asking for every documentrelated to the money he used to invest is clearly overbroad.Sanctions are denied. There is merit to the contentions on bothsides. Refusal to agree with an opponent’s position is not the same as failureto meet and confer.The Court will sign a revised protective order. Defendant is to revise hisproposed protective order to remove references to a stipulation and lodge itwith the Court forthwith. Financial documents need not be produced until asigned protective order is in place and has been served on Plaintiff.

Plaintiff is to provide a privilege log regarding any pre-filing documents thatare withheld on grounds of privilege.Moving party to provide notice.5 Admiral Ins. Co.v. Council forEducationalTravel USADemurrer to First Amended Complaint: OFF CALENDAR6 Aldridge v.CountrywideFinancial Corp.Demurrer to Complaint/Motion to Strike: See belowThe Request for Judicial Notice is GRANTED, except for Exhibit H. Sincethis exhibit was apparently not recorded, it is not an official record. TheRequest for Judicial is DENIED as to Exhibit H.Defendant’s Demurrer does not state the property has been sold at aforeclosure sale. Exhibit H does not appear to reflect a completedtransaction.The Demurrer to the First Cause of Action for Slander of Title isSUSTAINED without leave to amend. The actions taken in nonjudicialforeclosure proceeding is privileged. Kachlon v. Markowitz (2008) 168Cal.App.4th 316, 333-334.The Demurrer to the Second Cause of Action for Violation of Civil Code2923.5 is OVERRULED. Courts continue to “conclude that the Legislatureintended to allow a private right of action under section 2923.5.” Skov v. U.S.Bank Nat. Assn. (2012) 207 Cal.App.4th 690, 699.If the court could take Judicial Notice of Exhibit H (Trustee’s Deed UponSale), the court would sustain without leave to amend the demurrer to thiscause of action. “There is nothing in section 2923.5 that even hints thatnoncompliance with the statute would cause any cloud on title after anotherwise properly conducted foreclosure sale. We would merely note thatunder the plain language of section 2923.5, read in conjunction with section2924g, the only remedy provided is a postponement of the sale before ithappens.” Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 235-236.The Demurrer to the Third Cause of Action for Fraud (Concealment) isSUSTAINED without leave to amend. “’In California, fraud must be pledspecifically; general and conclusory allegations do not suffice.’ . . . Thus, aplaintiff must plead facts which show how, when, where, to whom, and bywhat means the representations were made.” Lazar v. Superior Court (1996)12 Cal.4th 631, 645.The Demurrer to the Fourth Cause of Action for Quiet Title is

SUSTAINED without leave to amend. C.C.P. § 761.020 (b) requires thatPlaintiffs allege that they has title and the basis of the title. “[A] mortgagorof real property cannot, without paying his debt, quiet his title against themortgagee.” Miller v. Provost (1994) 26 Cal.App.4th 1703, 1707. Plaintiffsfailed to allege tender of their debt.The Demurrer to the Fifth Cause of Action for Institutional Bad Faith isSUSTAINED without leave to amend. “Outside of the insured-insurerrelationship and others with similar qualities, breach of the implied covenantof good faith and fair dealing does not give rise to tort damages.” Ragland v.U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 206.The Motion to Strike is granted as to Attorney Fees [Paragraph 21 (portion)& Prayer n (all)[ and Punitive Damages [Paragraph 21 (portion), Prayer h (3 rdc/a) & n (5 th c/a)]. There is no basis for recovery of attorney fees or punitivedamages. The Motion to Strike is DENIED as to the remaining items.The Motion to be Relieved as Counsel is GRANTED. Upon filing the proof ofservice for the signed order, this Order shall be effective.Within fifteen (15) days, Defendants shall file an Answer to the SecondCause of Action for Violation of Civil Code § 2923.5.Moving party to give notice.7 Bowman v.Karakesisoglu8 Apache Golf, Inc.v. CoreanaExpress, Inc.Motion to Strike: OFF CALENDARDemurrer to the Second Cause of Action for Breach of Contract: SUSTAINEDwith fifteen (15) days leave to amend.Plaintiff failed to comply with C.C.P. § 430.10 (g), which requires theComplaint to state whether the contract is written, is oral, or is implied byconduct. Plaintiff “may plead the legal effect of the contract rather than itsprecise language.” Construction Protective Services, Inc. v. TIG Specialty Ins.Co. (2002) 29 Cal.4th 189, 199.The Demurrer to the Third Cause of Action for Conversion is SUSTAINED withfifteen (15) days leave to amend.“Conversion is the wrongful exercise of dominion over the property ofanother. The elements of a conversion claim are: (1) the plaintiff's ownershipor right to possession of the property; (2) the defendant's conversion by awrongful act or disposition of property rights; and (3) damages. Conversion isa strict liability tort.” Burlesci v. Petersen (1998) 68 Cal.App.4th 1062,1066. Plaintiff did not clearly allege these elements clearly. In particular,Plaintiff failed to allege that it actually owed the disputed goods.The Demurrer to the Fourth cause of Action for Intentional Inference withEconomic Advantage is OVERRULED. Plaintiff alleged the elements of thiscause of action. Youst v. Longo (1987) 43 Cal.3d 64, 71.The Demurrer to the Fifth Cause of Action for Unfair Business Practices isSUSTAINED with fifteen (15) days leave to amend.Unfair business practices must also be alleged with specificity.“A plaintiff alleging unfair business practices under these statutes must statewith reasonable particularity the facts supporting the statutory elements ofthe violation.” Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th

612, 619.Plaintiff has not stated whether the conduct was unfair, unlawful orfraudulent.Motion to Strike is GRANTED with fifteen (15) leave to amend regardingpunitive damages (Paragraphs 31, 33 & 39 and prayer No. 2) .Conclusory characterization of defendant’s conduct as intentional, willful, andfraudulent is an insufficient statement of “oppression, fraud, or malice” withinthe meaning of §3294. Brousseau v. Jarrett (1977) 73 Cal.App.3d 864,872. Plaintiff must allege a specific factual basis.The Motion to Strike is GRANTED with fifteen (15) leave to amend regardingattorney fees (Paragraph 44 and prayer No. 4). When “the primary effect of alawsuit was to advance or vindicate a plaintiff's personal economic interests,an award of fees under section 1021.5 is improper.” Flannery v. CaliforniaHighway Patrol (1998) 61 Cal.App.4th 629, 635. Plaintiff did not allege anyof the requirements of the statute.Moving party to give notice.9 Vivoli Saccuzzo,LLP v. Kuhl10 Old RepublicNational TitleIns. Co. v.ThomasDemurrer to Complaint/Special Motion to Strike: OFF CALENDAR/Transferredto Dept. C-23 as a related case.Plaintiff Old Republic’s Motion for Summary Judgment as to DefendantThomas: DENYFirst, plaintiff Old Republic did not carry its initial burden of demonstratingthat defendant Thomas did not seek satisfactory evidence that Mi Ling wasperson she claimed to be. See, Civil Code § 1185(b) and (3)(A). A notarywho fully complies with the statute may still be deceived but will not be heldliable if they complied with the statute. See, Anderson v. Aronsohn (1919)181 Cal. 294, 299 and 1 Cal.Jur 3d Acknowledgments § 72. Plaintiff failed topresent evidence or other circumstances that Mi Ling’s DMV license was afalse identification. See, Miller & Starr, 5 Cal. Real Est. § 11:27 (3d ed.). Inaddition, there are triable issues of material fact as to whether defendantThomas obtained satisfactory evidence to satisfy her duty of care. [See,Defendant Thomas’ Add’l UMF Nos. 11, 12, 13, 14, 15, 16, 17, 18, 19 and20.]Moving party to give notice.11 Shahbazi v.KabirDemurrer to Complaint: See belowThe demurrers of Nahid Kabir, Arian Ezzat, and Farzana Z. Ezzat to plaintiffBehnaz Sheila Shahbazi’s complaint are SUSTAINED with 15 days leave toamend.The demurrers of Zaman Kabir and Kabir’s Investment Corp. areOVERRULED.The motion to strike of Nahid Kabir, Arian Ezzat, and Farzana Z. Ezzat ismoot. As for the motion to strike of Zaman Kabir and Kabir’s InvestmentCorp., it is granted with 15 days leave to amend as to Plaintiff’s prayer forattorneys’ fees; it is otherwise denied.The motion to compel Mr. Kabir to provide responses without objection to

Plaintiff’s production request is GRANTED. Responses without objection areto be served with 20 days. Sanctions are DENIED. Plaintiff is to give notice.Plaintiff’ has failed to provide an effective proof of service showing discoveryon 3/22. The original stated the wrong date of service and execution and theamended proof of service stated the wrong date of execution. However,Plaintiff’s attorney declares under penalty of perjury that the discovery wassigned on 3/22 and her Ex.4 confirms this, so it is impossible for it to havebeen served on 3/21. Service of responses waives the proof of servicedefects as to Mr. Kabir.This motion is actually a motion for a further response without objection, butDefendant clearly was not misled by Plaintiff’s citation to the wrongauthority. Both sides are fully cognizant of the nature of the dispute. Aseparate statement under CRC 3.1345(a) is only required if the content ofthe discovery is at issue. The content of the objections is not at issue; onlythe fact that there were objections. A separate statement would not benefitthe Court.As the discovery had been withdrawn as to Ms. Kabir and Kabir Investments,the service of a response was ineffective. Plaintiff must re-serve thediscovery unless the parties agree otherwise.Sanctions are denied. The notice of motion did not request sanctions.Moving party to give notice.

TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraJuly 11, 2013Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be postedon all law and motion matters. Please read these rules carefully. Do not call the Department unless ALLparties submit on tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However,ongoing proceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THEDEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligentlyworking on posting the rulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counselintend to submit on the tentative and do not wish oral argument, please advise the courtroom assistant bycalling (657) 622-5215. If all sides submit on the tentative ruling and so advise the clerk, the tentativeruling shall become the court’s final ruling and the prevailing party shall give Notice of Ruling and preparean Order for the court’s signature, if appropriate under CRC 3.1312.Please be advised that the Orange County Superior Court still provides court reporters for civil law andmotion matters.1 Ultimate NewHome Sales &Marketing, Inc.v. TaschMotion to Strike or Tax Costs: GRANTSince this action is still pending against plaintiff/ cross-defendant UltimateNew Home Sales and cross-defendant Steven R. Kaller, cross-defendant IPSCcan only recover costs actually incurred by it or in its behalf in defending thecase. See, Fennessy v. DeLeuw-Cather Corporation (1990) 218 Cal.App.3d1192, 1196. The evidence demonstrates that the depositions were noticed byplaintiff Ultimate New Home Sales and thus it appears that cross-defendantIPSC did not incur the costs itself. Id. At best, the costs of these depositionsshould be prorated among the various cross-defendants. Id. However, nosuch argument or showing was made by responding party. Hence crossdefendantIPSC’s claim of $4,970.20 in statutory costs is taxed in the sum of$3,053.23 as to deposition costs for Eric Altschuler, Tom Reiser, James Black,Paul Rae Danielson, as well as service of process and witness fees as to EricAltschuler. Moving parties to give notice.Moving party to give notice.3 Lee v. Ybarra Defendant’s motion to compel a further response to its request forproduction: DENIED without prejudice to the right of either party to seek toenforce the agreement of the parties for mutual production of phone recordswith a portion of the phone numbers redacted to protect privacy rights ofthird parties. The requests of both parties for sanctions are DENIED. .Counsel for both parties had agreed during meet and confer negotiations to amutual exchange of telephone records to be redacted to protect privacy

interests. To ignore these limitations is the equivalent of failure to meet andconfer in good faith.There was no meeting of the minds regarding a time for the mutualexchange. The 4/11 letter from Mr. Samani concerned and agreement to“endeavor” to exchange documents on 5/24, subject to latermodification. The Court notes that the parties agreed to continue the motionto compel deadline to 5/17, before the anticipated production date.As the parties had both obtained the necessary documents earlier, it was notunreasonable to negotiate an earlier production date. It is now well after4/24 and the parties have had plenty of time to redact the documents toprotect 3d party privacy. Therefore, the agreement for a mutual productioncan be enforced. Because of the redaction, the Court sees no need for aprotective order.In addition, the parties had agreed to a 5/8 deposition date. The amendednotice that included a production demand was served on 4/22 (Defendant’sEx. G) and no timely objection to it was made. There is no showing thedocuments had not yet been received or that the amended notice had notbeen received by the office of Lee & Associates well in advance of thedeposition date, i.e., no showing that counsel had insufficient time to redactthe documents before the deposition.Responding party to give notice.4 Gregory v.FrancoMotion for Leave to Conduct Discovery: DENIED without prejudice.Plaintiff has not provided sufficient evidence at this time to meet his burdento show that he is very likely to recover punitive damages fromDefendant. Jabro v. Superior Court (2002) 95 Cal.App.4th 754,Plaintiff’s burden is to prove that recovery of punitive damages is “very likely”or “a strong likelihood.” Id. at 758. However, CC §3295(c) requires that thefacts be shown by “affidavits” and even under the lesser standard of CollegeHospital v. Superior Court (1994) 8 Cal.4th 704, the evidence must be“competent, admissible evidence.” Id. at 719.Jabro is the only authority cited that is on point and therefore it iscontrolling. In addition, the court disagrees with Weil & Brown’s commentthat there is no basis for distinguishing College Hospital. Jabro citedlegislative history in support of its analysis and the Court believes that thefact that its determination is inadmissible at trial under §3295 is an importantdistinction.Plaintiff depends heavily on the facts stated in the police report of theincident, i.e., on double and triple hearsay. Although Defendant has notobjected at this time, it is unlikely that at trial he will be allowed to presentthis evidence to the jury.Two of the factors Plaintiff must prove are that Defendant knew when hebegan drinking that he would drive and that he was aware of theconsequences of drunk driving. BAJI 14.75 (2) & (4). Plaintiff entirely failsto address the second element, and the proof of the 4th is based solely uponan inference, that a police officer knows the risks of drunk driving. This isprobably true, but the inclusion of “drunk driving” related classes in all policeofficer training is not a fact of which the court can take judicial notice.

Should this case go to the jury with punitive damages at issue, defendant hasthe right to bifurcation of the punitive damages phase. However, the courthas no intention of staying the case after the jury finds that punitivedamages can be awarded so that discovery can be conducted. Defendant’sfinancial information can be subpoenaed for trial for production after and ifthe jury makes a finding of malice or oppression under Civil Code section3294.The Court notes that it has already rejected most of the contentions set forthin opposition to this motion in denying Defendant’s motion to strike on3/14/13. Defendant may not seek reconsideration of that decision except incompliance with CCP §1008.Responding party to give notice.5 Drees v.DiTommasoMotion for Leave to File First Amended Cross-Complaint: GRANTCross-complainants are to file and serve their 1st Amended Cross-complaintwithin five court days.Trial is 9 months away and no prejudice resulting from delay in amending hasbeen shown. There is no showing that any relevant depositions have takenplace. There is no prejudice in having to pursue discovery regarding theindemnity agreement because such discovery would have been required evenif the contract cause of action had been included in the original crosscomplaint.Cross-defendant’s cases involve requests on the eve of trial, attrial or at a second trial. Bringing Lamar Advertising Company back in is notprejudicial because Cross-complainants stipulate that they dismiss it againimmediately.Moving party is to give notice.6 Bathas v.McCluskeyDemurrer to Complaint/Motion to Strike: See below1) Plaintiff Bathas’ demurrer to defendants’ answer to plaintiffs verified, firstamended complaint is overruled in part, sustained in part with leave toamend, and sustained in part without leave to amend. OVERRULED as todefendants’ first affirmative defense of failure to state a cause of action andsecond affirmative defense of failure to state a cause of action with specificityand particularity. An affirmative defense requires new matter that defendantsmust establish that could bar plaintiff Bathas’ causes of action. See, C.C.P. §431.30(b)(2). Failure to state, in either form, is grounds for a generaldemurrer that is never waived and is thus not an “affirmative” defense. Also,OVERRULED as to defendants’ ninth affirmative defense based on the statuteof limitations as several statutes do not have subdivisions or the subdivisionis pled. However, as to the statutes of limitations that have subdivisions thathave not been pled, the rules discussed in Davenport v. Stratton (1944) 24Cal.2d 232 would be applicable on summary judgment or otherwise.SUSTAINED, with leave to amend, as to defendants’ third affirmative defenseof unclean hands, fourth affirmative defense of laches, fifth affirmativedefense of estoppel, sixth affirmative defense of unjust enrichment, seventhaffirmative defense of privilege and justification, eight affirmative defense ofwrongful/negligent conduct, tenth affirmative defense of ratification, consentor approval, eleventh affirmative defense of failure to mitigate damages,twelfth affirmative defense of no equitable relief, thirteenth affirmativedefense of waiver, fourteenth affirmative defense of contractual preclusion,fifteenth affirmative defense of the statute of frauds, and sixteenthaffirmative defense of action in accord with law and public policy, defendants

have not stated sufficient facts to state any of these affirmative defenses atthis time. See, FPI v. Nakashima (1991) 231 Cal.App.3d 367, 384.Defendants are granted leave to amend to plead such supporting facts.Finally, SUSTAINED, without leave to amend, as to defendants’ seventeenthaffirmative defense of reservation to assert other affirmative defenses. This isnot an affirmative defense. Defendants retain the right to seek leave toamend their answer by noticed motion, pursuant to C.C.P. § 473, if factsduring discovery reveal that other affirmative defenses are applicable.Similarly, if defendants’ lack any supporting facts at this time to support all orsome of the foregoing affirmative defenses as to which leave to amend hasbeen granted, but such facts arise during discovery, leave to amend bynoticed motion may be sought at such time. Moving party to give notice.2) Plaintiff Bathas’ motion to strike portions of defendants’ answer toplaintiff’s verified, first amended complaint is moot in part, overruled inlimited part, and otherwise denied. Plaintiff’s motion to strike the 17affirmative defenses is MOOT as to all affirmative defenses except plaintiff’sfirst affirmative defense of failure to state a cause of action, secondaffirmative defense of failure to state with sufficient specificity andparticularity and ninth affirmative defense based on the statute of limitations.Also, a motion to strike is improper as to grounds that can be raised bygeneral demurrer is improper. See, Ferraro v. Carmarlinghi (2008) 161Cal.App.4 th 509, 529. Further, as to defendants’ first, second and ninthaffirmative defenses, these affirmative defenses sufficiently identify that theyare applicable to all causes of action in plaintiff’s complaint. GRANTED as tothe phrase “Civil Code § 3144” at page 10, line 24 of defendants’ answer toplaintiff’s verified, first amended complaint. Section 3144 has been repealedas plaintiff contends. DENIED as to striking defendants’ response toParagraphs 62, 123, 124, 125, 126, 127 and 128 of plaintiff’s first amendedcomplaint. A motion to strike is limited to the face of the complaint and itemssubject to judicial notice. See, C.C.P. § 437. The court notes that plaintiffBahas did not request that the court take judicial notice of any items insupport of its demurrer and/or motion to strike. A proper response to theseparagraphs cannot be determined from the face of the complaint. Also, theallegations in Paragraphs 62, 123, 124, 125, 126, 127 and 127 are vague,uncertain and/or compound.Moving party to give notice.Other Matter: The mandatory settlement conference on 6-14-13 wascontinued to 7-26-13. (See, 6-14-13 Minute Order.) On 7-5-13, plaintiffBathas filed an objection to defendants’ property appraiser Reginald Holly.The parties are ordered to agree upon an appraiser forthwith.7 McLaughlin v.Aurora LoanServices, LLCDemurrer to Complaint: See belowThe demurrer by defendants Aurora and Nationstar to plaintiff McLaughlin’sfirst amended complaint is SUSTAINED.SUSTAINED, without leave to amend, as to plaintiff’s first cause of action forbreach of oral contract because there cannot be an enforceable oralagreement to modify a mortgage loan. See, Civil Code §§ 1624(a)(6) and2922, as well as Secrest v. Security National Mortgage Loan 2002-2 (2008)167 Cal.App.4 th 544, 553.SUSTAINED, with 21 days final leave to amend, as to plaintiff McLaughlin’sremaining causes of action against these moving parties. As to plaintiff’s thirdcause of action for promissory estoppel against defendant Nationstar, plaintiffhas not pled sufficient facts as to the terms of an agreement sufficient to beenforceable and provide for a rational assessment of damages. See, Garcia v.World Savings, FSB (2010) 183 Cal.App.4 th 1031, 1045 and Laks v. CoastFederal Savings & Loan Ass’n (1976) 60 Cal.App.3d 885, 891. As to plaintiff

fourth cause of action for negligence, a duty can be stated, but plaintiff hasnot alleged sufficient facts that if her loan modification had been properlyprocessed she was have qualified and obtained a loan modification. See,Garcia v. Ocwen Loan Servicing, LLC 2010 WL 1881098 (N.D. Cal. 2010) andAnsanelli v. JP Morgan Chase Bank 2011 WL 1134451 (N.D. Cal. 2011). As toplaintiff’s fifth cause of action for negligent misrepresentation, plaintiff hasnot pled facts with the specificity and particularity required as to the allegedmisrepresentations made by representatives of both defendant Aurora anddefendant Nationstar, and facts as to how plaintiff relied on suchmisrepresentations to her actual detriment. As to plaintiff’s sixth cause ofaction for violation of Bus. & Prof. Code § 17200, plaintiff McLaughlin has notpled sufficient facts as to any unlawful, unfair or fraudulent conduct on thepart of defendants Aurora and/or Nationstar at this time. Finally, plaintiff isgranted leave to amend if she can state additional facts as to some potentialviolation of the Homeowner’s Bill of Rights Act. Plaintiff McLaughlin allegedthat she has a loan modification application pending as of February 2013 andthat this application has not been denied by defendant Nationstar, and thatdefendant Nationstar lacks a single point of contact. (See, FAC, 50, 51, 88and 89.) Given these allegations, plaintiff may be able to set forth furtherfacts to state some violation of the Homeowner’s Bill of Rights Act. Movingparty to give notice.Defendants’ Request for Judicial Notice: Defendants Aurora andNationstar requested that the court take judicial notice of the followingdocuments: Exhibit A, Deed of Trust recorded 2-6-07, Exhibit B, Notice ofDefault and Election to Sell Under Deed of Trust recorded 4-21-09, Exhibit C,Notice of Trustee’s Sale recorded 6-17-09, Exhibit D, Denial Letter of 12-6-10Terminating First Work-out Agreement, Exhibit E, Denial Letter of 5-3-11Terminating Third Work-up Agreement, Exhibit F, Plaintiff’s Chapter 13Bankruptcy Petition in Case No. 8:11-bk-15508-TA, and Exhibit G, Plaintiff’sChapter 7 Bankruptcy Petition in Case No. 8:11-bk-22699-TA. Defendants’request for judicial notice is granted in part and denied in part. GRANTED asto Exhibits A, B, C, F and G, but as to Exhibits A, B and C such notice islimited to the filing of these documents with the county recorder’s office andlegal effect but not as to the truth of the matters set forth therein. See,Evidence Code § 452(h) and Fontenot v. Wells Fargo Bank, N.A. (2011) 198Cal.App.4 th 256, 265. As to Exhibits F and G, such notice is limited to thebankruptcy docket being a true and correct docket and the filing of thesepleadings but not as to the truth of any claims or contentions set forththerein. See, Evidence Code § 452(d) and Day v. Sharp (1975) 50 Cal.App.3d904, 914. DENIED as to Exhibits D and E, the Work-out Agreements. Theseare simply evidentiary exhibits and plaintiff McLaughlin has not incorporatedportions of these exhibits or stated that they were approved by the publicutilities commission as occurred in the cases cited by defendants. See, AlignTechnology, Inc. v. Boa Tran (2009) 179 Cal.App.4 th 949, 956 to 957[settlement agreement], and Salvaty v. Falcon Cable Television (1985) 165Cal.App.3d 798, 800, fn. 1. [“It is true that the copies of the agreementproffered to the trial court were not certified. However, appellants referredrepeatedly to the agreement throughout their complaint, and alleged oninformation and belief that it had been approved by the commission. The trialcourt was given no reason to believe otherwise. Given the references to theagreement in the complaint, Falcon and Pacific were entitled to present thetrial court with the complete document.”]Defendant Quality Loan’s demurrer to plaintiff McLaughlin’s first amendedcomplaint is SUSTAINED without leave to amend.As to plaintiff’s second cause of action for slander of title, the recording of anotice of trustee’s sale is a privileged act. See, Civil Code § 2924(d)(2) andAlbertson v. Raboff (1956) 46 Cal.2d 375, 380 to 381. As to plaintiff’s fourthcause of action for negligence, this cause of action is similarly barred by theprivilege set forth at Civil Code §§ 47 and 2924(d)(2), as well as Silberg v.

Anderson (1990) 50 Cal. 3d 205, 215 to 216. Moving party to give notice.Defendant Quality Loan’s Request for Judicial Notice: Defendant QualityLoans requested that the court take judicial notice of the followingdocuments: Exhibit A, Deed of Trust recorded 2-6-07, Exhibit B, Notice ofDefault and Election to Sell Under Deed of Trust recorded 4-21-09, Exhibit C,Substitution of Trustee recorded 6-3-09, Exhibit D, Notice of Trustee’s Salerecorded 6-17-10, Exhibit E, Assignment of Deed of Trust from MERS toAurora recorded 1-3-11, Exhibit F, Notice of Trustee’s Sale recorded 8-9-11,and Exhibit G, Assignment of Deed of Trust from Nationstar Mortgage LLC asattorney in fact for Aurora Loan Services to Nationstar Mortgage, LLCrecorded 9-27-12. Defendant Quality Loan’s request for judicial notice shouldbe granted in part and denied in part. GRANTED as to Exhibits A, B, C, D, Eand F, but such notice is limited to the filing of these documents with thecounty recorder’s office and legal effect but not as to the truth of the mattersset forth therein. See, Evidence Code § 452(h) and Fontenot v. Wells FargoBank, N.A. (2011) 198 Cal.App.4 th 256, 265. DENIED as to Exhibit G becauseno Exhibit G was filed with the court.Other Matter: The case management conference was continued to 7-11-13to be hearing in conjunction with the demurrer by defendants Aurora andNationstar to plaintiff’s first amended complaint. The court intends on settinga trial date on this matter.8 Kinner v. OCUSD Demurrer to Complaint: TRANSFERRED to C22Pursuant to Cal. Rules of Court, Rule 3.300 (a), the court finds that this caseand the Petition for Writ of Mandate in Kinner v. Governing Board, 30-2012-00600599 are related cases. This case is transferred to the inventory ofJudge Shelia Fell in C22. Department C22 will reschedule the Demurrer andMotion for Protective Order.9 Moon v. Genile Motion to Strike Prayer for Punitive Damages: DENIED.Plaintiff has alleged an adequate factual basis to assert punitivedamages. The Exemplary Damages Attachment to the Complaint sets forththe requirements of Taylor v. Superior Court (1979)24 Cal.3d 890. See BAJI14.75.Plaintiff to give notice.11 Patty v. Piro Motion for Summary Judgment/Adjudication; Motion for Sanctions (x2): OFFCALENDAR12 Bank of the Westv. Zeen Plumbing& PipingMotion for Summary Judgment/Adjudication: GRANTPlaintiff’s Request for Judicial Notice is GRANTED.

The Motion for Summary Adjudication is GRANTED as to theFirst, Second, Fifth, Sixth, Seventh, Ninth and Tenth causes of action.Pursuant to C.C.P. § 437c (p) (1), Plaintiff met its burden as to those causesof action by proving each element of the causes of action. Defendants filedno Opposition and failed to show a triable issue of one or more material factsexisted as to the causes of action.Plaintiff shall prepare an order and give notice of this ruling.13 Dimacopoulos v.SternMotion for Summary Judgment/Adjudication The motion for summaryjudgment is GRANTED.Defendant is to give notice and file and serve a proposed judgment forthwith.Defendant has shown that the relationship giving rise to the complaint wasan illegal relationship under Bus. & Prof. Code §655. In addition, she haspresented evidence that Plaintiff was not authorized to write checks totaling$5650, refuting the allegations of the 3d C/A for slander by showing that thestatements were true.In addition, the lack of opposition reflects a conscious choice not to defend onthe merits and serves as an additional basis for granting themotion. Sacks v. FSR Brokerage Inc. (1992) 7 CA4th 950, 961.Under Yoo v. Jho (2007) 147 Cal.App.4th 1249, 1256-1257, neither party toan illegal agreement can enforce it. Therefore, the parties are to bear theirown costs.141516

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TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraJune 27, 2013Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be posted on alllaw and motion matters. Please read these rules carefully. Do not call the Department unless ALL parties submiton tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However, ongoingproceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THE DEPARTMENT FORTENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligently working on posting therulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counsel intend tosubmit on the tentative and do not wish oral argument, please advise the courtroom assistant by calling (657)622-5215. If all sides submit on the tentative ruling and so advise the clerk, the tentative ruling shall become thecourt’s final ruling and the prevailing party shall give Notice of Ruling and prepare an Order for the court’ssignature, if appropriate under CRC 3.1312.Please be advised that the Orange County Superior Court still provides court reporters for civil law and motionmatters.1 Goodman v.Neutra3 Castillo v. GarciaJuarezConstructionMotion to Strike or Tax Costs: OFF CALENDARMotions to Compel: See below1) Defendant GJC’s motion to compel further responses to specialinterrogatories by plaintiff Jose Castillo is CONTINUED to 7-25-13, at 2:00p.m., in Department C-15 because the defendant and plaintiff did not engagein a proper meet and confer before defendant’s motion was filed. See,Obregon v. Superior Court (1998) 67 Cal.App.4 th 424, 434 to 435. Counselfor the parties are ordered to meet and confer in person to seek to informallyresolve this discovery dispute. Such meet and confer shall be in conformancewith the principles set forth in Townsend v. Superior Court (1998) 61Cal.App.4 th 1431, namely, a meaningful discussion regarding the strengthsand weaknesses of each party’s position with the goal to informally resolvethis discovery dispute. If the parties cannot informally resolve this dispute,defendant GJC is ordered to file a supplemental brief of no more than 5pages, and a supplemental separate statement, addressing the nature of themeet and confer efforts and what special interrogatories remain in dispute,with such supplemental briefing to be filed 9 court days before the continuedhearing date. Plaintiff Castillo may file a supplemental brief in response of nomore than 5 pages, and a supplemental separate statement, 5 court daysbefore the continued hearing date. Moving party to give notice.2) Defendant GJC’s motion to compel further responses to specialinterrogatories by plaintiff Lamberto Encinas is CONTINUED to 7-25-13, at2:00 p.m., in Department C-15 because the defendant and plaintiff did notengage in a proper meet and confer before defendant’s motion was filed.See, Obregon v. Superior Court (1998) 67 Cal.App.4 th 424, 434 to 435. Thebalance is the same as Motion No. 1 of 7. Moving party to give notice.3) Defendant GJC’s motion to compel further responses to specialinterrogatories by plaintiff David Flores is CONTINUED to 7-25-13, at 2:00

p.m., in Department C-15 because the defendant and plaintiff did not engagein a proper meet and confer before defendant’s motion was filed. See,Obregon v. Superior Court (1998) 67 Cal.App.4 th 424, 434 to 435. Thebalance is the same as Motion No. 1 of 7. Moving party to give notice.4) Defendant GJC’s motion to compel further responses to specialinterrogatories by plaintiff Ivan Garcia is CONTINUED to 7-25-13, at 2:00p.m., in Department C-15 because the defendant and plaintiff did not engagein a proper meet and confer before defendant’s motion was filed. See,Obregon v. Superior Court (1998) 67 Cal.App.4 th 424, 434 to 435. Thebalance is the same as Motion No. 1 of 7. Moving party to give notice.5) Defendant GJC’s motion to compel further responses to specialinterrogatories by plaintiff Gonzalo Mendoza is CONTINUED to 7-25-13, at2:00 p.m., in Department C-15 because the defendant and plaintiff did notengage in a proper meet and confer before defendant’s motion was filed.See, Obregon v. Superior Court (1998) 67 Cal.App.4 th 424, 434 to 435. Thebalance is the same as Motion No. 1 of 7. Moving party to give notice.6) Defendant GJC’s motion to compel further responses to specialinterrogatories by plaintiff Alejandro Nunez is CONTINUED to 7-25-13, at2:00 p.m., in Department C-15 because the defendant and plaintiff did notengage in a proper meet and confer before defendant’s motion was filed.See, Obregon v. Superior Court (1998) 67 Cal.App.4 th 424, 434 to 435. Thebalance is the same as Motion No. 1 of 7. Moving party to give notice.7) Defendant GJC’s motion to compel further responses to specialinterrogatories by plaintiff Roberto Orozco is CONTINUED to 7-25-13, at 2:00p.m., in Department C-15 because the defendant and plaintiff did not engagein a proper meet and confer before defendant’s motion was filed. See,Obregon v. Superior Court (1998) 67 Cal.App.4 th 424, 434 to 435. Thebalance is the same as Motion No. 1 of 7.Moving party to give notice.5 Coastal RiskManagement,Inc. v. DoumadDemurrer to First Amended Complaint: See belowFirst Cause of Action for Breach of Contract: Overruled as to DefendantGeorge Douman. Sustained without leave to amend as to DefendantShahbazian Narmnaz. The contract, Exhibit A, is with DefendantServicemaster only. There is no mention of Coastal Risk Management. Thecontents of an exhibit prevail over the allegations of the complaint. Brakke v.Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 768.Second Cause of Action for Mechanic’s Lien Foreclosure:Overruled as to Defendant George Douman. Sustained without leave toamend as to Defendant Shahbazian Narmnaz. The notice of the Mechanic’sLien must include the “name and address of the owner or reputed owner.”[Civil Code § 8102 (a) (1)]. Exhibits B-1 and B-2 only named GeorgeDoumad as the owner.Third Cause of Action for Fraud: Overruled. Plaintiffs have complied withthe heighten pleading requirements for fraud. Lazar v. Superior Court (1996)12 Cal.4th 631, 645.Fourth Cause of Action for Quantum Meruit: Overruled. Plaintiffs allegedthe required elements for quantum merit. Drvol v. Bant (1960) 183

Cal.App.2d 351, 356-357.Uncertainty: “A demurrer for uncertainty is strictly construed, even where acomplaint is in some respects uncertain, because ambiguities can be clarifiedunder modern discovery procedures.” Khoury v. Maly's of California,Inc. (1993) 14 Cal.App.4th 612, 616. The Demurrer should be overruled onthis basis.Defendants shall file an Answer to the First Amended Complaint within fifteen(15) days.Moving party to give notice.6 Schuman v. Demurrer to Complaint: OFF CALENDARLandmark Hotels7 Franco v. Chen Motion for Leave to File First Amended Complaint: GRANTNo opposition filed. Where no prejudice is shown to the adverse party, theliberal rule of allowance prevails.” Higgins v. Del Faro (1981) 123 Cal.App.3d558, 564. “[I]t is an abuse of discretion to deny leave to amend where theopposing party was not misled or prejudiced by the amendment” . . .“Furthermore, ‘it is irrelevant that new legal theories are introduced as longas the proposed amendments ‘relate to the same general set of facts.’”Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.“Courts must apply a policy of liberality in permitting amendments at anystage of the proceeding, including during trial, when no prejudice to theopposing party is shown.” P & D Consultants, Inc. v. City of Carlsbad (2010)190 Cal.App.4th 1332, 1345.The proposed First Amended Complaint is deemed filed and served.Moving party to give notice.Motion to Strike: GRANT with 20 days leave to amendIn order to state a prima facie claim for punitive damages, a complaint mustset forth the elements as stated in the general punitive damage statute, CivilCode section 3294.” Turman v. Turning Point of Cent. California, Inc. (2010)191 Cal.App.4th 53, 63.Civil Code §3294(a) allows a plaintiff to seek punitive damages for“oppression, fraud, or malice.” Civil Code §3294(c) explains that malice isdefined as conduct which is intended to cause injury or despicable conductcarried on with a willful and conscious disregard of the rights or safety ofothers.“’Conscious disregard of rights is conduct by a defendant who is aware of theprobable dangerous consequences of such conduct to plaintiff's interests andwilfully and deliberately fails to avoid those consequences.’” Scott v. PhoenixSchools, Inc. (2009) 175 Cal.App.4th 702, 716-717.Conclusory characterization of defendant’s conduct as intentional, willful, andfraudulent is a patently insufficient statement of “oppression, fraud, ormalice” within the meaning of §3294. Brousseau v. Jarrett (1977) 73Cal.App.3d 864, 872.

Regardless of relaxed pleading criteria, “allegations that the Defendant’sconduct was wrongful, willful, wanton, reckless or unlawful do not support aclaim for exemplary damages; such allegations do not charge malice.” G.D.Searle & Co. v. Superior Court (1974) 49 Cal.App.3d 22, 29. In order tosurvive a motion to strike punitive damages, the Plaintiff must plead ultimatefacts to show it is entitled to such relief. Grieves v. Superior Court (1984)157 Cal.App.3d 159, 166.The allegations that defendant failed to restrain their dog with full knowledgeof its dangerous propensities and refused to disclose this fact to animalcontrol authorities are conclusory and without factual support. Theseboilerplate allegations do not support the claim for punitive damages.8 Shahbazi v.Clarion MortgageCapitalMoving party to give notice.Motion to Set Aside/Vacate Default and Judgment: See belowDefendant KIC’s motion to set aside default and default judgment is grantedin part and denied in part.GRANTED as the vacating the judgment on the ground that the damagesexceeded those pled in the complaint. Despite the pending appeal from thedefault judgment of 11-7-12, this court still has jurisdiction to entertain amotion to set aside a default judgment on the ground that the judgment isvoid. See, Svistunoff v. Svistunoff (1952) 108 Cal.App.2d 638, 641 to 642.Next, a default judgment is void when it exceeds the sum set forth in thecomplaint and/or statement of damages. See, David S. Karton, a Law Corp.v. Dougherty (2009) 171 Cal.App.4 th 133, 151 and Levine v. Smith (2006)145 Cal.App.4 th 1131, 1136. Even assuming the complaint set forth a properclaim for damages of $50,000.00, the claims for punitive damages andattorney’s fees were not properly noticed. While plaintiff Shahbazi served anotice of her claim for punitive damages by mail on 5-5-10 before the defaultof defendant KIC was entered on 6-1-10, such notice had to be served like asummons since defendant KIC has not appeared in this civil action and thereis no evidence of such service of this notice like a summons on defendant KICas required. See, C.C.P. § 425.115(c)(1). Also, plaintiff did not set forth aspecific sum in her prayer as to any sum of attorney’s fees sought. See,Feminist Woman’s Health Center v. Blythe (1995) 32 Cal.App.4 th 1641, 1675.Also, even assuming the damages suffered portion of plaintiff Shahbazi’sjudicial form complaint, Section 11, was sufficient as to notice, the sumawarded still exceeds the sum of $50,000.00 in damages set forth inplaintiff’s complaint. Even deducting the $20,000.00 from the judgmentrelating to punitive damages, this leaves the sum of $152,227.71, which is inexcess of the sum of $50,000.00 demanded in plaintiff Shahbazi’s complaint.Therefore the judgment in favor of plaintiff Shahbazi of $172,227.51 againstdefendant KIC is void because it violates the limits set forth in C.C.P. §580(a).The court notes that the other grounds raised by defendant KIC for relieffrom default and default judgment lack merit. As to attorney fault, theevidence demonstrates that attorney Llorente did not undertake to representdefendant KIC until he drafted an answer on behalf of KIC, which was afterdefendant KIC’s default had been entered. See, Cisneros v. Vueve (1995) 37Cal.App.4 th 906, 912. As to discretionary relief, no mistake, inadvertence,surprise or excusable neglect is shown. See, Generale Bank Nederland, N.V.v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4 th 1384, 1402. Also, withdiscretionary relief, relief from default has to be within six months from theentry of default, not the default judgment. See, C.C.P. § 473(b). As toextrinsic fraud, attorney Llorente is not shown to have been representingdefendant KIC when its default was entered. Also, ignorance of the law doesnot support relief based on extrinsic fraud/mistake. See, Stiles v. Wallis(1983) 147 Cal.App.3d 1143, 1147. Finally, plaintiff Shahbazi’s complaintstates sufficient facts to state at least a cause of action for breach of fiduciary

duty against defendant KIC as agent for co-defendant broker ClarionMortgage. See, Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 782.Defendant KIC’s motion is DENIED as to setting aside the default. Ajudgment void because it exceeds the sums pled does not affect theunderlying default. See, Ostling v. Loring (1994) 27 Cal.App.4 th 1731, 1743.When a judgment is vacated on the ground that the judgment exceededthose pled, the appropriate action is to modify the judgment to the maximumwarranted by the complaint. Id. Based on the prior default package submittedin this case against defendant KIC, the sum of $50,000.00 is warranted underthis complaint. Thus the judgment is modified as against defendant KIC tothe sum of $50,000.00 and prejudgement interest. Plaintiff Shahbazi isordered to submit an amended judgment in conformance with this court’sruling within 21 days. In addition, this portion of the motion is areconsideration of the motion previously denied. Moving party to givenotice.Defendant KIC’s Objection to Plaintiff Shahbazi’s Opposition:Defendant KIC requested that the court not consider plaintiff’s oppositionbecause it was e-filed after 4:00 p.m. on 6-14-13, and was not received bydefense counsel by the next business day. Defendant KIC filed a full writtenopposition on the merits, which was served on 6-19-13, a day beforedefendant’s opposition had to be filed and served. Hence no prejudice by anylate receipt of plaintiff Shahbazi’s opposition is shown. Thus defendant KIC’srequest that the court not consider plaintiff’s late-filed opposition isdenied.Defendant KIC’s Request for Judicial Notice: Defendant KIC requestedthat the court take judicial notice of the following documents: Exhibit 1,Plaintiff’s Complaint filed 3-25-10, Exhibit 2, Defendant KIC’s Motion toVacate Default filed 6-9-10, Exhibit 3, Plaintiff’s Reservation of Rights to SeekPunitive Damages on Default Judgment, Exhibit 4, Judgment againstDefendant KIC filed 11-7-12, and Exhibit 5, Court’s Minute Order of 7-8-10.GRANTED as to Exhibits 1, 2, 3, 4 and 5, but as to Exhibits 1, 2 and 3 suchnotice is limited to the filing of these pleadings with the court but not as tothe truth of the claims and contentions set forth therein. See, Evidence Code§ 452(d) and Day v. Sharp (1975) 50 Cal.App.3d 904, 914.9 La v. AvecNightclubMoving party to give notice.Motion for Summary Judgment: DENYDefendant Avec’s motion for summary judgment is DENIED because it failedto carry its initial burden of proof and persuasion on both duty and causation.See, Evidence Code § 500 and Aguilar v. Atlantic Richfield Co. (2001) 25Cal.App.4 th 826, 851. As to duty, defendant Avec only presented admissibleevidence that no other patron had stabbed another patron at Avec Nightclubsince it started operation in 2009. This does not negate a stabbing by anemployee of a patron, or assaults by a patron on another patron using a gun,club or other instrument, which would constitutes similar incidents bearing onthe issue of foreseeability in establishing duty. Also, the evidence presentedindicates that the initial altercation started at one location and then moved toencompass plaintiff La. [See, Defendant Avec’s UMF Nos. 9 and 11.]Defendant Avec set forth that it had 10 security guards in the club tomaintain order. [See, Defendant Avec’s UMF No. 6.] One theory asserted inplaintiff La’s complaint is negligent failure to break up fights at the club. InCastenada, the court explained that only after the scope of the duty isdefined can the court meaningfully undertake a balancing analysis of the risksand burdens to determine the duty owed by the landlord. Defendant has notpresented sufficient evidence as to the nature of the response of 10 securityguards, what its 33 security cameras showed, how the 33 security cameraswere monitored, and similar facts so that the court can determine the dutyowed and whether defendant’s security satisfied this duty. If the moving

party cannot met its burden, then the opposing party has no burden tooppose the motion by submitting evidence demonstrating that triable issuesof fact exist in the case. See, Binder v. Aetna Life Ins. Co. (1999) 75 Cal.4 th832, 840. As to causation, causation is generally a triable issue of materialfact. See, Nola M. v. University of Southern California (1993) 16 Cal.App.4 th421, 427 to 428. Whether defendant’s 10 security guards in the club properlyresponded the break out of the altercation that eventually involved plaintiffLa creates a triable issue of fact. Next, even assuming that defendant Avecmet its initial burden, the only witness as to lack of prior similar events is Ms.Nguyen. C.C.P. § 437c(e) provides that when there is a sole witness to amaterial fact, the court has the discretion to deny summary judgment.Finally, defendant Avec did not carry its burden of demonstrating that plaintiffcannot reasonably obtain evidence bearing on the issues of duty andcausation. See, Gaggero v. Yura (2003) 108 Cal.App.4 th 884, 893. TheGaggero court explained that: “Because Yura neither presented evidencemaking a prima facie case that Gaggero did not possess, and reasonablycould not obtain, evidence of his financial ability to perform under thePurchase Agreement, nor evidence conclusively negating this element, Yurafailed to meet her burden of production and the grant of summary judgmenton this basis cannot stand.” Id., at 893. While plaintiff La did not presentadmissible evidence demonstrating that a triable issue of material fact exists,defendant Avec did not carry its burden of demonstrating that plaintiff Lacould not obtain such evidence, particularly in light of the defendant securitycompany being added as defendant Doe 1 in this case.Plaintiff to give notice.Plaintiff La’s Evidentiary Objections: Declaration of Connie Nguyen:OVERRULE Objection No. 1. “Declaration” of Attorney Daniel Heaton:Plaintiff objected to defendant’s memorandum at p. 7, lines 11 to 12.Defendant’s memorandum prepared by defense counsel is argument, noevidence. Thus plaintiff’s Objection No. 2 is OVERRULED.Defendant Avec’s Evidentiary Objections: Defendant Avec’s evidentiaryobjections are OVERRULED. First, objections are to the evidence not theseparate statement. Second, plaintiff La cited no evidence to demonstrateany triable issue of material fact exists. Third, the objections are irrelevantbecause defendant Avec’s motion was denied on the ground of failure to meetits initial burden on the admissible evidence presented.10 Old RepublicNational TitleIns. v. ThomasThe Motion for Summary Judgment is DENIED. Pursuant to Civ. Proc. Code §437c (p) (2)/Defendant Western Surety failed to prove that Defendant Thomas was notnegligent.A proper reading of Civil Code § 118 demonstrates that a notary establishesreasonable reliance if he or she relied upon a valid California Driver’s License(“issued by the Department of Motor Vehicles.”) Plaintiff has submitted adeclaration from the real Ming Li showing that he did not even have aCalifornia Driver’s License. It appears undisputed that the license relied uponwas a forgery. Undisputed Facts Nos. 30, 31 & 32 creates triable issues ofmaterial fact.Defendant Thomas’ Joinder is granted, but the Summary Judgment is alsodenied as to her.Plaintiff to give notice.

TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraJune 27, 2013Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be posted on alllaw and motion matters. Please read these rules carefully. Do not call the Department unless ALL parties submiton tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However, ongoingproceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THE DEPARTMENT FORTENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligently working on posting therulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counsel intend tosubmit on the tentative and do not wish oral argument, please advise the courtroom assistant by calling (657)622-5215. If all sides submit on the tentative ruling and so advise the clerk, the tentative ruling shall become thecourt’s final ruling and the prevailing party shall give Notice of Ruling and prepare an Order for the court’ssignature, if appropriate under CRC 3.1312.Please be advised that the Orange County Superior Court still provides court reporters for civil law and motionmatters.3 Castillo v. GarciaJuarezConstructionMotions to Compel: See below1) Defendant GJC’s motion to compel further responses to specialinterrogatories by plaintiff Jose Castillo is CONTINUED to 7-25-13, at 2:00p.m., in Department C-15 because the defendant and plaintiff did not engagein a proper meet and confer before defendant’s motion was filed. See,Obregon v. Superior Court (1998) 67 Cal.App.4 th 424, 434 to 435. Counselfor the parties are ordered to meet and confer in person to seek to informallyresolve this discovery dispute. Such meet and confer shall be in conformancewith the principles set forth in Townsend v. Superior Court (1998) 61Cal.App.4 th 1431, namely, a meaningful discussion regarding the strengthsand weaknesses of each party’s position with the goal to informally resolvethis discovery dispute. If the parties cannot informally resolve this dispute,defendant GJC is ordered to file a supplemental brief of no more than 5pages, and a supplemental separate statement, addressing the nature of themeet and confer efforts and what special interrogatories remain in dispute,with such supplemental briefing to be filed 9 court days before the continuedhearing date. Plaintiff Castillo may file a supplemental brief in response of nomore than 5 pages, and a supplemental separate statement, 5 court daysbefore the continued hearing date. Moving party to give notice.2) Defendant GJC’s motion to compel further responses to specialinterrogatories by plaintiff Lamberto Encinas is CONTINUED to 7-25-13, at2:00 p.m., in Department C-15 because the defendant and plaintiff did notengage in a proper meet and confer before defendant’s motion was filed.See, Obregon v. Superior Court (1998) 67 Cal.App.4 th 424, 434 to 435. Thebalance is the same as Motion No. 1 of 7. Moving party to give notice.3) Defendant GJC’s motion to compel further responses to specialinterrogatories by plaintiff David Flores is CONTINUED to 7-25-13, at 2:00p.m., in Department C-15 because the defendant and plaintiff did not engagein a proper meet and confer before defendant’s motion was filed. See,

Obregon v. Superior Court (1998) 67 Cal.App.4 th 424, 434 to 435. Thebalance is the same as Motion No. 1 of 7. Moving party to give notice.4) Defendant GJC’s motion to compel further responses to specialinterrogatories by plaintiff Ivan Garcia is CONTINUED to 7-25-13, at 2:00p.m., in Department C-15 because the defendant and plaintiff did not engagein a proper meet and confer before defendant’s motion was filed. See,Obregon v. Superior Court (1998) 67 Cal.App.4 th 424, 434 to 435. Thebalance is the same as Motion No. 1 of 7. Moving party to give notice.5) Defendant GJC’s motion to compel further responses to specialinterrogatories by plaintiff Gonzalo Mendoza is CONTINUED to 7-25-13, at2:00 p.m., in Department C-15 because the defendant and plaintiff did notengage in a proper meet and confer before defendant’s motion was filed.See, Obregon v. Superior Court (1998) 67 Cal.App.4 th 424, 434 to 435. Thebalance is the same as Motion No. 1 of 7. Moving party to give notice.6) Defendant GJC’s motion to compel further responses to specialinterrogatories by plaintiff Alejandro Nunez is CONTINUED to 7-25-13, at2:00 p.m., in Department C-15 because the defendant and plaintiff did notengage in a proper meet and confer before defendant’s motion was filed.See, Obregon v. Superior Court (1998) 67 Cal.App.4 th 424, 434 to 435. Thebalance is the same as Motion No. 1 of 7. Moving party to give notice.7) Defendant GJC’s motion to compel further responses to specialinterrogatories by plaintiff Roberto Orozco is CONTINUED to 7-25-13, at 2:00p.m., in Department C-15 because the defendant and plaintiff did not engagein a proper meet and confer before defendant’s motion was filed. See,Obregon v. Superior Court (1998) 67 Cal.App.4 th 424, 434 to 435. Thebalance is the same as Motion No. 1 of 7.Moving party to give notice.5 Coastal RiskManagement,Inc. v. DoumadDemurrer to First Amended Complaint: See belowFirst Cause of Action for Breach of Contract: Overruled as to DefendantGeorge Douman. Sustained without leave to amend as to DefendantShahbazian Narmnaz. The contract, Exhibit A, is with DefendantServicemaster only. There is no mention of Coastal Risk Management. Thecontents of an exhibit prevail over the allegations of the complaint. Brakke v.Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 768.Second Cause of Action for Mechanic’s Lien Foreclosure:Overruled as to Defendant George Douman. Sustained without leave toamend as to Defendant Shahbazian Narmnaz. The notice of the Mechanic’sLien must include the “name and address of the owner or reputed owner.”[Civil Code § 8102 (a) (1)]. Exhibits B-1 and B-2 only named GeorgeDoumad as the owner.Third Cause of Action for Fraud: Overruled. Plaintiffs have complied withthe heighten pleading requirements for fraud. Lazar v. Superior Court (1996)12 Cal.4th 631, 645.Fourth Cause of Action for Quantum Meruit: Overruled. Plaintiffs allegedthe required elements for quantum merit. Drvol v. Bant (1960) 183Cal.App.2d 351, 356-357.

Uncertainty: “A demurrer for uncertainty is strictly construed, even where acomplaint is in some respects uncertain, because ambiguities can be clarifiedunder modern discovery procedures.” Khoury v. Maly's of California,Inc. (1993) 14 Cal.App.4th 612, 616. The Demurrer should be overruled onthis basis.Defendants shall file an Answer to the First Amended Complaint within fifteen(15) days.Moving party to give notice.6 Schuman v. Demurrer to Complaint: OFF CALENDARLandmark Hotels7 Franco v. Chen Motion for Leave to File First Amended Complaint: GRANTNo opposition filed. Where no prejudice is shown to the adverse party, theliberal rule of allowance prevails.” Higgins v. Del Faro (1981) 123 Cal.App.3d558, 564. “[I]t is an abuse of discretion to deny leave to amend where theopposing party was not misled or prejudiced by the amendment” . . .“Furthermore, ‘it is irrelevant that new legal theories are introduced as longas the proposed amendments ‘relate to the same general set of facts.’”Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.“Courts must apply a policy of liberality in permitting amendments at anystage of the proceeding, including during trial, when no prejudice to theopposing party is shown.” P & D Consultants, Inc. v. City of Carlsbad (2010)190 Cal.App.4th 1332, 1345.The proposed First Amended Complaint is deemed filed and served.Moving party to give notice.Motion to Strike: GRANT with 20 days leave to amendIn order to state a prima facie claim for punitive damages, a complaint mustset forth the elements as stated in the general punitive damage statute, CivilCode section 3294.” Turman v. Turning Point of Cent. California, Inc. (2010)191 Cal.App.4th 53, 63.Civil Code §3294(a) allows a plaintiff to seek punitive damages for“oppression, fraud, or malice.” Civil Code §3294(c) explains that malice isdefined as conduct which is intended to cause injury or despicable conductcarried on with a willful and conscious disregard of the rights or safety ofothers.“’Conscious disregard of rights is conduct by a defendant who is aware of theprobable dangerous consequences of such conduct to plaintiff's interests andwilfully and deliberately fails to avoid those consequences.’” Scott v. PhoenixSchools, Inc. (2009) 175 Cal.App.4th 702, 716-717.Conclusory characterization of defendant’s conduct as intentional, willful, andfraudulent is a patently insufficient statement of “oppression, fraud, ormalice” within the meaning of §3294. Brousseau v. Jarrett (1977) 73Cal.App.3d 864, 872.

Regardless of relaxed pleading criteria, “allegations that the Defendant’sconduct was wrongful, willful, wanton, reckless or unlawful do not support aclaim for exemplary damages; such allegations do not charge malice.” G.D.Searle & Co. v. Superior Court (1974) 49 Cal.App.3d 22, 29. In order tosurvive a motion to strike punitive damages, the Plaintiff must plead ultimatefacts to show it is entitled to such relief. Grieves v. Superior Court (1984)157 Cal.App.3d 159, 166.The allegations that defendant failed to restrain their dog with full knowledgeof its dangerous propensities and refused to disclose this fact to animalcontrol authorities are conclusory and without factual support. Theseboilerplate allegations do not support the claim for punitive damages.8 Shahbazi v.Clarion MortgageCapitalMoving party to give notice.Motion to Set Aside/Vacate Default and Judgment: See belowDefendant KIC’s motion to set aside default and default judgment is grantedin part and denied in part.GRANTED as the vacating the judgment on the ground that the damagesexceeded those pled in the complaint. Despite the pending appeal from thedefault judgment of 11-7-12, this court still has jurisdiction to entertain amotion to set aside a default judgment on the ground that the judgment isvoid. See, Svistunoff v. Svistunoff (1952) 108 Cal.App.2d 638, 641 to 642.Next, a default judgment is void when it exceeds the sum set forth in thecomplaint and/or statement of damages. See, David S. Karton, a Law Corp.v. Dougherty (2009) 171 Cal.App.4 th 133, 151 and Levine v. Smith (2006)145 Cal.App.4 th 1131, 1136. Even assuming the complaint set forth a properclaim for damages of $50,000.00, the claims for punitive damages andattorney’s fees were not properly noticed. While plaintiff Shahbazi served anotice of her claim for punitive damages by mail on 5-5-10 before the defaultof defendant KIC was entered on 6-1-10, such notice had to be served like asummons since defendant KIC has not appeared in this civil action and thereis no evidence of such service of this notice like a summons on defendant KICas required. See, C.C.P. § 425.115(c)(1). Also, plaintiff did not set forth aspecific sum in her prayer as to any sum of attorney’s fees sought. See,Feminist Woman’s Health Center v. Blythe (1995) 32 Cal.App.4 th 1641, 1675.Also, even assuming the damages suffered portion of plaintiff Shahbazi’sjudicial form complaint, Section 11, was sufficient as to notice, the sumawarded still exceeds the sum of $50,000.00 in damages set forth inplaintiff’s complaint. Even deducting the $20,000.00 from the judgmentrelating to punitive damages, this leaves the sum of $152,227.71, which is inexcess of the sum of $50,000.00 demanded in plaintiff Shahbazi’s complaint.Therefore the judgment in favor of plaintiff Shahbazi of $172,227.51 againstdefendant KIC is void because it violates the limits set forth in C.C.P. §580(a).The court notes that the other grounds raised by defendant KIC for relieffrom default and default judgment lack merit. As to attorney fault, theevidence demonstrates that attorney Llorente did not undertake to representdefendant KIC until he drafted an answer on behalf of KIC, which was afterdefendant KIC’s default had been entered. See, Cisneros v. Vueve (1995) 37Cal.App.4 th 906, 912. As to discretionary relief, no mistake, inadvertence,surprise or excusable neglect is shown. See, Generale Bank Nederland, N.V.v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4 th 1384, 1402. Also, withdiscretionary relief, relief from default has to be within six months from theentry of default, not the default judgment. See, C.C.P. § 473(b). As toextrinsic fraud, attorney Llorente is not shown to have been representingdefendant KIC when its default was entered. Also, ignorance of the law doesnot support relief based on extrinsic fraud/mistake. See, Stiles v. Wallis(1983) 147 Cal.App.3d 1143, 1147. Finally, plaintiff Shahbazi’s complaintstates sufficient facts to state at least a cause of action for breach of fiduciary

duty against defendant KIC as agent for co-defendant broker ClarionMortgage. See, Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 782.Defendant KIC’s motion is DENIED as to setting aside the default. Ajudgment void because it exceeds the sums pled does not affect theunderlying default. See, Ostling v. Loring (1994) 27 Cal.App.4 th 1731, 1743.When a judgment is vacated on the ground that the judgment exceededthose pled, the appropriate action is to modify the judgment to the maximumwarranted by the complaint. Id. Based on the prior default package submittedin this case against defendant KIC, the sum of $50,000.00 is warranted underthis complaint. Thus the judgment is modified as against defendant KIC tothe sum of $50,000.00 and prejudgement interest. Plaintiff Shahbazi isordered to submit an amended judgment in conformance with this court’sruling within 21 days. In addition, this portion of the motion is areconsideration of the motion previously denied. Moving party to givenotice.Defendant KIC’s Objection to Plaintiff Shahbazi’s Opposition:Defendant KIC requested that the court not consider plaintiff’s oppositionbecause it was e-filed after 4:00 p.m. on 6-14-13, and was not received bydefense counsel by the next business day. Defendant KIC filed a full writtenopposition on the merits, which was served on 6-19-13, a day beforedefendant’s opposition had to be filed and served. Hence no prejudice by anylate receipt of plaintiff Shahbazi’s opposition is shown. Thus defendant KIC’srequest that the court not consider plaintiff’s late-filed opposition isdenied.Defendant KIC’s Request for Judicial Notice: Defendant KIC requestedthat the court take judicial notice of the following documents: Exhibit 1,Plaintiff’s Complaint filed 3-25-10, Exhibit 2, Defendant KIC’s Motion toVacate Default filed 6-9-10, Exhibit 3, Plaintiff’s Reservation of Rights to SeekPunitive Damages on Default Judgment, Exhibit 4, Judgment againstDefendant KIC filed 11-7-12, and Exhibit 5, Court’s Minute Order of 7-8-10.GRANTED as to Exhibits 1, 2, 3, 4 and 5, but as to Exhibits 1, 2 and 3 suchnotice is limited to the filing of these pleadings with the court but not as tothe truth of the claims and contentions set forth therein. See, Evidence Code§ 452(d) and Day v. Sharp (1975) 50 Cal.App.3d 904, 914.9 La v. AvecNightclubMoving party to give notice.Motion for Summary Judgment: DENYDefendant Avec’s motion for summary judgment is DENIED because it failedto carry its initial burden of proof and persuasion on both duty and causation.See, Evidence Code § 500 and Aguilar v. Atlantic Richfield Co. (2001) 25Cal.App.4 th 826, 851. As to duty, defendant Avec only presented admissibleevidence that no other patron had stabbed another patron at Avec Nightclubsince it started operation in 2009. This does not negate a stabbing by anemployee of a patron, or assaults by a patron on another patron using a gun,club or other instrument, which would constitutes similar incidents bearing onthe issue of foreseeability in establishing duty. Also, the evidence presentedindicates that the initial altercation started at one location and then moved toencompass plaintiff La. [See, Defendant Avec’s UMF Nos. 9 and 11.]Defendant Avec set forth that it had 10 security guards in the club tomaintain order. [See, Defendant Avec’s UMF No. 6.] One theory asserted inplaintiff La’s complaint is negligent failure to break up fights at the club. InCastenada, the court explained that only after the scope of the duty isdefined can the court meaningfully undertake a balancing analysis of the risksand burdens to determine the duty owed by the landlord. Defendant has notpresented sufficient evidence as to the nature of the response of 10 securityguards, what its 33 security cameras showed, how the 33 security cameraswere monitored, and similar facts so that the court can determine the dutyowed and whether defendant’s security satisfied this duty. If the moving

party cannot met its burden, then the opposing party has no burden tooppose the motion by submitting evidence demonstrating that triable issuesof fact exist in the case. See, Binder v. Aetna Life Ins. Co. (1999) 75 Cal.4 th832, 840. As to causation, causation is generally a triable issue of materialfact. See, Nola M. v. University of Southern California (1993) 16 Cal.App.4 th421, 427 to 428. Whether defendant’s 10 security guards in the club properlyresponded the break out of the altercation that eventually involved plaintiffLa creates a triable issue of fact. Next, even assuming that defendant Avecmet its initial burden, the only witness as to lack of prior similar events is Ms.Nguyen. C.C.P. § 437c(e) provides that when there is a sole witness to amaterial fact, the court has the discretion to deny summary judgment.Finally, defendant Avec did not carry its burden of demonstrating that plaintiffcannot reasonably obtain evidence bearing on the issues of duty andcausation. See, Gaggero v. Yura (2003) 108 Cal.App.4 th 884, 893. TheGaggero court explained that: “Because Yura neither presented evidencemaking a prima facie case that Gaggero did not possess, and reasonablycould not obtain, evidence of his financial ability to perform under thePurchase Agreement, nor evidence conclusively negating this element, Yurafailed to meet her burden of production and the grant of summary judgmenton this basis cannot stand.” Id., at 893. While plaintiff La did not presentadmissible evidence demonstrating that a triable issue of material fact exists,defendant Avec did not carry its burden of demonstrating that plaintiff Lacould not obtain such evidence, particularly in light of the defendant securitycompany being added as defendant Doe 1 in this case.Plaintiff to give notice.Plaintiff La’s Evidentiary Objections: Declaration of Connie Nguyen:OVERRULE Objection No. 1. “Declaration” of Attorney Daniel Heaton:Plaintiff objected to defendant’s memorandum at p. 7, lines 11 to 12.Defendant’s memorandum prepared by defense counsel is argument, noevidence. Thus plaintiff’s Objection No. 2 is OVERRULED.Defendant Avec’s Evidentiary Objections: Defendant Avec’s evidentiaryobjections are OVERRULED. First, objections are to the evidence not theseparate statement. Second, plaintiff La cited no evidence to demonstrateany triable issue of material fact exists. Third, the objections are irrelevantbecause defendant Avec’s motion was denied on the ground of failure to meetits initial burden on the admissible evidence presented.10 Old RepublicNational TitleIns. v. ThomasThe Motion for Summary Judgment is DENIED. Pursuant to Civ. Proc. Code §437c (p) (2)/Defendant Western Surety failed to prove that Defendant Thomas was notnegligent.A proper reading of Civil Code § 118 demonstrates that a notary establishesreasonable reliance if he or she relied upon a valid California Driver’s License(“issued by the Department of Motor Vehicles.”) Plaintiff has submitted adeclaration from the real Ming Li showing that he did not even have aCalifornia Driver’s License. It appears undisputed that the license relied uponwas a forgery. Undisputed Facts Nos. 30, 31 & 32 creates triable issues ofmaterial fact.Defendant Thomas’ Joinder is granted, but the Summary Judgment is alsodenied as to her.Plaintiff to give notice.

TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraJune 20, 2013Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be posted on alllaw and motion matters. Please read these rules carefully. Do not call the Department unless ALL parties submiton tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However, ongoingproceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THE DEPARTMENT FORTENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligently working on posting therulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counsel intend tosubmit on the tentative and do not wish oral argument, please advise the courtroom assistant by calling (657)622-5215. If all sides submit on the tentative ruling and so advise the clerk, the tentative ruling shall become thecourt’s final ruling and the prevailing party shall give Notice of Ruling and prepare an Order for the court’ssignature, if appropriate under CRC 3.1312.Please be advised that the Orange County Superior Court still provides court reporters for civil law and motionmatters.2 Bank of the Westv. Zeen Plumbingand Piping CoMotion to Be Relieved as Counsel of Record: GRANTCounsel shall serve the Order on the clients.3 Patty v. Piro Motion for Sanctions: CONTINUED to 7/11/134 Harper v.Canyon HillsCommunityAssociationThe motion for attorney fees is GRANTED in part.Defendant is awarded $196,541 in attorney fees. Defendant has notresponded to Plaintiff’s challenges to the claim, so they are sustained. Asthere is no reply and no need for a hearing, no additional amount is awarded.Moving party to give notice.

5 First AmericanTitle Ins. Co. v.PhillipsMotion to Compel Production: DENYThe requested documents have some marginal relevance. However, FirstAmerican can obtain information concerning damages from other sources,such as Defendant Phillips. In balancing the competing interests, the courtmust protect the financial privacy of the third party.“A showing of direct relevancy may trigger a balancing by the court of theneed for the discovery against the fundamental right of privacy, but ‘thebalance will favor privacy for confidential information in third party ... filesunless the litigant can show a compelling need for the particulardocuments and that the information cannot reasonably be obtainedthrough depositions or from nonconfidential sources.’” OmbudsmanServices of Northern California v. Superior Court (2007) 154 Cal.App.4th1233, 1251. (Internal citations omitted, emphasis added.)Examination of the profit and expense of a competitor would be bad publicpolicy. See Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 999 [profitmargin of law firm using contract attorneys.] The fact that Fidelity may havemade more income does not establish that the change was a result ofwrongdoing.Since both sides acted with substantial justification, the court declines toaward sanctions.Responding party to give notice.6 Gilliam v. Miller The motion to reconsider the Court’s 5/16/13 order is CONTINUED to7/18/13.At the 5/16 hearing, the Court posed some questions to Plaintiff withoutgiving him time to respond to them. In addition, the Court has reconsideredthe legislative comments to §708.620 and §564 and believes it may havemisinterpreted legislative intent.Former §564 permitted a receivership to aid in execution but included certainprerequisites, i.e., that an execution be returned unsatisfied or that thedebtor refuse to apply property to the satisfaction of the judgment. The1982 comments to comment to §564 and §708.620 appear to reject Olsan v.Comora (1977) 73 Cal.App.3d 642 only to the extent that it held that thoseprerequisites must be met. Its holding that a receiver can be used to enforcea money judgment was not rejected.In place of §564, the legislature provided a more broadly wordedstatute, §708.620, which permits a receiver to enforce a judgment if this is a“reasonable method to obtain the fair and orderly satisfaction of thejudgment.” As the Court must take into consideration the interests of boththe Plaintiff and Defendants under this statute, it is important that propernotice and opportunity to appear has been given to the Defendants.This motion was served by mail only 17 court days prior to the hearing, not16 days plus 5 for mailing as required by CCP §1005(b). The proof of servicerecites service by FAX to the FAX numbers “listed above” but no numbers arelisted. Also, FAX service extends the notice period by two days, not one.The motion was served to Defendants’ attorney at “#A” whereas Courtrecords show his address of record to include “Suite C.” Plaintiff is to reservethe motion along with notice of ruling unless he can confirm withcounsel that he actually received it, in which case proof of service shouldinclude a declaration showing Plaintiff’s confirmation of receipt.

In addition, the proposed order permits the receiver to take possession of allDefendants’ assets, whether exempt or not. This must be rectified. Theorder provides for receiver fees to be paid from the “estate” but the ordermust make it clear that they are not to be added to the judgment, and if theestate is insufficient to pay them, Plaintiff must do so.Plaintiff is to give notice of this ruling and all the language contained hereinno later than 6/21/13.7 WilsonAutomotive Inc.,v. Mercedes-BenzPursuant to C.C.P. 2025.450 and 2023.010, the Motion to Compel isGRANTED.Defendant’s Person Most Qualified shall appear for a deposition and producedocuments at the office of Plaintiff’s attorney on or before July 3, 2013. Ifthe parties are incapable of selecting a time and date, the court will do so.Defendant failed to cooperate with the scheduling of thedeposition. Defendant should have promptly provided alterative dates for thedeposition. Plaintiff should have communicated by e-mail or fax.Within fifteen (15) days, Defendant shall pay sanctions in the sum of$1,442.00 ($1000.00 for attorney fees + $352.00 for non- appearance fee +$60.00 filing fee + $30.00 reporter fee.)8 Aames GeneralStore Inc. v. B/EAerospaceMoving party to give notice.Plaintiff Aames General Store’s motion for leave to file its first amendedcomplaint is GRANTED.See, C.C.P. § 473 and Morgan v. Superior Court (1959) 172 Cal.App.2d 527,530. While there was some delay, trial is not until 11-18-13 so unreasonabledelay and/or sufficient prejudice is not shown. Relatedly, plaintiff’s initialverified complaint placed defendant BE Aerospace on notice of a claim forover $500,000.00 in damages. (See, Verified Complaint, 39.) Next,defendant has not established that plaintiff’s proposed first amendedcomplaint is a sham. A review of plaintiff’s proposed first amended complaintindicates a claim for a broader agreement based on an oral contract, whilethe cause of action for breach of written contract is for lesser numbers basedon the purchase orders actually submitted. (See, Proposed First AmendedComplaint, 23, 24, 29, 30, 32 and 32.) Further, any contention thatplaintiff’s cause of action for breach of oral/implied contract fails to state acause of action should be raised by way of demurrer. See, Kittredge SportsCo. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048. Finally, defendantBE Aerospace’s request for sanctions is denied as plaintiff has now moreclearly set forth the nature of the contracts alleged to at issue while thedamages claims remain the range set forth in plaintiff’s initial verifiedcomplaint. (See, Plaintiff’s Proposed First Amended Complaint, 23, 33 and36 versus Plaintiff’s Initial Verified Complaint, 39, 53 and 56.) PlaintiffAames General Store is ordered to e-file, and serve, its first amendedcomplaint by Friday, 6-28-13. Defendant BE Aerospace will have 30 days torespond to plaintiff’s first amended complaint from service of that e-filedcomplaint.Moving party to give notice.9 PPC IrvineCenterInvestment LLCv. AmericanPlaintiff PPC Irvine’s motion for leave to file a first amended complaint isGRANTED.See, C.C.P. § 473 and Morgan v. Superior Court (1959) 172 Cal.App.2d 527,

Spectrum RealtyManagement LLC530. Plaintiff is ordered to e-file its first amended complaint within 5 days,and to serve all newly added parties within 30 days.Moving party to give notice.10 AAA SolarElectric, Inc. v.HeliotekDemurrer to Complaint: See belowAs to cross-complainant Heliotek Corporation, the demurrer by crossdefendantAAA Solar is SUSTAINED with 20 days conditional leave to amend.As to the first cause of action for breach of contract, the contract is shown tobe between cross-complainant Watson and AAA Solar. Also, the allegedbreaches were between cross-defendant AAA Solar and cross-complainantWatson, with insufficient facts as to any breach involving cross-complainantHeliotex Corporation. (See, Cross-complaint, 42.) Facts supporting breachmust be alleged since simply alleging breach is a legal conclusion. See,Bentley v. Mountain (1942) 51 Cal.App.2d 95, 98. As to breach of the impliedcovenant of good faith and fair dealing, facts as to any breach involvingcross-complainant Heliotex Corporation have not been alleged at this time.Also, since no independent fraud claim is currently pled, this cause of actionis simply duplicative of the cross-claim for breach of contract at this time.See, Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222Cal.App.3d 1371, 1401 to 1401. As to the third cause of action for fraud,misrepresentations made to cross-complainant Heliotex Corporation have notbeen sufficiently alleged, nor facts as to the name, authority and method ofpresentation of any purported misrepresentations as required with acorporate cross-defendant like AAA Solar. See, Tarmann v. State FarmMutual Auto Ins. Co. (1991) 2 Cal.App.4 th 153, 157. As to the fourth crossclaimfor conversion, no facts as to any property allegedly belonging to crosscomplainantHeliotex Corporation that was allegedly converted by crossdefendantAAA Solar have been stated at this time. The allegations are ofproperty owned by Watson being allegedly converted by cross-defendant AAASolar. As to violation of Bus. & Prof. Code § 17200, unlike cross-complainantWatson, cross-complainant Heliotex Corporation has not alleged facts as toloss of any money or property to establish standing by its to bring such aclaim at this time. Cross-complainant Heliotex is granted conditional leave toamend, pursuant to C.C.P. § 472a(c), only if Heliotex can alleged facts as tocontractual provisions involving it that were breached, purportedmisrepresentations made to Heliotex and the name and authority of theperson for cross-defendant AAA Solar who allegedly made suchmisrepresentations, some property allegedly owned by Heliotex, not cocross-complainantWatson, that was allegedly converted by cross-defendantAAA Solar, as well as some loss of money or property by cross-complainantHeliotex and not Watson. See, Bentley v. Mountain (1942) 51 Cal.App.2d 95,98, Tarmann v. State Farm Mutual Auto Ins. Co. (1991) 2 Cal.App.4 th 153,157, and Farmers Ins. Exch. v. Zerin (1997) 53 Cal.App.4 th 445, 451 to452.As to cross-complainant Watson, the demurrer by cross-defendant AAA Solaris overruled in part and sustained in part. OVERRULED as to Watson’s crossclaimsfor breach of contract, conversion and violation of Bus. & Prof. Code §17200. SUSTAINED as to Watson’s cross-claims for breach of the impliedcovenant of good faith and fair dealing and fraud with 20 days leave toamend. On the ground of misjoinder, the demurrer by cross-defendant AAASolar as to Watson’s cross-claims is OVERRULED. California courts have ruledthat a demurrer for misjoinder will be overruled if the defendant/crossdefendantshows no prejudice suffered or interests impaired by themisjoinder. See, Anaya v. Superior Court (1984) 160 CalApp.3d 228, 231. Nosuch prejudice is shown in this case. As to Watson’s first cross-claim forbreach of contract, cross-complainant Watson has alleged and incorporatedhis written employment agreement as Exhibit A, various alleged breaches ofthis agreement as to Watson by AAA Solar, that he satisfied all terms and

conditions, and damages. This is sufficient to state a cause of action forbreach of contract and sufficiently certain so that cross-defendant AAA Solarcan respond. As to the fourth cause of action for conversion, crosscomplainantWatson has alleged facts as to conversion of furniture, materialsand tools owned by him by cross-defendant AAA Solar, and refusal to returnsuch goods by AAA Solar despite request. This is sufficient to state a cause ofaction for conversion, and is sufficiently certain so that cross-defendant canrespond. As to violation of Bus. & Prof. Code § 17200, cross-complainantWatson’s conversion claim supports this UCL cause of action also, andWatson has standing as he has alleged that cross-defendant AAA Solar hasconverted property owned by him. Restitution of property is covered underthe UCL. This is thus sufficient to state a cause of action for violation of Bus.& Prof. Code § 17200 at this pleading stage, and sufficiently certain so thatcross-defendant AAA Solar can respond. As to the second cross-claim forbreach of the implied covenant of good faith and fair dealing, crosscomplainanthas not alleged sufficient facts as to some fraud that couldsupport such a claim in the absence of any insurance contract at issue orspecial relationship. See, Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11Cal.4 th 85, 102. But at this present time, this cause of action for breach of theimplied covenant of good faith and fair dealing is simply duplicative ofWatson’s first cross-claim for breach of contract. See, Careau & Co. v.Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1401 to1401. As to the third cause of action for fraud, cross-complainant Watson hasnot alleged sufficient facts as to who made the purported misrepresentationson behalf of cross-defendant AAA Solar, that person’s authority to speak onbehalf of AAA Solar, and/or whether such misrepresentations were oral inaddition to the contract. See, Tarmann v. State Farm Mutual Auto Ins. Co.(1991) 2 Cal.App.4 th 153, 157. Cross-complainant Watson is granted leave toamend to alleged sufficient facts as to some independent fraud that willsupport his claim for breach of the implied covenant of good faith and fairdealing, as well as sufficient facts to state a proper cause of action for fraudin the inducement in regard to a corporate defendant under the rulesdiscussed in Tarmann.Moving party to give notice.Cross-Complainants’ Request for Judicial Notice: Cross-complainantsHeliotek and Watson requested that the court take judicial notice of thefollowing documents: Exhibit 1, Cross-Complaint filed by cross-complainantsHeliotek and Watson filed on 3-29-13. GRANTED as to Exhibit 1, but suchjudicial notice of the cross-complaint by cross-complainants Heliotek andWatson is limited to the filing of this pleading with the court and not as to thetruth of any claims or contentions set forth therein. See, C.C.P. § 452(d) andDay v. Sharp (1975) 50 Cal.App.3d 904, 914.11 Euclid DiamondPlaza, LLC v.BioVine Inc.Demurrer to Complaint: SUSTAINED in part, with 20 days leave to amend.It appears that when defendants moved to a different suite, the re-writtenlease did not entirely reflect the terms intended and that further confusionoccurred in the drafting of this complaint. If the omissions in the factualhistory of the parties’ agreements are included by amendment, anyambiguity should be corrected.The Court does find, however, that Mai Le is estopped from asserting thestatute of frauds as a defense. Le has filed a cross-complaint on the basisthat this very agreement is a valid, enforceable, written contract, has initialedevery page of the document, has executed at least two of its pages and has

taken possession of the premises. Further, in making improvementsspecified in the lease, Euclid Diamond has materially changed its position inreliance upon the agreement. Accordingly, Le has waived any right to anaffirmative defense under CCP 1971.Moving party to give notice.12 Gore v. Grissom Demurrers to Cross-complaint: See belowWith regard to the Demurrers of Defendants William D. Chapman, Julander,Brown & Bollard, Smith Campbell Clifford Kearney Gore & Douglas Chapman,the court rules as follows:The Demurrer to the First, Second, Third & Fourth Cause of Action forRICO is SUSTAINED with fifteen (15) days leave to amend. Similar topleading Fraud, the RICO cause of action must “specifically plead the time,place or nature of the alleged communications constituting racketeeringactivity.” McMartin v. Children's Institute International (1989) 212 Cal.App.3d1393, 1408.The Demurrer to the Fifth Cause of Action for Actual Fraud isSUSTAINED with fifteen (15) days leave to amend. “In California, fraud mustbe pled specifically; general and conclusory allegations do not suffice. . . .This particularity requirement necessitates pleading facts which 'show how,when, where, to whom, and by what means the representations weretendered.' ” Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.The Demurrer to the Sixth Cause of Action for Breach of Fiduciary Duties isSUSTAINED with fifteen (15) days leave to amend. Grissom alleged that hesuffered actual loss of September 11, 2011. On 10/24/12, Grissom filed hisoriginal Cross-Complaint. Therefore, C.C.P. § 340.6, the one year statute oflimitation, bars this cause of action. Since this cause of action arises out ofthe same facts, the label of the cause of action does not change the statuteof limitations.Because Smith Campbell filed its cross-complaint, then the statute oflimitations tolls as to that firm. Sidney v. Superior Court (1988) 198Cal.App.3d 710, 715. As to other cross-defendants, there was no tolling,because they did not file a complaint. Trindade v. Superior Court (1973) 29Cal.App.3d 857, 859.The Demurrer is OVERRULED at to Smith Campbell and sustained withoutleave to amend as to the other cross-defendants.The Demurrer to the Seventh Cause of Action for Breach of Contract isOVERRULED at to Smith Campbell and sustained without leave to amend asto the other cross-defendants. This ruling is the same as the Sixth Cause ofAction.The Demurrer to the Eighth Negligent Cause of Action for Infliction ofEmotional Distress is OVERRULED at to Smith Campbell and sustainedwithout leave to amend as to the other cross-defendants. This ruling is thesame as the Sixth Cause of Action.The Demurrer to the Ninth Cause of Action for Intentional Infliction ofEmotional Distress is SUSTAINED without leave to amend. In order to statesufficient facts for this cause of action, “A defendant's conduct is‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usuallytolerated in a civilized community.’ ” Hughes v. Pair (2009) 46 Cal.4th 1035,1050–1051. This factual scenario will not support this cause of action.The Demurrer to the Tenth Cause of Action for Declaratory Relief

SUSTAINED with fifteen (15) days leave to amend.This cause of action is uncertain. It refers to the Business & ProfessionsCode, but does not cite a statute. It refers to Paragraph 107, which must bea clerical mistakeThe Demurrer to the Eleventh Cause of Action for Unjust Enrichment isSUSTAINED without leave to amend. “[T]here is no cause of action inCalifornia for unjust enrichment. Melchior v. New Line Productions,Inc. (2003) 106 Cal.App.4th 779, 793.The Demurrer to the Twelfth Cause of Action for Actual Fraud SUSTAINEDwith fifteen (15) days leave to amend. This ruling is the same as the FifthCause of Action.The Demurrer to the Thirteenth Cause of Action for Breach of FiduciaryDuties is SUSTAINED without leave to amend. These cross-defendants areprotected by C.C.P 340.6. There was no tolling, because they did not file acomplaint. Trindade v. Superior Court (1973) 29 Cal.App.3d 857, 859.Grissom’s Request for Judicial Notice is DENIED. Molus v. Swan is anunpublished federal case.Moving parties to give notice.

TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraJune 13, 2013Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be postedon all law and motion matters. Please read these rules carefully. Do not call the Department unless ALLparties submit on tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However,ongoing proceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THEDEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligentlyworking on posting the rulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counselintend to submit on the tentative and do not wish oral argument, please advise the courtroom assistant bycalling (657) 622-5215. If all sides submit on the tentative ruling and so advise the clerk, the tentativeruling shall become the court’s final ruling and the prevailing party shall give Notice of Ruling and preparean Order for the court’s signature, if appropriate under CRC 3.1312.Please be advised that the Orange County Superior Court still provides court reporters for civil law andmotion matters.1 Crain v. CrystalCathedral2 StarlightCinemas v. QuickMotion to Strike or Tax Costs: OFF CALENDARMotion for Attorneys Fees: GRANTWithin twenty (20) days, Plaintiff Starlight shall pay Defendant Quickreasonable attorney fees in the sum of $16,382.50. ($13,632.50 for AttorneyRoss and $2,750.00 for Attorney Monner.)When the court awards attorney fees for a Special Motion to Strike, theaward must be reasonable based on the circumstances. Christian ResearchInstitute v. Aynor (2008) 165 Cal.App.4th 1315, 1321-1322.Both the underlying malicious prosecution action and the Anti-SLAPP actionwere simple and straightforward. The court must consider the nature of theunderlying dispute. Harrington v. Payroll Entertainment Services, Inc. (2008)160 Cal.App.4th 589, 594. The damages in the malicious prosecution caseinvolved recovery of limited attorney fees during the eight months that theSeventh Cause of Action for Unruh Civil Rights was pending. Starlight, thecorporation, suffered no emotional distress damages.The Anti-SLAPP motion was routine. The first prong of the test under C.C.P.§ 425.16 was easily resolved. A malicious prosecution action is per secovered under the Anti-SLAPP action. Jarrow Formulas, Inc. v.LaMarche (2003) 31 Cal.4th 728, 734-735.For the second prong, moving party addressed only the issue of probablecause, but not the issues of favorable termination or malice. (Exhibit3). Since the underlying case was still pending, the malicious cause of actionwas doomed to failure.“[A]n action for malicious prosecution must await a favorable termination ofthe entire proceeding.” Jenkins v. Pope (1990) 217 Cal.App.3d 1292,

1299. “So long as the action is still pending, there has been no Favorabletermination, and a malicious prosecution suit will not lie.” Rich v.Siegel (1970) 7 Cal.App.3d 465, 469.Based on the simplicity of the underlying case and the Anti-SLAPP motion,the court finds that the retention of an expert special counsel as a co-counselwas an unreasonable expense. At best, the expert should have assisted witha limited consultation. For Attorney Moneer, the fee of $2,750 would bereasonable. ($550.00 per hour x 5 hours). Attorney Ross was fully capableof handling this case without expert assistance.For Attorney Ross, the court awards $13,632.50. The fee of $325.00 perhour was reasonable. The additional fee of $3,855.00 billed on contingentupon prevailing was excessive. There was no doubt that Quick would prevail,because the malicious prosecution case was filed before a favorabletermination of the underlying case.Defendant’s Request for Judicial Notice is GRANTED.Defendant’s Objections to the Declaration of attorney Petros are overruled.Moving party to give notice.3 Beylik Properties,LLC v. MelendezMotion to Deem Matters Admitted: GRANTPlaintiff has shown that responses were not timely provided to the admissionrequests. The motion was properly served and is unopposed. Sanctions willnot be awarded because they were not requested in the Notice of Motion.Moving party to give notice.4 Benjamin v.ExtremeAutomotiveGroupMotion to Compel Further Responses to Special Interrogatories: DENYThe motion to compel further responses to Special Rog. Nos. 3, 7 and 18 bydefendants EAG and Williams is DENIED. First, defendants’ motion to compelfurther responses to these special interrogatories is untimely and therebycourt lacks jurisdiction to compel a further response. See, C.C.P. §2030.300(c) and Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d681, 685. Plaintiff Benjamin’s supplemental responses to defendants’ specialinterrogatories were served by mail on 3-8-13, and the problem fordefendants is that while the motion and supporting declarations were filed on4-25-13, which is within the 50 day period from service of plaintiff’ssupplemental responses, the proof of service provides that the motion andsupporting declaration were not served on plaintiff until 5-10-13, which isbeyond the 50 day period from service of plaintiff Benjamin’s supplementalresponses. Timeliness is determined by when the motion to compel furtherresponses is served unless there is a written agreement to extend time tobring such a motion. See, C.C.P. § 2030.300(c). There is no evidence of anywritten extension for defendants to serve its motion to compel furtherresponses to special interrogatories beyond the 50 day period. Second,defendant EAG and Williams filed no separate statement in support of theirmotion to compel further responses to special interrogatories. Also, evenassuming attorney Ottilie’s supplemental declaration filed on 4-25-13 were tobe construed as a separate statement, this statement is deficient because itfails to set forth plaintiff Benjamin’s initial responses to defendants’ special

interrogatories as required. See, Rule 3.1345(c).Responding party to give notice.5 Goodman LawGroup v.BurkhalterKesslerMotion to be Relieved as Counsel: GRANTCounsel has complied with the requirements of CCP 284and CRC 3.1362.Order is effective upon service.Counsel to give notice.6 Turner v. City ofGarden GroveMotion to be Relieved as Counsel of Record: OFF CALENDAR7 Aruya v. IndigoPartnership8 AssignmentServices, Inc. v.FM Tarbell Co.Motion for Leave to File Cross-complaint: GRANTThe motion to file a cross-complaint is GRANTED. It was properly served andthere is no opposition. The Court makes no ruling on whether the crosscomplaintis compulsory or permissive or whether the action is proper orpremature. Trial date is to remain.Moving party to give notice.Demurrer to Complaint: See belowThe demurrer by defendants F.M. Tarbell, Tarkeshian and Ginn to plaintiffAssignment Services, Inc.’s complaint is SUSTAINED with conditional leave toamend. As to breach of contract, plaintiff failed to plead facts as tocompliance with the initial deposit of $41,470.00 called for in the ResidentialPurchase Agreement that was attached and incorporated as Exhibit 1 intoplaintiffs’ complaint. The failure to allege facts as to satisfaction of conditions,or excuse for non-performance, supports the sustaining of a demurrer inregard to a cause of action for breach of contract. See, Crimmins v. Ralph L.Smith Lumber Co. (1958) 163 Cal.App.2d 406, 408 to 409. The initial depositwas due 3 business days after the acceptance of any offer by plaintiff, whiledisclosures were not due until 7 days following acceptance. (See, Complaint, 18, and Exhibit 1, Residential Purchase Agreement.) As to plaintiff’s secondcause of action for negligence and third cause of action for professionalnegligence, these claims are based on failure to make various allegeddisclosures, which again are due after the initial deposit. Hence insufficientfacts to support causation in regard to any claim of negligence are stated atthis time. As to plaintiff’s fourth cause of action for violation of Civil Code §1102, et seq,, the same deficiency as to facts to satisfy all conditions exists.In addition, plaintiff Assignment Services, Inc. has not pled sufficient facts asto any transfer or exchange of the subject property to invoke Sections 1102

and 1102.1. As to fifth cause of action for intentional misrepresentation, sixthcause of action for negligent misrepresentation, and seventh cause of actionfor concealment, these claims are based on failure to make disclosuresand/or concealment of matters to be disclosed, and such disclosure were dueafter the initial deposit. Hence sufficient facts as to causation have not beenpled at this time. Plaintiff Assignment Services, Inc., is granted conditionalleave to amend as to plaintiff’s causes of action for breach of contract,negligence, professional negligence, intentional misrepresentation, negligentmisrepresentation and fraudulent concealment, pursuant to C.C.P. § 472a(c),if plaintiff can allege facts that it complied with the provision requiring postingan initial deposit of $41,470.00 within 3 business days of acceptance of theoffer or facts as to why such performance was excused. Also, as to plaintiff’sfourth cause of action for violation of Civil Code § 1102, et seq., plaintiff isgranted conditional leave to amend, C.C.P. § 472a(c), if plaintiff can allegefacts that it complied with the provision for posting an initial deposit of$41,470.00 within 3 business days of acceptance of the offer or facts as towhy such performance was excused, and facts as to some transfer orexchange of the subject property.Defendants’ Request for Judicial Notice: Defendants F.M. Tarbell,Tarkeshian and Ginn requested that the court take judicial notice of thefollowing documents: Exhibit 1, Grant Deed recorded 9-26-02, and Exhibit 2,Vesting Report by Landwood Title. Defendants’ request for judicial noticeshould be granted in part and denied in part. GRANTED as to Exhibit 1, butsuch notice should be limited to the filing of these documents with the countyrecorder’s office and legal effect but not as to the truth of the matters setforth therein. See, Evidence Code § 452(h) and Fontenot v. Wells FargoBank, N.A. (2011) 198 Cal.App.4 th 256, 265. DENIED as to Exhibit 2, theVesting Report by Landwood Title as this is simply an evidentiary exhibit.Other Matter: Plaintiff Assignment Services, Inc. filed its action on 3-1-13.Rule 3.110(b) provides that the complaint must be served on all defendantswithin 60 days after the filing of the complaint with a proof of service filedwith the court. The only proof of service filed by plaintiff was in regard todefendant F.M. Tarbell Realtors, dba Tarbell Realtors. (See, Proof of Serviceof Summons filed 4-3-13.) Defendants Silvia Tarkeshian and Laura Ginn havemade a general appearance by joining in the demurrer by defendant F.M.Tarbell. But defendants Sunil Kapur and Manju Kapur have not appeared andthere is no proof of service of the summons & complaint on these defendants.Pursuant to Rule 3-110(b), plaintiff Assignment Services, Inc. should haveserved the summons & complaint on defendants Sunil Kapur and ManjuKapur by 5-1-13, and filed a proof of service by now. The court ordersplaintiff to serve its complaint on defendants Sunil Kapur and Manju Kapurwithin 30 days, or dismiss these named defendants if plaintiff AssignmentService, Inc. will not be proceeding against them.Moving party to give notice.9 OnX USA, LLC v.ThomasGallaway Corp.Defendants’ demurrer to the 1st and 3d through 10th causes of action of the1st Amended Complaint is SUSTAINED with 30 days leave to amend foruncertainty.Plaintiff’s wholesale incorporation of all preceding allegations into each causeof action, coupled with the insufficiency of the factual allegations in theindividual causes of action, makes it impossible for the Court to address thesufficiency of the causes of action or Defendants’ preemption claim.In amending, Plaintiff is to state in each cause of action the factual basis forthat cause of action and that cause of action alone. If it incorporatesanything by reference, it is to specify by paragraph number which allegationsare incorporated.

The Court is not preventing Plaintiff from using an introduction; nor is itrequiring Plaintiff to state all the facts in the introduction in each cause ofaction. It only is requiring Plaintiff to state the essential facts supportingeach cause of action with sufficient specificity to allow the Court to addressDefendants’ contentions as to that cause of action without having to lookelsewhere in the pleading or guess what Plaintiff is actually alleging.For the guidance of the parties, the Court makes the following rulings:Except for claims based on contract, all claims relating to misappropriate oftrade secrets as defined by Plaintiff’s CCP §2019.210 statement must beincluded in the 2d cause of action. To the extent that the causes of action forunfair competition, interference with contract and/or prospective economicadvantage, conversion and aiding and abetting are based on misappropriationof trade secrets, they are preempted. Silvaco Data Systems v. Intel Corp.(2010) 184 Cal. App. 4th 210 (disapproved on other grounds by KwiksetCorp. v. Superior Court (2011) 51 Cal.4th 310), 233-234.Should Plaintiff include trade secret allegations in these causes of action,Defendant may move to strike them.A claim that does not depend on the existence of a trade secret is notpreempted. Id. at 241-242. Claims based on non-trade secret information donot arise from the “same nucleus of facts” as the trade-secret claims.As to conversion, the Court believes that Fremont Indem. Co. v. FremontGen. Corp. (2007) 148 Cal.App.4th 97 correctly states the current lawregarding conversion of intangible property, not Olscheski v. Hudson(1927) 87 Cal.App. 282, which was decided nearly a century ago. UnderFremont, 148 Cal.App.4th @ 125, intangible property rights are capable ofconversion so long as “both the property and the owner's rights of possessionand exclusive use are sufficiently definite and certain.” At least some ofintangible property that Plaintiff alleges (e.g., manufacturer and vendorinformation), is capable of being clearly defined through discovery.The Court reserves the issue of whether there is a property right to non-tradesecret proprietary and confidential information and instructs the parties tothoroughly brief this issue if there is another demurrer or otherdispositive motion. If any or all of the above-named causes of action arebased on some other wrong, Plaintiff must clearly state what it is and thefacts supporting the claim in each cause of action.Solicitation by unlawful means is not protected by Bus. & Prof. Code§16600. Metro Traffic Control, Inc. v. Shadow Traffic Network (1994)22 Cal. App. 4th 853, 859. If any of Plaintiff’s non-trade secret causes ofaction survive the next demurrer, they will establish unlawful means.Plaintiffs breach of contract claims must include the contractual language thatit relies upon and, as with the other causes of action, the relevant factsspecific to those causes of action must be stated. However, if clearly pled,these causes of action will survive.CC §3426.7(b)(1) permits contract claims based on misappropriation of tradesecrets. The Court has examined the Non-Disclosure Policy and Agreementand the Equipment and Assets contract attached to the 1st AmendedComplaint. Neither of these can be construed as covenants not to compete;therefore, Defendants’ claims are not on point.Under Labor Code §2863 and Mattel, Inc. v. MGA Entertainment, Inc.(2011) 782 F.Supp.2d 911,998-999, an employee owes a duty of loyalty tohis employer while employed and can be sued for breach of thatduty. Plaintiff alleges that the individual defendants assisted in divertingclients to Technologent while they were still employed. Therefore, the causeof action for breach of the duty of loyalty will survive in Plaintiff clarifies thefacts upon which it is based as ordered above. In addition, a former

employee can have a fiduciary duty under an agreement to maintainconfidentiality of proprietary information. Id. at 989. If the causes of actionbased on non-trade secret proprietary information survive, they will alsosupport this cause of action.10 LR NevadaInvestments-JCv. LR NevadaInvestmentManagement-JCMoving party to give notice.Demurrer to Complaint: SUSTAINED with 10 days’ leave to amend for lack ofopposition.Defendants are to give notice.11 Bruneio v.ProvencioDemurrer to Complaint: OVERRULEDefendant previously filed an Answer to the Complaint. Therefore, Defendantwaived the right to file a Demurrer subsequently. The Demurrer is offcalendar.C.C.P. § 430.30 (c) provides that “A party objecting to a complaint or crosscomplaintmay demur and answer at the same time.” C.C.P. § 472a (a)states that “A demurrer is not waived by an answer filed at the same time.”Plaintiff to give notice.12 Mota v. Kunert Special Motion to Strike the Cross-Complaint: DENYMoving party failed to establish that the cross-complaint arouse out ofprotected activity. The cross-complaint did not arise from statements aboutthe sexual abuse like Aber v. Comstock (2012) 212 Cal.App.4th 931. Ratherthe cross-complaint was merely incidental to the protected activity.“The mere fact that a plaintiff has filed an action after a defendant hasengaged in some protected activity does not mean that the plaintiff's actionarose from that activity. ‘The anti-SLAPP statute cannot be read to meanthat ‘any claim asserted in an action which arguably was filed in retaliationfor the exercise of speech or petition rights falls under section 425.16,whether or not the claim is based on conduct in exercise of those rights.’”Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th1388, 1398. (emphasis added.)Since moving party did not establish the first prong, the court does not needto consider the second prong.Cross-complainants’ request for attorney fees is DENIED.C.C.P. § 425.16 (c)(1) provides that cross-complaints must prove “a specialmotion to strike is frivolous or is solely intended to cause unnecessarydelay.” It has not been established that “any reasonable attorney wouldagree that the motion is totally devoid of merit.” Chitsazzadeh v. Kramer &Kaslow (2011) 199 Cal.App.4th 676, 684.Cross-complainant to give notice.

13 Wells Fargo BankNational Asso. V.BonanniMotion for Summary Adjudication: OFF CALENDAR

TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraJune 6, 2013Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be postedon all law and motion matters. Please read these rules carefully. Do not call the Department unless ALLparties submit on tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However,ongoing proceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THEDEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligentlyworking on posting the rulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counselintend to submit on the tentative and do not wish oral argument, please advise the courtroom assistant bycalling (657) 622-5215. If all sides submit on the tentative ruling and so advise the clerk, the tentativeruling shall become the court’s final ruling and the prevailing party shall give Notice of Ruling and preparean Order for the court’s signature, if appropriate under CRC 3.1312.Please be advised that the Orange County Superior Court still provides court reporters for civil law andmotion matters.2 Bag Fund LLC v.GarciaMotion for Sanctions: DENY without prejudiceThe motion for issuance of an order to show cause and for monetarysanctions is DENIED without prejudice because the moving party lacksstanding, having assigned its rights to the judgment to Equity TrustCompany, custodian FBO Tamir Hacker Roth IRA. The motion may be filedby Bag Fund, Inc. pursuant to its right of collection and service, but it mustbring the motion in the name of the judgment creditor or as its agent.In addition, no order to show cause has been prepared, proposed, signed orserved. Once such an order has been issued, it must be personallyserved. See In re Koehler (2010) 181 Cal.App.4th 1153 for this and otherrequirements of a contempt proceeding.3 Harper v.Canyon HillsCommunityAssociationMoving party to give notice.Motion to Strike or Tax Costs: See belowPlaintiff’s motion to strike items 10 & 11 (attorney fees and cost of exhibits)from the Valentines’ cost memorandum is GRANTED. Her motion to strike ortax item 8 (expert fees) is DENIED.Attorney fees were awarded pursuant to Defendants’ noticed motion. Item10 of the cost memorandum is to be used only for fees that can be awarded“without [the] necessity of a court determination.”Exhibit costs are only recoverable if they “were reasonably helpful to the trierof fact.” CCP §1033.5(a)(13). Defendants admit that the exhibits were neverused.The only issues raised in the moving papers regarding expert fees were 1)that the experts weren’t reasonably necessary to the defense and 2) that thefees were unreasonable as hourly fees. Defendants appropriately respondedby showing 1) why the experts were retained, and 2) that the fees entered

on the form were not hourly fees. Issues of whether the fees werereasonable as total fees and whether the experts were qualified were notraised. It is improper to raise a new contention in a reply brief; failure toraise it in the moving papers forfeits the contention. Inyo Citizens forBetter Planning v. Board of Supervisors (2009) 180 Cal.App.4th 1, 14,fn. 2.Defendants are to give notice.Plaintiff’s motion to strike items 11 and 13 (costs of exhibits and mediation)from the Canyon Hills Community Association’s cost memorandum isGRANTED. Her motion to strike or tax item 8 (expert fees) is DENIED.Expert fees are expressly recoverable as costs under CCP§998(c)(1). Therefore, the cost bill is prima facie evidence the cost wasnecessary, shifting the burden to Plaintiff to show otherwise. Perko’sEnterprises Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238,243. Merely presenting arguments in her points and authorities isinsufficient to rebut the prima facie showing. Rappenecker v. Sea-LandService, Inc. (1979) 93 Cal.App.3d 256, 266.However, neither statutory or case law is cited supporting recovery for thecosts of voluntary mediation. The holding and rationale of Gibson v.Bobroff (1996) 49 Cal.App.4th 1202, 1208-1209, expressly apply to courtorderedmediation. Therefore, the Court declines apply the Perko’sEnterprises presumption. Because the Association failed to present anyevidence to show that the mediation was reasonably necessary in this case, ithas not met its burden under §1033.5(c)(4) to give the Court a reason toexercise its discretion.Defendant admits that the exhibits were never used. Sub§(c)(4) gives theCourt discretion to award costs that are “not mentioned” in §1033.5. Exhibitcosts are mentioned and specifically limited to costs of exhibits that “werereasonably helpful to the trier of fact.” CCP §1033.5(a)(13). Therefore,sub§(c)(4) is inapplicable.Defendant is to give notice.4 WilsonAutomotive v.Mercedes Benz,USA, LLCMotion to Compel Further Responses to RFP: DENYThe Motion to Compel Further Responses to Requests for Production isDENIED.Defendant failed to demonstrate good cause for the production.C.C.P. § 2031.310 (b) (1) requires that “The motion shall set forth specificfacts showing good cause justifying the discovery sought by thedemand.” The burden is met simply by a fact-specific showing of

elevance. Glenfed Development Corp. v. Superior Court (1997) 53Cal.App.4th 1113, 1117.On May 23, 2013, this court denied Defendants motion to compel furtherresponses to special interrogatories regarding attorney fee information. Theinformation was protected by the attorney-client privilege. Request No. 17requests the same information that the court previously denied.Defendant could obtain evidence about witnesses and damages by directlyasking about those subjects. Requesting filing with the Secretary of Stateand financial data is an ineffective and burdensome method to obtain theinformation. The requested categories failed to be “reasonably” particularizedfrom Plaintiff’s standpoint. Calcor Space Facility, Inc. v. Superior Court(1997) 53 CA4th 216, 222.Pursuant to C.C.P. § 2031.300 (c), the court imposes sanctions againstDefendant in the sum of $1,250.00. ($250.00 x 5 hours).The Motion was timely served, because it was served within 50 days of whenthe responses were served. The fact that the Motion was filed after thedeadline was insignificant.Plaintiff to give notice.5 Stewart v.Ortega TrustMotion to Compel (x3): See below1) Defendant Trust’s motion to compel responses to defendant’s forminterrogatories by plaintiff Stewart, without objections, is GRANTED with suchresponses to be served within 10 days of service of a notice of ruling bydefendant. See, C.C.P. § 2030.290(c). Also, defendant Trust’s request forsanctions is GRANTED in the sum of $390.00, pursuant to C.C.P. §2030.290(c), payable by plaintiff Stewart. Moving party to give notice.2) Defendant Trust’s motion to compel responses to defendant’s RFPD byplaintiff Stewart, without objections, is GRANTED with such responses to beserved within 10 days of service of a notice of ruling by defendant. See,C.C.P. § 2031.300(c). Also, defendant Trust’s request for sanctions isGRANTED in the sum of $390.00, pursuant to C.C.P. § 2031.300(c), payableby plaintiff Stewart. Moving party to give notice.3) Unless plaintiff Stewart provides proper responses to defendant Trust’srequests for admission before the hearing on 6-6-13, then defendant Trust’smotion to deem its requests for admission to plaintiff Stewart admitted isGRANTED. See, C.C.P. § 2033.280(b). Also, defendant Trust’s request forsanctions is GRANTED in the amount of $390.00 payable by plaintiff Stewart.See, C.C.P. § 2033.280(c). Moving party to give notice.Moving party to give notice.6 Garcia v. Hoover Motion to Intervene: GRANTEDThe motion was properly served and is unopposed. The moving party is tofile and serve its proposed complaint-in-intervention within 30 days.Moving party to give notice.7 Shabazi v.ClarisonMortgage CapitalMotion to be Relieved as Counsel: OFF CALENDAR

8 Gregory v.FrancoDemurrer to Answer: OFF CALENDAR9 Stoddard v. Demurrer to Answer: OFF CALENDARFranco10 Vo v. Huckabee Demurrer to First Amended Complaint: See belowThe demurrer by defendants Ron Davenport, Vu Truong, Steven Wynn, TevaParenteral Medicines, Inc., and Teva Pharmaceuticals, Inc. to plaintiff Vo’sfirst amended complaint is SUSTAINED.The demurrer is SUSTAINED as to plaintiff Vo’s third cause of action forretaliatory employment discharge in violation of public policy because plaintiffhas not alleged sufficient facts and applicable statutes to state this cause ofaction. Plaintiff Vo is granted 20 days conditional leave to amend, pursuant toC.C.P. § 472a(c), if plaintiff Vo can allege specific California WhistleblowerStatutes that he claims have been violated and facts to state such a violation.The demurrer is SUSTAINED, without leave to amend, as to plaintiff Vo’s fifthcause of action for negligence to conduct reasonable investigation, sixthcause of action for negligent supervision and retention, seventh cause ofaction for negligence in hiring and training, eighth cause of action for NIED,ninth cause of action for intentional interference with contract, and tenthcause of action for tortious interference with prospective economicadvantage. As to plaintiff’s fifth, sixth and seventh causes of action, thesecauses of action are barred under workers’ compensation exclusivity. See,Hine v. Dittrich (1991) 228 Cal.App.3d 59, 62 and Coit Drapery Cleaners, Inc.v. Sequoia Ins. Co. (1993) 14 Cal.App.4 th 1595, 1606. As to plaintiff’s eighthcause of action for NIED, this cause of action cannot be stated based onintentional management decision making. See, Semore v. Pool (1990) 217Cal.App.3d 1087, 1103. As to plaintiff Vo’s ninth cause of action forintentional interference with contract and tenth cause of action for tortiousinterference with prospective economic advantage, such causes of actioncannot be stated against co-employees of Teva. See, Sheppard v. Freeman(1998) 67 Cal.App.4 th 339, 342.Late Filed Opposition: The court declines to consider plaintiff’s late-filedopposition. An opposition filed only two court days before the hearing date,when 9 court days is required, is simply untimely. See, Rule 3.1300(d). Also,in this late-filed opposition plaintiff noted: “Plaintiff agrees that the Fifth,Sixth and Seventh Causes of Action should be stricken and as such, has doneso in the attached [Proposed] Second Amended Complaint.” (See, Opposition,p. 3, lines 19 to 21.)Moving parties to give notice.

11 Nguyen v.DavenportDemurrer to 3 rd Amended Complaint: See belowThe Demurrer to the Fifth Cause of Action for Breach of Express Contract isSUSTAINED without leave to amend. Moving parties shall file an Answer tothe Third Amended Complaint within fifteen (15) days.For the Second Amended Complaint, Plaintiff attached the EmployeeHandbook as Exhibit A. On page 3, the handbook states that all employeesare employees at will. The Employer can terminate an employee withoutcause. Plaintiff deleted the Handbook in the Third Amended Complaint.Plaintiff ignored the admissions and failed to explain them.“Under the sham-pleading doctrine, admissions in an original complaint thathas been superseded by an amended pleading remain within the court'scognizance and the alteration of such statements by amendment designed toconceal fundamental vulnerabilities in a plaintiff's case will not be accepted.”Lockton v. O'Rourke (2010) 184 Cal.App.4th 1051, 1061. The court shouldapply language of the Employee Handbook. Since he was an employee atwill, Plaintiff may not sue for breach of contract.Concerning the Proposed Fourth Amended Complaint, Plaintiff must complywith CRC 3.1324. Plaintiff may amend pursuant to a stipulation or noticedmotion.Moving party to give notice.12 Bruneio v.ProvencioDemurrer to Complaint: CONTINUED13 Falber v.Sorrento Capital,Inc.Demurrer to Complaint: See belowDefendants’ demurrer to the 1 st -4 th causes of action is SUSTAINED with 20days leave to amend as to Knohl. The plaintiff has failed to plead Knohl’sliability in his individual capacity; plaintiff pleads that Knohl was acting asCEO, not as an individual. It is otherwise OVERRULED as to the other“employer defendants.” The contract’s effect is sufficiently plead.Defendants’ demurrer is OVERRULED as to the 5 th cause of action; Plaintiffhas sufficiently plead a cause of action for slander per se. Mercado v. Hoefler(1961) 190 Cal.App.2d 12Defendants’ demurrer is SUSTAINED with leave as to the 6 th and 7 th causes ofaction, as plaintiff has not identified any specific statute or regulation violatedby defendants; Plaintiff describes the defendants’ retaliation for refusal tofalsify financial entries and an awareness of inflated revenues, overstatedassets and false financial statements; plaintiff does not, however, identifyeven a single statutory violation or regulatory non-compliance.Labor Code 1102.5 provides:“(c) An employer may not retaliate against an employee for refusing toparticipate in an activity that would result in a violation of state or federalstatute, or a violation or noncompliance with a state or federal rule orregulation.”

Absent identification of such violation, these causes of action are insufficient.Defendants’ demurrer is OVERRULED as to the 8 th and 9 th causes of action.Defendants’ allegations regarding plaintiff’s job duties are extrinsic to thecomplaint and cannot be considered on a demurrer.Moving party to give notice.14 Fernandez v. Bof AThe Request for Judicial Notice is GRANTED, except for “take[ing] judicialnotice of the truth of various factual representations made in thedocuments.” Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256,261.The Preliminary Injunction is GRANTED. Based on Plaintiff’s unopposeddeclaration, Plaintiff has met his burden to show that it is reasonablyprobable that he will prevail on the merits on the Fourth Cause of Action forPromissory Estoppel. Aceves v. U.S. Bank, N.A. (2011) 192 Cal.App.4th 218,225.Within seven (7) days, Plaintiff shall post an undertaking for $10,000.00.Regarding the Demurrer, the court rules as follows:The Demurrer to the First Cause of Action for Breach of Contract isSUSTAINED with fifteen (15) days leave to amend. Plaintiff alleged thatthere was a written contract, but the terms are not expressed. “If the actionis based on an alleged breach of a written contract, the terms must be setout verbatim in the body of the complaint or a copy of the written instrumentmust be attached and incorporated by reference.” Otworth v. Southern Pac.Transportation Co. (1985) 166 Cal.App.3d 452, 459.The Demurrer to the Second Cause of Action for Breach of the Covenant ofGood Faith and Fair Dealing is SUSTAINED without leave to amend. “Outsideof the insured-insurer relationship and others with similar qualities, breach ofthe implied covenant of good faith and fair dealing does not give rise to tortdamages.” Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182,206.The Demurrer to the Third Cause of Action for Fraud & Fifth Cause of Actionfor Negligent Misrepresentation is SUSTAINED with fifteen (15) days leave toamend. Plaintiff failed to allege these cause of action with particularity. “’InCalifornia, fraud must be pled specifically; general and conclusory allegationsdo not suffice.’ . . . Thus, a plaintiff must plead facts which show how, when,where, to whom, and by what means the representations were made.” Lazarv. Superior Court (1996) 12 Cal.4th 631, 645The Demurrer to the Fourth Promissory Estoppel is OVERRULED.The Demurrer to the Sixth Cause of Action for Unfair Business PracticesSUSTAINED with fifteen (15) days leave to amend. This cause of action isconclusory. Plaintiff lacks the required specificity. “A plaintiff alleging unfairbusiness practices under these statutes must state with reasonableparticularity the facts supporting the statutory elements of the violation.”Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.Finally, Plaintiff is granted leave to allege that he has proper standing topursue these claims following the filing of the Petition for Chapter 7

Bankruptcy.Moving party to give notice.16 Ultimate NewHome Sales &Marketing, Inc.v. TaschMotion to Strike Posted Jury Fees: DENYThe motion to strike the posting of jury fees by defendants Tasch and ReviveReal Estate Group is DENIED. Cross-defendant IPSC was in the same positionas cross-defendants UNHS and Kaller, and IPSC timely posted jury fees. See,C.C.P. § 631(f)(5). In addition, even assuming plaintiff/cross-defendantUNHS and Kaller waived jury by failing to timely post jury fees, the courtelects to exercise its discretion, pursuant to C.C.P. § 631(g), and grant relieffrom any such waiver as all parties requested jury at the case managementconference on 10-5-12, this statute was recently revised, and no prejudice isshown. See, Johnson-Stovall v. Superior Court (1993) 17 Cal.App.4 th 808,810 to 811. From April 16 to 23, 2013 the parties engaged in the meet andconfer process regading all pretrial readiness documents, including jury voirdire.Moving party to give notice.

TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraMay 30, 2013Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be postedon all law and motion matters. Please read these rules carefully. Do not call the Department unless ALLparties submit on tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However,ongoing proceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THEDEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligentlyworking on posting the rulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counselintend to submit on the tentative and do not wish oral argument, please advise the courtroom assistant bycalling (657) 622-5215. If all sides submit on the tentative ruling and so advise the clerk, the tentativeruling shall become the court’s final ruling and the prevailing party shall give Notice of Ruling and preparean Order for the court’s signature, if appropriate under CRC 3.1312.Please be advised that the Orange County Superior Court still provides court reporters for civil law andmotion matters.1 Wells Fargo BankNA v. YaritanhaMotion to Set Aside/Vacate: GRANTGood cause has been shown since defendant has refused to execute thesettlement agreement. The case is restored to the active civil calendar. ACMC is set for June 21, 2013.Moving party to give notice.2 Farnsworth v. St.GeorgeMotion to Lift Stay of Proceedings: GRANTPlaintiff Farnsworth’s motion to lift the stay in this civil action is GRANTED.The incident in this case occurred on June 22, 2009, and with the stayordered by this court on 5-23-12 defendant St. George has had almost 4years to resolve any criminal matter pending against her. In Fuller v.Superior Court (2001) 87 Cal.App.4 th 299, “A delay of three years not onlyflies in the face of the policies behind Government Code section 68607 andthe Standards of Judicial Administration, but also exposes both sides of thelitigation to the risk of diminished memory and lost records. While a stay is apossible solution here (Pacers, Inc. v. Superior Court, supra, 162 Cal.App.3dat pp. 689-690), the court’s decision was not an abuse of discretion.” Id., at309. The Fuller decision was rendered in 2001 after the trial court delayreduction act was implemented, while Pacers was decided in 1984. Now thepolicies of reducing the risk of any further loss of memories or records andpolicies behind Government Code section 68607 control. Defendant St.George may still raise her fifth amendment privilege as to specific questionsor deposition questions as indicated. Thus plaintiff Farnsworth’s motion to liftthe stay is granted.Moving party to give notice.

3 Harper v.Canyon HillsCommunityAssociationThe motion for attorney and paralegal fees is GRANTED in part. The motionfor secretarial fees is DENIED. The Court awards to Defendants $190,753.13in attorney fees and $2,385.50 in paralegal fees.Under CCP §1033.5(c)(5), the burden of proof is on the party claimingattorney fees. The Court sees no reason that a different rule should apply tofees under CC §1354.Defendants fail to address any of Plaintiff’s challenges to their claims exceptthe challenge to fees incurred for the protective order. Such fees will begranted; Plaintiff’s own papers show that they were incurred prior toDecember or January 1913, which is when Plaintiff claims that the issuebecame moot.All other challenges will be upheld because they were not addressed byDefendants. As to fees charged by the Allen Matkins firm, there is noshowing that they are the “reasonable hourly rate is that prevailing in thecommunity for similar work.” PLMC Group v. Dexler (2000) 22 Cal.4th1084, 1095. The state of California is not a “community.”There is no showing that secretarial fees are not included as overhead in theattorney fee rate.The Court agrees with Plaintiff that she should not be required to pay costsresulting from Defendants’ decision to change attorneys.Defendants are to give notice and lodge an amended judgment.4 Doe v. Abdallah Motion to Strike or Tax Costs: See belowPlaintiff Jane Doe’s motion to strike and/or tax costs is granted in part anddenied in part. DENIED as to plaintiff’s motion to strike. Defendant Jaffa, Inc.was the prevailing party as it obtained a dismissal of all claims in regard toplaintiff’s complaint. See, C.C.P. § 1032 and Hsu v. Abbara (1995) 9 Cal.4 th863, 875 to 876. Also, defendant Jaffa, Inc. has standing because the fullname for this defendant is Jaffa, Inc. dba Vine Ripe Farmers Market. (See,Notice of Stay filed Proceedings filed 2-25-13 and Defendant’s Designation ofExpert Witnesses filed 12-14-12.) Next, defendant Jaffa, Inc.’s memorandumof costs was timely as plaintiff never served a notice of dismissal on JudicialCouncil Form CIV-120 as required to commence the 15 day time period. See,Sanabria v. Embrey (2001) 92 Cal.App.4 th 422, 425 to 426. GRANTED as toplaintiff’s motion to tax all costs except the $395.00 filing fee by defendantJaffa, Inc. dba Vine Ripe Farmers Market. There is no evidence of a C.C.P. §998 offer by defendant Jaffa, Inc. that plaintiff did not accept, so there is nobasis to claim expert witness fees of $8,500.00 for Dr. Maram as arecoverable statutory cost. See, C.C.P. § 1033.5(b)(1). Also the courtappointed discovery referee was in relation to the principal defendant AttallahAbdallah and not defendant Jaffa, Inc. Similarly, except the $395.00 filing feeby defendant Jaffa, Inc. the other filing fees, deposition costs and subpoenaswould have been incurred by defendant Attallah Abdallah and the otherdefendants even if defendant Jaffa, Inc. had not been a defendant. The courthas the discretion to apportion statutory costs when a defendant is dismissedand other defendants remain in the action that in this case is still set for trialon 6-10-13. See, Fennessy v. DeLeuw-Cather Corporation (1990) 218Cal.App.3d 1192, 1196 to 1197.

Moving party to give notice.5 MKA-GPSLending, LLC v.BarkettMotion for Sanctions: OFF CALENDAR6 Abolfazli v.AbolfazliPlaintiffs’ motion to compel further responses to special interrogatories isDENIED. Sanctions of $2200 are awarded to Defendants against Plaintiffsand their attorney of record, jointly and severally.The motion was originally untimely due to a pending trial date andDefendants were forced to incur costs to oppose the motion.Plaintiffs obtained an ex parte continuance of the trial date, an extension ofthe discovery cutoff, and a continuance of this motion. They were ordered togive notice. However, there is no notice of ruling in the Court’s file. There isa proof of service of a notice of ruling but it states that it was not served until5/17, leaving Defendants with insufficient notice and time to oppose themotion.Responding party to give notice.9 Kalfin v. Kalfin Motion to Withdraw as Counsel of Record: OFF CALENDAR10 Henkel ofAmerica, Inc. v.RazzakMotion to Withdraw as Counsel of Record: GRANTMoving counsel has shown good cause under CCP section 284(2) and CRC3.1362 to withdraw as counsel of record. Order is effective on service oforder.Counsel to give notice.

11 Mclure Ins.Brokerage, Inc.v. RoblesDefendant Robles’ motion to set an OSC re: Dismissal for failure to prosecuteis DENIED.On 4-4-13, plaintiff McLure Insurance substituted in the Law Offices ofGugliotta & Associates as its counsel of record. On 4-7-13, this civil actionwas set for trial on 10-7-13. (See, 4-13-13 Minute Order.) PlaintiffMcLure Insurance thus appeared at the case management conference settingtrial in this action. This is without prejudice to defendant Robles’ bringing adiscretionary motion to dismiss for failure to prosecute if defendant believesit has grounds for such a motion, but an OSC is not indicated as this matterhas now been set for trial.Moving party to give notice.12 Levy v. Kallman The Demurrer of Defendant MSM Financial, Inc. dba The Manzuri Group tothe Second Amended Complaint is SUSTAINED with fifteen (15) days leave toamend.The Demurrer of Defendants Kallman, Saddleback and Joinder to the SecondAmended Compliant is SUSTAINED with fifteen (15) days leave to amend.Plaintiff failed to allege the elements of the multiple causes of action. Inparticular, Plaintiff failed to allege that he relied upon the allegedmisrepresentations.For the fraud causes of action (First, Third & Fourth), Plaintiff plead theallegations specificity. Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.To state a cause of action for breach of contract, Plaintiff must attach thecomplete contract to the complaint. Paragraph 25A of Exhibit A, theResidential Purchase Agreement, states that Buyer’s Inspection Advisory is anincluded attached supplement. “A written contract is usually pleaded byalleging its making and then setting it out verbatim (‘in haec verba’) in thebody of the complaint or as a copy attached and incorporated by reference.”4 Witkin, California Procedure 5 th § 518.After the ruling on the Demurrer, the Motion to Dismiss and Motion to Strikeare moot. The OSC is also moot. There was an apparent misunderstandingconcerning which pleading should be filed.Moving parties to give notice.

13 Falber v.Sorrento Capital,Inc.14 Pacific Life v.Gold CoastSecuritiesDemurrer to Complaint: CONTINUED to 6/6/13The Demurrer to the Second Cause of Action for Concealment and the ThirdCause of Action for Negligence is SUSTAINED with fifteen (15) days leave toamend.For the concealment cause of action, Gold Coast failed to allege specificallythe source of the duty for Pacific Life to disclosure. Concealment is a form offraud. “In California, fraud must be pled specifically; general and conclusoryallegations do not suffice.” Lazar v. Superior Court (1996) 12 Cal.4th 631,645.Regarding the tolling of the statute of limitations, GoldCoast failed to allege specifically “the time and manner of discovery.” Fox v.Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808The Demurrer to the Fourth Cause of Action for Equitable Indemnity isSUSTAINED without leave to amend.Equitable indemnity ‘applies in cases in which one party pays a debt for whichanother is primarily liable and which in equity and good conscience shouldhave been paid by the latter party.’” United Services Auto. Ass'n v. AlaskaIns. Co. (2001) 94 Cal.App.4th 638, 645. Gold Coast failed to allege that itpaid a debt that Pacific Life was responsible.The “tort of another” is not a separate cause of action, but a basis to recoverattorney fees as damages. “The theory of recovery is that the attorney feesare recoverable as damages resulting from a tort in the same way thatmedical fees would be part of the damages in a personal injury action. Insuch cases there is no recovery of attorney fees qua attorney fees.” Sooy v.Peter (1990) 220 Cal.App.3d 1305, 1310. Gold Coast may allege this theoryas part of other causes of action.The Demurrer to the Fifth Cause of Action for Unfair Business Practice isOVERRULED. On a Demurrer, the court should not decide whether theaffirmative defense of the Litigation Privilege bars this cause of action.The Motion to Strike is GRANTED strike the allegations for damages on theFifth Cause of Action.Based on the ruling on the Demurrer, the Motion to Strike Punitive Damagesis MOOT.The Motion to Strike the alter ego allegations is DENIED. Only generalallegations are required. Mesler v. Bragg Management Co. (1985) 39 Cal.3d290, 300.Moving party to give notice.16 Schneider v.LaneDefendant Lane’s motion for summary judgment is DENIED.First, there is no proof of service of defendant’s motion by the messengerservice who allegedly completed the actual service on plaintiff’s counsel as

equired. Relatedly, plaintiff Schneider has not filed any written oppositionthat would waive this defect as to service. See, Carlton v. Quint (2000) 77Cal.App.4 th 690, 697. Second, on the merits, defendant Lane failed to carryhis burden that, as a matter of law, he was confronted by an imminent periland acted as a reasonably careful person. The Leo court explained thatwhether the imminent peril doctrine is applicable is generally a question offact. Similarly, the Damele court then concluded: “Whether the conditions forapplication of the imminent peril doctrine exist is itself a question of fact tobe submitted to the jury. [Citations.]” Id., at 37. In Leo, Damele and Schultz,the imminent peril doctrine was part of the instruction to the jury after trial,and not resolved by way of summary judgment. Also, the facts in the presentcase are more similar to those in Leo, where the court explained that triableissues of fact existed, rather than as in Schultz where the Court of Appealdecided that the imminent peril doctrine was applicable as a matter of lawand reversed the trial court’s order granting a new trial.Moving party to give notice.

TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraMay 30, 2013Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be postedon all law and motion matters. Please read these rules carefully. Do not call the Department unless ALLparties submit on tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However,ongoing proceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THEDEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligentlyworking on posting the rulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counselintend to submit on the tentative and do not wish oral argument, please advise the courtroom assistant bycalling (657) 622-5215. If all sides submit on the tentative ruling and so advise the clerk, the tentativeruling shall become the court’s final ruling and the prevailing party shall give Notice of Ruling and preparean Order for the court’s signature, if appropriate under CRC 3.1312.Please be advised that the Orange County Superior Court still provides court reporters for civil law andmotion matters.1 Wells Fargo BankNA v. YaritanhaMotion to Set Aside/Vacate: GRANTGood cause has been shown since defendant has refused to execute thesettlement agreement. The case is restored to the active civil calendar. ACMC is set for June 21, 2013.Moving party to give notice.2 Farnsworth v. St.GeorgeMotion to Lift Stay of Proceedings: GRANTPlaintiff Farnsworth’s motion to lift the stay in this civil action is GRANTED.The incident in this case occurred on June 22, 2009, and with the stayordered by this court on 5-23-12 defendant St. George has had almost 4years to resolve any criminal matter pending against her. In Fuller v.Superior Court (2001) 87 Cal.App.4 th 299, “A delay of three years not onlyflies in the face of the policies behind Government Code section 68607 andthe Standards of Judicial Administration, but also exposes both sides of thelitigation to the risk of diminished memory and lost records. While a stay is apossible solution here (Pacers, Inc. v. Superior Court, supra, 162 Cal.App.3dat pp. 689-690), the court’s decision was not an abuse of discretion.” Id., at309. The Fuller decision was rendered in 2001 after the trial court delayreduction act was implemented, while Pacers was decided in 1984. Now thepolicies of reducing the risk of any further loss of memories or records andpolicies behind Government Code section 68607 control. Defendant St.George may still raise her fifth amendment privilege as to specific questionsor deposition questions as indicated. Thus plaintiff Farnsworth’s motion to liftthe stay is granted.Moving party to give notice.

3 Harper v.Canyon HillsCommunityAssociationThe motion for attorney and paralegal fees is GRANTED in part. The motionfor secretarial fees is DENIED. The Court awards to Defendants $190,753.13in attorney fees and $2,385.50 in paralegal fees.Under CCP §1033.5(c)(5), the burden of proof is on the party claimingattorney fees. The Court sees no reason that a different rule should apply tofees under CC §1354.Defendants fail to address any of Plaintiff’s challenges to their claims exceptthe challenge to fees incurred for the protective order. Such fees will begranted; Plaintiff’s own papers show that they were incurred prior toDecember or January 1913, which is when Plaintiff claims that the issuebecame moot.All other challenges will be upheld because they were not addressed byDefendants. As to fees charged by the Allen Matkins firm, there is noshowing that they are the “reasonable hourly rate is that prevailing in thecommunity for similar work.” PLMC Group v. Dexler (2000) 22 Cal.4th1084, 1095. The state of California is not a “community.”There is no showing that secretarial fees are not included as overhead in theattorney fee rate.The Court agrees with Plaintiff that she should not be required to pay costsresulting from Defendants’ decision to change attorneys.Defendants are to give notice and lodge an amended judgment.4 Doe v. Abdallah Motion to Strike or Tax Costs: See belowPlaintiff Jane Doe’s motion to strike and/or tax costs is granted in part anddenied in part. DENIED as to plaintiff’s motion to strike. Defendant Jaffa, Inc.was the prevailing party as it obtained a dismissal of all claims in regard toplaintiff’s complaint. See, C.C.P. § 1032 and Hsu v. Abbara (1995) 9 Cal.4 th863, 875 to 876. Also, defendant Jaffa, Inc. has standing because the fullname for this defendant is Jaffa, Inc. dba Vine Ripe Farmers Market. (See,Notice of Stay filed Proceedings filed 2-25-13 and Defendant’s Designation ofExpert Witnesses filed 12-14-12.) Next, defendant Jaffa, Inc.’s memorandumof costs was timely as plaintiff never served a notice of dismissal on JudicialCouncil Form CIV-120 as required to commence the 15 day time period. See,Sanabria v. Embrey (2001) 92 Cal.App.4 th 422, 425 to 426. GRANTED as toplaintiff’s motion to tax all costs except the $395.00 filing fee by defendantJaffa, Inc. dba Vine Ripe Farmers Market. There is no evidence of a C.C.P. §998 offer by defendant Jaffa, Inc. that plaintiff did not accept, so there is nobasis to claim expert witness fees of $8,500.00 for Dr. Maram as arecoverable statutory cost. See, C.C.P. § 1033.5(b)(1). Also the courtappointed discovery referee was in relation to the principal defendant AttallahAbdallah and not defendant Jaffa, Inc. Similarly, except the $395.00 filing feeby defendant Jaffa, Inc. the other filing fees, deposition costs and subpoenaswould have been incurred by defendant Attallah Abdallah and the otherdefendants even if defendant Jaffa, Inc. had not been a defendant. The courthas the discretion to apportion statutory costs when a defendant is dismissedand other defendants remain in the action that in this case is still set for trialon 6-10-13. See, Fennessy v. DeLeuw-Cather Corporation (1990) 218Cal.App.3d 1192, 1196 to 1197.

Moving party to give notice.5 MKA-GPSLending, LLC v.BarkettMotion for Sanctions: OFF CALENDAR6 Abolfazli v.AbolfazliPlaintiffs’ motion to compel further responses to special interrogatories isDENIED. Sanctions of $2200 are awarded to Defendants against Plaintiffsand their attorney of record, jointly and severally.The motion was originally untimely due to a pending trial date andDefendants were forced to incur costs to oppose the motion.Plaintiffs obtained an ex parte continuance of the trial date, an extension ofthe discovery cutoff, and a continuance of this motion. They were ordered togive notice. However, there is no notice of ruling in the Court’s file. There isa proof of service of a notice of ruling but it states that it was not served until5/17, leaving Defendants with insufficient notice and time to oppose themotion.Responding party to give notice.9 Kalfin v. Kalfin Motion to Withdraw as Counsel of Record: OFF CALENDAR10 Henkel ofAmerica, Inc. v.RazzakMotion to Withdraw as Counsel of Record: GRANTMoving counsel has shown good cause under CCP section 284(2) and CRC3.1362 to withdraw as counsel of record. Order is effective on service oforder.Counsel to give notice.

11 Mclure Ins.Brokerage, Inc.v. RoblesDefendant Robles’ motion to set an OSC re: Dismissal for failure to prosecuteis DENIED.On 4-4-13, plaintiff McLure Insurance substituted in the Law Offices ofGugliotta & Associates as its counsel of record. On 4-7-13, this civil actionwas set for trial on 10-7-13. (See, 4-13-13 Minute Order.) PlaintiffMcLure Insurance thus appeared at the case management conference settingtrial in this action. This is without prejudice to defendant Robles’ bringing adiscretionary motion to dismiss for failure to prosecute if defendant believesit has grounds for such a motion, but an OSC is not indicated as this matterhas now been set for trial.Moving party to give notice.12 Levy v. Kallman The Demurrer of Defendant MSM Financial, Inc. dba The Manzuri Group tothe Second Amended Complaint is SUSTAINED with fifteen (15) days leave toamend.The Demurrer of Defendants Kallman, Saddleback and Joinder to the SecondAmended Compliant is SUSTAINED with fifteen (15) days leave to amend.Plaintiff failed to allege the elements of the multiple causes of action. Inparticular, Plaintiff failed to allege that he relied upon the allegedmisrepresentations.For the fraud causes of action (First, Third & Fourth), Plaintiff plead theallegations specificity. Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.To state a cause of action for breach of contract, Plaintiff must attach thecomplete contract to the complaint. Paragraph 25A of Exhibit A, theResidential Purchase Agreement, states that Buyer’s Inspection Advisory is anincluded attached supplement. “A written contract is usually pleaded byalleging its making and then setting it out verbatim (‘in haec verba’) in thebody of the complaint or as a copy attached and incorporated by reference.”4 Witkin, California Procedure 5 th § 518.After the ruling on the Demurrer, the Motion to Dismiss and Motion to Strikeare moot. The OSC is also moot. There was an apparent misunderstandingconcerning which pleading should be filed.Moving parties to give notice.

13 Falber v.Sorrento Capital,Inc.14 Pacific Life v.Gold CoastSecuritiesDemurrer to Complaint: CONTINUED to 6/6/13The Demurrer to the Second Cause of Action for Concealment and the ThirdCause of Action for Negligence is SUSTAINED with fifteen (15) days leave toamend.For the concealment cause of action, Gold Coast failed to allege specificallythe source of the duty for Pacific Life to disclosure. Concealment is a form offraud. “In California, fraud must be pled specifically; general and conclusoryallegations do not suffice.” Lazar v. Superior Court (1996) 12 Cal.4th 631,645.Regarding the tolling of the statute of limitations, GoldCoast failed to allege specifically “the time and manner of discovery.” Fox v.Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808The Demurrer to the Fourth Cause of Action for Equitable Indemnity isSUSTAINED without leave to amend.Equitable indemnity ‘applies in cases in which one party pays a debt for whichanother is primarily liable and which in equity and good conscience shouldhave been paid by the latter party.’” United Services Auto. Ass'n v. AlaskaIns. Co. (2001) 94 Cal.App.4th 638, 645. Gold Coast failed to allege that itpaid a debt that Pacific Life was responsible.The “tort of another” is not a separate cause of action, but a basis to recoverattorney fees as damages. “The theory of recovery is that the attorney feesare recoverable as damages resulting from a tort in the same way thatmedical fees would be part of the damages in a personal injury action. Insuch cases there is no recovery of attorney fees qua attorney fees.” Sooy v.Peter (1990) 220 Cal.App.3d 1305, 1310. Gold Coast may allege this theoryas part of other causes of action.The Demurrer to the Fifth Cause of Action for Unfair Business Practice isOVERRULED. On a Demurrer, the court should not decide whether theaffirmative defense of the Litigation Privilege bars this cause of action.The Motion to Strike is GRANTED strike the allegations for damages on theFifth Cause of Action.Based on the ruling on the Demurrer, the Motion to Strike Punitive Damagesis MOOT.The Motion to Strike the alter ego allegations is DENIED. Only generalallegations are required. Mesler v. Bragg Management Co. (1985) 39 Cal.3d290, 300.Moving party to give notice.16 Schneider v.LaneDefendant Lane’s motion for summary judgment is DENIED.First, there is no proof of service of defendant’s motion by the messengerservice who allegedly completed the actual service on plaintiff’s counsel as

equired. Relatedly, plaintiff Schneider has not filed any written oppositionthat would waive this defect as to service. See, Carlton v. Quint (2000) 77Cal.App.4 th 690, 697. Second, on the merits, defendant Lane failed to carryhis burden that, as a matter of law, he was confronted by an imminent periland acted as a reasonably careful person. The Leo court explained thatwhether the imminent peril doctrine is applicable is generally a question offact. Similarly, the Damele court then concluded: “Whether the conditions forapplication of the imminent peril doctrine exist is itself a question of fact tobe submitted to the jury. [Citations.]” Id., at 37. In Leo, Damele and Schultz,the imminent peril doctrine was part of the instruction to the jury after trial,and not resolved by way of summary judgment. Also, the facts in the presentcase are more similar to those in Leo, where the court explained that triableissues of fact existed, rather than as in Schultz where the Court of Appealdecided that the imminent peril doctrine was applicable as a matter of lawand reversed the trial court’s order granting a new trial.Moving party to give notice.

TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraMay 9, 2013Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be postedon all law and motion matters. Please read these rules carefully. Do not call the Department unless ALLparties submit on tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However,ongoing proceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THEDEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligentlyworking on posting the rulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counselintend to submit on the tentative and do not wish oral argument, please advise the courtroom assistant bycalling (657) 622-5215. If all sides submit on the tentative ruling and so advise the clerk, the tentativeruling shall become the court’s final ruling and the prevailing party shall give Notice of Ruling and preparean Order for the court’s signature, if appropriate under CRC 3.1312.Please be advised that the Orange County Superior Court still provides court reporters for civil law andmotion matters.# meTentative1 American Fireand Casualty Co.v. CoastCommunityCollege DistrictDemurrer to the Complaint: SUSTAINED with fifteen (15) days leave toamend.Pursuant to Gov. Code § 911.2, Plaintiff was required to present agovernmental claim within one year of the “accrual” of the causes ofaction. “Accrual of the cause of action for purposes of the government claimsstatute is the date of accrual that would pertain under the statute oflimitations applicable to a dispute between private litigants.” Shirk v. VistaUnified School Dist. (2007) 42 Cal.4th 201, 209. The Complaint is unclearwhen Plaintiff’s causes of action accrued.Moving party to give notice.2 Mlinar v. Nobles Demurrer to Complaint: See belowThe demurrer to the 2d cause of action for breach of the covenant of goodfaith & fair dealing and 6th cause of action for an accounting is SUSTAINEDwithout leave to amend for failure to respond to the contentions put forth inthe demurrer. Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1,20. In addition, the 2d cause of action is duplicative of the breach ofcontract cause of action and is therefore superfluous. Guz v. Bechtel

National Inc. (2000) 24 Cal.4th 317, 352.The demurrer to the remaining causes of action is SUSTAINED with leave toamend for the following reasons.1st cause of action: Breach of contract. Some but not all of Plaintiff’s claimsare time-barred. Defendant’s remedy is a motion to strike the allegationsregarding the time-barred claims from this cause of action. Plaintiff’sadmission that he received NMTII stock instead of NMT stock more than twoyears before filing the complaint bars the breaches alleged in 29(a), (b), (d)(only as it relates to the claim of failing to show how investment wasallocated), (e) (if this relates to funding NMTII) and (f). However, claimsbased on failure to provide additional payments and “earn-out” payments arenot time-barred, i.e., §29(c) & (e).In addition, the basis for suing the entities, especially NMTII, is unclear asPlaintiff alleges in 28 that the oral contract was with Mr. Nobles. It is notalleged that he was an agent for any or all of the corporate defendants. Also,it is unclear what breach there was in relation to Gyntlecare.3d cause of action: Fraud. The claim is uncertain as to what representationswere made. Plaintiff cannot rely on discovery but must be specific,particularly as to the claims against the corporate defendants. To allegefraud against a corporation, Plaintiff must allege Mr.Nobles’ authority tospeak for the corporate defendants. Lazar v. Superior Court (1996) 12Cal.4th 631, 645. Also, the Court notes that Plaintiff does not allege that Mr.Nobles knew that his statements were false at the time they were made.Statements of opinion might be actionable fraud. Neu-Visions Sports Inc.v. Soren/McAdams/Bartels (2000) 86 Cal.App.4th 303 concernednegligent misrepresentation, not intentional fraud. Under Cooper v. Jevne(1976) 56 Cal.App.3d 860, statements of opinion can be the basis for a fraudcause of action if a person advances an opinion which he does not honestly orcannot reasonably believe. In addition, under Harazim v. Lynam (1968)267 Cal.App.2d 127, 132-133, Plaintiff may be able to state a cause of actionbased on a promise without intent to perform.As Defendants have not had the opportunity to address these cases, theCourt is willing to reconsider this ruling if there is a demurrer to the 2dAmended Complaint.4th cause of action: Negligent misrepresentation. For a negligence-basedcause of action, opinions regarding value and Plaintiff’s return on investmentare not actionable; they are only opinions regarding what the property mightsell for in the future. See Neu-Visions, 86 Cal.App.4th @ 310. Plaintiff hasnot alleged facts making these opinions actionable. In amending, Plaintiff isto either plead facts making the opinion actionable or eliminate theserepresentations.The only factual representations alleged are that NMT had certain patents(eliminating the opinion regarding their value) and that NMT had acquiredSutura, which was a profitable company (assuming this is a fact regarding itspast performance). However, it is unclear what the true facts about theserepresentations are and how Plaintiff detrimentally relied on thesestatements.5th cause of action: Unjust enrichment. Under Melchoir v. New LineProductions, Inc. (2003) 106 Cal.App.4th 779, unjust enrichment is aprinciple underlying a claim for restitution. However, Plaintiff has not pledsuch a claim and has not sought to unwind the transactions by tenderingback the money received from Defendants. Under Hernandez v. Lopez(2009) 180 Cal.App.4th 932, an unjust enrichment claim may be pled in

connection with another cause of action as an alternative to a claim forbreach of contract. Therefore, Plaintiff is given leave to plead his unjustenrichment claim as part of at least one other cause of actions. In addition,the claim suffers from the same defects as the causes of action on which it isbased.7th cause of action: Intentional infliction of emotional distress. Erlich v.Menezes (1999) 21 Cal.4th 543 dealt with a negligence claim and statedthat cases concerning fraud are distinguishable. Id. at 552. Defendants citeno authority that fraud is not outrageous. However, as stated above, Plaintiffhas not yet sufficiently pled fraud.8th cause of action: Replevin & 9th cause of action: Conversion. Plaintiffalleges that he delivered his Ferrari as an additional investment. There is noallegation that he retained title or that Mr. Nobles agreed to use the car forcollateral only. Plaintiff has not sought to rescind the transaction. Plaintiffmust clarify just what the agreement was regarding the car or plead a claimfor rescission.10th cause of action: Injunction. An injunction is a remedy, not a cause ofaction in the sense of a claim of invasion of a primary right. However,McDowell v. Watson (1999) 59 Cal.App.4th 1155, 1159-1160, noted thatthe term “cause of action” can also be used in the common sense of applyingonly to the relief sought. As a claim for an injunction has certain elementsthat must be pled and proven, the Court sees no harm in alleging it in aseparate “cause of action,” using this alternative meaning.However, the claims alleged are such that money damages are an adequateremedy. Plaintiff must plead facts to show that they are not.Moving party to give notice.3 Landis v. SmileFoods, Inc.Demurrer/Motion to Strike First Amended Complaint: CONTINUED5 Patty v. Piro Motion to Consolidate and Transfer: DENIED without prejudice to seek therequested relief in a motion filed in Dept. L-73.Plaintiff has failed to comply with Rule 3.350 in the following regards:The Notice of motion does not comply with sub§(a)(1) because:(A) It does not list all parties in both cases, state who has appeared, andname their attorneys.(B) It does not show the caption of the lowest numbered case first.(C) It was not filed in the probate action.The motion also fails to comply with sub§(b)(2)(A) because the supportingpapers must be filed in the probate case, which is the lowest numberedcase. It is the probate judge who must decide whether or not to consolidate.6 Momtahan v.CrevierMoving party to give notice.Plaintiff Momtahan’s motion for leave to file a first amended complaint:CONTINUED to 5/23/13

7 Martinez v. B ofAMotion for Judgment on the Pleadings by defendants Bank of America andReconTrust to plaintiff Martinez’s complaint is granted in part and denied inpart. (See below.)Motion is GRANTED as to plaintiff Martinez’s second cause of action forpromissory estoppel and fifth cause of action for an accounting without leaveto amend. As to plaintiff’s second cause of action, plaintiff cannot state aclaim for promissory estoppel because the contract was already executed.The purpose of promissory estoppel is to provide consideration based on apromise when consideration cannot otherwise be established. See, USEcology, Inc. v. State of Calif. (2001) 92 Cal.App.4 th 113, 130. As toplaintiff’s fifth cause of action for an accounting, the sum due under a singlemortgage note is capable of calculation at law. See, Teselle v. McLoughlin(2009) 173 Cal.App.4 th 156, 179.Motion is OVERRULED as to plaintiff Martinez’s first cause of action for breachof contract, third cause of action for violation of Bus. & Prof. Code § 17200,and fourth cause of action for negligence. As to plaintiff’s first cause of actionfor breach of contract, plaintiff Martinez has alleged that he entered into amortgage note, the mortgage required monthly payments of $1,806.00, thatplaintiff made his required monthly mortgage payments of $1,806.00, andthat due to mishandling of his account defendants initiated a foreclosureclaiming over $19,000.00 is due. At this pleading stage, this is sufficient tostate a cause of action for breach of contract. Defendants are free to file adispositive motion based on their contention that plaintiff Martinez owedmore than he was paying monthly. Also, tender in this legal cause of action isnot required, and several courts have held that pre-foreclosure sale thetender rule is not applicable. See, Pfeifer v. Countrywide Home Loans, Inc.(2012) 211 Cal.App.4 th 1250, 1282 and Barrionuevo v. Chase Bank (N.D. Cal.2012) 885 F.Supp.2d 964, 969 to 970. At this pleading stage, it would beinequitable to require tender when plaintiff Martinez contends that he madethe monthly payment of $1,806.00 called for under his mortgage note. As toplaintiff’s third cause of action for violation of Bus. & Prof. Code § 17200, atthis pleading stage plaintiff has alleged mishandling of his mortgage accountthat led to the notice of default being filed, which can be deemed unfair. InMcKell v. Washington Mutual Inc. (2006) 142 Cal.App.4 th 1457, the courtexplained as to the unfairness prong that: “As with the determinationwhether a practice is fraudulent, the determination whether it is unfair is oneof fact which requires a review of the evidence from both parties. (Citationomitted.) It thus cannot usually be made on demurrer. (Citation omitted.)”Id., at 1473. Also, plaintiff has alleged sufficient facts as to standing based onthe pending foreclosure on his personal residence. See, Sullivan v.Washington Mutual Bank, FA 2009 WL 3458300. Plaintiff Martinez’s commonlaw negligence claim supports his Section 17200 cause of action, and plaintiffMartinez has also sought injunctive relief as provided for under the UCL. As toplaintiff’s fourth cause of action for negligence, a bank may be liable innegligence if it fails to discharge its contractual duties with reasonable care.See, Das v. Bank of America, N.A. (2010) 186 Cal.App.4 th 727, 741. At thispleading stage, plaintiff Martinez has alleged sufficient facts as to mishandlingof his mortgage account by defendants as being the reason defendantsproceeded to file a notice of default. Also, the tender rule does not barplaintiff’s negligence cause of action for the reasons noted above.Moving parties to give notice.8 Magpiong v.SascoMotion for Protective Order: See below(1)The joint motion for protective order by defendants Roxford and Sasco isMOOT because plaintiff Magpiong’s motions to compel further responses toRFPD Nos. 40, 41, 42 and 43 are denied for a lack of a showing of “goodcause” for the reasons set forth in Motion Nos. 2 and 4.

(2) Plaintiff Magpiong’s motion to compel further responses to RFPD Nos. 34,35, 37, 38, 39, 40, 41, 42, 43, 44, 47, 48, 49, 54, 55, 56, 57, 102, 105, 106,107, 108, 109, 110, 111, 112, 113 and 114 by defendant Roxford is DENIEDfor lack of an evidentiary showing of “good cause” to meet plaintiff’s initialburden. See, C.C.P. § 2031.310(b)(1), Kirkland v. Superior Court (2002) 95Cal.App.4 th 92, 98, and Rutter, Civil Procedure Before Trial, Sections 8:1496and 8:1495.7.Moving party to give notice(3) Plaintiff Magpiong’s motion to compel a further response to RFA Nos. 21,22, 23, 24 and 25 is DENIED based on third party rights of privacy. First,plaintiff has not given notice to these third parties that their privateinformation is being sought. See, Alch v. Superior Court (2008) 165Cal.App.4 th 1412, 1416 and Rutter, Civil Procedure Before Trial, Section8:300.1. Also, plaintiff has not demonstrated that such information cannotreasonably be obtained by way of deposition. See, Life Technologies Corp. v.Superior Court (2011) 197 Cal.App.4 th 640, 652 to 653 and El DoradoSavings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 346. Thecourt notes that this is without prejudice in the future if plaintiff Magpiongcan make the proper showing of a compelling need and that he cannot obtainthis information through other means.Moving party to give notice.(4) Plaintiff Magpiong’s motion to compel further responses to RFPD Nos. 34,35, 37, 38, 39, 40, 41, 42, 43, 44, 47, 48, 49, 54, 55, 56, 57, 102, 105, 106,107, 108, 109, 110, 111, 112, 113 and 114 by defendant Sasco is DENIEDfor lack of an evidentiary showing of “good cause” to meet plaintiff’s initialburden. See, C.C.P. § 2031.310(b)(1), Kirkland v. Superior Court (2002) 95Cal.App.4 th 92, 98, and Rutter, Civil Procedure Before Trial, Sections 8:1496and 8:1495.7.Moving party to give notice.9 Aames GeneralStore Inc. v. B/EAerospaceMotion for Leave to File First Amended Complaint: DENY without prejudicePlaintiff Aames General Store’s motion for leave to file an amendment tocomplaint is DENIED, without prejudice, for failure to sufficiently explainwhen facts were discovered and the reasons this amendment was not madeearlier. See, Rule 3.1324(b)(3) and (b)(4). Also, in any further proposedamended complaint, plaintiff’s proposed claim for breach of oral/impliedcontract should be set forth as a separate cause of action from plaintiff’s firstcause of action for breach of the written purchase orders. Otherwise,plaintiff’s initial complaint placed defendant BE Aerospace on notice of a moresubstantive claim in excess of $49,000.00. (See, Complaint, 39, 40 and42.) Also, trial is not until 11-18-13 so sufficient prejudice is not shown. TheU.S. District Court ultimately ruled it lacked jurisdiction to consider plaintiff’smotion for reconsideration in regard to the amount in controversy. (See,Defendant’s RJN, Exhibit 5, Order Denying Plaintiff’s Motion forReconsideration for Lack of Jurisdiction filed 1-7-13, p. 2.) Finally, whetherplaintiff’s proposed cause of action for breach of oral/implied contract fails tostate a cause of action would be more appropriately raised by way ofdemurrer to a future amended complaint. See, Kittredge Sports Co. v.Superior Court (1989) 213 Cal.App.3d 1045, 1048. Moving party to givenotice.Defendant BE Aerospace, Inc.’s Request for Judicial Notice: DefendantBE Aerospace, Inc. requested that the court take judicial notice of thefollowing documents in support of its opposition to plaintiff’s motion for leaveto filed an amendment to complaint: Exhibit 1, Complaint in this case, Exhibit2, U.S. District Court Docket in Aames General Store v. B/E Aerospace, Inc.,

Case No. 8:11-cv-00663-CJC-AN, Exhibit 3, Scheduling Order of 10-25-11 inU.S. District Court, Exhibit 4, Order Remanding Case for Lack of SubjectMatter Jurisdiction filed 11-15-12, and Exhibit 5, Order Denying Plaintiff’sMotion for Reconsideration for Lack of Jurisdiction filed 1-7-13. GRANTED asto Exhibits 1, 2, 3, 4 and 5, but as to Exhibits 1 and 2 such notice if limited tothe filing of these pleadings with the court and/or that this is the U.S. DistrictCourt Docket, but not as to the truth of any claims or contentions set forth inthe pleading or the docket. See, Evidence Code § 452(d) and Day v. Sharp(1975) 50 Cal.App.3d 904, 914.Responding party to give notice.The motion for summary judgment/summary adjudication by defendant BEAerospace is DENIED.As to defendant’s motion for summary adjudication on the issue of standing,defendant BE Aerospace failed to carry its initial burden and/or there is atriable issue of material fact as to whether defendant BE Aerospacecontracted with Aaron’s General Store or Aames General Store, dba Aaron’sGeneral Store. (See, Plaintiff’s Exhibits in Opposition to MSJ/MSA, Exhibit 2,Packing Slips, and Plaintiff’s Response to Defendant’s UMF Nos. 15, 17 and19.) As to defendant’s motion for summary adjudication on the issue ofindispensable party, there is a triable issue of material fact as to whetherdefendant BE Aerospace contracted with Aaron’s General Store or AamesGeneral Store, dba Aaron’s General Store. While Aaron’s General Store filedfor bankruptcy, plaintiff Aames General Store, Inc., dba Aaron’s GeneralStore did not. Whether the bankruptcy trustee is an necessary andindispensable party could only potentially be applicable if it is determined thatdefendant contracted with Aaron’s General Store. As to defendant’s motionfor summary adjudication on the issue of unclean hands, the affirmativedefense of unclean hands is generally an issue of fact. See, Fibreboard PaperProducts Corp. v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675,727. While defendant BE Aerospace presented evidence of overlappinglocations and employees, there was evidence that the bankruptcy court inAaron’s bankruptcy approved a stipulation for use of cash and collateral.(See, Plaintiff’s RJN, Exhibits 2 and 4.) Also, the Edens Family Trustpurchased the remaining assets from Professional Business Bank (“PBB”) for$294,000.00. (See, Declaration of Samuel Edens, 6.) In addition, there isa triable issue of material fact as to whether Mr. Fox was a paid employee ofAames or not around this time. (See, Plaintiff’s Response to Defendant’s UMFNo. 64.) As to defendant’s motion for summary adjudication on the issue ofjudicial estoppel, the declaration of Samuel Edens was executed on 5-3-10, which is before the agreements with defendant BE Aerospace wereentered into, so there is no showing of misrepresentation based on thecontracts entered into with BE Aerospace around July 2010. Thus defendantfailed to carry its initial burden on the affirmative defense of judicial estoppelbased on the evidence presented at this time. As to defendant’s motion forsummary adjudication on non-conforming goods, Commercial Code § 2601authorized defendant BE Aerospace reject all or to accept any commercialunit and reject the rest, but plaintiff has presented evidence that somescrews were accepted and there is no evidence that defendant BE Aerospacehas paid for the screws it elected to accept. Thus defendant BE Aerospacefailed to carry its burden that it rejected all screws, and instead has notdemonstrated that it has paid for screws it elected to accept so it has notdemonstrated that plaintiff Aames General Store is not entitled to anypayment and/or there is a triable issue of material fact in this regard. Thecourt does not resolve issues that a partial rejection was proper as no causeof action or affirmative defense is disposed of by way of any such summaryadjudication. See, C.C.P. § 437c(f)(1), and Hood v. Superior Court (1995) 33Cal.App.4 th 319, 321. Moving party to give notice.

Defendant BE Aerospace’s Evidentiary Objections: Declaration ofSamuel Edens: OVERRULED as to Objection Nos. 1, 2, 3, 4 and 5.SUSTAINED as to Objection No. 6. Exhibits Objected to by Defendant:OVERRULED as to Objection Nos. 2, 3 and 4. SUSTAINED as to Objection No.1.Plaintiff Aames General Store’s Request for Judicial Notice: DefendantAames General Store requested that the court take judicial notice of thefollowing documents: Exhibit 1, Notice of Setting Insider Compensation inCentral District Bankruptcy Case No. 8:10-bk-11185-ES, Exhibit 2,Emergency Order for Authorizing Use of Cash Collateral in Central DistrictBankruptcy Case No. 8:10-bk-11185-ES, Exhibit 3, Stipulation by Aaron’sGeneral Store, Inc. and Professional Business Bank (“PBB”), Exhibit 4, OrderApproving Stipulation Regarding Use of Cash Collateral and GrantingReplacement Liens in Central District Bankruptcy Case No. 8:10-bk-11185-ES, Exhibit 5, Motion for Sale of Property in Central District Bankruptcy CaseNo. 8:10-bk-11185-ES, Exhibit 6, Opposition to Motion for Sale of Property inCentral District Bankruptcy Case No. 8:10-bk-11185-ES, Exhibit 7,Withdrawal re: Notice of Motion Authorizing and Approving Sale ofSubstantially All Assets of Debtor’s Estate in Central District Bankruptcy CaseNo. 8:10-bk-11185-ES, Exhibit 8, Notice of Motion and Motion for Relief fromAutomatic Stay in Central District Bankruptcy Case No. 8:10-bk-11185-ES,Exhibit 9, Order Granting Motion for Relief from Automatic Stay PersonalProperty in Central District Bankruptcy Case No. 8:10-bk-11185-ES, Exhibit10, Motion to Convert Case from Chapter 11 to Chapter 7 in Central DistrictBankruptcy Case No. 8:10-bk-11185-ES, Exhibit 11, Order on Debtor’sMotion to Convert Case from Chapter 11 to Chapter 7 in Central DistrictBankruptcy Case No. 8:10-bk-11185-ES, Exhibit 12, Final Report of Post-Petition Debts and Account in Central District Bankruptcy Case No. 8:10-bk-11185-ES, and Exhibit 13, Bankruptcy Case Closed-No Discharge in CentralDistrict Bankruptcy Case No. 8:10-bk-11185-ES. GRANTED as to Exhibits 1,2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12, but as to Exhibits 1, 3, 5, 6, 7, 8, 10 and12 such notice should be limited to the filing of these pleadings with the U.S.Bankruptcy Court and not as to the truth of an of the claims or contentionsset forth therein. See, Evidence Code § 452(d) and Day v. Sharp (1975) 50Cal.App.3d 904, 914.Defendant BE Aerospace’s Request for Judicial Notice: Defendant BEAerospace requested that the court take judicial notice of the followingdocuments: Exhibit 1, Bankruptcy Petition of Aaron’s General Store filed 1-29-12, Exhibit 2, Operating Report No. 11 for month ending December 31,2010 filed in Bankruptcy Court, Exhibit 3, Operating Report No. 14 for monthending March 31, 2011 filed in Bankruptcy Court, Exhibit 4, Operating Reportfor the month ending April 30, 2011 in Bankruptcy Court, Exhibit 5, Order ofDebtor’s motion to Convert Case from Chapter 11 to Chapter 7, Exhibit 6,Bankruptcy Petition of Samuel Vinson Edens and Mary Margaret StewartEdens filed 1-31-10 in Bankruptcy Court, Exhibit 7, Amended Motion toCompel Abandonment of Estate Property filed 6-22-10 in Bankruptcy Court,Exhibit 8, Declaration of Debtor Samuel Vinson Evans in Support of Motion toCompel Abandonment of Estate Property filed 6-22-10 in BankruptcyCourt, Exhibit 9, Order Granting Debtor’s Motion to Compel Abandonment ofEstate Property filed 8-2-10 in Bankruptcy Court, Exhibit 10, Chapter 11Debtor’s Summary of Schedules by Aaron’s General Store filed in BankruptcyCourt, Exhibit 11, Defendant BE Aerospace’s Answer to Plaintiff’s Complaintfiled 6-20-11 in Civil Case No. SACV-11-00663-CJC (ANx), Exhibit 12, MinuteOrder Remanding Case for Lack of Subject Matter Jurisdiction dated 11-15-12in Civil Case No. SACV-11-00663-CJC (ANx), Exhibit 13, Minute OrderDenying Plaintiff’s Motion for Reconsideration for Lack of Jurisdiction datedJanuary 7, 2013 in Civil Case No. SACV-11-00663-CJC (ANx). GRANTED as toExhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13, but such Notice as toExhibits 1, 2, 3, 4, 5, 6, 7, 8 and 11 is limited to the filing of these pleadingswith the U.S. Bankruptcy Court and not as to the truth of an of the claims orcontentions set forth therein. See, Evidence Code § 452(d) and Day v. Sharp

(1975) 50 Cal.App.3d 904, 914.Other Matter: The court’s docket in this case does not reflect that defendantBE Aerospace’s answer filed in federal court was ever filed in this action afterremand to state court. Defendant BE Aerospace requested that the court takejudicial notice of Exhibit 11, Defendant BE Aerospace’s Answer to Plaintiff’sComplaint in U.S. District Court. Defendant BE Aerospace should file itsanswer to plaintiff’s complaint in this state court action.Plaintiff Aames General Store’s motion for summary judgment is DENIED.A motion for summary judgment must be denied if there is a single triableissue of material fact. See, C.C.P. § 437c(c), and Zavala v. Arce (1997) 58Cal.App.4 th 915, 926. In this case, there is a material dispute over how many6-lobe screws that defendant BE Aerospace accepted, whether plaintiffAames offered to provide certification documents for the rejected screws, andwhether there was an agreed delivery date or not. (See, Defendant BEAerospace’s Response to Plaintiff’s UMF Nos. 15, 16 and 17.)Moving party to give notice.Defendant BE Aerospace’s Evidentiary Objection: Declaration ofSamuel Edens: OVERULED as to Objection Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10,11, 12, 13 and 15. SUSTAINED as to Objection Nos. 14, 17, 18 and 19.Declaration of Attorney Michael Henshaw: OVERRULED as to ObjectionNo. 1.10 Newton v. Smith Motions to be Deemed Prevailing Party: CONTINUED to 5/16/1311 Kazmark v.MarineauMotion for Preliminary Injunction: See belowThe Kazmark plaintiffs’ application for a preliminary injunction is granted inlimited part but otherwise denied as to specific relief sought like having thefence removed.GRANTED as to defendant Marineau being ordered to move the dirty andfoul-smelling railroad ties at least 100 yards from any portion of plaintiffs’property. Plaintiff has established a reasonable probability of prevailing ontheir cause of action for nuisance based on health issues in regard to theserailroad ties. See, Civil Code § 3479 and Mangini v. Aerojet-General Corp.(1991) 230 Cal.App.3d 1125, 1135. Also, such harm if it persists issufficiently irreparable. Next, defendant Marineau is enjoined from removingplaintiff’s shed and/or its contents during the pendency of this litigation.DENIED as to the requested relief of removing the wooden fence defendantMarineau just recently had installed. This would constitute a preliminarymandatory injunction and such extreme harm to support such relief is notshown. See, Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4 th 618,625. Similarly, the requests to open parking and/or remove the gate on thedirt road easement are denied. The court does not find that plaintiffs haveestablished a reasonably probability of prevailing on their claim for aprescriptive easement at this time. The court will note that plaintiffs have notdemonstrated that it will probably prevail in showing a prescriptive easement,or have demonstrated even the preliminary facts about how the lots aresituated with respect to one another, where the photographs were taken,where the fence is located, etc. In the present case, the prior owner Mr.Verburg declared that when the Kazmark plaintiffs started to keep a horse onLot 59 he demanded payment and they move the horse back onto theirproperty. (See, Declaration of Brian Verburg, 3.) This inconsistent with aclaim of hostile use. Also, the present case is not on summary judgment, butunder a standard of reasonable probability of prevailing. The Kazmark

plaintiffs have not presented sufficient evidence of a reasonable probability ofprevailing on their easement claim.Finally, plaintiffs must post a bond in the sum of $15,000.00 within 14 daysas a condition for issuance of this preliminary injunction. See, C.C.P. § 529and Abba Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 10.The court finds that this is a matter that requires an early settlementconference. The court sets an MSC for May 31, 2013 at 9:30 a.m.Moving party to give notice.12131415161718

TENTATIVE RULINGS FOR DEPARTMENT C-8Honorable Kirk H. NakamuraFebruary 28, 2013Law and Motion is heard in Department C-8 on Thursdays at 2:00 p.m. Tentative rulings willbe posted on all law and motion matters. Please read these rules carefully. Do not call theDepartment unless ALL parties submit on tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday.However, ongoing proceedings, such as jury trials, may prevent postings by that time. DONOT CALL THE DEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assuredthat the court will be diligently working on posting the rulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. IfALL counsel intend to submit on the tentative and do not wish oral argument, please advisethe courtroom assistant by calling (657) 622-5208. If all sides submit on the tentative rulingand so advise the clerk, the tentative ruling shall become the court’s final ruling and theprevailing party shall give Notice of Ruling and prepare an Order for the court’s signature, ifappropriate under CRC 3.1312.# me Tentative1 Bradshaw v. Motion to Compel Arbitration: CONTINUED to 3/14/13Pham2 Haas v. Church Motions to Compel (x4): OFF CALENDARMutual Ins. Co.3 Gilliam v. Miller Motion to Set Aside: DENYThe motion for CCP §473.5 relief from default is DENIED. The court finds thatMs. Minon had actual knowledge of this lawsuit in sufficient time to defend.Ms. Minon admitted in her 10/24/12 declaration in support of her motion for§473 relief that she received the summons on 5/1/12 but not respond to itbecause of purported defects in the summons. Therefore, it is clear that shewas served with the complaint naming both her and NONIM at the sametime. This is an admission that she and the entity had actual knowledge ofthe lawsuit on 5/1/12. They were able to defend by filing an answer at thattime.In addition, Ms. Minon attempted to appear by filing a CMC statement on9/25/12 on behalf of herself and NONIM. Even assuming that this is the firstevidence of actual notice of the lawsuit, the motion was not brought within areasonable time thereafter as required by §473.5(a).Motion to Appoint Receiver: OFF CALENDARThe court declines to rule on the papers entitled “MOTION TO APPOINT ARECEIVER” because there is neither notice of motion or a motion; Plaintiffhas filed only points and authorities and has not properly invoked the Court’sjurisdiction.Plaintiff may file a motion to appoint a receiver. To the extent that therequest includes injunctive relief, such relief should be specified in the noticeof motion and motion.Except as stated below, cases cited are to be limited to cases in which areceiver was appointed to collect an ordinary money judgment. Plaintiff is notto include cases in which a receiver is authorized under statutes other thanCCP §564. In other words, his cases must be directly on point; stringcitations are to be avoided.Plaintiff may include cases authorizing the specific terms requested in the

4 Perez v. WellsFargo HomeMortgage, Inc.proposed order but is to clearly indicate what these cases are being cited forin his points and authorities. He may also present evidence showing that therequested terms have been ordered by other judges.There are several issues raised by the proposed order. Plaintiff seeks to havea receiver appointed over all assets of an individual judgment debtor, eventhough some of those assets are exempt from collection. It is unclearwhether the costs of the receivership are to be added to the judgment or tobe paid by the plaintiff using funds collected by the receiver. If the former,Plaintiff must provide authority permitting collection costs to be added to ajudgment.Is the receiver to have authority to take charge of businesses that are notjudgment debtors merely because they have some “relation” to thedefendants? Plaintiff should avoid making overbroad requests that includeassets that are not subject to collection.OSC re: Preliminary Injunction: GRANTThe Court issues a preliminary injunction enjoining the defendants and theiragents, servants, employees and representatives, and all persons acting inconcert or participating with them, from engaging in, committing, orperforming, directly or indirectly, any and all of the following acts during thependency of this action: proceeding with a foreclosure sale or otherwise inany way transferring, further encumbering or in any way adversely affectingthe real property identified as 1525 Franzen Avenue, Santa Ana, CA 92705.No undertaking is required. However, plaintiffs are ordered to make monthlypayments of $3,087.95 to Wells Fargo Home Mortgage beginning April 1,2013 and to pay and remain current on property taxes and insurance on theproperty as a condition of the injunction.All counsel are advised that the Court has determined that the requirementsof CRC 3.1113 apply to ex parte applications for temporary restraining ordersand to oppositions and replies to such applications. Therefore in the futurethe Court may, in its discretion, refuse to consider points and authoritieswhich exceed the maximum page limitations.Moving party to give notice.5 Mlinar v. Nobles Demurrer to Complaint: OFF CALENDAR6 La v AvecNightclubDemurrer to the Second Amended Complaint: OVERRULEThe defendant is ordered to serve and file an Answer to the Second AmendedComplaint by no later than March 8, 2013.The Court has undertaken the analysis set forth in Castaneda v. Olsher(2007) 41 Cal.4th 1205, 1214, to determine the existence and scope of thedefendant’s duty to protect against third party crime. The Court hasdetermined that fights are reasonably probable to occur at a club and that

7 Liberty MutualIns. Co. v.KraftsmanConstructiontherefore fights at a club are highly foreseeable. Thus defendant had a dutyof care to act to promptly break up fights occurring in the club. Plaintiff has(barely) alleged sufficient facts to support a conclusion that defendantbreached this duty of care by not breaking up the fight, and that as a resultplaintiff was injured. Whether the plaintiff can meet its burden to show thatthis duty was breached at the time of trial, or whether a summary judgmentis in order on behalf of the defendant, remains to be seen.Plaintiff to give notice.Demurrer to First Amended Complaint: OVERRULEThe Demurrer to the First Amended Complaint is overruled as to all causes ofaction. Defendant’s Request for Judicial Notice is denied. The Court strikesthe following language from the caption to the Third Cause of Action on page4, line 2: [Labor Code §3852-3853].Defendant Glenn Allen Barr dba Kraftsman Construction is ordered to serveand file an Answer to the First Amended Complaint by no later than March11, 2013.The Contractual Two Year Statute of LimitationsDefendant alleges that the lawsuit is barred by the two year statute oflimitations contained in the contract. FAC, Exhibit A, page 3, Section 10.However, on its face this language only applies to the parties to the contract,not to third party beneficiaries. Also, since the Court has denied defendant’sRequest for Judicial Notice there are no facts before the Court that defendantceased work on the project more than two years before this action was filed.Even if the Court were to grant defendant’s Request for Judicial Notice, it isnot clear from plaintiff’s Statement of Facts in its Trial Brief in the worker’scompensation case that defendant had entirely ceased work on the project inlate November of 2009. Therefore it is not clear from the facts that thisaction was filed more than two years after defendant ceased to work on theproject.The First Cause of Action for Breach of ContractAlthough plaintiff is not a party to the contract, plaintiff is mentioned in thecontract as the entity which is to pay for the work. See FAC, Exhibit A, page1, under the heading “Construction Lender”. Thus plaintiff argues that it mayenforce the contract as a third-party beneficiary. The court agrees.Civil Code §1559 provides that a contract made expressly for the benefit of athird person may be enforced by him at any time before the parties theretorescind it.Plaintiff was required by the Worker’s Compensation Appeals Board to pay forthe cost of modifying Ms. Lovett’s home. Therefore, the contracted work wasto fulfill plaintiff’s obligation under the Board’s order. The Worker’sCompensation Appeals Board imposed a burden on plaintiff: that plaintiff payfor the work. It can be reasonably inferred that the intent of the contract wasto benefit plaintiff so that the work performed under the contract wouldsatisfy plaintiff’s obligations.The Second Cause of Action for NegligencePlaintiff alleges that the defendant was negligent in performing the work onthe residence and that as a result plaintiff had to pay over $300,000.00 toretain the services of another contractor to redo the work. FAC, paragraphs11 and 12.These allegations are sufficient to support the elements of breach of duty anddamages.Whether or not a duty of care existed between defendant and plaintiff is aquestion of law. Kentucky Fried Chicken of California v. Brown (1997) 14 Cal.

4 th 814, 819.Whether a duty is owed is simply a shorthand way of phrasing what is“'the essential question - whether the plaintiff's interests are entitledto legal protection against the defendant's conduct.”J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 803.Plaintiff was obligated to pay for the work to be performed under the contractbetween defendant and Ms. Lovett (See FAC, paragraphs 5 and 7 and ExhibitA, page 1), and therefore plaintiff had an interest in seeing that the work wasperformed in a competent manner. As a matter of equity, this interest isentitled to protection against defendant’s alleged conduct in performing thework in an incompetent manner.The Third Cause of Action for SubrogationPlaintiff alleges that it is entitled to subrogation under Labor Code §§’s 3852and 3853. In the Opposition plaintiff admits that plaintiff erroneously labeledthis cause of action as being based on the Labor Code. Opposition, page 6,lines 3 – 4.Plaintiff nevertheless claims that it is entitled to allege a subrogation cause ofaction. Plaintiff is correct.When an insurance company pays out a claim on a property insurancepolicy, the insurance company is subrogated to the rights of itsinsured against any wrongdoer who is liable to the insured for theinsured's damages.State Farm General Ins. Co. v. Wells Fargo Bank, N.A. (2006) 143Cal.App.4th 1098, 1106.Plaintiff alleges that it was required by the Worker’s Compensation AppealsBoard to pay for modification work to Ms. Lovett’s residence. FAC, paragraphs5 and 7. The contract acknowledges that plaintiff was to pay for the work.Exhibit A, page 1. As in the case where a property insurer is contractuallyobligated to pay an insured’s claim, here plaintiff was legally obligated to payfor necessary modification work on its’ insured’s employee’s home. Thereforeas a matter of equity plaintiff should be allowed to assert a subrogation claimagainst the alleged wrongdoer.Plaintiff to give notice.8 Kim v. Kwak Demurrer to First Amended Complaint: See belowDefendants’ demurrer to the 2d cause of action of the 1st AmendedComplaint is SUSTAINED without leave to amend. Their demurrer to the 5thcause of action for fraud [erroneously designated a 4th cause of action] isOVERRULED.2d C/A: Promissory estoppel. Under Healy v. Brewster (1963) 59 Cal.2d455, 463, if detrimental reliance on a promise is bargained for, i.e., if there isconsideration, there is breach of contract and promissory estoppel cannot bealleged. If there is no detrimental reliance, the elements of promissoryestoppel cannot be established. Plaintiff has alleged a promise to repay anddetrimental reliance by loaning money. If one or both of these cannot beproven, there is neither a cause of action for breach of contract nor one forpromissory estoppel. The fact that Defendant denies that the loan was madedoes not matter; if this claim succeeds, Plaintiffs cannot recover under eithertheory.4th C/A: Fraud. Under Tenzer v. Superscope Inc. (1985) 39 Cal.3d 18,30, a Plaintiff must prove more than mere none performance to establish lackof intent at the time the contract was made; however, failure to attempt

9 Henkel ofAmerica v.razzakperformance and continued assurances when it is clear performance is notforthcoming constitute evidence of fraudulent intent. These can be inferredfrom the fact that Mr. Kwak gave checks with instructions not to cash themand his later statement that he would pay before he died, i.e., not for a longtime. In addition, Tenzer concerned what must be proven, not what must bepled. Under Universal By-Products Inc. v. City of Modesto (1974) 43Cal.App.3d 145, 151, it is not necessary to plead the facts which raise theinference that the promise was false.Moving party to give notice.Demurrer to Complaint/Motion to Strike: OFF CALENDAR10 Newton v. Smith Plaintiff’s Motion for Judgment Notwithstanding the Verdict and Motion forNew Trial are DENIED.As the trier of fact, the court was not required to base the fair rentable valueon expert testimony. “[E]xpert testimony is not required where a question is'resolvable by common knowledge.’” Ball v. Posey (1986) 176 Cal.App.3d1209, 1215.This issue is not “within the knowledge of experts only.”Allgoewer v. City of Tracy (2012) 207 Cal.App.4th 755, 762 (Emphasisoriginal).In Kohn v. Superior Court (1983) 142 Cal.App.3d 323, 329, the court heldthat offsets were appropriate concerning the sale of real property. “[T]herewas but one injury, [the] purchase of a house which was worth less thanplaintiffs believed. . . . The alleged tortious activities by the contractor, pestcontrol inspector and seller were not independent, but combined to createone indivisible injury which took place when the sale was consummated.”Irrespective of the legal theories, an offset is appropriate when thetortfeasors produce a single injury. Oliveira v. Kiesler (2012) 206 Cal.App.4th1349, 1361The additional offsets were mandated “to restore the parties as nearly aspossible to their former positions.” Sharabianlou v. Karp (2010) 181Cal.App.4th 1133, 1144-1145.Defendant to give notice.Defendant’s Motion for Judgment Notwithstanding the Verdict and Motion fora New Trial are DENIED.There was sufficient evidence to support the finding of fraud.The evidence supported the jury’s decision that defendant concealed orsuppressed a material fact and that defendant was under a duty to disclosethe fact to the plaintiff. Boschma v. Home Loan Center, Inc. (2011) 198Cal.App.4th 230, 248.Issues Nos. 10, 11 &12 (Exhibit D) failed to disclosure that there were pestson the property, that these pests had caused damaged and that theyrequired eradication. These responses could be considered concealment.11 Harper v.Canyon HillsCommunityAsso.Plaintiff to give notice.Motion for Summary Judgment/Adjudication/Motion for Judgment on thePleadings: The motion for judgment on the pleadings is GRANTED withoutleave to amend.The Court believes that Plaintiff is a third party beneficiary of the dutycreated by the Association Guidelines to make neighbors aware of proposedplans for improvements. The Guidelines state that the purpose of the form is

to permit the Association to consider the concerns of neighbors indetermining whether to approve to a proposed improvement. In addition, theGuidelines expressly impose a duty on the committee to take intoconsideration the objections of neighbors. Plaintiff is clearly a third partybeneficiary of this obligation.Therefore, the Valentines had a duty to show the plans to Plaintiff. However,Plaintiff doesn’t expressly allege that if she had known of the plans, shewould have filed objections with the Board at the time of the initial approvaland that her objections would have made a difference with the Board. Nordoes her proposed First Amended Complaint contain any such allegation.In addition, the Court takes judicial notice of Plaintiff’s opposition to theAssociation’s motion for summary judgment and the fact that she haspresented no admissible evidence that the Valentines’ plans violated anyprovisions of the CC&Rs.Plaintiff’s request for leave to amend is an untimely request forreconsideration of the Court’s 9/12/12 order. CCP §1008.The motion for summary judgment is GRANTED. Plaintiff has not met herburden to defeat the presumption of the good faith, lack of willfulmisconduct, and acts in the best interests of the Association. See Katz v.Chevron Corp. (1994) 22 Cal.App.4th 1352, 1366.The common law business judgment rule did not apply to homeownerassociations. Lamden v. La Jolla Shores Clubdominium Association(1999) 21 Cal.4th 249, 260. However, the Court adopted an analogous rulewhen a board exercises its discretion in good faith, upon reasonableinvestigation, and with regard to the best interests of the association. (Id. at265.) There is nothing in the case limited it to decisions about commonareas. See also Harvey v. The Landing Homeowners Assn (2008) 162Cal.App.4th 809.Gaillard v. Natomas (1989) 208 Cal.App.3d 1250 predated Lamden’sextension of the rule to homeowner associations. In Affan v. PortofinoCove Homeowners Assn (2010) 189 Cal.App.4th 930, there was noevidence of investigation. Here, the Association presented such evidence inthe Hughes declaration.After the approval was granted, Plaintiff complained to the Board that,although she had approved previously submitted plans, she had not approvedthe plans that were ultimately adopted. She states in 14 of her declarationthat she raised three issues:1. The construction was destroying the value of her home, lot and protectedviews,2. It had never been disclosed, and3. It was “an objectionable and unreasonable encroachment upon myproperty and personal rights.”She also admits that in response to her claims that the NeighborhoodAwareness form was a forgery, the Association canvased the affectedhomeowners to determine if they had objections. The Court holds that thiswas the only duty it had in regards to claims of forgery. Plaintiff presents noevidence that any other owner had an objection to the construction.Therefore, the issue is whether the Association, upon learning of the forgery,had a duty under the facts of this case to reexamine its decision to approvethe construction. The Court notes that there is no evidence that it undertookany such reconsideration.The factors to consider in whether or not to impose a duty are stated inJ'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 804. They are:

12(1) the extent to which the transaction was intended to affect theplaintiff: Under the CC&Rs, the effect on neighboring properties is one of thefactors that the Association is to take into consideration. This factor favorsPlaintiff.(2) the foreseeability of harm to the plaintiff: The Association was givena Neighborhood Awareness form. At that point, it was not foreseeable that Plfwould be harmed by a forged form. Once the forgery was disclosed, asPlaintiff was the nearest neighbor, harm was foreseeable if the improvementimpaired her interests. This factor favors Plaintiff.(3) the degree of certainty that the plaintiff suffered injury: There isNO evidence that Plaintiff was injured or that the Association would have orshould have changed its decision if it reconsidered. The only injury Plaintiffclaimed when she raised the issue is that her view would be impaired andthat the improvement vaguely encroached on her property and rights. As toview, it is undisputed that the improvement was lower than the one she hadapproved. She has not shown that there was any encroachment. This factorfavors the Association. Since none of the things Plaintiff complains of NOWwere raised at that time, they are irrelevant to this issue.(4) the closeness of the connection between the defendant's conductand the injury suffered: For the same reasons, there is no showing thatPlaintiff was injured by the failure of the Association to reconsider its decisionupon learning of her objection.(5) the moral blame attached to the defendant's conduct: There is noshowing of any intent to injury Plaintiff or to act otherwise than in the bestinterests of the community as a whole.(6) the policy of preventing future harm: The issue is whether to imposea duty on an Association to reconsider upon learning that a NeighborhoodAwareness form was forged when the complaining homeowner fails to stateany substantial injury. The issue is not whether to impose a duty if thehomeowner complains of substantial injury. Thus, there is no likelihood ofsignificant future harm.Plaintiff’s objections: Objections ##1-9, 11 & 12 are OVERRULED.Objection #10 is SUSTAINED. Objection ##13 & 14 are OVERRULED to theextent that Mr. Hughes purports to testify to the good faith and lack of willfulmisconduct of the other directors.The Court will not rule on Plaintiff’s objections ##16-27 because these areobjections to factual contentions in the separate statement and not toevidence.Defendant’s objections: Objections ## 2 & 4 are OVERRULED. Objections## 1, 3 and 5-11 are SUSTAINED.Defendant to give notice.1314

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TENTATIVE RULINGS FOR DEPARTMENT C-8Honorable Kirk H. NakamuraFebruary 21, 2013Law and Motion is heard in Department C-8 on Thursdays at 2:00 p.m. Tentative rulings willbe posted on all law and motion matters. Please read these rules carefully. Do not call theDepartment unless ALL parties submit on tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday.However, ongoing proceedings, such as jury trials, may prevent postings by that time. DONOT CALL THE DEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assuredthat the court will be diligently working on posting the rulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. IfALL counsel intend to submit on the tentative and do not wish oral argument, please advisethe courtroom assistant by calling (657) 622-5208. If all sides submit on the tentative rulingand so advise the clerk, the tentative ruling shall become the court’s final ruling and theprevailing party shall give Notice of Ruling and prepare an Order for the court’s signature, ifappropriate under CRC 3.1312.# me Tentative1 People v.Schwartz2 Lentini v. EBSAutomotiveServices3 RadfordVentures, LLC v.SouthernCalifornia GasApplication for Withdrawal of Deposit: GRANTThe Court notes that default was entered against Diane Hufstedler on January9, 2013, and that Ms. Hufstedler was mistakenly included as a moving partyin the Joint Verified Application for Withdrawal of Probable JustCompensation.Defendants S. Alan Schwartz and Jacqueline F. Schwartz, as Trustees, SteveHufstedler as Trustee, and J.C. Management, Inc.’s Application forWithdrawal of Probable Just Compensation Deposit is granted.The State Treasurer is ordered to:(1) Draw a warrant on the State Condemnation Deposits Fund in theamount of $3,066,208.70 (the $3,191,201.00 requested in theApplication, plus plaintiff’s additional deposit of $9,000.00 made onDecember 18, 2012, minus the $133,992.30 owed by Steve Hufstedlerto the United States of America) made payable to “Rutan and TuckerClient Trust Account” for defendants S. Alan Schwartz and JacquelineF. Schwartz, as Trustees and Steve Hufstedler as Trustee (owners);(2) Draw another warrant on the State Condemnation Deposits Fund inthe amount of $171,799.00 made payable to defendant JCManagement, Inc. (tenant); and(3) Draw another warrant on the State Condemnation Deposits Fund inthe amount of $133,992.30 ($127,614.99 plus accrued butunassessed interest of $6,377.31for the 2003 tax year) made payableto the United States of America for Steve Hufstedler’s federal taxliabilities.Moving party to give notice.Motion: CONTINUED to 3/21/13Motion to Tax Costs: DENYPlaintiff Radford Ventures LLC’s Motion to Tax Costs is denied. DefendantSouthern California Gas Company’s claimed costs of $6,701.00 are allowed infull.

Co.Responding party to give notice.4 Garcia v. Adams Motion to Compel Form Interrogatories, Special Interrogatories, Demand forProduction: MOOTRequest for Sanctions is DENIED.5 Landis v.PhanucharasDemurrer to Answer (x2): OFF CALENDAR6 Neely v. City ofSan ClementeDemurrer to Complaint: OVERRULE; 15 days to answerGov. Code §831.4 states in pertinent part: A public entity . . . is not liable foran injury caused by a condition of: (a) Any unpaved road which providesaccess to . . . recreational or scenic areas . . . (b) Any trail used for the abovepurposes. The plain meaning of this is that a trail used for access torecreational areas is within the immunity.Treweek v. City of Napa (2000) 85 Cal.App.4th 221, 229, rejected theclaim that a structure cannot be a “trail” simply because it was only used foraccess. However, it also rejected an expansive reading that anything passedover in accessing a recreational area was necessarily a trail. (Id. at 232.) Itnoted that it did not reject the concept that a ramp or a stairway could be atrail if it was part of or essential to an immunized trail. (Id. at 232.Amberger-Warren v. City of Piedmont (2006) 143 Cal.App.4th 1074 heldthat “trails” includes trails that are used solely for access to activities listed in§831(a), which includes recreational areas.Applying the Amberger-Warren factors stated @ 1083, the Court holds that astairway can be a “trail” if it is part of or essential to an immunized trail.1. The definition of a stairway as connecting different levels does noteliminate the possibility that a stairway can be a trail, as Treweek noted thateven a ramp or stairway can be a trail under some circumstances.2. The purpose of providing access to recreational areas comes within theplain language of §831(a). However, under Treweek and Amberger-Warren,this must be its sole or primary purpose.3. Immunizing stairways used exclusively for access to recreational areasfulfills the statutory purpose of protecting public entities from liability foropening recreational areas to the public. However, immunizing stairways thatare used for other purposes does not.Whether the subject stairway is used solely or primarily for beach access is aquestion of fact which will require discovery.Plaintiff to give notice.

7 Gabb v. Shapiro Demurrer to First Amended Complaint: OFF CALENDAR8 Nguyen v.Huckabee9 Reid v. County ofOrange10 Lupinetti v. LePooch11 Harper v.Canyon HillsCommunityAsso.12 Wherry v.Century 21Demurrer to Second Amended Complaint: SUSTAINED with 20 days leave toamendThe demurer to the 5th cause of action for breach of express contract isSUSTAINED with leave to amend. Plaintiff is to plead verbatim the terms ofthe express contracts that he alleges were breached. If he attaches thedocuments he relies upon, he is to cite in the complaint the particularprovisions of those documents that he is relying by page number, heading, orsome other form of identification. Otworth v. Southern Pac.Transportation Co. (1985) 166 Cal.App.3d 452, 458-459. If he continues torely upon Ex. A to the 1st Amended Complaint, he must plead factsestablishing that the second paragraph of p. 3 is inapplicable and be preparedto cite supporting authority if there is another demurrer.The demurrer to the 7th and 8th causes of action is SUSTAINED for lack ofopposition.Moving party to give notice.Defendant County of Orange’s Demurrer to the First Amended Complaint:OFF CALENDARMotion for Summary Judgment/Adjudication (x2): OFF CALENDARMotion for Summary Judgment/Adjudication/Motion for Judgment on thePleadings: CONTINUED by the court to 2/28/13Motions for Summary Judgment/Adjudication; Jonders: See belowRulings Common to Each Motion:Evidentiary Objections:Objections to the Declaration of Andrea Ainslie, Plaintiffs’ Exhibit No. 3: Overruled: Nos. 1-5. Sustained: Nos. 6-14.Objections to Declaration and Deposition of Denise McFarland,Plaintiffs’ Exhibit No. 4: Overruled: Nos. 1-2, 4, 10, 13-14, 18-19, 22- 26, 30-37, 39-47 and 50-60. Sustained: Nos. 3, 5-9, 11-12, 15-17, 20-21, 27-29, 38 and 48-49.Objections to the Declaration of Lori Sitterding, Plaintiffs’ Exhibit No. 5: Overruled: Nos. 1-15 and 17-18. Sustained: No. 16.Objections to the Declaration and Deposition of Gretchen Cook,Plaintiffs’ Exhibit No. 6: Overruled: Nos. 1, 4-5, 14, 22, 30 and 32-46.

Sustained: Nos. 2-3, 6-13, 15-21, 23-29 and 31.Objections to the Declaration and Deposition of Heather Batson,Plaintiffs’ Exhibit 7: Overruled: Nos. 1-4, 6-8, 10-13, 18-19, 22-23, 25-26, 31, 34, 36-45,47-50, 52-53, 55-67, 71-72, 74 and 77-103. Sustained: Nos. 5, 9, 14-17, 20-21, 24, 27-30, 32-33, 35, 46, 51 (as to“I recall hearing around the century 21 office…”, 54, 68-70, 73, and75-76.Objections to Declaration of Rocelyn Traieh, Plaintiffs’ Exhibit No. 8: Overruled: Nos. 2-5, 8-16, 18-25 and 27-30. Sustained: Nos. 1 (as to “Mr. Britton discriminated…”), 6, 7 (as to “Ioverheard…”), 17 (as to “ as if he was trying to impress me) and 26.Objections to the Declaration and Deposition of Karena Wherry,Plaintiffs’ Exhibit 9: Overruled: Nos. 1, 3-6, 10, 12-13, 15-18 and 20-32. Sustained: No. 2, 7-9, 11, 14 (to avoid losing to Mr. Britton’s girlfriend)and 19.Objections to the Declaration of Bonnie Hall, Plaintiffs’ Exhibit 10: Overruled: Nos. 3-5, 8-13, 16-18 and 20-27. Sustained: Nos. 1-2, 6-7, 14-15, and 19.Objections to Declaration of Maria Marquez, Plaintiffs’ Exhibit No. 12 Overruled: Nos. 1-5, 10, 13-14 and 17-21. Sustained: Nos. 6-9, 11-12 and 15-16.Objections to the Declaration of Julie Carmean, Plaintiffs’ Exhibit No. 13 Sustained: Nos. 1-11.Objection to the Declaration of Lila Romero, Plaintiffs’ Exhibit 14: Overruled: Nos. 1-18, 21-24 and 30-36. Sustained: Nos. 19-20 and 25-29.Objections to the Declaration of Cherie Corlew, Plaintiffs’ Exhibit 15: Overruled: Nos. 1-4. Sustained: Nos. 5-9.Objections to the Declaration of Arlan Lloyd, Plaintiffs’ Exhibit 16: Overruled: Nos. 1-2, 5-6 and 14. Sustained: Nos. 3-4, 7-13 and 15.

Objections to the Declaration of Dwan Torres, Plaintiffs’ Exhibit 17 Overruled: Nos. 1-2. Sustained: Nos. 3-8.Objections to the Declaration of Jennifer Burke, Plaintiffs’ Exhibit 18: Overruled: Nos. 1-9, 12-13, 17-24, 26-38 and 43. Sustained: Nos. 10 (as to “based on his harassment), 11, 14 (as to “Iwas also aware…”), 15-16, 25 and 39-42.Objections to the Declaration of Carleen Isaccs, Plaintiffs’ Exhibit No.19. Overruled: Nos. 2-20, 23, 28-29, 31-33, 36, 39-40 and 42-47. Sustained: Nos. 1, 21, 24-27, 30, 34-35, 37-38 and 41.Objections to the Declaration of Cindy Hallock, Plaintiffs’ Exhibit 20: Overruled: Nos. 1-19 and 21-25. Sustained: Nos. 20 and 26-29.Objections to the Declaration of Barbara Cangas, Plaintiffs’ Exhibit 21: Overruled: Nos. 1-17, 19-22 and 24. Sustained: Nos. 18, 23 (as to “I learned later from Ms. Hallock…”) and25-27.Objections to the Declaration of Dave McGee, Plaintiffs’ Exhibit 22: Sustained: Nos. 1-17.Objections to the Declaration of Rick Merwin, Plaintiffs’ Exhibit 23: Overruled: Nos. 1, 12, 20 and 28-29. Sustained: Nos. 2-11, 13-19 and 21-27.Objections to the Deposition of Shannon Braly, Plaintiffs’ Exhibit No. 24: Overruled: Nos. 1-8.Objections to the Deposition of Gregory Britton, Plaintiffs’ Exhibit No.25: Overruled: Nos. 1-2 and 4. Sustained: Nos. 3.Objections to the Deposition of Linda Wise, Plaintiffs’ Exhibit No. 27: Overruled: Nos. 1-3.Objections to the Deposition of Patricia Chavaria Perez, Plaintiffs’Exhibit No. 29: Overruled: Nos. 1-41.Objection to Puente Consulting Working File, Plaintiffs’ Exhibit 30:

Sustained.Objection to Puente Consulting Billing, Plaintiffs’ Exhibit 31: Sustained.Objection to Puente Consulting Retainer, Plaintiffs’ Exhibit 32: Sustained.Objections to Excerpts from Puente Consulting Traieh Investigation,Plaintiffs’ Exhibit 33-1: Overruled: Nos. 1-2Objection to Puente Consulting Traieh Investigation, Plaintiffs’ Exhibit33-2: Sustained.Objection to Puente Consulting Wherry Investigation, Plaintiffs’ Exhibit34: Overruled.Objection to the Deposition of David Romero, Plaintiffs’ Exhibit No. 35:Overruled.Objections to the Deposition of David Romero, Plaintiffs’ Exhibit No. 36: Overruled: Nos. 1-2Objections to Emails Bates-labeled PUENTE 000486-000489, PlaintiffsExhibit 38: Sustained: 1-3.Objection to Email Chain dated August 8, 2007: Plaintiffs Exhibit 40:Sustained.Objections to the Declaration of Jason Oliver (Attorney): Overruled: Nos. 59, 60, 91-95, 147-152, 162, 274-275, 286, 292, 294,296, 298, 303, 304, 305, 311-316 and 319. Sustained: Nos. 1-58, 61-90, 96-146, 153-161, 163-273, 276-285, 287-291, 293, 295, 297, 299-302, 306-310, 317-318 and 320-323.Plaintiffs’ Objections: Sustained: Nos. 1-4.Plaintiff’s Request for Judicial Notice: GRANTED in part. The Court takesjudicial notice of the existence of the subject documents; however, the Courtdoes not take judicial notice of the contents. Lockley v. Law Office of Cantrell,Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4 th 875, 882.RULINGS ON MOTIONS:(1) Motion for Summary Judgment/ Adjudication: (Award v. Traieh)GRANT in part and DENY in part. Summary adjudication is denied, as toPlaintiff’s First, Second and Third Causes of Action. Additionally, summaryadjudication of Plaintiff’s claim for punitive damages is denied.Summary adjudication is granted as to Plaintiff’s Fourth Cause of Action.First Cause of Action: Sex Discrimination:Pursuant to Pantoja v. Anton (2011) 198 Cal.App.4 th 87, “me-too” evidence isadmissible under Evidence Code §1101(b), to demonstrate discriminatoryintent: “evidence of a male supervisor’s sexually offensive remarks to andtouching of other women employees is probative of the supervisor’sdiscriminatory intent in firing a female plaintiff for refusing to have sex withhim.” Id. at 115.Additionally, pursuant to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4 th243, “[p]roof of discriminatory intent often depends on inferences rather thandirect evidence. And because it does, very little evidence of such intent is

necessary to defeat summary judgment. Put conversely, summary judgmentshould not be granted unless the evidence cannot support any reasonableinference for plaintiff.” Id. at 283.Lastly, pursuant to Scotch v. Art Institute of California-Orange County, Inc.(2009) 173 Cal.App.4 th 986, in determining whether a Plaintiff has met herburden under the McDonnel Douglas formula, the Court must view theevidence in the light most favorable to Plaintiff, as the non-moving party,liberally construing her evidence while strictly scrutinizing Defendants. Id. at1005.In this instance, Plaintiff has submitted the testimony of several individuals,which indicate that Defendants did not enforce a minimum sales quotabetween 2006 and 2007. [Ms. Jackson, (Exhibit 26:172:23-174:16); Ms.Cook, (Exhibit 6-C: 4); Ms. Traieh, (Exhibit 8-A: Page 3); Ms. Wherry,(Exhibit 9-A: Page 3; Exhibit 9-B: 85:12-19); Ms. Margquez, (Exhibit 12-B:3); and Ms. Romera, (Exhibit 14-B: 4)].Additionally, Plaintiff declares that, within a few weeks of rejecting Mr.Britton’s advances and the company receiving an email complaining aboutMr. Britton’s sexual advances, Plaintiff was terminated. (Exhibit 8-A: Page 2).Further, Plaintiff provides several declarations from women who indicate thatMr. Britton either flirted with or harassed them. (Ms. Ainslie: Exhibit 3:4-5)(Ms. Sitterding: Exhibit 5:4-6) (Ms. Batson: Exhibit 7:4-9).Thus, based on the above, Plaintiff has presented sufficient evidence to raisea triable issue of material fact, as to whether Defendants’ reason forterminating Plaintiff is untrue or pre-textual.As Plaintiff submits evidence which indicates that a sales-quota was notenforced by Award, Plaintiff presents evidence sufficient to contradictDefendants’ assertion that Plaintiff’s termination was based on a failure tomeet this quota.Further, given the evidence presented by Plaintiff which demonstrates thatPlaintiff was terminated shortly after rejecting Mr. Britton’s advances, inconjunction with the above evidence concerning sales-quotas, Plaintiff haspresented sufficient evidence to support the assertion that a discriminatorymotive more likely caused the termination. Morgan v. Regents of Universityof California (2000) 88 Cal.App.4 th 52, 68.Viewing the evidence in the light most favorable to Plaintiff, as the nonmovingparty, Defendants’ request for summary adjudication is denied.Scotch v. Art Institute of California-Orange County, Inc. (2009) 173Cal.App.4 th 986, 1005.Second Cause of Action: Sexual Harassment:In construing California’s FEHA, the Court of Appeal has held that “the hostilework environment form of sexual harassment is actionable only when theharassing behavior is pervasive or severe.” Brennan v. Townsend & O’LearyEnterprises, Inc. (2011) 199 Cal.App.4 th 1336, 1346.“To prevail on a hostile work environment claim under California’s FEHA, anemployee must show that the harassing conduct was ‘severe enough orsufficiently pervasive to alter the conditions of employment and create a workenvironment that qualifies as hostile or abusive to employees because oftheir sex.” Id. at 1346-1347.“There is no recovery for harassment that is occasional, isolated, sporadic, ortrivial.” Id. at 1347.Additionally, a Plaintiff alleging a hostile work environment, based on conductdirected at others, must “establish that the sexually harassing conductpermeated her direct work environment.” Id.

“To meet this burden, the plaintiff generally must show that the harassmentdirected at others was in her immediate work environment, and that shepersonally witnessed it. The reasons for this is obvious: if the plaintiff doesnot witness the incidents involving others, those incidents cannot affect herperception of the hostility of the work environment.” Id.Here, Plaintiff relies extensively on the testimony of other alleged victims ofMr. Britton to establish a hostile work-environment; however, as Ms. Traiehfailed to present evidence which demonstrates that each of these incidentswas directly witnessed, pursuant to Brennan, the testimony of these otherwomen is irrelevant to this claim.Nonetheless, given Ms. Traieh’s statement that she witnessed Mr. Brittonbehave inappropriately towards other agents more than 20 times, sufficientevidence has been presented to raise a triable issue of material fact. (Exhibit8-B: 143:17-146:16; 221:4-9).Given this testimony, although Mr. Britton’s behavior does not appear severe(given that it did not involve inappropriate touching), it may be sufficientlypervasive to establish liability.Further, while Defendants assert that Plaintiff’s claim fails as Ms. Traieh didnot feel harassed, Ms. Traieh has provided sufficient testimony todemonstrate that this issue is disputed.Thus, based on all of the above, Defendants’ request for summaryadjudication of this claim is denied.Third Cause of Action: Failure to Prevent Discrimination/ Harassment:Defendants assert that, as there has been no discrimination or harassment,Plaintiff's claim for failure to prevent discrimination and harassmentnecessarily fails.Thus, Defendants concede that this claim rises or falls with the first andsecond causes of action. Therefore, for the reasons stated above, asadjudication is denied against the first and second causes of action, similarly,Defendants’ request for adjudication of the third cause of action is denied.Fourth Cause of Action: Retaliation:“To establish a prima facie case of retaliation under the FEHA, a plaintiff mustshow: (1) he or she engaged in protected activity, (2) the employersubjected the employee to an adverse employment action, and (3) a causallink existed between the protected activity and the employer's action.” Scotchv. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4 th 986,1020.In this instance, Defendants assert that Plaintiff's claim fails as Plaintiff didnot complain of discrimination until May 28, 2007, after her termination and,thus, there can be no causal link between the protected activity and theadverse employment action. (SSUF No. 40).In response, Plaintiff does not substantively dispute the above statement,rather she asserts that her rejection of Mr. Britton’s advances on April 18,2007, constituted protected activity.Specifically, Plaintiff’s Opposition asserts that, consequently, Defendants areliable for retaliation for “discharging…or otherwise discriminat[ing] againstany person because the person has opposed any practices forbidden underFEHA.” (Opposition: 17:15-18).Further, Plaintiff’s Corrected Separate Statement references an emailcomplaint sent by her boyfriend on April 18, 2007. (Exhibits 38; Exhibit 8-A:3).Importantly, however, Plaintiff has failed to present any authority,demonstrating that the above referenced incidents constitute “protected

activity” under FEHA. While Plaintiff was undoubtedly entitled to reject Mr.Britton’s advances, Plaintiff has failed to demonstrate that such rejectionqualifies as “protected activity” for purposes of a claim for Retaliation underFEHA.Further, while a complaint made regarding sexual harassment clearlyqualifies as protected activity, the instant situation does not involve a directcomplaint. As Plaintiff failed to provide any authority demonstrating, either,that her complaint to her boyfriend or her boyfriend’s complaint to Mr.Britton, was sufficient to qualify as “protected activity” under FEHA, Plaintifffailed to meet her burden and summary adjudication is granted.Punitive Damages:Civil Code §3294(b) states, firstly, that an employer will not be liable fordamages based on acts of an employee, unless “the employer had advanceknowledge of the unfitness of the employee and employed him or her withconscious disregard of the rights or safety of others or authorized or ratifiedthe wrongful conduct…or was personally guilty of oppression, fraud, ormalice.”Civil Code §3294(b) goes on to clarify that, with respect to a corporateemployer, “the advance knowledge and conscious disregard, authorization,ratification, or act of oppression, fraud or malice, must be on the part of anofficer, director, or managing agent of the corporation.”Pursuant to White v. Ultramar, Inc. (1999) 21 Cal.4 th 563, the “mere abilityto hire and fire employees” is insufficient to qualify as a “managing agent.”Id. at 566. Rather, “the Legislature intended the term ‘managing agent’ toinclude only those corporate employees who exercise substantial independentauthority and judgment in their corporate decision making so that theirdecisions ultimately determine corporate policy.” Id. at 566-567.“The scope of a corporate employees discretion and authority under our testis therefore a question of fact for decision on a case-by-case basis.” Id. at567.Here, Plaintiff presents evidence that demonstrates Mr. Britton: Was responsible “for all aspects of office development, management,office meetings, training, coaching, accountability, reviewing files forDRE compliance and other such duties to ensure profitability goals forthe Redhawk and Winchester locations.” (Exhibit 25-D); and Was “responsible for creating and maintaining an environment thatfosters success.” (Exhibit 25-D).While Defendants assert that Mr. Britton merely implemented policies ratherthan created them, Plaintiff has presented sufficient evidence to raise atriable issue, as to whether Mr. Britton had “substantial independentauthority and judgment,” such that his decisions may have ultimatelydetermined corporate policy.Thus, Defendants’ request for summary adjudication of this issue is denied.Plaintiff to give notice.(2) Motion for Summary Judgment: (Britton v. Traieh)Defendant Gregory Britton’s Motion for Summary Judgment is DENIED.The Award Defendants’ Motion for Joinder is GRANTED; however, given thedenial of Mr. Britton’s motion, Plaintiff’s claim survives against all Defendants.Second Cause of Action: Sexual Harassment:In construing California’s FEHA, the Court of Appeal has held that “the hostilework environment form of sexual harassment is actionable only when theharassing behavior is pervasive or severe.” Brennan v. Townsend & O’Leary

Enterprises, Inc. (2011) 199 Cal.App.4 th 1336, 1346.“To prevail on a hostile work environment claim under California’s FEHA, anemployee must show that the harassing conduct was ‘severe enough orsufficiently pervasive to alter the conditions of employment and create a workenvironment that qualifies as hostile or abusive to employees because oftheir sex.” Id. at 1346-1347.“There is no recovery for harassment that is occasional, isolated, sporadic, ortrivial.” Id. at 1347.Additionally, a Plaintiff alleging a hostile work environment, based on conductdirected at others, must “establish that the sexually harassing conductpermeated her direct work environment.” Id.“To meet this burden, the plaintiff generally must show that the harassmentdirected at others was in her immediate work environment, and that shepersonally witnessed it. The reasons for this is obvious: if the plaintiff doesnot witness the incidents involving others, those incidents cannot affect herperception of the hostility of the work environment.” Id.Here, Plaintiff relies extensively on the testimony of other alleged victims ofMr. Britton to establish a hostile work-environment; however, as Ms. Traiehfailed to present evidence which demonstrates that each of these incidentswas directly witnessed, pursuant to Brennan, the testimony of these otherwomen is irrelevant to this claim.Nonetheless, given Ms. Traieh’s statement that she witnessed Mr. Brittonbehave inappropriately towards other agents more than 20 times, sufficientevidence has been presented to raise a triable issue of material fact. (Exhibit8-B: 143:17-146:16; 221:4-9).Given this testimony, although Mr. Britton’s behavior does not appear severe(given that it did not involve inappropriate touching), it may be sufficientlypervasive to establish liability.Additionally, while Mr. Britton attempts to argue that Plaintiff’s experienceswere necessarily not pervasive, given that she worked only part time and wasregularly out of the office, Defendant has failed to provide any authority tosupport this position.The fact that Ms. Traieh was frequently out of the office appears irrelevant tothe question of whether the office contained a hostile work environment.In determining a motion for summary judgment, the court is “required toview the evidence and the reasonable inferences therefrom in the light mostfavorable to the party opposing the summary judgment motion; doubts as towhether there are any triable issues must be resolved in favor of theopposing party; and equally conflicting evidence or inferences require denialof a summary judgment motion.” Essex Ins. Co. v. Heck (2010) 186Cal.App.4 th 1513, 1522.Thus, based on all of the above, and viewing Plaintiff’s evidence in the lightmost favorable, Defendant’s request for summary adjudication of this claim isdenied.Plaintiff to give notice.(3) Motion for Summary Judgment/ Adjudication: (Award v. Wherry)GRANT in part and DENY in part. Summary adjudication is granted as toIssue No. 1. Summary adjudication is denied as to Issues Nos. 2-8.Issue No. 1: Statute of Limitations:“[I]n the context of the FEHA, exhaustion of the administrative remedy is ajurisdictional prerequisite to resort to the courts: Under California law andemployee must exhaust the administrative remedy provided by the Fair

Employment and Housing Act, by filing an administrative complaint withDFEH…and obtaining the DFEH’s notice of right to sue.” Okoli v. LockheedTechnical Operations Co. (1995) 36 Cal.App.4 th 1607, 1613.Additionally, under FEHA, “[n]o complaint [to the DFEH] may be filed afterthe expiration of one year from the date upon which the alleged unlawfulpractice or refusal to cooperate occurred.” Richards v. CH2M Hill, Inc. (2001)26 Cal.4 th 798, 811-812.“[T]he continuing violation doctrine comes into play when an employee raisesa claim based on conduct that occurred in part outside the limitations period.”Id. at 812.Pursuant to Richards a “continuing violation” occurs where the employer’sunlawful actions are: “(1) sufficiently similar in kind…; (2) have occurred withreasonable frequency; (3) and have not acquired a degree of permanence.”Id. at 823.Conduct takes on a degree of permanence when “an employer’s statementsand actions make clear to a reasonable employee that any further efforts atinformal conciliation to obtain reasonable accommodation or end harassmentwill be futile.” Id.Lastly, pursuant to Richards, “when an employer [is] engaged in a continuingcourse of unlawful conduct under the FEHA…and this conduct does notconstitute a constructive discharge, the statute of limitations begins to run,not necessarily when the employee first believes that his or her rights mayhave been violated, but rather, either when the course of conduct is broughtto an end, as by the employer’s cessation of such conduct or by theemployee’s resignation, or when the employee is on notice that furtherefforts to end the unlawful conduct will be in vain.” Id.In this instance, Ms. Wherry testified that she resigned from her second stintat Award on or about April 26, 2006. [NOL Exhibit 1: Wherry Deposition:172:12-15]. Additionally, Ms. Wherry testified that Mr. Britton did not pursueher while she was at ReMax. [NOL Exhibit 1: Wherry Deposition: 429:14-17].Finally, it is undisputed that Ms. Wherry executed a new IndependentContractor Agreement, upon her return to Award in July of 2006. (SS No.15).Thus, based on Plaintiff’s testimony, the harassment from Mr. Britton ceasedin April of 2006, following her resignation from Century 21 Award.Pursuant to Richards, the statute of limitation, as to harassing conduct whichoccurred during Ms. Wherry’s second period of employment with Century 21Award began to run on April 26, 2006.Thus, as it is undisputed that Plaintiff filed her complaint with the DFEH onMarch 4, 2008, more than a year after April 26, 2006, Plaintiff’s claimsarising prior to April 26, 2006 are barred by the applicable statute oflimitations and fail due to Plaintiff’s failure to exhaust her administrativeremedies. Richards v. CH2M Hill, Inc. (2001) 26 Cal.4 th 798; GovernmentCode §12960.Issue No. 2: First Cause of Action: Sex Discrimination:In this instance, Plaintiff has submitted the testimony of several individuals,which indicate that Defendants did not enforce a minimum sales quotabetween 2006 and 2007. [Ms. Jackson, (Exhibit 26:172:23-174:16); Ms.Cook, (Exhibit 6-C: 4); Ms. Traieh, (Exhibit 8-A: Page 3); Ms. Wherry,(Exhibit 9-A: Page 3; Exhibit 9-B: 85:12-19); Ms. Margquez, (Exhibit 12-B:3); and Ms. Romera, (Exhibit 14-B: 4)].This evidence is sufficiently “substantial” to demonstrate that Defendants’offered reason was pretext.

Pursuant to Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S.133, “it is permissible for the trier of fact to infer the ultimate fact ofdiscrimination from the falsity of the employer’s explanation.” Id. at 147.Additionally, Plaintiff declares that, shortly after she complained to anAssistant Manager concerning Mr. Britton’s conduct, Plaintiff was terminated.(Exhibit 9-B: 82:22-25).Further, Plaintiff provides several declarations from women who indicate thatMr. Britton either flirted with or harassed them. (Ms. Ainslie: Exhibit 3:4-5)(Ms. Sitterding: Exhibit 5:4-6) (Ms. Batson: Exhibit 7:4-9).Pursuant to Pantoja v. Anton (2011) 198 Cal.App.4 th 87, “me-too” evidence isadmissible under Evidence Code §1101(b), to demonstrate discriminatoryintent: “evidence of a male supervisor’s sexually offensive remarks to andtouching of other women employees is probative of the supervisor’sdiscriminatory intent in firing a female plaintiff for refusing to have sex withhim.” Id. at 115.Additionally, pursuant to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4 th243, “[p]roof of discriminatory intent often depends on inferences rather thandirect evidence. And because it does, very little evidence of such intent isnecessary to defeat summary judgment. Put conversely, summary judgmentshould not be granted unless the evidence cannot support any reasonableinference for plaintiff.” Id. at 283.Thus, the evidence indicating that several women were harassed, along withMs. Wherry’s testimony that she was terminated shortly after she complainedabout Mr. Britton, is sufficient to raise a triable issue, as to whether Plaintiff’stermination was motived by discriminatory intent.Viewing the evidence in the light most favorable to Plaintiff, as the nonmovingparty, Defendants’ request for summary adjudication is denied.Scotch v. Art Institute of California-Orange County, Inc. (2009) 173Cal.App.4 th 986, 1005.Issue No. 3: Second Cause of Action: Sexual Harassment:In construing California’s FEHA, the Court of Appeal has held that “the hostilework environment form of sexual harassment is actionable only when theharassing behavior is pervasive or severe.” Brennan v. Townsend & O’LearyEnterprises, Inc. (2011) 199 Cal.App.4 th 1336, 1346.“To prevail on a hostile work environment claim under California’s FEHA, anemployee must show that the harassing conduct was ‘severe enough orsufficiently pervasive to alter the conditions of employment and create a workenvironment that qualifies as hostile or abusive to employees because oftheir sex.” Id. at 1346-1347.“There is no recovery for harassment that is occasional, isolated, sporadic, ortrivial.” Id. at 1347.Additionally, a Plaintiff alleging a hostile work environment, based on conductdirected at others, must “establish that the sexually harassing conductpermeated her direct work environment.” Id.“To meet this burden, the plaintiff generally must show that the harassmentdirected at others was in her immediate work environment, and that shepersonally witnessed it. The reasons for this is obvious: if the plaintiff doesnot witness the incidents involving others, those incidents cannot affect herperception of the hostility of the work environment.” Id.Here, Plaintiff relies extensively on the testimony of other alleged victims ofMr. Britton to establish a hostile work-environment; however, as Ms. Wherryfailed to present evidence which demonstrates that each of these incidentswas directly witnessed, pursuant to Brennan, the testimony of these other

women is irrelevant to this claim.Nonetheless, given Ms. Wherry’s statement that the harassment was“continual”, sufficient evidence has been presented to raise a triable issue ofmaterial fact. (Exhibit 9-F: 403:13-17).Although the issue is close, viewing the evidence in the light most favorableto Plaintiff, as the non-moving party, the Court finds that Plaintiff’s testimonythat the harassment was “continual” is sufficient to raise a triable issue ofmaterial fact, as to whether the harassment was “pervasive.” Scotch v. ArtInstitute of California-Orange County, Inc. (2009) 173 Cal.App.4 th 986, 1005.Issue Nos. 4 and 5: Fourth Cause of Action: Retaliation:“To establish a prima facie case of retaliation under the FEHA, a plaintiff mustshow: (1) he or she engaged in protected activity, (2) the employersubjected the employee to an adverse employment action, and (3) a causallink existed between the protected activity and the employer's action.” Scotchv. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4 th 986,1020.In this instance, Defendants assert that Plaintiff’s claim fails as Plaintiff’salleged complaint occurred prior to April 26, 2006 and Plaintiff did not sufferan adverse employment action as a result.In response, however, Plaintiff references a complaint made by Ms. Wherry toan Assistant Manager, Ms. Braly, and her subsequent termination.Specifically, Plaintiff references the following evidence: Ms. Wherry testified that, on July 30, 2007, she sent Mr. Britton emailsasking to speak with him about her “employment.” (Exhibit 9-B:74:16-24); and Ms. Wherry testified that, shortly before she was terminated she told Ms.Braly (an Assistant Manager) that “this situation with Greg was – itjust couldn’t go on anymore, something needed to be done” orsomething to that effect. (Exhibit 9-B: 82:22-25);Although Ms. Wherry testified at her deposition that she could recall only oneinstance of retaliation by Mr. Britton, which occurred prior to April 26, 2006,given that Ms. Wherry later testified to information which could support aclaim for retaliation, Plaintiff has sufficiently demonstrated a triable issue ofmaterial fact.Thus, summary adjudication of Issue Nos. 4 and 5 is denied. The complaintmade in 2007 is not time-barred and Plaintiff’s subsequent termination is asufficient “adverse employment action.”Issue No. 6: Third Cause of Action: Failure to Prevent Discrimination/Harassment:Defendants assert that, as there has been no discrimination or harassment,Plaintiff's claim for failure to prevent discrimination and harassmentnecessarily fails.Thus, Defendants concede that this claim rises or falls with the first andsecond causes of action. Therefore, for the reasons stated above, asadjudication is denied against the first and second causes of action, similarly,Defendants’ request for adjudication of the third cause of action is denied.Issue Nos. 7 and 8: Punitive Damages:Civil Code §3294(b) states, firstly, that an employer will not be liable fordamages based on acts of an employee, unless “the employer had advanceknowledge of the unfitness of the employee and employed him or her withconscious disregard of the rights or safety of others or authorized or ratifiedthe wrongful conduct…or was personally guilty of oppression, fraud, ormalice.”

Civil Code §3294(b) goes on to clarify that, with respect to a corporateemployer, “the advance knowledge and conscious disregard, authorization,ratification, or act of oppression, fraud or malice, must be on the part of anofficer, director, or managing agent of the corporation.”Pursuant to White v. Ultramar, Inc. (1999) 21 Cal.4 th 563, the “mere abilityto hire and fire employees” is insufficient to qualify as a “managing agent.”Id. at 566. Rather, “the Legislature intended the term ‘managing agent’ toinclude only those corporate employees who exercise substantial independentauthority and judgment in their corporate decision making so that theirdecisions ultimately determine corporate policy.” Id. at 566-567.“The scope of a corporate employees discretion and authority under our testis therefore a question of fact for decision on a case-by-case basis.” Id. at567.Here, Plaintiff presents evidence that demonstrates Mr. Britton: Was responsible “for all aspects of office development, management,office meetings, training, coaching, accountability, reviewing files forDRE compliance and other such duties to ensure profitability goals forthe Redhawk and Winchester locations.” (Exhibit 25-D); and Was “responsible for creating and maintaining an environment thatfosters success.” (Exhibit 25-D).While Defendants assert that Mr. Britton merely implemented policies ratherthan created them, Plaintiff has presented sufficient evidence to raise atriable issue, as to whether Mr. Britton had “substantial independentauthority and judgment,” such that his decisions may have ultimatelydetermined corporate policy.Additionally, while Defendants seek summary adjudication of this request, onthe basis that Plaintiff cannot state an underlying claim, for the reasonsstated above this argument fails.Thus, Defendants’ request for summary adjudication of these issues isdenied.Plaintiff to give notice.(4) Motion for Summary Judgment/ Adjudication: (Britton v.Wherry)Defendant Gregory Britton’s Motion for Summary Judgment: DENYThe Award Defendants’ Motion for Joinder is granted; however, given thedenial of Mr. Britton’s motion, Plaintiff’s claim survives against all Defendants.Second Cause of Action: Sexual Harassment:In construing California’s FEHA, the Court of Appeal has held that “the hostilework environment form of sexual harassment is actionable only when theharassing behavior is pervasive or severe.” Brennan v. Townsend & O’LearyEnterprises, Inc. (2011) 199 Cal.App.4 th 1336, 1346.“To prevail on a hostile work environment claim under California’s FEHA, anemployee must show that the harassing conduct was ‘severe enough orsufficiently pervasive to alter the conditions of employment and create a workenvironment that qualifies as hostile or abusive to employees because oftheir sex.” Id. at 1346-1347.“There is no recovery for harassment that is occasional, isolated, sporadic, ortrivial.” Id. at 1347.Additionally, a Plaintiff alleging a hostile work environment, based on conductdirected at others, must “establish that the sexually harassing conductpermeated her direct work environment.” Id.“To meet this burden, the plaintiff generally must show that the harassment

directed at others was in her immediate work environment, and that shepersonally witnessed it. The reasons for this is obvious: if the plaintiff doesnot witness the incidents involving others, those incidents cannot affect herperception of the hostility of the work environment.” Id.Here, Plaintiff relies extensively on the testimony of other alleged victims ofMr. Britton to establish a hostile work-environment; however, as Ms. Traiehfailed to present evidence which demonstrates that each of these incidentswas directly witnessed, pursuant to Brennan, the testimony of these otherwomen is irrelevant to this claim.Nonetheless, given Ms. Wherry’s statement that the harassment, during herthird stint at Award, was “continual,” sufficient evidence has been presentedto raise a triable issue of material fact. (Exhibit 9-F: 403:13-17).Although the issue is close, viewing the evidence in the light most favorableto Plaintiff, as the non-moving party, the Court finds that Plaintiff’s testimonythat the harassment was “continual” is sufficient to raise a triable issue ofmaterial fact, as to whether the harassment was “pervasive.” Scotch v. ArtInstitute of California-Orange County, Inc. (2009) 173 Cal.App.4 th 986, 1005.Additionally, while Mr. Britton attempts to argue that Plaintiff’s experienceswere necessarily not pervasive, given that she was regularly out of the office,Defendant has failed to provide any authority to support this position.The fact that Ms. Wherry was frequently out of the office appears irrelevantto the question of whether the office contained a hostile work environment.In determining a motion for summary judgment, the court is “required toview the evidence and the reasonable inferences therefrom in the light mostfavorable to the party opposing the summary judgment motion; doubts as towhether there are any triable issues must be resolved in favor of theopposing party; and equally conflicting evidence or inferences require denialof a summary judgment motion.” Essex Ins. Co. v. Heck (2010) 186Cal.App.4 th 1513, 1522.Thus, based on all of the above, and viewing Plaintiff’s evidence in the lightmost favorable, Defendant’s request for summary judgment is denied.Plaintiff to give notice.

Superior Court of the State of Californiahttp://www.occourts.org/tentativerulings/knakamurarulings.htmPage 1 of 109/13/2013TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraSeptember 12, 2013Law and Motion is heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be postedon all law and motion matters. Please read these rules carefully. Do not call the Department unless ALLparties submit on tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However,ongoing proceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THEDEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will bediligently working on posting the rulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counselintend to submit on the tentative and do not wish oral argument, please advise the courtroom assistantby calling (657) 622-5215. If all sides submit on the tentative ruling and so advise the clerk, thetentative ruling shall become the court’s final ruling and the prevailing party shall give Notice of Rulingand prepare an Order for the court’s signature, if appropriate under CRC 3.1312.Please be advised that the Orange County Superior Court still provides court reporters for civil law andmotion matters.# meTentative1 Admiral Ins. Co.v. Council forEducationalTravel USA2 The RetailProperty Trust v.Orange CountyPeople forAnimalsMotion for Bifurcation: OFF CALENDARMotion for Release of Appeals Bonds: GRANTAbsent any written objection before or oral objection at the hearing on 9-12-13 by defendants OCPA and/or Patel, plaintiff The Retail Property Trust’smotion to release appeals bond is GRANTED. See, Civil Code § 995.360(b)and 996.110(a). Defendants OCPA and Patel have each filed anAcknowledgment of Satisfaction of Judgment in Full. Thus, absent anyobjection by defendants OCPA or Patel, the purpose of the appeals bond hasbeen satisfied. Moving party to give notice to all parties that have appearedin this civil action.Moving party to give notice.3 Magpiong v.Sassco, Inc.Motion to Quash Discovery Subpena: CONTINUED to 9/26/134 Simone v. Loyd Motion to Quash Deposition Subpena: OFF CALENDAR5 Lorenzetti v.MeerMotions to Deem Facts Admitted: OFF CALENDARStipulation taking motion off calendar has been signed by the court.

TENTATIVE RULINGS FOR DEPARTMENT C-15Honorable Kirk H. NakamuraSeptember 19, 2013Law and Motion is usually heard in Department C-15 on Thursdays at 2:00 p.m. Tentative rulings will be postedon all law and motion matters. Please read these rules carefully. Do not call the Department unless ALL partiessubmit on tentative ruling.The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However, ongoingproceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THE DEPARTMENT FORTENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligently working on posting therulings as soon as possible.The Court will not entertain a request for continuance once the ruling has been posted. If ALL counsel intend tosubmit on the tentative and do not wish oral argument, please advise the courtroom assistant by calling (657)622-5215. If all sides submit on the tentative ruling and so advise the clerk, the tentative ruling shall becomethe court’s final ruling and the prevailing party shall give Notice of Ruling and prepare an Order for the court’ssignature, if appropriate under CRC 3.1312.1 Bieber v. Ash Plaintiff/Appellant Bieber’s Motion for Costs on Appeal: DENIEDFirst, plaintiff Bieber’s motion is procedurally defective for lack of anysupporting memorandum as required. See, Rule 3.1112(a)(3). Second, onthe merits, plaintiff Bieber’s motion for costs on appeal is untimely becauseno memorandum of costs on appeal was filed within 40 days of issuance ofthe remittitur as required. See, Rule 8.278(c)(1). Instead, plaintiff Bieber’smotion and supporting “Appellants Cost on Appeal” was served and filed on8-5-13, when remittitur issued back on 7-19-11.Moving party to give notice.2 Admiral Ins. Co.v. CETA USA3 Peterson v.CitimortgageMotion for Bifurcation: OFF CALENDARMotion to Deem Facts Admitted: CONTINUED to 11/14/13.4 Sandoval v. Diaz Motion to Compel Arbitration/for Stay: OFF CALENDAR for lack of service5 Carlos v. WellsFargo BankDemurrer to the Complaint: OFF CALENDAR

10 Smith Campbellet. al. v. GrissomWith regard to the Demurrer of Cross-Defendant William D. Chapman, thecourt rules as follows:The Demurrer to the First, Second, Third, Fourth Cause of Action for RICOis SUSTAINED without leave to amend.The allegations appear to be an attempt to improperly morph a malpracticeclaim into an unsupportable RICO claim. There is no allegation of an “openended continuity” of racketeering activity. H.J. Inc. 492 US at 241.There is also a lack of standing and damages. Grissom failed to allege aconcrete damage to himself. The fact that another paid some of the billingsdid not establish damages as to Grissom. “It is not enough that the patientsshow that their insurance company had to pay out more than it otherwisewould have without the alleged RICO violation. This does not constitutefinancial loss to them.” Steele v. Hosp. Corp. of Am., (9 th Cir. 1994) 36 F.3d69, 70.Lastly, only actual fraud is a viable exception to C.C.P. § 340.6.Lesser allegations of fraud such as negligent misrepresentation andconstructive fraud do not qualify for the exception. Quintilliani v. Mannerino(1998) 62 Cal.App.4th 54, 69; Lockton v. O'Rourke (2010) 184 Cal.App.4th1051, 1065, fn. 6.The Demurrer to the Fifth and Twelfth Causes of Action for Actual Fraud aresustained without leave to amend.This again is an improper attempt to morph a malpractice claim into a fraudcause of action. As set forth in the moving papers, the act of “fraud” is billingfor actions that constituted malpractice. This lacks the element of scienter.Grissom also failed to allege actual reliance which occurs when amisrepresentation is “’an immediate cause of [a plaintiff's] conduct, whichalters his legal relations,’ and when, absent such representation, ‘he wouldnot, in all reasonable probability, have entered into the contract or othertransaction.’” Whiteley v. Philip Morris Inc. (2004) 117 Cal.App.4th 635,678.There is also a lack of damages. Grissom failed to allege concrete damages tohimself. The fact that another paid some of the billings did not establishdamages as to Grissom.Regarding Cross-Complaint Chapman, the court sustained without leave toamend the Seventh, Eighth, Ninth, Eleventh and Thirteenth Causes ofAction. The court strikes these causes of action as to Chapman.With regard to the Demurrer of Cross-Defendant Smith Campbell CliffordKearney Gore & Douglas Campbell, the court rules as follows:The Demurrer to the First, Second, Third & Fourth Cause of Action forRICO is SUSTAINED without leave to amend. See discussion above.The Demurrer to the Fifth Cause of Action for Actual Fraud isSUSTAINED without leave to amend. See discussion above.The Demurrer to the Tenth Cause of Action for Declaratory Relief isOVERULED. There is an actual dispute whether the attorneys complied Bus.& Prof. Code § 6148.10 days to answer.

Moving parties to give notice.11 Aruya v. IndigoPartnershipSylvia Chukuani’s anti-SLAPP motion to strike the cross-complaint isGRANTED under CCP §425.16. The cross-complaint is dismissed in itsentirety. Ms. Chukuani is awarded $16,560 in sanctions against IndigoPartnership [Indigo]. Ms. Chukuani’s demurrer is OFF CALENDAR. Crossdefendantis to give notice.CCP §425.16 applies to the 1st cause of action for malicious prosecutionbecause it arises from oral and written statements made in judicialproceedings. Daniels v. Robbins (2010) 182 Cal.App.4th 204, 214-215. Itapplies to the 2d and third causes of action for slander of title and intentionalinterference with prospective economic advantage because they are bothbased on the filing of a lis pendens, which is protected activity. ManhattanLoft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1050;LaJolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 471.Thus, the burden shifts to Indigo to present admissible evidence sufficient tocarry its burden of proof at trial. Navellier v. Sletten (2002) 29 Cal.4th 82,88-89. Indigo has not established the elements of its causes of action by apreponderance of the evidence.In fact, Indigo’s evidence is limited to an attorney’s declaration that does notaddress any of the underlying facts, and two unauthenticated exhibits, anunsigned minute order in the unlawful detainer case and a purchaseagreement.1st cause of action for malicious prosecution: Even if the minute order couldbe considered, it fails to establish that Indigo is a bona fide purchaser forvalue. An unlawful detaining judgment is res judicata as to an issue only ifthat issue was fully tried. Gombiner v. Swartz (2008) 167 Cal.App.4th1365, 1371. This is not indicated in the minute order; nor does Indigo’sattorney address any of the underlying events.Furthermore, there is no evidence whatsoever as to the other elements ofmalicious prosecution, i.e., lack of probable cause to bring the action andmalice. Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50.2d cause of action for slander of title and 3d cause of action for intentionalinterference with prospective economic advantage. As with the 1st cause ofaction, there is no evidence whatsoever to support the elements of either ofthese causes of action. Even if the purchase order were considered, it wouldrelate only to damages, not wrongdoing.Even if there were evidence to support them, both of these causes of actionare based solely on the filing of the lis pendens. They are barred becausethat filing is privileged under CC §47(b). Alpha and OmegaDevelopment, 200 Cal.App.4th 656, 664-665. The exception ofsub§(c)(4) does not apply because the underlying action had beenpreviously filed when the lis pendens was filed and undisputably concernedtitle to or right of possession of real property.There is no merit to Indigo’s claim that the privilege does not apply becauseMs. Chukuani’s claim had no “probable validity,” and no authority is cited insupport of it. The privilege is “absolute,” and even malice will not defeat it.Rusheen v.Cohen (2006) 37 Cal.4th 1048,1063.In addition, as to the 3d cause of action, the wrongdoer’s knowledge of theeconomic relationship is an element. Youst v. Longo (1987) 43 Cal.3d 64,71, fn. 6. Indigo does not purport to have evidence that Ms. Chukuani hadknowledge when the lis pendens was filed of any anticipated sale. The lis

pendens was filed on 11/5/12. Ex.C to the Cross-complaint. The purchaseorder, Indigo’s Ex.2, is dated 11/28/12.Indigo does not object to the amount of attorney feesPlaintiff’s motion for a further response to form interrogatories and toproduction requests is GRANTED; a further response without objections isdue in 15 days. The Court awards sanctions of $1622.50 against Defendant,due in 30 days. Plaintiff is to give notice.Production requests 2 & 3 and form interrogatory 17.1: CC §1990 applies tolandlord and tenant relationship. Defendant fails to provide authority that itapplies to a purchaser at a foreclosure sale. If there are no documents tosupport Defendant’s claim, it should say so. It has denied that it “expended”$1920.06 so it must identify the evidence it will use to prove that amountwas spent.Production requests 6, 7 & 8: The purpose of the meet and conferrequirement is make a good faith effort to resolve discovery disputes, notargue about them. Young v. Rosenthal (1989) 212 Cal.App.3d 96, 117;Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294. Furthermore, theCourt does not find “internal communications” to be ambiguous; it obviouslymeans communications between the persons within the defendantpartnership.Production request #9: The same is true regarding the failure to properlymeet and confer as to this item. Furthermore, the complaint clearly states in20 and 21 what items Plaintiffs claim are missing.Form interrogatory 1.1: Plaintiffs’ contention is not well taken. CCP§2033.710 merely authorizes the Judicial Council to develop forminterrogatories; it does not provide that they are objection-proof. However,the objecting party has the burden of proof. HLC Properties Ltd v. Sup.Ct(2005) 35 Cal.4th 54, 59-60. Defendant presents no authority that anyprivilege protects identifying information about the persons who prepared orhelped prepare discovery responses. No privileged communications aresought.The Court has reduced the requested sanctions because Plaintiff’s contentionsabout interrogatory 1.1 are not well taken and because the appearance timeis attributable primary to other motions on calendar.12 Wherry v.Century 21AwardThe Motion for Leave to File a Second Amended Complaint is GRANTED. Thispleading is deemed filed and served on all parties. Defendants shall respondto the Second Amended Cross-Complaint within fifteen (15) days.“Courts must apply a policy of liberality in permitting amendments at anystage of the proceeding, including during trial, when no prejudice to theopposing party is shown.” P & D Consultants, Inc. v. City of Carlsbad (2010)190 Cal.App.4th 1332, 1345.Defendants have not been specific regarding any prejudice concerningdiscovery from the amended cross-complaint. In order to avoid possibleprejudice, the court will re-open the discovery cut-off and designate a newcut-off date of November 15, 2013. The court does not see a compellingneed to continue the trial date of December 16, 2013.The Notice of Joinder served on September 6, 2013 is DENIED. In adequatenotice was provided.Moving party to give notice.

13 Stewart v.Ortega TrustDefendant Trust of Effie Martinez Ortega’s Motion for Summary Judgment asto Plaintiff Stewart’s First Amended Complaint is GRANTED.A party is bound by admissions made in the course of discovery, and onsummary judgment no further evidence is needed on matters that have beendeemed admitted. See, Hejmadi v. Amfac, Inc. (1988) 202 Cal.App.3d 525,553. On 6-6-13, defendant’s requests for admission to plaintiff Stewart weredeemed admitted. (See, 6-6-13 Minute Order.) Plaintiff Stewart never filed amotion for relief based on a showing of inadvertence, mistake, surprise orexcusable neglect as provided for by C.C.P. § 2033.290(a). Defendant’smotion for summary judgment was filed and served on 6-24-13. PlaintiffStewart has thus admitted that defendant Trust of Effie Martinez Ortega wasnot the cause of her accident, that plaintiff’s negligence was the sole cause ofher accident, that defendant owed plaintiff Stewart no duty, and that plaintiffStewart was not injured as a result of this accident. [See, Defendant’s UMFNos. 1, 2, 3, 4, 5, 6 and 7.] Plaintiff Stewart has filed no opposition and/orsubmitted any admissible evidence in opposition to defendant’s motion forsummary judgment to demonstrate any triable issue of material fact exists.Thus defendant Trust of Effie Martinez Ortega’s motion for summaryjudgment is granted.Moving party to give notice and to submit a proposed judgment within 14days.

1 Leinberger v.Keystone RV Co.Motion for Attorneys Fees: GRANT (See below)The Motion for Attorney Fees is GRANTED in the sum of $50,000.00.The fee of $475.00 is unreasonable. The reasonable hourly rate is thatprevailing in the community for similar work. PLCM Group v. Drexler (2000)22 Cal.4th 1084, 1095. An average attorney with modest experience couldhave successfully handled this case. It is certainly not necessary to retaincounsel that achieved Order of the Coif to recover for this defectiverecreational vehicle. A reasonable fee would be $330.00 per hour.Moreover, even though Defendants’ critique of Plaintiff’s billing is overlycritical, many of the tactics employed by plaintiff unreasonably increased thebilling. There was no need for two attorneys on this case. The charges forcommunications between counsel did not provide value to the client. Thefiling in federal court was a tactical error, which caused unnecessary billing. Areasonable time for this case would be 150 hours.2 Mendoza v.NguyenMoving party to give notice.Motion to Strike Costs: GRANTED in part.The following items are taxed as requested: Postage and copy costs: $939.34 Parking: $309 Fees for Go Daddy, Tumblr, Google, Internet (Internet fees): $554.25 Expert witness fees and medical records: $4,238.03 Appellate filing fees: $1,585.67 Process service fee re John Do: $200.00The motion is GRANTED in part as to filing fees for motions to compel:$120.00 is taxed.Postage and copy costs, fees of experts not ordered by the Court : Recoveryis expressly prohibited by CCP §1033.5(b)(3). The Court has no discretionto award fees that are expressly prohibited by the statute. Ladas v.California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774. The claimthat the Court “ordered” Plaintiff to retain a mental expert simply because itgranted permission to Defendants to allow their expert to examine Plaintiff isfrivolous in the extreme. Plaintiffs admitted in their cost memorandum thatthe cost of their exhibits was $38.95.Parking: Travel expenses to attend depositions are authorized by§1033.5(a)(3) but the statute doesn’t expressly bar other travelexpenses. Nor does Ladas. However, sub§(c) and Ladas do require ashowing that the expenses are reasonably necessary to the litigation and notmerely convenient. Id. at 775-776. In Orange County, it is reasonablynecessary to pay for parking for trial. However, the Court is unaware of anyparking facility that charges $160/day. Plaintiff’s spreadsheet shows that theamounts of $160 and $130 were incurred on a single day and the othercharge of $6 was not on one of the trial days. In addition, Plaintiffs have notshown why it was “reasonably necessary” to have an assistant or to have herdrive to trial and park separately. This appears to have been merely“convenient.”Internet fees: These are fees associated with the gathering of evidence, i.e.,investigation expenses incurred to prepare for trial, expressly prohibited by§1033.5(b)(2).Appellate filing fees: Filing fees are expressly authorized by §1033.5(a)(1);

thus, the cost memorandum is prima facie evidence that they arerecoverable, and the burden shifts to the party resisting recovery to showthey are not. Perko’s Enterprises Inc. v. RRNS Enterprises (1992) 4Cal.App.4th 238, 243. However, under sub§(c)(2), even authorized costsmust be “reasonably necessary to the conduct of the litigation rather thanmerely convenient or beneficial to its preparation.” Defendants have mettheir initial burden by showing that the fees were incurred in seeking a writon a discovery ruling. As it is highly unlikely that the Court of Appeal wouldreview this type of interim ruling, the writs were not reasonably necessary.Service of process on John Do: Defendants have met their initial burden byshowing that Mr. Do did not testify and was not deposed. Plaintiffs admitthey were unable to locate him, so process was not actually served. This wasan investigation cost, which is not recoverable under §1033.5(b)(2). Also, asPlaintiffs were able to prevail without him, it is clear that his testimony wasn’t“reasonably necessary.”Filing fees for motions to compel: Motion fees are expressly authorized by§1033.5(a)(1), so Defendants have to show that these motions were notreasonably necessary to the litigation. They cite no authority that the merefact that discovery sanctions are awarded prevents a party from recoveringmotion costs. Judge Munoz did not find that the motions were frivolous, onlythat they were not “substantially justified.” This is merely the statutorylanguage used to support sanctions. See e.g., CCP §2030.290(c). Two ofthe motions were denied because of lack of a separate statement so it isn’tshown that they weren’t reasonable necessary. However, the other two weredenied because the responses were complaint, so it was not reasonablynecessary to have moved to compel a further response.Defendants are to give notice.3 Smith CampbellClifford KearneyGore v. GrissomMotion for Protective Order: DENYThe Motion for Stay and the Motion for Protective Order are DENIED.Defendant & Cross-Complainant Grissom has failed to establish good cause tostay this action. The appellate case will be decided well prior to the trial ofthis case. It has not been shown that the Judgment would be reversed onappeal. The result in the appellate case has limited impact on this case,which has been pending for fifteen (15) months.Moving party has failed to show that the discovery was undulyburdensome. “The discovery burden is ‘undue’ only if the inconvenience andexpense of responding clearly outweigh the benefits likely to be obtained ifthe interrogatories are answered. [CCP §§ 2019.030(a), 2030.090(b)]” Weil& Brown, Civil Procedure Before Trial (Rutter Group) 8:1008.1. (Emphasisoriginal).Responding party to give notice.4 Magpiong v.Sasco, Inc.Motion for Protective Order/to Quash: See below1) The joint motion for protective order by defendants Sasco and Roxford isgranted in part and denied in part. GRANTED as to any absolute work productat issue. See, BP Alaska Exploration, Inc. v. Superior Court (1988) 199Cal.App.3d 1240, 1250 to 1253. But as to any material claimed to constituteabsolute work product defendants Sasco and Roxford are to prepare aprivilege log within 21 days. See, Wellpoint Health Networks, Inc. v. SuperiorCourt (1997) 59 Cal.App.4 th 110, 130. DENIED as to defendants’ request thatthe depositions of current and former Sasco executives Milton Greene, LarrySmead, Marcus Turner and Colin Clements as to all communications withcounsel at Locke Lord or in connection with the June 21, 2011 meeting be

prohibited altogether. First, underlying facts still remain discoverable eventhough actual communications, whether oral or written to an attorney, wouldnot be. See, Chicago Title Ins. Co. v. Superior Court (1985) 174 Cal.App.3d1142, 1151 to 1152. Second, plaintiff Magpiong has carried his initial burdenof establishing a prima facie case of potential tax fraud. The exception appliesto retention of counsel to commit a crime or fraud. See, Gelim v. SuperiorCourt (1991) 234 Cal.App.3d 166, 174. Plaintiff contends he was terminatedfor reporting and refusing to participate in an alleged crime. But this does notmean that all documents or communications with Locke Lord counsel arediscoverable. In BP Alaska, the court noted that: “...under the ‘reasonablyrelated’ rule, only Gibson-Smith’s knowledge related to the fraud—therepresentations made in the December 23, 1985, letter, is discoverable.” Id.,at 1271. Hence the court must review each deposition question and thereasons set forth to compel a response, and determine if the crime-fraudexception applies. Id., at 1270. Hence, in this case, defendants Sasco andRoxford can still raise the attorney client privilege or contend that documentsare not related to the claimed unlawful activity on which plaintiff Magpiongcontends his termination was based. As to such documents claimed to beprotected by the attorney-client privilege, defendants Sasco and Roxford aredirected to prepare a privilege log. See, Wellpoint Health Networks, Inc. v.Superior Court (1997) 59 Cal.App.4 th 110, 130. The determination of whethersuch communications and/or documents are discoverable will await asubsequent motion setting forth the deposition question or questions andcontext as to whether the attorney-client privilege, attorney work productprivilege, and/or if such matters are within the scope of plaintiff Magpiong’sclaim of unlawful activity. In addition, some of the documents andcommunications appear to constitute corporate business and tax planningand not legal advice. There is no accountant privilege in California, and anattorney rendering business advice does not constitute privilegedcommunications. See, Zurich American Ins. Co. v. Superior Court (2007) 155Cal.App.4 th 1485, 1504. DENIED as to prohibiting “questioning of anywitness” about communications with outside counsel at Locke Lord and/or theJune 21, 2011 meeting as simply overly broad and speculative. Movingparties to give notice.2) The joint motion to quash is DENIED in part absent service of a privilegelog within 21 days in regard to Request Nos. 1 through 4, and as to RequestNos. 5, 6, 7, 8 and 9 defendants’ motion to quash is continued to 11-7-13, at2:00 p.m., in Department No. 15. As to Request Nos. 1 through 4,defendants Sasco and Roxford are ordered to serve a separate privilege logwithin 21 days as to any documents that are responsive to Request Nos. 1 to4 that they contend are privileged. See, Wellpoint Health Networks, Inc. v.Superior Court (1997) 59 Cal.App.4 th 110, 130. Otherwise, after this 21 days,and if no privilege log is served as to these requests, the motion to quash bydefendants Sasco and Roxford is denied as to Request Nos. 1 through 4. Asto Request No. 5, 6, 7, 8 and 9, defendants Sasco and Roxford are ordered toproduce a separate privilege log within 21 days as to any documentsresponsive to Request Nos. 5, 6, 7, 8 and 9 that they contend are protectedunder the attorney client privilege. As to Request Nos. 5, 6, 7, 8 and 9, thejoint motion to quash by defendants Sasco and Roxford is CONTINUED to 11-7-13, at 2:00 p.m., in Department C-15 for hearing. If a privilege log isserved, both parties are to submit supplemental briefs of no more than 10pages addressing the attorney client privilege in reference to Request Nos. 5,6, 7, 8 and 9, with defendants’ supplemental brief due 9 court days beforethe continued hearing date while plaintiff’s supplemental brief is due 5 courtdays before the continued hearing date. The separate privilege log meansRequest Nos. 1 through 9 that are the subject of defendants’ motion toquash, which is to be distinguished from the privilege log called for in regardto defendants’ motion for a protective order.The parties are also ordered to meet and confer as to whether this case isamenable to the appointment of a discovery referee for all purposes.

Plaintiff Magpiong's Evidentiary Objections: Declaration of AttorneyScott R. Ames: OVERRULED as to Objection Nos. 1, 2, 5 and 6. SUSTAINEDas to Objection Nos. 3 and 4. [NOTE: Plaintiff’s objections to attorney Ames’declaration were numbered in order since there were just 6 objections.]Declaration of Marcus Turner: OVERRULED as to Objection Nos. 1, 2, 3, 4,5, 6 and 10. SUSTAINED as to Objection Nos. 7, 8 and 9. [NOTE: Plaintiff’sobjections to Marcus Turner’s declaration were numbered in order since therewere just 10 objections.]Evidentiary Objections by Defendants Sasco and Roxford: Declarationof Brett Magpiong: OVERRULED as to Objection Nos. 1, 2, 3, 4, 5, 6, 7, 9,10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 25, 26, 27, 28, 31, 32 and33.SUSTAINED as to Objection Nos. 8, 20, 24, 29, 30 and 34.Declaration of Attorney Richard Lloyd Sherman: OVERRULED as toObjection Nos. 1 and 2. Declaration of Edward J. McCaffery: OVERRULEDas to Objection Nos. 5, 6, 7, 9 and 10. SUSTAINED as to Objection Nos. 1, 2,3, 4 and 8. The court notes that experts may rely on hearsay in forming theiropinions as long as it is not for independent proof of facts.Garibay v. Hemmat (2008) 161 Cal.App.4 th 735, 742 to 743.Responding party to give notice.5 503 32 nd St. v.CaliforniaOutdoorAdvertising, Inc.Motion to Set Aside Default: GRANTNo opposition filed. Entry of default against defendants California OutdoorAdvertising and Brian H. Gurnee is vacated.CMC set for 10/25/13 at 9:30 a.m.Moving party to give notice.7 Bathas v.McCluskeyPlaintiff Bathas’ Motion for Judgment on the Pleadings is DENIED.In Magnolia Square Homeowners Assn., the court also explained that thepleader may show that the statements made were inadvertently made orwere not authorized by him or made under a mistake of fact. Id., at 1061,citing Dolinar v. Pedone (1944) 63 Cal.App.2d 169, 177. See also, Nungarayv. Pleasant Valley Lima Bean Growers and Warehouse Assn. (1956) 142Cal.App.2d 653, 667. In this case, there is a triable issue as to inadvertenceor mistake based on the face of the pleadings in the earlier civil actionof Basim Sawan v. McCluskey, et al., O.C.S.C. Case No. 30-2011-00512235.While defendants McCluskey and Raymond Sawan admitted the allegations ofParagraph 22 in Basim Sawan’s first amended complaint, similar andoverlapping allegations in Paragraphs 19 and 27 of Basim Sawan’s firstamended complaint were denied. Hence there is an issue about whether the“Admit” as to Paragraph 22 was inadvertent or in error. Moving party to givenotice.Plaintiff Bathas’ Request for Judicial Notice: Plaintiff Bathas requestedthat the court take judicial notice of the following documents: Exhibit 1, FirstAmended Complaint in Basim Sawan v. McCluskey, et al., O.C.S.C. Case No.30-2011-00512235, Exhibit 2, Defendants McCluskey, et al.’s Verified Answerto First Amended Complaint in Basim Sawan v. McCluskey, et al., O.C.S.C.Case No. 30-2011-00512235, Exhibit 3, First Amended Complaint in Bathas

v. McCluskey, et al., O.C.S.C. Case No. 30-2012-00590087, and Exhibit 4,Notice of Ruling dated 7-11-13 in Bathas v. McCluskey, et al., O.C.S.C. CaseNo. 30-2012-00590087. GRANTED as to Exhibits 1, 2, 3 and 4, but suchnotice is limited to the filing of these pleadings with the court and not as toany claims or contentions therein other that admissions in verified pleadingsnot subject to clarification. See, Day v. Sharp (1975) 50 Cal.App.3d 904, 914and Nungaray v. Pleasant Valley Lima Bean Growers and Warehouse Ass’n(1956) 142 Cal.App.2d 653, 667.Plaintiff Bathas’ Evidentiary Objections: Plaintiff’s evidentiary ObjectionsNos. 1 through 13 are objections to selections from defendants’ oppositionmemorandum. A memorandum sets forth a party’s contentions and is notevidence. See, Humane Society of the United States v. Superior Court (2013)214 Cal.App.4 th 1233, 1249 (information in unsworn memorandum of pointsand authorities is not evidence.) Therefore plaintiff’s evidentiary ObjectionNos. 1 through 13 are DENIED.Request for Judicial Notice by Defendants Dana McCluskey andRaymond Sawan: Defendants McCluskey and Sawan requested that thecourt take judicial notice of the following documents: Exhibit A, PlaintiffBathas’ Verified, First Amended Complaint, Exhibit B, Defendants’ AmendedAnswer to Plaintiff Bathas’ Verified Complaint, Exhibit C, Basim Sawan’s FirstAmended Complaint in Basim Sawan v. McCluskey, et al., O.C.S.C. Case No.30-2011-00512235, and Exhibit 4, Answer by Defendants McCluskey andRaymond Sawan to Basim Sawan’s First Amended Complaint in Basim Sawanv. McCluskey, et al., O.C.S.C. Case No. 30-2011-00512235. GRANTED as toExhibits A, B, C and D, but such notice is limited to the filing of thesepleading with the court and not as to the truth of any claims or contentionsset forth therein. See, Evidence Code § 452(d) and Day v. Sharp (1975) 50Cal.App.3d 904, 914.Plaintiff Bathas’ Motion for a Preliminary Injunction is DENIED.Defendants have presented evidence of a written opinion of independentcounsel that supports the indemnification of their legal expenses by SIC. See,Corporations Code § 317(e)(2). Hence, plaintiff Bathas has not demonstrateda likelihood of prevailing on the merits on the issue of indemnification. Inaddition, plaintiff Bathas has not demonstrated any irreparable harm thatmonetary damages cannot satisfy. See, Thayer Plymouth Center Inc. v.Chrysler Motor Corp. (1967) 255 Cal.App.2d 300, 306. Finally, even if thecourt were to grant plaintiff’s request for a preliminary injunction, the drasticremedy and expense of a limited receiver to collect legal expenses alreadypaid is not warranted under the facts of this case. See, City & County of SanFrancisco v. Daley (1993) 16 Cal.App.4 th 734, 744 to 745. Moving party togive notice.Plaintiff Bathas’ Request for Judicial Notice: Plaintiff Bathas requestedthat the court take judicial notice of the following documents in support ofher motion for a preliminary injunction, including: Exhibit 1, Plaintiff’s Motionto Disqualify filed 4-5-13, Exhibit 2, Plaintiff’s Notice of Ruling filed 5-25-13,Exhibit 3, Plaintiff Bathas’ First Amended Complaint filed 2-11-13, and Exhibit4, Defendants’ Amended Answer to Plaintiff Bathas’ First Amended Complaintfiled7-19-13. GRANTED as to Exhibits 1, 2, 3 and 4, but such notice is limited tothe filing of these pleadings with the court and not as to the truth of anyclaims or contentions set forth therein. See, Evidence Code § 452(d) and Dayv. Sharp (1975) 50 Cal.App.3d 904, 914.Plaintiff Bathas’ Evidentiary Objections: Plaintiff’s evidentiary ObjectionsNos. 1 through 38 are objections to selections from defendants’ oppositionmemorandum to plaintiff’s motion for a preliminary injunction. A

memorandum sets forth a party’s contentions and is not evidence. See,Humane Society of the United States v. Superior Court (2013) 214Cal.App.4 th 1233, 1249 (information in unsworn memorandum of points andauthorities is not evidence.) Therefore plaintiff’s evidentiary Objection Nos. 1through 38 are DENIED.Request for Judicial Notice by Defendants Dana McCluskey andRaymond Sawan: Defendants McCluskey and Sawan requested that thecourt take judicial notice of the following documents: Exhibit 1, Declaration ofDana McCluskey filed in support of Motion for Summary Judgment, Exhibit 2,Plaintiff Bathas’ Verified First Amended Complaint, Exhibit 3, Notice of Rulingon Motion to Disqualify filed by Plaintiff, and Exhibit 4, Defendants’ VerifiedAmended Answer to Plaintiff’s First Amended Complaint. GRANTED as toExhibits 1, 2, 3 and 4, but such notice is limited to the filing of thesepleadings with the court and not as to the truth of any claims or contentionsset forth therein. See, Evidence Code § 452(d) and Day v. Sharp (1975) 50Cal.App.3d 904, 914.Responding party to give notice.9 Drees v.DiTommasoDemurrer to First Amended Cross-Complaint: SUSTAIN with 10 days leave toamendThe demurrer by Leedco Engineering (ROE 5) to the First Amended Cross-Complaint on grounds that cross-complainants failed to comply with CCP §411.35 (certificate of merit) is sustained with 10 days leave to amend. Therequest for judicial notice is granted.Moving party to give notice.11 Goocher v. WellsFargo HomeMortgage14 Wang v. TideInternationalUSA, Inc.Demurrer/Motion to Strike Complaint: OFF CALENDARThis case has been deemed related to : (1) Goocher v. Wells Fargo Bank,N.A., O.C.S.C. Case No. 30-2011-00497944, and (2) Goocher v. Wells FargoBank, N.A., et al., O.C.S.C. Case No. 30-2012-00578742 and has beenreassigned to Judge David Chaffee.Motion to Appear Pro Hac Vice: GRANTAttorney Cristen Rose’s application for admission pro hac vice is granted.Attorney Rose has now demonstrated compliance with Rule 9.40, includingevidence of payment of the $50.00 fee and service of his application on theState Bar of California in compliance with Rule 9.40(e).Moving party to give notice.

1 Leinberger v.Keystone RV Co.Motion for Attorneys Fees: GRANT (See below)The Motion for Attorney Fees is GRANTED in the sum of $50,000.00.The fee of $475.00 is unreasonable. The reasonable hourly rate is thatprevailing in the community for similar work. PLCM Group v. Drexler (2000)22 Cal.4th 1084, 1095. An average attorney with modest experience couldhave successfully handled this case. It is certainly not necessary to retaincounsel that achieved Order of the Coif to recover for this defectiverecreational vehicle. A reasonable fee would be $330.00 per hour.Moreover, even though Defendants’ critique of Plaintiff’s billing is overlycritical, many of the tactics employed by plaintiff unreasonably increased thebilling. There was no need for two attorneys on this case. The charges forcommunications between counsel did not provide value to the client. Thefiling in federal court was a tactical error, which caused unnecessary billing. Areasonable time for this case would be 150 hours.2 Mendoza v.NguyenMoving party to give notice.Motion to Strike Costs: GRANTED in part.The following items are taxed as requested: Postage and copy costs: $939.34 Parking: $309 Fees for Go Daddy, Tumblr, Google, Internet (Internet fees): $554.25 Expert witness fees and medical records: $4,238.03 Appellate filing fees: $1,585.67 Process service fee re John Do: $200.00The motion is GRANTED in part as to filing fees for motions to compel:$120.00 is taxed.Postage and copy costs, fees of experts not ordered by the Court : Recoveryis expressly prohibited by CCP §1033.5(b)(3). The Court has no discretionto award fees that are expressly prohibited by the statute. Ladas v.California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774. The claimthat the Court “ordered” Plaintiff to retain a mental expert simply because itgranted permission to Defendants to allow their expert to examine Plaintiff isfrivolous in the extreme. Plaintiffs admitted in their cost memorandum thatthe cost of their exhibits was $38.95.Parking: Travel expenses to attend depositions are authorized by§1033.5(a)(3) but the statute doesn’t expressly bar other travelexpenses. Nor does Ladas. However, sub§(c) and Ladas do require ashowing that the expenses are reasonably necessary to the litigation and notmerely convenient. Id. at 775-776. In Orange County, it is reasonablynecessary to pay for parking for trial. However, the Court is unaware of anyparking facility that charges $160/day. Plaintiff’s spreadsheet shows that theamounts of $160 and $130 were incurred on a single day and the othercharge of $6 was not on one of the trial days. In addition, Plaintiffs have notshown why it was “reasonably necessary” to have an assistant or to have herdrive to trial and park separately. This appears to have been merely“convenient.”Internet fees: These are fees associated with the gathering of evidence, i.e.,investigation expenses incurred to prepare for trial, expressly prohibited by§1033.5(b)(2).Appellate filing fees: Filing fees are expressly authorized by §1033.5(a)(1);thus, the cost memorandum is prima facie evidence that they are

ecoverable, and the burden shifts to the party resisting recovery to showthey are not. Perko’s Enterprises Inc. v. RRNS Enterprises (1992) 4Cal.App.4th 238, 243. However, under sub§(c)(2), even authorized costsmust be “reasonably necessary to the conduct of the litigation rather thanmerely convenient or beneficial to its preparation.” Defendants have mettheir initial burden by showing that the fees were incurred in seeking a writon a discovery ruling. As it is highly unlikely that the Court of Appeal wouldreview this type of interim ruling, the writs were not reasonably necessary.Service of process on John Do: Defendants have met their initial burden byshowing that Mr. Do did not testify and was not deposed. Plaintiffs admitthey were unable to locate him, so process was not actually served. This wasan investigation cost, which is not recoverable under §1033.5(b)(2). Also, asPlaintiffs were able to prevail without him, it is clear that his testimony wasn’t“reasonably necessary.”Filing fees for motions to compel: Motion fees are expressly authorized by§1033.5(a)(1), so Defendants have to show that these motions were notreasonably necessary to the litigation. They cite no authority that the merefact that discovery sanctions are awarded prevents a party from recoveringmotion costs. Judge Munoz did not find that the motions were frivolous, onlythat they were not “substantially justified.” This is merely the statutorylanguage used to support sanctions. See e.g., CCP §2030.290(c). Two ofthe motions were denied because of lack of a separate statement so it isn’tshown that they weren’t reasonable necessary. However, the other two weredenied because the responses were complaint, so it was not reasonablynecessary to have moved to compel a further response.Defendants are to give notice.3 Smith CampbellClifford KearneyGore v. GrissomMotion for Protective Order: DENYThe Motion for Stay and the Motion for Protective Order are DENIED.Defendant & Cross-Complainant Grissom has failed to establish good cause tostay this action. The appellate case will be decided well prior to the trial ofthis case. It has not been shown that the Judgment would be reversed onappeal. The result in the appellate case has limited impact on this case,which has been pending for fifteen (15) months.Moving party has failed to show that the discovery was undulyburdensome. “The discovery burden is ‘undue’ only if the inconvenience andexpense of responding clearly outweigh the benefits likely to be obtained ifthe interrogatories are answered. [CCP §§ 2019.030(a), 2030.090(b)]” Weil& Brown, Civil Procedure Before Trial (Rutter Group) 8:1008.1. (Emphasisoriginal).Responding party to give notice.4 Magpiong v.Sasco, Inc.Motion for Protective Order/to Quash: See below1) The joint motion for protective order by defendants Sasco and Roxford isgranted in part and denied in part. GRANTED as to any absolute work productat issue. See, BP Alaska Exploration, Inc. v. Superior Court (1988) 199Cal.App.3d 1240, 1250 to 1253. But as to any material claimed to constituteabsolute work product defendants Sasco and Roxford are to prepare aprivilege log within 21 days. See, Wellpoint Health Networks, Inc. v. SuperiorCourt (1997) 59 Cal.App.4 th 110, 130. DENIED as to defendants’ request thatthe depositions of current and former Sasco executives Milton Greene, LarrySmead, Marcus Turner and Colin Clements as to all communications withcounsel at Locke Lord or in connection with the June 21, 2011 meeting beprohibited altogether. First, underlying facts still remain discoverable even

though actual communications, whether oral or written to an attorney, wouldnot be. See, Chicago Title Ins. Co. v. Superior Court (1985) 174 Cal.App.3d1142, 1151 to 1152. Second, plaintiff Magpiong has carried his initial burdenof establishing a prima facie case of potential tax fraud. The exception appliesto retention of counsel to commit a crime or fraud. See, Gelim v. SuperiorCourt (1991) 234 Cal.App.3d 166, 174. Plaintiff contends he was terminatedfor reporting and refusing to participate in an alleged crime. But this does notmean that all documents or communications with Locke Lord counsel arediscoverable. In BP Alaska, the court noted that: “...under the ‘reasonablyrelated’ rule, only Gibson-Smith’s knowledge related to the fraud—therepresentations made in the December 23, 1985, letter, is discoverable.” Id.,at 1271. Hence the court must review each deposition question and thereasons set forth to compel a response, and determine if the crime-fraudexception applies. Id., at 1270. Hence, in this case, defendants Sasco andRoxford can still raise the attorney client privilege or contend that documentsare not related to the claimed unlawful activity on which plaintiff Magpiongcontends his termination was based. As to such documents claimed to beprotected by the attorney-client privilege, defendants Sasco and Roxford aredirected to prepare a privilege log. See, Wellpoint Health Networks, Inc. v.Superior Court (1997) 59 Cal.App.4 th 110, 130. The determination of whethersuch communications and/or documents are discoverable will await asubsequent motion setting forth the deposition question or questions andcontext as to whether the attorney-client privilege, attorney work productprivilege, and/or if such matters are within the scope of plaintiff Magpiong’sclaim of unlawful activity. In addition, some of the documents andcommunications appear to constitute corporate business and tax planningand not legal advice. There is no accountant privilege in California, and anattorney rendering business advice does not constitute privilegedcommunications. See, Zurich American Ins. Co. v. Superior Court (2007) 155Cal.App.4 th 1485, 1504. DENIED as to prohibiting “questioning of anywitness” about communications with outside counsel at Locke Lord and/or theJune 21, 2011 meeting as simply overly broad and speculative. Movingparties to give notice.2) The joint motion to quash is DENIED in part absent service of a privilegelog within 21 days in regard to Request Nos. 1 through 4, and as to RequestNos. 5, 6, 7, 8 and 9 defendants’ motion to quash is continued to 11-7-13, at2:00 p.m., in Department No. 15. As to Request Nos. 1 through 4,defendants Sasco and Roxford are ordered to serve a separate privilege logwithin 21 days as to any documents that are responsive to Request Nos. 1 to4 that they contend are privileged. See, Wellpoint Health Networks, Inc. v.Superior Court (1997) 59 Cal.App.4 th 110, 130. Otherwise, after this 21 days,and if no privilege log is served as to these requests, the motion to quash bydefendants Sasco and Roxford is denied as to Request Nos. 1 through 4. Asto Request No. 5, 6, 7, 8 and 9, defendants Sasco and Roxford are ordered toproduce a separate privilege log within 21 days as to any documentsresponsive to Request Nos. 5, 6, 7, 8 and 9 that they contend are protectedunder the attorney client privilege. As to Request Nos. 5, 6, 7, 8 and 9, thejoint motion to quash by defendants Sasco and Roxford is CONTINUED to 11-7-13, at 2:00 p.m., in Department C-15 for hearing. If a privilege log isserved, both parties are to submit supplemental briefs of no more than 10pages addressing the attorney client privilege in reference to Request Nos. 5,6, 7, 8 and 9, with defendants’ supplemental brief due 9 court days beforethe continued hearing date while plaintiff’s supplemental brief is due 5 courtdays before the continued hearing date. The separate privilege log meansRequest Nos. 1 through 9 that are the subject of defendants’ motion toquash, which is to be distinguished from the privilege log called for in regardto defendants’ motion for a protective order.The parties are also ordered to meet and confer as to whether this case isamenable to the appointment of a discovery referee for all purposes.

Plaintiff Magpiong's Evidentiary Objections: Declaration of AttorneyScott R. Ames: OVERRULED as to Objection Nos. 1, 2, 5 and 6. SUSTAINEDas to Objection Nos. 3 and 4. [NOTE: Plaintiff’s objections to attorney Ames’declaration were numbered in order since there were just 6 objections.]Declaration of Marcus Turner: OVERRULED as to Objection Nos. 1, 2, 3, 4,5, 6 and 10. SUSTAINED as to Objection Nos. 7, 8 and 9. [NOTE: Plaintiff’sobjections to Marcus Turner’s declaration were numbered in order since therewere just 10 objections.]Evidentiary Objections by Defendants Sasco and Roxford: Declarationof Brett Magpiong: OVERRULED as to Objection Nos. 1, 2, 3, 4, 5, 6, 7, 9,10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 25, 26, 27, 28, 31, 32 and33.SUSTAINED as to Objection Nos. 8, 20, 24, 29, 30 and 34.Declaration of Attorney Richard Lloyd Sherman: OVERRULED as toObjection Nos. 1 and 2. Declaration of Edward J. McCaffery: OVERRULEDas to Objection Nos. 5, 6, 7, 9 and 10. SUSTAINED as to Objection Nos. 1, 2,3, 4 and 8. The court notes that experts may rely on hearsay in forming theiropinions as long as it is not for independent proof of facts.Garibay v. Hemmat (2008) 161 Cal.App.4 th 735, 742 to 743.Responding party to give notice.5 503 32 nd St. v.CaliforniaOutdoorAdvertising, Inc.Motion to Set Aside Default: GRANTNo opposition filed. Entry of default against defendants California OutdoorAdvertising and Brian H. Gurnee is vacated.CMC set for 10/25/13 at 9:30 a.m.Moving party to give notice.7 Bathas v.McCluskeyPlaintiff Bathas’ Motion for Judgment on the Pleadings is DENIED.In Magnolia Square Homeowners Assn., the court also explained that thepleader may show that the statements made were inadvertently made orwere not authorized by him or made under a mistake of fact. Id., at 1061,citing Dolinar v. Pedone (1944) 63 Cal.App.2d 169, 177. See also, Nungarayv. Pleasant Valley Lima Bean Growers and Warehouse Assn. (1956) 142Cal.App.2d 653, 667. In this case, there is a triable issue as to inadvertenceor mistake based on the face of the pleadings in the earlier civil actionof Basim Sawan v. McCluskey, et al., O.C.S.C. Case No. 30-2011-00512235.While defendants McCluskey and Raymond Sawan admitted the allegations ofParagraph 22 in Basim Sawan’s first amended complaint, similar andoverlapping allegations in Paragraphs 19 and 27 of Basim Sawan’s firstamended complaint were denied. Hence there is an issue about whether the“Admit” as to Paragraph 22 was inadvertent or in error. Moving party to givenotice.Plaintiff Bathas’ Request for Judicial Notice: Plaintiff Bathas requestedthat the court take judicial notice of the following documents: Exhibit 1, FirstAmended Complaint in Basim Sawan v. McCluskey, et al., O.C.S.C. Case No.30-2011-00512235, Exhibit 2, Defendants McCluskey, et al.’s Verified Answerto First Amended Complaint in Basim Sawan v. McCluskey, et al., O.C.S.C.Case No. 30-2011-00512235, Exhibit 3, First Amended Complaint in Bathasv. McCluskey, et al., O.C.S.C. Case No. 30-2012-00590087, and Exhibit 4,

Notice of Ruling dated 7-11-13 in Bathas v. McCluskey, et al., O.C.S.C. CaseNo. 30-2012-00590087. GRANTED as to Exhibits 1, 2, 3 and 4, but suchnotice is limited to the filing of these pleadings with the court and not as toany claims or contentions therein other that admissions in verified pleadingsnot subject to clarification. See, Day v. Sharp (1975) 50 Cal.App.3d 904, 914and Nungaray v. Pleasant Valley Lima Bean Growers and Warehouse Ass’n(1956) 142 Cal.App.2d 653, 667.Plaintiff Bathas’ Evidentiary Objections: Plaintiff’s evidentiary ObjectionsNos. 1 through 13 are objections to selections from defendants’ oppositionmemorandum. A memorandum sets forth a party’s contentions and is notevidence. See, Humane Society of the United States v. Superior Court (2013)214 Cal.App.4 th 1233, 1249 (information in unsworn memorandum of pointsand authorities is not evidence.) Therefore plaintiff’s evidentiary ObjectionNos. 1 through 13 are DENIED.Request for Judicial Notice by Defendants Dana McCluskey andRaymond Sawan: Defendants McCluskey and Sawan requested that thecourt take judicial notice of the following documents: Exhibit A, PlaintiffBathas’ Verified, First Amended Complaint, Exhibit B, Defendants’ AmendedAnswer to Plaintiff Bathas’ Verified Complaint, Exhibit C, Basim Sawan’s FirstAmended Complaint in Basim Sawan v. McCluskey, et al., O.C.S.C. Case No.30-2011-00512235, and Exhibit 4, Answer by Defendants McCluskey andRaymond Sawan to Basim Sawan’s First Amended Complaint in Basim Sawanv. McCluskey, et al., O.C.S.C. Case No. 30-2011-00512235. GRANTED as toExhibits A, B, C and D, but such notice is limited to the filing of thesepleading with the court and not as to the truth of any claims or contentionsset forth therein. See, Evidence Code § 452(d) and Day v. Sharp (1975) 50Cal.App.3d 904, 914.Plaintiff Bathas’ Motion for a Preliminary Injunction is DENIED.Defendants have presented evidence of a written opinion of independentcounsel that supports the indemnification of their legal expenses by SIC. See,Corporations Code § 317(e)(2). Hence, plaintiff Bathas has not demonstrateda likelihood of prevailing on the merits on the issue of indemnification. Inaddition, plaintiff Bathas has not demonstrated any irreparable harm thatmonetary damages cannot satisfy. See, Thayer Plymouth Center Inc. v.Chrysler Motor Corp. (1967) 255 Cal.App.2d 300, 306. Finally, even if thecourt were to grant plaintiff’s request for a preliminary injunction, the drasticremedy and expense of a limited receiver to collect legal expenses alreadypaid is not warranted under the facts of this case. See, City & County of SanFrancisco v. Daley (1993) 16 Cal.App.4 th 734, 744 to 745. Moving party togive notice.Plaintiff Bathas’ Request for Judicial Notice: Plaintiff Bathas requestedthat the court take judicial notice of the following documents in support ofher motion for a preliminary injunction, including: Exhibit 1, Plaintiff’s Motionto Disqualify filed 4-5-13, Exhibit 2, Plaintiff’s Notice of Ruling filed 5-25-13,Exhibit 3, Plaintiff Bathas’ First Amended Complaint filed 2-11-13, and Exhibit4, Defendants’ Amended Answer to Plaintiff Bathas’ First Amended Complaintfiled7-19-13. GRANTED as to Exhibits 1, 2, 3 and 4, but such notice is limited tothe filing of these pleadings with the court and not as to the truth of anyclaims or contentions set forth therein. See, Evidence Code § 452(d) and Dayv. Sharp (1975) 50 Cal.App.3d 904, 914.Plaintiff Bathas’ Evidentiary Objections: Plaintiff’s evidentiary ObjectionsNos. 1 through 38 are objections to selections from defendants’ oppositionmemorandum to plaintiff’s motion for a preliminary injunction. Amemorandum sets forth a party’s contentions and is not evidence. See,

Humane Society of the United States v. Superior Court (2013) 214Cal.App.4 th 1233, 1249 (information in unsworn memorandum of points andauthorities is not evidence.) Therefore plaintiff’s evidentiary Objection Nos. 1through 38 are DENIED.Request for Judicial Notice by Defendants Dana McCluskey andRaymond Sawan: Defendants McCluskey and Sawan requested that thecourt take judicial notice of the following documents: Exhibit 1, Declaration ofDana McCluskey filed in support of Motion for Summary Judgment, Exhibit 2,Plaintiff Bathas’ Verified First Amended Complaint, Exhibit 3, Notice of Rulingon Motion to Disqualify filed by Plaintiff, and Exhibit 4, Defendants’ VerifiedAmended Answer to Plaintiff’s First Amended Complaint. GRANTED as toExhibits 1, 2, 3 and 4, but such notice is limited to the filing of thesepleadings with the court and not as to the truth of any claims or contentionsset forth therein. See, Evidence Code § 452(d) and Day v. Sharp (1975) 50Cal.App.3d 904, 914.Responding party to give notice.9 Drees v.DiTommasoDemurrer to First Amended Cross-Complaint: SUSTAIN with 10 days leave toamendThe demurrer by Leedco Engineering (ROE 5) to the First Amended Cross-Complaint on grounds that cross-complainants failed to comply with CCP §411.35 (certificate of merit) is sustained with 10 days leave to amend. Therequest for judicial notice is granted.Moving party to give notice.14 Wang v. TideInternationalUSA, Inc.Motion to Appear Pro Hac Vice: GRANTAttorney Cristen Rose’s application for admission pro hac vice is granted.Attorney Rose has now demonstrated compliance with Rule 9.40, includingevidence of payment of the $50.00 fee and service of his application on theState Bar of California in compliance with Rule 9.40(e).Moving party to give notice.

1 Leinberger v.Keystone RV Co.Motion for Attorneys Fees: GRANT (See below)The Motion for Attorney Fees is GRANTED in the sum of $50,000.00.The fee of $475.00 is unreasonable. The reasonable hourly rate is thatprevailing in the community for similar work. PLCM Group v. Drexler (2000)22 Cal.4th 1084, 1095. An average attorney with modest experience couldhave successfully handled this case. It is certainly not necessary to retaincounsel that achieved Order of the Coif to recover for this defectiverecreational vehicle. A reasonable fee would be $330.00 per hour.Moreover, even though Defendants’ critique of Plaintiff’s billing is overlycritical, many of the tactics employed by plaintiff unreasonably increased thebilling. There was no need for two attorneys on this case. The charges forcommunications between counsel did not provide value to the client. Thefiling in federal court was a tactical error, which caused unnecessary billing. Areasonable time for this case would be 150 hours.2 Mendoza v.NguyenMoving party to give notice.Motion to Strike Costs: GRANTED in part.The following items are taxed as requested: Postage and copy costs: $939.34 Parking: $309 Fees for Go Daddy, Tumblr, Google, Internet (Internet fees): $554.25 Expert witness fees and medical records: $4,238.03 Appellate filing fees: $1,585.67 Process service fee re John Do: $200.00The motion is GRANTED in part as to filing fees for motions to compel:$120.00 is taxed.Postage and copy costs, fees of experts not ordered by the Court : Recoveryis expressly prohibited by CCP §1033.5(b)(3). The Court has no discretionto award fees that are expressly prohibited by the statute. Ladas v.California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774. The claimthat the Court “ordered” Plaintiff to retain a mental expert simply because itgranted permission to Defendants to allow their expert to examine Plaintiff isfrivolous in the extreme. Plaintiffs admitted in their cost memorandum thatthe cost of their exhibits was $38.95.Parking: Travel expenses to attend depositions are authorized by§1033.5(a)(3) but the statute doesn’t expressly bar other travelexpenses. Nor does Ladas. However, sub§(c) and Ladas do require ashowing that the expenses are reasonably necessary to the litigation and notmerely convenient. Id. at 775-776. In Orange County, it is reasonablynecessary to pay for parking for trial. However, the Court is unaware of anyparking facility that charges $160/day. Plaintiff’s spreadsheet shows that theamounts of $160 and $130 were incurred on a single day and the othercharge of $6 was not on one of the trial days. In addition, Plaintiffs have notshown why it was “reasonably necessary” to have an assistant or to have herdrive to trial and park separately. This appears to have been merely“convenient.”Internet fees: These are fees associated with the gathering of evidence, i.e.,investigation expenses incurred to prepare for trial, expressly prohibited by§1033.5(b)(2).Appellate filing fees: Filing fees are expressly authorized by §1033.5(a)(1);

thus, the cost memorandum is prima facie evidence that they arerecoverable, and the burden shifts to the party resisting recovery to showthey are not. Perko’s Enterprises Inc. v. RRNS Enterprises (1992) 4Cal.App.4th 238, 243. However, under sub§(c)(2), even authorized costsmust be “reasonably necessary to the conduct of the litigation rather thanmerely convenient or beneficial to its preparation.” Defendants have mettheir initial burden by showing that the fees were incurred in seeking a writon a discovery ruling. As it is highly unlikely that the Court of Appeal wouldreview this type of interim ruling, the writs were not reasonably necessary.Service of process on John Do: Defendants have met their initial burden byshowing that Mr. Do did not testify and was not deposed. Plaintiffs admitthey were unable to locate him, so process was not actually served. This wasan investigation cost, which is not recoverable under §1033.5(b)(2). Also, asPlaintiffs were able to prevail without him, it is clear that his testimony wasn’t“reasonably necessary.”Filing fees for motions to compel: Motion fees are expressly authorized by§1033.5(a)(1), so Defendants have to show that these motions were notreasonably necessary to the litigation. They cite no authority that the merefact that discovery sanctions are awarded prevents a party from recoveringmotion costs. Judge Munoz did not find that the motions were frivolous, onlythat they were not “substantially justified.” This is merely the statutorylanguage used to support sanctions. See e.g., CCP §2030.290(c). Two ofthe motions were denied because of lack of a separate statement so it isn’tshown that they weren’t reasonable necessary. However, the other two weredenied because the responses were complaint, so it was not reasonablynecessary to have moved to compel a further response.Defendants are to give notice.3 Smith CampbellClifford KearneyGore v. GrissomMotion for Protective Order: DENYThe Motion for Stay and the Motion for Protective Order are DENIED.Defendant & Cross-Complainant Grissom has failed to establish good cause tostay this action. The appellate case will be decided well prior to the trial ofthis case. It has not been shown that the Judgment would be reversed onappeal. The result in the appellate case has limited impact on this case,which has been pending for fifteen (15) months.Moving party has failed to show that the discovery was undulyburdensome. “The discovery burden is ‘undue’ only if the inconvenience andexpense of responding clearly outweigh the benefits likely to be obtained ifthe interrogatories are answered. [CCP §§ 2019.030(a), 2030.090(b)]” Weil& Brown, Civil Procedure Before Trial (Rutter Group) 8:1008.1. (Emphasisoriginal).Responding party to give notice.4 Magpiong v.Sasco, Inc.Motion for Protective Order/to Quash: See below1) The joint motion for protective order by defendants Sasco and Roxford isgranted in part and denied in part. GRANTED as to any absolute work productat issue. See, BP Alaska Exploration, Inc. v. Superior Court (1988) 199Cal.App.3d 1240, 1250 to 1253. But as to any material claimed to constituteabsolute work product defendants Sasco and Roxford are to prepare aprivilege log within 21 days. See, Wellpoint Health Networks, Inc. v. SuperiorCourt (1997) 59 Cal.App.4 th 110, 130. DENIED as to defendants’ request thatthe depositions of current and former Sasco executives Milton Greene, LarrySmead, Marcus Turner and Colin Clements as to all communications withcounsel at Locke Lord or in connection with the June 21, 2011 meeting be

prohibited altogether. First, underlying facts still remain discoverable eventhough actual communications, whether oral or written to an attorney, wouldnot be. See, Chicago Title Ins. Co. v. Superior Court (1985) 174 Cal.App.3d1142, 1151 to 1152. Second, plaintiff Magpiong has carried his initial burdenof establishing a prima facie case of potential tax fraud. The exception appliesto retention of counsel to commit a crime or fraud. See, Gelim v. SuperiorCourt (1991) 234 Cal.App.3d 166, 174. Plaintiff contends he was terminatedfor reporting and refusing to participate in an alleged crime. But this does notmean that all documents or communications with Locke Lord counsel arediscoverable. In BP Alaska, the court noted that: “...under the ‘reasonablyrelated’ rule, only Gibson-Smith’s knowledge related to the fraud—therepresentations made in the December 23, 1985, letter, is discoverable.” Id.,at 1271. Hence the court must review each deposition question and thereasons set forth to compel a response, and determine if the crime-fraudexception applies. Id., at 1270. Hence, in this case, defendants Sasco andRoxford can still raise the attorney client privilege or contend that documentsare not related to the claimed unlawful activity on which plaintiff Magpiongcontends his termination was based. As to such documents claimed to beprotected by the attorney-client privilege, defendants Sasco and Roxford aredirected to prepare a privilege log. See, Wellpoint Health Networks, Inc. v.Superior Court (1997) 59 Cal.App.4 th 110, 130. The determination of whethersuch communications and/or documents are discoverable will await asubsequent motion setting forth the deposition question or questions andcontext as to whether the attorney-client privilege, attorney work productprivilege, and/or if such matters are within the scope of plaintiff Magpiong’sclaim of unlawful activity. In addition, some of the documents andcommunications appear to constitute corporate business and tax planningand not legal advice. There is no accountant privilege in California, and anattorney rendering business advice does not constitute privilegedcommunications. See, Zurich American Ins. Co. v. Superior Court (2007) 155Cal.App.4 th 1485, 1504. DENIED as to prohibiting “questioning of anywitness” about communications with outside counsel at Locke Lord and/or theJune 21, 2011 meeting as simply overly broad and speculative. Movingparties to give notice.2) The joint motion to quash is DENIED in part absent service of a privilegelog within 21 days in regard to Request Nos. 1 through 4, and as to RequestNos. 5, 6, 7, 8 and 9 defendants’ motion to quash is continued to 11-7-13, at2:00 p.m., in Department No. 15. As to Request Nos. 1 through 4,defendants Sasco and Roxford are ordered to serve a separate privilege logwithin 21 days as to any documents that are responsive to Request Nos. 1 to4 that they contend are privileged. See, Wellpoint Health Networks, Inc. v.Superior Court (1997) 59 Cal.App.4 th 110, 130. Otherwise, after this 21 days,and if no privilege log is served as to these requests, the motion to quash bydefendants Sasco and Roxford is denied as to Request Nos. 1 through 4. Asto Request No. 5, 6, 7, 8 and 9, defendants Sasco and Roxford are ordered toproduce a separate privilege log within 21 days as to any documentsresponsive to Request Nos. 5, 6, 7, 8 and 9 that they contend are protectedunder the attorney client privilege. As to Request Nos. 5, 6, 7, 8 and 9, thejoint motion to quash by defendants Sasco and Roxford is CONTINUED to 11-7-13, at 2:00 p.m., in Department C-15 for hearing. If a privilege log isserved, both parties are to submit supplemental briefs of no more than 10pages addressing the attorney client privilege in reference to Request Nos. 5,6, 7, 8 and 9, with defendants’ supplemental brief due 9 court days beforethe continued hearing date while plaintiff’s supplemental brief is due 5 courtdays before the continued hearing date. The separate privilege log meansRequest Nos. 1 through 9 that are the subject of defendants’ motion toquash, which is to be distinguished from the privilege log called for in regardto defendants’ motion for a protective order.The parties are also ordered to meet and confer as to whether this case isamenable to the appointment of a discovery referee for all purposes.

Plaintiff Magpiong's Evidentiary Objections: Declaration of AttorneyScott R. Ames: OVERRULED as to Objection Nos. 1, 2, 5 and 6. SUSTAINEDas to Objection Nos. 3 and 4. [NOTE: Plaintiff’s objections to attorney Ames’declaration were numbered in order since there were just 6 objections.]Declaration of Marcus Turner: OVERRULED as to Objection Nos. 1, 2, 3, 4,5, 6 and 10. SUSTAINED as to Objection Nos. 7, 8 and 9. [NOTE: Plaintiff’sobjections to Marcus Turner’s declaration were numbered in order since therewere just 10 objections.]Evidentiary Objections by Defendants Sasco and Roxford: Declarationof Brett Magpiong: OVERRULED as to Objection Nos. 1, 2, 3, 4, 5, 6, 7, 9,10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 25, 26, 27, 28, 31, 32 and33.SUSTAINED as to Objection Nos. 8, 20, 24, 29, 30 and 34.Declaration of Attorney Richard Lloyd Sherman: OVERRULED as toObjection Nos. 1 and 2. Declaration of Edward J. McCaffery: OVERRULEDas to Objection Nos. 5, 6, 7, 9 and 10. SUSTAINED as to Objection Nos. 1, 2,3, 4 and 8. The court notes that experts may rely on hearsay in forming theiropinions as long as it is not for independent proof of facts.Garibay v. Hemmat (2008) 161 Cal.App.4 th 735, 742 to 743.Responding party to give notice.5 503 32 nd St. v.CaliforniaOutdoorAdvertising, Inc.Motion to Set Aside Default: GRANTNo opposition filed. Entry of default against defendants California OutdoorAdvertising and Brian H. Gurnee is vacated.CMC set for 10/25/13 at 9:30 a.m.Moving party to give notice.6 Tumur v. Boanta& Associates7 Bathas v.McCluskeyMotion for Leave to File First Amended Complaint: OFF CALENDARPlaintiff Bathas’ Motion for Judgment on the Pleadings is DENIED.In Magnolia Square Homeowners Assn., the court also explained that thepleader may show that the statements made were inadvertently made orwere not authorized by him or made under a mistake of fact. Id., at 1061,citing Dolinar v. Pedone (1944) 63 Cal.App.2d 169, 177. See also, Nungarayv. Pleasant Valley Lima Bean Growers and Warehouse Assn. (1956) 142Cal.App.2d 653, 667. In this case, there is a triable issue as to inadvertenceor mistake based on the face of the pleadings in the earlier civil actionof Basim Sawan v. McCluskey, et al., O.C.S.C. Case No. 30-2011-00512235.While defendants McCluskey and Raymond Sawan admitted the allegations ofParagraph 22 in Basim Sawan’s first amended complaint, similar andoverlapping allegations in Paragraphs 19 and 27 of Basim Sawan’s firstamended complaint were denied. Hence there is an issue about whether the“Admit” as to Paragraph 22 was inadvertent or in error. Moving party to givenotice.Plaintiff Bathas’ Request for Judicial Notice: Plaintiff Bathas requestedthat the court take judicial notice of the following documents: Exhibit 1, FirstAmended Complaint in Basim Sawan v. McCluskey, et al., O.C.S.C. Case No.30-2011-00512235, Exhibit 2, Defendants McCluskey, et al.’s Verified Answer

to First Amended Complaint in Basim Sawan v. McCluskey, et al., O.C.S.C.Case No. 30-2011-00512235, Exhibit 3, First Amended Complaint in Bathasv. McCluskey, et al., O.C.S.C. Case No. 30-2012-00590087, and Exhibit 4,Notice of Ruling dated 7-11-13 in Bathas v. McCluskey, et al., O.C.S.C. CaseNo. 30-2012-00590087. GRANTED as to Exhibits 1, 2, 3 and 4, but suchnotice is limited to the filing of these pleadings with the court and not as toany claims or contentions therein other that admissions in verified pleadingsnot subject to clarification. See, Day v. Sharp (1975) 50 Cal.App.3d 904, 914and Nungaray v. Pleasant Valley Lima Bean Growers and Warehouse Ass’n(1956) 142 Cal.App.2d 653, 667.Plaintiff Bathas’ Evidentiary Objections: Plaintiff’s evidentiary ObjectionsNos. 1 through 13 are objections to selections from defendants’ oppositionmemorandum. A memorandum sets forth a party’s contentions and is notevidence. See, Humane Society of the United States v. Superior Court (2013)214 Cal.App.4 th 1233, 1249 (information in unsworn memorandum of pointsand authorities is not evidence.) Therefore plaintiff’s evidentiary ObjectionNos. 1 through 13 are DENIED.Request for Judicial Notice by Defendants Dana McCluskey andRaymond Sawan: Defendants McCluskey and Sawan requested that thecourt take judicial notice of the following documents: Exhibit A, PlaintiffBathas’ Verified, First Amended Complaint, Exhibit B, Defendants’ AmendedAnswer to Plaintiff Bathas’ Verified Complaint, Exhibit C, Basim Sawan’s FirstAmended Complaint in Basim Sawan v. McCluskey, et al., O.C.S.C. Case No.30-2011-00512235, and Exhibit 4, Answer by Defendants McCluskey andRaymond Sawan to Basim Sawan’s First Amended Complaint in Basim Sawanv. McCluskey, et al., O.C.S.C. Case No. 30-2011-00512235. GRANTED as toExhibits A, B, C and D, but such notice is limited to the filing of thesepleading with the court and not as to the truth of any claims or contentionsset forth therein. See, Evidence Code § 452(d) and Day v. Sharp (1975) 50Cal.App.3d 904, 914.Plaintiff Bathas’ Motion for a Preliminary Injunction is DENIED.Defendants have presented evidence of a written opinion of independentcounsel that supports the indemnification of their legal expenses by SIC. See,Corporations Code § 317(e)(2). Hence, plaintiff Bathas has not demonstrateda likelihood of prevailing on the merits on the issue of indemnification. Inaddition, plaintiff Bathas has not demonstrated any irreparable harm thatmonetary damages cannot satisfy. See, Thayer Plymouth Center Inc. v.Chrysler Motor Corp. (1967) 255 Cal.App.2d 300, 306. Finally, even if thecourt were to grant plaintiff’s request for a preliminary injunction, the drasticremedy and expense of a limited receiver to collect legal expenses alreadypaid is not warranted under the facts of this case. See, City & County of SanFrancisco v. Daley (1993) 16 Cal.App.4 th 734, 744 to 745. Moving party togive notice.Plaintiff Bathas’ Request for Judicial Notice: Plaintiff Bathas requestedthat the court take judicial notice of the following documents in support ofher motion for a preliminary injunction, including: Exhibit 1, Plaintiff’s Motionto Disqualify filed 4-5-13, Exhibit 2, Plaintiff’s Notice of Ruling filed 5-25-13,Exhibit 3, Plaintiff Bathas’ First Amended Complaint filed 2-11-13, and Exhibit4, Defendants’ Amended Answer to Plaintiff Bathas’ First Amended Complaintfiled7-19-13. GRANTED as to Exhibits 1, 2, 3 and 4, but such notice is limited tothe filing of these pleadings with the court and not as to the truth of anyclaims or contentions set forth therein. See, Evidence Code § 452(d) and Dayv. Sharp (1975) 50 Cal.App.3d 904, 914.Plaintiff Bathas’ Evidentiary Objections: Plaintiff’s evidentiary Objections

Nos. 1 through 38 are objections to selections from defendants’ oppositionmemorandum to plaintiff’s motion for a preliminary injunction. Amemorandum sets forth a party’s contentions and is not evidence. See,Humane Society of the United States v. Superior Court (2013) 214Cal.App.4 th 1233, 1249 (information in unsworn memorandum of points andauthorities is not evidence.) Therefore plaintiff’s evidentiary Objection Nos. 1through 38 are DENIED.Request for Judicial Notice by Defendants Dana McCluskey andRaymond Sawan: Defendants McCluskey and Sawan requested that thecourt take judicial notice of the following documents: Exhibit 1, Declaration ofDana McCluskey filed in support of Motion for Summary Judgment, Exhibit 2,Plaintiff Bathas’ Verified First Amended Complaint, Exhibit 3, Notice of Rulingon Motion to Disqualify filed by Plaintiff, and Exhibit 4, Defendants’ VerifiedAmended Answer to Plaintiff’s First Amended Complaint. GRANTED as toExhibits 1, 2, 3 and 4, but such notice is limited to the filing of thesepleadings with the court and not as to the truth of any claims or contentionsset forth therein. See, Evidence Code § 452(d) and Day v. Sharp (1975) 50Cal.App.3d 904, 914.Responding party to give notice.9 Drees v.DiTommasoDemurrer to First Amended Cross-Complaint: SUSTAIN with 10 days leave toamendThe demurrer by Leedco Engineering (ROE 5) to the First Amended Cross-Complaint on grounds that cross-complainants failed to comply with CCP §411.35 (certificate of merit) is sustained with 10 days leave to amend. Therequest for judicial notice is granted.Moving party to give notice.14 Wang v. TideInternationalUSA, Inc.Motion to Appear Pro Hac Vice: GRANTAttorney Cristen Rose’s application for admission pro hac vice is granted.Attorney Rose has now demonstrated compliance with Rule 9.40, includingevidence of payment of the $50.00 fee and service of his application on theState Bar of California in compliance with Rule 9.40(e).Moving party to give notice.

1 Ford v.Namanny, Byrne& OwensMotion for Order to Stay Proceedings: GRANTDefendant’s motion to stay this action pending resolution of the NationalFootball League Player’ Concussion Injury Litigation is GRANTED. No timelyopposition filed The Court expresses no opinion on whether or the extent towhich the federal settlement will bar Plaintiff’s recovery in this case. Areview hearing is set for 11/15/13 at 9:15 am.Defendant is to give notice.2 Stewart v. DocBrownProductionsMotion for Issuance of Earnings Withholding Order: DENYThe court file reflects a Proof of Service only for the Notice of Continuance,but not the Notice of Motion and Declaration filed on September 20, 2013. Inany event, the court finds that personal service is required upon SharlynFloyd since she has never appeared in this action. Moreover, the court willfurther require more than the hearsay statements relied upon by movingparty to establish the spousal relationship.Responding party to give notice.3 Mashburn v.IndyMacMortgageServices5 Conners v. FordMotor Co.Demurrer to Complaint: See belowDefendant’s demurrer to the complaint is sustained without leave as to the3rd-5 th causes of action. As to the 1 st cause of action, the demurrer issustained with leave to provide plaintiffs with the opportunity to identify withcertainty the 6/12 written (?) forbearance agreement and its specific terms,as referenced in paragraph 44 of the complaint. Plaintiffs have concurrentlyalleged full performance, contending that such performance establishes thatthey have not violated the statute of frauds. This contention leads the courtto believe that there is no written agreement. If plaintiffs are unable toassure the Court that they can produce or establish that they entered into awritten contract, the 1 st cause of action will also be sustained without leave.As plaintiffs filed their second modification request only days before thecomplaint was filed and counsel mailed his standard, but uninformative,change of circumstances letter concurrent with filing this complaint, violationof CC 2923.6 could not have pre-dated the complaint. In addition, plaintiffshave relied upon cases that could not possibly support the argumentspresented in opposition to the demurrer. As to the 2 nd cause of action,plaintiffs must plead that their material change in financial circumstance wasdocumented and submitted to the servicer.Moving party to give notice.Demurrer to Complaint: See belowDefendant Ford Motor Company’s Demurrers to the Complaint areSUSTAINED. Plaintiff Conners is granted 15 days’ leave to amend.The issue is whether plaintiff has alleged facts showing that the statute oflimitations has not run or defendant is estopped from asserting the statute oflimitations as a defense. Both delayed discovery and equitable tolling go tothe question of the accrual of the statute of limitations. This Complaint doesnot allege facts sufficient to establish that the statute of limitations did notaccrue at the latest at the time the warranty expired in 2008. Plaintiff hasnot alleged specific facts about why she could not have discovered the factsnecessary to file her lawsuit and how she discovered them. See, Fox v.Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4 th 797As to equitable tolling, the Complaint does not allege facts showing therewere any efforts by Ford to fix her vehicle or promises to do so after

2007. The Court concludes that American Pipe & Construction Co. v. Utah(1974) 414 U.S. 538 does not change well-established principles of Californialaw and does not hold that the filing of a class action in which a plaintiffmight be a putative member of the class tolls the statute of limitations onindividual claims under state law.Equitable estoppel requires allegations about what Connors did not dobecause she was relying on things she was told, or facts that were concealed,by Ford. See, 13 Witkin, Summary of CA Law (10 th Ed. 2005) Equity, §191Moving party to give notice.7 Pak v. StandardIns. Co.Demurrer/Motion to Strike Complaint: See belowDefendant DiDomenico’s general demurrer to plaintiff Pak’s third cause ofaction for breach of fiduciary duty is OVERRULED. Even assuming that aninsurance broker owes no fiduciary duty to an insured (which is doubtfulunder Eddy v. Sharp (1988) 199 Cal.App.3d 858), plaintiff Pak alleged thatdefendant DiDomenico was his financial advisor also. (See, Complaint, 33.)A financial advisor owes a fiduciary duty to his or her clients. See, Twomey v.Mitchum, Jones & Templeton (1968) 262 Cal.App.2d 690, 708 to 709, andShapiro v. Clark (2008) 164 Cal.App.4 th 1128, 1132. Finally, defendantDiDomenico is ordered to e-file and serve an answer plaintiff Pak’s complaintwithin 10 days.Moving party to give notice.Defendant DiDomenico’s motion to strike plaintiff Pak’s claim for attorney’sfees is DENIED because plaintiff has alleged sufficient facts at this pleadingstage to invoke the “tort of another” doctrine. See, Third Blind Eye, Inc. v.Near North Entertainment ins. Service LLC (2005) 127 Cal.App.4 th 1311,1325. In particular, Paragraphs 34 and 36 set forth sufficient allegations offailure to advise of the terms of the disability policy and scope of coveragesimilar to in Third Blind Eye, Inc. Relatedly, at this pleading stage, plaintiffPak is entitled to even plead inconsistent theories of liability. See, The RaderCo. v. Stone (1986) 178 Cal.App.3d 10, 29, citing Skelly v. Richman (1970)10 Cal.App.3d 844, 856.Moving party to give notice.8 Seboldt v. SouthShore MortgageDemurrer to First Amended Complaint; Motion to Strike: See belowDefendants’ demurrer to the 1st-4th and 6th causes of action is SUSTAINEDwithout leave to amend. Their demurrer to the 5th and 7th-10th causes ofaction is SUSTAINED with 20 days leave to amend. The motion to strike isOFF CALENDAR [moot]Defendants are to give notice.1st, 4th and 6th causes of action: Lack of standing, breach of contract,breach of the covenant of good faith & fair dealing: Plaintiffs lack standing tochallenge the securitization of their loan. Gomes v. Countrywide HomeLoans, Inc., 192 Cal.App. 4th 1149, 1155 (2011) held that allowing aborrower to challenge the authorization to foreclose would “fundamentallyundermine” non-judicial foreclosures and allow the borrower to file suedsolely to delay the foreclosure. The Court finds this reasoning morepersuasive than that of Glaski v. Bank of America, NA (2013) 213Cal.App.4th 1079.

There is no contractual provision stating that the note and deed of trust mustbe assigned together. The covenant of good faith & fair dealing cannot createsubstantive contractual terms beyond the specific terms of theagreement. Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317,352. Thus, to the extent the 6th cause of action is based on securitization, itfails also. The Court notes that Plaintiff’s expert provides no evidence thatthe note was put into the HBSC trust after the closing date.1st and 3dcauses of action for lack of standing violation ofCC §2923.55: Claims based on the Homeowners’ Bill of Rights [HBR] failbecause the HBR is not retroactive. Under Myers v. Philip MorrisCompanies, Inc. (2002) 28 Cal.4th 828, 841, a statute that does notexpressly provide for retroactive application is not retroactive unless it is veryclear from extrinsic sources that this was the intent of the Legislature;ambiguities are construed in favor of prospective application. The HBR doesnot state that it is retroactive and the legislative history that Plaintiff cites isinsufficient to prove an intent to retroactively apply the HBR, which createswholly new rights for a homeowner and obligations for a lender and/orservicer.2d and 6th cause of action for violation of CC §2923.5 and breach of thecovenant of good faith & fair dealing: CC §2923.5 imposes no obligation tomodify a loan. Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 222-223. Plaintiffs were given a modification and admit that they became unableto comply with its terms. The lender has more than complied with itsobligations under §2923.5. See also Guz, supra.5th, 7th, 8th and 9th causes of action for breach of contract,misrepresentation and violation of Bus. & Prof. Code §17200: Plaintiffs allegea promise to make their loan permanent and claim that this promise was apart of their trial payment plan [TPP]. However, they had not quoted anysuch provision in the TPP or attached a copy. Unless there is a writtenpromise to make the loan permanent, the statute of frauds bars theclaim. Plaintiffs must attached a copy of the TTP to their 2d AmendedComplaint.The misrepresentation claims are vague and indefinite in the extreme; whatexactly was promised and who promised it? The allegation that Defendantsdid not intend to modify “on any terms” is belied by the fact that it didsubsequently modify the contract.There is no C/A for a negligent false promise. Tarmann v. State FarmMutual Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158-159. The §17200 C/Afails without a supporting substantive cause of action.10th cause of action to quiet title: It is unclear how Plaintiffs can hope toquiet title without repaying their loan. If this cause of action is based on thesecuritization claim (which it appears to be), it fails. Plaintiffs must clarifythe factual basis for this cause of action, not just incorporate all precedingcauses of action.Moving party to given notice.9 Admiral Ins. Co.v. Council forEducationalTravel USAThe Motion for Protective Order is GRANTED; Attorneys fee request: DENIEDAt this time, Plaintiff Admiral may not take the deposition of BradleyZamczyk, Esq. Plaintiff Admiral has failed to meet its burden to showextremely good cause to depose opposing counsel and that other means arenot available.

Admiral had and still has various avenues to find out why James Riverdeclined to provide coverage. There has been numerous efforts at writtendiscovery. The deposition of the PMQ was taken. Another PMQ has beenoffered. At this time, Admiral has not shown the testimony is crucial for itscase. The court will not allow Mr. Zamcyzk testify at trial if he assertsprivileges to avoid deposition. If he does not testify, then Admiral does notneed to contend with his testimony and James River must rely on thecontents of the declination letters and perhaps a third party expert.The Request for Sanctions is DENIED. Defendant James River did not complywith C.C.P. § 2023.040 setting forth facts supporting the amount of anymonetary sanction sought. It only requested a lump sum without declaringthe billing rate, hours billed or the work performed.10 DesCombes v.Legenda bySouthwindsMoving party to give notice.Motion for Summary Judgment/Adjudication: DENYThe Motion for Summary Adjudication is DENIED. Pursuant to C.C.P § 437c(p), Defendant failed to meet its burden to show that theSecond Cause of Action has no merit, because consideration cannot beestablished.There is a triable issue of material fact whether Plaintiff’s forbearance fromfiling suit was consideration for the contract. (See UMF No. 5).Responding party to give notice.11 Gilliam v. Miller Motion for OSC re: Contempt; Motion to Modify Judgment: DENY bothThe motion to issue an OSC re contempt is DENIED without prejudice. Themotion to add Nadia Miller as a judgment debtor is DENIED without prejudiceto file a separate suit against her. Plaintiff is to give notice.Contempt: Plaintiff fails to cite the applicable statute. It is CCP §1209.Under Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1548-1549, Plf mustprove 1) a valid court order, 2) Defendants’ knowledge of it, and 3) theirnon-compliance.1) Order: Plaintiff is seeking to enforce a receiver’s demand, not a courtorder. No copy of any order is attached to the motion and none of its termsare cited.2) Knowledge of the order: There is no proof in the court file or in themotion that signed receivership orders were served. Plaintiff’s 7/19/13 noticeof ruling attaches the signed order granting his motion but the receivershiporder attached is not signed. There is no other proof of its service or ofservice of the 7/22 amended order.Plaintiff has filed proofs of personal service of a document called “CONTEMPTOF COURT.” No contempt has been issued and there is no proof that thismotion was served. Even if it was, it doesn’t include a copy of any courtorder.The Receiver authenticates some letters that state that the receivershiporders are attached but the copies he authenticates (Plaintiff’s Ex. A) do notinclude any attachments. The recital in the letters is hearsay.3) Disobedience: Plaintiff has no personal knowledge of disobedience. Thereceiver’s declaration merely states that Defendants did not respond to hisletters, not that they disobeyed any court order.In addition, Plaintiff fails to give notice of the order sought. The notice ofmotion is extremely unclear and does not state the terms of the order

sought. No proposed order was filed or served.Amendment of the judgment: Plaintiff cites no authority permittingamendment of a default judgment to name a member of an LLC that is ajudgment debtor. Under NEC Electronics v. Hurt (1989) 208 Cal.App.3d772, 780, relying on Motores De Mexicali v. Superior Court (1958) 51Cal.2d 172, even an alter ego of an entity cannot be added as a judgmentdebtor to a judgment obtained by default because her interests were notrepresented and adding her would violate due process.Responding party to give notice.

4 Ruvalcaba v. WalMart Stores, Inc.Motion to Compel Discovery The Motion to Compel Discovery: OFF CALENDAR5 Mota v. Knert Motion to Conduct Discovery on Financial Condition and Profits: DENYThere is a significant dispute concerning the facts. Because of thesubstantially conflicting declarations, Plaintiff has not established that at thistime that there is a “substantial probability” that Plaintiff will succeed inproving punitive damages. Jabro v. Superior Court (2002) 95 Cal.App.4 th754, 758. The court would point out that the standard for such proof underCivil Code section 3294 is “clear and convincing” evidence. Plaintiff contendsthat a sexual relationship while a physician-patient relationship exists isclearly prohibited under Busness and Professions Code section 726. However,defendant disputes that a patient-physician relationship even existed at thetime of the sexual encounters. Kunert declaration, paragraphs 5 to 10. Thedeclarations are in conflict as to the consensual nature of the sexualencounters. The number of the encounters and the refusal of the dentalboard to act on plaintiff’s complaint may suggest these encounters wereconsensual.Civil Code § 3295 (c) states “the plaintiff may subpoena documents orwitnesses to be available at the trial for the purpose of establishing theprofits or financial condition referred to in subdivision (a), and the defendantmay be required to identify documents in the defendant's possession whichare relevant and admissible for that purpose and the witnesses employed byor related to the defendant who would be most competent to testify to thosefacts.” This court’s ruling does not prohibit plaintiff from such means ofobtaining defendants’ financial information for use at trial. By following thisprocedure, Plaintiff will have access to defendants’ financial information if thejury makes a finding of justifying punitive damages during the first phase ofthis case.Defendant’s Objections to Exhibits A, B, C & D are OVERRULED.Responding party to give notice.7 Kalomas v.PappasDefendant Pappas’ demurrer to plaintiff Kalomas’ first amended complaint isSUSTAINED with fifteen (15) days leave to amend.As to plaintiff’s first cause of action for breach of contract, plaintiff has notalleged sufficient facts as to the time this alleged oral agreement was enteredinto or sufficiently definite terms so that remedy for breach can bedetermined. See, Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4 th793, 812 to 812. The Weddington court explained that a contract is notspecifically enforceable unless the terms are sufficiently certain to make theprecise act which is to be done clearly ascertainable.As to plaintiff’s second cause of action for common counts, since plaintiffKalomas’ more specific cause of action for breach of contract fails to state acause of action so plaintiff’s cause of action for common counts also fails tostate a cause of action. See, Hays v. Temple (1938) 23 Cal.App.2d 690, 695,and 4 Witkin, California Procedure (5 th ed. 2008) Pleading, § 568.As to plaintiff’s third cause of action for fraud, plaintiff has not allegedsufficient facts with the specificity and particularity required to state a causeof action for fraud. See, Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73and Goldrich v. Natural Y Surgical Specialties (1994) 25 Cal.App.4 th 772, 782.

Moving party to give notice.9 Ramirez v. Cityof HuntingtonBeachDefendant City of Huntington Beach’s Demurrer to Plaintiff Ramirez’sComplaint: SUSTAINED with 20 days leave to amend.No opposition filed. Plaintiff has not alleged sufficient facts with specificity tostate some “dangerous condition” as required to state a cause of actionagainst a governmental entity. See, Brenner v. City of El Cajon (2003) 113Cal.App.4 th 434, 440 to 443.Moving party to give notice.10 Schwab v.Navigator Ins.Co.Demurrer to the First Amended Complaint: OVERRULED.Defendant Navigators Insurance Co. shall file an Answer within fifteen (15)days.A fair reading of the pleading would indicate that Plaintiffs did not admit thepolicy was properly rescinded. On a Demurrer, a court must “give thecomplaint a reasonable interpretation, reading it as a whole and its parts intheir context . . . .” Yanting Zhang v. Superior Court (2013) 57 Cal.4th 364,370. Plaintiffs did allege the policy was always in effect. In Paragraph 30,the FAC alleged that “[t]he policy was in full force and effect at all timesrelevant to the underlying policy . . . .” (Page 6, lines 11-12).The First Cause of Action for Recovery of Judgment under Insurance Code §11580 depends on whether the policy was properly rescinded. This issue is aquestion of fact that cannot be determined on Demurrer. The Demurrer isoverruled this cause of action.The Second Cause of Action for Breach of Contract & the Fourth Cause ofAction for Breach of the Implied Covenant of Good Faith and Faith Dealingare dependent on the First Cause of Action. Since Plaintiffs did not admit thepolicy was properly rescinded, Demurrer is overruled to these causes ofaction.The Fifth Cause of Action for Professional Negligence is off-calendar. Therewas no effort to attempt a cause of action against the moving party.Plaintiff to give notice.11 Mlinar v. Nobles Demurrer to Third Amended Complaint (NMT II): See belowThe parties are warned that, in the future, late papers will not be consideredif the papers do not include a separately filed declaration with a reasonablejustification for untimeliness. In addition, papers filed without proof ofservice as the last page[s] will not be considered.4th C/A: Misrepresentation. The demurrer is SUSTAINED without leave toamend. This cause of action is based on false promises, not onmisrepresentations of existing or past facts. TAC, 46. To be liable for afalse promise, the defendant must intend to defraud at the time the promiseis made. Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30. It isundisputed that NMTII did not exist in 2008 when the alleged promises were

made. Plaintiff’s authorities regarding agency relate to an agencyrelationship that existed at the time of the wrongdoing so they are not onpoint.9th cause of action: Negligence. The demurrer is SUSTAINED with leave toamend. The cause of action fails to state any of the elements of negligenceand the opposition to the demurrer ignores this cause of action entirely. TheCourt notes that the caption of the complaint incorrectly identifies the causeof action as “Negligent Misrepresentation” although no misrepresentationsare alleged.11th cause of action: Money had and receivedThe demurrer is SUSTAINED with leave to amend. At present, there is nounderlying cause of action to support it. However, if the complaint isamended, the allegation that Plf never intended to invest in NMTII maysupport the cause of action.12th cause of action: Accounting. The demurrer is SUSTAINED with leave toamend for lack of a supporting cause of action. However, Defendant’s onlycontention is that the Court previously sustained a demurrer to the cause ofaction without leave to amend. It is relying on a tentative ruling that waschanged on the record and in the Court’s minute order to give leave toamend.13th cause of action: Intentional infliction of emotional distress. Thedemurrer is SUSTAINED without leave to amend. Plaintiff has allegedeconomic injury only and his fraud cause of action cannot be pled againstNMTII. See Erlich v. Menezes (1999) 21 Cal.4th 543.14th cause of action: Replevin. The demurrer is OFF CALENDAR [moot]because this C/A was not pled against NMTII.15th cause of action: Conversion. The demurrer is SUSTAINED with leave toamend, This cause of action does not rely on the viability of the others;“[t]he act of conversion is in itself tortious.” Los Angeles Federal CreditUnion v. Madatyan (2012) 209 Cal.App.4th 1383, 1387.Plaintiff will be able to state a cause of action.However, it is unclear to the Court who is alleged to have convertedwhat. As to NMTII, is the cause of action limited to that part of Plaintiff’sinvestment that was “diverted” to NMTII or is he also claiming conversion ofthe Ferrari by this party?15th cause of action: Constructive trust. Again, it is unclear what kind ofconstructive trust is to be imposed on whom.16th C/A: Injunction. Plaintiff fails to address what kind of injunction issought against NMTII, as distinct from other Defendants.In amending, Plaintiff may incorporate by reference the first 11 allegation. Inaddition, Plaintiff may, if he wishes, state his factual allegations in detail inthe beginning of the complaint, but he may not incorporate them byreference in the other causes of action. The facts that establish the elementsof each cause of action are also to be pled within each cause of action. Whilethey may be less detailed than the introductory facts, there must besufficient detail to show allow the Court to determine what the allegedwrongdoing is without looking elsewhere in the complaint.As he has done in the third amended complaint, Plaintiff is to make an effortto plead separate causes of action as to Gyntlecare and NMT and NMTIIunless the facts are inseparable. If a cause of action is alleged against more

than one party, the role of that party must be clearly stated. This applies toall causes of action in the complaint.If possible, the claims relating to the Ferrari are to be pled separately. If notpossible, Plaintiff must clearly show what is alleged against whom. Plaintiffcan only allege wrongdoing by NMTII that occurred after it came intoexistence.Plaintiff is given 20 days to amend. NMTII is to give notice.Demurrer to Third Amended Complaint (Gyntlecare): See belowGyntlecare’s demurrer to the 2d, 12th, 13th and 17th causes of action of the3d Amended Complaint is OVERRULED. Its demurrer to the 5th, 10th & 11thC/As is SUSTAINED with to amend. Its demurrer to the 15th and 16thcauses of action is SUSTAINED without leave to amend.In amending, Plaintiff may incorporate by reference the first 11allegations. In addition, Plaintiff may, if he wishes, state his factualallegations in detail in the beginning of the complaint, but he may notincorporate them by reference in the other causes of action. The facts thatestablish the elements of each cause of action are also to be pled within eachcause of action, not just the fraud causes of action. While they may be lessdetailed than the introductory facts, there must be sufficient detail to showallow the Court to determine what the alleged wrongdoing is without lookingelsewhere in the complaint.As he has done in the third amended complaint, Plaintiff is to make an effortto plead separate causes of action as to Gyntlecare and NMT and NMTIIunless the facts are inseparable. If a cause of action is alleged against morethan one party, the role of that party must be clearly stated. This applies toall causes of action in the complaint. However, that does not mean that therecan be no reference to any other defendant. For example, Plaintiff allegedpreviously that NMT “and/or” Gyntlecare was about to be sold. He cannotchange that judicial admission and claim that both were about to be sold.The Court disregards sham allegations that contradict prior pleadings. Cantuv. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877. They are to beeliminated when amending.The allegation that Plaintiff was told he would receive his stock within areasonable time is a sham pleading designed to avoid at statute of limitationsdefense. In 16 of the 2d Amended Complaint, Plaintiff alleged the stock wasto be delivered in 5 days. See also 34 & 35(b).Plaintiff’s claim that he could have sold his stock if it had been timelyreceived is a sham claim. From the beginning Plaintiff has alleged factsshowing that he intended to hold his stock until the entities sold; theanticipated profits were from sale of the companies, not dividends. As toGyntlecare, he alleges this could have been up to four years.If a cause of action is stated despite disregard of sham allegations,Gyntlecare’s remedy is a motion to strike.2d cause of action: Promissory fraud. Plaintiff has alleged that hisinvestment was to be made to and for the benefit of Gyntlecare. Even theoriginal complaint makes it clear the Mr. Nobles represented that he wasseeking capital for his companies. Plaintiff has also alleged that the StockPurchase Agreement did not reflect the agreement of the parties.Intent to defraud can be inferred from delays in turning over stock as well asthe substitution of NMTII stock for NMT stock. While the claims against theparties must be pled separately, it is clear that the alleged fraudulent acts

were interrelated. Intent can also be inferred from the failure to observecorporate formalities. Defendant admits that there were no shareholdermeetings or dividends paid. Plaintiff has also alleged that his investment wasnot used as a capital contribution to Gyntlecare.These facts also support Plaintiff’s claim that Gyntlecare ceased to be afunctioning corporation. Damages are reduction in the value of the stock hepurchased.12th cause of action: Accounting. The Court modified its tentative ruling onthe last demurrer and gave leave to amend this cause of action. Anaccounting may be needed to trace the funds from Plaintiff’s investment.13th and 17th causes of action for infliction of emotional distress and aninjunction. Gyntlecare’s only contention regarding these causes of action isthat the fraud causes of action fail. See ruling on 2d cause of action.5th and 10th causes of action for intentional and negligentmisrepresentation: These claims fail to the extent they depend on theallegation that Gyntlecare represented it was about to be sold. Plaintiff hasjudicially admitted that there was no representation that both entities wereabout to be sold. Removing the “or” from “and/or” makes this a shampleading. See 2d Amended Complaint, 48(c), (f), and (g).Unlike NMT, Gyntlecare was not sold. Under Brakke v. EconomicConcepts, Inc. (2013) 213 Cal.App.4th 761, Gyntlecare, predictions of theeffect of a sale that did not take place are not representations that Plaintiffcould reasonably rely upon. Plaintiff alleges that Gyntlecare never receivedFDA approval for its products; Plaintiff does not deny this was a conditionprecedent to any sale. However, Plaintiff also alleged representations thatGyntlecare was a viable, ongoing business that was developing products andMr. Nobles concealed an intent to abandon it if it was not included in the saleand has stripped it of its assets. Plaintiff may be able to a claim or claimsbased on these facts.11th cause of action: Money had and received. The fraud causes of actioncould be a basis for relief. Plaintiff has alleged that Gyntlecare did notreceive his investment. 28. However, this was alleged on information andbelief; Plaintiff’s discussion of partial failure of consideration suggests thatPlaintiff may be able to trace some of his investment to Gyntlecare. If in facthe can prove that Gyntlecare has been stripped of its assets, he could be ableto recover these specific amounts. See Mauss v. H. Kato (1931) 117 Cal.App. 663, 665.15th & 16th causes of action: Conversion and constructive trust. Plf allegesconversion by NMT and Nobles but makes no charging allegations regardingGyntlecare. Plaintiff has not explained how he could amend to state theseclaims against Gyntlecare. See Goodman v. Kennedy (1976) 18 Cal.3d335, 349.Plaintiff is given 20 days to amend. Gyntlecare is to give notice.Demurrer to Third Amended Complaint (NMT/Nobles): See belowThe demurrer of NMT and Mr. Nobles to the 3d, 8th, 12th, 16th & 17thcauses of action of the 3d Amended Complaint is OVERRULED. Theirdemurrer to the 11th cause of action is SUSTAINED with leave toamend. Their demurrer to the 16th cause of action is SUSTAINED withoutleave to amend. Mr. Nobles’ apparent attempt to join in Gyntlecare’sdemurrer is DENIED.3d & 8th causes of action for fraud and negligent misrepresentation: The

Court has previously ruled that Brakke v. Economic Concepts, Inc. (2013)213 Cal.App.4th 761 is not on point. In Brakke, the alleged representationwas a prediction about what the IRS would do. In this case, Plaintiff isessentially alleging a representation that if the FDA approved the products,Plaintiff would receive certain returns. That condition precedent wasmet. The fact that it was stated as an affirmative representation rather thanin the form of a condition precedent should not allow the defendants toescape liability for fraud merely because of a possibility that an agency mightnot have acted as it did in fact act.9th cause of action: Negligence. Plaintiff admits that he intends this causeof action to be alleged against NMTII only, not the moving parties.11th cause of action: Money had and received. A partial failure ofconsideration can justify relief. Mauss v. H. Kato (1931) 117 Cal. App. 663,665. However, Plaintiff’s claim that none of his investment has been repaid iscontradicted by his allegation that he received some return on hisinvestment.12th cause of action: Accounting. The Court gave leave to amend this causeof action. An accounting may be needed to trace the funds from Plaintiff’sinvestment. Defendants rely on dictum in Johnson v. Klein (1954) 127Cal.App.2d 577, in which no accounting had been requested or ordered.16th cause of action: Constructive trust. Defendants may not rely on theStock Purchase Agreements [SPAs] because Plaintiff alleged that they did notreflect the actual agreement of the parties. Plaintiff does not know how muchof his investment went to NMT; he alleges that he was told that cancellationof the SPAs was a mere formality and he was investing in NMT. He does notallege that the Ferrari was conveyed to Andiamo 360, only that it wasdelivered to Mr. Nobles by sending it to this company, which he controlled.17th cause of action for an injunction. Defendants’ contentions do not defeatthe entire cause of action. Plaintiff alleges he was defrauded into cancellingthe NMT SPA based on representations that it did not affect his rights as ashareholder; his investment was not returned. An injunction is a properremedy to obtain return of the Ferrari and force issuance of NMTstock. Gyntlecare and NMTII are not moving parties; they have filedseparate demurrers.Dr. Nobles attempts to incorporate additional contentions by reference to theGyntlecare demurrer, which would cause the demurrer to exceed page limits.He did not file a joinder.Plaintiff is given 20 days to amend. The moving parties are to give notice.Motion to Strike: DENIED without prejudice.If the issue is raised again, the parties are to discuss the factors that areconsidered in determining whether there is a unity of interest and ownership,with citation to case law.The Court advises Plaintiff to do some research on this issue before filing a4th Amended Complaint. Failure to do so may result in denial of leave to filea 5th Amended Complaint.If Plaintiff does not file a 4th Amended Complaint, Defendants are given leaveto renew their motion.Plaintiff to give notice.

12 Bank of the Westv. Zeen Plumbing& PipingMotion to Terminate Receivership: GRANTNo opposition filed. The Request for Judicial Notice is GRANTED. The Motionfor (1) Termination of Receivership, (2) Approval of Receiver’s Final Reportand Account, (3) Exoneration of Bond and (4) Disbursal of Funds isGRANTED.Moving party to give notice.

1 Mason v. Chavez Motion for Bifurcation: DENYDefendant’s motion to bifurcate is DENIED.There is no showing that bifurcation is necessary or that it will expeditetrial. Liability is contested and there are at least five percipient witnesses,including the parties, with different versions of the accident, while only twowitnesses are to testify regarding damages. The trial is estimated to takeonly five days. Requiring two separate jury deliberations would not furtherjudicial economy in any significant way.Plaintiff is to give notice.Motion to Strike Expert Witness: DENYThe motion to strike Plaintiff’s supplemental expert witness designation isDENIED. Defendants have not shown facts that put Plaintiff on notice that anaccident reconstructionist was required in a case involving a dispute aboutwhat lane Ms. Chavez was in when she turned. Defendants rely on the factthat they sought inspection of Plaintiff’s motorcycle but fail to explain how thecondition of the motorcycle was so relevant to the issues in the case as to putPlaintiff on notice that a reconstructionist was needed.Fairfax v. Lords (2006) 138 Cal.App.4th 1019 is not on point becausemedical malpractice requires standard of care expert evidence and thedefendant’s attorney admitted that the decision not to designate was atactical one, designed to find out what experts the plaintiff designated first.Plaintiff is to give notice.Motion for Leave to Amend: CONTINUEPlaintiff’s motion for leave to amend is CONTINUED to November 22,2013. No later than November 4, 2013, Plaintiff is to file and serve aproposed 1st Amended Complaint that pleads facts to establish that thestatute of limitations has been tolled as to Mrs. Mason’s claims. No laterthan noon of November 12, 2013, Defendants may, if they wish, file andserve a supplemental opposition of up to 10 pages addressing the sufficiencyof the pleading. Plaintiff may file and serve a reply of up to 10 pages no laterNovember 15, 2013. Defendants may fail serve a sur-Reply of up to 5 pagesno later than noon of November 19.Service is to be personal except that the parties may agree to FAX or emailservice in lieu of personal service.The motion to continue trial is GRANTED in part.Trial is continued to December 16, 2013. This ruling is without prejudice tothe right of either party seek a further continuance.Leave to amend: The Court notes that Plaintiff has not amended his owncause of action; the proposed amended pleading merely adds a cause ofaction for Mrs. Mason. In his points and authorities, Plaintiff claims that thestatute of limitations has been tolled as to her. However, there are noallegations in the proposed pleading that state a factual basis for thisclaim. In order to avoid further delay, this issue must be addressed byPlaintiff. Whether or not Mrs. Mason can be added will affect the length ofcontinuance and whether discovery has to be reopened.The Court makes no ruling at this time on whether Plaintiff can add a

gastroenterologist and/or a urologist his expert designation. To do so, hemust promptly make a motion under CCP §2034.610 et seq. The ruling onthat motion will govern whether discovery has to be reopened for expertdepositions and whether trial should be continued further.Defendants are to give notice.2 Johnson v.MonroeOperations3 First SamoanCongregationalChristian Churchof Garden Grovev. TapuMotion to Compel Arbitration: OFF CALENDARP Motions to Deem Requests for Admissions Admitted regarding DefendantsEsekielu Tapu, Solialofi Talaipa and Siatunuu Leuta: GRANTNo opposition filed. Pursuant to C.C.P. §§ 2030.290 & 2031.300, the Motionsto Compel Responses to Form Interrogatories, Special Interrogatories andDemand for Production of Documents regarding Defendants Esekielu Tapu,Solialofi Talaipa and Siatunuu Leuta are GRANTED.Within fifteen (15) days, each Defendant shall respond without objection tothe three discovery devices.Within fifteen (15) days, each Defendant shall pay sanctions in the sum of$360.00 [($200.00 x 1.5 hours) + $60.00].5 AAA SolarElectric, Inc. v.HeliotekCorporationMoving party to give notice.Demurrer to First Amended Cross-Complaint: See belowAs to cross-complainant Heliotek, cross-defendant AAA Solar’s demurrer isoverruled in part and sustained in part without leave to amend. OVERRULEDas to cross-complainant Heliotek’s fourth cross-claim for conversion and fifthcross-claim for violation of Bus. & Prof. Code § 17200. In the first amendedcross-complaint, Heliotek has now alleged sufficient facts as tofurniture, materials and tools owned by it that are wrongfully being withheldby cross-defendant AAA Solar. (See, FACC, 78, 79, 80 and 81.) Also, thiscross-claim for conversion supports Heliotek’s fifth cross-claim for violation ofBus. & Prof. Code § 17200. SUSTAINED, without leave to amend, as toHeliotek’s first cross-claim for breach of contract, second cross-claim forfraud and deceit, and third cross-claim for breach of the implied covenant ofgood faith and fair dealing.On demurrer the court accepts as true the contents of exhibits attached andincorporated into the complaint and ignores plaintiff’s allegations to thecontrary. See, Holland v. Diesel Int’l, Inc. (2001) 86 Cal.App.4 th 1443, 1447.The written agreement which was attached as Exhibit A and incorporated intothe first amended cross-complaint, establishes that the parties to thatagreement were cross-defendant AAA Solar and cross-complainant Watson,dba Heliotek USA. A dba is simply a fictitious name with no independent legalexistence. See, Pinkerton’s, Inc. v. Superior Court (1997) 49 Cal.App.4 th1342, 1348. Since cross-complainant Heliotek Corporation (hereinafter“Heliotek”) is not a party to this written agreement, it lacks standing to sue.As to the second cross-claim for fraud and deceit, the fraud allegationscontend that cross-complainants were fraudulently induced into entering intothis written agreement and thereby damaged. Since cross-complainantHeliotek was not a party to this written agreement it has not alleged facts asto justifiable reliance and causally related damages. See, Goldrich v. NaturalY Surgical Specialties (1994) 25 Cal.App.4 th 772, 782 to 783. As to the thirdcross-claim for breach of the implied covenant of good faith and fair dealing,

a plaintiff/cross-complaint must be a party to a contract for the impliedcovenant to arise. See, Spinks v. Equity Residential Briarwood Apartments(2009) 171 Cal.App.4 th 1004, 1033. Since cross-complainant Heliotek wasnot a party to the written agreement attached as Exhibit A, no covenant ofgood faith arose in regard to Heliotek.As to cross-complainant Watson, cross-defendant AAA Solar’s demurrer isOVERRULED. First, cross-defendant Solar’s demurrer as to cross-complainantWatson is limited to Watson’s second cross-claim for fraud and deceit andthird cross-claim for breach of the implied covenant of good faith and fairdealing. The notice of demurrer as to cross-complainant Watson was limitedto these two cross-claims. See, C.C.P. § 430.60. Also, cross-defendant AAASolar’s initial demurrer to Watson’s cross-claims for breach of contract,conversion and for violation of Bus. & Prof. Code § 17200 was overruled.(See, 6-20-13 Minute Order.) Second, cross-complainant Watson has allegedsufficient facts in the first amended cross-complaint to state a cause of actionfor fraud and deceit. See, Civil Code § 1710. At this pleading stage the courtmust assume the truth of the allegations that cross-defendant AAA Solar didnot intend to perform the terms of the written agreement when it wasentered into. See, Del E. Webb Corporation v. Structural Materials Co. (1981)123 Cal.App.3d 593, 604. Whether cross-complainant Watson will be able toobtain sufficient evidence to survive a dispositive motion or to have this issuesubmitted to the jury at the time of trial is not before the court at this time.Third, cross-complainant Watson has alleged sufficient facts in the firstamended cross-complaint to state a cause of action for breach of the impliedcovenant of good faith and fair dealing under the rules discussed in Ehrlich.Watson has alleged sufficient facts to state a cause of action for conversionand sufficient facts as to intentional breach of the agreement with substantialconsequential damages to support a cross-claim for breach of the impliedcovenant of good faith and fair dealing at this pleading stage.Finally, cross-defendant AAA Solar is ordered to e-file an answer in responseto the first amended cross-complaint by cross-complainants Watson andHeliotek within 14 days.Moving party to give notice.Cross-Defendant AAA Solar’s Request for Judicial Notice: CrossdefendantAAA Solar requested that the court take judicial notice of thefollowing documents: Exhibit A, Cross-Complaint filed on 3-29-13 by CrosscomplainantsNicholas Watson and Heliotek Corporation. GRANTED as toExhibit A, but such notice is limited to the filing of this pleading with the courtand not as to the truth of any claims or contentions set forth therein. See,Evidence Code § 452(d) and Day v. Sharp (1975) 50 Cal.App.3d 904,914.Request for Judicial Notice by Cross-Complainants Heliotek andWatson: Cross-complainants Heliotek and Watson requested that the courttake judicial notice of the following documents: Exhibit 1, Cross-Complaintfiled by cross-complainants Heliotek and Watson filed on 3-29-13, and Exhibit2, Notice of Ruling on Cross-Defendant AAA Solar Electric, Inc.’s Demurrer toCross-Complaint, with attached copy of tentative ruling. GRANTED as toExhibits 1 and 2, but such judicial notice of the cross-complaint and notice ofruling by cross-complainants Heliotek and Watson is limited to the filing ofthis pleading with the court and not as to the truth of any claims orcontentions set forth therein. See, Evidence Code § 452(d) and Day v. Sharp(1975) 50 Cal.App.3d 904, 914.

1 Mason v. Chavez Motion for Bifurcation: DENYDefendant’s motion to bifurcate is DENIED.There is no showing that bifurcation is necessary or that it will expeditetrial. Liability is contested and there are at least five percipient witnesses,including the parties, with different versions of the accident, while only twowitnesses are to testify regarding damages. The trial is estimated to takeonly five days. Requiring two separate jury deliberations would not furtherjudicial economy in any significant way.Plaintiff is to give notice.Motion to Strike Expert Witness: DENYThe motion to strike Plaintiff’s supplemental expert witness designation isDENIED. Defendants have not shown facts that put Plaintiff on notice that anaccident reconstructionist was required in a case involving a dispute aboutwhat lane Ms. Chavez was in when she turned. Defendants rely on the factthat they sought inspection of Plaintiff’s motorcycle but fail to explain how thecondition of the motorcycle was so relevant to the issues in the case as to putPlaintiff on notice that a reconstructionist was needed.Fairfax v. Lords (2006) 138 Cal.App.4th 1019 is not on point becausemedical malpractice requires standard of care expert evidence and thedefendant’s attorney admitted that the decision not to designate was atactical one, designed to find out what experts the plaintiff designated first.Plaintiff is to give notice.Motion for Leave to Amend: CONTINUEPlaintiff’s motion for leave to amend is CONTINUED to November 22,2013. No later than November 4, 2013, Plaintiff is to file and serve aproposed 1st Amended Complaint that pleads facts to establish that thestatute of limitations has been tolled as to Mrs. Mason’s claims. No laterthan noon of November 12, 2013, Defendants may, if they wish, file andserve a supplemental opposition of up to 10 pages addressing the sufficiencyof the pleading. Plaintiff may file and serve a reply of up to 10 pages no laterNovember 15, 2013. Defendants may fail serve a sur-Reply of up to 5 pagesno later than noon of November 19.Service is to be personal except that the parties may agree to FAX or emailservice in lieu of personal service.The motion to continue trial is GRANTED in part.Trial is continued to December 16, 2013. This ruling is without prejudice tothe right of either party seek a further continuance.Leave to amend: The Court notes that Plaintiff has not amended his owncause of action; the proposed amended pleading merely adds a cause ofaction for Mrs. Mason. In his points and authorities, Plaintiff claims that thestatute of limitations has been tolled as to her. However, there are noallegations in the proposed pleading that state a factual basis for thisclaim. In order to avoid further delay, this issue must be addressed byPlaintiff. Whether or not Mrs. Mason can be added will affect the length ofcontinuance and whether discovery has to be reopened.The Court makes no ruling at this time on whether Plaintiff can add a

gastroenterologist and/or a urologist his expert designation. To do so, hemust promptly make a motion under CCP §2034.610 et seq. The ruling onthat motion will govern whether discovery has to be reopened for expertdepositions and whether trial should be continued further.Defendants are to give notice.3 First SamoanCongregationalChristian Churchof Garden Grovev. TapuP Motions to Deem Requests for Admissions Admitted regarding DefendantsEsekielu Tapu, Solialofi Talaipa and Siatunuu Leuta: GRANTNo opposition filed. Pursuant to C.C.P. §§ 2030.290 & 2031.300, the Motionsto Compel Responses to Form Interrogatories, Special Interrogatories andDemand for Production of Documents regarding Defendants Esekielu Tapu,Solialofi Talaipa and Siatunuu Leuta are GRANTED.Within fifteen (15) days, each Defendant shall respond without objection tothe three discovery devices.Within fifteen (15) days, each Defendant shall pay sanctions in the sum of$360.00 [($200.00 x 1.5 hours) + $60.00].5 AAA SolarElectric, Inc. v.HeliotekCorporationMoving party to give notice.Demurrer to First Amended Cross-Complaint: See belowAs to cross-complainant Heliotek, cross-defendant AAA Solar’s demurrer isoverruled in part and sustained in part without leave to amend. OVERRULEDas to cross-complainant Heliotek’s fourth cross-claim for conversion and fifthcross-claim for violation of Bus. & Prof. Code § 17200. In the first amendedcross-complaint, Heliotek has now alleged sufficient facts as tofurniture, materials and tools owned by it that are wrongfully being withheldby cross-defendant AAA Solar. (See, FACC, 78, 79, 80 and 81.) Also, thiscross-claim for conversion supports Heliotek’s fifth cross-claim for violation ofBus. & Prof. Code § 17200. SUSTAINED, without leave to amend, as toHeliotek’s first cross-claim for breach of contract, second cross-claim forfraud and deceit, and third cross-claim for breach of the implied covenant ofgood faith and fair dealing.On demurrer the court accepts as true the contents of exhibits attached andincorporated into the complaint and ignores plaintiff’s allegations to thecontrary. See, Holland v. Diesel Int’l, Inc. (2001) 86 Cal.App.4 th 1443, 1447.The written agreement which was attached as Exhibit A and incorporated intothe first amended cross-complaint, establishes that the parties to thatagreement were cross-defendant AAA Solar and cross-complainant Watson,dba Heliotek USA. A dba is simply a fictitious name with no independent legalexistence. See, Pinkerton’s, Inc. v. Superior Court (1997) 49 Cal.App.4 th1342, 1348. Since cross-complainant Heliotek Corporation (hereinafter“Heliotek”) is not a party to this written agreement, it lacks standing to sue.As to the second cross-claim for fraud and deceit, the fraud allegationscontend that cross-complainants were fraudulently induced into entering intothis written agreement and thereby damaged. Since cross-complainantHeliotek was not a party to this written agreement it has not alleged facts asto justifiable reliance and causally related damages. See, Goldrich v. NaturalY Surgical Specialties (1994) 25 Cal.App.4 th 772, 782 to 783. As to the thirdcross-claim for breach of the implied covenant of good faith and fair dealing,a plaintiff/cross-complaint must be a party to a contract for the impliedcovenant to arise. See, Spinks v. Equity Residential Briarwood Apartments(2009) 171 Cal.App.4 th 1004, 1033. Since cross-complainant Heliotek was

not a party to the written agreement attached as Exhibit A, no covenant ofgood faith arose in regard to Heliotek.As to cross-complainant Watson, cross-defendant AAA Solar’s demurrer isOVERRULED. First, cross-defendant Solar’s demurrer as to cross-complainantWatson is limited to Watson’s second cross-claim for fraud and deceit andthird cross-claim for breach of the implied covenant of good faith and fairdealing. The notice of demurrer as to cross-complainant Watson was limitedto these two cross-claims. See, C.C.P. § 430.60. Also, cross-defendant AAASolar’s initial demurrer to Watson’s cross-claims for breach of contract,conversion and for violation of Bus. & Prof. Code § 17200 was overruled.(See, 6-20-13 Minute Order.) Second, cross-complainant Watson has allegedsufficient facts in the first amended cross-complaint to state a cause of actionfor fraud and deceit. See, Civil Code § 1710. At this pleading stage the courtmust assume the truth of the allegations that cross-defendant AAA Solar didnot intend to perform the terms of the written agreement when it wasentered into. See, Del E. Webb Corporation v. Structural Materials Co. (1981)123 Cal.App.3d 593, 604. Whether cross-complainant Watson will be able toobtain sufficient evidence to survive a dispositive motion or to have this issuesubmitted to the jury at the time of trial is not before the court at this time.Third, cross-complainant Watson has alleged sufficient facts in the firstamended cross-complaint to state a cause of action for breach of the impliedcovenant of good faith and fair dealing under the rules discussed in Ehrlich.Watson has alleged sufficient facts to state a cause of action for conversionand sufficient facts as to intentional breach of the agreement with substantialconsequential damages to support a cross-claim for breach of the impliedcovenant of good faith and fair dealing at this pleading stage.Finally, cross-defendant AAA Solar is ordered to e-file an answer in responseto the first amended cross-complaint by cross-complainants Watson andHeliotek within 14 days.Moving party to give notice.Cross-Defendant AAA Solar’s Request for Judicial Notice: CrossdefendantAAA Solar requested that the court take judicial notice of thefollowing documents: Exhibit A, Cross-Complaint filed on 3-29-13 by CrosscomplainantsNicholas Watson and Heliotek Corporation. GRANTED as toExhibit A, but such notice is limited to the filing of this pleading with the courtand not as to the truth of any claims or contentions set forth therein. See,Evidence Code § 452(d) and Day v. Sharp (1975) 50 Cal.App.3d 904,914.8 Bathas v.McCluskeyRequest for Judicial Notice by Cross-Complainants Heliotek andWatson: Cross-complainants Heliotek and Watson requested that the courttake judicial notice of the following documents: Exhibit 1, Cross-Complaintfiled by cross-complainants Heliotek and Watson filed on 3-29-13, and Exhibit2, Notice of Ruling on Cross-Defendant AAA Solar Electric, Inc.’s Demurrer toCross-Complaint, with attached copy of tentative ruling. GRANTED as toExhibits 1 and 2, but such judicial notice of the cross-complaint and notice ofruling by cross-complainants Heliotek and Watson is limited to the filing ofthis pleading with the court and not as to the truth of any claims orcontentions set forth therein. See, Evidence Code § 452(d) and Day v. Sharp(1975) 50 Cal.App.3d 904, 914.Motion for Summary Judgment: CONTINUED to 11/21/13Plaintiff Randa Sawan Bathas’ motion for summary adjudication isCONTINUED to 11-21-13 to be heard after plaintiff’s motion to disqualifycounsel, which is set for hearing on 11-14-13. See, C.C.P. § 128(a)(2). Thecourt exercises its discretion to set the hearing on plaintiff Randa Bathas’motion for summary adjudication within 30 days of trial. See, C.C.P. §437c(a). In addition, at the hearing on the motion to disqualify on 11-14-13,

the court orders the parties to be prepared to discuss why a limited receiverwas not selected to retain counsel to represent defendant SIC as ordered.(See, 5-23-13 Minute Order.)Plaintiff Bathas’ Evidentiary Objections: Deferred until 11-21-13 whenplaintiff’s motion for summary adjudication will be addressed on the merits.Defendants’ Evidentiary Objections: Deferred until 11-21-13 whenplaintiff’s motion for summary adjudication will be addressed on the merits.Plaintiff Bathas’ Request for Judicial Notice: Plaintiff Bathas requestedthat the court take judicial notice of the following documents: Exhibit 1, FirstAmended Complaint in Basim Sawan v. McCluskey, et al., O.C.S.C. Case No.30-2011-00512235, Exhibit 2, Defendants McCluskey, et al.’s Verified Answerto First Amended Complaint in Basim Sawan v. McCluskey, et al., O.C.S.C.Case No. 30-2011-00512235, Exhibit 3, First Amended Complaint in RandaBathas v. McCluskey, et al., O.C.S.C. Case No. 30-2012-00590087, andExhibit 4, Amended Answer to Plaintiff’s Verified First Amended Complaint byDefendants Dana Sawan McCluskey, Raymond Sawan and Jackie May-Sawanin Randa Bathas v. McCluskey, et al., O.C.S.C. Case No. 30-2012-00590087.GRANTED as to Exhibits 1, 2, 3 and 4, but such notice is limited to the filingof these pleadings with the court and not as to any claims or contentionstherein other than admissions in verified pleadings not subject to clarification.See, Evidence Code § 452(d), Day v. Sharp (1975) 50 Cal.App.3d 904, 914and Nungaray v. Pleasant Valley Lima Bean Growers and Warehouse Ass’n(1956) 142 Cal.App.2d 653, 667.Request for Judicial Notice by Defendants Dana McCluskey, RaymondSawan, and Jackie-May Sawan: Defendants Dana McCluskey, RaymondSawan and Jackie-May Sawan requested that the court take judicial notice ofthe following documents: Exhibit A, Plaintiff Basim Sawan’s First AmendedComplaint in Sawan v. Sawan, et al., O.C.S.C. Case No. 30-2011-00512235,Exhibit B, Defendants’ Answer to Plaintiff Basam Sawan’s First AmendedComplaint in Sawan v. Sawan, et al., O.C.S.C. Case No. 30-2011-00512235,Exhibit C, Plaintiff Randa Sawan Bathas’ First Amended Complaint in RandaBathas Sawan v. McCluskey, et al., O.C.S.C. Case No. 30-2012-00590087,Exhibit D, Answer by defendants Dana McCluskey, Raymond Sawan andJackie-May Sawan to plaintiff Bathas’ First Amended Complaint in RandaBathas Sawan v. McCluskey, et al., O.C.S.C. Case No. 30-2012-00590087,Exhibit E, October 16, 2009 Stipulation in O.C.S.C. Case No. 30-2008-00216266, Exhibit F, Sawan Investment Corporation’s Cross-Complaint inSawan v. Sawan, et al., O.C.S.C. Case No. 30-2011-00512235, Exhibit G,Proof of Service on Plaintiff Bathas’ Motion for Summary Adjudication inRanda Bathas Sawan v. McCluskey, et al., O.C.S.C. Case No. 30-2012-00590087, Exhibit H, Plaintiff Basim Sawan’s Complaint against SawanInvestment Corporation in Sawan v. Sawan, et al., O.C.S.C. Case No. 30-2011-00512235, Exhibit I, Notice of Ruling Granting Petition to ApproveSettlement in O.C.S.C. Case No. 30-2008-00216266, Exhibit J, Petition toApprove Settlement in O.C.S.C. Case No. 30-2008-00216266, and Exhibit K,Court’s Minute Order of 9-20-13 ruling on motion for summary adjudicationby defendants Dana McCluskey, Raymond Sawan and Jackie-May Sawan inRanda Bathas Sawan v. McCluskey, et al., O.C.S.C. Case No. 30-2012-00590087. GRANTED as to Exhibits A through K, but such notice as toExhibits A, B, C, D, E, F, G, H and I is limited to the filing of these pleadingswith the court and not as to the claims and contentions set forth therein. See,Evidence Code § 452(d) and Day v. Sharp (1975) 50 Cal.App.3d 904,914.Moving party to give notice.

9 Castillo v. GarciaJuarezConstructionDefendant GJC’s Motion for Reconsideration of the Court’s Order of 8-22-13 isDENIED.Defendant GJC’s motion for reconsideration is not a motion for renewalcovered by C.C.P. § 1008(b). A motion for reconsideration, which is whatdefendant GJC has entitled its motion is governed by C.C.P. § 1008(a). As amotion for reconsideration, plaintiffs gave notice of the court’s ruling of8-22-13 on 8-23-13. Defendant GJC’s motion for reconsideration was notfiled and served until 9-19-13, which is more than 10 days later. Thusdefendant GJC’s motion for reconsideration is untimely. Also, defendant GJChas not meet its burden as to why it failed to respond to plaintiffs’ requestsfor admission before the hearing on 5-16-13, or why these matters were notraised at the hearing on 8-22-13. See, Garcia v. Hejmadi (1997) 58Cal.App.4 th 674, 690. Finally, relief pursuant to C.C.P. § 473 is not availableas the discovery statute on requests for admission provides for a specifiedmotion for relief. See, Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1107.Moving party to give notice.Defendant GJC’s Motion to Strike: DENIEDThe motion is untimely. See, C.C.P. § 435(b)(1). Also, defendant GJC hasalready filed an answer in response to plaintiffs’ first amended complaint on2-15-13 after its demurrer was overruled as to plaintiffs David Flores,Lamberto Encinas and Sanchez Orozco, and its motion to strike was granted.(See, 10-24-13 Minute Order.) No basis for a further motion to strike almost10 months later is shown. This is without prejudice to defendant GJC bringinga proper motion in limine at the time of trial.Moving party to give notice.Defendant GJC’s Request for Judicial Notice: Defendant GJC requestedthat the court take judicial notice of Exhibit 1, Plaintiffs’ Initial Complaint inthis civil action filed 8-1-12, and Exhibit 2, Plaintiffs’ First AmendedComplaint in this civil action filed 11-2-12. GRANTED as to Exhibits 1 and 2,but such notice is limited to the filing of these pleadings with the court andnot as to the truth of any claims or contentions set forth therein. See,Evidence Code § 452(d) and Day v. Sharp (1975) 50 Cal.App.3d 904,914.Responding party to give notice.

HON. STEVEN LOUIS PERKSuperior Court of Orange CountyBorn: 1951, Yankton, South DakotaUndergraduate: Univ. of South Dakota, 1973Law School: Pepperdine School of Law, 1980Admitted to Practice: 1981Appointed to the Bench: 1995Appointed by: Pete Wilson, RepublicanCareer as an AttorneyDeputy District Attorney, Orange County, California, 1982-89 & 1994-95Attorney, Tuverson & Hillyard, Newport Beach, California, 1989-91Attorney, Roberts & Associates, Newport Beach, California, 1991-94Other Judicial OfficeJudge, Municipal Court, Central Orange County Judicial District, Orange County,California, 1995Relevant Organizational AffiliationMember:Orange County Bar Association, CaliforniaBoard Member, ABTL, Orange County, CaliforniaFormer Member:Orange County Fire Investigators Association, 1987-89 (President, 1988)

Tourism: Critical Concepts in the Social SciencesBy Stephen WilliamsLAW AND MOTION PROCEDURES FOR DEPT. CX102THE FOLLOWING ARE THE LAW AND MOTION PROCEDURES AND POLICIESFOR DEPT. CX102OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 3:00 PM the Thursday prior to thescheduled Friday hearing. If your Internet service is not available you may contact the clerkin Dept. CX102 (657-622-5302) for the ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTYand PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THEMOTION IS DISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5302)to notify the court that all parties are submitting on the tentative and no appearance will benecessary. The tentative will then become the final ruling.If no one appears at the hearing the tentative will be the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the timescheduled for the motion.Argument will normally be limited to facts, law and argument not already submitted in thewritten Points & Authorities.NOTICE TO COUNSEL:Upon filing a motion, moving party shall mail a copy of this notice to opposing counsel. Ifopposing counsel appears unnecessarily because of moving party’s failure to give notice ofthe above procedures, sanctions may be imposed.TENTATIVE RULINGS ON LAW & MOTION MATTERSDate: Friday, February 15, 2013# Case Name Tentative1 10-352195Golestanehno vs.Sierra InvestmentsLLC1. Plt., Golestanehno, Motion to Enter Judgment ---Denied; No legal or contractual authorityis presented upon which the court can grant the reliefsought. The settlement agreement does not providefor entry of judgment. Case law does not allow entryof judgment.2 10-436825Zamora vs.Yarchever3 09-327802Weltman vs. OrthoMattress Inc.1. Plt., Zamora, Rellamas, Boorstein and Young,Motion to Dismiss Class Allegations per CRC 3.770 ---On the Court’s motion, this Motion is continued toMarch 1, 2013, at 10:30 AM to coincide with themotion for approval of settlement.1. 1. Plt., Weltman, Thomas, Olaiz and Duran, Motion forFinal Approval of Class Action Settlement ---Clarification is needed on the following issues:A) How many disputes were disapproved, 1 of 13?This is not clear from the AdministratorOsterlund declaration or Feb. 15, 2013, at

Paragraph 4.B) What is the final timely claim figure? (268 or273 or 275?) ( See inconsistency betweenparagraph 3 and 5 of Feb 5, 2013, Osterlunddeclaration compared to paragraphs 6 and 7eof the Feb. 5, 2013, proposed Final ApprovalOrder. )4 11-493622Zelman AnaheimLLC vs. WincoFoods LLCAssuming issues A) and B) above are clarified the ruling onthe motion for Final Approval is: Granted as follows;Atty Costs (Blumenthal and United Employees firms) :$120,000Atty Fees (Total ): $177,000(Blumenthal firm $118,000 and United EmployeesFirm $59,000)Enhancements: $1,500 for each of the ClassRepresentatives, Weltman, Thomas, Olaiz and Young.Adminstrator fee: $20,000 only approved to Gilardi and Co.LLCFinal Report Hearing date is set for April 5, 2013, at 10:30AM.1. Def./X-Complainant, Winco Foods, Motion for Leave toFile Amended Cross-Complaint (this is the “SECOND”Amended) ---Procedurally: Notice is insufficient. The Motion wasfiled on January 24, 2013. CCP 1005(b) and1010.6(a)(4) require the motion to be filed 16 courtdays before hearing + 2 additional.Motion does not meet all the requirements of CRC3.1324 by not indicating when the facts supportingthe need for amendment were discovered, why theamendment is necessary and why motion not madeearlier.Does Plt. need additional time to respond?5 07-033757Quetel vs. CosmoStore Services, LLC2. Case Management Conference1. Plt., Quetel and Lutz, Motion for Final Approval of ClassAction Settlement and Related Relief ---A) Notice of Motion is untimelyB) Did the $250,000 settlement with CSS in theBankruptcy court result in a distribution to theClass Members? Did the Bankruptcy court overseethat distribution? Was any of this settlement

distributed to the law firms as Atty. Fees?C) Cross-checking of atty. fees of the detailed hourlybreakdown (billing sheets) from both Plt. firmshas been completed and fees request appearreasonable.Assuming the above is resolved at the hearing ofthe motion the ruling will be :Motion is granted;1) Atty. fees awarded in the amount of $241,667;2) Atty. Costs awarded in the amount of$33,181.84;3) Enhancement awarded to each of the classrepresentatives (Quetel and Lutz) in theamount of $3,000 ($6,000 total)4) Administrative Fee awarded in the amount of$8,000 to Gilardi and Co. LLCPlt. to prepare and submit an orderconforming to this award.6 08-180073Manea vs. In-N-Out Burgers Inc.Final report hearing is set for April 4, 2013, at 10:30 AMFINAL RULING:Tentative Ruling is final with the following modification:The enhancement award for each of the two ClassRepresentatives (Quetel and Lutz) is approved in the amountof $6,000 each, Total enhancement of $12,000.Continued to 2/22/2013 per stipulation and order signed02/14/2013.

LAW AND MOTION PROCEDURES FOR DEPT. CX102THE FOLLOWING ARE THE LAW AND MOTION PROCEDURES AND POLICIESFOR DEPT. CX102OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 3:00 PM the Thursday prior to thescheduled Friday hearing. If your Internet service is not available you may contact the clerkin Dept. CX102 (657-622-5302) for the ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTYand PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THEMOTION IS DISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5302)to notify the court that all parties are submitting on the tentative and no appearance will benecessary. The tentative will then become the final ruling.If no one appears at the hearing the tentative will be the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the timescheduled for the motion.Argument will normally be limited to facts, law and argument not already submitted in thewritten Points & Authorities.NOTICE TO COUNSEL:Upon filing a motion, moving party shall mail a copy of this notice to opposing counsel. Ifopposing counsel appears unnecessarily because of moving party’s failure to give notice ofthe above procedures, sanctions may be imposed.TENTATIVE RULINGS ON LAW & MOTION MATTERSDate: Friday, March 1, 2013# Case Name Tentative1 12-615719Entrade Inc. vs.O’Neill1. Def., Prouty, Motion to Quash Service of Summons andFirst Amended Complaint ---Court continues this motion until June 21, 2013, at10:30 AM. This continuance is to afford Plt their rightto conduct discovery limited to jurisdiction concerningtheir complaint. The hearing on the demurrer to thecomplaint will be set at the hearing on this motionand dependent upon the outcome of this motion.2. Plt., Entrade, Inc., Motion for Stay/Continuance forJurisdictional Discovery ---Granted; Plt. may conduct discovery related to thejurisdictional issues, submitting appropriateopposition motion #1 above on a timely basis.2 10-352618La Vista at LagunaNiguel CommunityAssociation vs.Montecito CCV, LLC1. Def., Edward, Christopyer,& JoEllyn Conk, Motionfor Judgment on the Pleadings --- Granted with 14days leave to amend; Alleging ‘alter ego’ does require“facts” , not simply conclusory allegations, to bepleaded in the complaint. Leek vs. Cooper (2011) 194Cal. App. 4 th 399, 413. Although Paragraph 12.1 fo

the First Amended Complaint sets forth allegations ofalter ego, these allegations are merely the wroughtallegations of the elements of alter ego. Much likepleading fraud with specificity, alter ego requires“facts” supporting the alter ego allegations.2. De.f, Merrill Lynch L.P. Holdings, Inc., Motion forJudgment on the Pleadings --- Granted with 14 daysleave to amend; Same analysis as in motion #1above.3 11-534323Torres vs. MarriottInternational, Inc.4 10-436825Zamora vs.YarcheverOff calendar at request of moving party.1. Plt., Zamora, Rellamas, Boorstein and Young,Motion for Approval of Combined Settlement ofthe 4 Remaining Individual Plt.s --- Motion iscontinued on the court’s motion to March 22,2013, for Plt. to address the following matters viadeclaration or some other showing:A) What are the estimated damage figures orOvertime damage claims, meal/rest breakclaims, Young medical bills for the assault, ifany?B) What is the factual basis for the percentagepayout to the various parties and attorney feesallocation? 40% to attorney fees? Individualallocation between parties?C) Where is the proof of service for the motion?No proof of service is attached.D) What is this motion seeking to address andwhat is the reason for this motion? Why doesthe settlement reference Federal Law at page7? The Fed. Claims in this case were dismissedlong ago and the case refilled under Californiastate law. What authority does this court haveto make findings for the Federal Court? Whywould this court do that?For this court to make a determination of whetherthis settlement is fair, adequate and reasonablethese question need to be addressed.2. Plt., Zamora, Rellamas, Boorstein and Young,Motion to Dismiss Class Allegations per CRC 3.770

--- No tentative.No proof of service is attached.What type of dismissal is Plt. requesting? (withprejudice or without prejudice to individual Plt. ;to putative class claimants.)Motion is continued to March 22, 2013 for answersto the questions posed above.5 10-395360Hinsch vs. Emery1. Def./X-Def., Chris Thomas dba Coastal Concrete,Motion for Good Faith Settlement Determination ---Procedurally:It appears that Def., Roland Frank Gonzales, and/orhis attorney, Borchard and Callahan, have not beenserved since neither of their names appears on theproof of service attached to the moving papers.Substantively:Granted; The moving party must, however, presentto the court at the hearing on the motion a “fullysigned” copy of the settlement agreement. Asdescribed by the moving party the proposedsettlement is within the ‘ball park’ of settlementsreached under similar facts and circumstances. Nocollusion is apparent. It meets all the ‘Tech-Bilt’factors.

LAW AND MOTION PROCEDURES FOR DEPT. CX102THE FOLLOWING ARE THE LAW AND MOTION PROCEDURES AND POLICIESFOR DEPT. CX102OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 3:00 PM the Thursday prior to the scheduledFriday hearing. If your Internet service is not available you may contact the clerk in Dept. CX102 (657-622-5302) for the ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPAREAN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF APARTY OR THE CASE.APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5302) to notify thecourt that all parties are submitting on the tentative and no appearance will be necessary. The tentativewill then become the final ruling.If no one appears at the hearing the tentative will be the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion.Argument will normally be limited to facts, law and argument not already submitted in the written Points &Authorities.NOTICE TO COUNSEL:Upon filing a motion, moving party shall mail a copy of this notice to opposing counsel. If opposingcounsel appears unnecessarily because of moving party’s failure to give notice of the above procedures,sanctions may be imposed.TENTATIVE RULINGS ON LAW & MOTION MATTERSDate: Friday, May 17, 2013# Case Name Tentative1 07CC07918Genutec vs. Taus 1. Def., Taus, Motion for Attorney Fees --- See Motion #42. Def., Hunter, Motion for Attorney Fees --- See Motion $53. Cross-Def., Genutec, Motion to Tax Costs (Opposition toMotion #1 and #2) --- See Motion #84. Def., Taus, Motion for Attorney Fees --- Denied withoutprejudice to Def., Taus, filing a memorandum of costs toinclude attorney fees if appropriate; The court previouslyawarded attorney’s fees to Taus as “damages” based upon areview of the evidence presented and received into evidenceduring the trial.5. Def., Hunter, Motion for Attorney Fees --- Denied withoutprejudice to Def., Hunter, filing a memorandum of costs toinclude attorney fees if appropriate; The court previouslyawarded attorney’s fees to Hunter as “damages” based upon areview of the evidence presented and received into evidence

during the trial.6. Def., Hunter, Motion to Seal ---- Denied; The motion lacksa factual showing as to why it is necessary to “seal” theserecords. CRC 2.551(b). No declaration is attached whichestablishes this factual basis.7. Def., Taus, Motion to Seal --- Denied; The motion lacks afactual showing as to why it is necessary to “seal” theserecords. CRC 2.551(b). No declaration is attached whichestablishes this factual basis.8. Def., Genutec, Motion to Tax Costs --- Denied withoutprejudice to renew this motion after memos of cost have beenfiled; No memorandum of costs has been filed by theprevailing parties. CCP 1034.Statement of Decision issues (timing) need to be addressed at thehearing also.2 10-352618La Vista at LagunaNiguel vs. MontecitoCCV, LLC1. Def., Merrill Lynch, Demurrer to the Second AmendedComplaint --- Sustained with 14 days leave toamend; Alter ego and negligent misrepresentation must bepleaded using “specific” facts. The conclusory allegation thatDef., Merrill, is the “alter-ego” is not sufficient. There are noallegations explaining Merrill’s involvement other than being amember of the LLC. Corp. Code, 17101 establishes thatmembership alone is not enough to prove liability. Paragarphs12, 12.1(What did Merrill do to manipulate…), 12.2 (the Conksactually controlled Montecito), 12.3 (What did Merrill dobeyond invest), 12.4-12.9(the Conks chose…), 12.10, 12.11-12.13 (What did Merrill know about defects, if anything)don’tdo any more to allege alter ego. What is the injustice that willresult? Who actually controlled the LLC? Who drained theassets of Montecito and how? What did Merrill do and how?Similarly, negligent misrepresentation must be alleged withspecific facts. These pleadings do not do so. Who said what,when, to whom?3 12-552236Cooper vs.EastWestProto, Inc.1. Plt., Cooper and Magana, Motion for Preliminary Approval of

Class Action Settlement ---The court notes the following concerns/corrections/clarifications:A) The 30 day period within which to file claims, opt-out or objectis too short and should be extended to a 45 day period in theNotice to Class. This is a more reasonable period within whichto accomplish this.B) The moving papers state that this is note a “claims made”settlement. However, the remainder of the moving papersrequire a “claim” in order to participate in thedistributions. ???C) What is the amount of the PAGA penalty? Is it $3,500 or$3,750? There are two different references made in themoving papers.D) Is LWDA a proper ‘cy pres’ beneficiary? Provide some authorityfor this.E) Clarify who the Plt. attorney firms are for purposes of a claimfor attorney fees. Qualls & Workman appear on the captionnow. However, United Employees Law Group is also mentionedin the moving papers. What is United’s relationship and arethey entitled to a share of the fees?F) “Notice to Class” (@ p.10) requires ‘mailing of any objection’ bea Class member to both the Plt. and Def. Counsel. Only haveObjection sent to one of these. The Administrator is usuallythe best because the opt-outs and claims are going there, butone or the other of the attorney firms is also acceptable.G) “Notice to Class” (@p. 5) identifies “interst/penalties as 1/3and the ‘wages’ as 2/3 of each distribution? Isn’t it theopposite? (See p. 65 fo the settlement agreement where itsays 1/3 wages, 2/3 interest/penalties)H) “Notice to Class” (@p. 6) describes Administrators decision onwork-week dispute as ‘non-appealable.’ Paragraph 56 of theSettlement agreement states the opposite that theAdministrator decision is appealable to the Court.I) “Notice to Class” (@ p. 9) describes a single enhancement of$5,000 to Plt. This should make clear the enhancement is fortwo class representatives and is double. Also the court willapprove $1500 for the Class Rep enhancement.J) “Notice to Class” (@ p. 9) fails to expressly state that Plt.counsel is requesting $20,000 in Plt attorney fees as part of thesettlement which is in addition to the $108,000 fees.K) “Notice to Class” (@ p. 9) fails to expressly state that the

Administrator is requesting $20,000 in administrative fees aspart of the settlement. This should be expressly stated alongwith the other disclosures related to the Administrator.L) The Settlement at paragraph 93 provides for “injunctive relief,”pending conclusion of the settlement. The court will not awardnor order injunctive relief. This clause should be removed.M) All ‘final approval’ papers, including lodestar cross-check hourlybreakdown, cost breakdown, and final declarations form theAdministrator are to be filled 14 calendar days before the finalapproval hearing date.N) All deadline dates and blanks in the Proposed Order and “Noticeto Class” should be filled in.The Final Approval date is set for July 29, 2013, at 10:30AM. All final approval papers are to be filed 14 calendar daysbefore this hearing.4 12-574113McDermott vs.Catalina Restaurantc/w 12-573812 and11-5284651. Plt., McDermott, Motion for Final Approval of Class ActionSettlement and Related Relief ---Motion continued to this date for Plt. to comply with concerns thecourt voiced at the hearing on May 10, 2013, and submit a revisedorder for signature.

LAW AND MOTION PROCEDURES FOR DEPT. CX102THE FOLLOWING ARE THE LAW AND MOTION PROCEDURES AND POLICIESFOR DEPT. CX102OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 3:00 PM the Thursday prior to the scheduledFriday hearing. If your Internet service is not available you may contact the clerk in Dept. CX102 (657-622-5302) for the ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPAREAN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF APARTY OR THE CASE.APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5302) to notify thecourt that all parties are submitting on the tentative and no appearance will be necessary. The tentativewill then become the final ruling.If no one appears at the hearing the tentative will be the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion.Argument will normally be limited to facts, law and argument not already submitted in the written Points &Authorities.NOTICE TO COUNSEL:Upon filing a motion, moving party shall mail a copy of this notice to opposing counsel. If opposingcounsel appears unnecessarily because of moving party’s failure to give notice of the above procedures,sanctions may be imposed.TENTATIVE RULINGS ON LAW & MOTION MATTERSDate: Friday, May 31, 2013# Case Name Tentative3 09-180124Yoo vs. KB HomeGreater Los Angeles,Inc.1. Cross-Def. Attorney, Letofsky and McCain, Motion to be Relieved asAttorney of Record --- Continued to Jun 28, 2011; Service on theout-of-state client is late. Need to reserved and ensure its done withenough time. Then the motion will be granted.

LAW AND MOTION PROCEDURES FOR DEPT. CX102THE FOLLOWING ARE THE LAW AND MOTION PROCEDURES AND POLICIESFOR DEPT. CX102OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 3:00 PM the Thursday prior to the scheduledFriday hearing. If your Internet service is not available you may contact the clerk in Dept. CX102 (657-622-5302) for the ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPAREAN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF APARTY OR THE CASE.APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5302) to notify thecourt that all parties are submitting on the tentative and no appearance will be necessary. The tentativewill then become the final ruling.If no one appears at the hearing the tentative will be the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion.Argument will normally be limited to facts, law and argument not already submitted in the written Points &Authorities.NOTICE TO COUNSEL:Upon filing a motion, moving party shall mail a copy of this notice to opposing counsel. If opposingcounsel appears unnecessarily because of moving party’s failure to give notice of the above procedures,sanctions may be imposed.TENTATIVE RULINGS ON LAW & MOTION MATTERSDate: Friday, June 7, 2013# Case Name Tentative1 11-510638Edwards vs. Noroski 1. Def., First Pacific, Motion for Summary Judgment/SummaryAdjudication --- This motion addresses the “FourthAmended Complaint” which is no longer the operativepleading. A Fifth Amended Complaint alleging different namedPlts. is now the operative pleading which is not addressed bythis motion. This motion is moot.2. Def., First Pacific, Motion for Summary Judgment/SummaryAdjudication of issues ---Summary Adjudication as to each of the 6 th Cause of Action(unjust enrichment), 7th Cause of Action (B&P 17500), and 8 thCause of Action (B&P 17200) for lack ofStanding; Granted; Def., First Pacific, has established byadmissible evidence that Def., Doherty, lacks standing in eachof the causes of action (6 th , 7 th and 8 th ) by showing that theactions of Def., First Pacific, has not caused in any economicinjury to Plt., Doherty, and that there is no triable issue ofmaterial fact on that issue.The burden of proof has shifted to Plt., Doherty, to show thattriable issues of material fact do exist related to the acts of Plt.,First Pacific, having caused economic injury to Plt. ,Doherty. He has failed to do so and does not meet his burden

of proof that he does have standing as it relates to the 6 th , 7 thor 8 th causes of action. Doherty admits having no contact withFPC until after receiving dental services. Doherty never madea payment directly to First Pacific. Doherty has not showneconomic injury or causal connection between the acts of FirstPacific and Doherty under any theory alleged in the FifthAmended Complaint.2 JCCPFosamax/Alendronate SodiumDrug Cases1. 1. Attorney, Klein, (Novartis) Application for Pro Hac ViceStatus --- Continued from April 26, 2013, for Counsel to giveNotice to the State Bar. (CRC 9.40(c)(1). Compliance havingbeen received this motion is granted.2. Attorney, Reissaus, (Novartis) Application for Pro Hac ViceStatus --- Continued from April 26, 2013, for Counsel to giveNotice to the State Bar. (CRC 9.40(c)(1). Compliance havingbeen received this motion is granted3 10-395360Hinsch vs. Emery 1. Def., Kuno Grading, Motion to Continue Trial Date --- Granted; Good Cause having been shown thismotion is granted.A trial setting conference is hereby set for June 24,2013, at 8:30 AM in Dept CXC 102. Def. is to givewritten notice to all parties.6 11-493622Zelman Anaheim LLCvs. Winco Foods, LLC1. Def., Winco Foods, Motion to Compel Responses to Form Rogs(Set One) (Zelman) and to Special Rogs (Set One)(Zelman) ---Form Rogs:Rog 8.7; Denied, although follow up questioning may benecessary, the response of Zelman appears to be complete.Rog 9.1; Denied, at this stage of the litigation this does appearto be a complete response.Rog 9.2; Denied, this appears to be a complete response.Special Rogs:Rog 5; This is a complete response to the question posed. Plt.may wish to follow-up on this answer but it is nonetheless a

complete answer.Rog 6; Granted; Plt did promise to provide various documentsfrom the Springstead file and they are required to identifywhich docs are responsive to which question. CCP2030.230. Plt. must identify the documents that areresponsive.Rog 8, 10, and 14; Granted, Plt did promise to provide variousdocuments from the Springstead file and they are required toidentify which docs are responsive to which question. CCP2030.230. Plt. must identify the documents that areresponsive.Sanctions are denied. It appears that there is relative merit toeach side of this argument at least at varying portions.2. Def., Winco, Motion to Compel Further Responses to Requestfor Production of Documents and Sanctions --- Denied as toRequest 20; No showing of need to see the tax returns.Granted as to Request #12; Zelman is req;uired to verify inthe language of the code their response to the Request . Aprivilege log specifically describing each responsive documentwithheld based no privilege including reason for the privilegeascertain.If Winco wants separate responses from ZRC then servediscovery.Sanctions are denied for the reason indicated above which isequally applicable here.7 11-516101Glavinovich vs. Meka 1. Def., Davis, Motion for Attorney Fees and Costs ---Denied; The attorney work in this instance was performedby the firm to defend Mr. Davis for work he performed for thefirm is representing Glavinovich. Ms. Baidas, Mr. Holchin, Mr.Granieri, and Mr. Iandoulova, according to their declarationswork for the Davis firm. There is no declaration re Atty.Teselsky. As such their fees in representing Mr. Davis in theGlavinovich action are not recoverable as attorneyfees. Carpenter & Zuckerman,LLP vs. Cohen (2011) 195 Cal.App. 4 th 373, 387-388. Sands &Associates vs. Juknavorian(2012) 209 Cal. App. 4 th 1269,1272.8 12-552236Costs in the amount of $1347.16 are awarded to the Davis firmand against Glavinovich.

Cooper vs.EastWestProto, Inc.Plt., Cooper and Magana, Motion for Preliminary Approval of ClassAction Settlement ---(1) Paragraphs 4-6 of the New Proposed Order still reference 30day deadline to file claims. Court thinks 45 day deadline ismore appropriate.(2) What makes LWDA appropriate cy pres recipient? Give someauthority.(3) Clarify – United Employees Law Group as a class attorney andany potential claim they could or will make re fees. Need adeclaration to document the file.(4) Final approval papers are to be filed not later than 14 calendardays before hearing. Paragraph 7 of the New Proposed Orderdoes not so indicate.(5) Deadline dates and blanks in the Proposed Order and Notice toClass must be filled in with the new date selected for FinalApprovalNo Tentative

LAW AND MOTION PROCEDURES FOR DEPT. CX102THE FOLLOWING ARE THE LAW AND MOTION PROCEDURES AND POLICIESFOR DEPT. CX102OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 3:00 PM the Thursday prior to the scheduledFriday hearing. If your Internet service is not available you may contact the clerk in Dept. CX102 (657-622-5302) for the ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPAREAN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF APARTY OR THE CASE.APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5302) to notify thecourt that all parties are submitting on the tentative and no appearance will be necessary. The tentativewill then become the final ruling.If no one appears at the hearing the tentative will be the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion.Argument will normally be limited to facts, law and argument not already submitted in the written Points &Authorities.NOTICE TO COUNSEL:Upon filing a motion, moving party shall mail a copy of this notice to opposing counsel. If opposingcounsel appears unnecessarily because of moving party’s failure to give notice of the above procedures,sanctions may be imposed.# Case Name Tentative1 8:30 am07CC01299Del Webb vs.Travelers CasualtyTENTATIVE RULINGS ON LAW & MOTION MATTERSDate: Friday, June 14, 2013Issue #1Del Webb objected to the taking of their expert witnesses depositionbased on their contention that there was a 30 day cutoff to whichFederal apparently adopted the position that expert discovery waspermitted after the 30 day cutoff.Now , Federal claims the opposite by asserting that there is a 30 daycutoff in it’s motion to quash the Rielly deposition notice and Del Webbassumes the opposite position also.Which is it?Issue #2The meaning of the Appellate Court stay:The Petitions for Writ sought a “stay” as the only way to protect theattorney-client and attorney work product privileges …” That requestwill govern the extent of the stay. The Appellate Court’s Order of May2, 2013, concerning the 12 question is,” Petitioner also requested animmediate stay of the order compelling Deets to answer the specifiedquestions. This court has issued the stay (emphasis added)…” Thestay is defined by the request in the Petitions for Writ which stated,“The trial court has placed a deadline of December 12, 2012, toproduce the memoranda. A stay is the only way to protect theattorney-client and attorney work product privileges while writ reviewis pending.” This language limits the request to a stay of thediscovery issues which were before the Appellate court. The requestcannot be read broader than that nor can the order.As to the stay issued by the Appellate Court concerning the Deetsdeposition question the Appellate Court order is even more clear. It

state, “Petitioner also requested an immediate stay of the order toproduce the four memoranda. This court has issued the stay,…” Thisstay related only to the Deets deposition questions. Nothing more.1 10:30 am11-508831Domkus vs. Pag SantaAna B1, Inc.1 Plt.,Domkus, Domkus and Kuxhausen, (Joint) Motion for PreliminaryApproval of Class Action Settlement ---A) The Proposed “Notice to Each Sub-class” fails to include thematerial terms of the settlement, such as 1) disclosure of theamount of Plt. Attorney fees/cost being requested, 2)enhancement requested, 3) the amount and other terms of theDomkus and Kuxhausen settlements.These issues are important in the class members ability tounderstand and make an informed decision as to whether toopt-out or not.B) “Notice to Class” refers class members to a website for furtherexplanation without any explanation as to the content of thewebsite or attachment of the website.C) The “Administrator fee” to Gilardi and Co. must be expressedbecause it is a material term of the settlement. The “Notice toClass” must contain full disclosure even though this fee isindicated to be paid by Def. separately and not deducted fromthe settlement amount.D) Who is the Cy Pre beneficiary of each class? This is a materialterm and should be disclosed. Decide that now not later “if youcan agree.”E) A declaration supporting/explaining the individual settlementfacts and estimated damages b/c this individual claim ispredicated upon settlement of the class claims. Thedescription in Section 5.5.1c and d, and Section 5.5.2a do notfully explain this settlement. The notice to class should explainthis portion of the settlement.F) The settlement agreement improperly provides for “dismissalwith prejudice.” CRC 3.769(h) and 3.770(a) clearly do notprovide dismissal as a option. CRC 3.769(h) spells out theterms that the entry of judgment.G) The interest rates for delay in payment of fees and returningfunds are excessive. 1% per month? Usurious.H) The court will not issue an injunction as a term of thesettlement or enforcement of the settlement. ( See Order ofPreliminary Approval @ P.2, paragraph 10, P.3,paragraph12) Proposed Judgment at P.3, paragraphs 7 and10, Judgment of Dismissal, P. 3, paragraphs 6 and 8, p. 4,paragraph 10)I) Final approval papers are to be filed with the court not laterthan 14 calendar days before the Final Approval Hearing.J) Deadline dates in the Proposed Order and Notice to Class

should be filed in.Final Approval date __________________.This motion will be continued to ___________for the preceeding issues to be corrected and addressed bycounsel.2 11-504919Kuxhausen vs. CrevierMotors, Inc.3 11-505181Contreras vs. OrangeCoast Plumbing, Inc.See Motion #1. There has been a First Amended Complaint filed inthese two matters with the settlement reached on all issues.1. Plt.,Contreras, Theander, Lehman and Debenedicts, Motion forClass Certification ---Granted; Plt has made a sufficient showing of the prerequisitesfor certification - numerosity and the predominance of commonquestions over individual questions for purposes ofcertification. Contreras and Lehman to be the classrepresentatives. DeBenedicts and Theander we will address atthe hearing.The existence of the releases and their validity is a meritsbased issue.[Can those issues be decided separately? (i.e. a minitrial/ExpeditedTrial)]Are the claims/issues of DeBenedicts distinct from the class?He has elected to arbitrate and his claims are completed andhe has no basis upon which to be a class representative.What is Theanders record?Def., Orange Coast Plumbing, Evidentiary Objections to the KuhnDeclaration -- Overruled each objection 1-11.Def., Orange Coast Plumbing, Evidentiary Objections to the LehmanDeclaration -- Overruled as to each objection 3-17.Def., Orange Coast Plumbing, Evidentiary Objections to the Boothe

Declaration -- Overruled as to each objection 3-11.Def., Orange Coast Plumbing, Evidentiary Objections to theDeBenedicts Declaration -- Overruled as to each Objection 3-18.Def., Orange Coast Plumbing, Evidentiary Objection to the PeytonDeclaration -- Overruled as to each Objection 3-11.Def., Orange Coast Plumbing, Evidentiary Objections to the GarciaDeclaration -- Overruled as to each of the Objections 3-11.Def, Orange Coast Plumbing, Evidentiary Objections to the GeerDeclaration -- Overruled as to each of the Objections 3-11.Def., Orange Coast Plumbing, Evidentiary Objections to the TingleyDeclaration -- Overruled as to each of the objections 3-11.Def., Orange Coast Plumbing, Evidentiary Objections to the BeliganDeclaration -- Overruled as to each of the objections 5-5,8,-10.Def., Orange Coast Plumbing, Evidentiary Objections to the ContrerasDeclaration -- Overruled as to each objection 3-13 and 15 -17.Def., Orange Coast Plumbing, Evidentiary Objections to the HealeyDeclaration --- Overruled as to each objection 3-11.Def., Orange Coast Plumbing, Evidentiary Objections to the TheanderDeclaration -- Overruled as to each of the objections 3-12 and 14-17.Def., Orange Coast Plumbing, Evidentiary Objections to the HolderDeclaration -- Overruled as to each of the objections 3-11.Def., Orange Coast Plumbing, Evidentiary Objections to the FlynnDeclaration -- Overruled as to objecitons 2-7.Plt. Request for Judicial Notice -- Granted as to Ex. #1 and #2.

LAW AND MOTION PROCEDURES FOR DEPT. CX102THE FOLLOWING ARE THE LAW AND MOTION PROCEDURES AND POLICIESFOR DEPT. CX102OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 3:00 PM the Thursday prior to the scheduled Fridayhearing. If your Internet service is not available you may contact the clerk in Dept. CX102 (657-622-5302) forthe ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPARE ANORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY ORTHE CASE.APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5302) to notify the courtthat all parties are submitting on the tentative and no appearance will be necessary. The tentative will thenbecome the final ruling.If no one appears at the hearing the tentative will be the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion.Argument will normally be limited to facts, law and argument not already submitted in the written Points &Authorities.NOTICE TO COUNSEL:Upon filing a motion, moving party shall mail a copy of this notice to opposing counsel. If opposing counselappears unnecessarily because of moving party’s failure to give notice of the above procedures, sanctions may beimposed.# Case Name Tentative1 10:30 am11-508831Domkus vs. Pag SantaAna B1, Inc.TENTATIVE RULINGS ON LAW & MOTION MATTERSDate: Friday, June 14, 20131 Plt.,Domkus, Domkus and Kuxhausen, (Joint) Motion for PreliminaryApproval of Class Action Settlement ---A) The Proposed “Notice to Each Sub-class” fails to include the materialterms of the settlement, such as 1) disclosure of the amount of Plt.Attorney fees/cost being requested, 2) enhancement requested, 3)the amount and other terms of the Domkus and Kuxhausensettlements.These issues are important in the class members ability tounderstand and make an informed decision as to whether to opt-outor not.B) “Notice to Class” refers class members to a website for furtherexplanation without any explanation as to the content of thewebsite or attachment of the website.C) The “Administrator fee” to Gilardi and Co. must be expressedbecause it is a material term of the settlement. The “Notice toClass” must contain full disclosure even though this fee is indicatedto be paid by Def. separately and not deducted from the settlementamount.D) Who is the Cy Pre beneficiary of each class? This is a material termand should be disclosed. Decide that now not later “if you canagree.”E) A declaration supporting/explaining the individual settlement factsand estimated damages b/c this individual claim is predicated upon

settlement of the class claims. The description in Section 5.5.1cand d, and Section 5.5.2a do not fully explain this settlement. Thenotice to class should explain this portion of the settlement.F) The settlement agreement improperly provides for “dismissal withprejudice.” CRC 3.769(h) and 3.770(a) clearly do not providedismissal as a option. CRC 3.769(h) spells out the terms that theentry of judgment.G) The interest rates for delay in payment of fees and returning fundsare excessive. 1% per month? Usurious.H) The court will not issue an injunction as a term of the settlement orenforcement of the settlement. ( See Order of Preliminary Approval@ P.2, paragraph 10, P.3,paragraph 12) Proposed Judgment at P.3,paragraphs 7 and 10, Judgment of Dismissal, P. 3, paragraphs 6and 8, p. 4, paragraph 10)I) Final approval papers are to be filed with the court not later than 14calendar days before the Final Approval Hearing.J) Deadline dates in the Proposed Order and Notice to Class should befiled in.Final Approval date __________________.This motion will be continued to ___________for the preceeding issues to be corrected and addressed by counsel.2 11-504919Kuxhausen vs. CrevierMotors, Inc.3 11-505181Contreras vs. OrangeCoast Plumbing, Inc.See Motion #1. There has been a First Amended Complaint filed in thesetwo matters with the settlement reached on all issues.1. Plt.,Contreras, Theander, Lehman and Debenedicts, Motion forClass Certification ---Granted; Plt has made a sufficient showing of the prerequisites forcertification - numerosity and the predominance of commonquestions over individual questions for purposes ofcertification. Contreras and Lehman to be the classrepresentatives. DeBenedicts and Theander we will address at thehearing.The existence of the releases and their validity is a merits basedissue.[Can those issues be decided separately? (i.e. a mini-trial/ExpeditedTrial)]

Are the claims/issues of DeBenedicts distinct from the class? He haselected to arbitrate and his claims are completed and he has nobasis upon which to be a class representative.What is Theanders record?Def., Orange Coast Plumbing, Evidentiary Objections to the KuhnDeclaration -- Overruled each objection 1-11.Def., Orange Coast Plumbing, Evidentiary Objections to the LehmanDeclaration -- Overruled as to each objection 3-17.Def., Orange Coast Plumbing, Evidentiary Objections to the BootheDeclaration -- Overruled as to each objection 3-11.Def., Orange Coast Plumbing, Evidentiary Objections to the DeBenedictsDeclaration -- Overruled as to each Objection 3-18.Def., Orange Coast Plumbing, Evidentiary Objection to the PeytonDeclaration -- Overruled as to each Objection 3-11.Def., Orange Coast Plumbing, Evidentiary Objections to the GarciaDeclaration -- Overruled as to each of the Objections 3-11.Def, Orange Coast Plumbing, Evidentiary Objections to the GeerDeclaration -- Overruled as to each of the Objections 3-11.Def., Orange Coast Plumbing, Evidentiary Objections to the TingleyDeclaration -- Overruled as to each of the objections 3-11.Def., Orange Coast Plumbing, Evidentiary Objections to the BeliganDeclaration -- Overruled as to each of the objections 5-5,8,-10.Def., Orange Coast Plumbing, Evidentiary Objections to the ContrerasDeclaration -- Overruled as to each objection 3-13 and 15 -17.Def., Orange Coast Plumbing, Evidentiary Objections to the HealeyDeclaration --- Overruled as to each objection 3-11.Def., Orange Coast Plumbing, Evidentiary Objections to the TheanderDeclaration -- Overruled as to each of the objections 3-12 and 14-17.Def., Orange Coast Plumbing, Evidentiary Objections to the HolderDeclaration -- Overruled as to each of the objections 3-11.Def., Orange Coast Plumbing, Evidentiary Objections to the FlynnDeclaration -- Overruled as to objecitons 2-7.Plt. Request for Judicial Notice -- Granted as to Ex. #1 and #2.FINAL RULING:Tentative ruling is final. As indicated in the tentative ruling the Plaintiff has

made a sufficient showing of numerosity and the common questionspredominate over individual questions. The existence of affirmativedefenses is a merits based argument not for certification.Contreras and Lehman do qualify to act as class representatives. Theanderalso appears to qualify at this time subject to disqualification overunanswered questions related to his past. DeBenedits has arbitrated hisclaim and is therefore not qualified to act as class representative becausehe no longer has claims similar to the class.

But under subdivision (e) of Corporations Code section 16404, “A partner does not violate a duty or obligationunder this chapter or under the partnership agreement merely because the partner's conduct furthers thepartner's own interest.” And a partner may transact business with the partnership, and as to each transaction,the rights and obligations of the partner “are the same as those of a person who is not a partner, subject to otherapplicable law.” (Corp.Code, § 16404, subd. (f).) LAW AND MOTION PROCEDURES FOR DEPT. CX102THE FOLLOWING ARE THE LAW AND MOTION PROCEDURES AND POLICIESFOR DEPT. CX102OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 3:00 PM the Thursday prior to the scheduled Fridayhearing. If your Internet service is not available you may contact the clerk in Dept. CX102 (657-622-5302) forthe ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPARE ANORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY ORTHE CASE.APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5302) to notify the courtthat all parties are submitting on the tentative and no appearance will be necessary. The tentative will thenbecome the final ruling.If no one appears at the hearing the tentative will be the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion.Argument will normally be limited to facts, law and argument not already submitted in the written Points &Authorities.NOTICE TO COUNSEL:Upon filing a motion, moving party shall mail a copy of this notice to opposing counsel. If opposing counselappears unnecessarily because of moving party’s failure to give notice of the above procedures, sanctions may beimposed.TENTATIVE RULINGS ON LAW & MOTION MATTERSDate: Friday, June 21, 2013# Case Name Tentative1 12-615719Entrade Inc. vs. O’Neill 1. Def., Prouty, Motion to Quash Service of Summons and FirstAmended Complaint ---Motion is continued to August 23, 2013, at 10:30AM. Plt. isallowed to conduct limited jurisdiction based discovery related toProuty’s contacts with California prior to that date. This means thatPlt. will have to move quickly and not wait a month beforepropounding discovery or moving to compel.2. Plt., Entrade, Motion for Leave to File Second AmendedComplaint --- Denied; Amendment at this stage is not a matterof right. There are specific procedural requirements for thismotion. CRC 3.1324(b)(2) (3) and (4). Plt. have met none ofthem.Status Conference2 12-613462Slyman vs. FCF Agency 1. Def., FCF and Sirard, Demurrer to the 1 st (Negligence), 2 nd (FalseLight), 3 rd (Violation of CC 3344), and 4 th (UnjustEnrichment) Causes of Action of the Complaint ---

Sirard: Dismissal with prejudice entered on stipulation of both Plt.and Def. on April 9, 2013.FCF:1 st C/A: Sustained with 14 days leave to amend; The allegationslack any connection between the Cease and Desist letter to unnamedDefs. and the FCF business activity. Therefore, no factualallegation of intentional conduct.2 nd C/A: Sustained with 14 days leave to amend; Pleading lacksspecific allegation of “reckless or negligent” conduct by FCF whichwas a substantial factor in causing harm.3 rd C/A: Sustained with 14 days leave to amend; Pleading lacksspecific allegation as to how FCF knowingly misappropriated Plt’sname to sell it’s movies.4 th C/A: Sustained with 14 days leave to amend; Pleadings lackallegations as to how FCF benefited at Plt’s expense by using a“nickname” or “alias” in the sale of pornographic movies. Where’sthe unjust enrichment and or “knowing misuse” of Plt.’s name.Other arguments are overruled.2. Def., FCF, Motion to Strike ---Class allegations: Granted without leave to amend as to the classallegations and alleged related damages; Simply noreasonable possibility that a community of interest can be allegedestablishing a “community of interest” among potential classmembers and that common questions of fact and law that willpredominate over individual issues.Punitive Damages: Granted with 14 days leave toamend; currently lacks allegations of specific facts supporting thepunitive damages claim on the issues that survive.FINAL RULING ON MOTION #2:Tentative ruling is final. There is no conceivable basis upon whichPlt. will be able to plead sufficient facts of commonality for class

action to exist as to the Defendants in this action.3 07CC05110Fischer vs. Gold CoastRealty InvestmentsStatus Conference1. Plt., Fischer, Motion for Entry of Judgment ---Procedurally; The proof of service once again lacks personal serviceon the named parties, Khodadad, Kia and Kirtland.This motion will require a declaration confirming the facts argued inthe motion. (i.e. who paid what, to whom, when after thesettlement) Additionally, once in a position for entry of judgment aprove-up is required either by live testimony or declarations underpenalty of perjury by percipient witnesses).The notice of motion is asking for judgment against 13 defs.???No copy of the settlement agreement is attached with the originalsignatures of the Def.sNo “Proposed Judgment” is attached.Continued to July 12 for corrections and completed proof of service.2. Plt., Fischer, Motion to Set Aside Dismissal --- Granted; Plt. hasmade a sufficient showing of mistake, inadvertence or excusableneglect to justify setting aside the motion.8 11-493622Zelman Anaheim, LLCvs. Winco Foods, LLC1. Def., Winco Foods, LLC, Motion for Protective Order --- NotentativeCounsel should be ready to discuss the appointment of a discoveryreferee. It is apparent that the parties and issues of this case aresuch that repeated motions concerning discovery are HIGHLY likelyabsent some reasonable dialogue and compromise from both..

LAW AND MOTION PROCEDURES FOR DEPT. CX102THE FOLLOWING ARE THE LAW AND MOTION PROCEDURES AND POLICIESFOR DEPT. CX102OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 3:00 PM the Thursday prior to the scheduled Fridayhearing. If your Internet service is not available you may contact the clerk in Dept. CX102 (657-622-5302) forthe ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPARE ANORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY ORTHE CASE.APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5302) to notify the courtthat all parties are submitting on the tentative and no appearance will be necessary. The tentative will thenbecome the final ruling.If no one appears at the hearing the tentative will be the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion.Argument will normally be limited to facts, law and argument not already submitted in the written Points &Authorities.NOTICE TO COUNSEL:Upon filing a motion, moving party shall mail a copy of this notice to opposing counsel. If opposing counselappears unnecessarily because of moving party’s failure to give notice of the above procedures, sanctions may beimposed.TENTATIVE RULINGS ON LAW & MOTION MATTERSDate: Friday, July 5, 2013# Case Name Tentative1 JCCP 4581Aldo US Wage and HourCases1. Def., ALDO, Motion to Strike --- Granted with 14 days leave toamend to name substitute “Plaintiff class representative” as to paragraphs12-17 of the Third Amended Complaint. Plt.’s criminal past makes herunqualified to act as the class rep.Plt. must file a separate motion for leave to amend which complies withCRC 3.1324 to change the operative pleading in any other respect. (i.e.adding a separate PAGA C/A)The current request by Plt. for leave to file amended pleading is denied atthis time.

LAW AND MOTION PROCEDURES FOR DEPT. CX102THE FOLLOWING ARE THE LAW AND MOTION PROCEDURES AND POLICIESFOR DEPT. CX102OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 3:00 PM the Thursday prior to the scheduledFriday hearing. If your Internet service is not available you may contact the clerk in Dept. CX102 (657-622-5302) for the ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPAREAN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF APARTY OR THE CASE.APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5302) to notify thecourt that all parties are submitting on the tentative and no appearance will be necessary. The tentativewill then become the final ruling.If no one appears at the hearing the tentative will be the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion.Argument will normally be limited to facts, law and argument not already submitted in the written Points &Authorities.NOTICE TO COUNSEL:Upon filing a motion, moving party shall mail a copy of this notice to opposing counsel. If opposingcounsel appears unnecessarily because of moving party’s failure to give notice of the above procedures,sanctions may be imposed.TENTATIVE RULINGS ON LAW & MOTION MATTERSDate: Friday, July 12, 2013# Case Name Tentative1 12-615719Entrade, Inc. vs.O’Neill1. Plt., Entrade, Inc. and Nationwide Auction Finance, LLC, Motionto Compel further Responses to Special Rogs and Requests forProduction and Monetary Sanctions ---Granted as to Special Rogs 3, 4, 5, 6, 7, 8, and 10.Granted as to Requests for Production 4, 5, 6, 7, 8, 9, 12, 13,14, 15, 18, 19, 24, 27 and 28.Def. to provide further responses which are substantive, nonevasiveand verified without objections on or before July 22,2013.Denied as to special Rogs 1 and Request for Productions #1, 20and 26 because these appear to be overbroad.Sanctions are awarded to Plt. in the amount of $4,092.50payable on or before July 22, 2013. This figure is awarded b/cis appears that Green and Edlund duplicate their work inbringing this motion.3 11-516101Glavinovich vs. Meka 1. Def., Naqvi, Motion for entry of Judgment and for AttorneyFees and Cost awards in Favor of Def., Naqvi ---

No Tentative2. Def., Wolensky, LLP, Motion for Attorney Fees --- Notentative3. Def., Meka, Motion for Attorney Fees and Costs --- NoTentative. Parties are seeking to continue these motions.4 11-495917Montiel vs. MelissaSweitzer, Ph.D, Inc.5 11-492389Vasquez Arellano vs.Spotless EnterprisesInc.1. Plt., Montiel, Motion for Preliminary Approval of Class ActionSettlement and Related Relief --- No Tentative. No movingpapers have been filed. This is the second time this motionhas been on calendar. What is the status of this case?1. Plt., Arellano, Motion to Certify the Class --- No movingpapers have been filed in this action. What is the status of thiscase?6 12-571445Rivera vs. HiltonWorldwide, Inc.c/w 12-6188708 09-307667Perez vs. SpectrumCare Landscape &Irrigation Mgt1. Def., Hilton Worldwide, Inc., Motion to Compel Arbitration ofPlt’s Individual Claims and for Dismissal or Stay of Plt.’sRepresentative Claims ---1. Plt., Perez, Motion for Preliminary Approval of Class ActionSettlement and Related Relief ---1) All objections should be mailed to only one address (i.e. theAdministrator) to eliminate confusion.2) There should be no preference in the payment of theenhancement award to the class rep. on the Plt. attorneyfees and costs which should be paid at the end after allinstallments have been received before anydistribution. (Contra to language of the settlement, i.e.page 17)3) Why are “installment payments” held in a non-interestbearing account until distribution? This should be interestbearing.4) The joint stipulation of settlement and release is incomplete(see section 6.15 @ pages 26 and 275) Notice to Class @ page one references April 2, 2006????6) Fill in the deadline dates and blanks I the proposed Orderand proposed notice to Class. Final approvaldate__________. All papers for Final Approval to be filed

14 days before the hearing.Motion is continued to August 23, 2013, at 10:30AM

LAW AND MOTION PROCEDURES FOR DEPT. CX102THE FOLLOWING ARE THE LAW AND MOTION PROCEDURES AND POLICIESFOR DEPT. CX102OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 3:00 PM the Thursday prior to the scheduledFriday hearing. If your Internet service is not available you may contact the clerk in Dept. CX102 (657-622-5302) for the ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPAREAN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF APARTY OR THE CASE.APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5302) to notify thecourt that all parties are submitting on the tentative and no appearance will be necessary. The tentativewill then become the final ruling.If no one appears at the hearing the tentative will be the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion.Argument will normally be limited to facts, law and argument not already submitted in the written Points &Authorities.NOTICE TO COUNSEL:Upon filing a motion, moving party shall mail a copy of this notice to opposing counsel. If opposingcounsel appears unnecessarily because of moving party’s failure to give notice of the above procedures,sanctions may be imposed.TENTATIVE RULINGS ON LAW & MOTION MATTERSDate: Friday, July 19, 2013# Case Name Tentative1 JCCP 4581Aldo US Wage andHour Cases1. Plt., Santos, Motion for Final Approval of Class ActionSettlement and Related Relief ---1) Notice of this motion is insufficient. The motion did notgive the required 28 days notice of the hearing date. CRC3.764(c)(1)Nor did it meet the notice requirements of CCP 1005(b).(16 court days plus 5 additional calendar days notice) Finally, no notice was sent to the attorney of record forKenemixay, Miriam Schimmel of the Initiative Legal Group.2) Moving papers inconsistent state that there are 6 opt-outsand later there are 8 opt-outs. Need to amend to show thetrue number.3) Has the administrator, Simpluris, conducted a skip tracesearch for the addresses of all current Class Membersaddresses. (only a 17% response)4) Administrator fee is now alleged to be $43,900 after statingin the preliminary approval that it would be %35,000? Noinvoice is attached from Simpluris and no explanation isprovided.5) Have the 16 defective claims been resolved by a cure ofthe defect or are there additional class claimants

participating in the distribution.6) Final report hearing date is set for ________________.2. Plt., Santos, Motion for Attorneys Fees and Costs andRepresentative Enhancement ---1) Attorneys Fees: Approved in the amount of$366,666.67. The Hawkins firm has provided sufficientinformation to support this award.2) Costs: Approved in the amount of $11,057.70.3) Enhancement; approved in the amount of $1,500 for theclass representative Santos. This application fails to specifythe number of hours Santos worked on the case.4) Administrative fee: need explanation for the $8,900increase over the amount sought in Preliminary approvel.3. Def., ALDO U. S., Inc., Motion for Monetary Sanctions ---Denied; Too early in the litigation to determine whether allthe class claims lack merit. There is no authority for anadditional $10,000 as a deterent measure.Cross request for sanctions for a frivolous motion are alsodenied; Denemixay was not an appropriate class rep.2 12-604001Golovoy vs. Ceradyne,Inc.c/w 12-604931Kumar vs. Ceradyne,Inc.1. Plt., Golovoy and Kumar, Motion for Final Approval of Class ActionSettlement ---1) Contrary to the moving papers there apparently is at least oneobjection to the settlement filed by shareholder Bluhm. Arethere any additional objections filed?2) Why would it be “unfair” for the objector,Mr Bluhm, to opt-out? What facts exist that supportthe claim that Bluhm doesn’t understand merger litigation?3) Why did the “Notice to Class” contain language at Paragraph34(d), concerning the issuance of an injunction andpermanently bar language? No preliminary injunction has everbeen granted. The Court specifically would not approve of thislanguage in a class settlement.4) What is the “substantial benefit” received by the class in thiscase? The merger was completed 2 weeks after this case wasfiled.

5) To make certain, Have the two Delaware cases been dismissedat this time?3 09-292482Newton vs. Banuelos 1. Plt., Newton, Motion to Charge the LLC Member Interest ---Off Calendar. Judgment Debtor has filed bankruptcy.Matter is set for a bankruptcy review hearing Juanuary 3,2014, at 8:30AM.4 11-512328Schulte vs. Jon BecCare, Inc.1. Plt., Schulte, Reynolds, Reynolds and Diaz, Motion for FinalApproval of Class Action Settlement and Related Relief ---1) The final approval papers indicate that the class period runsthrough final approval. Notice to the Class stated the classperiod ran thru the date of preliminary approval.2) CRC 3.769(h) does not authorize “dismissal” of thecase. Judgment is to be entered. The preliminary approvalwas corrected but now the final approval reflects dismissalof the case. (see Page 3)3) Line out The language at the bottom of Page 6stating: “Class members owe defense attorney feesif they violate the injunction, here and file a separateaction asserting claims that have beenreleased.” There is no authority for this. The court is notissuing an injunction.4) Attorney fees in the amount of$216,666.66 are approved.5) Attorney costs in the amount of $6,109.95 areapproved. “After-mediation dinner” cost of $427.68 isdisallowed.6) Enhancement to each named classrepresentative: approved in the amount of $1,500 perrepresentative (total $6,000) No information/declaration isprovided to support the requested amount.7) Administrator fee: Approved in the requested amount of$15,000.

6 08-105679McClaire vs. JRInvestmentProperties, Inc.Final report hearing is set for September 27, 2013, at 10:30AM.1. PLt., McClaire, Motion to Set Aside Dismissal --- This motionis continued to September 13, 2013, to allow Plt. to servewritten notice and copies of this motion to the Defs., JRInvestment Properties, Inc. and John Scafani, at their lastknown addresses along with notice to their attorney of record.CCP 473(d).2. Plt., McClaire, Motion for Entry of Judgment --- Same rulingas in Motion #1 above.8 10-396748Vazquez vs. MarriottInternational, Inc.1. Plt., Vaszuez, Motion for Preliminary Approval of AmendedClass Action Settlement and Related Relief ---1) The release language of the Amended SettlementAgreement and the Proposed Notice to the Class still statethat the release of the subject claims will be “thru the‘final approval’ hearing. This can’t be. The class periodidentified ends October 1, 2012. Notice is sent concerningthat period and could not identify the Final Approvaldate. Class members could be excluded be this if they werehired after October 1, 2012, without getting notice or theability to opt-out. (See pages 18 and 16 of the revisedSecond Amended Joint Stip of Settlement and the “Noticeto Class.”)2) The Amended Joint Settlement of Class Action at paragraph20 on page 11 provides for objections to be served on the“parties counsel.” This should reflect that objections are tobe sent to the Administrator.3) The reference to “exclusion of Class members who havealready “waived or released” their claims should beremoved since there are no Class Members in thiscategory. See page 15 – 16 of the Second Amended JointStipulation of Settlement.4) The December 6, 2013 date for final approval is fine but thedate must be filled in the Proposed Order.Preliminary Approval is continued to September 13, 2013,at 10:30 AM to complete the above corrections.3. Status Conference9 10-395360Hinsch vs. Emery 1. Def., Geo-Etka, Motion to Withdraw Answer ---Granted; The Answer filed by this Def. on October 7, 2011,is stricken. Default will be entered as to this named Def., Geo-

Etka, Inc.Counsel Ms. Hutchins is to give written notice.2. Attorney, Hutchins, Motion to be Relieved as Attorney ofRecord --- Granted; Counsel has complied with theapplicable Rules of Court and Statute. The Order will beeffective upon counsel filling with the court proof of service ofthis order upon the client and to include all future datescurrently set.3. Def., Thomas dba Coastal Concrete, Motion for Order toCompel Discovery or for Evidentiary Sanctions and forMonetary Sanctions and Joinder --- Granted; Theobjections asserted by Tesoro were filed late and arewaived. Even if the objections were not waived thedocuments are discoverable and the objections invalid b/cevidence re damages is being sought. This discovery shouldhave been produced in March. Two attempted meet andconfers have not resulted in production. Trial date is loomingand no discovery has been produced.The documents re damages suffered by the Tesoro Defendantand responsive to these requests are excluded fromintroduction at trial.Monetary sanctions are also imposed in the amount of $1155(7 hrs x $165/hr. = $1155) against the Tesoro Def.s andcounsel and in favor of Coastal Concrete payable on or beforeJuly 31, 2013.Joinder requests are all granted.Evidentiary sanctions are awarded to each joined Cross-Def. Monetary sanctions as to these moving parties aredenied.

10 11-496293McKinstry vs.Accenture, Inc.11. Trial Setting Conference1. Def., Accenture, Inc., Motion to Compel Further Responses toRequest for Production of Documents and to CompelProduction --- Granted; Plt. has not filed a motionCCP2031.300(a) and only asks for relief in the opposition whichadmits not verifying the response which were made.Those responses were ambiguous in stating the Plt. had no“non-privileged” documents which were responsive.Plt. is to provide substantive and complete responses to Set 4without objection and produce the documents on or before July25, 2013.11 11-516101Glavinovich vs. Meka 1. Def., Naqvi, Motion for Entry of Judgment and for AttorneyFees and Costs awards in favor of Def., Naqvi --- Seerulings from last week posted as final ruling.2. Def., Meka, Motion for Attorney Fees --- Continued fromlast week. Parties once again request continuance of thismotion to facilitate their settlement discussions.Motion #2 continued to August 16, 2013 at 10:30AM.

LAW AND MOTION PROCEDURES FOR DEPT. CX102THE FOLLOWING ARE THE LAW AND MOTION PROCEDURES AND POLICIESFOR DEPT. CX102OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 3:00 PM the Thursday prior to the scheduledFriday hearing. If your Internet service is not available you may contact the clerk in Dept. CX102 (657-622-5302) for the ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPAREAN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF APARTY OR THE CASE.APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5302) to notify thecourt that all parties are submitting on the tentative and no appearance will be necessary. The tentativewill then become the final ruling.If no one appears at the hearing the tentative will be the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion.Argument will normally be limited to facts, law and argument not already submitted in the written Points &Authorities.NOTICE TO COUNSEL:Upon filing a motion, moving party shall mail a copy of this notice to opposing counsel. If opposingcounsel appears unnecessarily because of moving party’s failure to give notice of the above procedures,sanctions may be imposed.TENTATIVE RULINGS ON LAW & MOTION MATTERSDate: Friday, July 19, 2013# Case Name Tentative1 JCCP 4581Aldo US Wage andHour Cases1. Plt., Santos, Motion for Final Approval of Class ActionSettlement and Related Relief ---1) Notice of this motion is insufficient. The motion did notgive the required 28 days notice of the hearing date. CRC3.764(c)(1)Nor did it meet the notice requirements of CCP 1005(b).(16 court days plus 5 additional calendar days notice) Finally, no notice was sent to the attorney of record forKenemixay, Miriam Schimmel of the Initiative Legal Group.2) Moving papers inconsistent state that there are 6 opt-outsand later there are 8 opt-outs. Need to amend to show thetrue number.3) Has the administrator, Simpluris, conducted a skip tracesearch for the addresses of all current Class Membersaddresses. (only a 17% response)4) Administrator fee is now alleged to be $43,900 after statingin the preliminary approval that it would be %35,000? Noinvoice is attached from Simpluris and no explanation isprovided.5) Have the 16 defective claims been resolved by a cure ofthe defect or are there additional class claimants

participating in the distribution.6) Final report hearing date is set for ________________.FINAL RULING on Motion #1:1) Notice of this motion is insufficient and needs to be given toKenemixay counsel also along with all others to whom notice isrequired.2) 2) Need to amend the Notice to reflect $45,000 ofAdministrative fees3) Need to amend the number of defective claims because thatnumber has changed due to the resolution of the late claims.Does this change the final hearing date?2. Plt., Santos, Motion for Attorneys Fees and Costs andRepresentative Enhancement ---1) Attorneys Fees: Approved in the amount of$366,666.67. The Hawkins firm has provided sufficientinformation to support this award.2) Costs: Approved in the amount of $11,057.70.3) Enhancement; approved in the amount of $1,500 for theclass representative Santos. This application fails to specifythe number of hours Santos worked on the case.4) Administrative fee: need explanation for the $8,900increase over the amount sought in Preliminary approvel.FINAL RULING on Motion #2:Tentative ruling is final.3. Def., ALDO U. S., Inc., Motion for Monetary Sanctions ---Denied; Too early in the litigation to determine whether allthe class claims lack merit. There is no authority for anadditional $10,000 as a deterent measure.Cross request for sanctions for a frivolous motion are alsodenied; Denemixay was not an appropriate class rep.FINAL RULING on Motion #3:

Tentative ruling is final.2 12-604001Golovoy vs. Ceradyne,Inc.c/w 12-604931Kumar vs. Ceradyne,Inc.1. Plt., Golovoy and Kumar, Motion for Final Approval of Class ActionSettlement ---1) Contrary to the moving papers there apparently is at least oneobjection to the settlement filed by shareholder Bluhm. Arethere any additional objections filed?2) Why would it be “unfair” for the objector,Mr Bluhm, to opt-out? What facts exist that supportthe claim that Bluhm doesn’t understand merger litigation?3) Why did the “Notice to Class” contain language at Paragraph34(d), concerning the issuance of an injunction andpermanently bar language? No preliminary injunction has everbeen granted. The Court specifically would not approve of thislanguage in a class settlement.4) What is the “substantial benefit” received by the class in thiscase? The merger was completed 2 weeks after this case wasfiled.5) To make certain, Have the two Delaware cases been dismissedat this time?ADDITIONAL QUESTION:Was the negotiated change in the 14D disclosure mailed to allshareholders in November before closing? If so, how? If not, how didthe shareholders receive notice of the changes. Please e-file aresponse with the court by Monday, July 22, 2013.3 09-292482Newton vs. Banuelos 1. Plt., Newton, Motion to Charge the LLC Member Interest ---Off Calendar. Judgment Debtor has filed bankruptcy.Matter is set for a bankruptcy review hearing Juanuary 3,2014, at 8:30AM.4 11-512328Schulte vs. Jon BecCare, Inc.1. Plt., Schulte, Reynolds, Reynolds and Diaz, Motion for FinalApproval of Class Action Settlement and Related Relief ---1) The final approval papers indicate that the class period runsthrough final approval. Notice to the Class stated the classperiod ran thru the date of preliminary approval.2) CRC 3.769(h) does not authorize “dismissal” of the

case. Judgment is to be entered. The preliminary approvalwas corrected but now the final approval reflects dismissalof the case. (see Page 3)3) Line out The language at the bottom of Page 6stating: “Class members owe defense attorney feesif they violate the injunction, here and file a separateaction asserting claims that have beenreleased.” There is no authority for this. The court is notissuing an injunction.4) Attorney fees in the amount of$216,666.66 are approved.5) Attorney costs in the amount of $6,109.95 areapproved. “After-mediation dinner” cost of $427.68 isdisallowed.6) Enhancement to each named classrepresentative: approved in the amount of $1,500 perrepresentative (total $6,000) No information/declaration isprovided to support the requested amount.7) Administrator fee: Approved in the requested amount of$15,000.Final report hearing is set for September 27, 2013, at 10:30AM.FINAL RULING:5) Enhancement to each named class representative : approvedin the amount of $2500.The remainder of the tentative ruling is final.6 08-105679McClaire vs. JRInvestmentProperties, Inc.1. PLt., McClaire, Motion to Set Aside Dismissal --- This motionis continued to September 13, 2013, to allow Plt. to servewritten notice and copies of this motion to the Defs., JRInvestment Properties, Inc. and John Scafani, at their lastknown addresses along with notice to their attorney of record.CCP 473(d).2. Plt., McClaire, Motion for Entry of Judgment --- Same rulingas in Motion #1 above.

FINAL RULING:8 10-396748Vazquez vs. MarriottInternational, Inc.The court vacates the granting of this motion.Plt. has shown the court the Proof of Service on the Def.Attorney. CCP 473(d) requires service on the Party, that meansservice at the last known address of the “Party” not just theattorney. Motion Continued to August 23, 2013 at 10:30AM.1. Plt., Vaszuez, Motion for Preliminary Approval of AmendedClass Action Settlement and Related Relief ---1) The release language of the Amended SettlementAgreement and the Proposed Notice to the Class still statethat the release of the subject claims will be “thru the‘final approval’ hearing. This can’t be. The class periodidentified ends October 1, 2012. Notice is sent concerningthat period and could not identify the Final Approvaldate. Class members could be excluded be this if they werehired after October 1, 2012, without getting notice or theability to opt-out. (See pages 18 and 16 of the revisedSecond Amended Joint Stip of Settlement and the “Noticeto Class.”)2) The Amended Joint Settlement of Class Action at paragraph20 on page 11 provides for objections to be served on the“parties counsel.” This should reflect that objections are tobe sent to the Administrator.3) The reference to “exclusion of Class members who havealready “waived or released” their claims should beremoved since there are no Class Members in thiscategory. See page 15 – 16 of the Second Amended JointStipulation of Settlement.4) The December 6, 2013 date for final approval is fine but thedate must be filled in the Proposed Order.Preliminary Approval is continued to September 13, 2013,at 10:30 AM to complete the above corrections.3. Status Conference9 10-395360Hinsch vs. Emery 1. Def., Geo-Etka, Motion to Withdraw Answer ---Granted; The Answer filed by this Def. on October 7, 2011,is stricken. Default will be entered as to this named Def., Geo-Etka, Inc.Counsel Ms. Hutchins is to give written notice.2. Attorney, Hutchins, Motion to be Relieved as Attorney of

Record --- Granted; Counsel has complied with theapplicable Rules of Court and Statute. The Order will beeffective upon counsel filling with the court proof of service ofthis order upon the client and to include all future datescurrently set.3. Def., Thomas dba Coastal Concrete, Motion for Order toCompel Discovery or for Evidentiary Sanctions and forMonetary Sanctions and Joinder --- Granted; Theobjections asserted by Tesoro were filed late and arewaived. Even if the objections were not waived thedocuments are discoverable and the objections invalid b/cevidence re damages is being sought. This discovery shouldhave been produced in March. Two attempted meet andconfers have not resulted in production. Trial date is loomingand no discovery has been produced.The documents re damages suffered by the Tesoro Defendantand responsive to these requests are excluded fromintroduction at trial.Monetary sanctions are also imposed in the amount of $1155(7 hrs x $165/hr. = $1155) against the Tesoro Def.s andcounsel and in favor of Coastal Concrete payable on or beforeJuly 31, 2013.Joinder requests are all granted.Evidentiary sanctions are awarded to each joined Cross-Def. Monetary sanctions as to these moving parties aredenied.11. Trial Setting Conference

10 11-496293McKinstry vs.Accenture, Inc.1. Def., Accenture, Inc., Motion to Compel Further Responses toRequest for Production of Documents and to CompelProduction --- Granted; Plt. has not filed a motionCCP2031.300(a) and only asks for relief in the opposition whichadmits not verifying the response which were made.Those responses were ambiguous in stating the Plt. had no“non-privileged” documents which were responsive.Plt. is to provide substantive and complete responses to Set 4without objection and produce the documents on or before July25, 2013.11 11-516101Glavinovich vs. Meka 1. Def., Naqvi, Motion for Entry of Judgment and for AttorneyFees and Costs awards in favor of Def., Naqvi --- Seerulings from last week posted as final ruling.2. Def., Meka, Motion for Attorney Fees --- Continued fromlast week. Parties once again request continuance of thismotion to facilitate their settlement discussions.Motion #2 continued to August 16, 2013 at 10:30AM.

LAW AND MOTION PROCEDURES FOR DEPT. CX102THE FOLLOWING ARE THE LAW AND MOTION PROCEDURES AND POLICIESFOR DEPT. CX102OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 3:00 PM the Thursday prior to the scheduledFriday hearing. If your Internet service is not available you may contact the clerk in Dept. CX102 (657-622-5302) for the ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPAREAN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF APARTY OR THE CASE.APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5302) to notify thecourt that all parties are submitting on the tentative and no appearance will be necessary. The tentativewill then become the final ruling.If no one appears at the hearing the tentative will be the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion.Argument will normally be limited to facts, law and argument not already submitted in the written Points &Authorities.NOTICE TO COUNSEL:Upon filing a motion, moving party shall mail a copy of this notice to opposing counsel. If opposingcounsel appears unnecessarily because of moving party’s failure to give notice of the above procedures,sanctions may be imposed.TENTATIVE RULINGS ON LAW & MOTION MATTERSDate: Friday, July 19, 2013# Case Name Tentative1 JCCP 4581Aldo US Wage andHour Cases1. Plt., Santos, Motion for Final Approval of Class ActionSettlement and Related Relief ---1) Notice of this motion is insufficient. The motion did notgive the required 28 days notice of the hearing date. CRC3.764(c)(1)Nor did it meet the notice requirements of CCP 1005(b).(16 court days plus 5 additional calendar days notice) Finally, no notice was sent to the attorney of record forKenemixay, Miriam Schimmel of the Initiative Legal Group.2) Moving papers inconsistent state that there are 6 opt-outsand later there are 8 opt-outs. Need to amend to show thetrue number.3) Has the administrator, Simpluris, conducted a skip tracesearch for the addresses of all current Class Membersaddresses. (only a 17% response)4) Administrator fee is now alleged to be $43,900 after statingin the preliminary approval that it would be %35,000? Noinvoice is attached from Simpluris and no explanation isprovided.5) Have the 16 defective claims been resolved by a cure ofthe defect or are there additional class claimants

participating in the distribution.6) Final report hearing date is set for ________________.2. Plt., Santos, Motion for Attorneys Fees and Costs andRepresentative Enhancement ---1) Attorneys Fees: Approved in the amount of$366,666.67. The Hawkins firm has provided sufficientinformation to support this award.2) Costs: Approved in the amount of $11,057.70.3) Enhancement; approved in the amount of $1,500 for theclass representative Santos. This application fails to specifythe number of hours Santos worked on the case.4) Administrative fee: need explanation for the $8,900increase over the amount sought in Preliminary approvel.3. Def., ALDO U. S., Inc., Motion for Monetary Sanctions ---Denied; Too early in the litigation to determine whether allthe class claims lack merit. There is no authority for anadditional $10,000 as a deterent measure.Cross request for sanctions for a frivolous motion are alsodenied; Denemixay was not an appropriate class rep.2 12-604001Golovoy vs. Ceradyne,Inc.c/w 12-604931Kumar vs. Ceradyne,Inc.1. Plt., Golovoy and Kumar, Motion for Final Approval of Class ActionSettlement ---1) Contrary to the moving papers there apparently is at least oneobjection to the settlement filed by shareholder Bluhm. Arethere any additional objections filed?2) Why would it be “unfair” for the objector,Mr Bluhm, to opt-out? What facts exist that supportthe claim that Bluhm doesn’t understand merger litigation?3) Why did the “Notice to Class” contain language at Paragraph34(d), concerning the issuance of an injunction andpermanently bar language? No preliminary injunction has everbeen granted. The Court specifically would not approve of thislanguage in a class settlement.4) What is the “substantial benefit” received by the class in thiscase? The merger was completed 2 weeks after this case wasfiled.

5) To make certain, Have the two Delaware cases been dismissedat this time?ADDITIONAL QUESTION:Was the negotiated change in the 14D disclosure mailed to allshareholders in November before closing? If so, how? If not, how didthe shareholders receive notice of the changes. Please e-file aresponse with the court by Monday, July 22, 2013.3 09-292482Newton vs. Banuelos 1. Plt., Newton, Motion to Charge the LLC Member Interest ---Off Calendar. Judgment Debtor has filed bankruptcy.Matter is set for a bankruptcy review hearing Juanuary 3,2014, at 8:30AM.4 11-512328Schulte vs. Jon BecCare, Inc.1. Plt., Schulte, Reynolds, Reynolds and Diaz, Motion for FinalApproval of Class Action Settlement and Related Relief ---1) The final approval papers indicate that the class period runsthrough final approval. Notice to the Class stated the classperiod ran thru the date of preliminary approval.2) CRC 3.769(h) does not authorize “dismissal” of thecase. Judgment is to be entered. The preliminary approvalwas corrected but now the final approval reflects dismissalof the case. (see Page 3)3) Line out The language at the bottom of Page 6stating: “Class members owe defense attorney feesif they violate the injunction, here and file a separateaction asserting claims that have beenreleased.” There is no authority for this. The court is notissuing an injunction.4) Attorney fees in the amount of$216,666.66 are approved.5) Attorney costs in the amount of $6,109.95 areapproved. “After-mediation dinner” cost of $427.68 isdisallowed.6) Enhancement to each named classrepresentative: approved in the amount of $1,500 perrepresentative (total $6,000) No information/declaration isprovided to support the requested amount.

7) Administrator fee: Approved in the requested amount of$15,000.Final report hearing is set for September 27, 2013, at 10:30AM.FINAL RULING:6. Enhancement to each named class representative : approvedin the amount of $2500.The remainder of the tentative ruling is final.Final Ruling:Enhancement to each named class representation: Approved in theamount of $2,500 per representative (Total $10,000).6 08-105679McClaire vs. JRInvestmentProperties, Inc.1. PLt., McClaire, Motion to Set Aside Dismissal --- This motionis continued to September 13, 2013, to allow Plt. to servewritten notice and copies of this motion to the Defs., JRInvestment Properties, Inc. and John Scafani, at their lastknown addresses along with notice to their attorney of record.CCP 473(d).2. Plt., McClaire, Motion for Entry of Judgment --- Same rulingas in Motion #1 above.8 10-396748Vazquez vs. MarriottInternational, Inc.1. Plt., Vaszuez, Motion for Preliminary Approval of AmendedClass Action Settlement and Related Relief ---1) The release language of the Amended SettlementAgreement and the Proposed Notice to the Class still statethat the release of the subject claims will be “thru the‘final approval’ hearing. This can’t be. The class periodidentified ends October 1, 2012. Notice is sent concerningthat period and could not identify the Final Approvaldate. Class members could be excluded be this if they werehired after October 1, 2012, without getting notice or theability to opt-out. (See pages 18 and 16 of the revisedSecond Amended Joint Stip of Settlement and the “Noticeto Class.”)2) The Amended Joint Settlement of Class Action at paragraph20 on page 11 provides for objections to be served on the“parties counsel.” This should reflect that objections are tobe sent to the Administrator.3) The reference to “exclusion of Class members who havealready “waived or released” their claims should beremoved since there are no Class Members in this

category. See page 15 – 16 of the Second Amended JointStipulation of Settlement.4) The December 6, 2013 date for final approval is fine but thedate must be filled in the Proposed Order.Preliminary Approval is continued to September 13, 2013,at 10:30 AM to complete the above corrections.FINAL RULING:The Amended settlement proposes to “release” defendantfrom all claims during through Final Approval. This releasehas class members giving up their claims, if any, from theInitial preliminary approval until the Final approval. This isa release of future claims which the class members wouldnot know about.Additionally, the Opt-out opportunity afforded to classmembers only has significance as to past labor codeviolation claims. It makes no sense for class members torelease unknown future claims occurring after the opt-outdeadline.The class period establishes the cutoff for the claims. Classmembers can decide to waive claims through preliminaryapproval because they can evaluate what hasoccurred. But they cannot evaluate what will occur.3. Status Conference9 10-395360Hinsch vs. Emery 1. Def., Geo-Etka, Motion to Withdraw Answer ---Granted; The Answer filed by this Def. on October 7, 2011,is stricken. Default will be entered as to this named Def., Geo-Etka, Inc.Counsel Ms. Hutchins is to give written notice.2. Attorney, Hutchins, Motion to be Relieved as Attorney ofRecord --- Granted; Counsel has complied with theapplicable Rules of Court and Statute. The Order will beeffective upon counsel filling with the court proof of service ofthis order upon the client and to include all future datescurrently set.3. Def., Thomas dba Coastal Concrete, Motion for Order toCompel Discovery or for Evidentiary Sanctions and for

Monetary Sanctions and Joinder --- Granted; Theobjections asserted by Tesoro were filed late and arewaived. Even if the objections were not waived thedocuments are discoverable and the objections invalid b/cevidence re damages is being sought. This discovery shouldhave been produced in March. Two attempted meet andconfers have not resulted in production. Trial date is loomingand no discovery has been produced.The documents re damages suffered by the Tesoro Defendantand responsive to these requests are excluded fromintroduction at trial.Monetary sanctions are also imposed in the amount of $1155(7 hrs x $165/hr. = $1155) against the Tesoro Def.s andcounsel and in favor of Coastal Concrete payable on or beforeJuly 31, 2013.Joinder requests are all granted.Evidentiary sanctions are awarded to each joined Cross-Def. Monetary sanctions as to these moving parties aredenied.10 11-496293McKinstry vs.Accenture, Inc.11. Trial Setting Conference1. Def., Accenture, Inc., Motion to Compel Further Responses toRequest for Production of Documents and to CompelProduction --- Granted; Plt. has not filed a motionCCP2031.300(a) and only asks for relief in the opposition whichadmits not verifying the response which were made.Those responses were ambiguous in stating the Plt. had no“non-privileged” documents which were responsive.

Plt. is to provide substantive and complete responses to Set 4without objection and produce the documents on or before July25, 2013.FINAL RULING:Class counsel indicated that he would be dismissing the classclaims. He must file a declaration in support of this “classdismissal.” CRC 3.77011 11-516101Glavinovich vs. Meka 1. Def., Naqvi, Motion for Entry of Judgment and for AttorneyFees and Costs awards in favor of Def., Naqvi --- Seerulings from last week posted as final ruling.2. Def., Meka, Motion for Attorney Fees --- Continued fromlast week. Parties once again request continuance of thismotion to facilitate their settlement discussions.Motion #2 continued to August 16, 2013 at 10:30AM.

LAW AND MOTION PROCEDURES FOR DEPT. CX102THE FOLLOWING ARE THE LAW AND MOTION PROCEDURES AND POLICIESFOR DEPT. CX102OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 3:00 PM the Thursday prior to the scheduled Fridayhearing. If your Internet service is not available you may contact the clerk in Dept. CX102 (657-622-5302) forthe ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPARE ANORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY ORTHE CASE.APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5302) to notify the courtthat all parties are submitting on the tentative and no appearance will be necessary. The tentative will thenbecome the final ruling.If no one appears at the hearing the tentative will be the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion.Argument will normally be limited to facts, law and argument not already submitted in the written Points &Authorities.NOTICE TO COUNSEL:Upon filing a motion, moving party shall mail a copy of this notice to opposing counsel. If opposing counselappears unnecessarily because of moving party’s failure to give notice of the above procedures, sanctions may beimposed.TENTATIVE RULINGS ON LAW & MOTION MATTERSDate: Friday, July 19, 2013# Case Name Tentative1 JCCP 4581Aldo US Wage and HourCases1. Plt., Santos, Motion for Final Approval of Class Action Settlementand Related Relief ---1) Notice of this motion is insufficient. The motion did not give therequired 28 days notice of the hearing date. CRC 3.764(c)(1)Nor did it meet the notice requirements of CCP 1005(b). (16court days plus 5 additional calendar days notice ) Finally, nonotice was sent to the attorney of record for Kenemixay, MiriamSchimmel of the Initiative Legal Group.2) Moving papers inconsistent state that there are 6 opt-outs andlater there are 8 opt-outs. Need to amend to show the truenumber.3) Has the administrator, Simpluris, conducted a skip trace searchfor the addresses of all current Class Members addresses. (onlya 17% response)4) Administrator fee is now alleged to be $43,900 after stating inthe preliminary approval that it would be %35,000? No invoiceis attached from Simpluris and no explanation is provided.5) Have the 16 defective claims been resolved by a cure of thedefect or are there additional class claimants participating in thedistribution.6) Final report hearing date is set for ________________.

2. Plt., Santos, Motion for Attorneys Fees and Costs andRepresentative Enhancement ---1) Attorneys Fees: Approved in the amount of $366,666.67. TheHawkins firm has provided sufficient information to support thisaward.2) Costs: Approved in the amount of $11,057.70.3) Enhancement; approved in the amount of $1,500 for the classrepresentative Santos. This application fails to specify thenumber of hours Santos worked on the case.4) Administrative fee: need explanation for the $8,900 increaseover the amount sought in Preliminary approvel.3. Def., ALDO U. S., Inc., Motion for Monetary Sanctions ---Denied; Too early in the litigation to determine whether all theclass claims lack merit. There is no authority for an additional$10,000 as a deterent measure.Cross request for sanctions for a frivolous motion are alsodenied; Denemixay was not an appropriate class rep.2 12-604001Golovoy vs. Ceradyne,Inc.c/w 12-604931Kumar vs. Ceradyne,Inc.1. Plt., Golovoy and Kumar, Motion for Final Approval of Class ActionSettlement ---1) Contrary to the moving papers there apparently is at least oneobjection to the settlement filed by shareholder Bluhm. Are thereany additional objections filed?2) Why would it be “unfair” for the objector, Mr Bluhm,to opt-out? What facts exist that support the claim that Bluhm doesn’tunderstand merger litigation?3) Why did the “Notice to Class” contain language at Paragraph 34(d),concerning the issuance of an injunction and permanently barlanguage? No preliminary injunction has ever been granted. TheCourt specifically would not approve of this language in a classsettlement.4) What is the “substantial benefit” received by the class in thiscase? The merger was completed 2 weeks after this case was filed.5) To make certain, Have the two Delaware cases been dismissed atthis time?

ADDITIONAL QUESTION:Was the negotiated change in the 14D disclosure mailed to all shareholdersin November before closing? If so, how? If not, how did the shareholdersreceive notice of the changes. Please e-file a response with the court byMonday, July 22, 2013.3 09-292482Newton vs. Banuelos 1. Plt., Newton, Motion to Charge the LLC Member Interest --- OffCalendar. Judgment Debtor has filed bankruptcy.Matter is set for a bankruptcy review hearing Juanuary 3, 2014, at8:30AM.4 11-512328Schulte vs. Jon BecCare, Inc.1. Plt., Schulte, Reynolds, Reynolds and Diaz, Motion for FinalApproval of Class Action Settlement and Related Relief ---1) The final approval papers indicate that the class period runsthrough final approval. Notice to the Class stated the classperiod ran thru the date of preliminary approval.2) CRC 3.769(h) does not authorize “dismissal” of thecase. Judgment is to be entered. The preliminary approval wascorrected but now the final approval reflects dismissal of thecase. (see Page 3)3) Line out The language at the bottom of Page 6 stating: “Classmembers owe defense attorney fees if they violate theinjunction, here and file a separate action assertingclaims that have been released.” There is no authority forthis. The court is not issuing an injunction.4) Attorney fees in the amount of$216,666.66 are approved.5) Attorney costs in the amount of $6,109.95 areapproved. “After-mediation dinner” cost of $427.68 isdisallowed.6) Enhancement to each named class representative: approved inthe amount of $1,500 per representative (total $6,000) Noinformation/declaration is provided to support the requestedamount.7) Administrator fee: Approved in the requested amount of$15,000.

Final report hearing is set for September 27, 2013, at 10:30AM.FINAL RULING:6. Enhancement to each named class representative : approved in theamount of $2500.The remainder of the tentative ruling is final.Final Ruling:Enhancement to each named class representation: Approved in theamount of $2,500 per representative (Total $10,000).6 08-105679McClaire vs. JRInvestment Properties,Inc.1. PLt., McClaire, Motion to Set Aside Dismissal --- This motion iscontinued to September 13, 2013, to allow Plt. to serve writtennotice and copies of this motion to the Defs., JR InvestmentProperties, Inc. and John Scafani, at their last known addressesalong with notice to their attorney of record. CCP 473(d).2. Plt., McClaire, Motion for Entry of Judgment --- Same ruling as inMotion #1 above.8 10-396748Vazquez vs. MarriottInternational, Inc.1. Plt., Vaszuez, Motion for Preliminary Approval of Amended ClassAction Settlement and Related Relief ---1) The release language of the Amended Settlement Agreementand the Proposed Notice to the Class still state that the releaseof the subject claims will be “thru the ‘final approval’hearing. This can’t be. The class period identified endsOctober 1, 2012. Notice is sent concerning that period andcould not identify the Final Approval date. Class members couldbe excluded be this if they were hired after October 1, 2012,without getting notice or the ability to opt-out. (See pages 18and 16 of the revised Second Amended Joint Stip of Settlementand the “Notice to Class.”)2) The Amended Joint Settlement of Class Action at paragraph 20on page 11 provides for objections to be served on the “partiescounsel.” This should reflect that objections are to be sent tothe Administrator.3) The reference to “exclusion of Class members who have already“waived or released” their claims should be removed since thereare no Class Members in this category. See page 15 – 16 of theSecond Amended Joint Stipulation of Settlement.4) The December 6, 2013 date for final approval is fine but the datemust be filled in the Proposed Order.

Preliminary Approval is continued to September 13, 2013, at10:30 AM to complete the above corrections.FINAL RULING:The Amended settlement proposes to “release” defendant fromall claims during through Final Approval. This release has classmembers giving up their claims, if any, from the Initialpreliminary approval until the Final approval. This is a releaseof future claims which the class members would not know about.Additionally, the Opt-out opportunity afforded to class membersonly has significance as to past labor code violation claims. Itmakes no sense for class members to release unknown futureclaims occurring after the opt-out deadline.The class period establishes the cutoff for the claims. Classmembers can decide to waive claims through preliminaryapproval because they can evaluate what has occurred. Butthey cannot evaluate what will occur.3. Status Conference9 10-395360Hinsch vs. Emery 1. Def., Geo-Etka, Motion to Withdraw Answer --- Granted; TheAnswer filed by this Def. on October 7, 2011, is stricken. Defaultwill be entered as to this named Def., Geo-Etka, Inc.Counsel Ms. Hutchins is to give written notice.2. Attorney, Hutchins, Motion to be Relieved as Attorney of Record ---Granted; Counsel has complied with the applicable Rules of Courtand Statute. The Order will be effective upon counsel filling withthe court proof of service of this order upon the client and to includeall future dates currently set.3. Def., Thomas dba Coastal Concrete, Motion for Order to CompelDiscovery or for Evidentiary Sanctions and for Monetary Sanctionsand Joinder --- Granted; The objections asserted by Tesorowere filed late and are waived. Even if the objections were notwaived the documents are discoverable and the objections invalidb/c evidence re damages is being sought. This discovery shouldhave been produced in March. Two attempted meet and confershave not resulted in production. Trial date is looming and nodiscovery has been produced.

The documents re damages suffered by the Tesoro Defendant andresponsive to these requests are excluded from introduction attrial.Monetary sanctions are also imposed in the amount of $1155 (7 hrsx $165/hr. = $1155) against the Tesoro Def.s and counsel and infavor of Coastal Concrete payable on or before July 31, 2013.Joinder requests are all granted.Evidentiary sanctions are awarded to each joined Cross-Def. Monetary sanctions as to these moving parties are denied.10 11-496293McKinstry vs.Accenture, Inc.11. Trial Setting Conference1. Def., Accenture, Inc., Motion to Compel Further Responses toRequest for Production of Documents and to Compel Production ---Granted; Plt. has not filed a motion CCP2031.300(a) and onlyasks for relief in the opposition which admits not verifying theresponse which were made. Those responses were ambiguous instating the Plt. had no “non-privileged” documents which wereresponsive.Plt. is to provide substantive and complete responses to Set 4without objection and produce the documents on or before July 25,2013.FINAL RULING:Class counsel indicated that he would be dismissing the classclaims. He must file a declaration in support of this “class

dismissal.” CRC 3.77011 11-516101Glavinovich vs. Meka 1. Def., Naqvi, Motion for Entry of Judgment and for Attorney Feesand Costs awards in favor of Def., Naqvi --- See rulings fromlast week posted as final ruling.2. Def., Meka, Motion for Attorney Fees --- Continued from lastweek. Parties once again request continuance of this motion tofacilitate their settlement discussions.Motion #2 continued to August 16, 2013 at 10:30AM.

LAW AND MOTION PROCEDURES FOR DEPT. CX102THE FOLLOWING ARE THE LAW AND MOTION PROCEDURES AND POLICIESFOR DEPT. CX102OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 3:00 PM the Thursday prior to the scheduled Fridayhearing. If your Internet service is not available you may contact the clerk in Dept. CX102 (657-622-5302) for theruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPARE ANORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY ORTHE CASE.APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5302) to notify the court thatall parties are submitting on the tentative and no appearance will be necessary. The tentative will then becomethe final ruling.If no one appears at the hearing the tentative will be the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for the motion.Argument will normally be limited to facts, law and argument not already submitted in the written Points &Authorities.NOTICE TO COUNSEL:Upon filing a motion, moving party shall mail a copy of this notice to opposing counsel. If opposing counselappears unnecessarily because of moving party’s failure to give notice of the above procedures, sanctions may beimposed.TENTATIVE RULINGS ON LAW & MOTION MATTERSDate: Friday, August 23, 2013# Case Name Tentative1 11-528597Apria Healthcare, Inc.vs. Logility, Inc.1. Deft Logility, Inc.’s Motions (3) to compel are off calendar at requestof moving party.2. Plt., Apria Healthcare, Inc., Motion to Compel Further Responses toSpecial Rogs (Set 3) (Logility, Inc.) ---Denied:Procedurally; Motion appears to have been timely filed based onthe extension which were granted.Motion does not comply with CRC 3.1345(c) in that the separatestatement fails to address each discovery request separately.The joint reply fails to comply with CRC 2.104 by using type smallerthan 12 point.Substantively; The Rogs in question are overbroad and undulyburdensome in that they seek docs and information related to anycomplaint ever made to Logility.

The court also denies Plt. request for the court to order Def., Logility,to “stipulate to a protective order.” If Plt. wants to notice a motionto that effect they are free to do so but the court is not going to thisbased upon this motion.Def., Logility, Evidentiary Objections -- Overruled as to all.Sanctions are denied Def. has acted with substantial justification innot providing the discovery sought.NOTE:On November 2, 2012, Judge Colaw ordered that all futurediscovery motion were to be submitted to a Discovery Refereeper CCP 639 to be appointed per CCP 640. The Parties arehereby ordered to meet and confer as to who they would liketo act as the discovery referee. If the parties are unable toagree on one discovery referee each party should beprepared to submit the names of three neutrals and from thislist of six the court will select one to act in the capacity ofdiscovery referee.3. Plt., Apria Healthcare, Inc., Motion to Compel Further Responses toRequest for Production of Documents (Set 2) (Logility) ---Denied:Procedurally; The motion appears to be timely based on thenumerous extensions granted. However, the Separate Statementfails to comply with CRC 3.1345© by no addressing the requestsseparately and failing to set forth specific facts showing good causeto support the discovery sought by these request CCP2031.310(b)(1).See NOTE: above concerning the discovery referee.Substantively; The requests are too overbroad and undulyburdensome. No good cause is shown justifying the productionsought by these requests.Granted as to Requests #110-129; Def. has already indicatedthey will provide these documents. Production is to be made on orbefore September 19, 2013.Sanctions are denied as Def. has acted with substantial justification.

2 11-508831Domkus vs. Pag SantaAna B1, Inc.1. Plt., Domkus, Motion for Preliminary Approval of Class ActionSettlement --- Motion is continued to September 27, 2013, at10:30 AM for counsel to address the following concerns as to thesettlement;1) Objections should not be required to be presented to 3 differentlaw firms. One is sufficient and reduces the confusion.2) There is no estimate of the Administrators fee in either theSupplemental Declaration or the Website3) June 21, 2013 supplemental declarations identifies “Make a WishFoundation” as the Cy Pres recipient but no explanation as tohow or why they meet the criteria for a Cy Pres recipient.4) There needs to be a reasonable factual basis for the individualsettlements (not just counsel’s declaration that “he doesn’tbelieve” that the clients were picked off.) This is part of the “fair,adequate and reasonable conclusion which the court is requiredto reach as to the settlement as a whole.3 12-615719Entrade, Inc. vs. O’Neill 1. Def., Prouty, Motion to Quash Service of Summons on the FirstAmended Complaint --- By Stipulation of the Parties this motion iscontinued to November 22, 2013, at 10:30 AM.2. Def., Alan and Philip Milton, Motion to Quash Service of Summonsand First Amended Complaint ---Philip: Court grants a stay of the proceedings to allow Plt. toconduct limited jurisdictional discovery as to Def., Philip Milton,contacts with Calif. Stay until November 22, 2013, At 10:30AM.Alan: No tentative3. Plt., Entrade, Inc. and Nationwide Auction Finance, LLC, Motion forStay to Conduct Jurisdictional Discovery ---Philip: Grant stay of the action to November 22, 2013, at 10:30 AMfor Plt. to conduct limited discovery related to jurisdiciton;Alan: No tentative

Def. Evidentiary Objections to the Harvey declaration -- Denied asto all.Def. Request for Judicial Notice -- Denied; documents are notauthenticated.5 12-547490Mingione vs. Events andAdventures California,Inc.1. Plt., Mingione, Motion to Certify Class --- Granted; Plt. haspresented sufficient evidence to establish the necessary criteria forClass handling of this case. However, the class definition does notdefine the period of time covered by the class definition? Thedefinition should be modified to include a time period for the class.The additions to the Class definition proposed by the Def. do not addanything or clarify anything or save any time to the “ClassDefinition” at this time. Consent will remain as a defense but neednot be included in the definition. Nor does the proposed damagelimitation need to be included in the class definition.The additional time requested by the Def. from 30 days to 45 days tocomplete the “Class Notice” is reasonable and will be granted.6 10-390741Hernandez vs.Honeycutt Tear Off1. Plt., Hernandez, Motion to Consolidate --- Granted; The samewage and hour claims are the focus of each of theseactions. Although the class period is different the issues to bedecided are the same.Hernandez is designated the lead case under CRC 3.350(b). Allfuture filings are to be filed in that matter.The Status Conference (August 19, 2013) and the Motion to Certify(September 13, 2013) currently set in the Reyes case are offcalendar and Plt. is to re-notice the Motion to Certify for anappropriate date, after giving sufficient notice under the Hernandezcase.The Sept. 24, 2013, Status Conference in the Hernandez caseremains on – calendar. Counsel in the Hernandez matter is to givewritten notice.7 09-180140Rosenloev vs. 24Fitness USA, Inc. 1. Plt., Rosenloev, Marks and Suppa, Motion for PreliminaryApproval of Class Action Settlement and Related Relief ---A) Notice of this motion is inadequate under CRC 3.764(c)(1)which requires notice of 28 calendar days to all partiesfor provisional certification motions. This motion is bothPreliminary Approval and a Certification Motion. This motionwas filed and served on August 5 for a hearing date ofAugust 23. Presumably Def. will appear at the hearing and

waive any notice defect.B) The signature page of the motion filed with the court is notlegible with this page being nothing but a blackenedpage. Court needs this page to be filed in a legible form,showing all signatures.C) Is a Second Amended Complaint going to be filed as stated inthe Stipulation for Settlement on page 2?D) Mailing of all objections should only be required to be made toone location, instead of to ALL counsel as the currentStipulation of Settlement at page 9 requires. (Less confusionand more easily coordinated if only one source receivesnotice).E) Page 15 of the Stipulation of Settlement provides at page 15for all unclaimed distribution checks to “escheat” to the Stateof California. Please clarify whether you mean that thismeans that all unclaimed funds for each class claimant whodoes not cash his/her check will be turned over to the StateController as “unclaimed funds.”F) Clarify the PAGA penalty figure. Is it $15,000 with $11,250going to LWDA or $20,000 with $15,000 going to LWDA?G) Proposed “Notice to the Class” on page 3 mentions $75,000as “Administrator Cost” but the moving papers emphasizethat this has been reduced to $72,000. Which figure iscorrect. Make sure the “Notice to Class” is correct.H) The “Proposed Notice to Class” must clearly explain that thedistribution will be treated as “50% wages” and “50%interest/penalties” for income tax purposes with the ClassMember responsible for any taxes on these amounts andthey should plan accordingly.I) The “Claim Form” must be modified at page 2 that theAdministrator will make a “final , binding and non-appealable“ decision as to the workweek dispute” to include language“…unless Court determination on the topic is sought.”J) Provide a brief description of the types of costs that Plt.counsel has incurred which make up the $50,000 requested.K) ALL Final Approval papers are to be filed at least 16 calendardays prior to the “Final Approval Hearing” date which will beselected at the Preliminary Approval.L) Fill in all deadline dates and blanks in the Proposed Order andthe ”Notice to Class.”This motion is continued to September 27, 2013, at 10:30 AM for all theabove corrections to be made to the documents. If made the preliminaryapproval will be granted and provisional class certification granted.

9 10-421279Irvine ApartmentCommunities LP vs.Western NationalConstruction1. Def. Zastrow Construction, Inc.’s Motion to Compel Arbitration is offcalendar. Stipulation and Order signed 08/20/2013.2.2. Def. and Cross-Complainant, Western National Construction’s,Supplemental Petition to Compel Arbitration --- Granted as to1. R.E.M. Concepts dba ABC Window Co., Inc.,2. Jet Electro Systems, Inc., dba Alhambra Sheet Metal3. AMPAM Parks Mechanical Inc.,4. AMPAM LDI Mechanical Inc.,5. Cal Pac Painting and Coatings, Inc.,6. Davey Roofing7., Silverwood Landscape Construction, Inc.,8. Touch Up, Inc. dba T&R Painting and Drywall9. Valley Construction Company dba Batman Construction; Each of theabove referenced parties hasexecuted a valid contract with Def./Cross-Complainant, Western National,containing an enforceable arbitration clause. No opposition has been filedby any of the above referenced Cross-Def.s.10 12-552236Cooper vs.EastWestProto, Inc.1. Plt., Cooper and Magana, Motion for Final Approval of Class ActionSettlement ---Attorney Fees: Moving papers fail to attach a detailed hourlybreakdown of the hours spent by each counsel which is required forthe court to conduct a cross-check analysis per Lelao vs. Sup.Court. The aggregate totals of each counsel is not sufficient. Thetotal fees requested is reasonable but the hourly breakdown isneeded.Attorney Costs: The court is deducting $25.91 for “magazinepurchases” and $143.92 for Half the cost of the “Coolride limo” b/cnot reasonable. Total Costs award = $15,244.61.Enhancement: Individual claimants provided no declaration re totalhours spent. The court awards $2,000 per Class Rep ($4,000 total).Administrator Fee: $14,988 is awarded to the Administrator persupplemental declaration.Final Report hearing date is set for September 27, 2013, at10:30AM.

Plt., Cooper and Magana, Request for Judicial Notice of thePreliminary Approval Ruling -- Granted as to the existence of theOrder but not the hearsay contained therein.11 10-395360Hinsch vs. Emery 1.Def., Crown Fire Protection, Motion for Good Faith SettlementDetermination --- Granted; The signed settlement agreementverifying the agreemnt was lodged with the court on August 19,2013, and it appears to meet the Tech-Bilt factors for good faithdetermination. No indication of collusion appears.

LAW AND MOTION PROCEDURES FOR DEPT. CX102THE FOLLOWING ARE THE LAW AND MOTION PROCEDURES AND POLICIESFOR DEPT. CX102OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 3:00 PM the Thursday prior to the scheduled Fridayhearing. If your Internet service is not available you may contact the clerk in Dept. CX102 (657-622-5302) forthe ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPARE ANORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY ORTHE CASE.APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5302) to notify the courtthat all parties are submitting on the tentative and no appearance will be necessary. The tentative will thenbecome the final ruling.If no one appears at the hearing the tentative will be the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion.Argument will normally be limited to facts, law and argument not already submitted in the written Points &Authorities.NOTICE TO COUNSEL:Upon filing a motion, moving party shall mail a copy of this notice to opposing counsel. If opposing counselappears unnecessarily because of moving party’s failure to give notice of the above procedures, sanctions maybe imposed.TENTATIVE RULINGS ON LAW & MOTION MATTERSDate: Friday, August 23, 2013# Case Name Tentative1 11-528597Apria Healthcare, Inc.vs. Logility, Inc.1. Deft Logility, Inc.’s Motions (3) to compel are off calendar atrequest of moving party.2. Plt., Apria Healthcare, Inc., Motion to Compel Further Responsesto Special Rogs (Set 3) (Logility, Inc.) ---Denied:Procedurally; Motion appears to have been timely filed based onthe extension which were granted.Motion does not comply with CRC 3.1345(c) in that the separatestatement fails to address each discovery request separately.The joint reply fails to comply with CRC 2.104 by using typesmaller than 12 point.Substantively; The Rogs in question are overbroad and undulyburdensome in that they seek docs and information related to anycomplaint ever made to Logility.

The court also denies Plt. request for the court to order Def.,Logility, to “stipulate to a protective order.” If Plt. wants to noticea motion to that effect they are free to do so but the court is notgoing to this based upon this motion.Def., Logility, Evidentiary Objections -- Overruled as to all.Sanctions are denied Def. has acted with substantial justificationin not providing the discovery sought.NOTE:On November 2, 2012, Judge Colaw ordered that all futurediscovery motion were to be submitted to a DiscoveryReferee per CCP 639 to be appointed per CCP 640. TheParties are hereby ordered to meet and confer as to whothey would like to act as the discovery referee. If theparties are unable to agree on one discovery referee eachparty should be prepared to submit the names of threeneutrals and from this list of six the court will select one toact in the capacity of discovery referee.3. Plt., Apria Healthcare, Inc., Motion to Compel Further Responsesto Request for Production of Documents (Set 2) (Logility) ---Denied:Procedurally; The motion appears to be timely based on thenumerous extensions granted. However, the Separate Statementfails to comply with CRC 3.1345© by no addressing the requestsseparately and failing to set forth specific facts showing goodcause to support the discovery sought by these request CCP2031.310(b)(1).See NOTE: above concerning the discovery referee.Substantively; These requests are too overbroad and undulyburdensome. No good cause is shown justifying the productionsought by these requests.Granted as to Requests #110-129; Def. has already indicatedthey will provide these documents. Production is to be made onor before September 19, 2013.Sanctions are denied as Def. has acted with substantialjustification.

FINAL RULING:Tentative ruling is final.2 11-508831Domkus vs. Pag SantaAna B1, Inc.1. Plt., Domkus, Motion for Preliminary Approval of Class ActionSettlement --- Motion is continued to September 27, 2013, at10:30 AM for counsel to address the following concerns as to thesettlement;1) Objections should not be required to be presented to 3 differentlaw firms. One is sufficient and reduces the confusion.2) There is no estimate of the Administrators fee in either theSupplemental Declaration or the Website3) June 21, 2013 supplemental declarations identifies “Make aWish Foundation” as the Cy Pres recipient but no explanation asto how or why they meet the criteria for a Cy Pres recipient.4) There needs to be a reasonable factual basis for the individualsettlements (not just counsel’s declaration that “he doesn’tbelieve” that the clients were picked off.) This is part of the“fair, adequate and reasonable conclusion which the court isrequired to reach as to the settlement as a whole.3 12-615719Entrade, Inc. vs. O’Neill 1. Def., Prouty, Motion to Quash Service of Summons on the FirstAmended Complaint --- By Stipulation of the Parties this motionis continued to November 22, 2013, at 10:30 AM.2. Def., Alan and Philip Milton, Motion to Quash Service of Summonsand First Amended Complaint ---Philip: Court grants a stay of the proceedings to allow Plt. toconduct limited jurisdictional discovery as to Def., Philip Milton,contacts with Calif. Stay until November 22, 2013, At 10:30AM.Alan: No tentativeFINAL RULING:Alan: Granted; insufficient showing of facts which establishpotential jurisdiction over this Def.3. Plt., Entrade, Inc. and Nationwide Auction Finance, LLC, Motionfor Stay to Conduct Jurisdictional Discovery ---Philip: Grant stay of the action to November 22, 2013, at 10:30

AM for Plt. to conduct limited discovery related to jurisdiciton;Alan: No tentativeFINAL RULING:Motion as to Alan Milton is moot.Def. Evidentiary Objections to the Harvey declaration -- Denied asto all.Def. Request for Judicial Notice -- Denied; documents are notauthenticated.5 12-547490Mingione vs. Eventsand AdventuresCalifornia, Inc.1. Plt., Mingione, Motion to Certify Class --- Granted; Plt. haspresented sufficient evidence to establish the necessary criteria forClass handling of this case. However, the class definition does notdefine the period of time covered by the class definition? Thedefinition should be modified to include a time period for the class.The additions to the Class definition proposed by the Def. do notadd anything or clarify anything or save any time to the “ClassDefinition” at this time. Consent will remain as a defense but neednot be included in the definition. Nor does the proposed damagelimitation need to be included in the class definition.The additional time requested by the Def. from 30 days to 45 daysto complete the “Class Notice” is reasonable and will be granted.6 10-390741Hernandez vs.Honeycutt Tear Off1. Plt., Hernandez, Motion to Consolidate --- Granted; The samewage and hour claims are the focus of each of theseactions. Although the class period is different the issues to bedecided are the same.Hernandez is designated the lead case under CRC 3.350(b). Allfuture filings are to be filed in that matter.The Status Conference (August 19, 2013) and the Motion toCertify (September 13, 2013) currently set in the Reyes case areoff calendar and Plt. is to re-notice the Motion to Certify for anappropriate date, after giving sufficient notice under the Hernandezcase.The Sept. 24, 2013, Status Conference in the Hernandez caseremains on – calendar. Counsel in the Hernandez matter is to givewritten notice.

7 09-180140Rosenloev vs. 24Fitness USA, Inc. 1. Plt., Rosenloev, Marks and Suppa, Motion for PreliminaryApproval of Class Action Settlement and Related Relief ---A) Notice of this motion is inadequate under CRC 3.764(c)(1)which requires notice of 28 calendar days to all partiesfor provisional certification motions. This motion is bothPreliminary Approval and a Certification Motion. Thismotion was filed and served on August 5 for a hearing dateof August 23. Presumably Def. will appear at the hearingand waive any notice defect.B) The signature page of the motion filed with the court is notlegible with this page being nothing but a blackenedpage. Court needs this page to be filed in a legible form,showing all signatures.C) Is a Second Amended Complaint going to be filed as statedin the Stipulation for Settlement on page 2?D) Mailing of all objections should only be required to be madeto one location, instead of to ALL counsel as the currentStipulation of Settlement at page 9 requires. (Lessconfusion and more easily coordinated if only one sourcereceives notice).E) Page 15 of the Stipulation of Settlement provides at page15 for all unclaimed distribution checks to “escheat” to theState of California. Please clarify whether you mean thatthis means that all unclaimed funds for each class claimantwho does not cash his/her check will be turned over to theState Controller as “unclaimed funds.”F) Clarify the PAGA penalty figure. Is it $15,000 with $11,250going to LWDA or $20,000 with $15,000 going to LWDA?G) Proposed “Notice to the Class” on page 3 mentions $75,000as “Administrator Cost” but the moving papers emphasizethat this has been reduced to $72,000. Which figure iscorrect. Make sure the “Notice to Class” is correct.H) The “Proposed Notice to Class” must clearly explain thatthe distribution will be treated as “50% wages” and “50%interest/penalties” for income tax purposes with the ClassMember responsible for any taxes on these amounts andthey should plan accordingly.I) The “Claim Form” must be modified at page 2 that theAdministrator will make a “final , binding and nonappealable“ decision as to the workweek dispute” to includelanguage “…unless Court determination on the topic issought.”J) Provide a brief description of the types of costs that Plt.counsel has incurred which make up the $50,000 requested.

K) ALL Final Approval papers are to be filed at least 16calendar days prior to the “Final Approval Hearing” datewhich will be selected at the Preliminary Approval.L) Fill in all deadline dates and blanks in the Proposed Orderand the ”Notice to Class.”This motion is continued to September 27, 2013, at 10:30 AM for all theabove corrections to be made to the documents. If made the preliminaryapproval will be granted and provisional class certification granted.10 12-552236Cooper vs.EastWestProto, Inc.1. Plt., Cooper and Magana, Motion for Final Approval of Class ActionSettlement ---Attorney Fees: The August 19, 2013, Supplemental declarationof Atty. Qualls at Ex. A contains the detailed breakdown of theattorney time spent in this action. The requested fees of $108,000are awardedAttorney Costs: The court is deducting $25.91 for “magazinepurchases” Total Costs award = $15,388.53.Enhancement: Individual claimants provided no declaration retotal hours spent. The court awards $2,000 per Class Rep ($4,000total).Administrator Fee: $14,988 is awarded to the Administrator persupplemental declaration.Final Report hearing date is set for September 27, 2013, at10:30AM.Plt., Cooper and Magana, Request for Judicial Notice of thePreliminary Approval Ruling -- Granted as to the existence of theOrder but not the hearsay contained therein.11 10-395360Hinsch vs. Emery 1.Def., Crown Fire Protection, Motion for Good Faith SettlementDetermination --- Granted; The signed settlement agreementverifying the agreemnt was lodged with the court on August 19,2013, and it appears to meet the Tech-Bilt factors for good faithdetermination. No indication of collusion appears.

Rulings 1http://www.occourts.org/tentativerulings/sperkrulings.htmPage 1 of 39/5/2013LAW AND MOTION PROCEDURES FOR DEPT. CX102THE FOLLOWING ARE THE LAW AND MOTION PROCEDURES AND POLICIESFOR DEPT. CX102OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 3:00 PM the Thursday prior to thescheduled Friday hearing. If your Internet service is not available you may contact the clerk inDept. CX102 (657-622-5302) for the ruling.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY andPREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION ISDISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If counsel wish to submit on the tentative ruling please call the court clerk (657-622-5302) tonotify the court that all parties are submitting on the tentative and no appearance will benecessary. The tentative will then become the final ruling.If no one appears at the hearing the tentative will be the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the timescheduled for the motion.Argument will normally be limited to facts, law and argument not already submitted in thewritten Points & Authorities.NOTICE TO COUNSEL:Upon filing a motion, moving party shall mail a copy of this notice to opposing counsel. Ifopposing counsel appears unnecessarily because of moving party’s failure to give notice of theabove procedures, sanctions may be imposed.TENTATIVE RULINGS ON LAW & MOTION MATTERSDate: Friday, September 6, 2013# Case Name Tentative1 12-612702Off calendar at request of moving parties.Espinosa vs.Crowder2 12-593759Wu vs. GeneralNutrition1. Plt. Wu, Motion to Lift Class Discovery “Stay” ---CorporationRelated to13-648577Granted; This motion is unopposed. No Motion forSummary Judgment has been filed and not good causepresented for not filing. The discovery stay is lifted asto all class discovery.Def. has 30 days (Statutory time) from the hearing ofthis motion to respond to all pending class discovery.3 07CC01299Del Webb vs.Travelers1. Hearing on Federal’s Objections to the DiscoveryReferee, Sundvold, Recommendations ---Overruled; No protective order was issued as to thecompletion of the Deets deposition and questioning ofMr. Deets. The court overrules Federals objections tothe August 16, 2013, Federal objections to the Scopeof the remainder of the Deets deposition. Thecompletion of his depo is not confined to the questionsthat formed the basis of the writ procedure. Del Webbis entitled to complete their deposition of Mr. Deets

Rulings 1http://www.occourts.org/tentativerulings/sperkrulings.htmPage 2 of 39/5/2013who was designated the PMK. The court certainlydoes not have to advice counsel about what areas DelWebb may examine. Deets is to testify about what heknows as the PMK. Federal remains free to assertobjects when appropriate as to question that areduplicative or repetitive. Re-noticing the depo is formover substance. A sensible meet and confer willcertainly resolve the scope issue.2. Def., Federal, Objections to Discovery Referee,Sundvold, August 6, 2013 recommendations to grantDel Webb discovery motions re “Other claims” tocompel further responses to Special Rogs (Set 5),Requests for Production of Documents (Set 4)and theadditional PMK deposition testimony ---What discovery remains at issue re “other claims.”Is Del Webb expecting discovery in the severalcategories of claims mentioned. (i.e. “Convereddamages”,”property damages”, “burden of proofposition”, “invoice position.” Are they for auto policies,medical policies, homeowner’s policies or generalliability policies or just Construction defect claims?)Have the parties agreed upon a mutually acceptableprotocol related to the issues and discovery sought bythis proposed discovery?? Redaction of the names ofthe insureds names and addresses is not unreasonableand should certainly address any privacy issues.Privilege log would address the potential attorneyclient communication. Does the 25 claim file limitrelate to more than one class or category of claim?4 11-508831Domkus vs. PagSanta Ana B1, Inc.1. Plt., Domkus and Kuxhausen, Motion for PreliminaryApproval ---(A) Is there anything left to litigate in Domkus orKuxhausen since Kuxhausen has been previouslydismissed?(B) Is it the representation of counsel that the“Children’s Advocacy Institute” complies with CCP384(b)(C) What are the estimated damages sustained as tothe individual Plt.s(D) Is it Counsel’s opinion that the fraud claims wereunlikely to be certified and the the individual Plt.settlements grew out of their fraud claims?

Rulings 1http://www.occourts.org/tentativerulings/sperkrulings.htmPage 3 of 39/5/2013

5 10-396748Vazquez vs. MarriottInternational, Inc.ruling is without prejudice to any other type of claim, that Mr. Tran maydecide to pursue in a separate lawsuit, (after consultation with anattorney, or otherwise).Plaintiff’s Motion for Preliminary Approval and Status Conference:6/28/13 m.o. reflected that parties to address Court concerns, and submitproposed revised Order, by 7/12/13 – supplemental papers finally arrivedon 7/16/13?Still-remaining concerns, after review of the 7/16/13 supplementalpapers, are as follows:(1) unclear why ‘release’ lang. in amended settlement agreement, andrevised proposed ‘ntc to class’, all reflects a release of the subjectwage & hour claims thru date of ‘final approval’ hrg (when, in fact,the end of the ‘class period’ identified, here, is 10/1/12 – i.e. is noconsideration indicated for a release of potential and unknown futureclaims after 10/1/12? – release lang. appears unfairly overbroad, in thatregard) – new further revised ‘ntc to class’, with 7/16/13 supplpapers, continues to suffer from that glaring defect (said defect alsoreflected on page 18 of the further revised Second Amended Joint Stip. ofSettlement);(2) amended joint stipulation of class action settlement lang. is alsoout-dated in parag. 20 p on page 11 (requires service of any ‘objection’ on‘parties counsel’ – while new proposed ‘notice to class’ on page 9 requiresservice of any ‘objection’ only to the Admin. CPT Group, Inc?) – saiddefect remains in parag. 20 p of page 11 of the further revisedSecond Amended Joint Stip. of Settlement?;(3) ‘class description’ in parag. 7 of page 3 of the amended jointstipulation of class action settlement, and on pages 15-16, thereof,mention the ‘exclusion’ of Class Members who have already ‘waived orreleased’ their claims? – are there any? – need explanation – saidreference remains, on pages 15-16 of the further revised SecondAmended Joint Stip. of Settlement attached to 7/16/13 supplpapers – albeit said suppl papers explains there are no knownClass Members in that ‘category’;6 10-422317Brennan vs. U.S.Telepathic Corp(4) deadline dates and blanks in proposed Order, and proposed ‘noticeto class’, must be ‘filled in’ (proposed ‘Final Approval Hearing’ datementioned in moving papers, is 10/8/13?) – now 7/16/13 supplpapers propose a ‘final approval’ date of 12/6/13 – still no‘blanks’ filled in, in the revised proposed Order and further revised‘notice to class’?Plaintiff’s Motion for leave to file Second Amended Complaint:- This motion, by moving party plaintiff, for leave to file aSecond Amended Complaint, is granted per movingpapers, and the ‘Statement of Non-Opposition’ filed bydefendant, herein – with the Second Amended Complaintto be deemed filed/served on this 9/13/13 hrg date.Counsel for moving party plaintiff to provide written notice of thisruling to all parties/attorneys who have appeared in this action,forthwith, unless notice is waived, at hearing.A signed copy of the proposed Second Amended Complaint is to beprovided by plaintiff counsel at the hearing, and separately-filedby the Court Clerk (so that it clearly appears as a separate document, inCourt’s V-3 system).7 11-511808 Plaintiffs’ Motion for leave to file Second Amended Complaint:

Levanoff vs. SocalWings LLCoral argument invited to explain (1) the ‘auto-deduct’ or ‘dualrate’ theories (to confirm same ‘general set of facts’ are still involved),as well as (2) explanation of why ‘The Dragas Group’, as opposedto ‘Dragas Homes dba The Dragas Group’ is proposed to beincluded as a ‘new defendant’? (since defendants’’ ‘ntc of errata’ redeposition, purports to correctly identify said ‘new defendant’ as ‘DragasHomes dba The Dragas Group’, if Court understands correctly?), as wellas (3) why proposed new pleading contains allegations that werestricken without leave to amend, back on 6/26/12, herein, as wellas (4) why ‘The Dragas Group’ does not appear in the ‘casecaption’ of the proposed Second Amended Complaint?

# Case Name Tentative2 09-307667Perez vs. SpectrumCare Landscape1. Plt., Perez, Motion for Preliminary Approval of Class ActionSettlement and Related Relief ---Prior concerns raised by the court have been addressed, butfor the following:A) Enhancements and Attorney’s Fees should not be paid up frontat the beginning of the disbursement. They should be paidafter all other claims and expenses are paid. All class actionsare handled on a contingency. This is no reason to acceleratefee payments in this case. It will only increase Admin. Feesnegligibly, if at all.B) It appears that the installment payment money will be held inan interest bearing accountWhat do the parties consider a fair disbursement schedule for theattorney fees?Continue the motion until October 4 for resolution of these time lines.3 12-613462Slyman vs. FCF Agency 1. Def., FCF, Demurrer to the First Amended Complaint ---Overruled; use of a nickname or alias is not the proper subject ofjudicial notice. It is not a “fact” of such generalized knowledge oruniversally known that it cannot be the subject of disputeParagraphs 11, references each named def. “ignored the ‘ceaseand desist’ letter, 12 and 14 reference “defs” and “def’s” whileparagraph 13 and 15 at least implies that FCF produced materialsfeaturing “Josh Slyman.” This is sufficient to allege the“intentional” or “negligent” or knowledge/conscious disregard” ofPlt.’s rights.Paragraph 21 sufficiently alleges the “duty” and is deemed true forpurposes of the demurrer.Paragraphs 11-15 and 30 sufficiently allege ‘reckless or negligent”conduct and 2d C/A ( false light) 1 year statute of limitations issatisfied by the continuous accrual doctrine. The Aryeh case is nota settled case b/c it is still on review.3 rd C/A: allegations are sufficiently alleged in paragraph 11-15, 34and 35 of FCF knowing misappropriation of plt.’s name anddamages. The C/A is subject to the 2 yrs statute of limitations b/cit is commercial misappropriation and the continuing violationdoctrine applies.Def. is to file and answer on or before October 11, 2013. CMC isset for January 6, 2014, at 8:30 AM.

4 11-511808Levanoff vs. SocalWings LLC1. Plt., Levanoff, Diaz, Gaxiola and Steed, Motion for Leave to FileSecond Amended Complaint ---Procedurally:Denied without prejudice; First, Plt. has offered a ‘new’pleading on the day on which the original motion was set to beheard (Sept. 13, 2013). This affects the ability of the Def. toaddress/oppose via a timely opposition the actual pleadingwhich Plt. seeks to file. Secondly, the proposed amendedpleading filed on Sept. 13, 2013, fails to consistently identifythe correct name of the Def. It appears that the correct nameof the Def. is “The Dragas Homes dba The Dragas Group.”The pleading names Def. , variously, as “ The Dragas Home dbaThe Dragas Group.” (see Caption and Page 2, line 11; page 5,line9; of the Sept. 13, 2013, proposed Second AmendedComplaint and “The Dragas Group” as a named Def. in theSecond Cause of Action at page 14, line24-25.) Was this thename of the “Dragas” def. that was previously dismissedwithout prejudice? Is it the same entity?Substantively:No tentative b/c new motion needs to be filed to allow Def. toassert any substantive argument deemed necessary vs. anyproposed pleading changes.

# Case Name Tentative1 10-434731Chin vs. KB Home 1. Cross-Def., Alliance Mechanical Heating and AirConditioning, Motion for Good Faith Settlement Determination ---No fully executed copy of the settlement agreement has been filedwith the court or attached to the moving papers to allowconfirmation that the settlement is as represented.Once this is provided the motion will be Granted; The settlementappears to meet the Tech-Bilt factors and no collusion or fraud isshown to exist in reaching this settlement. A $1,000 settlement ofa claim in which the cost of repair is$2,537.45 is in the ballpark ofreasonable for settlement purposes.2. Cross-Def., American Western, Motion for Good Faith SettlementDetermination ---No fully executed copy of the settlement agreement has been filedwith the court or attached to the moving papers to allowconfirmation that the settlement is as represented.Once this is provided the motion will be Granted; The settlementappears to meet the Tech-Bilt factors and no collusion or fraud isshown to exist in reaching this settlement. A $2,000 settlement ofa claim in which the cost of repair is $2,823.04. is in the ballparkof reasonable for settlement purposes.3 10-395360Hinsch vs. Emery 1. Def/Cross-Def., Oasis HVAC, Motion for Good Faith SettlementDetermination ---No fully executed copy of the settlement agreement has beenfiled with the court or attached to the moving papers to allowconfirmation that the settlement is as represented.No Tentative. The language of the Order submitted by themoving party is overbroad. Good Faith SettlementDetermination can only terminate equitable claims forindemnity. It cannot effect any potential contractual indemnity

claims. The order which Oasis is seeking needs to be modifiedand the modified order presented to the court at the hearing ofthe motion. Otherwise the settlement does appear to meetthe Tech-Bilt factors and no evidence of collusion, bad faith orfraud is apparent from the motion filed with the court.This motion is continued to October 18, 2013, for Cross-Def.,Oasis, to submit a properly worded Order.4 07CC11671Salazar vs. Green StarProducts, Inc.1. Plt., Salazar, Motion t Recuse Attorney Posner ---Granted; Attorney, Posner, is hereby recused and discharged atattorney of record for Plt., Salazar. The court hereby awardsPlt. additional sanctions under CCP 128.5 against Attorney ,Posner, for his failure to execute a substitution of attorney andpromptly turn over the client file to Plt. Such actions by Attorney,Posner, are in bad faith and designed solely to cause unnecessarilydelay this matter and for the sole purpose of harassing the Plt.5 13-652288Villaverde Diaz vs.CustomlineScreenprinting, Inc.1. Def., Customline Screenprinting, Demurrer to the First AmendedComplaint ---(NOTE: Def.’s moving papers caption is incorrect b/c doesn’tindicate Diaz’ class rep status)Procedurally: (Plt. argument re no notice)Page 2 of both motions (Demurrer and Motion to Strike) containthe notice required by CRC. Technically, the Demurrer does notcontain a “Demurrer” but does contain an “Introduction” (page 1and 2 of the Points and Authorities) which does satisfy therequirements of a “Demurrer” by setting forth the grounds uponwhich the demurrer is based.Sustained with 14 days leave to amend as to the entire complaintand specifically the 1 st , 2 nd , 5 th , 6 th and 7 th causes of action; TheFirst Amended Complaint fails to define a recognizable“Class.” “…Members of the general public similarly situated…” isnot sufficient or specific enough to satisfy the pleadingrequirements for ‘Class Action.” Separate class allegations aremissing. CRC 3.761(b).The First Amended Complaint is uncertain for allegations ofviolation of unspecified laws. It is insufficient to allege violations of‘wage orders’ and ‘legal requirements’ as in the 1 st , 2 nd and 5 thCauses of Action. Although paragraphs 16 and 28 mention Laborcode 1174(d) and 1198.5 it is still uncertain whether other Labor

Code sections are at issue. Which Labor Code violations and WageOrder Violations are to be specifically identified to place Def. onnotice of these specific violations.7 th Cause of Action has the same deficiency. It also lacks anyPAGA allegation and fails to spell out that notice has been given tothe LWDA. (Arias vs. Superior Court (2009) 46 Cal 4 th969,980) The 7 th also fails to allege standing under B&P 17204and CCP 382.Punitive Damage allegations fail to allege specific ‘facts’ supportinga punitive damages allegation. Simply alleging in conclusoryfashion “willful” or “intentional” violations of the Labor code is notsufficient.The First Amended Complaint is further uncertain and unclear byalleging “…sit or rest while they worked…” (Paragraph 8) It isuncertain because no reference to a code section or specific Causeof Action.Plt. should clarify as part of the amendment process whether theallegations of Paragraphs 32 and 39-40 are based on the facts ofthis case that no uniforms are worn by the employees of Def. (ALTHOUGH THE TRUTH OF FACTS IS NOT GROUNDS FORDEMURRER, ARE THERE REALLY ERRORS IN THE COMPLAINTWHICH ARE THE RESULT OF CUT AND PASTE ERRORS?? AT LEASTREVIEW THE COMPLAINT AND MAKE SURE THE FACTUALALLEGATION IN THIS COMPLAINT DO, IN FACT, EXIST ANDRELATE TO THIS CASE. )Also naming the correct def. would be advisable.2. Def., Customline Screenprinting, Motion to Strike ---Granted with 14 days leave to amend;@ pargraph 14 the punitive damages allegations are not supportedby sufficient “factual” allegations of Def’s ‘malice’,‘despicable/deliberate conduct’, or acts done in ‘consciousdisregard.’ CC 3294. Sawyer vs. Bank of America (1978) 83 Cal.App. 3 rd 135.@ paragraph 42 which relates to the B&P 17200 claim in the 7 thCause of Action the allegations seeking ‘attorney fees’ and‘economic damages’ are improper as a matter of law under the UCLclaim. Davis vs. Ford Motor Credit (2009) 179 Cal. App. 4 th 581,602, Bank of the West vs. Superior Court (1992) 2 Ca. 4 th 1254,1266. (only restitution/disgorgement or injunctive relief are the

emedies under this code section.@ paragrphs17 and 19 of the Prayer the same rulings as inParagraph 42 above and for the same reasons.6 09-307667Perez vs. SpectrumCare Landscape andIrrigation Management1. Plt, Perez, Motion for Preliminary Approval of Class ActionSettlement and Related Relief ---Granted; It appears that all the concerns raised by the court inprevious appearances on this motion have been addressed in eitherthe Sept. 12 Supplemental filing or the October 2, 2013,Supplemental filing, and modifications to the settlement made tomeet the fair, adequate and reasonable test.The court sets a Final Approval Hearing is Set for December 20,2013, at 10:30 AM. All papers in support of final approval are tobe filed on or before December 4, 2013.

# Case Name Tentative1 10-434731Chin vs. KB Home 1. Cross-Def., Alliance Mechanical Heating and AirConditioning, Motion for Good Faith Settlement Determination ---No fully executed copy of the settlement agreement has been filedwith the court or attached to the moving papers to allowconfirmation that the settlement is as represented.Once this is provided the motion will be Granted; The settlementappears to meet the Tech-Bilt factors and no collusion or fraud isshown to exist in reaching this settlement. A $1,000 settlement ofa claim in which the cost of repair is$2,537.45 is in the ballpark ofreasonable for settlement purposes.2. Cross-Def., American Western, Motion for Good Faith SettlementDetermination ---No fully executed copy of the settlement agreement has been filedwith the court or attached to the moving papers to allowconfirmation that the settlement is as represented.Once this is provided the motion will be Granted; The settlementappears to meet the Tech-Bilt factors and no collusion or fraud isshown to exist in reaching this settlement. A $2,000 settlement ofa claim in which the cost of repair is $2,823.04. is in the ballparkof reasonable for settlement purposes.3 10-395360Hinsch vs. Emery 1. Def/Cross-Def., Oasis HVAC, Motion for Good Faith SettlementDetermination ---No fully executed copy of the settlement agreement has beenfiled with the court or attached to the moving papers to allowconfirmation that the settlement is as represented.No Tentative. The language of the Order submitted by themoving party is overbroad. Good Faith SettlementDetermination can only terminate equitable claims forindemnity. It cannot effect any potential contractual indemnity

claims. The order which Oasis is seeking needs to be modifiedand the modified order presented to the court at the hearing ofthe motion. Otherwise the settlement does appear to meetthe Tech-Bilt factors and no evidence of collusion, bad faith orfraud is apparent from the motion filed with the court.This motion is continued to October 18, 2013, for Cross-Def.,Oasis, to submit a properly worded Order.4 07CC11671Salazar vs. Green StarProducts, Inc.1. Plt., Salazar, Motion t Recuse Attorney Posner ---Granted; Attorney, Posner, is hereby recused and discharged atattorney of record for Plt., Salazar. The court hereby awardsPlt. additional sanctions under CCP 128.5 against Attorney ,Posner, for his failure to execute a substitution of attorney andpromptly turn over the client file to Plt. Such actions by Attorney,Posner, are in bad faith and designed solely to cause unnecessarilydelay this matter and for the sole purpose of harassing the Plt.5 13-652288Villaverde Diaz vs.CustomlineScreenprinting, Inc.1. Def., Customline Screenprinting, Demurrer to the First AmendedComplaint ---(NOTE: Def.’s moving papers caption is incorrect b/c doesn’tindicate Diaz’ class rep status)Procedurally: (Plt. argument re no notice)Page 2 of both motions (Demurrer and Motion to Strike) containthe notice required by CRC. Technically, the Demurrer does notcontain a “Demurrer” but does contain an “Introduction” (page 1and 2 of the Points and Authorities) which does satisfy therequirements of a “Demurrer” by setting forth the grounds uponwhich the demurrer is based.Sustained with 14 days leave to amend as to the entire complaintand specifically the 1 st , 2 nd , 5 th , 6 th and 7 th causes of action; TheFirst Amended Complaint fails to define a recognizable“Class.” “…Members of the general public similarly situated…” isnot sufficient or specific enough to satisfy the pleadingrequirements for ‘Class Action.” Separate class allegations aremissing. CRC 3.761(b).The First Amended Complaint is uncertain for allegations ofviolation of unspecified laws. It is insufficient to allege violations of‘wage orders’ and ‘legal requirements’ as in the 1 st , 2 nd and 5 thCauses of Action. Although paragraphs 16 and 28 mention Laborcode 1174(d) and 1198.5 it is still uncertain whether other Labor

Code sections are at issue. Which Labor Code violations and WageOrder Violations are to be specifically identified to place Def. onnotice of these specific violations.7 th Cause of Action has the same deficiency. It also lacks anyPAGA allegation and fails to spell out that notice has been given tothe LWDA. (Arias vs. Superior Court (2009) 46 Cal 4 th969,980) The 7 th also fails to allege standing under B&P 17204and CCP 382.Punitive Damage allegations fail to allege specific ‘facts’ supportinga punitive damages allegation. Simply alleging in conclusoryfashion “willful” or “intentional” violations of the Labor code is notsufficient.The First Amended Complaint is further uncertain and unclear byalleging “…sit or rest while they worked…” (Paragraph 8) It isuncertain because no reference to a code section or specific Causeof Action.Plt. should clarify as part of the amendment process whether theallegations of Paragraphs 32 and 39-40 are based on the facts ofthis case that no uniforms are worn by the employees of Def. (ALTHOUGH THE TRUTH OF FACTS IS NOT GROUNDS FORDEMURRER, ARE THERE REALLY ERRORS IN THE COMPLAINTWHICH ARE THE RESULT OF CUT AND PASTE ERRORS?? AT LEASTREVIEW THE COMPLAINT AND MAKE SURE THE FACTUALALLEGATION IN THIS COMPLAINT DO, IN FACT, EXIST ANDRELATE TO THIS CASE. )Also naming the correct def. would be advisable.2. Def., Customline Screenprinting, Motion to Strike ---Granted with 14 days leave to amend;@ pargraph 14 the punitive damages allegations are not supportedby sufficient “factual” allegations of Def’s ‘malice’,‘despicable/deliberate conduct’, or acts done in ‘consciousdisregard.’ CC 3294. Sawyer vs. Bank of America (1978) 83 Cal.App. 3 rd 135.@ paragraph 42 which relates to the B&P 17200 claim in the 7 thCause of Action the allegations seeking ‘attorney fees’ and‘economic damages’ are improper as a matter of law under the UCLclaim. Davis vs. Ford Motor Credit (2009) 179 Cal. App. 4 th 581,602, Bank of the West vs. Superior Court (1992) 2 Ca. 4 th 1254,1266. (only restitution/disgorgement or injunctive relief are the

emedies under this code section.@ paragrphs17 and 19 of the Prayer the same rulings as inParagraph 42 above and for the same reasons.6 09-307667Perez vs. SpectrumCare Landscape andIrrigation Management1. Plt, Perez, Motion for Preliminary Approval of Class ActionSettlement and Related Relief ---Granted; It appears that all the concerns raised by the court inprevious appearances on this motion have been addressed in eitherthe Sept. 12 Supplemental filing or the October 2, 2013,Supplemental filing, and modifications to the settlement made tomeet the fair, adequate and reasonable test.The court sets a Final Approval Hearing is Set for December 20,2013, at 10:30 AM. All papers in support of final approval are tobe filed on or before December 4, 2013.

1 13-668815Alcala vs. UnitedWestlabs, Inc.1, 2, 3) Def. United Westlabs Inc.’s motion - Court may permitresponding party/plaintiff a brief continuance, with defendant to producethe entire Employee Handbook(s) that is potentially involved, here(responding party/plaintiff may find support for additional argument,therefrom?) – with no more than 3 pages of additional briefing from bothsides, if desired, following that production – due at least 10 days beforethat next hearing date.4) Case Management Conference2 11-451590Alem vs. Owens1) Def. Hammond Electric ‘gfs’ motion: Court requires that asigned copy of the subject settlement agreement(s), be provided(to verify that actual settlement is, as represented, etc.), herein (ismoving party relying on the Motion #2 Settlement Agreement,below? – unclear). This hearing will likely be continued, in orderfor moving party Hammond Electric to respond to that concern,and to respond to additional concerns, below.Are the listed ‘construction defendants’ paying anything? (i.e. are other‘construction defendants’ mentioned, also parties to this settlement? –Magnesite Specialties, Inc., dba American Deck Systems, PerformanceRoofing Co., Edessa Corp., First Class Glass, Inc., Lou Tobar Marble, andEladio Quintero). How are they involved? Explanation required at oralargument, or by supplemental declaration.The proposed Order attached, perhaps goes beyond request for ‘dismissalof all claims for equitable indemnity and/or contribution’, per CCP § 877.6(c) (as it includes express dismissal of various plaintiff claims againstmoving party & ‘construction defendants’, and Cross-Complaint claimsagainst moving party (including for negligent construction, negligentrepair, and personal injury)). Also, the proposed Order needs to spell outthe names of ‘construction defendants’ referenced therein (to avoidpotential confusion, in the future).Then, if/when the above concerns are adequately addressed - in theabsence of a showing of ‘bad faith’ – rec. is likely to be to grant thismotion for ‘gfs’ approval.2) Def. Halton Corp. ‘gfs’ motion: As a fully signed copy of thesubject settlement agreement, was provided (to verify that actualsettlement is, as represented, etc.), herein, attached to the ‘Notice ofNon-Opposition’ papers filed by moving party Halton Corp., on 10/10/13 -in the absence of a showing of ‘bad faith’ – this motion for ‘gfs’ approvalwill be granted.3 10-422317Brennan vs. U.S.Telepacific Corp.4 10-395360Hinsch vs. EmeryThis demurrer, by moving party/defendant, to the Second AmendedComplaint, is overruled as to the general demurrer challenges to the 4 th &5 th cause of actions, and overruled as to the special demurrer challenge tothe 5 th cause of action – and sustained with 45 days leave to amend, as tothe general demurrer challenges to the 1 st , 2 nd , & 3 rd cause ofactions. Counsel for moving party/defendant to provide written notice ofthis ruling to all parties/attorneys who have appeared in this action,forthwith, unless notice is waived, at hearing.1) Def. Kuno Grading ‘gfs’ motion (with plaintiffs): Absent showingof ‘bad faith’ or valid objection offered during oral argument – this Courtwill grant this motion for ‘gfs’ approval. Proposed Order lodged on10/15/13 is defective, since it provides that ‘Kuno’s shall be dismissed

with prejudice from this and all actions related to the subject of thislitigation, forthwith’ – overbroad on its face (certainly not proper todismiss a claim for express indemnity, against Kuno’s, if it exists, perhapsin another action?).2) Def. Wallboard Wizard ‘gfs’ motion: Continuance of this hearingmay be required, in order for moving party to provide a fully-executedcopy of the subject settlement agreement (to permit Court to verify thatactual settlement is, as represented, etc.). Then, after above concern issatisfied, absent showing of ‘bad faith’ or valid objection offered duringoral argument – Court will grant this motion for ‘gfs’ approval.3) Def. Commercial Waterproofing ‘gfs’ motion: Court Clerk will bedirected to ‘file’ the fully-executed copy of the subject settlementagreement (which was ‘received-stamped’ on 10/8/13). Then, afterabove concern is satisfied, absent showing of ‘bad faith’ or valid objectionoffered during oral argument – Court will grant this motion for ‘gfs’approval.4) Def. Kuno Grading ‘gfs’ motion (with developers): Absentshowing of ‘bad faith’ or valid objection offered during oral argument –this Court will grant this motion for ‘gfs’ approval. Proposed Order lodgedon 10/15/13 is defective, since it provides that ‘Kuno’s shall be dismissedwith prejudice from this and all actions related to the subject of thislitigation, forthwith’ – overbroad on its face (certainly not proper todismiss a claim for express indemnity, against Kuno’s, if it exists, perhapsin another action?).

# Case Name Tentative1 12-578934Campagna vs.Language Line1. Plt., Campagna, Fereaud and Naranjo, Motion for PreliminaryApproval of Class Action Settlement ($900,000) and RelatedRelief (‘Notice to Class’ Approval, Provisional Approval ofAtty Fees, Costs and Enhancements) ---A) Explain why the Class Definition runs from May 1, 2004 toJune 10, 2013 but the Class Period runs from May 15, 2004 tothe date of Preliminary approval. (See Page 1 of the ‘Notice toClass’; 1 st paragraph on page one and Section III A. on page )and page 4, lines12-18 of the Points and Authorities)B) Settlement Agreement @ page 11, lines 4-12, paragraph g.provides for Plaintiffs to “indemnify Defendants for liens formprior representation” Was there any prior representation ofthese named Plaintiff’s? If so, isn’t that firm or attorneyentitled to notice of this motion and hearing.C) Settlement Agreement @ page 12, lines 21-27, paragraph20. Provides for allocation of fees between the Ramos firm andthe Markham Law Firm. This is an issue which needs to beresolved now before the “Notice to Class” is sent out so as tofully apprise the class of the terms.D) Settlement Agreement attached to the moving papers lackspages 19 and 20. These need to be lodged and attached to themoving papers.E) How does the Orange County Bar Association – Employment lawsection qualify as a cy pres recipient under CCP 384? ThePhrase, “…unless the parties mutually agree,…” (page 15, line 5of the Settlement Agreement) should be stricken andreworded. The parties cannot by mutual agreement pay cypres funds to any party without court approval.F) The Settlement Agreement (page 17, line 20, Paragraph 29. d.)and the Order for Final Approval (page 5, line 8, paragraph 9)provide for “dismissal” of the action. CRC 3.769(h) expresslystates there can be no dismissal of the action. Judgment willbe entered. Satisfaction of judgment may be filed.G) The Order for Preliminary Approval @ page 2, line 22,

Paragraph 11 provides for “…the time for filing claims with theSettlement Administrator…” There is no claims filing requiredper the settlement. It would appear that Paragraph 11 isunnecessary.H) Need to set a date for Final Approval Hearing and the blanksfiled in on the Order and “Notice to Class.”Preliminary Approval date is continued to November ___ ,2013, at 10:30 AM.2 13-658581Curtis vs. StrategicSales and MarketingGroup, Inc.1. Def., Strategic Sales and Marketing Group, Motion toCompel Arbitration of Plt.’s Individual Claims and forDismissal or Stay of Plt’s. Individual and RepresentativeClaims ---Granted as to the individual claims of Curtisand Foscaldo; Def. has met it’s burden to establish theexistence of an arbitration agreement. This matter clearly fallswithin the parameters of the arbitration provision (Paragraph 25,@ page 9) of the License Agreement. The agreement expresslyprovides for arbitration of these claims. Each individual Plt initalledthe acknowledgement by initialing this provision.Plt. has not made a sufficient showing of waiver. The small claimsaction was dismissed 4 weeks after filing. There was no change ofposition by the individuals and no prejudice to them.No sufficient Plt. showing of substantive unconscionability has beenmade. Mutuality of the arbitration provisions is clear, providingfor mutual selection of a neutral arbitrator, reasonable limitationon discovery for both sides, arbitration fees advanced by Def. withthe arbitrator to decide who pays. These provisions are not grosslyunfair or shock the conscience of the court.Granted as to a stay of the individual claims in this action,awaiting completion of the arbitration.Grant dismissal of the class claims without prejudice; Thearbitration provision of the agreement is silent as to classarbitration and the court lacks authority to order arbitration when

the agreement is silent on the matter.Grant dismissal of the injunctive relief claims withoutprejudice; The individual plaintiffs are no longer employed by thenamed Def. Therefore, no reason to consider injunctive relief as tothese Plt.s.4 07CC07918Genutec BusinessSolutions vs. Taus2. Case Management Conference.1. Plt., Genutec, Motion to Tax Costs ---Contrary to the Taus and Hunter arguments that any costs incurredare recoverable no matter what they may be, Def.’scosts/expenses incurred still must be recoverable under CCP1033.5. The burden is first on the party submitting a cost bill.If the items on a verified cost bill appear to be proper charges,they are prima facie evidence that the costs, expenses andservices listed were necessarily incurred. If proper objections tothe costs contained in a cost bill are made by the opposing party,then the burden shifts back to the party who is claiming the costs.Item 1: (Court is continuing this part of the motion/Item 1 toallow a breakdown/separation of the non-recoverable messengerfees from the recoverable “filing fees.”)Granted as to $1,652.43 and $152.75 filing fees related to the twofrivolous motions for sanctions and appeals which includes themotions to clarify discovery ruling.Granted as to $908.41 filing fee as to the unsuccessful summaryjudgment motions in Feb. 2010. This was described as meritlessby Taus and Hunter in their malpractice action.Item 3:Denied; Montoya depo costs not unreasonable under thecircumstances (7 days of questioning by other attys) even thoughonly called as a rebuttal witness.No showing that the LaTorre depo or Abramowitz depo did notoccur.Item 4:Granted as to the $1,351.34 Postage Costs b/c not recoverableunder 1033.5(b)(3) and $2,870.05 Eisner firm service charges forfrivolous motions/appeals. No showing of what was served and

when.Item 5:These attorney fees will be addressed in the separate motions forAttorney Fees as required by CRC 3.1702(b).Item 6:Granted in the amount of $6,488.99 for models, blowups or exhibitcopies: there is no breakdown of these charges to allow adetermination of whether they are reasonably helpful to the trier offact or used in trial.Item 7:Granted as to $3,450, $3,825.99 and $5,878.90 ‘Court Reporter’fees: No court order requested these transcripts and the chargesare actually to ‘depo reporting agencies.’ CCP 1033.5(b)(5).Item 8:Granted as to Court Call fees of $580/Venable, $866/Eisner and$70 Jimmie Taus b/c appear to be only for the convenience ofcounsel and not recoverable under CCP 1033.5 without adequateshowing that these costs are reasonable and necessary.Item 9:Granted as to unexplained charges of $207.86/Venable,$300.19/Eisner and $3,060.72/Jones/Day. No specific evidencedemonstrates any of these specific costs are reasonable andnecessary. Messenger fees are not expressly authorized by statuteand the burden in on the claimant when the charges do not appearproper on their face.Item 10:Granted as to legal research expenses of $1,328.23/Venable,$160/Eisner and $43,401.71/Jones/Day. These charges lacksufficient showing of being reasonable and necessary. JonesDayexpense excessively high for 1 year of charges in comparison tothe 4 years of charges from Venable and Eisner over 4 years. CCP1033.5(b)(2). Ladas vs. Toyota Motor Sales (1992) 4 Cal. App. 4 th807.

Item 11:Granted as to $127.50 for overtime. This does not appearrecoverable under CCP 1033.5 and no showing of being reasonableand necessary.Item 12:Granted as to $23,542.50 no showing of reasonable andnecessary.Item 13:Granted as to $12,042.37. ‘Other copy’ expenses are notrecoverable under CCP 1033.5(b)(3) and no showing of beingreasonable and necessary.Item 13 and 14:Granted as to $2,788.99 (Michael Taus) and $3,872.58 (JimmieTaus). No authority is presented which allows recovery of thesecosts of travel ‘to trial’ and hotel lodging. This are not related todeposEvidentiary Objections to Declaration of Lawnae Hunter in Support of theMemorandum of Costs -- Sustained as to each.Evidentiary Objections to the Declaration of Gorry in Support of theMemorandum of Costs -- Overruled as to each.2. Def., Hunter, Motion for Recovery of Attorney’s Fees ---First, renewed arguments by Hunter and Taus to recover attorneyfees as ‘damages’ on the indemnity claims are misplaced in themotions currently before the court. Recovery of Attorney Feesand the amount of those fees as damages ended with the close oftestimony and the related verdict.Continue ???3. Def., Taus, Motion for Recovery of Attorney’s Fees --- NoTentative

Continue ???5 12-554478Espinoza Alcala vs.Continental ExchangeSolutions, Inc.1. Plt., Maria Alcala, Motion for Preliminary Approval of ClassAction Settlement ($1,500,000 [$920,000]) and RelatedRelief ( enhancement, class rep payment for generalrelease, Atty Fees, costs, Admin Fees, PAGA) ---A) Class definition includes claims through the date of mailing ofthe ‘Notice to Class,’ This should be redefined to have the endof the ‘Class Period’ being the date of preliminaryapproval. (eliminates the possibility of claimants/claims arisingafter the date of the prelim approval.)B) $5,000 to the Class Rep for release of her claims - does notexplain what those claims are and whether they are separate,additional claims of hers on top of the $5,000 she is seekingas an enhancement.C) The Charity to receive the residue after the second distributionto Class Claimants should be identified now. (i.e. who is toreceive the amounts from any uncashed checks?)D) What is the correct PAGA amount? ( 75% of $50,000 =$37,500 not $37,750 as the moving papers state e.g. page 11of the Settlement Agreement)E) Any objections to the settlement should be sent to just onelocation/entity not to the “Administrator and all counsel.”F) Final approval hearing date needs to be set and the blanks filedin before “Notice to the Class” is sent out.Preliminary Approval is continued to November ____ , 2013, at 10:30AM.6 13-632262McCready vs. BassoRelated to #7, 8 & 91. Def., LBA Realty Fund-Holding, Motion to Consolidate ---Denied; Consolidation of these actions involving 21 Plt.s, 24defs, and 15/20 causes of action which allege differentrepresentations , involving different properties and differinginvestor sophistication would make a consolidated trial unwieldy

and unworkable. The parties are strongly encouraged to agreeupon informal consolidated common depos and written discovery.2. Def., Basso, Motion for Joinder --- Denied; Motion wasfiled untimely.3. Def., Davies, Motion for Joinder --- Denied; Motion wasfiled untimely.10 10-422317Brennan vs. U.S.Telepacific Corp.3. Case Management Conference1. Def., U.S. Telepacific, Demurrer to the 1 st ( CC,1671(b)), 2 nd (B&P 17200), 3 rd ((B&P17200), 4 th (Common Count – Money Had and Received)and 5 th (Breach of Contract) Causes of Action of the SecondAmended Complaint ---4 th Cause of Action: Overruled; The allegations do state that Def.improperly charged, wrongfully collected early termination feesfrom Plt. and the Class members.5 th Cause of Action: Overruled as to both the general and specialdemurrers; These allegations do not rely on the Terms andConditions being part of the Agreement. Paragraph 81 allegesfailure to honor timely cancellation requests and charge fees otherthan those ‘agreed’ upon. Plt. has avoided the Terms andConditions being part of the contract with theseallegations. Paragraph 79 and 81 refer to the ‘standardizedcontracts’ which clearly refers to the written Agreement, Exhibit A.Final Ruling:1 st and 2 nd Causes of Action: Sustained without leave toamend; These C/As are contract based causes of action. The CC1671(b) action has as an essential element the existence of acontract between the parties with a liquidated damages provisionbecause Plt. has consistently alleged that he did not agree to the“Terms and Conditions.” Plt. has not alleged he was a party to anagreement containing a liquidated damages provision.The 17200 claim of the 2 nd Cause of Action is also a contract

ased cause of action for which Plt. cannot allege agreement to the“Terms and Conditions.”3 rd Cause of Action: Sustained with 14 days leave to amend; Asstated above, Plt. cannot allege the existence of an agreement tothe “Terms and Conditions” and has no standing to represent thoseputative class members who are alleged to have agreed to the“Terms and Conditions.”4 th Cause of Action: Overruled; The allegations of the SecondAmended Complaint allege the that Def. wrongly charged andimproperly collected early termination fees, in other words, moneyhad and received.5 th Causes of Action: Overruled; See the tentative ruling above.Def., Telepacific, Request for Judicial Notice of Plt. Rog Responsesto Def.’s First Supplemental Interrogatories -- Granted. (StandardAgreement does not contain liquidated damages provision). As tothe existence of the answers but not for the truth of the matterasserted therein.

# Case Name Tentative3 10-395360Hinsch vs. Emery 1. Def., Jacobo Plastering, Motion for Good Faith SettlementDetermination ---NOTE: No fully signed settlement agreement has been lodged withthe court. If not filed with the court prior to the hearing of themotion, the motion will be continued for filing this signedagreement to Dec. 13, 12012.Once that document is filed, the court would granted this motionfor Good Faith Settlement base on the compliance with Tech-Biltfactors. Specifically the settlement does appear to be in theballpark of settlements, no allocation is made because none isneeded, settling party is paying less than the claim may be worthafter trial but should receive the benefit of early settlement. Thesettlement monies are being provided by the insurance companyand the financial condition to the settling party is needed. Nocollusion appears to exist.2. Def., Crown Fire Protection, Motion for Good Faith SettlementDetermination --- Granted; This settlement appear to meet allof the Tech-Bilt factors and no showing of bad faith or collusion hasbeen demonstrated.3. Def., Wallboard Wizrd Drywall, Motion for Good Faith SettlementDetermination ---NOTE: No signed copy of the settlement agreement has beenprovided to the court. It must be filed. Without filing thatagreement the motion will be continued to December 13, 2013.If provided the motion will be Granted; The settlement appears tocomply with all Tech-Bilt factors. No evidence of collusion or badfaith has been presented.4 13-624482Rodriguez vs.Investmentxchange,Llc1. Def., Investmentxchange, LLC, Demurrer to the FirstAmended Complaint ---Overruled; Plt. correctly cites that ‘wage and hour’ claims areparticularly suited to ‘class treatment.’ This case is nodifferent. Uniform misconduct is alleged in this action. Paragraph31. A decision on the wage hour claims as alleged in the actionwould be premature. Gutierrez vs. Cal. Commerce Club, Inc,(2010) 187 Cal. App. 4 th 969, 974. Based on the allegations as

they exist, Def. has not shown that there is no reasonablepossibility for Plt. to establish that a community of interest amongthe potential class members and that individual issuespredominate over common questions of law and fact.This is also true of the allegations in the 4 th and 5 th Causes ofAction (meal and rest break C/As) the First Amended Complaintdoes contain the necessary allegations. Paragraphs 94-95 and104-105.Def., Investmentxchange, is to file their answer on or beforeNovember 15. 2013.Def., Investmentxchange, Request for Judicial Notice -- Granted as toBrianker, 53 Cal. 4 th 1004.5 11-477108Tran vs. AppliedMedical ResourcesCorporation2. Case Management Conference set this date1. Pltf’s Motion to Lift Stay – continued to 11/22/13 per ruling on10/16/132. Pltf’s Motion for Leave to File Second Amended Complaint – Continuedto 11/22/13 per ruling on 10/16/133. Pltf’s Motion to Dismiss Named Plaintiff Tran – Continued to 11/22/13per ruling on 10/16/134. Pltf’s Motion for Entry of Ruling Finding Phillips Nhung TranWaived Attorney-Client Privilege and Allowing Class Counselto Introduce Evidence of Attorney-Client Meetings andConversations and Related Defendant's Motion for Sanctions---On motion of the court the motion is continued toNovember 15, 2013, at 10:30 AM. Plt. to file Supplementalauthorities in support of the current motion requesting afinding of WAIVER of atty-client privilege.On motion of the court an OSC re Court consideration ofdismissal without prejudice of the class claims in light ofStolt-Nielsen ruling. Each party may submit additionalbriefs (not to exceed pages each) on the issue of classdismissal per Stolt-Nielsen (2010) 559 U. S. 662 to be filednot later than November 7, 2013.6 13-640635Gill vs. LennarCorporation1. Def., Lennar Corp., Demurrer to the First Amended

Complaint --- Overruled as to the First AmendedComplaint, 1 st Cause of Action, 2 nd Cause of Action and the3 rd Cause of Action;Paragraph 4 alleges that Def., Lennar Corp., “developed, designed,constructed, marketed and sold” the condos in question. Def. alsoattaches exhibits to the complaint establishing that Lennar Corp.and Greystone Homes are affiliated entities. Paragraphs 8 and 9alleges the named Def.s “undertook to develop and construct”homes and are alter egos. Finally, Paragraph 4, 5, 6, and 8 allegethat these entities jointly participated in the development and saleof the property in question. These allegations are sufficient tostate a cause of action against the moving party, Lennar, Corp.’Per court rules Plt. is to give written notice to all.Def., Lennar Corp, is to file its answer on or before November 15,2013.Def., Lennar Corp., Request to Take Judicial Notice -- Granted asto the Grant Deed and Notices of Completion.8 07CC07918Genutec vs. Taus1. Plt., Genutec, Motion to Tax Costs ---Contrary to the Taus and Hunter arguments that any costs incurredare recoverable no matter what they may be, Def.’scosts/expenses incurred still must be recoverable under CCP1033.5. The burden is first on the party submitting a cost bill.If the items on a verified cost bill appear to be proper charges,they are prima facie evidence that the costs, expenses andservices listed were necessarily incurred. If proper objections tothe costs contained in a cost bill are made by the opposing party,then the burden shifts back to the party who is claiming the costs.Item 1: (Court is continuing this part of the motion/Item 1 toallow a breakdown/separation of the messenger fees from the“filing fees.” With a desciption)Granted as to $1,652.43 and $152.75 filing fees related to the twofrivolous motions for sanctions and appeals which includes themotions to clarify discovery ruling.Granted as to $908.41 filing fee as to the unsuccessful summaryjudgment motions in Feb. 2010. This was described as meritlessby Taus and Hunter in their malpractice action.Item 3:Denied; Montoya depo costs not unreasonable under the

circumstances (7 days of questioning by other attys) even thoughonly called as a rebuttal witness.No showing that the LaTorre depo or Abramowitz depo did notoccur.Item 4:Granted as to the $1,351.34 Postage Costs b/c not recoverableunder 1033.5(b)(3) and $2,870.05 Eisner firm service charges forfrivolous motions/appeals. No showing of what was served andwhen.Item 5:These attorney fees will be addressed in the separate motions forAttorney Fees as required by CRC 3.1702(b).Item 6:Granted in the amount of $6,488.99 for models, blowups or exhibitcopies: there is no breakdown of these charges to allow adetermination of whether they are reasonably helpful to the trier offact or used in trial.Item 7:Granted as to $3,450, $3,825.99 and $5,878.90 ‘Court Reporter’fees: No court order requested these transcripts and the chargesare actually to ‘depo reporting agencies.’ CCP 1033.5(b)(5).Item 8:Granted as to Court Call fees of $580/Venable, $866/Eisner and$70 Jimmie Taus b/c appear to be only for the convenience ofcounsel and not recoverable under CCP 1033.5 without adequateshowing that these costs are reasonable and necessary.Item 9:Granted as to unexplained charges of $207.86/Venable,$300.19/Eisner and $3,060.72/Jones/Day. No specific evidencedemonstrates any of these specific costs are reasonable andnecessary. Messenger fees are not expressly authorized by statuteand the burden in on the claimant when the charges do not appearproper on their face.

Item 10:Granted as to legal research expenses of $1,328.23/Venable,$160/Eisner and $43,401.71/Jones/Day. These charges lacksufficient showing of being reasonable and necessary. JonesDayexpense excessively high for 1 year of charges in comparison tothe 4 years of charges from Venable and Eisner over 4 years. CCP1033.5(b)(2). Ladas vs. Toyota Motor Sales (1992) 4 Cal. App. 4 th807.Item 11:Granted as to $127.50 for overtime. This does not appearrecoverable under CCP 1033.5 and no showing of being reasonableand necessary.Item 12:Granted as to $23,542.50 no showing of reasonable andnecessary.Item 13:Granted as to $12,042.37. ‘Other copy’ expenses are notrecoverable under CCP 1033.5(b)(3) and no showing of beingreasonable and necessary.Item 13 and 14:Granted as to $2,788.99 (Michael Taus) and $3,872.58 (JimmieTaus). No authority is presented which allows recovery of thesecosts of travel ‘to trial’ and hotel lodging. This are not related todeposEvidentiary Objections to Declaration of Lawnae Hunter in Support of theMemorandum of Costs -- Sustained as to each.Evidentiary Objections to the Declaration of Gorry in Support of theMemorandum of Costs -- Overruled as to each.2. Def., Hunter, Motion for Recovery of Attorney’s Fees ---First, renewed arguments by Hunter and Taus to recover attorneyfees as ‘damages’ on the indemnity claims are misplaced in themotions currently before the court. Recovery of Attorney Feesand the amount of those fees as damages ended with the close of

testimony and the related verdict.No TentativePlt., Genutec, Objections to the Hunter Declaration -- Overruledas to #1, 2, and 3.Plt., Genutec, Objections to the Gorry Declaration -- Overruled asto #1 and 2.3. Def., Taus, Motion for Recovery of Attorney’s Fees --- NoTentative

Hon. Luis A. RodriguezOrange County Superior CourtBorn: 1954Undergraduate: UCSDLaw School: Boalt HallAdmitted to Practice: 1983Succeeded to the Bench: 1998Succeeded by: Prop 220Career as an AttorneyPrivate practice, San Diego, CA, 1980-81Private practice, Los Angeles, CA, 1982-83Deputy City Attorney, Santa Ana, CA, 1983-89Senior Assistant City Attorney, Orange, CA, 1989-94Relevant Organizational AffiliationsMember:Advisory Board, Orange County Bar Foundation (1995—)Orange County Peer Court council (1998—)Judicial Council of California Access and Fairness Advisory Committee (2006—)Orange County Superior Court Grand Jury Selection Committee (present)American Judges AssociationBanyard Inns of CourtCalifornia Judges AssociationCalifornia Latino Judges AssociationLatino Peace Officers AssociationNational Juvenile and Family Judges AssociationNational Hispanic Bar AssociationOrange County Bar AssociationFormer Member:California City Attorneys Association (1983-94)National Association of Hispanic Appointed and Elected Officials (1992-98)Board of Trustees, Orange County Bar Foundation (1994-98)Orange County Superior Court Chair, Orange County Municipal and Superior CourtTechnology Coordination Committee (1997)

Orange County Superior Court Technology Committee (1998-2001)CJER Executive Planning Committee, CJSP Criminal Law Institute (1999)Judicial Council of California Criminal Law Advisory Committee (1999-2002)Orange County Superior Court Countywide Security Committee (2000-06)Orange County Superior Court Community Outreach Committee (2001)Judicial Council of California Court Security Curriculum Development CommitteeJudicial Council of California Judicial Education and Research Science and LawEducation Committee (2006-09)Judicial Council of California Judicial Task Force for Criminal Justice Collaboration onMental Health Issues (2008-10)Judicial Council of California Traffic Advisory Committee and Sub-Committee onUniform Adjudication of Traffic Education (1999-2000)Judicial Council of California Superior Court Finance CommitteeJudicial Council of California Superior Court Grand Jury Selection Committee;Judicial Council of California Superior Court Temporary Judges CommitteeRecipient:Ambassador of Peace Award, Orange County Violence Prevention Coalition, 1998Award of Appreciation South Orange County Bar Association, 2004Other Judicial OfficeJudge, Municipal Court, North Orange County, CA, appointed by Governor Wilson Jan.4, 1994 (oath Jan. 5, 1994); elected 1994, 2000, and 2006Teaching/Lectures/PanelistTeaching:Faculty, California Judicial College, 1995-2003Faculty, Bernard-Witkin Judicial College, 1995-2001Faculty, CJER New Judge Orientation, 1996-2004Faculty, State Symposium on Adjudication of Vehicle Code Enforcement, 2000Faculty, Hispanic Bar Association of Orange County, Unlawful Detainer and Ethics,1999, 2000Faculty, CJER Spring Institute for New Assignments, 1999Faculty, CEB Landlord-Tenant Seminar, 1997-98

Panelist:“Brain on Trial,” Conference of American Association for Advancement of Science,2010Also assisted in developing numerous programs and conferences relating to JudicialEducation, notably “Neuroscience for Judges,” Riverside, CA, 2006PublicationsAuthor:Foreclosure Guide: Pre and Post Trustee Sale (OCSC)Temporary Judges’ Ethics and Fairness curriculumJuvenile Court Education Rights Project (JCERP)—Special Education and Juvenile LawResource bookSearch Warrant Guide for Superior Court Judicial Resources CommitteeCourtroom Security (Witkin Judicial College), DUI Adjudication and Landlord-TenantLaw for various seminars/conferencesContributor:Official Final Report of the Task Force for Criminal Justice Collaboration on MentalHealth

Hon. Luis A. RodriguezBIOSKETCH/PROFILELUIS A. RODRIGUEZ, Judge, Superior Court of California, County of Orange, upon unification (8/10/98 ‐Present); Judge, North Municipal Court, Orange County (1994 ‐ 1998); Appointed Judge by GovernorPete Wilson and then elected to terms; 1994,2000,2006; and Current term expires 2012. Senior AssistantCity Attorney, City of Orange (1989‐1994); Deputy City Attorney, City of Santa Ana (1983‐1989); PrivatePractice, Los Angeles and San Diego (1980‐1983); University of California at Berkeley, Boalt Hall Law School,J.D. (1980); University of California at San Diego, B.A. (1977).Faculty: California Judicial Education & Research ( CJER) New Judge Orientation (1996‐2004); CaliforniaJudicial College (1995‐2003); Bernard‐Witkin Judicial College (1995‐2001); State Symposium onAdjudication of Vehicle Code Enforcement (2000); CJER Spring Institute for New Assignments (1999);Attended and Presented : Judicial Education programs relating to Business, Juvenile, and Criminal law;Assisted developing numerous programs, and conferences relating to Judicial Education of which“Neuroscience for Judges” presented in 2006 in Riverside California was special; Panel presenter at 2010Conference of American Association for Advancement of Science of program entitled “Brain on Trial” whichwas repeated for American Association of Neuroscience. A broadcast of this cutting edge session isavailable at http: //www.abc.net.au/radionational/programs/allinthemind/the‐brain‐on‐trial/3038790.Orange County Woman Lawyers Association presented program on “Admissibility of Scientific Evidence”September 2012Authored: Assisted with article in CJA newsletter relating to ADA Judicial Guide to Accommodation ofdisabilities; Contributed to the Official Final Report of the Task Force for Criminal Justice Collaboration onMental Health. The report is available on the California Courts website at thislink: www.courts.ca.gov/xbcr/cc/20110429itemo.pdf ; Recently produced for use by OCSC a ForeclosureGuide: Pre and Post Trustee Sale; Temporary Judges’ Ethics and Fairness curriculum, Juvenile CourtEducation Rights Project (JCERP) ‐ Special Education and Juvenile Law Resource Book distributed and usedby Orange and other Juvenile Courts in the state, Search warrant guide for Superior Court JudicialResources Committee, In addition created curriculum for teaching at Witkin Judicial College for thefollowing classes; Courtroom Security, DUI Trials, and assisted in class materials for CEB in the area ofLandlord‐Tenant Law for which was used for CEB presentations; created numerous written presentationsand guides used to lecture at OC Hispanic Bar and other bar association events which involved a range ofdifferent subject areas of which the more unique were seminars covering Substance Abuse from a legaland scientific perspective, and the Role of Collaborative Courts.Task forces,Committees/Boards: Appointed to Judicial Council Task Force for Criminal Justice Collaborationon Mental Health Issues (2008‐2010); Advisory Committees of the Judicial Council of California; Access andFairness (2006‐present), Criminal Law (1999‐2002) California Judicial Education and Research Science andLaw Education Committee (2006‐2009); Superior Court Finance Committee, Superior Court Grand JurySelection Committee, Superior Court Temporary judges Committee, Court Security CurriculumDevelopment Committee (2004);Traffic Advisory Committee and Sub‐ Committee on Uniform Adjudicationof Traffic Education (1999‐2000), CJER Executive Planning Committee, CJSP Criminal Law Institute (1999);Committees of the Orange County Superior Court; Alternate, Executive Committee of the Orange CountySuperior Court (1997‐1998); Superior Court Countywide Security (2000‐2006), Court Community OutreachCommittee (2001) Technology (1998‐2001), Chair, Orange County Municipal and Superior Court Technology

Coordination Committee (1997); Court and Bar activities; Advisory Board, Orange County Bar Foundation(1995‐Present); Orange County Peer Court Council (1998‐2000) Orange County Task Force on Foster Care(2001‐2002); Founding Judicial member of Society of Fellows; former member of the Board of Trustees,Orange County Bar Foundation ;Board of Trustees and Community Advisory Council, St. Jude’s Hospital(1995‐1997); Director, CHOICES Program, Santa Ana Unified School District (1988‐1990); Orange CountyAlcohol Advisory Board (1986) Advisory Director, Hispanic Education Endowment Fund; Board Member,YMCA Community Service Non‐Profit Corporation; Scholarship Selection Committee; United Way and othernon‐profit community organizations.Current & Past Memberships & Affiliations: California Latino Judges Association, National Juvenile andFamily Law Judges’ Association; Banyard Inns of Court, American Judges Association; California Judges’Association; National Hispanic Bar Association; Orange County Bar Association; Latino Peace Officers’Association; California City Attorneys’ Association; Rotary International; National Association of HispanicAppointed and Elected Officials.Awards: Judge of the Year 2011, Orange County Bar Association Business Litigation Section, 2004 Awardand Appreciation, South Orange County Bar Association; 1998 Ambassador of Peace Award, Orange CountyViolence Prevention Coalition.Current location: 700 Civic Center Drive West, Santa Ana, CA 92702Department C‐6 General Civil Panel12/15/11

RULINGS ON LAW & MOTION MATTERSDepartment C-6Judge Luis A. RodriguezLaw and Motion heard at 1:30OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior tothe scheduled Thursday hearing. If your internet service is not available you may contactthe clerk in Dept. 6 (657-622-5206) for the ruling. Motions generally will not be continuedafter the tentative has been posted.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY.PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT’SSIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, noappearance will be necessary and the tentative will become the final ruling. If no oneappears at the hearing and the court has not been notified all parties submit on thetentative ruling, the tentative ruling will become the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the timescheduled for the motion. No new issues may be raised at oral argument, but the attorneysshould not merely restate their points and authorities.February 7, 2013# Case Name Tentative1 10-382036Ferraro v. FerraroRulingThe court DENIES, without prejudice, the motion byDefendants Martin A. Ferraro and Karen M. Fovos for anearnings withholding order against Julie Ferraro, for thejudgment-debt of Plaintiff Michael H. FerraroReasonIn general, spouses may be liable for each other’s debts,incurred before or during the marriage. (See Fam. Code, §910, subd. (a) [“Except as otherwise expressly provided bystatute, the community estate is liable for a debt incurred byeither spouse before or during marriage, regardless of whichspouse has the management and control of the property andregardless of whether one or both spouses are parties to thedebt or to a judgment for the debt.”].) Accordingly, a judgmentcreditor may obtain a court order allowing him or her to invokethe wage garnishment laws against the spouse of the judgmentcreditor. (Code Civ. Proc., § 706.109.) Here, despite thegeneral rule regarding community property debts defendantsfail to submit any evidence in support of their motion.Accordingly, the court cannot confirm that Julie Ferraro iscurrently married to Plaintiff, or how much of the judgmentdebt remains unpaid, if any. Defendants have therefore failedto establish grounds for the requested order.2 10-415438Morales v. NoritzAmericaNo Tentative Status Conference scheduled

Corporation3 11-468362Kennedy v. Ivantis,Inc.RulingPlaintiff’s Motion to Quash 7 Medical Subpoenas is GRANTED.The parties for Sanctions are DENIED. However the court notesbelow that the parties could have resolved these issues withoutusing valuable court resources.ReasonViolation of CRC Rule 3.1345On 02/01/13, the court granted an ex parte application byPlaintiff for leave to file a Separate Statement that is deemedto be untimely, subject to Defendant’s right to argue thetimeliness issue. Plaintiff then filed her Separate Statement on02/01/13. Because the Separate Statement was not timelyserved, the court has discretion to disregard it. However,because the Separate Statement does little more thanconsolidate the information contained in Exhibit 1 to hermoving papers (the 7 subpoenas at issue) and the objectionsmade in her moving brief, the court will exercise its discretionand consider the Separate Statement on its merits despite thetechnical failure to file a timely separate statement.The court initially points out that although not required ( CodeCiv. Proc., §§ 1985.3, subd. (g) and 1987.1),the parties couldhave avoided this motion by engaging in a “meaningful meetand confer”. Instead they resort to court intervention forsubpoenas that were previously discussed with respect to anearly identical set of subpoenas on 09/2012, which weresubsequently withdrawn. The court fails to see why counselcould not have sent one letter or phone call to resolve whatappear to be the patent defects with the instant subpoenas. Asto the subpoenas they are directed to plaintiff’s medicalrecords which not only intrude on the physician-patientprivilege but her privacy rights to them. (See Code Civ. Proc.,§ 1985.3, subd. (a)(1); Board of Medical Quality Assurance v.Gherardini (1979) 93 Cal.App.3d 669, 678.) But plaintiff hasput (1) MENTAL CONDITION AT ISSUE, INCLUDING THESYMPTOMS OF DISTRESS ALLEGEDLY CAUSED BY DEFENDANTand (2) PHYSICAL CONDITION TO THE EXTENT THAT ITRELATES TO HER ABILITY TO WORK POST-TERMINATION. Thequestion is whether the subpoenas issued are narrowly tailoredto disclose only the relevant medical information. They are not.First, the document categories appear to seek far more, thecourt agrees with plaintiff that they use a “cookie cutter”approach to all the doctors with the exception to Dr. Dangwhich has its own unique defects. Clearly they are not theproduct of a careful division of what medical records relate toplaintiff’s emotional damages and what invades her medicalprivacy. For example, Category 12 of the subpoena to Dr.Israel seeks documents “which reflect, discuss, mention,

comment upon or otherwise refer to any drug prescriptions forKENNEDY, including but not limited to, Klonopin, Alprazolam,Xanax, Prozac, Paxil, Celexa, Zomig, Norco, and/or Ambien.”(See Motion, Exh. 1.) This category is not limited in anymeaningful way, such as by date of prescription or the reasonfor which the drug was prescribed. Although Category 13 of thesame subpoena suggests that defendant’s intent is to seekalternate reasons for Plaintiff’s alleged weight gain or otherphysical or behavioral changes, Category 12 itself is certainlynot sufficiently tailored to avoid the physician-patient privilegeor plaintiff’s right to privacy. Similarly, category 18 of theSubpoena to Dr. Israel seeks documents “which reflect,discuss, mention, comment upon or otherwise refer toKENNEDY’S knee(s)….” (See Motion, Exh. 1.) This category isunbounded by time (e.g. After the end of her employment withDefendant) or limited to conditions that would limit Plaintiff’sability to work. Second, the subpoena to Dang seeks somepermissible information related to Plaintiff’s emotional distress,but the categories described expand beyond that permissiblescope to essentially demand all information about Plaintiff’sentire medical history. For example, category 27 of thesubpoena to Dr. Dang qualifies itself to “any and all medicalrecords pertaining to plaintiff other than documents producedto defendant pursuant to an earlier subpoena”. This categoryother than being vague also seeks information on issues nottendered by plaintiff. Moreover, plaintiff’s failure to object to asimilar request in the prior subpoena to Dr. Dang will not bedeemed a waiver of the right to ever object to this subpoena.4 11-469464Wood v. Haddad5 11-478044O’Grady v. OrangeCounty Jail FoodServices6 11-521847Bacha v. Fhima7 11-524331Law Offices of MarkB. Plummer PC v.CuK8 12-566104Blume v. J.P.O/CRulingDefendant, County of Orange erroneously named OrangeCounty Jail Food Services SVCS’s unopposed Motion to QuashService of Summons is GRANTED.ReasonWhen a defendant challenges the court's personal jurisdictionon the ground of improper service of process the burden is onthe plaintiff to prove the facts requisite to an effective service.[Summers v. McClanahan (2006) 140 CA4th 403, 413]. Sincethere is no opposition, Plaintiff fails to sustain his burden andtherefore, motion is granted. Defendant, although apparentlyserved with the Summons and Proof of Service, was not servedw/ the Complaint and was not named in the Complaint.Cont to 3-28O/CCont to 3/28

Morgan Chase9 12-570989McCarty v.MassoudiRulingThe court OVERRULES the demurrer by Defendants FarzadMassoudi, Farzan Massoudi, M.D. Incorporation, OutpatientHealth Care, Inc., and Ambulatory Health Centers, Inc. to theTenth Cause of Action in Plaintiff Tamara McCarthy’s SecondAmended Complaint. However, because Defendants’ challengesdo not address the entire causes of action the court treats thedemurrer as a Motion to Strike to Plaintiff’s deficient causes ofaction.The court will therefore strike the following portions of theSAC: the phrase “and Harassment” from the title of this causeof action, at page 5, line 25; the phrase “and Harassment” from page 7, line 11; paragraphs 51-54; and page 16, lines 10-11.In addition the court notes that Plaintiff dismissed one of themoving defendants – Farzad Massoudi, M.D. Incorporation –without prejudice on 10/24/12. Accordingly, no relief is grantedas to that party.Plaintiff is given final leave to amend, to cure the defectsidentified in connection with her claims of age- and disabilityrelatedharassment in her Second and Third Causes of Action.Plaintiff shall file and serve any amended complaint within 15days after notice of this order is served. If Plaintiff fails to filean amended complaint by that deadline, Defendants shall fileand serve their answer to the Second Amended Complaintwithin 15 days thereafter.Defendants shall serve notice of this order.ReasonPlaintiff Has Not Adequately Pled A Claim For Age-RelatedHarassmentPlaintiff has not adequately alleged that the conduct sheexperiences was so severe or pervasive as to alter the termsand conditions of her employment and create an abusive workenvironment. Indeed, Plaintiff’s SAC is silent as to whether theterms and conditions of her employment were in any wayaffected by any of her supervisor’s alleged conduct.Read as a whole, the gravamen of Plaintiff’s Second Cause ofAction is one for discriminatory discharge, not harassment.(See SAC, 33-35.) This conclusion is further supported bythe fact that this cause of action is apparently brought underGovt. Code, § 12940, subd. (a) only, which prohibits unlawfuldiscrimination. (See SAC, 5:26.) The FEHA prohibits unlawfulharassment under a separate subdivision, (j).The only reference to unlawful harassment in her SecondCause of Action is in the title of that claim. (See SAC, 5:25.)Therefore, the court will strike the phrase “and Harassment”from the title of Plaintiff’s Second Cause of Action.Disability discrimination and harassment

Again, plaintiff has alleged that she was subjected to at leastsome disability-related comments from her supervisor andunnamed persons acting on Defendants’ behalf. (SAC, 15,54.) She also alleges that she was subjected to othercomments and conduct possibly related to her disability. (SeeFAC, 51-53.) However, Plaintiff’s SAC is again silent as towhether the terms and conditions of her employment wereaffected in any way by the alleged comments and conduct.Plaintiff’s Third Cause of Action is also apparently broughtunder Govt. Code, § 12940, subd. (a) only, and not underGovt. Code, § 12940, subd. (j). (See SAC, 7:12.) Therefore,the court will strike the references to unlawful harassmentfrom Plaintiff’s Third Cause of Action: the phrase “andHarassment” from the title of that claim 51-54.Tenth cause of actionbreach of the implied covenant of good faith and fair dealingDefendants demurred to this same cause of action as pled inPlaintiff’s FAC, raising substantially similar arguments. Thecourt overruled that demurrer. Defendants offer no new,persuasive argument that would alter the court’s priorconclusion. While it is far from clear whether Plaintiff will beable to prevail on this cause of action, it appears adequatelypled.Twelfth cause of actionwrongful termination and retaliation in violation of public policyA violation of Lab. Code, § 132a cannot support a common lawclaim for wrongful termination in violation of public policy.(Dutra v. Mercy Medical Center Mt. Shasta (2012) 109CalApp.4th 750, 755-756.)Plaintiff’s reliance on City of Moorpark v. Superior Court (1998)18 Cal.4th 1143 is misplaced. The court further rejectsPlaintiff’s startling assertion that “Dutra is not bindingprecedent on this case because it is an appellate case fromanother appellate district.” As the California Supreme Courtexplained almost 60 years ago:Decisions of every division of the District Courts of Appealare binding upon all the justice and municipal courts andupon all the superior courts of this state, and this is sowhether or not the superior court is acting as a trial orappellate court. Courts exercising inferior jurisdiction mustaccept the law declared by courts of superior jurisdiction. Itis not their function to attempt to overrule decisions of ahigher court.”Moreover, plaintiff does not suggest that any publisheddecision of any other Court of Appeal is in conflict with Dutra.Therefore, this court is plainly bound to follow Dutra. However,Defendants’ challenge to this cause of action will not dispose ofthe entire claim, the court will deem the demurrer to this claimas a motion to strike for the reasons discussed above in

10 12-577434Jeffery D. Gross,M.D., Inc. v.Medlock11 12-590002Gasca v. HomeDepot U.S.A. Inc.12 12-601535Caruana v Diloretoconnection with the demurrer to Plaintiff’s Second and ThirdCauses of Action. The court will therefore strike page 16, lines10-11, which alleges Section 132a as a basis for this cause ofaction.O/CO/CRulings(1) The court DENIES plaintiff’s Request for Judicial Notice andSUSTAINS defendant’s evidentiary objections.(2) The court OVERRULES defendant’s demurrer to the 1 stcause of action and SUSTAINS Defendant’s demurrer to the 2 ndcause, with 20 days leave to amend.(3) The court GRANTS defendant’s Motion to Strike, with 20days leave to amend.Reasons(1) Plaintiff’s REQUEST FOR JUDICIAL NOTICE and Defendant’sEVIDENTIARY OBJECTION:The document is irrelevant to the issues on demurrer. Adocument must be relevant for the court to take judicial noticeof it. (See Superior Court v. County of Mendocino (1996) 13Cal.4th 45, 59; Mangini v. R.J. Reynolds Tobacco Co. (1994) 7Cal.4th 1057, 1063).(2) DEMURRER:First cause of action (motor vehicle)Defendant fails to show that any element of the cause of actionis missing. Indeed, the Judicial Council form complaint usedmakes it easy for a plaintiff to state a motor vehicle (i.e.,negligence) claim. Defendant argues, without citation toauthority, that more specificity is required when a claim isbeing made against a sitting Superior Court judge. The court isaware of no such authority. To survive demurrer, plaintiff neednot allege the exact time and place of the accident, nor thenames of the police officers involved. Also, a demurrer foruncertainty should be sustained only where the pleading is sobad that defendant cannot reasonably respond. (See Khoury v.Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 615.)Here, defendant fails to show how the 1 st cause of action isuncertain.Second cause of action (intentional tort)Defendant argues that a demurrer to the 2 nd cause of actionshould be sustained because plaintiff has merged at least fourdifferent claims into one cause of action. This argumentappears to have merit. Defendant cannot reasonably respondwithout understanding what particular claim is being assertedagainst him by way of the second cause of action. (See Cal.Rules of Court, rule 2.112, requires each cause of action to be

13 12-608283Zimmerman v.Wheel Solutions,Inc.separately stated.)(3) MOTION TO STRIKEWithout a sufficient second cause of action, there is no basisfor punitive damages as plaintiff did not utilize the JudicialCouncil’s Exemplary Damages Attachment (Form PLD-PI-001(6)). Also, even if the second cause of action had surviveddemurrer, insufficient factual allegations, as opposed toconclusory allegations, were pled to support a punitivedamages claim. (See Grieves v. Superior Court (1984) 157Cal.App.3d 159, 166 (“The mere allegation an intentional tortwas committed is not sufficient to warrant an award of punitivedamages. [Citation] Not only must there be circumstances ofoppression, fraud or malice, but facts must be alleged in thepleading to support such a claim. [Citation].”]. See also,Serrano v. Priest (1971) 5 Cal.3d 584, 591 [“We treat thedemurrer [or motion to strike] as admitting all material factsproperly pleaded, but not contentions, deductions, orconclusions of fact or law.”].) Here, for example, plaintiffconcludes that defendant intentionally fled the scene but failsto allege facts and/or the particular circumstances to show thatdefendant acted despicably and with willful and consciousdisregard of the rights or safety of plaintiff or others.RulingThe court OVERRULES the demurrer of Defendants WheelSolutions, Inc. and Glenn Paul Roberts to the First, Second,and Ninth Causes of Action in Plaintiff Jason Zimmerman’sComplaint.Defendants shall file and serve their answer to Plaintiff’sComplaint within 20 days of service of notice of this order.Plaintiff is to serve notice of this order.ReasonThe Demurrer is untimelyThe court may reject the demurrer as untimely. Heredefendant demurrer is 35 days late. However, the court hasdiscretion to consider an untimely demurrer on the merits.(Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.) Factors tobe considered in exercising that discretion are whether thedelay affected the plaintiff’s substantial rights, whether theplaintiff took steps to obtain a default judgment, and whetherthe plaintiff has demonstrated that the delay prejudiced him orher. (Ibid.) Plaintiff here does not object to the demurrer onthe grounds that it is untimely, or suggest that the delaycaused her prejudice or affected their substantial rights.Neither did Plaintiff attempt to take Defendants’ default.Therefore, the court will move to the merits of the demurrer.The 1 st , 2 nd , and 9 th C/APlaintiff’s First and Second Causes of Action are for Negligenceand Professional Negligence, respectively. Plaintiff’s NinthCause of Action is for Willful Misconduct. As the parties agree,a claim for “willful misconduct” is essentially a claim for“aggravated” negligence. (See New v. Consolidated RockProducts Company (1985) 171 Cal.App.3d 681, 689-690.)

14 12-608929Craig v. Neill GasInc.Therefore, an essential element of each of these claims is theexistence of a duty owed by Defendants to Plaintiff. (SeeFederico v. Superior Court (1997) 59 Cal.App.4th 1207, 1210-1211 [essential elements of negligence claim]; Budd v. Nixon(1971) 6 Cal.3d 195, 200 [essential elements of professionalnegligence claim] [superseded by statute on other grounds].)Although not clearly addressed by Plaintiff, the fact thatDefendants allegedly owed Plaintiff a contractual duty does notimmunize Defendants from a negligence claim based on abreach of that duty. (Eads v. Marks (1952) 39 Cal.2d 807,811.) The same act may be both a tort and a breach ofcontract. (Id. at p. 810.) Even where there is a contractualrelationship between the parties, a cause of action in tort maysometimes arise out of the negligent manner in which thecontractual duty is performed, or out of a failure to performsuch duty. (Ibid.) Indeed, a claim for professional negligence isnearly always based on a duty undertaken by the professionalas part of a contractual relationship.RulingMotion(s) to Quash are GRANTED.ReasonWhen a nonresident enters California to execute or perform acontract with a California resident does not per se establish“minimum contacts.” The court considers all factors affectingnegotiation, execution and performance of the contract indetermining whether defendant purposefully establishedminimum contacts with the forum. [Burger King Corp. v.Rudzewicz (1985) 471 US 462, 478–479] But the fact that thenonresident enters California to negotiate or perform a contractis an important factor in the jurisdictional equation. [See Safe-Lab, Inc. v. Weinberger (1987) 193 CA3d 1050, 1053–1054]Applying this open analysis here plaintiff submits theDeclaration of Rino La Rosa (VP of Eureka Partners, Inc dbaCraig Realty Group) which offers a management agreementbetween Outlet Partners and Eureka Realty Partners, Inc, a CACorporation. However, this agreement is not executed. Sinceplaintiff fails to assert general jurisdiction or claim howpersonal jurisdiction can be maintained over non-residents whoare members in a non-resident corporation which uses aCalifornia management services company in Mississippi. Thecourt fails to see how the management agreement relates toestablishing personal jurisdiction over the Mississippi residents.Rather the gist of plaintiff’s jurisdictional call is a breach of theOperating Agreement and Letter Agreement. Specifically thoseMississippi residents who are also members of a Mississippicompany failed to make a required capital payment to aCalifornia office. Bearing in mind that all of the speciallyappearing defendants apparently negotiated and executedthose agreements while in Mississippi. Moreover, TheOperating Agreement has a choice of law provision the State ofMississippi. Is then the mere requirement that a payment bemade in California alone to establish a minimum contact? Theanswer as explained below is no.

Because there is no mechanical yardstick to establish aminimum contact personal jurisdiction depends on whetherplaintiff has offered facts to show whether California has asufficient relationship with the defendant and the litigation tomake it reasonable (“fair play”) to require him or her to defendthe action in California courts. The below comparison clearlyshows that plaintiff has failed to meet his burden compellingthe court to impose California jurisdiction on speciallyappearing Mississippi residents: The extent to which the lawsuit relates to defendant'sactivities or contacts with California; (the lawsuit onlyrelates to CA to the extent the defendants wererequired to mail checks to an office in CA) The availability of evidence, and the location of witnesses;(all defendants, the corporation to which all thesedefendants are members, and the property which thiscorporation manages, is located in Mississippi) The availability of an alternative forum in which the claimcould be litigated (defendant's amenability to suitelsewhere); (no info) The relative costs and burdens to the litigants of bringingor defending the action in California rather thanelsewhere; and (Obviously requiring 5 nonresidentdefendants to come to CA as opposed to one Californiangoing to Mississippi establishes more costs toDefendants) Any state policy in providing a forum for this particularlitigation (e.g., protection of California resident, orassuring applicability of California law). [See World-Wide Volkswagen Corp. v. Woodson (1980) 444 US 286,292, 100 S.Ct. 559, 564; and Fisher Governor Co. v.Sup.Ct. (Prestwich) (1959) 53 C2d 222, 225–226, 1 CR1, 3–4] (Plaintiff cites to no CA state policy for thisparticular litigation)

RULINGS ON LAW & MOTION MATTERSDepartment C-6Judge Luis A. RodriguezLaw and Motion heard at 1:30OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior tothe scheduled Thursday hearing. If your internet service is not available you may contactthe clerk in Dept. 6 (657-622-5206) for the ruling. Motions generally will not be continuedafter the tentative has been posted.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY.PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT’SSIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, noappearance will be necessary and the tentative will become the final ruling. If no oneappears at the hearing and the court has not been notified all parties submit on thetentative ruling, the tentative ruling will become the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the timescheduled for the motion. No new issues may be raised at oral argument, but the attorneysshould not merely restate their points and authorities.February 28, 2013# Case Name Tentative1 07CC112981901 Newport LLCv. Giftime LLCRulingCross-Defendant’s motion for summary adjudication isDENIED.Requests for Judicial Notice is GRANTED as to court documents(Nos. 8, 10, 16-20) and DENIED to trial exhibits (Exhs. 1-4, 6,9 & 11) and the court reporter transcripts (Exh. 5, 7 and 12-15) as they were not attached to a proper declaration. Thecourt will only take Judicial Notice of their filing and not theinformation contained therein. Accordingly, Giftimesevidentiary objections to Exhs. 6 & 11 of Newport Plaza’sRequest for Judicial Notice (re Trial Exhibits) are SUSTAINEDJudicial Notice of this court’s 2/7/13 Minute Order (denyingmotion to compel) is GRANTEDReasonNewport Plaza’s entire motion is based on the argument thatGiftime cannot show any damages to support its breach oflease claim. To prevail a “party moving for summary judgmentbears an initial burden of production to make a prima facieshowing of the nonexistence of any triable issue of materialfact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th826, 850.) “A prima facie showing is one that is sufficient tosupport the position of the party in question.” (Id. at 851.) Across-defendant moving for summary judgment/adjudicationsatisfies its initial burden of showing that a cause of action hasno merit if it shows that one or more element of the cause ofaction cannot be established, or that there is a completedefense to that cause of action. (Civ. Pro. Code, § 437c(p)(2).)Once a cross-defendant meets that burden, the burden shiftsto the cross-complainant to show that a triable issue of one ormore material facts exists to the cause of action or a defense.

(Id.)To put it more simply if Giftime can offer any damages thenNewport’s motion must be denied. But Giftime as explaineddoes not need to offer a triable issue of fact as Newport Plazahas not, and cannot, meet its burden because the Court ofAppeal Opinion clearly states that sufficient evidence waspreviously shown to the jury to support damages of at least$1,464,790 on the breach of lease claim. In the Opinion, theCourt of Appeal makes clear that sufficient evidence existed tosupport some, although not all, of the damages awarded bythe jury. More specifically, although the Court of Appeal foundthat there was insufficient evidence to support Giftime’sexpert’s (Brook) use of $3 million as a reasonable estimate ofGiftime’s annual revenues, there was sufficient evidence tosupport an award of $1,463,790 in damages. See Opinion at24-25 (emphasis supplied):“[T]he jury’s award of $4,794,228 in ‘lost profits’ is notsupported by substantial evidence. This does not meanthere is no evidence of breach of contract damages basedon Giftime’s expectancy of reasonable parking anddriveway common areas from October 2005 through April2008. The record certainly supports the jury’s finding that,starting in October 2005, Newport Plaza breached the leaseby unreasonably altering the previously favorableparking/driveway arrangement. … [T]here is substantialevidence supporting a jury award of $1,463,790 indamages.”This is the reason the Court of Appeal offered $973,995 toGiftime in lieu of a new trial. Thus, it matters not whether theLaw of the Case Doctrine bars the recovery of lost capitalcontributions as breach-of-lease damages. The appropriateissue is whether any damages exist, and not whether “lostcapital contributions” can be proven. Nor does it matterwhether Newport Plaza would be entitled to an offset. Indeed,the Court of Appeal’s Opinion recognized the right to an offset.That is why the Court of Appeal offered $973,995 stead of$1,463,790. The lower amount represents a reduction becauseof the $489,795 offset (i.e., the judgment belonging toNewport Plaza on its Complaint).As for Newport Plaza’s argument that Giftime was alreadycompensated $3 million by co-judgment debtors who settledthis action, that fact does not mean that Giftime cannot proveup the damages element or that Giftime will not be awardedmore than $3 million if the action proceeds to a re-trial. Forexample, although the Court of Appeal found Giftime’s expert’stestimony at the earlier trial to be too speculative based on theevidence then presented, there is no basis to determine at thistime that Giftime will be unable to present sufficient experttestimony and evidence to support a damages award of over$3,489,795.In sum, Newport Plaza has not, and cannot, meet its burdenhere because the Court of Appeal Opinion clearly states thatsufficient evidence was previously shown to the jury to support

2 11-469464Kelly Yen Wood v.Nazih Haddad3 11-500051Rooney v. PilatusAircraft LTD4 11-518600Anthony Baca v.Pacific RimMechanical5 12-566021Justin Paul Gille v.Nicole K Izquierdo6 12-568522Anthony W. Rectorv. Lawyers TitleInsuranceCompany7 12-591031Decira PrimentalRamirez v. City ofSanta Anadamages of at least $1,464,790 on the breach of lease claim.So even if the court were to agree with Newport’s abovearguments which it does not a triable issue of material factwould exists as to the amount of damages that should beawarded to Giftime.O/CRulingGary M. Pappas Application to appear Pro Hac Vice is GRANTEDO/C per Stipulation of partiesO/CO/CThe court on its own motion continues to 3-21 to allow counselto correct the following defects in the present motion.1. File a Proof of Service showing that proposed order wasserved (CRC 3.1362(d)2. State a basis for believing attorney-client relationship isirreparable and show why client consent not obtained(CRC 3.1362©8 12-600963Dieu-Hoa Le v.Ashton WatkinsRulingDefendant’s Demurrer to the 4 th C/A is SUSTAINED WITHOUTLEAVE TO AMENDDefendant’s Motion to Strike is MootPlaintiffs Opposition was untimely and not consideredReasonDefendant’s demurrer to the 4 th C/A objects to the use of CARules of Professional Conduct serving as a predicate to findthat professional misconduct constitutes unfair” or “unlawful”acts supporting a §17200 claim. The Court agrees it does notbecause Cal. Rule of Professional Conduct 1-100 itself statesthat these rules do not create new causes of action:These rules are not intended to create new civil causesof action. Nothing in these rules shall be deemed tocreate, augment, diminish, or eliminate any substantivelegal duty of lawyers or the non-disciplinaryconsequences of violating such a duty. CA ST RPC Rule

9 12-618720Union Bank, N.A. v.David Loutzenhiser1-100Here, plaintiff’s allegations of corporate counsel misconduct inof themselves do not trigger liability. They are only a standardfrom which discipline may be imposed on a violating attorneyand not the basis for an independent claim of harm. As amatter of law therefore, plaintiff’s 4 th C/A fails.RulingPlaintiff Union Bank, N.A.’s unopposed applications for right toattach orders and writs of attachment as to Defendants DavidLoutzenhiser (aka David F. Loutzenhiser aka David F.Loutzenhiser, Jr.) and Stacey M. Jinbo-Loutzenhiser (akaStacey M. Loutzenhiser aka Stacey Junbo-Loutzenhiser) isGRANTED. The total amount to be secured by each writ ofattachment shall be $68,825.28, though Plaintiff shall not beentitled to collect more than a total of $68,825.28 inconnection with both writs.Each right to attach order and writ of attachment shall beissued upon the filing of an undertaking in the amount of$10,000.00 for that writ.Plaintiff is to serve notice of this order.10 09-294527RDI Inc v. DigitalSpectrum SolutionsRulingThe court GRANTS Plaintiff RDI, Inc.’s unopposed motion for anorder awarding it attorney’s fees. Pursuant to Civ. Code, §1717 and Code Civ. Proc., § 1032, the court AWARDS Plaintiffattorney’s fees against Defendants Digital Spectrum Solutions,Inc. and Mohammed Parsa (aka John Parsa), jointly andseverally, in the total amount of $84,585.00.The court also AWARDS Plaintiff costs of litigation againstDigital Spectrum and Parsa, jointly and severally, in the totalamount of $8,037.42.Plaintiff is to serve notice of this order.ReasonFirst, the court points out that the instant motion was filed on12/31/12, 4 days before the court executed and enteredjudgment in Plaintiff’s favor. Therefore, it was technically filedprematurely. However, a premature motion for fees should isdeemed timely absent objection by the opposing party and ashowing of prejudice. (Yuba Cypress Housing Partners, Ltd. v.Area Developers, supra, 98 Cal.App.4th at p. 1086.) Second,defendants make no such objection, and there is no indicationthat they will be prejudiced by ruling on this motion. CRC Rule3.1702.Plaintiff as prevailing party is entitled to attorney feesAs to the merits of the fees plaintiff is entitled to an award of

attorney’s fees against both Defendants because plaintiff is theparty “prevailing on the contract” and is entitled to reasonablefees, which are recoverable as costs under Code Civ. Proc., §1032. (Civ. Code., § 1717; Code Civ. Proc., § 1033.5, subd.(a)(10)(A).) Plaintiff is also the The “prevailing party” underSection 1717as he is the party who recovered greater relief inthe action on the contract. (Civ. Code, § 1717, subd. (b)(1).)Here, plaintiff obtained judgment in its favor, as against Parsa,for violation of a written settlement agreement. (01/03/13Judgment, p. 4.) Section 4.4 of that settlement agreementprovides that, in a legal action to “enforce or interpret thisagreement … the prevailing party … shall be entitled to recoverfrom the losing party the reasonable attorneys’ fees and costsincurred by the prevailing party…” Plaintiff is therefore the“prevailing party” as to Parsa, entitled to fees; a conclusion notdisputed by Parsa. Plaintiff also obtained judgment in its favor,as against Digital Spectrum, by way of a motion to enforce thesame settlement agreement. (See 06/15/12 Minute Order onPlaintiff’s Motion to Enter Stipulated Judgment.) While thejudgment entered against Digital Spectrum is not for breach ofthe settlement agreement, that judgment was obtainedpursuant to the settlement agreement. Plaintiff therefore is the“prevailing party” under that agreement as to DigitalSpectrum, entitled to fees (see Starpoint Properties, LLC v.Namvar (2011) 201 Cal.App.4th 1101); a conclusion notdisputed by Digital Spectrum.The amount of feesThe trial court has broad authority to determine the amount ofa reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22Cal.4th 1084, 1095.) Fee setting ordinarily begins with the“lodestar,” a figure based on the number of hours reasonablyexpended multiplied by the reasonable hourly rate. (Ibid.) Thelodestar figure may then be adjusted upward or downward,based on consideration of factors specific to the case, in orderto fix the fee at the fair market value for the legal servicesprovided. (Ibid.). Explained below are the applicable criteriacommencing with the hourly rate.Hourly ratePlaintiff requests that the court award fees at the followinghourly rates: Mr. Kline: $225.00; Ms. Geffner: $300.00; Ms. Leavitt: $300.00; Mr. Comer: $300.00; and

Mr. Esenstein: $600.00.(Esensten Dec., Ex. B.)These rates are reasonable as they are consistent with theprevailing market rates charged by attorneys of similarexperience in this community. (See PLCM Group, Inc. v.Drexler, supra 22 Cal.4th at p. 1095; Esensten Dec., 6-9.)Moreover, defendants do not dispute the reasonableness ofthese hourly rates, or contend that different rates shouldapply.Number of hoursPlaintiff submits a “summary printout generated by [itscounsel’s] accounting department that accurately lists eachattorney billing entry from September 12, 2011 throughDecember 4, 2012 that was invoiced to [Plaintiff] with respectto” the instant motion. (Esensten Dec., 3-5 and Ex. B.)These records reflect a total of 402.80 hours spent by counsel’soffice. (Esenseten Dec., Exh. B) As to those entries, thedeclaration and records in support are corroborative to meetplaintiff’s initial burden of justifying the fees sought except inthe following entries which the court finds were not reasonable. 4.1 hours apparently spent by Mr. Kline for work relatedto responding to a document subpoena fromGoogle.com (see entries for 10/04/11, 10/05/11, and10/13/11); 79.6 hours apparently spent by Mr. Kline for work relatedto Plaintiff’s motion for summaryjudgment/adjudication, which the court denied as beingmoot and unsupported by any evidence (see entries for06/28/12, 06/29/12, 08/08/12, 08/09/12,08/10/12,08/14/12, 08/15/12, 08/16/12, 10/03/12, 10/24/12,10/25/12, 10/26/12, 10/31/12, 11/01/12, 11/07/12,and 11/08/12; see also 11/08/12 Minute Order onPlaintiff’s motion); 4.5 hours apparently spent by Ms. Geffner for workrelated to Plaintiff’s motion for summaryjudgment/adjudication (see entry for 08/17/12); and 0.6 hours of paralegal time and 5.0 hours of associateattorney time for which Plaintiff was apparently neverbilled because it was largely for time spent oncommunications between and among Plaintiff’s counsel.Additionally, The court finds that 4.8 hours of Mr. Kline’s timespent in connection with preparing the instant motion, Thetime spent preparing the moving papers appears reasonable

and appropriate. In light of the above, and given the lack ofany opposition by Defendants, the court finds that Plaintiff isentitled to recover for only the following time: Mr. Kline: 262.6 hours; Ms. Geffner: 1.0 hour; Ms. Leavitt: 2.9 hours; Mr. Comer: 13.5 hours; and Mr. Esensten: 33.80 hours.The final calculation of the above reasonable hours whenmultiplied by counsels’ hourly rates, results in a lodestar figureof $84,585.00.CostsAs to Cost plaintiff timely filed and served a verifiedMemorandum of Costs for a total of $$8,557.42. Defendantsfailed to timely file a motion to strike or tax costs, or otherwisechallenge the amount sought, thereby waiving any suchcontentions. The court notes, however, that the $520 filing feefor Plaintiff’s motion for summary judgment/adjudication doesnot appear to have been reasonably incurred, as the courtdenied that motion as being moot and unsupported by anyevidence. Thus, excising this item, costs are awarded in theamount of $8,037.42.

TENTATIVERULINGS ON LAW & MOTION MATTERSDepartment C-6Judge Luis A. RodriguezLaw and Motion heard at 1:30OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduledThursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 (657-622-5206) for the ruling. Motions generally will not be continued after the tentative has been posted.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILINGPARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTIONIS DISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance willbe necessary and the tentative will become the final ruling. If no one appears at the hearing and thecourt has not been notified all parties submit on the tentative ruling, the tentative ruling will become thefinal ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely restate theirpoints and authorities.# Case Name TentativeMay 9, 20135 11-531342Ochoa v. Fountain ValleyHospitalRulingThe court GRANTS defendant Khaled Chan, M.D.’s four motions tocompel discovery. Plaintiffs Olivia Ochoa and Arthur Ochoa are eachordered to respond to defendant’s (1) Form Interrogatories, Set One,and (2) Special Interrogatories, Set One. The court orders plaintiffsOlivia and Arthur Ochoa to each pay moving defendant $726 insanctions (i.e., a total of $1,452) and to respond to the discovery, bothwithin 20 days of notice of the court’s order.7 12-583178Balboa CapitalCorporation v. Grandma’sInc.Rulings(1)The court GRANTS defendants’ request to take judicial notice of (A) theRequest for Entry of Default and (B) the court docket sheet. The courtDENIES defendants’ request to take judicial notice of the unconfirmedcopy of the request for entry of default.(2)The court GRANTS defendants’ motion to set aside their defaults anddefault judgment. Defendants are ordered to separately file theirproposed Answer forthwith, which is deemed served as of the date ofthe hearing.ReasonDespite plaintiff’s arguments to the contrary, the motion appears to betimely in that the motion was filed within six months of the entry ofjudgment – i.e., motion filed on March 29, 2013, less than six monthsafter default judgment entered on October 3, 2012. (See Sugasawarav. Newland (1994) 27 Cal.App.4th 294, 297 [confirming that a Section

473(c) motion runs from “entry of judgment” and not entry ofdefault). Although defendants could have acted more diligently byfiling the motion sooner, it appears that the delay was due todefendants’ residing out-of-state and their apparent confusionregarding when and whether defaults were being entered. Further, thedelay appears to have been cause in part by defendants’ counsel’sfailure to review the file earlier. (See David Wilkirson Decl., filed5/2/13, at 6.) Finally, “the law strongly favors trial and disposition onthe merits”. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419.)(3)The court however CONTINUES this matter for further briefing as to theappropriate amount of compensatory costs to award plaintiff here,pursuant to Section 473(c)(1) of the Code of Civil Procedure. Thehearing is continued to May 30, 2013. Plaintiff to provide a declaration,filed and served (personally or by overnight mail) by May 13, 2013 tosubstantiate the $10,600 in attorneys’ fees and $1,415.70 in costsbeing claimed. Any opposition to be filed and served (personally or byovernight mail) by May 17, 2013. Any reply to be filed and served(personally or by overnight mail) by May 22, 2013.8 12-608929Craig v. Neill Gas, IncRulingSpecially Appearing Defendants’ unopposed motion for attorneys’ feesand costs is GRANTED and Attorneys’ fees in the amount of $10,580and costs in the amount of $2,325 will be added to the judgment.ReasonAfter a trial court grants a motion to quash service of summons due tolack of personal jurisdiction over an out-of-state defendant, the courtretains jurisdiction to rule upon that defendant’s motion by specialappearance for attorney fees; an order awarding fees to defendantdoes not compel any act or impose any liability upon the foreigndefendant. Shisler v. Sanfer Sports Cars, Inc (2008) 167 Cal.App.4 th 1,6.; Ca Civ Code §1717. Here Specially appearing defendants wereforced to incur attorneys’ fees and costs in bringing the successfulMotions to Quash Service in this matter. They request pursuant to Ca.Civ Code §1717 and §12.8 of the Operating Agreement theseexpenses. The court finds that they are so entitled to these expenses.As to the reasonableness of the fees and costs, 44 hours for thepreparation of 5 motions to quash does not appear unreasonable;especially considering two attorneys (one, out of state) were workingtogether. That is roughly five (5) eight-hour work days to complete five(5) motions to quash. Also, the hourly rate of $200 and $250 is notunreasonable. The amount of $2,325 for costs associated with the filingand motion fees is not unreasonable on its face, and there is noopposition to declare otherwise.9 12-617293Mountain West Medical vEccardRulingIf no verified Responses have been submitted then the Motion ofPlaintiff Mountain West Medical, Inc. for Order Establishing AdmissionsSpecified in Requests for Admission (Set One) Be Deemed Admittedand Conclusively Established is GRANTED. The request for monetarysanctions against Defendant Mark Eccard, in the amount of $565.00, isalso GRANTED: sanctions are to be paid to counsel for Plaintiff within35 days after service of notice of this Order.If no verified Responses have been submitted then theMotion of Plaintiff Mountain West Medical, Inc. for Order EstablishingAdmissions Specified in Requests for Admission (Set One) Be DeemedAdmitted and Conclusively Established is GRANTED. The request formonetary sanctions against Defendant Mark Eccard, in the amount of

$565.00, is also GRANTED: sanctions are to be paid to counsel forPlaintiff within 35 days after service of notice of this Order.Counsel for Plaintiff to give notice.10 12-620759Carranza v IbrahimRulingThe Demurrer to Defendants’ First Amended Answer to the 4 th and 5 thAffirmative Defense SUSTAINED WITH LEAVE TO AMEND. TheDemurrer is OVERRULED as to all other affirmative defenses asserted inthe First Amended Answer.ReasonA demurrer for uncertainty is strictly construed, even where acomplaint is in some respects uncertain, because ambiguities can beclarified under modern discovery procedures. (Khoury v. Maly's ofCalifornia, Inc. (1993) 14 Cal.App.4th 612, 616.) Here, the Answerfiled by Defendants purports to assert 17 affirmative defenses, all ofwhich are at issue in the instant Demurrer. However, a review of thedefenses at issue reflects that most of them do contain factualallegations sufficient to apprise Plaintiff of the factual basis for thedefense, or are really “affirmative denials”. It is clear that plaintiffshould have focused as set forth below on the “real defects” rather thanforcing the court and defendants to address its bird shot challenge.The 4 th Affirmative Defense the statute of limitations.A defendant is not required to plead ultimate facts to state a statute oflimitations defense; only to specify the statute(s) relied upon, includingthe subdivision(s) if applicable. (Code Civ. Proc., § 458; Davenport v.Stratton (1944) 24 Cal.2d 232, 246–247.) Here, Defendants haveprimarily done so. However, they have failed to state the applicablesubsections upon which they rely for C.C.P. §§ 339 and 340, and havealso invoked a Civil Code provision (§3144) which was repealed in2010, and in any event patently inapplicable here, as it pertains tocommencement of an action to enforce a mechanic’s lienThe 5 th Affirmative Defense for Laches.The basic elements of laches are: (1) an omission to assert a right; (2)a delay in the assertion of the right for some appreciable period; and(3) circumstances which would cause prejudice to an adverse party ifassertion of the right is permitted. (Stafford v. Ballinger (1962) 199Cal.App.2d 289, 296.) Here, the Complaint states only that Plaintiff“waited an unreasonable amount of time before filing its Complaint”and then filed “in retaliation.” This does not allege facts sufficient toconstitute a laches defense. In addition, the defense of laches isconfined to equitable actions; in legal actions delay and prejudice donot amount to a bar while the statute of limitations has not yet run. (3Witkin, Cal. Proc. 5th (2008) Actions, § 446, p. 568; Perez v. Singh(1971) 21 Cal.App.3d 870, 872 [“Laches may not be asserted as a barto a legal action.”].) Here, Plaintiff has asserted only two causes ofaction, both seeking damages based on labor laws.12 11-530828Kinsall v. PacificRulingThe Unopposed Motion to Enforce the Terms of the Settlement isGRANTED.

TENTATIVERULINGS ON LAW & MOTION MATTERSDepartment C-6Judge Luis A. RodriguezLaw and Motion heard at 1:30OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduledThursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 (657-622-5206) for the ruling. Motions generally will not be continued after the tentative has been posted.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILINGPARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTIONIS DISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance willbe necessary and the tentative will become the final ruling. If no one appears at the hearing and thecourt has not been notified all parties submit on the tentative ruling, the tentative ruling will become thefinal ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely restate theirpoints and authorities.May 30, 2013# Case Name Tentative1 11-452444Vecchio v. AmenRulingMotion to Enforce Settlement: DENIEDReasonIt is entirely unclear why court approval of the new Mutual Release andSettlement Agreement is necessary or proper.Defendant concedes that it is not seeking entry of judgment, against aparty in breach of a Settlement Agreement, and is no longer seekingclarification as to the terms of the Settlement, no Court action appearsnecessary.2 11-501167Inhale Inc v. WorldwideSmoke IncRulingDefendant’s Demurrer is sustained without leave to Amend as toBreach of Contract as to Worldwide only. Defendant’s demurrer tothe 2 nd , 3 rd and 4 th causes of action are OVERULED. Defendant’s toanswer in 10 days.Reason“Judicial estoppel prevents a party from asserting a position in alegal proceeding that is contrary to a position previously taken inthe same or some earlier proceeding. The doctrine serves a clearpurpose: to protect the integrity of the judicial process.” (Clevelandv. Policy Management Systems Corp. (5th Cir.1997) 120 F.3d 513,517, fn. omitted.) As set forth below Worldwide is judiciallyestopped except for the breach of contract as to Worldwide fromnow claiming res judicata to attack plaintiffs 4 th amended complaint.First, in reviewing the arbitrator’s award it is obvious thatdefendants resisted any effort by plaintiff’s claimant in the actionand the arbitrator to include the fraud claims. For example, thearbitrator writes “ Respondent stated that it did not want to moveto expand the scope of arbitration because such an expansion wouldbe prejudicial to Respondent given the lack of time to prepare anddefend the additional claims” (p.4 arbitrators award) In light of thisobvious intent defendant’s disingenuously ask this court how did itabandon its claims as to the fraud. Based on the above it is clear

that it did. Second, the court points out that the arbitration motionwas resisted by plaintiff and it sought to cull out the fraud claim.This was rejected by this court when it granted the motions tocompel arbitration. Thus all claims were intended by this court tofall within the arbitration. So for now defendants to assert thatplaintiff litigated or had the opportunity to present those claims andtherefore res judicada requires this court to disregard and rewritethe arbitration award. It will not do so. The bottom line here is thatthis Court granted Bard’s and Worldwide’s separate Motions toCompel Arbitration, which was understood to include all the claimspled against the defendants. However, whether by mistake ordesign what ultimately got arbitrated was just the Breach ofContract cause of action as pled against Worldwide. The otherclaims were not decided by the arbitrator. Moreover, the awardwithout objection has been confirmed.3 11-520642Sadeghi v. The City ofSan ClementeRulingDefendant City of San Clemente’s Motion for Attorney’s Fees isGRANTED in the amount of $7,250. The Court grants the City’sunopposed request for judicial notice as to the documents attached asExs. A-I to the Declaration of Mr. Oderman, as filed with the Motion.ReasonThis Court already determined that the hourly rates of City’s counselwere reasonable. The only remaining issue, then, is whether all of thenew attorney time claimed was proper. The court notes that in theReply, City has withdrawn its request for Mr. Thind’s time. It has alsowithdrawn requests for a total of .6 hours of Mr. Oderman’s time,leaving 16.5 hours as the balance of the request (which includes 4hours for preparing the Reply and appearing for the pending hearing).Plaintiff has objected to two categories of time. The first is a 1.3 hourfee for time that Mr. Oderman spent in closed session with the CityCouncil. The court agrees that this time to communicate with the citycouncil Although the about the pending appeal and a related settlementproposal is too tangential to warrant inclusion in a fee award. (City ofIndustry v. City of Fillmore (2011) 198 Cal.App.4 th 191, 218-219 [feescannot be recovered for work unrelated to the SLAPPmotion].) Similarly, .7 hours which Mr. Oderman spent attempting toget a case published, for citation in the instant appeal, again is tootangential to include in the fee award.4 11-527824Kim v. BaltayanRulingThe court CONTINUES defendants’ motions to compel plaintiff’s mentalexamination and deposition to August 1, 2013. Defendants arepermitted to continue with other discovery in the meantime, includingthe deposition of Dr. Sung, in order to determine whether plaintiff iscapable of proceeding with the neuropsychological examination anddeposition. Plaintiff is to cooperate with providing informationnecessary regarding the reason provided for not proceeding now withthe examination and deposition.Defendants to file and serve any supplemental briefing by July 10,2013. Any opposing papers to be filed and served by July 19,2013. Any reply papers to be filed and served by July 25, 2013.6 12-600083Buffington v. RouseRulingMotion to Strike is GRANTED, without leave to amend.ReasonIn order for a Plaintiff to recover punitive damages, the Plaintiff mustplead and prove that Defendant was “guilty” of malice, oppression, or

7 12-616914Hess v. Gordon laneHealth Care, LLC8 12-619728Gomez v GreentreeServicing, LLC9 12-575537Pouzbaris v. PrimeHealthcare LLCfraud. Civil Code §3294(a). Here, as there are no allegations of fraud,the Court need only examine “malice” and “oppression.” It is settledthat “ordinarily routine negligent or even reckless disobedience oftraffic laws will not justify an award of punitive damages.” Taylor v.Superior Court (1979) 24 Cal.3d 890. What is missing from plaintiffsallegation is that state of mind to intentionally or purposely causeinjury for example intoxication. Here, Plaintiff’s allegation thatDefendant inappropriately attempted to pass other bicyclists, in amanner which violated California Vehicle Codes and resulted in injury,is not malice or oppression it is violation of a traffic law. It is anallegation supporting negligence nothing more and as such does notsupport punitive damages.RulingAll other motions filed in this matter except as provided have beenwithdrawn.Plaintiff’s Motion to Compel Further Responses to RPDS, SEt 1 as toDefendant Sun Mar Management Services (10, 12, 13 only)Defendant indicates it has provided supplemental responses tonumbers 10 and 12, therefore the motion is moot as to those RPDS. Tothe extent the motion is not moot as to those RPDS.As to RPD 13 Clearly, whether the board members knew of staffingissues and/or patient care issues is relevant to this lawsuit. The issue iswhether board minutes are private. Defendant fails to cite to any casesuggesting that board minutes are private or will disclose any privateinformation. As defendant fails to support its objection, motion isGRANTED as to RPD, No. 13. Defendant to provide further responses,without objection, within 10 days.Plaintiff’s Motion to Compel Further Responses to SpecialInterrogatories, Set 1 to Defendant Gordon Lane Healthcare, LLC (13-18 only):Court DENIES the motion as to these requests. The court points outthat the information is private yet fails to offer any detail as to whatparticularized need supports the disclosure of this confidentialinformation.Harris v. Sup.Ct. (Smets) (1992) 3 CA4th 661. Furthermore, plaintiffadmits that defendant disclosed the names of all the employees whoprovided care to Plaintiff in Special Rog No. 1. Therefore, Plaintiffalready has the names of those individuals.RULING:The Demurrer of defendants Bank of America, N.A. & ReconTrustCompany, N.A to the First Amended Complaint is SUSTAINED as tothe First, Second and Third Causes of Action, with leave to amend.Plaintiffs to file any amendment within 20 days after service of notice ofthis Order. Defendants to give notice. Defendants’ request for judicialnotice is GRANTED for Exs. A- F, as to the existence and recordation ofthose documents and the legal effects thereof, but not of facts stated inExs. B and E as to the amounts owed when they were recorded.RulingThe Motion for Summary Judgment filed by Defendant Prime HealthcareServices - Anaheim, LLP dba West Anaheim Medical Center isGRANTEDReasonThe facts are as follows plaintiff alleged injury occurred while she was apatient in Defendant’s hospital, travelling without assistance orsupervision between the bathroom and her hospital bed. She allegedlyfell because the floor in her room was slippery. The claim is thus basedon Defendant’s alleged failure to ensure Plaintiff’s safety whileambulatory in the hospital, and is therefore a claim for professionalnegligence. Moreover it arises from the rendering of services for which

the hospital is licensed. Finally it is undisputed that she fell on 6/15/10and knew of the alleged negligence at that time. (UF 1-5.) The issuepresented by defendants motion is under these facts is plaintiff’s actiontime barred under Section 340.5? After a review of the applicable law itis.Under Section 340.5, the limitations period for an action for injury ordeath against a health care provider based upon such person's allegedprofessional negligence is 3 years after the date of injury or 1 yearafter the plaintiff discovers, or through the use of reasonable diligenceshould have discovered, the injury, whichever occurs first. Further,when a cause of action is asserted against a health care provider on alegal theory other than medical malpractice, the courts must determinewhether it is nevertheless based on professional negligence, so as totrigger MICRA. (Unruh-Haxton v. Regents of University of California(2008) 162 Cal.App.4th 343, 353 [claims for intentional torts notsubject to MICRA where premised upon stealing and then selling aperson's genetic material for financial gain].) Thus, allegations of anegligent act or omission by a health care provider in renderingprofessional services which proximately caused injury are subject toSection 340.5, if the services are within the scope of the provider'slicense. (C.C.P. §340.5(2); Bellamy v. Appellate Department (1996) 50Cal.App.4th 797, 807; Central Pathology Service Medical Clinic, Inc. v.Superior Court (1992) 3 Cal.4th 181, 192 [“professional negligence”under MICRA includes claims for fraud where premised uponperformance of professional services].Here, Defendant claims that this action is subject to Section 340.5under Murillo and its progeny, because the claim is one brought by apatient against a hospital for an alleged injury sustained in the courseof the hospital’s care for her, and is thus really a claim for professionalnegligence. Defendant is correct because contrary to Plaintiff’s claim,under Flores v. Presbyterian Intercommunity Hospital (2013) 213Cal.App.4 th 1386, (which was published after this Motion wasfiled) does not represent a change in existing law, or a rejection of theholding in Murillo. Nor, as Defendant argues, does it represent asudden “split” in the appellate courts of this state. Instead, Flores canbe reconciled with and viewed as consistent with the holdings inMurillo, Flowers, and Bellamy (although potentially inconsistent withdictum in Murillo) in concluding that a claim based on an equipmentfailure in a hospital, rather than a failure to properly secure orsupervise a patient, does not trigger Section 340.5. Under all of thesecases, if the alleged negligence occurred in rendering services for whichDefendant is licensed, Section 340.5 controls.

TENTATIVERULINGS ON LAW & MOTION MATTERSDepartment C-6Judge Luis A. RodriguezLaw and Motion heard at 1:30OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduledThursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 (657-622-5206) for the ruling. Motions generally will not be continued after the tentative has been posted.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILINGPARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTIONIS DISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance willbe necessary and the tentative will become the final ruling. If no one appears at the hearing and thecourt has not been notified all parties submit on the tentative ruling, the tentative ruling will become thefinal ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely restate theirpoints and authorities.June 6, 2013# Case Name Tentative2 11-447172Grace v. HendricksRulingThe court DENIES defendant’s motion to compel further responsesto defendant’s Special Interrogatories. The motion is bothprocedurally and substantively defective. First, the SeparateStatement fails to comply with Rule 3.1345 of the California Rulesof Court. Second, defendant fails to show that the objections madeand/or the answers provided are improper. For example, it appearsthat defendant is attempting to avoid the consequences of havingfailed to previously move to compel further responses to her forminterrogatories.3 11-452662Carlson v. SaddlebackChurchPlaintiff is awarded $1,500 in sanctions against moving defendantpayable to plaintiff’s attorney within 15 days of this order.RulingThe Motion to Tax is DENIED as to all but Reporters fees and Models,Blowup, and photocopies cost which is taxed as follows:Reporter’s fees are reduced from $4,750 to 4,250. Models, blowup andphotocopies of exhibits are reduced from $6310.70 to1,600.20. Expert witness Fees are awarded under CCP 998 (c)(1) inthe sum of $45,505.Total cost to defendants awarded per cost bill is $82,493.35ReasonFirst the court finds that Plaintiff’s Motion is untimely. Under C.R.C.3.1700. However, time limitations pertaining to a memorandum ofcosts are not jurisdictional. (Haley v. Casa Del Rey Homeowners Ass'n(2007) 153 Cal.App.4th 863, 880.) The trial court thus has jurisdictionto consider an untimely cost bill. (Hoover Community HotelDevelopment Corp. v. Thomson (1985) 168 Cal.App.3d 485, 487-88.) Here, as Defendants have presented no claim that they were inany way prejudiced by the one-day delay in Plaintiff’s submission of itsMotion to Tax Costs, the court will consider the merits. As to the

merits we start with that if items in a cost bill appear to be proper, theburden is on the party seeking to tax costs to show that they were notreasonable or necessary. Ladas v. Cal. State Auto Ass’n. (1993) 19Cal.App.4th 761. Here, except for reporter fees and the charge for thevideo enhancement plaintiff has not shown that the cost bill submittedwas not reasonable and necessary to the litigation of this lengthy andcomplex matter.As to the discretionary cost regarding expert witness fees as explainedbelow plaintiff has not met her burden to show that the offer was notreasonable when made.Under C.C.P. §998(c)(1), Defendants may recover all of theirreasonably necessary expert fees, whether incurred before or after theoffer was made. (Regency Outdoor Advertising v. City of Los Angeles(2006) 39 Cal.4 th 507, 532-33 [expert witness fee awards under C.C.P.§998(c) “have never been tied to when these fees were incurredrelative to a compromise offer.”].) Plaintiff has attempted to avoid thisresult by arguing that the C.C.P. §998 offer was not reasonable whenmade. However, as noted in Elrod v. Oregon Cummins Diesel, Inc.(1987) 195 Cal.App.3d 692, 700, upon which Plaintiff relies: “Where, ashere, the offeror obtains a judgment more favorable than its offer, thejudgment constitutes prima facie evidence showing the offer wasreasonable and the offeror is eligible for costs as specified in section998. The burden is therefore properly on plaintiff, as offeree, to proveotherwise.” The burden is on Plaintiff to establish that the offer wasnot reasonable. She has failed to do so. In addition, the fact that adefense verdict was reached within hours after the jury commenceddeliberations tends to support Defendant’s claim that, even when theoffer was made, there were substantial weaknesses in Plaintiff’s case,and as to Plaintiff’s credibility, which affected the potential settlementvalue for the action. (Berman Decl., 25, 26.) Defendants may thusrecover for their expert fees, as they have provided sufficientexplanation to establish that the costs for the experts at issue werereasonably incurred to respond to Plaintiff’s claims, even if not all ofthem ultimately had to testify, which Plaintiff has failed to effectivelyrefute. (Berman Decl., 27-30.) Defendants may reasonably recoverthese fees. However, $51,058.5 was requested for that category,without explanation for the difference. It appears that lay and expertwitness fees were combined. So the award for expert fees only is$45,505.4 11-453635Jiagbogu v. Bank ofAmericaRulingThe requests for judicial notice filed by both Plaintiff and Bank ofAmerica is GRANTED.Defendant Bank of America, N.A.’s Motion for Summary Judgment, orin the Alternative, Summary Adjudication is GRANTEDReasonThe moving party bears the burden of persuasion to demonstrate thatthere are no triable issues of material fact and that it is thus entitled tosummary judgment as a matter of law. (C.C.P. §437c(p)(2); Aguilar v.Atlantic Richfield Co. (2001) 25 Cal.4 th 826, 851.) The moving partyhas the burden of establishing that either (1) one or more elements ofthe plaintiff’s claim cannot be established, or (2) a complete defense tothat cause of action exists. (C.C.P. § 437c(o).)If the moving party carries its initial burden, then the party opposingthe motion must produce admissible evidence to show that a triableissue of fact exists. (C.C.P. § 437c(p)(2); Green v. Ralee EngineeringCo. (1998) 19 Cal.4 th 66, 72.) The moving party’s papers are to be

strictly construed, while the opposing party’s papers are to be liberallyconstrued. (Comm. to Save Beverly Highland Homes Ass’n v. BeverlyHighland (2001) 92 Cal.App.4 th 1247, 1260.) A court may not makecredibility determinations, or weigh the evidence, on a motion forsummary judgment: all evidentiary conflicts are to be resolved againstthe moving party. (McCabe v. Am. Honda Motor Corp. (2002) 100Cal.App.4 th 1111, 1119.) Against this backdrop the court reviewswhether the claims are barred by the SOL and as a matter of law. Asexplained below they are.Statute of Limitations on the 1 st and 2 nd COAPlaintiff’s claims for the First and Second Causes of Action, which assertclaims for fraud and negligent misrepresentation, are subject to C.C.P.§338(d), which provides a three-year limitations period. However, forsuch claims, the cause of action is not deemed to have accrued untilthe discovery, by the aggrieved party, of the facts constituting thefraud or mistake. Here, Plaintiff’s claims are based upon events thatallegedly occurred in the “third meeting” that led to loan origination in2006. (Complaint, 18-24, 32-37, 47-54.) Such claims are thustime-barred under C.C.P. §338(d) because the Complaint was not fileduntil 2/28/11, unless Plaintiff can establish delayed discovery.Plaintiff offers no evidence to support delayed discovery tolls the SOL.To assert a claim that is time-barred on its face, a plaintiff must show(1) the time and manner of discovery and (2) the inability to havemade earlier discovery despite reasonable diligence. (Fox v. EthiconEndo Surgery (2005) 35 Cal.4 th 797, 808.) The burden is on plaintiff toshow diligence, as conclusory allegations will not suffice: the plaintiffmust thus show that, despite diligent investigation, he could not havereasonably discovered facts supporting the cause of action within theapplicable statute of limitations period. (Id.) Plaintiff here has failed todo so. Plaintiff asserts two claims to establish delayed discovery. First,he argues that he did not get copies of the loan documents until 2009,and thus did not know the terms until then. Second, he claims that hedid not discover that he had obtained an adjustable rate loan, so thathis monthly payments could change, until September 2008, when hismonthly payment increased to $22,000/month. (Opp., pp. 8 - 10; PUF14-21.)Failure to read the documents does not trigger delayed discovery.Under California law, Generally, it is not reasonable to fail to read acontract; this is true even if the plaintiff relied on the defendant'sassertion that it was not necessary to read the contract. (Brown v.Wells Fargo Bank, NA (2008) 168 Cal.App.4th 938, 959.) Reasonablediligence requires a party to read a contract before signing it. (Id; seealso Brookwood v. Bank of America (1996) 45 Cal.App.4th 1667, 1674,and Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th394, 421 [where party had a reasonable opportunity to discover theessential terms of the contract, failure to do so is attributable to party’sown negligence, despite alleged misrepresentations about contract’sterms].) Here, Plaintiff does not deny that he signed the loandocuments at issue: instead he contends only that he was not providedwith a copy. (UF 5-8; Jiagbogu Decl., 21.) However, the LoanApplication showed that he was applying for an adjustable rateloan. (UF 4.) The Promissory Note, the Adjustable Rate Rider attachedto the DofT, and the Truth in Lending Disclosure Statement also allclearly stated that the rate was adjustable. (UF 4-7; Goldfarb Decl.,Exs. B-D.) Plaintiff does not deny that he signed these documents,which plainly disclose an adjustable rate mortgage. Reasonablediligence required him to read those documents before signingthem. (Brown v. Wells Fargo Bank, NA , supra, 168 Cal.App.4th at

959.) Failure to do so does not create a basis for a delayed discoveryclaim.Change in the monthly payments is not delayed discoveryThe second claim asserted by Plaintiff to establish delayed discovery isthat he did not discover that he had obtained an adjustable rate loan,so that his monthly payments could change, until 9/08, when hismonthly payment increased to $22,000/month. (Opp., p. 8; PUF 17-21.) However, he admits that his monthly payments under the sameloan had previously increased from $7,680.73/month to $8,256.78 inSeptember 2007. (Jiagbogu Decl., 24.) Plaintiff claims that thischange did not alert him to the fact that he had obtained an adjustablerate mortgage because other factors (i.e. changes in property taxesand insurance) could result in variations in the monthly payment evenfor a fixed-rate mortgage. [1] (Jiagbogu Decl., 24.) However, thisincrease put Plaintiff, at a minimum, on inquiry notice. This inquiryterminated the accrual delay as to the discovery rule because when aplaintiff has reason to discover the cause of action when he has reasonat least to suspect a factual basis for its elements – i.e. when he has“notice or information of circumstances to put a reasonable person oninquiry.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.) Inother words, plaintiffs are charged with presumptive knowledge of aninjury if they have information to put them on inquiry or have theopportunity to obtain knowledge from sources open to theirinvestigation. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th797, 807-08.) The statute of limitations begins to run when theplaintiff has information which would put a reasonable person oninquiry. (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1374.) Plaintiff’sfailure to investigate the basis for his admitted payment increase in2007 bars his delayed discovery claim. This is supported by BofA lettersent to Plaintiff on 8/6/07, which specifically discusses paymentincrease issues under his adjustable rate mortgage. (UF 9.) Plaintiffresponds only that he does not recall receiving it, but does not actuallydeny receipt. This response is not sufficient to rebut inquiry notice forpurposes of delayed discovery. Further, plaintiff’s reliance on Boschmav. Home Loan Center, Inc. (2011) 198 Cal.App.4 th 230, is erroneous asit did not address delayed discovery. Further, has not cited anyauthority to suggest that Boschma’s holding extends to limitationsissues. But in considering summary judgment, where the moving partyhas carried its initial burden, then the party opposing the motion mustproduce admissible evidence to show that a triable issue of fact exists.(C.C.P. § 437c(p)(2); Green v. Ralee Engineering Co. (1998) 19 Cal.4 th66, 72.) Here, BofA has made a prima facie showing that Plaintiff’sclaims are barred under C.C.P. §338(d), the burden shifts to Plaintiff toshow, in order to avoid summary judgment, that there are triableissues of fact sufficient to support its delayed discovery claim. Plaintiffas discussed has offered nothing more than self-serving conclusionsthat he didn’t know or that he can’t recall. Moreover, Boschma is notapplicable to to avoid Section 338(d).For the same reasons, the claims are barred under the four-year UCLlimitations provision in B&PC §17208, which is subject to comparableaccrual rules. (Aryeh v. Canon Business Solutions, Inc. (2013) 55Cal.4th 1185, 1196.)No Evidence of Justifiable Reliance (1 st and 2 nd COA)For these same reasons, Plaintiff’s 1 st and 2 nd cause of action also failbecause Plaintiff cannot establish justifiable reliance.(Hadland v. NN Investors Life Ins. Co. (1994) 24 Cal.App.4th 1578,1586, 1589 [having failed to read their policy and having accepted itwithout objection, insured could not complain that it was not as

expected: their reliance on representations about what they weregetting for their money was unjustified as a matter of law].) Plaintiffcannot establish justifiable reliance on alleged misrepresentationswhere he could have discerned the true facts by reading the documentshe signed. (Id.) Here, the true facts were apparent from a review ofthe documents. Plaintiff claims that he did not know he had agreed toan adjustable rate mortgage at all. (Complaint, 1, 22.) This case isthus distinguishable from Boschma, supra, 198 Cal.App.4th 230, whichinvolved claims about the function of an option arm - -where claimsinvolved a “teaser rate” and actual interest rates and monthlypayments sufficient to amortize the loan (or at least pay the accruinginterest) were hidden in the complexity of the Option ARM contractterms, court concluded that “given our analysis of the loan documents,we reject the contention that the disclosures actually given to plaintiffspreclude reasonable reliance” (Id. at 249.) Here, in contrast, thedocuments obviously provided for an adjustable rate, which was plainlydisclosed in multiple loan documents. Plaintiff could thus have easilydiscerned this fact by even a cursory review of the documents hesigned.Finally, Plaintiff cannot establish justifiable reliance on alleged promisesthat the loan at issue would have a fixed-rate, because he admitted ina prior verified complaint that he entered into the subject loan becausehe “was talked into an option arm loan.” (RJN, Ex. K, 10.) He is thusbarred from asserting a contrary claim here. (International EngineParts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345, 350 [judicialestoppel prevents a party from asserting a position in a judicialproceeding that is contrary or inconsistent with a position previouslyasserted in a prior proceeding].)The 3 rd COA (UCL ClaimPlaintiff’s UCL claim is barred because UCL claims cannot be based onany sort of vicarious liability. As noted in Emery v. Visa Int’l. Serv.Ass’n (2002) 95 Cal.App.4 th 952, claims under section 17200 cannot bepredicated on vicarious liability: a defendant's liability must be basedon his personal “participation in the unlawful practices” and “unbridledcontrol” over the practices that are found to violate section 17200 or17500. (Id. at 960, citing People v. Toomey (1984) 157 Cal.App.3d 1,14.) Here, Plaintiff’s UCL claim is based entirely on allegedmisrepresentations that occurred in 2006, yet Plaintiff admits in theComplaint that BofA did not take over Countrywide until January2008. (Complaint, 2.) BofA thus cannot be held liable on Plaintiff’sUCL claim.6 11-532088Welch v. The Regents ofthe University ofCalifornia8 12-568522Rector v Lawyers TitleInsurance CompanyRulingThe court GRANTS plaintiff’s unopposed motion for leave toamend. The proposed Third Amended Pleading is deemed served as ofthe date of the hearing. Plaintiff to separately file an original copy ofthe proposed Third Amended Complaint forthwith. Defendants torespond to the new pleading within 20 days.RulingCourt will continue the motion to 6-27-13 in order to review transcriptsfrom 1-31-2013. Court clerk to give notice.ReasonOn the surface plaintiff’s “affidavit” is internally inconsistent. On theone hand, he states he was not “allowed to testify at the January 31,2013 hearing”, while on the other hand he states, “I was not properlynoticed of this hearing date on January 31, 2013. The dismissal wasordered because there was no opposition and no appearance byplaintiff.” So, Plaintiff is suggesting he appeared but not allowed to

9 12-618425Jaramillo v. HabanaRestaurant10 13-622654Talebdoost v VikingRange Corporation“testify”, but a dismissal was entered because he didn’t appear. Butfrom the minute order to which judicial notice is taken it appears thatplaintiff knew of the hearing. The real question is whether is whetheror not he was allowed to “testify” is unknown. Thus, a transcript fromthe 1-31-2013 necessitates the court continue this motion. Further, asno opposition is filed a review of the transcript is critical to the dueprocess claim.RulingThe Motion to be Relieved as Counsel, filed by attorney Deacon Ladaszas to Plaintiff Rene Jaramillo, is DENIED without prejudice. Counsel hasnot shown that the address where he served the client is current, orthat he has been unable to locate a more current address for the clientafter making reasonable efforts to do so.RulingExecutive Appliance Demurrer and Motion to StrikeDefendant Executive Appliance, Inc’s demurrer is sustained with 20days leave to amend as to the 3 rd cause of action for Breach of ExpressWarranties and 6 th cause of action for IIED, and overruled as to the 7 thcause of action for NIED. To the extent the ruling on the demurrer doesnot render the Motion to Strike moot, it is granted with leave to amend.Reason3 rd C/A for Breach of Express WarrantiesThis cause of action is uncertain and fails to state sufficient facts toconstitute a cause of action against moving defendant. For example,how, when, or by what mechanism any affirmation of fact or promisewas made to the consumer about the refrigerator by DefendantExecutive. See Cal. Comm. Code§2313(1)(a),(b); Weinstat v. DentsplyIntern., Inc. (2010) 180 Cal.App.4th 1213, 1227.6 th cause of action for IIED,As to this C/A most of the allegations are directed at Defendant Viking.There are no facts that Executive knew the fix it kits were not workingand continued to install them, at Vikings’ direction. Clearly, more factsneed to be pled as to when Executive knew the fix it kits were notworking and decided to install them anyway, at a risk to the consumer.As pled right now, it appears Executive went out twice to fix therefrigerator. This is not supportive of outrageous conduct, but rather,the opposite.7 th cause of action for NIEDThe cause of action pled here is based on bystander theory of NIED.For example, Plaintiff Soraya has pled injury due to Defendants’negligence. Complaint64. Plaintiffs plead they are husband and wife.Complaint1. Plaintiff Freydoon Talebdoost was present at the scene atthe time it occurred. Complaint 22 and 65. Plaintiff Talebdoost hassuffered severe emotional distress. Complaint66. Although in the replydefendant argues that Mr. Talebdoost’s severe emotional distressclaims are not sufficiently specific, that is a new argument raised forthe first time in the reply and was not considered.The Motion to StrikeAs to the motion to strike, Defendant seeks to strike out the punitivedamage language throughout the Complaint. To the extent thedemurrer does not render the Motion to Strike is moot it is grantedwith leave to amend. There are simply no facts to warrant punitivedamages against this defendant at this time.Defendant, Viking Range Motion to StrikeRulingMotion to Strike punitive damages, claims relating to the Breach ofExpress Warranty cause of action, and IIED cause of action areGRANTED with leave to amend. The Motion to strike is DENIED as toNIED.

13 12-615194Zayat v. AngelesContractorRulingThe court GRANTS defendants’ unopposed request to take judicialnotice of a Verified Certificate of Licensure from the California StateLicense Board, dated January 12, 2013, concerning plaintiff’sContractor’s License.The court SUSTAINS defendants’ demurrer to the entire Complaint,with 30 days leave to amend.ReasonIn a nutshell, the Complaint fails to allege compliance with Section7031 of the Business and Professions Code. Section 7031 appears toapply here and plaintiff does not argue otherwise. Section 7031requires that plaintiff allege that he was duly licensed or allege factsshowing an exception. (See Gore v. Witt (1957) 149 Cal.App.2d 681,686.) Although plaintiff argues that it has substantially complied, factsof such are not alleged in the Complaint. As for the sufficiency of theeach of the other C/A in light of the insufficiency of the complaint as awhole it is not necessary at this time to rule on each c/a.

TENTATIVERULINGS ON LAW & MOTION MATTERSDepartment C-6Judge Luis A. RodriguezLaw and Motion heard at 1:30OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduledThursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 (657-622-5206) for the ruling. Motions generally will not be continued after the tentative has been posted.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILINGPARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTIONIS DISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance willbe necessary and the tentative will become the final ruling. If no one appears at the hearing and thecourt has not been notified all parties submit on the tentative ruling, the tentative ruling will become thefinal ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely restate theirpoints and authorities.June 13, 2013# Case Name Tentative1 09-122674Le v. PhamRulingMotion re: Receiver’s Final Account is GRANTED.ReasonThe instant motion is granted, as the parties have failed todemonstrate that Mr. Mosier violated Court Orders or acted outside thescope of his authority. Additionally, there is nothing to demonstratethat Mr. Mosier acted in bad faith or caused any significant losses toNewland.Further, as this Court’s January 30, 2013 Order required, only, thepreparation of Newland’s 2012 Tax Return, the Receiver is absolved ofany obligation to file the return.Additionally, the Receiver’s fees and costs are approved in the totalamount of $104,286.78, which reflects a slight reduction based onexcessive court appearances by Mr. Mosier and Mr. Baker having beenunprepared on September 23, 2012.Finally, the Receiver is authorized to satisfy these fees through theassets of Newland and the remainder, by a 25/75 division, with thehigher portion being paid by Plaintiffs, the parties who purchased NPIand benefitted the most from the receivership. City of Chula Vista v.Gutierrez (2012) 207 Cal.App.4 th 681, 692.2 11-447172Grace v. v. HendricksRulingsThe court GRANTS defendants’ two motions to strike in part, andDENIES them in part. Specifically, the court strikes the following fromCase No. 2011-00447172:Re punitive damages: “of $100,000” from Item “e” in the prayer tothe 1 st and 2 nd causes of action, from Item “b” in the prayer of the3 rd cause of action, and from Item “c” in the prayer of the 5 th causeof action; “of $250,000” from Item “b” in the prayer of the 4 th causeof action.Re attorneys’ fees: all of Item “a” in the prayer to all causes ofaction, at p. 11, lines 11-12 of the FAC.

ReasonHere, plaintiff’s request for attorney’s fees is explicitly based onSection 685.040 of the Civil Code. By stipulating to delete thereference to Section 685.040, plaintiff appears to concede thatSection 685.040 does not apply in this case. Plaintiff however didnot provide any basis to support a request for attorneys’ feeshere. Notably, this action is not based on any contract, let aloneany contract with an attorney’s fee provision. Moreover, plaintiff(who is an attorney) is in pro per in this action. As such, thereappears to be no basis for attorneys’ fees here. (See Trope v. Katz(1995) 11 Cal.4th 274, 280) [“[A]n attorney litigating in propriapersona cannot be said to ‘incur’ compensation for his time and hislost business opportunities.”].)As to Case No. 2011-00458513, the court strikes the following:Re punitive damages: “of $100,000” from Items “e” in the prayerof the 1 st , 2 nd , 3 rd , and 5 th causes of action; and “of $250,000” fromItem “b” of the prayer of the 4 th cause of action.Re attorneys’ fees: all of Item “a” in the prayer to all causes ofaction, at p. 17, lines 8-9 of the FAC.ReasonSame as case 447172The court denies the motion as to all other portions sought to bestricken.Defendants to answer the First Amended Complaints within 10 days.3 11-455035Ocampo v OCKCorporationRulingMotion to Vacate Default and Default Judgment is granted. The Courttherefore vacates the judgment and orders Plaintiffs to amend theComplaint to add the damages in connection with the consultants, etc.Amended Complaint to be filed and served within 20 days and alldefendants ordered to respond per code. Defendants to give notice.ReasonPlaintiff asserts that the court should summarily deny Defendantparents motion to again vacate the default judgment because they arejust asking for another bite of the apple which this court has alreadydenied. However, as discussed below this is not the same apple? Thekey issue here is not the improper rehashing of the fraud but the newissue of whether the complaint afforded the defaulting defendantsadequate notice of the maximum judgment that could be assessedagainst them. If it did not as then the default judgment is voidallowing this court to vacate that judgment to permit plaintiff to amendto seek that larger amount. Julius Schifaugh IV Consulting Service,Inc. v. Avaris Capital, Inc (2008) 164 CA4th 1393 which places theentire case back at issue allowing defendants to answer and to havetheir day in court.The Legal principlesDefendants seek to vacate the default judgment on grounds of fairnessand due process which are embodied in section 580 which controls andprescribes strictly how a default judgment is to be entered against adefaulting party. But as explained below a default judgment must beentered consistent with due process. In In re Marriage of Lippel,supra, 51 Cal.3d at p. 1167 the Supreme Court explained how fairnessand due process were implicated when section 580 was not strictlyapplied.“It is fundamental to the concept of due process that a defendant isgiven notice of the existence of a lawsuit and notice of the specific relief

which is sought in the complaint served upon him. The logic underlyingthis principle is simple: a defendant who has been served with a lawsuithas the right, in view of the relief which the complainant is seekingfrom him, to decide not to appear and defend.... [A] defendant is not ina position to make such a decision if he or she has not been given fullnotice.” ( In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1166.)Following Lippel, the legal principle that controls is that Under section580, except for personal injury and wrongful death cases, “[t]he reliefgranted to the plaintiff, if there is no answer, cannot exceed thatdemanded in the complaint ....“ (§ 580, subd. (a).) “[T]he primarypurpose of the section is to guarantee defaulting parties adequatenotice of the maximum judgment that may be assessed against them.”( Greenup v. Rodman (1986) 42 Cal.3d 822, 826; accord Becker v.S.P.V. Construction Co., Inc. (1980) 27 Cal.3d 489, 494 ( Becker );Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th1161, 1174 ( Electronic Funds ).) In other words, Section 580‘ensure[s] that a defendant who declines to contest an action ... [is]not subject[ed] ... to open-ended liability’ and operates as a limitationon the court's jurisdiction.” ( Stein v. York (2010) 181 Cal.App.4th 320,325 ( Stein ).) So if when a default judgment awarded against adefendant exceeds the relief demanded in the complaint [citation], or isa different form of relief than that demanded in the complaint[citation], the defendant is ‘effectively denied a fair hearing.’ “ ( Id. atp. 326.) Thus, “a default judgment awarding damages in excess of theamount allowed under section 580 is not voidable as plaintiff claims butvoid and therefore beyond the court's jurisdiction. ( Matera v. McLeod(2006) 145 Cal.App.4th 44, 59; accord Greenup v. Rodman, supra, 42Cal.3d at p. 826.)In deciding whether damages exceed the amount allowed “courts mustlook to the prayer of the complaint or to ‘allegations in the body of thecomplaint....’ “ ( People ex rel. Lockyer v. Brar (2005) 134 Cal.App.4th659, 667 ( Brar ); Parish v. Peters (1991) 1 Cal.App.4th 202, 216;National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d410, 417–418.) Claimed damages therefore must be pled withspecificity. “[N]o matter how reasonable [a damage amount] mightappear in a particular case ... [if] no specific amount of damages isdemanded, the prayer cannot insure adequate notice of the demandsmade by the defendant. [Citations.] If damages are alleged in theprayer as according to proof then [“To pass constitutional muster, thecomplaint must either allege a specific dollar amount of damages in thebody or prayer ....“] (cite omit) finally,the court has power to set aside a judgment that is void as a matter oflaw. CCP§473(d). There is no time limit on a collateral attack on a voidjudgment. Rochin v. Pat Johnson Mfg.Co. (1998) 67 CA4th 1228, 1239.With these principles in mind the court turns to the plaintiff’s defaultjudgment.Plaintiff’s damage allegations do not support the principle award of$113,688.First, the Complaint’s prayer sought “general and compensatorydamages in an amount according to proof at time of trial.” However, inthe 1 st c/a for Breach of Written Commercial Property Lease, theplaintiff specifically identifies the amount of damages for example, at23: “Plaintiffs’ have been damaged thereby in a sum in excess of$22,500.00.” and at 24, Plaintiffs plead, “Plaintiffs’ have beendamaged thereby in a sum in excess of $84,970.00, the value ofPlaintiffs’ equipment and property.” These two specific sums if totaledwould equal $107,470. But in25, Plaintiffs allege Plaintiffs have been damaged in that they paidconsultants, architects, and fees to obtain a Conditional Use Permit forthe subject premises, all to their damage in an amount according to

proof.” The 11-29-2011 Default Judgment is for “the principal amountof $113,688.00, plus pre-judgment interest of $15,543.85. and Courtcosts of $622.00, for a total judgment amount of $129,853.85, pluspost-judgment interest at the legal rate.” There is no specific sumattached in the prayer or the complaint to support an award of thedifference between 107,470 and 113,688 which was the principleamount awarded against defendants. Viewed in context of the entirecomplaint, the failure in 25 of the complaint to specifically as inparagraphs 23 and 24 the amount sought was insufficient to fairlynotify defendants that plaintiffs were seeking $6000 for defendant’scontract breach. The default judgment is void.5 12-551681Vegas Holding Corp. v.KnappRuling:The court DENIES defendant’s motion to lift the stay to conduct certaindiscovery.Re plaintiff’s evidentiary objections, the court OVERRULES plaintiff’sobjection No. 1, and SUSTAINS Nos. 2-23 (based onargumentative/improper opinion, speculative, hearsay, etc.) to theCurran Declaration; and OVERRULES plaintiff’s objection No. 1,SUSTAINS Nos. 2-20 (argumentative/improper opinion, speculative,hearsay, lack of foundation) to the Knapp DeclarationReasonDefendant argues that there is a threat to the preservation of evidencebut fails to proffer any evidence showing such. Rather, the argumentsmade appear to be the same ones made in defendant’s unsuccessfulopposition to plaintiffs’ motion to stay..7 12-572353Saddleback MagneticResonance ImagingCenter v. SaddlebackMemorial Medical CenterRuling:Motion for attorney’s fees is DENIEDReason“[a]ttorney fees should be awarded to the party who prevails on apetition to compel arbitration only when the resolution of that petitionterminates the entire ‘action on the contract.’”Thus, based on the above, as the instant action includes numerousclaims under the contract, which have yet to be decided on the merits,this court cannot determine that petitioner is the “prevailing party”under the agreement, at this time. The motion for attorney’s fees isdenied as premature.8 12-616914Hess v. Gordon LaneHealthcare, LLCRulingMotion for Trial Setting Preference is GRANTED.ReasonC.C.P. §36(a) provides the following:A party to a civil action who is over 70 years of age may petition thecourt for a preference, which the court shall grant if the court makesboth of the following findings:(1) The party has a substantial interest in the action as a whole.(2) The health of the party is such that a preference is necessary toprevent prejudicing the party's interest in the litigation.Additionally, pursuant to C.C.P. §36(d), the Court may grant preference

in its discretion, where medical documentation “concludes that one ofthe parties suffers from an illness or condition raising substantialmedical doubt of survival of that party beyond six months.”Further, pursuant to Swaithes v. Superior Court (1989) 212 Cal.App.3d1082, “[f]ailure to complete discovery or other pre-trial matters doesnot affect the absolute substantive right to trial preference for thoselitigants who qualify for preference under subdivision (a) of section 36.”Id. at 1085.Here, Plaintiff is an 82 year old man who suffers from dementia. Hismental condition, including his memory of events, is deteriorating,making preparation for trial more difficult.5, 6 of Declaration ofAttorney Jennifer L. Turner. Protracted litigation herein will prejudicethe Plaintiff. The Declaration by Counsel in support of the motionsuffices as evidence for this motion. “An affidavit submitted in supportof a motion for preference under subdivision (a) of Section 36 may besigned by the attorney for the party seeking preference based uponinformation and belief as to the medical diagnosis and prognosis of anyparty. The affidavit is not admissible for any purpose other than amotion for preference under subdivision (a) of Section 36.” Code Civ.Proc., § 36.5.Plaintiff has demonstrated that he meets the requirements of C.C.P.§36(a) and, thus, is entitled to trial within 120 days of this hearing.9 13-631139Orange CountyTransportation Authorityv. Dobrott, TrusteeRulingThe court GRANTS Plaintiff Orange County Transportation Authority’smotion of plaintiff for prejudgment possession of property owned byDefendants. Plaintiff shall take possession of the portions of thedesignated property identified and set forth in Assessor Parcel Nos.033-230-17, identified in the Complaint and the court further ordersremoval therefrom all person, obstacles, improvements or structures ofevery kind of nature situated thereon.Plaintiff shall take possession of the property thirty (30) days afterservice of the order for possession. Plaintiff is to serve notice of thisorder.11 09-301800Lee v. KoRulingMotion for Judgment on the Pleadings is GRANTED in part and DENIEDin part as follows:Defendants’ Motion for Judgment on the Pleadings is GRANTED, as tothe Fifth and Seventh Causes of Action, with 10 days leave toamend. Defendants’ Motion is GRANTED as to the Sixth Cause ofAction, without leave to amend. Lastly, Defendants’ Motion is DENIEDas to the request for punitive damages.ReasonAs an initial matter, this Court has discretion to hear the instantmotion. Sutherland v. City of Fort Bragg (2000) 86 Cal.App.4 th 13, 25;Stoops v. Abbassi (2002) 100 Cal.App.4 th 644, 651.Fifth Cause of Action: Fraudulent TransferWhile Plaintiff alleges “the value of the consideration DefendantTransferee received in the transfer was not reasonably equivalent tothe value of the assets of the Transferor,” (30 of SAC), this statementis nonsensical. Plaintiff has insufficiently alleged that HIGHKOtransferred assets, without reasonable consideration.Further, while Plaintiff asserts that “full permission and authority” issufficient to communicate intent by BCRK, Inc., this statement is

unclear. Plaintiff’s pleadings suggest, only, permission to transfer theassets. (29.1 of SAC).Regardless as “permission” and “authority” do not clearly communicateintent, this allegation is insufficient to state a claim.Sixth Cause of Action: ConspiracyConspiracy is not a cause of action. Applied Equipment Corp. v. LittonSaudi Arabia Ltd. (1994) 7 Cal.4 th 503, 510-511; Additionally, thisclaim fails, as Plaintiff’s SAC inconsistently alleges the conspiracy wasformed after the alleged tortious act was committed (29 and 34 ofSAC).Seventh Cause of Action: Assumption of Successor LiabilityDefendants’ Motion for Judgment on the Pleadings, similarly, is grantedas to the Seventh Cause of Action, as “Assumption of SuccessorLiability” is not a Cause of Action; rather, Plaintiff is given leave toplead this allegation, in relation to whichever specific claims, Plaintiffseeks to hold Defendants liable.12 13-639289Greenberg v. KPMG LLPRulings (all 3 motions)Defendant KPMG’s Petition to Compel Arbitration and Motion to StayProceedings is GRANTED. Upon entry of the orders set forth herein,the action shall be stayed under C.C.P. § 1281.4 pending completion ofthe arbitration. Plaintiff’s unopposed request for judicial notice as tothe two court records submitted, under Evidence Code § 452(d) (courtrecords), is GRANTED. Plaintiff’s request for an Order requiring KPMGto fund the costs of the arbitration in full is DENIED.The unopposed Motion to Quash Service of Summons on DefendantJoseph Loonan is GRANTED.The unopposed Motion to Seal Ex. 25 is DENIED.Reason(1)Compel arbitration & stay proceedingsA petition to compel arbitration must include: (1) allegationsdemonstrating the existence of a written agreement to arbitrate thecontroversy; (2) the provisions of the written agreement and theparagraph of the arbitration clause set forth verbatim or a copyattached and incorporated by reference; and (3) allegations that aparty to the agreement refuses to arbitrate. (Code Civ. Proc. § 1281.2,CRC 3.1330.) As applied to this agreement KPMG has identified awritten agreement to arbitrate, provided the portions thereof thatcontain such provisions, and stated that despite request, Plaintiff hasrefused to arbitrate. KPMG is thus entitled to a determination on themerits of its claim.(2) to quash service on joseph loonanPlaintiff bears the burden of proving that a nonresident defendant hassufficient contacts with the forum state to support personal jurisdiction.(Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4 th 556, 570.) Anonresident defendant may be subject to general jurisdiction if his orher contacts with the forum are substantial, continuous and systematic.(Id., at 445.) A nonresident defendant may be subject to specificjurisdiction if: (1) the defendant has purposefully availed himself orherself of forum benefits; (2) the controversy is related to or arises outof the defendant’s contacts with the forum, and (3) assertion of

personal jurisdiction would comport with concepts of fair play andsubstantial justice. (Vons, at 446; Burger King Corp. v. Rudzewicz(1985) 471 U.S. at 472-473.)Here, Plaintiff has not opposed the Motion. By failing to oppose,plaintiff creates an inference that the motion is meritorious. (Herzbergv. County of Plumas (2005) 133 Cal.App.4th 1, 20 (“Plaintiffs did notoppose the County’s demurrer to this portion of their seventh cause ofaction and have submitted no argument on the issue in their briefs onappeal. Accordingly, we deem plaintiffs to have abandoned theissue.”); Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410(noting local rule in Los Angeles Superior Court that “The failure to fileopposition creates an inference that the motion or demurrer ismeritorious.”).(3) to seal “exhibit 25” per c.r.c. 2.550 & 2.551For the court to grant a motion to seal, the Court must expressly findthat:1. an overriding interest exists that overcomes the right of publicaccess to the record;2. the overriding interest supports sealing the records;3. a substantial probability exists that the overriding interest willbe prejudiced if the record is not sealed;4. the proposed sealing is narrowly tailored; and5. No less restrictive means exist to achieve the overridinginterest.(C.R.C. 2.550(d); McGuan v. Endovascular Technologies, Inc. (2010)182 Cal.App.4th 974, 988.) These findings embody constitutionalrequirements for a request to seal court records, protecting the FirstAmendment right of public access to civil trials. [See NBC Subsidiary(KNBC–TV), Inc. v. Sup.Ct. (Locke) (1999) 20 Cal.4th 1178, 1217–1218; Huffy Corp. v. Sup.Ct. (Winterthur Swiss Ins. Co.) (2003) 112Cal.App.4th 97, 104; People v. Jackson (2005) 128 Cal.App.4th 1009,1026–1027—in determining whether to seal records, courts must weighconstitutional requirements for disclosure against such factors asprivacy rights] Here, although the Motion in unopposed, KPMG has notpresented evidence sufficient to support these standards. First, KPMGclaims in its Motion that the information it seeks to seal is confidentialfinancial and proprietary information as to KPMG, and as to its partners’finances, but it offers no explanation as to how or why this is so. (SeeCrisifulli Decl., filed with Petition to Compel Arbitration, at 14.) Second, KPMG has failed to make any attempt to explain whatsort of information is contained in the PA that requires such protection,or how any of it is a trade secret. (Id. at 14.) Since it would appearthat KPMG’s privacy interests in the PA have diminished due to thepassage of time. Finally, the version presented with the Motion isalmost entirely redacted. Although the unredacted copy does containsome financial data (near the end), and there may still be somelegitimate privacy concerns, it appears that KPMG redacted far morethan was necessary to protect specific confidential terms or financialinformation. It is thus not clear that no less restrictive means wouldprotect KPMG’s interests. Nor is the [Proposed] Order submitted byKPMG appropriate, as it proposes to restrict access to Plaintiff’scounsel, although Plaintiff is presently self-represented.13 11-473005Morgan v. HyattRulingMr. Harper’s Motion to File a First Amended Cross-Complaint isGRANTED. The Proposed FAXC shall be served and filed within 10days.

ReasonA motion for leave to amend is proper and should be granted if saidmotion is timely made and the granting of that motion will notprejudice the opposing party. Morgan v. Sup.Ct. (1959) 172 Cal.App.2d527, 530.In this instance, both factors appear to be satisfactorily met. Initially,while the KDF Defendants assert that Mr. Harper was dilatory inseeking this amendment, Mr. Harper has adequately shown that leavewas sought at the earliest possible time, following the Court's findingthat Mr. Harper was a member of Fillmore Review (a fact which isindisputably the catalyst for the subject amendments). (5 of TofferDec.; 2-4 of Supplemental Toffer Dec.).Secondly, the potential prejudice to the KDF Defendants is insufficientto justify denying Mr. Harper an opportunity to litigate his claims orrequiring further judicial time and effort, to litigate a separatematter. While the KDF Defendants indicate that significant discoverywill need to be completed, the second phase of trial is not scheduleduntil October. Thus, time remains to complete the necessarydiscovery. Further, to any extent that more time is needed, a brief trialcontinuance may be granted, to remedy this prejudice.

TENTATIVERULINGS ON LAW & MOTION MATTERSDepartment C-6Judge Luis A. RodriguezLaw and Motion heard at 1:30OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduledThursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 (657-622-5206)for the ruling. Motions generally will not be continued after the tentative has been posted.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTYSHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION ISDISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will benecessary and the tentative will become the final ruling. If no one appears at the hearing and the court has notbeen notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely restate their pointsand authorities.June 13, 2013# Case Name Tentative1 09-122674Le v. PhamRulingMotion re: Receiver’s Final Account is GRANTED.ReasonThe instant motion is granted, as the parties have failed to demonstrate thatMr. Mosier violated Court Orders or acted outside the scope of hisauthority. Additionally, there is nothing to demonstrate that Mr. Mosieracted in bad faith or caused any significant losses to Newland.Further, as this Court’s January 30, 2013 Order required, only, thepreparation of Newland’s 2012 Tax Return, the Receiver is absolved of anyobligation to file the return.Additionally, the Receiver’s fees and costs are approved in the total amountof $104,286.78, which reflects a slight reduction based on excessive courtappearances by Mr. Mosier and Mr. Baker having been unprepared onSeptember 23, 2012.Finally, the Receiver is authorized to satisfy these fees through the assets ofNewland and the remainder, by a 25/75 division, with the higher portionbeing paid by Plaintiffs, the parties who purchased NPI and benefitted themost from the receivership. City of Chula Vista v. Gutierrez (2012) 207Cal.App.4 th 681, 692.2 11-447172Grace v. v. HendricksRulingsThe court GRANTS defendants’ two motions to strike in part, and DENIESthem in part. Specifically, the court strikes the following from Case No.2011-00447172:Re punitive damages: “of $100,000” from Item “e” in the prayer to the1 st and 2 nd causes of action, from Item “b” in the prayer of the 3 rd causeof action, and from Item “c” in the prayer of the 5 th cause of action; “of$250,000” from Item “b” in the prayer of the 4 th cause of action.Re attorneys’ fees: all of Item “a” in the prayer to all causes of action,at p. 11, lines 11-12 of the FAC.ReasonHere, plaintiff’s request for attorney’s fees is explicitly based on Section

685.040 of the Civil Code. By stipulating to delete the reference toSection 685.040, plaintiff appears to concede that Section 685.040 doesnot apply in this case. Plaintiff however did not provide any basis tosupport a request for attorneys’ fees here. Notably, this action is notbased on any contract, let alone any contract with an attorney’s feeprovision. Moreover, plaintiff (who is an attorney) is in pro per in thisaction. As such, there appears to be no basis for attorneys’ feeshere. (See Trope v. Katz (1995) 11 Cal.4th 274, 280) [“[A]n attorneylitigating in propria persona cannot be said to ‘incur’ compensation forhis time and his lost business opportunities.”].)As to Case No. 2011-00458513, the court strikes the following:Re punitive damages: “of $100,000” from Items “e” in the prayer of the1 st , 2 nd , 3 rd , and 5 th causes of action; and “of $250,000” from Item “b” ofthe prayer of the 4 th cause of action.Re attorneys’ fees: all of Item “a” in the prayer to all causes of action,at p. 17, lines 8-9 of the FAC.ReasonSame as case 447172The court denies the motion as to all other portions sought to be stricken.Defendants to answer the First Amended Complaints within 10 days.3 11-455035Ocampo v OCK CorporationRulingMotion to Vacate Default and Default Judgment is granted. The Courttherefore vacates the judgment and orders Plaintiffs to amend theComplaint to add the damages in connection with the consultants, etc.Amended Complaint to be filed and served within 20 days and all defendantsordered to respond per code. Defendants to give notice.ReasonPlaintiff asserts that the court should summarily deny Defendant parentsmotion to again vacate the default judgment because they are just askingfor another bite of the apple which this court has already denied. However,as discussed below this is not the same apple? The key issue here is not theimproper rehashing of the fraud but the new issue of whether the complaintafforded the defaulting defendants adequate notice of the maximumjudgment that could be assessed against them. If it did not as then thedefault judgment is void allowing this court to vacate that judgment topermit plaintiff to amend to seek that larger amount. Julius Schifaugh IVConsulting Service, Inc. v. Avaris Capital, Inc (2008) 164 CA4th 1393 whichplaces the entire case back at issue allowing defendants to answer and tohave their day in court.The Legal principlesDefendants seek to vacate the default judgment on grounds of fairness anddue process which are embodied in section 580 which controls andprescribes strictly how a default judgment is to be entered against adefaulting party. But as explained below a default judgment must beentered consistent with due process. In In re Marriage of Lippel, supra, 51Cal.3d at p. 1167 the Supreme Court explained how fairness and dueprocess were implicated when section 580 was not strictly applied.“It is fundamental to the concept of due process that a defendant is givennotice of the existence of a lawsuit and notice of the specific relief which issought in the complaint served upon him. The logic underlying this principleis simple: a defendant who has been served with a lawsuit has the right, inview of the relief which the complainant is seeking from him, to decide notto appear and defend.... [A] defendant is not in a position to make such adecision if he or she has not been given full notice.” ( In re Marriage ofLippel (1990) 51 Cal.3d 1160, 1166.)

Following Lippel, the legal principle that controls is that Under section 580,except for personal injury and wrongful death cases, “[t]he relief granted tothe plaintiff, if there is no answer, cannot exceed that demanded in thecomplaint ....“ (§ 580, subd. (a).) “[T]he primary purpose of the section isto guarantee defaulting parties adequate notice of the maximum judgmentthat may be assessed against them.” ( Greenup v. Rodman (1986) 42Cal.3d 822, 826; accord Becker v. S.P.V. Construction Co., Inc. (1980) 27Cal.3d 489, 494 ( Becker ); Electronic Funds Solutions, LLC v. Murphy(2005) 134 Cal.App.4th 1161, 1174 ( Electronic Funds ).) In otherwords, Section 580 ‘ensure[s] that a defendant who declines to contest anaction ... [is] not subject[ed] ... to open-ended liability’ and operates as alimitation on the court's jurisdiction.” ( Stein v. York (2010) 181 Cal.App.4th320, 325 ( Stein ).) So if when a default judgment awarded against adefendant exceeds the relief demanded in the complaint [citation], or is adifferent form of relief than that demanded in the complaint [citation], thedefendant is ‘effectively denied a fair hearing.’ “ ( Id. at p. 326.) Thus, “adefault judgment awarding damages in excess of the amount allowed undersection 580 is not voidable as plaintiff claims but void and therefore beyondthe court's jurisdiction. ( Matera v. McLeod (2006) 145 Cal.App.4th 44, 59;accord Greenup v. Rodman, supra, 42 Cal.3d at p. 826.)In deciding whether damages exceed the amount allowed “courts must lookto the prayer of the complaint or to ‘allegations in the body of thecomplaint....’ “ ( People ex rel. Lockyer v. Brar (2005) 134 Cal.App.4th 659,667 ( Brar ); Parish v. Peters (1991) 1 Cal.App.4th 202, 216; NationalDiversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 417–418.) Claimed damages therefore must be pled with specificity. “[N]omatter how reasonable [a damage amount] might appear in a particularcase ... [if] no specific amount of damages is demanded, the prayer cannotinsure adequate notice of the demands made by the defendant. [Citations.]If damages are alleged in the prayer as according to proof then [“To passconstitutional muster, the complaint must either allege a specific dollaramount of damages in the body or prayer ....“] (cite omit) finally,the court has power to set aside a judgment that is void as a matter of law.CCP§473(d). There is no time limit on a collateral attack on a voidjudgment. Rochin v. Pat Johnson Mfg.Co. (1998) 67 CA4th 1228, 1239. Withthese principles in mind the court turns to the plaintiff’s default judgment.Plaintiff’s damage allegations do not support the principle award of$113,688.First, the Complaint’s prayer sought “general and compensatory damages inan amount according to proof at time of trial.” However, in the 1 st c/a forBreach of Written Commercial Property Lease, the plaintiff specificallyidentifies the amount of damages for example, at 23: “Plaintiffs’ have beendamaged thereby in a sum in excess of $22,500.00.” and at 24, Plaintiffsplead, “Plaintiffs’ have been damaged thereby in a sum in excess of$84,970.00, the value of Plaintiffs’ equipment and property.” These twospecific sums if totaled would equal $107,470. But in25, Plaintiffs allege Plaintiffs have been damaged in that they paidconsultants, architects, and fees to obtain a Conditional Use Permit for thesubject premises, all to their damage in an amount according to proof.” The11-29-2011 Default Judgment is for “the principal amount of $113,688.00,plus pre-judgment interest of $15,543.85. and Court costs of $622.00, for atotal judgment amount of $129,853.85, plus post-judgment interest at thelegal rate.” There is no specific sum attached in the prayer or the complaintto support an award of the difference between 107,470 and 113,688 whichwas the principle amount awarded against defendants. Viewed in context ofthe entire complaint, the failure in 25 of the complaint to specifically as inparagraphs 23 and 24 the amount sought was insufficient to fairly notifydefendants that plaintiffs were seeking $6000 for defendant’s contractbreach. The default judgment is void.

5 12-551681Vegas Holding Corp. v.KnappRuling:The court DENIES defendant’s motion to lift the stay to conduct certaindiscovery.Re plaintiff’s evidentiary objections, the court OVERRULES plaintiff’sobjection No. 1, and SUSTAINS Nos. 2-23 (based onargumentative/improper opinion, speculative, hearsay, etc.) to the CurranDeclaration; and OVERRULES plaintiff’s objection No. 1, SUSTAINS Nos. 2-20 (argumentative/improper opinion, speculative, hearsay, lack offoundation) to the Knapp DeclarationReasonDefendant argues that there is a threat to the preservation of evidence butfails to proffer any evidence showing such. Rather, the arguments madeappear to be the same ones made in defendant’s unsuccessful opposition toplaintiffs’ motion to stay..7 12-572353Saddleback MagneticResonance Imaging Centerv. Saddleback MemorialMedical CenterRuling:Motion for attorney’s fees is DENIEDReason“[a]ttorney fees should be awarded to the party who prevails on a petitionto compel arbitration only when the resolution of that petition terminatesthe entire ‘action on the contract.’”Thus, based on the above, as the instant action includes numerous claimsunder the contract, which have yet to be decided on the merits, this courtcannot determine that petitioner is the “prevailing party” under theagreement, at this time. The motion for attorney’s fees is denied aspremature.8 12-616914Hess v. Gordon LaneHealthcare, LLCRulingMotion for Trial Setting Preference is GRANTED.ReasonC.C.P. §36(a) provides the following:A party to a civil action who is over 70 years of age may petition the courtfor a preference, which the court shall grant if the court makes both of thefollowing findings:(1) The party has a substantial interest in the action as a whole.(2) The health of the party is such that a preference is necessary toprevent prejudicing the party's interest in the litigation.Additionally, pursuant to C.C.P. §36(d), the Court may grant preference inits discretion, where medical documentation “concludes that one of theparties suffers from an illness or condition raising substantial medical doubtof survival of that party beyond six months.”Further, pursuant to Swaithes v. Superior Court (1989) 212 Cal.App.3d1082, “[f]ailure to complete discovery or other pre-trial matters does notaffect the absolute substantive right to trial preference for those litigantswho qualify for preference under subdivision (a) of section 36.” Id. at 1085.Here, Plaintiff is an 82 year old man who suffers from dementia. His mentalcondition, including his memory of events, is deteriorating, makingpreparation for trial more difficult.5, 6 of Declaration of Attorney Jennifer L.Turner. Protracted litigation herein will prejudice the Plaintiff. The

Declaration by Counsel in support of the motion suffices as evidence for thismotion. “An affidavit submitted in support of a motion for preference undersubdivision (a) of Section 36 may be signed by the attorney for the partyseeking preference based upon information and belief as to the medicaldiagnosis and prognosis of any party. The affidavit is not admissible for anypurpose other than a motion for preference under subdivision (a) of Section36.” Code Civ. Proc., § 36.5.Plaintiff has demonstrated that he meets the requirements of C.C.P. §36(a)and, thus, is entitled to trial within 120 days of this hearing.9 13-631139Orange CountyTransportation Authority v.Dobrott, TrusteeRulingThe court GRANTS Plaintiff Orange County Transportation Authority’s motionof plaintiff for prejudgment possession of property owned byDefendants. Plaintiff shall take possession of the portions of the designatedproperty identified and set forth in Assessor Parcel Nos. 033-230-17,identified in the Complaint and the court further orders removal therefromall person, obstacles, improvements or structures of every kind of naturesituated thereon.Plaintiff shall take possession of the property thirty (30) days after serviceof the order for possession. Plaintiff is to serve notice of this order.11 09-301800Lee v. KoRulingMotion for Judgment on the Pleadings is GRANTED in part and DENIED inpart as follows:Defendants’ Motion for Judgment on the Pleadings is GRANTED, as to theFifth and Seventh Causes of Action, with 10 days leave toamend. Defendants’ Motion is GRANTED as to the Sixth Cause of Action,without leave to amend. Lastly, Defendants’ Motion is DENIED as to therequest for punitive damages.ReasonAs an initial matter, this Court has discretion to hear the instant motion.Sutherland v. City of Fort Bragg (2000) 86 Cal.App.4 th 13, 25; Stoops v.Abbassi (2002) 100 Cal.App.4 th 644, 651.Fifth Cause of Action: Fraudulent TransferWhile Plaintiff alleges “the value of the consideration Defendant Transfereereceived in the transfer was not reasonably equivalent to the value of theassets of the Transferor,” (30 of SAC), this statement isnonsensical. Plaintiff has insufficiently alleged that HIGHKO transferredassets, without reasonable consideration.Further, while Plaintiff asserts that “full permission and authority” issufficient to communicate intent by BCRK, Inc., this statement isunclear. Plaintiff’s pleadings suggest, only, permission to transfer theassets. (29.1 of SAC).Regardless as “permission” and “authority” do not clearly communicateintent, this allegation is insufficient to state a claim.Sixth Cause of Action: ConspiracyConspiracy is not a cause of action. Applied Equipment Corp. v. Litton SaudiArabia Ltd. (1994) 7 Cal.4 th 503, 510-511; Additionally, this claim fails, asPlaintiff’s SAC inconsistently alleges the conspiracy was formed after thealleged tortious act was committed (29 and 34 of SAC).Seventh Cause of Action: Assumption of Successor Liability

Defendants’ Motion for Judgment on the Pleadings, similarly, is granted asto the Seventh Cause of Action, as “Assumption of Successor Liability” is nota Cause of Action; rather, Plaintiff is given leave to plead this allegation, inrelation to whichever specific claims, Plaintiff seeks to hold Defendantsliable.12 13-639289Greenberg v. KPMG LLPRulings (all 3 motions)Defendant KPMG’s Petition to Compel Arbitration and Motion to StayProceedings is GRANTED. Upon entry of the orders set forth herein, theaction shall be stayed under C.C.P. § 1281.4 pending completion of thearbitration. Plaintiff’s unopposed request for judicial notice as to the twocourt records submitted, under Evidence Code § 452(d) (court records), isGRANTED. Plaintiff’s request for an Order requiring KPMG to fund the costsof the arbitration in full is DENIED.The unopposed Motion to Quash Service of Summons on Defendant JosephLoonan is GRANTED.The unopposed Motion to Seal Ex. 25 is DENIED.Reason(1)Compel arbitration & stay proceedingsA petition to compel arbitration must include: (1) allegations demonstratingthe existence of a written agreement to arbitrate the controversy; (2) theprovisions of the written agreement and the paragraph of the arbitrationclause set forth verbatim or a copy attached and incorporated by reference;and (3) allegations that a party to the agreement refuses toarbitrate. (Code Civ. Proc. § 1281.2, CRC 3.1330.) As applied to thisagreement KPMG has identified a written agreement to arbitrate, providedthe portions thereof that contain such provisions, and stated that despiterequest, Plaintiff has refused to arbitrate. KPMG is thus entitled to adetermination on the merits of its claim.(2) to quash service on joseph loonanPlaintiff bears the burden of proving that a nonresident defendant hassufficient contacts with the forum state to support personal jurisdiction.(Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4 th 556, 570.) A nonresidentdefendant may be subject to general jurisdiction if his or her contacts withthe forum are substantial, continuous and systematic. (Id., at 445.) Anonresident defendant may be subject to specific jurisdiction if: (1) thedefendant has purposefully availed himself or herself of forum benefits; (2)the controversy is related to or arises out of the defendant’s contacts withthe forum, and (3) assertion of personal jurisdiction would comport withconcepts of fair play and substantial justice. (Vons, at 446; Burger KingCorp. v. Rudzewicz (1985) 471 U.S. at 472-473.)Here, Plaintiff has not opposed the Motion. By failing to oppose, plaintiffcreates an inference that the motion is meritorious. (Herzberg v. County ofPlumas (2005) 133 Cal.App.4th 1, 20 (“Plaintiffs did not oppose theCounty’s demurrer to this portion of their seventh cause of action and havesubmitted no argument on the issue in their briefs on appeal. Accordingly,we deem plaintiffs to have abandoned the issue.”); Sexton v. Superior Court(1997) 58 Cal.App.4th 1403, 1410 (noting local rule in Los Angeles SuperiorCourt that “The failure to file opposition creates an inference that the motionor demurrer is meritorious.”).(3) to seal “exhibit 25” per c.r.c. 2.550 & 2.551For the court to grant a motion to seal, the Court must expressly find that:

1. an overriding interest exists that overcomes the right of public accessto the record;2. the overriding interest supports sealing the records;3. a substantial probability exists that the overriding interest will beprejudiced if the record is not sealed;4. the proposed sealing is narrowly tailored; and5. No less restrictive means exist to achieve the overriding interest.(C.R.C. 2.550(d); McGuan v. Endovascular Technologies, Inc. (2010) 182Cal.App.4th 974, 988.) These findings embody constitutional requirementsfor a request to seal court records, protecting the First Amendment right ofpublic access to civil trials. [See NBC Subsidiary (KNBC–TV), Inc. v. Sup.Ct.(Locke) (1999) 20 Cal.4th 1178, 1217–1218; Huffy Corp. v. Sup.Ct.(Winterthur Swiss Ins. Co.) (2003) 112 Cal.App.4th 97, 104; People v.Jackson (2005) 128 Cal.App.4th 1009, 1026–1027—in determining whetherto seal records, courts must weigh constitutional requirements for disclosureagainst such factors as privacy rights] Here, although the Motion inunopposed, KPMG has not presented evidence sufficient to support thesestandards. First, KPMG claims in its Motion that the information it seeks toseal is confidential financial and proprietary information as to KPMG, and asto its partners’ finances, but it offers no explanation as to how or why this isso. (See Crisifulli Decl., filed with Petition to Compel Arbitration, at 14.) Second, KPMG has failed to make any attempt to explain what sort ofinformation is contained in the PA that requires such protection, or how anyof it is a trade secret. (Id. at 14.) Since it would appear that KPMG’sprivacy interests in the PA have diminished due to the passage of time.Finally, the version presented with the Motion is almost entirely redacted.Although the unredacted copy does contain some financial data (near theend), and there may still be some legitimate privacy concerns, it appearsthat KPMG redacted far more than was necessary to protect specificconfidential terms or financial information. It is thus not clear that no lessrestrictive means would protect KPMG’s interests. Nor is the [Proposed]Order submitted by KPMG appropriate, as it proposes to restrict access toPlaintiff’s counsel, although Plaintiff is presently self-represented.13 11-473005Morgan v. HyattRulingMr. Harper’s Motion to File a First Amended Cross-Complaint isGRANTED. The Proposed FAXC shall be served and filed within 10 days.ReasonA motion for leave to amend is proper and should be granted if said motionis timely made and the granting of that motion will not prejudice theopposing party. Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530.In this instance, both factors appear to be satisfactorily met. Initially, whilethe KDF Defendants assert that Mr. Harper was dilatory in seeking thisamendment, Mr. Harper has adequately shown that leave was sought at theearliest possible time, following the Court's finding that Mr. Harper was amember of Fillmore Review (a fact which is indisputably the catalyst for thesubject amendments). (5 of Toffer Dec.; 2-4 of Supplemental TofferDec.).Secondly, the potential prejudice to the KDF Defendants is insufficient tojustify denying Mr. Harper an opportunity to litigate his claims or requiringfurther judicial time and effort, to litigate a separate matter. While the KDFDefendants indicate that significant discovery will need to be completed, thesecond phase of trial is not scheduled until October. Thus, time remains tocomplete the necessary discovery. Further, to any extent that more time isneeded, a brief trial continuance may be granted, to remedy this prejudice.

TENTATIVERULINGS ON LAW & MOTION MATTERSDepartment C-6Judge Luis A. RodriguezLaw and Motion heard at 1:30OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduledThursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 (657-622-5206)for the ruling. Motions generally will not be continued after the tentative has been posted.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTYSHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION ISDISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will benecessary and the tentative will become the final ruling. If no one appears at the hearing and the court has notbeen notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely restate their pointsand authorities.June 27, 2013# Case Name Tentative1 11-439451Trudy K. Corbett v. AMICAMutual Insurance CompanyRulingPlaintiff’s motion to untimely designate identify expert witnesses isGRANTED.Reason“[A]ny party who has failed to submit expert witness information on thedate specified in a demand for that exchange, the court may grant leave tosubmit that information on a later date.”CCP §2034.710. Here, applying the statutory requirements to grant reliefthe court Pursuant to Section 2034.720 finds that plaintiff’s motion satisfiesall of the conditions to warrant this delayed exchange:First, the reliance on the absence of a list of expert witness is not sufficientto deprive plaintiff of the opportunity to put on at trial expert witnesses.Second, there is no prejudice to defendant for the following reasons:1. Defendant’s ability to maintain the action or defenses thereto isnot impacted.2. The court has determined that the moving party did all of thefollowing:A. Failed to submit the information as the result of mistake,inadvertence, surprise, or excusable neglect.B. Sought leave to submit the information promptly after learning of themistake, inadvertence, surprise, or excusable neglect.C. Promptly thereafter served a copy of the proposed expert witnessinformation described in Section 2034.260 on all other parties whohave appeared in the action.”2 11-501167Inhale Inc v. WorldwideRulingThe Motion for Evidentiary Hearing is Denied.

Smoke Inc3 11-533896Havilah Hynes v. AvocadoPacific Communities LLCReasonThis motion is premature, and suffers from lack of any real authorityenabling the court to grant the relief requested. CCP§187 is the onlyenabling statute cited to in the motion. CCP§187 gives the trial court theauthority to amend a judgment to add additional judgment debtors.Here, Plaintiff is not asking the Court to amend any judgment, but isapparently asking the Court to prematurely rule Defendant Bard is thealter ego of Defendant Worldwide. Alter ego allegations are pled in theComplaint and should be determined on the merits.RulingDefendants’ Motion to Compel Responses to Written Discovery is wellfounded,as Plaintiff’s counsel has conceded. The Motion is GRANTED.Plaintiff is ordered to provide complete responses to the FormInterrogatories, Special Interrogatories, and Requests for Production ofDocuments, without objection, and to produce any responsive documents,within 15 days.Sanctions in the amount of $1,290 are awarded on this Motion againstcounsel for Plaintiff, Mr. Jensen, to be paid to counsel for Defendants within20 days.Defendants’ Motion for an Order that the Truth of the Matters be Admitted isalso well-founded.Unless Plaintiff can present evidence by the time of the hearing thatresponses to the Requests for Admission have been served, and that suchresponses are in substantial compliance with C.C.P. Section 2033.220, theMotion shall be GRANTED.In either event, sanctions in the amount of $890 are awarded on this Motionagainst counsel for Plaintiff, Mr. Jensen, to be paid to counsel forDefendants within 20 days.5 12-568180Jeremy Nguyen v. MegaCapital Funding, IncRulingUnopposed Motion for Judgment on the Pleadings is granted with 15 daysleave to amend based on the arguments raised in the motion. Defendant togive notice.7 12-575537Asma Pouzbaris v. PrimeHealth Care, LLCRulingHaving now considered all of the briefs, including the supplemental briefing,Defendant’s Motion for Summary Judgment is GRANTED.Plaintiff submitted an evidentiary objection as to argument in the SeparateStatement (in UF No. 6). Plaintiff is correct that UF No. 6 contains improperargument, which the Court has disregarded. However, as the SeparateStatement is not evidence, the objection thereto is OVERRULED.ReasonOn 5/30/13, the Motion for Summary Judgment filed by Defendant PrimeHealthcare Services - Anaheim, LLP dba West Anaheim Medical Center cameon for hearing. However, as review had just been granted for a case uponwhich Plaintiff had relied, the Court granted leave to file supplementalbriefs, and continued the hearing to 6/27/13. Plaintiff timely filedSupplemental Opposition on 6/14/13. Plaintiff also belatedly filed aSupplemental Declaration on 6/21/13, which the Court has exercised itsdiscretion to nonetheless consider. Defendant also filed a SupplementalReply.The facts which are relevant to the application of §340.5 are that allegedinjury to Plaintiff occurred while she was a patient in Defendant’s hospital,travelling without assistance or supervision between the bathroom and herhospital bed. She allegedly fell because the floor in her room wasslippery. Boiled down plaintiff claims defendant hospital failed to ensurePlaintiff’s safety while ambulatory in the hospital. Now adding the necessarytime period it is undisputed that she fell on 6/15/10 and knew of the alleged

negligence at that time. (UF 1-5.) This action was not commenced until6/11/12.Under these facts and plaintiff does not claim to the contrary this action isfor professional negligence committed in the act of rendering services forwhich the hospital is licensed. The underlying rational of the applicablecases is that a hospital has a duty to use reasonable care and diligence insafeguarding a patient committed to its charge. So whether Plaintiff fellbecause she was not supervised or assisted on her trip to the restroom, orbecause a “cleaning lady” mopped her room while she was in the restroomis irrelevant for this analysis: in either event, the claim concernsDefendant’s duties to take appropriate measures for patient safety, andconcerns rendering of services for which Defendant is licensed. It is thus aclaim for alleged professional negligence subject to Section 340.5. (See e.g.Murillo, Flowers, Bellamy, Taylor, & Canister.) The grant of review as toFlores does not change the analysis. The controlling law is that this action issubject to Section 340.5 under Murillo v. Good Samaritan Hospital ofAnaheim (1979) 99 Cal.App.3d 50 and its progeny, because the claim is onebrought by a patient against a hospital for an alleged injury sustained in thecourse of the hospital’s care for her it is a claim for professional negligence.Plaintiff contends that the court must apply a different based on Flowers v.Torrance Memorial Hospital (1994) 8 Cal.4th 992. Specifically, Plaintiffurges that under Flowers, the “test” is whether the act complained of byplaintiff involves the manner in which professional services were rendered.(Supp. Opp., p. 6.) However, Flowers did not create any such “test” forevaluating statutory claims under MICRA: instead, Flowers specificallydeclined to draw a distinction between ordinary and professional negligenceas it relates to MICRA. (Flowers, 8 Cal.4th at 1002, fn. 6.) Nor do morerecent cases state such a standard. (Bellamy, supra, 50 Cal.App.4th at 806-807; Canister, supra, 160 Cal.App.4th at 404.) In addition, plaintiff is alsoincorrect in claiming that expert testimony is needed to decide whetherC.C.P. §340.5 applies. While the manner of proof by which negligence canbe established may require expert testimony, the character of thenegligence claim does not. (Flowers, supra, at 1001.)10 12-600752James Lauro Trustee of theJoseph C. and Eleanor J.Lauro Family Trust, datedMay 9, 1980 v. LakeInsurance Agency, Inc11 12-617114Sebastian Paz v. MagnoliaSchool DistrictRulingThe Demurrer to the Third and Fourth Causes of Action in the First AmendedComplaint is OVERRULED. Defendant’s Request for Judicial Notice isGRANTED in part but only as to Lake First Amended Complaint,” the “Noticeof Bankruptcy Order Granting Motion for Relief from the Automatic Stay,”and the Judgment entered in the prior action, but denies the request as tothe balance of that file.ReasonDefendant has failed to establish that the requirements for either resjudicata or collateral estoppel have been met here. Although both this actionand the prior action concerned the same contract, the prior action did notrequest rescission, did not seek any determination as to what amounts wereowed under that contract, and did not request any relief from any paymentobligations set forth therein. In contrast, the action here seeks paymentunder the terms of the contract, which was not addressed or adjudicated inthe prior action. In addition, because the prior judgment was obtained bydefault, it is not conclusive as to any defense or issue which was not raisedin and is not necessary to uphold the default judgment. (Four Star Electric,Inc. v. F & H Construction (1992) 7 Cal.App.4th 1375, 1380; English v.English (1937) 9 Cal.2d 358, 363-64.)RulingPlaintiff’s Motion to Quash Subpoenas issued by Defendant to Children’s

13 13-638118Israel Rodriguez v.Lawrence MichealsHospital of Orange County is DENIED.ReasonCalifornia recognizes a right to privacy in medical records. Among otherthings, Article I, section 1 of the California Constitution provides that allpeople have certain inalienable rights, and among these are “pursuing andobtaining safety, happiness, and privacy.” Such privacy rights protectmedical records pertaining to a patient's physical or mental condition. (Lantzv. Superior Court (1994) 28 Cal.App.4th 1839, 1853 (“Lantz”).) TheEvidence Code also specifically recognizes a privilege for such records. (SeeEv. Code §990 et seq. and §1010 et seq., which concern the physicianpatientand psychotherapist-patient privilege, respectively).To the extent that particular medical records are necessary to evaluateclaims asserted by the patient, they are discoverable. (Britt v. Sup. Ct.(1978) 20 Cal.3d 844, 864, & at fns. 8, 9 [where multiple injuries orillnesses contributed to condition placed at issue by plaintiff, defendant wasentitled to obtain information as to all such injuries or illnesses]; Palay,supra, 18 Cal.App.4 th at 933; Vinson v. Superior Court (1987) 43 Cal.3d833, 842 [plaintiff' waived privacy rights as to mental and emotionalcondition by putting them at issue in the action: discovery related theretowas directly relevant to her claim and essential to a fair resolution of hersuit: however, she did not, by initiating harassment and emotional distressclaim, implicitly waive her privacy rights as to her sexual history so as topermit an IME re same]; Slagle v. Sup. Ct. (1989) 211 Cal.App.3d 1309,1314-15 [medical history as to petitioner's eyes was discoverable asrelevant to causation: however, if petitioner was concerned that recordswould reveal other information, he could request an in camera inspection tosegregate the irrelevant information]; see also Ev. Code §996(a) [privilegedoes not apply where patient put his or her physical condition at issue] and§1016(a) [privilege does not apply where patient put his or her mentalcondition at issue].)Here, Defendant has established good cause to access the subpoenaedmedical records concerning Plaintiff, as Plaintiff has clearly put his mentaland physical condition at issue in this litigation. He alleges in the Complaintthat he has been identified as a “special needs” child whose special needssubstantially limit many of his major life activities. (Complaint 2, 3.) Healso alleges that, due to the alleged events, he has developed posttraumaticstress syndrome, acute stress disorder with hyper-vigilanceirritability, social withdrawal, panic symptoms, poor appetite, and otherproblems. (Complaint, 16.) Plaintiff’s medical records are thus clearlyrelevant to determine the extent to which his medical condition caused orcontributed to the alleged harm. In addition, it appears undisputed that atleast some of the records from CHOC were already disclosed to Defendant.(Opp., at Brown Decl., 9; Reply, p. 2.) Defendant has thus establishedgood cause to obtain the subpoenaed records.RulingDemurrer to Answer is sustained with leave to amend, in its entiretyReasonThere are no facts (let alone, sufficient facts) pled in support of any of the25 Affirmative Defenses set forth in the Answer. CCP§430.20(a).16 13-644663Michele R. Ruiz v. WellsFargo Bank, N.A.RulingDemurrer to Complaint: Defendant’s Demurrer is SUSTAINED, withoutleave to amend, as to the First through Fifth and Seventh Causes of Action.Defendant’s Demurrer is SUSTAINED, with 15 days leave to amend, as tothe Sixth Cause of Action.Defendant’s Request for Judicial Notice is GRANTED.ReasonFirst, Second and Third Causes of Action: Fraud, Intentional

Misrepresentation and Negligent MisrepresentationPlaintiff’s first three causes of action each rely on allegations thatDefendant, during the origination of Plaintiff’s loan, provided ledgers whichmisrepresented the terms. (28, 29, 32, 41 and 50). As originationoccurred on May 30, 2007 (12) and the instant action was filed on April 18,2013, nearly six years later, these claims appear to be barred. C.C.P.§338(d). Further, as Plaintiff failed to file Opposition to this Demurrer, or todemonstrate any manner in which the claim could be amended, leave toamend is denied. Goodman v. Kennedy (1976) 18 Cal.3d 335,349. Additionally, pursuant to Garcia v. Wachovia Mortg. Corp. (C.D. Cal.2009) 676 F.Supp.2d 895, “claims relating to the loan’s negativeamortization features and teaser rates, and failure to provide adjustablerate mortgage disclosure notice…are preempted by 12 C.F.R. §560.2(b)(4)and (b)(9).” Id. at 913. Thus, as Plaintiff’s allegations relate to the failure tomake disclosures, expressly identified as preempted by 12 C.F.R. §560.2(b),these claims fail.Fourth Cause of Action: Unconscionability:“[T]here is no cause of action for unconscionability under section 1670.5;that doctrine is only a defense to contract enforcement.” Jones v. WellsFargo Bank (2003) 112 Cal.App.4 th 1527, 1539.Fifth Cause of Action: Breach of Contract:The provision within the Deed of Trust, indicating that the document will begoverned and construed under California law, is insufficient, as a matter oflaw, to incorporate all California statutes into the contract. Similarly, theprovision which indicates that Plaintiff will pay all principal and interest duedoes not bar negative amortization. Thus, as Plaintiff has not pled breachesof the Deed of Trust, this claim fails.Sixth Cause of Action: Civil Code §2923.5Plaintiff alleges Defendant violated Civil Code §2923.5 by failing to contactPlaintiff to discuss alternatives to foreclosure (80); however, Civil Code§2923.5(g) provides that a Notice of Default may be filed pursuant to CivilCode §2924, regardless of a lender’s failure to contact the borrower,“provided that the failure to contact the borrower occurred despite the duediligence of the mortgagee, beneficiary, or authorized agent.” Thus, as theComplaint fails to include any allegations that Defendant failed to act with“due diligence,” Plaintiff has insufficiently stated a claim under this section;however, leave to amend may be granted as: (1) the Court cannot takejudicial notice of the truth of the Declaration of Diligence, attached to theNotice of Default. Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4 th1057, 1063; and (2) Civil Code §2923.5 is not preempted by HOLA. Mabryv. Superior Court (2010) 185 Cal.App.4 th 208, 217-218.Seventh Cause of Action: UCLWhere a UCL Claim is derivative of another claim that fails as a matter oflaw, the UCL claim must similarly fail. Nein v. HostPro, Inc. (2009) 174Cal.App.4 th 833, 841. Here, as Plaintiff’s claim under the UCL is derivative ofher remaining causes of action it fail as a matter of law. Finally, leave toamend is denied, as the only claim capable of amendment is the claim underCivil Code §2923.5, which is insufficient to demonstrate standing to sueunder the UCL. Hamilton v. Greenwich Investors XXVI, LLC (2011) 195Cal.App.4 th 1602, 1617.

17 12-568522Rector v. Lawyers TitleInsurance CompanyThis motion was originally set to be heard on 6/6 (and as of that date themotion was unopposed). Court continued the motion to today’s date andordered Clerk to give notice.RulingMotion to Vacate Judgment is DENIED.The Request for JN is GRANTED.ReasonPlaintiff cites to CCP§473(b) and 473.5 in support of his motion. Plaintifffails to indicate how judgment was entered through his mistake,inadvertence, surprise or excusable neglect. If he did not know about thedemurrer, certainly that was not due to his own mistake, etc., but ratherDefense counsel. He fails to tell us why, if he did in fact know about thedemurrer, he failed to oppose it and failed to appear at the hearing. Inadditionplaintiff fails to submit any “other pleading”, or in this case, the proposedopposition to that demurrer, which would convince this Court that it wouldhave ruled differently. CCP§473(b). Further, he relies on CCP§473.5,apparently for the argument that he never received a copy of the demurrerand did not know it was on calendar for 1/31/2013. However, CCP§473.5 isinapplicable because it applies to service of a summons, not ademurrer. Here, the demurrer was served to Plaintiff at 19730 SallyAvenue, Cerritos, CA. This was the address he himself provided on othercourt filed documents. It is obvious that defendants have submitted ampleevidence that they served Plaintiff with the Demurrer and all the Notices ofContinuances pertaining to the demurrer at issue. Declaration of Hutchinson4, 5, 6, 7, Ex. A,C, D, E, F, G. Yet plaintiff fails to tell this court why, if thePOS lists the correct address, he did not receive notice of the demurrer, andthe multiple subsequent notices of continuance pertaining to the demurrer.18 13-645490Brown v. Carmax AutoSuperstoresRulingDemurrer to Complaint: SUSTAINED, with 15 days leave to amend. Plaintiffshall file a First Amended Complaint, within 15 days of this order, whichincludes the documentary proof referenced in the Opposition.ReasonPursuant to Civil Code §1794, the Song-Beverly Act allows for recovery,based on the breach of a service contract; however, as Plaintiff concedesthe Complaint fails to allege or demonstrate that Defendants were obligatedunder the service contract, the Demurrer is sustained with leave to amend.19 12-556409Benowitz v. HighwindsCapital, IncRulingThe motion brought by Plaintiff Ari Benowitz to consolidate this action (CaseNo. 30-2012- 00556409) with the related action entitled BandwidthConsulting, Inc. v. Benowitz et al (Case No. 2013-00628459) is GRANTED.ReasonAs this case has the lower number, this case (Case No. 2012-00556409) isdesignated as the lead case. Moving party shall file a copy of the Order toConsolidate in both actions. Thereafter, all documents are to be filed withthe caption and case number of the lead case, followed by the case numberof the consolidated case, per C.R.C. 3.350(d).20 12-598774First National Bank ofRulingMotion to Compel Deposition is GRANTED. Defendant Jason Barrette is

Omaha v. Barretteordered to appear for Deposition at the office of the Dunning Law Firm, on adate to be determined at the hearing. Defendant is further ordered toproduce documents responsive to the Amended Notice of Deposition.Defendant Jason Barrette is ordered to pay sanctions to Plaintiff in theamount of $685.00, pursuant to C.C.P. §2025.450(c).Reason"Good cause” for production of documents may be established where it isshown that the request is made in good faith and that the documentssought are relevant to the subject matter and material to the issues in thelitigation. Associated Brewers Distributing Co. v. Superior Court (1967) 65Cal.2d 583, 588. In this instance, Exhibits “B” and “D” of the Declaration ofMr. MacLeod demonstrate that Defendant was adequately served the subjectNotice of Deposition and Amended Notice of Deposition, scheduling theDeposition for May 10, 2013. Additionally, the Declaration of Mr. MacLeoddemonstrates that Defense Counsel, on May 9, 2013, indicated to Plaintiffthat Defendant would not appear, due to his intention to exercise his 5 thAmendment rights against self-incrimination. (5 of MacLeodDec.). Similarly, the Declaration indicates that Plaintiff’s Counselcommunicated with Defense Counsel, regarding this failure, as required byC.C.P. §2045.450(b)(2). Lastly, while Plaintiff’s Motion does not set forthspecific facts showing good cause, justifying the production of documents, areview of the requests (included in the Notice of Deposition), reveals thateach request is clearly relevant and material to the issues in this litigation.For example, each request seeks information concerning the relevantaccount (on which the debt is owed) and communications between theparties. (Exhibit “A” and “D”). As this information is included within theattachments to the Motion, C.C.P. §2025.450(b)(1) is met.

TENTATIVERULINGS ON LAW & MOTION MATTERSDepartment C-6Judge Luis A. RodriguezLaw and Motion heard at 1:30OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduledThursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 (657-622-5206)for the ruling. Motions generally will not be continued after the tentative has been posted.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTYSHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION ISDISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will benecessary and the tentative will become the final ruling. If no one appears at the hearing and the court has notbeen notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely restate their pointsand authorities.June 27, 2013# Case Name Tentative1 11-439451Trudy K. Corbett v. AMICAMutual Insurance CompanyRulingPlaintiff’s motion to untimely designate identify expert witnesses isGRANTED.Reason“[A]ny party who has failed to submit expert witness information on thedate specified in a demand for that exchange, the court may grant leave tosubmit that information on a later date.”CCP §2034.710. Here, applying the statutory requirements to grant reliefthe court Pursuant to Section 2034.720 finds that plaintiff’s motion satisfiesall of the conditions to warrant this delayed exchange:First, the reliance on the absence of a list of expert witness is not sufficientto deprive plaintiff of the opportunity to put on at trial expert witnesses.Second, there is no prejudice to defendant for the following reasons:1. Defendant’s ability to maintain the action or defenses thereto isnot impacted.2. The court has determined that the moving party did all of thefollowing:A. Failed to submit the information as the result of mistake,inadvertence, surprise, or excusable neglect.B. Sought leave to submit the information promptly after learning of themistake, inadvertence, surprise, or excusable neglect.C. Promptly thereafter served a copy of the proposed expert witnessinformation described in Section 2034.260 on all other parties whohave appeared in the action.”2 11-501167Inhale Inc v. WorldwideRulingThe Motion for Evidentiary Hearing is Denied.

Smoke Inc3 11-533896Havilah Hynes v. AvocadoPacific Communities LLCReasonThis motion is premature, and suffers from lack of any real authorityenabling the court to grant the relief requested. CCP§187 is the onlyenabling statute cited to in the motion. CCP§187 gives the trial court theauthority to amend a judgment to add additional judgment debtors.Here, Plaintiff is not asking the Court to amend any judgment, but isapparently asking the Court to prematurely rule Defendant Bard is thealter ego of Defendant Worldwide. Alter ego allegations are pled in theComplaint and should be determined on the merits.RulingDefendants’ Motion to Compel Responses to Written Discovery is wellfounded,as Plaintiff’s counsel has conceded. The Motion is GRANTED.Plaintiff is ordered to provide complete responses to the FormInterrogatories, Special Interrogatories, and Requests for Production ofDocuments, without objection, and to produce any responsive documents,within 15 days.Sanctions in the amount of $1,290 are awarded on this Motion againstcounsel for Plaintiff, Mr. Jensen, to be paid to counsel for Defendants within20 days.Defendants’ Motion for an Order that the Truth of the Matters be Admitted isalso well-founded.Unless Plaintiff can present evidence by the time of the hearing thatresponses to the Requests for Admission have been served, and that suchresponses are in substantial compliance with C.C.P. Section 2033.220, theMotion shall be GRANTED.In either event, sanctions in the amount of $890 are awarded on this Motionagainst counsel for Plaintiff, Mr. Jensen, to be paid to counsel forDefendants within 20 days.5 12-568180Jeremy Nguyen v. MegaCapital Funding, IncRulingUnopposed Motion for Judgment on the Pleadings is granted with 15 daysleave to amend based on the arguments raised in the motion. Defendant togive notice.7 12-575537Asma Pouzbaris v. PrimeHealth Care, LLCRulingHaving now considered all of the briefs, including the supplemental briefing,Defendant’s Motion for Summary Judgment is GRANTED.Plaintiff submitted an evidentiary objection as to argument in the SeparateStatement (in UF No. 6). Plaintiff is correct that UF No. 6 contains improperargument, which the Court has disregarded. However, as the SeparateStatement is not evidence, the objection thereto is OVERRULED.ReasonOn 5/30/13, the Motion for Summary Judgment filed by Defendant PrimeHealthcare Services - Anaheim, LLP dba West Anaheim Medical Center cameon for hearing. However, as review had just been granted for a case uponwhich Plaintiff had relied, the Court granted leave to file supplementalbriefs, and continued the hearing to 6/27/13. Plaintiff timely filedSupplemental Opposition on 6/14/13. Plaintiff also belatedly filed aSupplemental Declaration on 6/21/13, which the Court has exercised itsdiscretion to nonetheless consider. Defendant also filed a SupplementalReply.The facts which are relevant to the application of §340.5 are that allegedinjury to Plaintiff occurred while she was a patient in Defendant’s hospital,travelling without assistance or supervision between the bathroom and herhospital bed. She allegedly fell because the floor in her room wasslippery. Boiled down plaintiff claims defendant hospital failed to ensurePlaintiff’s safety while ambulatory in the hospital. Now adding the necessarytime period it is undisputed that she fell on 6/15/10 and knew of the alleged

negligence at that time. (UF 1-5.) This action was not commenced until6/11/12.Under these facts and plaintiff does not claim to the contrary this action isfor professional negligence committed in the act of rendering services forwhich the hospital is licensed. The underlying rational of the applicablecases is that a hospital has a duty to use reasonable care and diligence insafeguarding a patient committed to its charge. So whether Plaintiff fellbecause she was not supervised or assisted on her trip to the restroom, orbecause a “cleaning lady” mopped her room while she was in the restroomis irrelevant for this analysis: in either event, the claim concernsDefendant’s duties to take appropriate measures for patient safety, andconcerns rendering of services for which Defendant is licensed. It is thus aclaim for alleged professional negligence subject to Section 340.5. (See e.g.Murillo, Flowers, Bellamy, Taylor, & Canister.) The grant of review as toFlores does not change the analysis. The controlling law is that this action issubject to Section 340.5 under Murillo v. Good Samaritan Hospital ofAnaheim (1979) 99 Cal.App.3d 50 and its progeny, because the claim is onebrought by a patient against a hospital for an alleged injury sustained in thecourse of the hospital’s care for her it is a claim for professional negligence.Plaintiff contends that the court must apply a different based on Flowers v.Torrance Memorial Hospital (1994) 8 Cal.4th 992. Specifically, Plaintiffurges that under Flowers, the “test” is whether the act complained of byplaintiff involves the manner in which professional services were rendered.(Supp. Opp., p. 6.) However, Flowers did not create any such “test” forevaluating statutory claims under MICRA: instead, Flowers specificallydeclined to draw a distinction between ordinary and professional negligenceas it relates to MICRA. (Flowers, 8 Cal.4th at 1002, fn. 6.) Nor do morerecent cases state such a standard. (Bellamy, supra, 50 Cal.App.4th at 806-807; Canister, supra, 160 Cal.App.4th at 404.) In addition, plaintiff is alsoincorrect in claiming that expert testimony is needed to decide whetherC.C.P. §340.5 applies. While the manner of proof by which negligence canbe established may require expert testimony, the character of thenegligence claim does not. (Flowers, supra, at 1001.)10 12-600752James Lauro Trustee of theJoseph C. and Eleanor J.Lauro Family Trust, datedMay 9, 1980 v. LakeInsurance Agency, Inc11 12-617114Sebastian Paz v. MagnoliaSchool DistrictRulingThe Demurrer to the Third and Fourth Causes of Action in the First AmendedComplaint is OVERRULED. Defendant’s Request for Judicial Notice isGRANTED in part but only as to Lake First Amended Complaint,” the “Noticeof Bankruptcy Order Granting Motion for Relief from the Automatic Stay,”and the Judgment entered in the prior action, but denies the request as tothe balance of that file.ReasonDefendant has failed to establish that the requirements for either resjudicata or collateral estoppel have been met here. Although both this actionand the prior action concerned the same contract, the prior action did notrequest rescission, did not seek any determination as to what amounts wereowed under that contract, and did not request any relief from any paymentobligations set forth therein. In contrast, the action here seeks paymentunder the terms of the contract, which was not addressed or adjudicated inthe prior action. In addition, because the prior judgment was obtained bydefault, it is not conclusive as to any defense or issue which was not raisedin and is not necessary to uphold the default judgment. (Four Star Electric,Inc. v. F & H Construction (1992) 7 Cal.App.4th 1375, 1380; English v.English (1937) 9 Cal.2d 358, 363-64.)RulingPlaintiff’s Motion to Quash Subpoenas issued by Defendant to Children’s

13 13-638118Israel Rodriguez v.Lawrence MichealsHospital of Orange County is DENIED.ReasonCalifornia recognizes a right to privacy in medical records. Among otherthings, Article I, section 1 of the California Constitution provides that allpeople have certain inalienable rights, and among these are “pursuing andobtaining safety, happiness, and privacy.” Such privacy rights protectmedical records pertaining to a patient's physical or mental condition. (Lantzv. Superior Court (1994) 28 Cal.App.4th 1839, 1853 (“Lantz”).) TheEvidence Code also specifically recognizes a privilege for such records. (SeeEv. Code §990 et seq. and §1010 et seq., which concern the physicianpatientand psychotherapist-patient privilege, respectively).To the extent that particular medical records are necessary to evaluateclaims asserted by the patient, they are discoverable. (Britt v. Sup. Ct.(1978) 20 Cal.3d 844, 864, & at fns. 8, 9 [where multiple injuries orillnesses contributed to condition placed at issue by plaintiff, defendant wasentitled to obtain information as to all such injuries or illnesses]; Palay,supra, 18 Cal.App.4 th at 933; Vinson v. Superior Court (1987) 43 Cal.3d833, 842 [plaintiff' waived privacy rights as to mental and emotionalcondition by putting them at issue in the action: discovery related theretowas directly relevant to her claim and essential to a fair resolution of hersuit: however, she did not, by initiating harassment and emotional distressclaim, implicitly waive her privacy rights as to her sexual history so as topermit an IME re same]; Slagle v. Sup. Ct. (1989) 211 Cal.App.3d 1309,1314-15 [medical history as to petitioner's eyes was discoverable asrelevant to causation: however, if petitioner was concerned that recordswould reveal other information, he could request an in camera inspection tosegregate the irrelevant information]; see also Ev. Code §996(a) [privilegedoes not apply where patient put his or her physical condition at issue] and§1016(a) [privilege does not apply where patient put his or her mentalcondition at issue].)Here, Defendant has established good cause to access the subpoenaedmedical records concerning Plaintiff, as Plaintiff has clearly put his mentaland physical condition at issue in this litigation. He alleges in the Complaintthat he has been identified as a “special needs” child whose special needssubstantially limit many of his major life activities. (Complaint 2, 3.) Healso alleges that, due to the alleged events, he has developed posttraumaticstress syndrome, acute stress disorder with hyper-vigilanceirritability, social withdrawal, panic symptoms, poor appetite, and otherproblems. (Complaint, 16.) Plaintiff’s medical records are thus clearlyrelevant to determine the extent to which his medical condition caused orcontributed to the alleged harm. In addition, it appears undisputed that atleast some of the records from CHOC were already disclosed to Defendant.(Opp., at Brown Decl., 9; Reply, p. 2.) Defendant has thus establishedgood cause to obtain the subpoenaed records.RulingDemurrer to Answer is sustained with leave to amend, in its entiretyReasonThere are no facts (let alone, sufficient facts) pled in support of any of the25 Affirmative Defenses set forth in the Answer. CCP§430.20(a).16 13-644663Michele R. Ruiz v. WellsFargo Bank, N.A.RulingDemurrer to Complaint: Defendant’s Demurrer is SUSTAINED, withoutleave to amend, as to the First through Fifth and Seventh Causes of Action.Defendant’s Demurrer is SUSTAINED, with 15 days leave to amend, as tothe Sixth Cause of Action.Defendant’s Request for Judicial Notice is GRANTED.ReasonFirst, Second and Third Causes of Action: Fraud, Intentional

Misrepresentation and Negligent MisrepresentationPlaintiff’s first three causes of action each rely on allegations thatDefendant, during the origination of Plaintiff’s loan, provided ledgers whichmisrepresented the terms. (28, 29, 32, 41 and 50). As originationoccurred on May 30, 2007 (12) and the instant action was filed on April 18,2013, nearly six years later, these claims appear to be barred. C.C.P.§338(d). Further, as Plaintiff failed to file Opposition to this Demurrer, or todemonstrate any manner in which the claim could be amended, leave toamend is denied. Goodman v. Kennedy (1976) 18 Cal.3d 335,349. Additionally, pursuant to Garcia v. Wachovia Mortg. Corp. (C.D. Cal.2009) 676 F.Supp.2d 895, “claims relating to the loan’s negativeamortization features and teaser rates, and failure to provide adjustablerate mortgage disclosure notice…are preempted by 12 C.F.R. §560.2(b)(4)and (b)(9).” Id. at 913. Thus, as Plaintiff’s allegations relate to the failure tomake disclosures, expressly identified as preempted by 12 C.F.R. §560.2(b),these claims fail.Fourth Cause of Action: Unconscionability:“[T]here is no cause of action for unconscionability under section 1670.5;that doctrine is only a defense to contract enforcement.” Jones v. WellsFargo Bank (2003) 112 Cal.App.4 th 1527, 1539.Fifth Cause of Action: Breach of Contract:The provision within the Deed of Trust, indicating that the document will begoverned and construed under California law, is insufficient, as a matter oflaw, to incorporate all California statutes into the contract. Similarly, theprovision which indicates that Plaintiff will pay all principal and interest duedoes not bar negative amortization. Thus, as Plaintiff has not pled breachesof the Deed of Trust, this claim fails.Sixth Cause of Action: Civil Code §2923.5Plaintiff alleges Defendant violated Civil Code §2923.5 by failing to contactPlaintiff to discuss alternatives to foreclosure (80); however, Civil Code§2923.5(g) provides that a Notice of Default may be filed pursuant to CivilCode §2924, regardless of a lender’s failure to contact the borrower,“provided that the failure to contact the borrower occurred despite the duediligence of the mortgagee, beneficiary, or authorized agent.” Thus, as theComplaint fails to include any allegations that Defendant failed to act with“due diligence,” Plaintiff has insufficiently stated a claim under this section;however, leave to amend may be granted as: (1) the Court cannot takejudicial notice of the truth of the Declaration of Diligence, attached to theNotice of Default. Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4 th1057, 1063; and (2) Civil Code §2923.5 is not preempted by HOLA. Mabryv. Superior Court (2010) 185 Cal.App.4 th 208, 217-218.Seventh Cause of Action: UCLWhere a UCL Claim is derivative of another claim that fails as a matter oflaw, the UCL claim must similarly fail. Nein v. HostPro, Inc. (2009) 174Cal.App.4 th 833, 841. Here, as Plaintiff’s claim under the UCL is derivative ofher remaining causes of action it fail as a matter of law. Finally, leave toamend is denied, as the only claim capable of amendment is the claim underCivil Code §2923.5, which is insufficient to demonstrate standing to sueunder the UCL. Hamilton v. Greenwich Investors XXVI, LLC (2011) 195Cal.App.4 th 1602, 1617.

17 12-568522Rector v. Lawyers TitleInsurance CompanyThis motion was originally set to be heard on 6/6 (and as of that date themotion was unopposed). Court continued the motion to today’s date andordered Clerk to give notice.RulingMotion to Vacate Judgment is DENIED.The Request for JN is GRANTED.ReasonPlaintiff cites to CCP§473(b) and 473.5 in support of his motion. Plaintifffails to indicate how judgment was entered through his mistake,inadvertence, surprise or excusable neglect. If he did not know about thedemurrer, certainly that was not due to his own mistake, etc., but ratherDefense counsel. He fails to tell us why, if he did in fact know about thedemurrer, he failed to oppose it and failed to appear at the hearing. Inadditionplaintiff fails to submit any “other pleading”, or in this case, the proposedopposition to that demurrer, which would convince this Court that it wouldhave ruled differently. CCP§473(b). Further, he relies on CCP§473.5,apparently for the argument that he never received a copy of the demurrerand did not know it was on calendar for 1/31/2013. However, CCP§473.5 isinapplicable because it applies to service of a summons, not ademurrer. Here, the demurrer was served to Plaintiff at 19730 SallyAvenue, Cerritos, CA. This was the address he himself provided on othercourt filed documents. It is obvious that defendants have submitted ampleevidence that they served Plaintiff with the Demurrer and all the Notices ofContinuances pertaining to the demurrer at issue. Declaration of Hutchinson4, 5, 6, 7, Ex. A,C, D, E, F, G. Yet plaintiff fails to tell this court why, if thePOS lists the correct address, he did not receive notice of the demurrer, andthe multiple subsequent notices of continuance pertaining to the demurrer.18 13-645490Brown v. Carmax AutoSuperstoresRulingDemurrer to Complaint: SUSTAINED, with 15 days leave to amend. Plaintiffshall file a First Amended Complaint, within 15 days of this order, whichincludes the documentary proof referenced in the Opposition.ReasonPursuant to Civil Code §1794, the Song-Beverly Act allows for recovery,based on the breach of a service contract; however, as Plaintiff concedesthe Complaint fails to allege or demonstrate that Defendants were obligatedunder the service contract, the Demurrer is sustained with leave to amend.19 12-556409Benowitz v. HighwindsCapital, IncRulingThe motion brought by Plaintiff Ari Benowitz to consolidate this action (CaseNo. 30-2012- 00556409) with the related action entitled BandwidthConsulting, Inc. v. Benowitz et al (Case No. 2013-00628459) is GRANTED.ReasonAs this case has the lower number, this case (Case No. 2012-00556409) isdesignated as the lead case. Moving party shall file a copy of the Order toConsolidate in both actions. Thereafter, all documents are to be filed withthe caption and case number of the lead case, followed by the case numberof the consolidated case, per C.R.C. 3.350(d).20 12-598774First National Bank ofRulingMotion to Compel Deposition is GRANTED. Defendant Jason Barrette is

Omaha v. Barretteordered to appear for Deposition at the office of the Dunning Law Firm, on adate to be determined at the hearing. Defendant is further ordered toproduce documents responsive to the Amended Notice of Deposition.Defendant Jason Barrette is ordered to pay sanctions to Plaintiff in theamount of $685.00, pursuant to C.C.P. §2025.450(c).Reason"Good cause” for production of documents may be established where it isshown that the request is made in good faith and that the documentssought are relevant to the subject matter and material to the issues in thelitigation. Associated Brewers Distributing Co. v. Superior Court (1967) 65Cal.2d 583, 588. In this instance, Exhibits “B” and “D” of the Declaration ofMr. MacLeod demonstrate that Defendant was adequately served the subjectNotice of Deposition and Amended Notice of Deposition, scheduling theDeposition for May 10, 2013. Additionally, the Declaration of Mr. MacLeoddemonstrates that Defense Counsel, on May 9, 2013, indicated to Plaintiffthat Defendant would not appear, due to his intention to exercise his 5 thAmendment rights against self-incrimination. (5 of MacLeodDec.). Similarly, the Declaration indicates that Plaintiff’s Counselcommunicated with Defense Counsel, regarding this failure, as required byC.C.P. §2045.450(b)(2). Lastly, while Plaintiff’s Motion does not set forthspecific facts showing good cause, justifying the production of documents, areview of the requests (included in the Notice of Deposition), reveals thateach request is clearly relevant and material to the issues in this litigation.For example, each request seeks information concerning the relevantaccount (on which the debt is owed) and communications between theparties. (Exhibit “A” and “D”). As this information is included within theattachments to the Motion, C.C.P. §2025.450(b)(1) is met.

TENTATIVERULINGS ON LAW & MOTION MATTERSDepartment C-6Judge Luis A. RodriguezLaw and Motion heard at 1:30OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduledThursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 (657-622-5206) for the ruling. Motions generally will not be continued after the tentative has been posted.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILINGPARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTIONIS DISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance willbe necessary and the tentative will become the final ruling. If no one appears at the hearing and thecourt has not been notified all parties submit on the tentative ruling, the tentative ruling will become thefinal ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely restate theirpoints and authorities.June 27, 2013# Case Name Tentative1 11-439451Trudy K. Corbett v.AMICA Mutual InsuranceCompanyRulingPlaintiff’s motion to untimely designate identify expert witnesses isGRANTED.Reason“[A]ny party who has failed to submit expert witness information on thedate specified in a demand for that exchange, the court may grantleave to submit that information on a later date.”CCP §2034.710. Here, applying the statutory requirements to grantrelief the court Pursuant to Section 2034.720 finds that plaintiff’smotion satisfies all of the conditions to warrant this delayed exchange:First, the reliance on the absence of a list of expert witness is notsufficient to deprive plaintiff of the opportunity to put on at trial expertwitnesses. Second, there is no prejudice to defendant for the followingreasons:1. Defendant’s ability to maintain the action or defensesthereto is not impacted.2. The court has determined that the moving party did all ofthe following:A. Failed to submit the information as the result of mistake,inadvertence, surprise, or excusable neglect.B. Sought leave to submit the information promptly after learningof the mistake, inadvertence, surprise, or excusable neglect.C. Promptly thereafter served a copy of the proposed expertwitness information described in Section 2034.260 on all otherparties who have appeared in the action.”2 11-501167 Ruling

Inhale Inc v.Worldwide Smoke Inc3 11-533896Havilah Hynes v. AvocadoPacific Communities LLCThe Motion for Evidentiary Hearing is Denied.ReasonThis motion is premature, and suffers from lack of any realauthority enabling the court to grant the relief requested. CCP§187is the only enabling statute cited to in the motion. CCP§187 givesthe trial court the authority to amend a judgment to add additionaljudgment debtors. Here, Plaintiff is not asking the Court to amendany judgment, but is apparently asking the Court to prematurelyrule Defendant Bard is the alter ego of Defendant Worldwide. Alterego allegations are pled in the Complaint and should be determinedon the merits.RulingDefendants’ Motion to Compel Responses to Written Discovery is wellfounded,as Plaintiff’s counsel has conceded. The Motion is GRANTED.Plaintiff is ordered to provide complete responses to the FormInterrogatories, Special Interrogatories, and Requests for Production ofDocuments, without objection, and to produce any responsivedocuments, within 15 days.Sanctions in the amount of $1,290 are awarded on this Motion againstcounsel for Plaintiff, Mr. Jensen, to be paid to counsel for Defendantswithin 20 days.Defendants’ Motion for an Order that the Truth of the Matters beAdmitted is also well-founded.Unless Plaintiff can present evidence by the time of the hearing thatresponses to the Requests for Admission have been served, and thatsuch responses are in substantial compliance with C.C.P. Section2033.220, the Motion shall be GRANTED.In either event, sanctions in the amount of $890 are awarded on thisMotion against counsel for Plaintiff, Mr. Jensen, to be paid to counselfor Defendants within 20 days.5 12-568180Jeremy Nguyen v. MegaCapital Funding, IncRulingUnopposed Motion for Judgment on the Pleadings is granted with 15days leave to amend based on the arguments raised in themotion. Defendant to give notice.7 12-575537Asma Pouzbaris v. PrimeHealth Care, LLCRulingHaving now considered all of the briefs, including the supplementalbriefing, Defendant’s Motion for Summary Judgment is GRANTED.Plaintiff submitted an evidentiary objection as to argument in theSeparate Statement (in UF No. 6). Plaintiff is correct that UF No. 6contains improper argument, which the Court hasdisregarded. However, as the Separate Statement is not evidence, theobjection thereto is OVERRULED.ReasonOn 5/30/13, the Motion for Summary Judgment filed by DefendantPrime Healthcare Services - Anaheim, LLP dba West Anaheim MedicalCenter came on for hearing. However, as review had just been grantedfor a case upon which Plaintiff had relied, the Court granted leave tofile supplemental briefs, and continued the hearing to 6/27/13. Plaintifftimely filed Supplemental Opposition on 6/14/13. Plaintiff alsobelatedly filed a Supplemental Declaration on 6/21/13, which the Courthas exercised its discretion to nonetheless consider. Defendant alsofiled a Supplemental Reply.The facts which are relevant to the application of §340.5 are thatalleged injury to Plaintiff occurred while she was a patient inDefendant’s hospital, travelling without assistance or supervisionbetween the bathroom and her hospital bed. She allegedly fell becausethe floor in her room was slippery. Boiled down plaintiff claims

defendant hospital failed to ensure Plaintiff’s safety while ambulatory inthe hospital. Now adding the necessary time period it is undisputedthat she fell on 6/15/10 and knew of the alleged negligence at thattime. (UF 1-5.) This action was not commenced until 6/11/12.Under these facts and plaintiff does not claim to the contrary this actionis for professional negligence committed in the act of rendering servicesfor which the hospital is licensed. The underlying rational of theapplicable cases is that a hospital has a duty to use reasonable careand diligence in safeguarding a patient committed to its charge. Sowhether Plaintiff fell because she was not supervised or assisted on hertrip to the restroom, or because a “cleaning lady” mopped her roomwhile she was in the restroom is irrelevant for this analysis: in eitherevent, the claim concerns Defendant’s duties to take appropriatemeasures for patient safety, and concerns rendering of services forwhich Defendant is licensed. It is thus a claim for alleged professionalnegligence subject to Section 340.5. (See e.g. Murillo, Flowers,Bellamy, Taylor, & Canister.) The grant of review as to Flores does notchange the analysis. The controlling law is that this action is subject toSection 340.5 under Murillo v. Good Samaritan Hospital of Anaheim(1979) 99 Cal.App.3d 50 and its progeny, because the claim is onebrought by a patient against a hospital for an alleged injury sustainedin the course of the hospital’s care for her it is a claim for professionalnegligence.Plaintiff contends that the court must apply a different based onFlowers v. Torrance Memorial Hospital (1994) 8 Cal.4th992. Specifically, Plaintiff urges that under Flowers, the “test” iswhether the act complained of by plaintiff involves the manner in whichprofessional services were rendered. (Supp. Opp., p. 6.) However,Flowers did not create any such “test” for evaluating statutory claimsunder MICRA: instead, Flowers specifically declined to draw adistinction between ordinary and professional negligence as it relates toMICRA. (Flowers, 8 Cal.4th at 1002, fn. 6.) Nor do more recent casesstate such a standard. (Bellamy, supra, 50 Cal.App.4th at 806-807;Canister, supra, 160 Cal.App.4th at 404.) In addition, plaintiff is alsoincorrect in claiming that expert testimony is needed to decide whetherC.C.P. §340.5 applies. While the manner of proof by which negligencecan be established may require expert testimony, the character of thenegligence claim does not. (Flowers, supra, at 1001.)10 12-600752James Lauro Trustee ofthe Joseph C. and EleanorJ. Lauro Family Trust,dated May 9, 1980 v.Lake Insurance Agency,IncRulingThe Demurrer to the Third and Fourth Causes of Action in the FirstAmended Complaint is OVERRULED. Defendant’s Request for JudicialNotice is GRANTED in part but only as to Lake First AmendedComplaint,” the “Notice of Bankruptcy Order Granting Motion for Relieffrom the Automatic Stay,” and the Judgment entered in the prioraction, but denies the request as to the balance of that file.ReasonDefendant has failed to establish that the requirements for either resjudicata or collateral estoppel have been met here. Although both thisaction and the prior action concerned the same contract, the prioraction did not request rescission, did not seek any determination as towhat amounts were owed under that contract, and did not request anyrelief from any payment obligations set forth therein. In contrast, theaction here seeks payment under the terms of the contract, which wasnot addressed or adjudicated in the prior action. In addition, becausethe prior judgment was obtained by default, it is not conclusive as toany defense or issue which was not raised in and is not necessary touphold the default judgment. (Four Star Electric, Inc. v. F & HConstruction (1992) 7 Cal.App.4th 1375, 1380; English v. English

(1937) 9 Cal.2d 358, 363-64.)11 12-617114Sebastian Paz v. MagnoliaSchool District13 13-638118Israel Rodriguez v.Lawrence MichealsRulingPlaintiff’s Motion to Quash Subpoenas issued by Defendant to Children’sHospital of Orange County is DENIED.ReasonCalifornia recognizes a right to privacy in medical records. Among otherthings, Article I, section 1 of the California Constitution provides that allpeople have certain inalienable rights, and among these are “pursuingand obtaining safety, happiness, and privacy.” Such privacy rightsprotect medical records pertaining to a patient's physical or mentalcondition. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853(“Lantz”).) The Evidence Code also specifically recognizes a privilegefor such records. (See Ev. Code §990 et seq. and §1010 et seq., whichconcern the physician-patient and psychotherapist-patient privilege,respectively).To the extent that particular medical records are necessary to evaluateclaims asserted by the patient, they are discoverable. (Britt v. Sup. Ct.(1978) 20 Cal.3d 844, 864, & at fns. 8, 9 [where multiple injuries orillnesses contributed to condition placed at issue by plaintiff, defendantwas entitled to obtain information as to all such injuries or illnesses];Palay, supra, 18 Cal.App.4 th at 933; Vinson v. Superior Court (1987) 43Cal.3d 833, 842 [plaintiff' waived privacy rights as to mental andemotional condition by putting them at issue in the action: discoveryrelated thereto was directly relevant to her claim and essential to a fairresolution of her suit: however, she did not, by initiating harassmentand emotional distress claim, implicitly waive her privacy rights as toher sexual history so as to permit an IME re same]; Slagle v. Sup. Ct.(1989) 211 Cal.App.3d 1309, 1314-15 [medical history as topetitioner's eyes was discoverable as relevant to causation: however, ifpetitioner was concerned that records would reveal other information,he could request an in camera inspection to segregate the irrelevantinformation]; see also Ev. Code §996(a) [privilege does not applywhere patient put his or her physical condition at issue] and §1016(a)[privilege does not apply where patient put his or her mental conditionat issue].)Here, Defendant has established good cause to access the subpoenaedmedical records concerning Plaintiff, as Plaintiff has clearly put hismental and physical condition at issue in this litigation. He alleges inthe Complaint that he has been identified as a “special needs” childwhose special needs substantially limit many of his major life activities.(Complaint 2, 3.) He also alleges that, due to the alleged events,he has developed post-traumatic stress syndrome, acute stressdisorder with hyper-vigilance irritability, social withdrawal, panicsymptoms, poor appetite, and other problems. (Complaint, 16.) Plaintiff’s medical records are thus clearly relevant to determinethe extent to which his medical condition caused or contributed to thealleged harm. In addition, it appears undisputed that at least some ofthe records from CHOC were already disclosed to Defendant. (Opp., atBrown Decl., 9; Reply, p. 2.) Defendant has thus established goodcause to obtain the subpoenaed records.RulingDemurrer to Answer is sustained with leave to amend, in its entiretyReasonThere are no facts (let alone, sufficient facts) pled in support of any ofthe 25 Affirmative Defenses set forth in the Answer. CCP§430.20(a).16 13-644663 Ruling

Michele R. Ruiz v. WellsFargo Bank, N.A.Demurrer to Complaint: Defendant’s Demurrer is SUSTAINED, withoutleave to amend, as to the First through Fifth and Seventh Causes ofAction. Defendant’s Demurrer is SUSTAINED, with 15 days leave toamend, as to the Sixth Cause of Action.Defendant’s Request for Judicial Notice is GRANTED.ReasonFirst, Second and Third Causes of Action: Fraud, IntentionalMisrepresentation and Negligent MisrepresentationPlaintiff’s first three causes of action each rely on allegations thatDefendant, during the origination of Plaintiff’s loan, provided ledgerswhich misrepresented the terms. (28, 29, 32, 41 and 50). Asorigination occurred on May 30, 2007 (12) and the instant action wasfiled on April 18, 2013, nearly six years later, these claims appear to bebarred. C.C.P. §338(d). Further, as Plaintiff failed to file Opposition tothis Demurrer, or to demonstrate any manner in which the claim couldbe amended, leave to amend is denied. Goodman v. Kennedy (1976)18 Cal.3d 335, 349. Additionally, pursuant to Garcia v. WachoviaMortg. Corp. (C.D. Cal. 2009) 676 F.Supp.2d 895, “claims relating tothe loan’s negative amortization features and teaser rates, and failureto provide adjustable rate mortgage disclosure notice…are preemptedby 12 C.F.R. §560.2(b)(4) and (b)(9).” Id. at 913. Thus, as Plaintiff’sallegations relate to the failure to make disclosures, expressly identifiedas preempted by 12 C.F.R. §560.2(b), these claims fail.Fourth Cause of Action: Unconscionability:“[T]here is no cause of action for unconscionability under section1670.5; that doctrine is only a defense to contract enforcement.” Jonesv. Wells Fargo Bank (2003) 112 Cal.App.4 th 1527, 1539.Fifth Cause of Action: Breach of Contract:The provision within the Deed of Trust, indicating that the documentwill be governed and construed under California law, is insufficient, as amatter of law, to incorporate all California statutes into the contract.Similarly, the provision which indicates that Plaintiff will pay allprincipal and interest due does not bar negative amortization. Thus, asPlaintiff has not pled breaches of the Deed of Trust, this claim fails.Sixth Cause of Action: Civil Code §2923.5Plaintiff alleges Defendant violated Civil Code §2923.5 by failing tocontact Plaintiff to discuss alternatives to foreclosure (80); however,Civil Code §2923.5(g) provides that a Notice of Default may be filedpursuant to Civil Code §2924, regardless of a lender’s failure to contactthe borrower, “provided that the failure to contact the borroweroccurred despite the due diligence of the mortgagee, beneficiary, orauthorized agent.” Thus, as the Complaint fails to include anyallegations that Defendant failed to act with “due diligence,” Plaintiffhas insufficiently stated a claim under this section; however, leave toamend may be granted as: (1) the Court cannot take judicial notice ofthe truth of the Declaration of Diligence, attached to the Notice ofDefault. Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4 th 1057,1063; and (2) Civil Code §2923.5 is not preempted by HOLA. Mabry v.Superior Court (2010) 185 Cal.App.4 th 208, 217-218.Seventh Cause of Action: UCLWhere a UCL Claim is derivative of another claim that fails as a matterof law, the UCL claim must similarly fail. Nein v. HostPro, Inc. (2009)

174 Cal.App.4 th 833, 841. Here, as Plaintiff’s claim under the UCL isderivative of her remaining causes of action it fail as a matter oflaw. Finally, leave to amend is denied, as the only claim capable ofamendment is the claim under Civil Code §2923.5, which is insufficientto demonstrate standing to sue under the UCL. Hamilton v. GreenwichInvestors XXVI, LLC (2011) 195 Cal.App.4 th 1602, 1617.17 12-568522Rector v. Lawyers TitleInsurance CompanyThis motion was originally set to be heard on 6/6 (and as of that datethe motion was unopposed). Court continued the motion to today’sdate and ordered Clerk to give notice.RulingMotion to Vacate Judgment is DENIED.The Request for JN is GRANTED.ReasonPlaintiff cites to CCP§473(b) and 473.5 in support of hismotion. Plaintiff fails to indicate how judgment was entered throughhis mistake, inadvertence, surprise or excusable neglect. If he did notknow about the demurrer, certainly that was not due to his ownmistake, etc., but rather Defense counsel. He fails to tell us why, if hedid in fact know about the demurrer, he failed to oppose it and failed toappear at the hearing. In additionplaintiff fails to submit any “other pleading”, or in this case, theproposed opposition to that demurrer, which would convince this Courtthat it would have ruled differently. CCP§473(b). Further, he relies onCCP§473.5, apparently for the argument that he never received a copyof the demurrer and did not know it was on calendar for 1/31/2013.However, CCP§473.5 is inapplicable because it applies to service of asummons, not a demurrer. Here, the demurrer was served to Plaintiffat 19730 Sally Avenue, Cerritos, CA. This was the address he himselfprovided on other court filed documents. It is obvious that defendantshave submitted ample evidence that they served Plaintiff with theDemurrer and all the Notices of Continuances pertaining to thedemurrer at issue. Declaration of Hutchinson 4, 5, 6, 7, Ex. A,C, D, E,F, G. Yet plaintiff fails to tell this court why, if the POS lists the correctaddress, he did not receive notice of the demurrer, and the multiplesubsequent notices of continuance pertaining to the demurrer.18 13-645490Brown v. Carmax AutoSuperstoresRulingDemurrer to Complaint: SUSTAINED, with 15 days leave to amend.Plaintiff shall file a First Amended Complaint, within 15 days of thisorder, which includes the documentary proof referenced in theOpposition.ReasonPursuant to Civil Code §1794, the Song-Beverly Act allows for recovery,based on the breach of a service contract; however, as Plaintiffconcedes the Complaint fails to allege or demonstrate that Defendantswere obligated under the service contract, the Demurrer is sustainedwith leave to amend.19 12-556409Benowitz v. HighwindsCapital, IncRulingThe motion brought by Plaintiff Ari Benowitz to consolidate this action(Case No. 30-2012- 00556409) with the related action entitled

Bandwidth Consulting, Inc. v. Benowitz et al (Case No. 2013-00628459) is GRANTED.ReasonAs this case has the lower number, this case (Case No. 2012-00556409) is designated as the lead case. Moving party shall file acopy of the Order to Consolidate in both actions. Thereafter, alldocuments are to be filed with the caption and case number of the leadcase, followed by the case number of the consolidated case, per C.R.C.3.350(d).20 12-598774First National Bank ofOmaha v. BarretteRulingMotion to Compel Deposition is GRANTED. Defendant Jason Barrette isordered to appear for Deposition at the office of the Dunning Law Firm,on a date to be determined at the hearing. Defendant is further orderedto produce documents responsive to the Amended Notice of Deposition.Defendant Jason Barrette is ordered to pay sanctions to Plaintiff in theamount of $685.00, pursuant to C.C.P. §2025.450(c).Reason"Good cause” for production of documents may be established where itis shown that the request is made in good faith and that the documentssought are relevant to the subject matter and material to the issues inthe litigation. Associated Brewers Distributing Co. v. Superior Court(1967) 65 Cal.2d 583, 588. In this instance, Exhibits “B” and “D” of theDeclaration of Mr. MacLeod demonstrate that Defendant wasadequately served the subject Notice of Deposition and AmendedNotice of Deposition, scheduling the Deposition for May 10, 2013.Additionally, the Declaration of Mr. MacLeod demonstrates that DefenseCounsel, on May 9, 2013, indicated to Plaintiff that Defendant wouldnot appear, due to his intention to exercise his 5 th Amendment rightsagainst self-incrimination. (5 of MacLeod Dec.). Similarly, theDeclaration indicates that Plaintiff’s Counsel communicated withDefense Counsel, regarding this failure, as required by C.C.P.§2045.450(b)(2). Lastly, while Plaintiff’s Motion does not set forthspecific facts showing good cause, justifying the production ofdocuments, a review of the requests (included in the Notice ofDeposition), reveals that each request is clearly relevant and materialto the issues in this litigation. For example, each request seeksinformation concerning the relevant account (on which the debt isowed) and communications between the parties. (Exhibit “A” and “D”).As this information is included within the attachments to the Motion,C.C.P. §2025.450(b)(1) is met.

TENTATIVERULINGS ON LAW & MOTION MATTERSDepartment C-6Judge Luis A. RodriguezLaw and Motion heard at 1:30OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduledThursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 (657-622-5206) for the ruling. Motions generally will not be continued after the tentative has been posted.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILINGPARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTIONIS DISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance willbe necessary and the tentative will become the final ruling. If no one appears at the hearing and thecourt has not been notified all parties submit on the tentative ruling, the tentative ruling will become thefinal ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely restate theirpoints and authorities.June 27, 2013# Case Name Tentative1 11-439451Trudy K. Corbett v.AMICA Mutual InsuranceCompanyRulingPlaintiff’s motion to untimely designate identify expert witnesses isGRANTED.Reason“[A]ny party who has failed to submit expert witness information on thedate specified in a demand for that exchange, the court may grantleave to submit that information on a later date.”CCP §2034.710. Here, applying the statutory requirements to grantrelief the court Pursuant to Section 2034.720 finds that plaintiff’smotion satisfies all of the conditions to warrant this delayed exchange:First, the reliance on the absence of a list of expert witness is notsufficient to deprive plaintiff of the opportunity to put on at trial expertwitnesses. Second, there is no prejudice to defendant for the followingreasons:1. Defendant’s ability to maintain the action or defensesthereto is not impacted.2. The court has determined that the moving party did all ofthe following:A. Failed to submit the information as the result of mistake,inadvertence, surprise, or excusable neglect.B. Sought leave to submit the information promptly after learningof the mistake, inadvertence, surprise, or excusable neglect.C. Promptly thereafter served a copy of the proposed expertwitness information described in Section 2034.260 on all otherparties who have appeared in the action.”2 11-501167 Ruling

Inhale Inc v.Worldwide Smoke Inc3 11-533896Havilah Hynes v. AvocadoPacific Communities LLCThe Motion for Evidentiary Hearing is Denied.ReasonThis motion is premature, and suffers from lack of any realauthority enabling the court to grant the relief requested. CCP§187is the only enabling statute cited to in the motion. CCP§187 givesthe trial court the authority to amend a judgment to add additionaljudgment debtors. Here, Plaintiff is not asking the Court to amendany judgment, but is apparently asking the Court to prematurelyrule Defendant Bard is the alter ego of Defendant Worldwide. Alterego allegations are pled in the Complaint and should be determinedon the merits.RulingDefendants’ Motion to Compel Responses to Written Discovery is wellfounded,as Plaintiff’s counsel has conceded. The Motion is GRANTED.Plaintiff is ordered to provide complete responses to the FormInterrogatories, Special Interrogatories, and Requests for Production ofDocuments, without objection, and to produce any responsivedocuments, within 15 days.Sanctions in the amount of $1,290 are awarded on this Motion againstcounsel for Plaintiff, Mr. Jensen, to be paid to counsel for Defendantswithin 20 days.Defendants’ Motion for an Order that the Truth of the Matters beAdmitted is also well-founded.Unless Plaintiff can present evidence by the time of the hearing thatresponses to the Requests for Admission have been served, and thatsuch responses are in substantial compliance with C.C.P. Section2033.220, the Motion shall be GRANTED.In either event, sanctions in the amount of $890 are awarded on thisMotion against counsel for Plaintiff, Mr. Jensen, to be paid to counselfor Defendants within 20 days.5 12-568180Jeremy Nguyen v. MegaCapital Funding, IncRulingUnopposed Motion for Judgment on the Pleadings is granted with 15days leave to amend based on the arguments raised in themotion. Defendant to give notice.7 12-575537Asma Pouzbaris v. PrimeHealth Care, LLCRulingHaving now considered all of the briefs, including the supplementalbriefing, Defendant’s Motion for Summary Judgment is GRANTED.Plaintiff submitted an evidentiary objection as to argument in theSeparate Statement (in UF No. 6). Plaintiff is correct that UF No. 6contains improper argument, which the Court hasdisregarded. However, as the Separate Statement is not evidence, theobjection thereto is OVERRULED.ReasonOn 5/30/13, the Motion for Summary Judgment filed by DefendantPrime Healthcare Services - Anaheim, LLP dba West Anaheim MedicalCenter came on for hearing. However, as review had just been grantedfor a case upon which Plaintiff had relied, the Court granted leave tofile supplemental briefs, and continued the hearing to 6/27/13. Plaintifftimely filed Supplemental Opposition on 6/14/13. Plaintiff alsobelatedly filed a Supplemental Declaration on 6/21/13, which the Courthas exercised its discretion to nonetheless consider. Defendant alsofiled a Supplemental Reply.The facts which are relevant to the application of §340.5 are thatalleged injury to Plaintiff occurred while she was a patient inDefendant’s hospital, travelling without assistance or supervisionbetween the bathroom and her hospital bed. She allegedly fell becausethe floor in her room was slippery. Boiled down plaintiff claims

defendant hospital failed to ensure Plaintiff’s safety while ambulatory inthe hospital. Now adding the necessary time period it is undisputedthat she fell on 6/15/10 and knew of the alleged negligence at thattime. (UF 1-5.) This action was not commenced until 6/11/12.Under these facts and plaintiff does not claim to the contrary this actionis for professional negligence committed in the act of rendering servicesfor which the hospital is licensed. The underlying rational of theapplicable cases is that a hospital has a duty to use reasonable careand diligence in safeguarding a patient committed to its charge. Sowhether Plaintiff fell because she was not supervised or assisted on hertrip to the restroom, or because a “cleaning lady” mopped her roomwhile she was in the restroom is irrelevant for this analysis: in eitherevent, the claim concerns Defendant’s duties to take appropriatemeasures for patient safety, and concerns rendering of services forwhich Defendant is licensed. It is thus a claim for alleged professionalnegligence subject to Section 340.5. (See e.g. Murillo, Flowers,Bellamy, Taylor, & Canister.) The grant of review as to Flores does notchange the analysis. The controlling law is that this action is subject toSection 340.5 under Murillo v. Good Samaritan Hospital of Anaheim(1979) 99 Cal.App.3d 50 and its progeny, because the claim is onebrought by a patient against a hospital for an alleged injury sustainedin the course of the hospital’s care for her it is a claim for professionalnegligence.Plaintiff contends that the court must apply a different based onFlowers v. Torrance Memorial Hospital (1994) 8 Cal.4th992. Specifically, Plaintiff urges that under Flowers, the “test” iswhether the act complained of by plaintiff involves the manner in whichprofessional services were rendered. (Supp. Opp., p. 6.) However,Flowers did not create any such “test” for evaluating statutory claimsunder MICRA: instead, Flowers specifically declined to draw adistinction between ordinary and professional negligence as it relates toMICRA. (Flowers, 8 Cal.4th at 1002, fn. 6.) Nor do more recent casesstate such a standard. (Bellamy, supra, 50 Cal.App.4th at 806-807;Canister, supra, 160 Cal.App.4th at 404.) In addition, plaintiff is alsoincorrect in claiming that expert testimony is needed to decide whetherC.C.P. §340.5 applies. While the manner of proof by which negligencecan be established may require expert testimony, the character of thenegligence claim does not. (Flowers, supra, at 1001.)10 12-600752James Lauro Trustee ofthe Joseph C. and EleanorJ. Lauro Family Trust,dated May 9, 1980 v.Lake Insurance Agency,IncRulingThe Demurrer to the Third and Fourth Causes of Action in the FirstAmended Complaint is OVERRULED. Defendant’s Request for JudicialNotice is GRANTED in part but only as to Lake First AmendedComplaint,” the “Notice of Bankruptcy Order Granting Motion for Relieffrom the Automatic Stay,” and the Judgment entered in the prioraction, but denies the request as to the balance of that file.ReasonDefendant has failed to establish that the requirements for either resjudicata or collateral estoppel have been met here. Although both thisaction and the prior action concerned the same contract, the prioraction did not request rescission, did not seek any determination as towhat amounts were owed under that contract, and did not request anyrelief from any payment obligations set forth therein. In contrast, theaction here seeks payment under the terms of the contract, which wasnot addressed or adjudicated in the prior action. In addition, becausethe prior judgment was obtained by default, it is not conclusive as toany defense or issue which was not raised in and is not necessary touphold the default judgment. (Four Star Electric, Inc. v. F & HConstruction (1992) 7 Cal.App.4th 1375, 1380; English v. English

(1937) 9 Cal.2d 358, 363-64.)11 12-617114Sebastian Paz v. MagnoliaSchool District13 13-638118Israel Rodriguez v.Lawrence MichealsRulingPlaintiff’s Motion to Quash Subpoenas issued by Defendant to Children’sHospital of Orange County is DENIED.ReasonCalifornia recognizes a right to privacy in medical records. Among otherthings, Article I, section 1 of the California Constitution provides that allpeople have certain inalienable rights, and among these are “pursuingand obtaining safety, happiness, and privacy.” Such privacy rightsprotect medical records pertaining to a patient's physical or mentalcondition. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853(“Lantz”).) The Evidence Code also specifically recognizes a privilegefor such records. (See Ev. Code §990 et seq. and §1010 et seq., whichconcern the physician-patient and psychotherapist-patient privilege,respectively).To the extent that particular medical records are necessary to evaluateclaims asserted by the patient, they are discoverable. (Britt v. Sup. Ct.(1978) 20 Cal.3d 844, 864, & at fns. 8, 9 [where multiple injuries orillnesses contributed to condition placed at issue by plaintiff, defendantwas entitled to obtain information as to all such injuries or illnesses];Palay, supra, 18 Cal.App.4 th at 933; Vinson v. Superior Court (1987) 43Cal.3d 833, 842 [plaintiff' waived privacy rights as to mental andemotional condition by putting them at issue in the action: discoveryrelated thereto was directly relevant to her claim and essential to a fairresolution of her suit: however, she did not, by initiating harassmentand emotional distress claim, implicitly waive her privacy rights as toher sexual history so as to permit an IME re same]; Slagle v. Sup. Ct.(1989) 211 Cal.App.3d 1309, 1314-15 [medical history as topetitioner's eyes was discoverable as relevant to causation: however, ifpetitioner was concerned that records would reveal other information,he could request an in camera inspection to segregate the irrelevantinformation]; see also Ev. Code §996(a) [privilege does not applywhere patient put his or her physical condition at issue] and §1016(a)[privilege does not apply where patient put his or her mental conditionat issue].)Here, Defendant has established good cause to access the subpoenaedmedical records concerning Plaintiff, as Plaintiff has clearly put hismental and physical condition at issue in this litigation. He alleges inthe Complaint that he has been identified as a “special needs” childwhose special needs substantially limit many of his major life activities.(Complaint 2, 3.) He also alleges that, due to the alleged events,he has developed post-traumatic stress syndrome, acute stressdisorder with hyper-vigilance irritability, social withdrawal, panicsymptoms, poor appetite, and other problems. (Complaint, 16.) Plaintiff’s medical records are thus clearly relevant to determinethe extent to which his medical condition caused or contributed to thealleged harm. In addition, it appears undisputed that at least some ofthe records from CHOC were already disclosed to Defendant. (Opp., atBrown Decl., 9; Reply, p. 2.) Defendant has thus established goodcause to obtain the subpoenaed records.RulingDemurrer to Answer is sustained with leave to amend, in its entiretyReasonThere are no facts (let alone, sufficient facts) pled in support of any ofthe 25 Affirmative Defenses set forth in the Answer. CCP§430.20(a).16 13-644663 Ruling

Michele R. Ruiz v. WellsFargo Bank, N.A.Demurrer to Complaint: Defendant’s Demurrer is SUSTAINED, withoutleave to amend, as to the First through Fifth and Seventh Causes ofAction. Defendant’s Demurrer is SUSTAINED, with 15 days leave toamend, as to the Sixth Cause of Action.Defendant’s Request for Judicial Notice is GRANTED.ReasonFirst, Second and Third Causes of Action: Fraud, IntentionalMisrepresentation and Negligent MisrepresentationPlaintiff’s first three causes of action each rely on allegations thatDefendant, during the origination of Plaintiff’s loan, provided ledgerswhich misrepresented the terms. (28, 29, 32, 41 and 50). Asorigination occurred on May 30, 2007 (12) and the instant action wasfiled on April 18, 2013, nearly six years later, these claims appear to bebarred. C.C.P. §338(d). Further, as Plaintiff failed to file Opposition tothis Demurrer, or to demonstrate any manner in which the claim couldbe amended, leave to amend is denied. Goodman v. Kennedy (1976)18 Cal.3d 335, 349. Additionally, pursuant to Garcia v. WachoviaMortg. Corp. (C.D. Cal. 2009) 676 F.Supp.2d 895, “claims relating tothe loan’s negative amortization features and teaser rates, and failureto provide adjustable rate mortgage disclosure notice…are preemptedby 12 C.F.R. §560.2(b)(4) and (b)(9).” Id. at 913. Thus, as Plaintiff’sallegations relate to the failure to make disclosures, expressly identifiedas preempted by 12 C.F.R. §560.2(b), these claims fail.Fourth Cause of Action: Unconscionability:“[T]here is no cause of action for unconscionability under section1670.5; that doctrine is only a defense to contract enforcement.” Jonesv. Wells Fargo Bank (2003) 112 Cal.App.4 th 1527, 1539.Fifth Cause of Action: Breach of Contract:The provision within the Deed of Trust, indicating that the documentwill be governed and construed under California law, is insufficient, as amatter of law, to incorporate all California statutes into the contract.Similarly, the provision which indicates that Plaintiff will pay allprincipal and interest due does not bar negative amortization. Thus, asPlaintiff has not pled breaches of the Deed of Trust, this claim fails.Sixth Cause of Action: Civil Code §2923.5Plaintiff alleges Defendant violated Civil Code §2923.5 by failing tocontact Plaintiff to discuss alternatives to foreclosure (80); however,Civil Code §2923.5(g) provides that a Notice of Default may be filedpursuant to Civil Code §2924, regardless of a lender’s failure to contactthe borrower, “provided that the failure to contact the borroweroccurred despite the due diligence of the mortgagee, beneficiary, orauthorized agent.” Thus, as the Complaint fails to include anyallegations that Defendant failed to act with “due diligence,” Plaintiffhas insufficiently stated a claim under this section; however, leave toamend may be granted as: (1) the Court cannot take judicial notice ofthe truth of the Declaration of Diligence, attached to the Notice ofDefault. Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4 th 1057,1063; and (2) Civil Code §2923.5 is not preempted by HOLA. Mabry v.Superior Court (2010) 185 Cal.App.4 th 208, 217-218.Seventh Cause of Action: UCLWhere a UCL Claim is derivative of another claim that fails as a matterof law, the UCL claim must similarly fail. Nein v. HostPro, Inc. (2009)

174 Cal.App.4 th 833, 841. Here, as Plaintiff’s claim under the UCL isderivative of her remaining causes of action it fail as a matter oflaw. Finally, leave to amend is denied, as the only claim capable ofamendment is the claim under Civil Code §2923.5, which is insufficientto demonstrate standing to sue under the UCL. Hamilton v. GreenwichInvestors XXVI, LLC (2011) 195 Cal.App.4 th 1602, 1617.17 12-568522Rector v. Lawyers TitleInsurance CompanyThis motion was originally set to be heard on 6/6 (and as of that datethe motion was unopposed). Court continued the motion to today’sdate and ordered Clerk to give notice.RulingMotion to Vacate Judgment is DENIED.The Request for JN is GRANTED.ReasonPlaintiff cites to CCP§473(b) and 473.5 in support of hismotion. Plaintiff fails to indicate how judgment was entered throughhis mistake, inadvertence, surprise or excusable neglect. If he did notknow about the demurrer, certainly that was not due to his ownmistake, etc., but rather Defense counsel. He fails to tell us why, if hedid in fact know about the demurrer, he failed to oppose it and failed toappear at the hearing. In additionplaintiff fails to submit any “other pleading”, or in this case, theproposed opposition to that demurrer, which would convince this Courtthat it would have ruled differently. CCP§473(b). Further, he relies onCCP§473.5, apparently for the argument that he never received a copyof the demurrer and did not know it was on calendar for 1/31/2013.However, CCP§473.5 is inapplicable because it applies to service of asummons, not a demurrer. Here, the demurrer was served to Plaintiffat 19730 Sally Avenue, Cerritos, CA. This was the address he himselfprovided on other court filed documents. It is obvious that defendantshave submitted ample evidence that they served Plaintiff with theDemurrer and all the Notices of Continuances pertaining to thedemurrer at issue. Declaration of Hutchinson 4, 5, 6, 7, Ex. A,C, D, E,F, G. Yet plaintiff fails to tell this court why, if the POS lists the correctaddress, he did not receive notice of the demurrer, and the multiplesubsequent notices of continuance pertaining to the demurrer.18 13-645490Brown v. Carmax AutoSuperstoresRulingDemurrer to Complaint: SUSTAINED, with 15 days leave to amend.Plaintiff shall file a First Amended Complaint, within 15 days of thisorder, which includes the documentary proof referenced in theOpposition.ReasonPursuant to Civil Code §1794, the Song-Beverly Act allows for recovery,based on the breach of a service contract; however, as Plaintiffconcedes the Complaint fails to allege or demonstrate that Defendantswere obligated under the service contract, the Demurrer is sustainedwith leave to amend.19 12-556409Benowitz v. HighwindsCapital, IncRulingThe motion brought by Plaintiff Ari Benowitz to consolidate this action(Case No. 30-2012- 00556409) with the related action entitled

Bandwidth Consulting, Inc. v. Benowitz et al (Case No. 2013-00628459) is GRANTED.ReasonAs this case has the lower number, this case (Case No. 2012-00556409) is designated as the lead case. Moving party shall file acopy of the Order to Consolidate in both actions. Thereafter, alldocuments are to be filed with the caption and case number of the leadcase, followed by the case number of the consolidated case, per C.R.C.3.350(d).20 12-598774First National Bank ofOmaha v. BarretteRulingMotion to Compel Deposition is GRANTED. Defendant Jason Barrette isordered to appear for Deposition at the office of the Dunning Law Firm,on a date to be determined at the hearing. Defendant is further orderedto produce documents responsive to the Amended Notice of Deposition.Defendant Jason Barrette is ordered to pay sanctions to Plaintiff in theamount of $685.00, pursuant to C.C.P. §2025.450(c).Reason"Good cause” for production of documents may be established where itis shown that the request is made in good faith and that the documentssought are relevant to the subject matter and material to the issues inthe litigation. Associated Brewers Distributing Co. v. Superior Court(1967) 65 Cal.2d 583, 588. In this instance, Exhibits “B” and “D” of theDeclaration of Mr. MacLeod demonstrate that Defendant wasadequately served the subject Notice of Deposition and AmendedNotice of Deposition, scheduling the Deposition for May 10, 2013.Additionally, the Declaration of Mr. MacLeod demonstrates that DefenseCounsel, on May 9, 2013, indicated to Plaintiff that Defendant wouldnot appear, due to his intention to exercise his 5 th Amendment rightsagainst self-incrimination. (5 of MacLeod Dec.). Similarly, theDeclaration indicates that Plaintiff’s Counsel communicated withDefense Counsel, regarding this failure, as required by C.C.P.§2045.450(b)(2). Lastly, while Plaintiff’s Motion does not set forthspecific facts showing good cause, justifying the production ofdocuments, a review of the requests (included in the Notice ofDeposition), reveals that each request is clearly relevant and materialto the issues in this litigation. For example, each request seeksinformation concerning the relevant account (on which the debt isowed) and communications between the parties. (Exhibit “A” and “D”).As this information is included within the attachments to the Motion,C.C.P. §2025.450(b)(1) is met.

TENTATIVERULINGS ON LAW & MOTION MATTERSDepartment C-6Judge Luis A. RodriguezLaw and Motion heard at 1:30OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduledThursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 (657-622-5206) for the ruling. Motions generally will not be continued after the tentative has been posted.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILINGPARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTIONIS DISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance willbe necessary and the tentative will become the final ruling. If no one appears at the hearing and thecourt has not been notified all parties submit on the tentative ruling, the tentative ruling will become thefinal ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely restate theirpoints and authorities.July 25, 2013# Case Name Tentative1 11-447172Grace v. HendricksRulingThe court DENIES Defendant Mary Ann Maiullari’s motion to compelPlaintiff Patricia J. Grace to further respond to specialinterrogatories. However, the court reminds attorney that heropposition brief exceeded the maximum length permitted by Cal. Rulesof Court, rule 3.1113, subd. (d), without leave of the court. While thecourt exercises its discretion to consider the opposition brief on itsmerit, all parties are strongly admonished to strictly comply withRule 3.1113 in the future. As to the merits of the motion it has none.Instead it appears again that Maiullari is attempting to avoid theconsequences of having failed to previously move to compel furtherresponses to her form interrogatories. The court awards monetarysanctions against Maiullari in the sum of $102.85, to be paid within 15days after service of notice of this order.Grace is to serve notice of this order.3 12-566800T.D. Service Company v.Kaczmarek6 12-600963Le v. WatkinsTo promote Judicial economy the court on its own motion continuesWells Fargo’s demurrer/motion to strike to 08/08/13, so as to be heardat the same time as Citimortgage’s motions.RulingDemurrer to the Cross-Complaint is SUSTAINED in its entirety with 20days leave to amend.ReasonThe untimely opposition by Cross-Complainant Ashton Watkins was notconsidered by the Court. Although it is clear Watkins represented Phamand Newland in underlying actions relating to the Les and Hoang, it isunclear how those individuals can now be liable to Watkins for feesincurred in connection with those underlying lawsuits based on thecauses of action pled. Specifically, Cross-Complainant pleads thatNewland’s assets and debts were assumed by “plaintiffs”, but fails to

define “plaintiffs” and fails to plead why, the individuals would becharged with the debts of the corporation.7 12-601089Ryan v. JP Morgan ChaseBank N.A.8 13-643372Kattan v. MartinDefendant JP Morgan Chase Bank’s Demurrer to both of the causes ofaction in Plaintiffs’ First Amended Complaint is SUSTAINED withoutleave to Amend.ReasonPlaintiff failed to file an opposition to the demurrer and the argumentsmade by Defendant are generally well-taken, as defendant had no dutyto grant a loan modification, Plaintiff has not alleged tender, Plaintiffhas not identified any actionable promise not performed, reasonablereliance, or resulting injury, and Plaintiff has acknowledged in her FACthat she failed to perform under the loan contract. Further, as theplaintiff failed to file any Opposition. The failure to oppose a demurrermay be construed as having abandoned the claims. (See Herzberg v.County of Plumas (2005) 133 Cal.App.4th 1, 20. Finally, the FAC failsto show how under any possible legal theory plaintiff could amend tostate a valid cause of action.Rulings(1) Demurrer to Complaint filed by Defendant Martin: SUSTAINED, inits entirety, with 15 days leave to amend.ReasonPursuant to Lippert v. Bailey (1966) 241 Cal.App.2d 376, Plaintiff’sclaims are barred against Defendant Martin, as the Complaint concedesthat Martin acted at all times within the scope of his agency. Id. at 382;(3 and 12 of Complaint). Leave to amend is granted, however, toprovide Plaintiffs an opportunity to clarify if any conduct occurredoutside this agency.Similarly, pursuant to Fitzpatrick v. Hayes (1997) 57 Cal.App.4 th 916,the claim for Negligence fails, as all of the alleged breaches imply anobligation to volunteer and/or recommend additional coverage. Id. at927; 22-27 of Complaint.Finally, the claim for Fraud fails for lack of specificity. Tarmann v. StateFarm Mut. Auto Ins. Co. (1991) 2 Cal.App.4 th 153, 157; (72 ofComplaint).(2) Motion to Strike filed by Defendant Martin: GRANTED, with 15 daysleave to amend, as Plaintiffs failed to provide a statute, which allowsfor recovery of attorney’s fees in this context.(3) Demurrer to Complaint filed by Defendant State Farm: SUSTAINED,in its entirety, with 15 days leave to amend.ReasonAgain pursuant to Fitzpatrick v. Hayes (1997) 57 Cal.App.4 th 916, theclaim for Negligence fails, as all of the alleged breaches imply anobligation to volunteer and/or recommend additional coverage. Id. at927; 22-27 of Complaint. Also the claim for Estoppel fails as Plaintiffsdo not allege Mr. Martin misrepresented the terms of their coverage.Harford Fire Ins. Co. v.Spartan Realty International, Inc. (1987) 196Cal.App.3d 1320. As to plaintiff’s claim for Reformation it fails as nofacts are pled that plaintiffs requested insurance to cover a rentalproperty, or that Mr. Martin intended to provide insurance with thiscoverage.Regarding the claim for Breach of Contract the Complaint admits thatplaintiff’s Insurance Policy did not provide coverage for the specific losssuffered (57 (j) of Complaint). Thus despite plaintiff pleading thatDefendant breached the terms of the agreement by failing toinvestigate Mr. Martin's negligence and/or the application of estoppel,there is no support or authority that this conduct was contractually

equired. Similarly, as no coverage was due, the claim for Breach of theImplied Covenant fails. Waller v. Truck Ins. Exchange, Inc. (1995) 11Cal.4 th 1, 36.Finally, the claim for Fraud fails for lack of specificity. Tarmann v. StateFarm Mut. Auto Ins. Co. (1991) 2 Cal.App.4 th 153, 157; (72 ofComplaint).15 11-522620David v. Prime BuildersRulingMotion for Leave to Amend is GRANTED. Plaintiff to separately file theFirst Amended Complaint and serve on all parties affected thereby.MP to give notice.ReasonMotions for leave to amend the pleadings are directed to the sounddiscretion of the judge. “The court may, in furtherance of justice, andon any terms as may be proper, allow a party to amend any pleading... [CCP § 473(a)(1) (emphasis added); and see CCP § 576]. Here, thedelay in obtaining the information was adequately explained in both themoving papers and the reply. For example, although the deposition ofthe PMK was noticed in March, the deposition was not taken until May24, 2013. Regarding prejudice it would be to the newly addeddefendants. However, this may be mitigated by continuing the trialdate.16 11-499638Chae v. NguyenRulingThe Motion for Leave to Augment Expert Witness List to Add RobertTrout is DENIEDReasonWhat jumps out at the court with Nguyen’s motion is that the discoverydeadline had long passed before he attempted to augment his expertdesignation on 6/26/13, and before he filed the instant motion on7/12/13. Why is this significant because under C.C.P. §2034.620(3)(c), to grant the Motion the court must determine eitherthat: (a) Nguyen would not in the exercise of reasonable diligencehave timely decided to call Mr. Trout, or (b) Nguyen’s failure to timelydecide to call Mr. Trout was the result of mistake, inadvertence,surprise, or excusable neglect, and Nguyen promptly made the motionand served a copy of the proposed expert witness informationconcerning the expert or the testimony after discovering same. In otherwords as required by statute Nguyen must proffer exceptionalcircumstances. CCP §2034.620 Here the court finds that Nguyen hasnot made any attempt to argue that in the exercise of reasonablediligence he would not have timely decided to call Mr. Trout. Instead,he claims that his failure to timely designate Mr. Trout was the result ofcounsel’s mistake in assuming that cut-off dates had been continuedalong with the trial, and not realizing until late May that his testimonywould be necessary. (Zotti Reply Decl., 2-6.) However, as to thetwo prior continuances neither extended the discoverydeadline. Thus, Neither claim presents a compelling basis for reliefunder the exceptions set forth in CCP §2034.620. Nor does Nguyenoffer any authority to suggest otherwise.

TENTATIVERULINGS ON LAW & MOTION MATTERSDepartment C-6Judge Luis A. RodriguezLaw and Motion heard at 1:30OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduledThursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 (657-622-5206) for the ruling. Motions generally will not be continued after the tentative has been posted.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILINGPARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTIONIS DISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance willbe necessary and the tentative will become the final ruling. If no one appears at the hearing and thecourt has not been notified all parties submit on the tentative ruling, the tentative ruling will become thefinal ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely restate theirpoints and authorities.August 1, 2013# Case Name Tentative1 11-47838316 th Street Investors, LLCv. HPV Technologies, Inc.C/W 11-488159RulingThe Motion to Lift the Stay of Litigation is DENIED.ReasonAnd 11-488138(1) need for past rentOn the issue of past due rent, the court points out that Mr. Stenson,within the frequently referenced letter provided as Exhibit “11” to theSybert Declaration, concedes this issue has been resolved. Specifically,Mr. Stenson states:“Although it has since been resolved with Messrs. Hamilton andSimidian and their counsel Joey Moore, Mr. Moore hadpreviously attempted to utilize the Stay to enable HPV to enjoythe benefits of the judicial reformation of the HPV Lease forBuilding C...”[Page 6 of Exhibit “11” of the Sybert Dec.]Additionally, Mr. Stenson admits “after strenuous negotiations….didHPV begin paying all of the rent that is due pursuant to the BuildingC lease.” [Id.] In light of this testimony there is no immediate needfor a determination, within the action for reformation.(2) The need to Resolve this action to facilitate dissolutionOn March 7, 2013 the parties filed a Joint Statement, wherein allparties agreed the stay should remain in effect until 30 days after thesale of Building C. Thus, although similar problems in dissolution wouldhave existed in March, the parties agreed these issues were insufficientto justify removing the stay. Why should the court revisit this prioragreement and 16 th Street offers no pressing need to doso. Additionally, Mr. Stenson again admits that “[m]any of [his]obligations related to the dissolution of the Company pursuant to theDissolution Decree cannot commence until the sale of Building C has

closed.” (Page 3 of Exhibit “11” of Sybert Dec.). Thus, necessarily, thedissolution cannot be finalized until after the sale. Also it is apparentthatdissolution will not preclude 16 th Street or HPV from continuing tolitigate their claims. Corporations Code §17354. Thus, there is no needto complete litigation pre-dissolution.(3) The financial insecurity of HPVFinally, lifting the stay is necessary because further delay willjeopardize 16 th Street’s ability to collect a judgment against HPV. Insupport of their position, moving parties rely on a Notice of Trustee’sSale, recorded against property owned by HPV Technologies. (Exhibit“12” of Sybert Dec.). In response, however, Counsel for HPV declares:“No Trustee’s Sale with regard to HPV’s Irvine business locationhas occurred on or since June 6, 2013. In fact, the bank is soconcerned that it wrongfully recorded a Notice of Trustee’s Salethat it offered to rescind the notice in consideration of HPVagreeing to release the Bank from liability from having recordedit. The Notice of Trustee Sale was mistakenly recorded after thenegotiation of a forbearance agreement. HPV has not agreed torelease the Bank for the wrongful recordation of the Notice ofTrustee’s Sale.”(14 of Moore Dec.).The court is not persuaded that 16 th Street has proffered clearevidence of immediate financial distress of HPV compelling thiscourt to lift the stay.2 11-497684Pacific Mobil HomePark v City ofHuntington BeachRulingThe court GRANTS the unopposed motion by Barry A. Ross of Barry A.Ross, A Professional Corporation to be relieved as counsel of record forCross-Defendant Corrina Loccisano. Mr. Ross is ordered to submit forthe court’s signature an amended proposed Order Granting Attorney’sMotion To Be Relieved As Counsel – Civil correcting Item 6 to: (1)include Loccisano’s telephone number; and (2) reflect Loccisano’s one,current address.The order relieving counsel will be effective upon filing by Mr. Ross of aproof of service of the signed Order Granting Attorney’s Motion To BeRelieved As Counsel – Civil on Loccisano and all other parties who haveappeared in this matter.3 11-527824Kim v. BaltayanRulingThe Court is inclined to GRANT Defendants’ Motion to Compel Plaintiffto Submit to an Agreed Neuropsychological Examination andDefendants’ Motion to Compel Plaintiff’s Deposition, as it appears to theCourt that both the deposition of and mental examination of Plaintiffnow can and should proceed, subject to reasonable accommodations.However, there are still issues to be addressed as to the intendedexamination and deposition. The hearing date for these Motions istherefore continued to 8/22/13. In the interim, counsel are orderedmeet and confer as to: (1) the dates and times, place, manner,conditions, scope, and nature of the examination to be performed byDr. Ponton, including any reasonable mitigation measures that may beappropriate; and (2) the dates for the deposition of Plaintiff, including

5 12-586889Seidel Enterprises v.Universal MoldingCompanyany reasonable mitigation measures that may be appropriate. It isfurther ordered that both sides are to file and serve, by 8/15/13, theirrespective proposed Orders (which must fully comply with Code Civ.Proc. § 2032.310(b), including the permissible diagnostic tests andprocedures to be performed), along with a brief statement as to theareas of and reasons for any remaining disagreements.In the alternative, if the parties reach agreement, they may submit ajoint proposed Order by 8/15/13. If the Court has then approved andentered such Order by 8/21/13, no further appearance on the instantMotions would be necessary.As to sanctions they are DENIED.RulingThe Motion filed by attorney Beard Hobbs, to be relieved as counsel ofrecord for Plaintiff Seidel Enterprises dba Steven Seidel Electric, shallbe GRANTED, subject to prompt submission of a corrected proposedOrder reflecting both the currently pending 9/5/13 discovery motionhearing date and the current trial date.6 12-590861Emery v. Kamei FamilyPartnershipRulingsDemurrer to entire FAC as to Robert Emery is sustained WITHOUTLEAVE TO AMEND. The Demurrer as to the 2 nd ,3 rd , 4 th 5 th , and 6 thcauses of action are SUSTAINED WITHOUT LEAVE TO AMEND.ReasonOn 4/8/2013 Court sustained Defendant’s demurrer to the 2 nd -6 th c/awith leave to amend. Reviewing plaintiff’s amended complaint it isobvious that plaintiff simply alleges multiple duplicative causes ofaction which on their face fail to state facts sufficient to make supportthe claims alleged by plaintiff.CCP§430.10(e),(f). What plaintiff did isadd her father and additional defendants but has not corrected thedefects contained in the prior complaint.Furthermore, plaintiff filed no Opposition.(1) As to Plaintiff Robert EmeryPlaintiff alleges that Mr. Emery moved into the apartment in November12, 2012, yet also pleads that the family had already moved out inOctober 2012. FAC7. Then alleges that that Robert Emery moved outof the unit presumably sometime in March 2012. FAC27. This is notcomprehensible and not subject to amendment without violating therule against sham pleadings.(2) The 2 nd , 3 rd and 4 th Causes of Action are duplicative of the 7 thCause of Action for NegligenceFirst, there is no such cause of action for “specific performance ofNegligent Maintenance of Premises”. This is simply a different way ofalleging negligence which is pled in the 7 th cause of action. Further ,the court agrees with defendant’s that this manner of pleading is whatis commonly referred to as improper “chain letter” pleading since eachcause of action incorporates by reference all of the precedingparagraphs rendering it impossible for defendant to evaluate plaintiff’sclaim. Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222Cal.App.3d 1371, 1401.Similarly, Plaintiff’s 3 rd and 4 th cause of action for nuisance again simplyrestate negligence as they rely on the same facts and seek the samerecovery. They are duplicative of each other and not proper. El EscorialOwner’s Ass’n v. DLC Plastering, Inc. (2007) 154 Cal.App.1337.(3) Plaintiff’s 5 th cause of action for IIED fails as a matter of law.The court agrees with defendant’s that the facts of this lawsuit involve

conduct that may be negligent, but not outrageous. Plaintiff offers nospecific facts other than complaining that after remediating andrenovating the bathrooms that defendant did not make the repairs toplaintiff’s specifications. As a matter of law this is an allegation ofnegligence not despicable, outrageous or malicious. “A generalcontractor is not liable to a homeowner for IIED due to the failure tofinish roof repairs before rain entered the home”. Fuentes v. Perez(1977) 66 Cal.App.3d 163(4) 6 th cause for Breach of Implied Covenant of Good Faith and FairDealingThe 6 th cause of action for Breach of Implied Covenant of Good Faithand Fair Dealing fails to plead any facts to support bad faith. Further,this claim improperly allows plaintiff to avoid the mandate to eitherelect a tort or a contract but not both when the same underlying factscan support each remedy. It is clear that in the 7 th cause of actionplaintiff has chosen negligence.The Motions to Strike and DiscoveryRulingsMotion to Strike language in the First Amended Complaint pertaining topunitive or exemplary damages is GRANTED WITHOUT LEAVE TOAMEND.The Discovery MotionsDefendant Kamei Family Partnership’s Motion to Compel Answers toForm Interrogatories, Special Interrogatories and Request forProduction of Documents (Sets 1) is granted pursuant toCCP§§2030.290, et seq and 2031.300. Plaintiff to provide verifiedanswers, without objections, within 20 days of the hearing on thismotion. Sanctions in the amount of $630 to be paid within 30 days byplaintiff to defendant’s.Further , the court orders that unless proper responses to plaintiff’sRFAs are received by defendant before the hearing on 8-1-2013,Defendant Kamei Family Partnership’s motion to deem its requests foradmission Plaintiff Kranessa Emery is GRANTED. See, C.C.P. §2033.280(b).Sanctions in the amount of $330 against Plaintiff Kranessa are to bepaid to Defendant’s within 30 days. C.C.P.§2033.280(c).7 12-594335Hill v. ExperianInformation Solutions, IncRulingDefendant Experian Information Solutions’ Motion to Bifurcate Trial isGRANTED.ReasonAs punitive damages are claimed by plaintiff bifurcation is mandatoryas to any evidence of defendant's profits or financial condition. (Civ.Code §3295(d).) Under these circumstances, in the courts viewbifurcating the trial into liability and damages phases promotes judicialeconomy since bifurcation as to defendant’s financial condition iscompelled in any event. Moreover, if liability is not found, valuableresources addressing plaintiffs damages are avoided as well as thedanger of prejudice to defendant if liability and damages are notbifurcated, as a jury could otherwise be swayed by sympathy, which isnot in the interests of justice. As to plaintiff’s medical conditionsprejudiced by bifurcation the court points out that since he hasasserted a claim for punitive damages, the case will have to bebifurcated as to any amount of punitive damages anyway. Therefore, ifhe prevails on all of his claims at the liability phase, the bifurcation of

all damages claims should not present any additional burden onPlaintiff.8 13-622832Craft v. City of OrangeRulingThe Motion to Augment Motion to Augment Administrative Recordpursuant to CCP§1094.5(e) is DENIEDReasonPetitioner has filed his writ of mandamus requesting relief under CCP§1094.5 and Under § CCP 1085. The present motion is only directed toCCP § 1094.5 et seq.“Where the court finds that there is relevant evidence that, in theexercise of reasonable diligence, could not have been produced or thatwas improperly excluded at the hearing before respondent, it mayenter judgment as provided in subdivision…” . (CCP§1094.5(e)Here, Petitioner requests an order augmenting the administrativerecord to include:(a) November 2, 2012 letter from Mark Burstein(b) November 7, 2012 letter from Howard A. Liberman(c) November 19, 2012 letter from Wayne Winthers(d) January 13, 2013 letter from Mark BursteinWhile it is undisputed that the documents were not submitted as partof the parties case but are products created after the decision wasannounced are they relevant evidence within the meaning of subsection(e) the answer is no. The fact that a panel member changed his mindand was thereafter precluded from re-opening may support elementsfor CCP 1085 but it is not relevant evidence to be added to theadministrative record of the hearing. It defies logic and legislativeintent to sanction that after the hearing was concluded and a decisionwas announced that the re-consideration of a panel member and thememorialization of same has any relationship whether a panel memberor this court received sufficient evidence from the parties in the hearingenabling either to decide whether the Chief of Police did or did not havegood cause to deny the CCW.9 13-632116Curran v. Cardiac OutputTechnologiesInc.11 13-643698Gonzalez v. Block Tops,Inc.RulingAssuming Plaintiff can offer to the court a proof of service the Motionfor Leave to File FAC is GRANTED. Otherwise it is continued to 8-29 forservice to be made on all defendants. Such service to be made no laterthan 8-2RulingDefendants Demurrer to the Complaint is OVERRULED, as to all causesof action.Plaintiff’s Request for Judicial Notice is GRANTED.Defendant shall file an Answer to the Complaint, within 15 days.ReasonThe gist of Defendants demurrer is that in the First through FourthCauses of Action Plaintiff has not alleged any facts demonstrating hisemployment was terminated because of his alleged disability, age, orrequest to take medical leave; rather, Plaintiff merely allegesconclusions. The court finds that plaintiff has pled as explained belowsufficient factual allegations to survive demurrer.First, as to the claims for disability discrimination and retaliation,Plaintiff alleges he was terminated by Defendant on the day hereturned from medical leave. (12 of Complaint). Additionally, Plaintiffalleges, on that same day, his Supervisor threw his doctor’s note away,stating “this is a piece of shit.” (12 of Complaint).

Based on the above, Plaintiff alleges direct animus, with respect to thestatement of his Supervisor. Additionally, pursuant to Nazir v. UnitedAirlines, Inc. (2009) 178 Cal.App.4 th 243, “[p]retext may…be inferredfrom the timing of the company’s termination decision…” Id. at 271.Thus, there are factual allegations which demonstrate discriminatorymotive and a “causal link” with Plaintiff’s termination. Specifically, thefactual allegations support a finding that Defendant had discriminatoryanimus, based on Plaintiff’s medical condition and/or the fact he tookmedical leave.Second, with respect to the claim for age discrimination, the Complaintalleges that: (1) Plaintiff faced derogatory comments regarding his age;(2) Defendant engaged in differential treatment of younger employees;(3) Defendant replaced Plaintiff with a younger employee; and (4)Defendant chose to retain younger less experienced workers. (43 ofComplaint). These are sufficient facts to demonstrate a causalconnection, between his termination and the alleged discrimination.Begnal v. Canfield & Associates (2000) 78 CA4th 66, 74.Third, as to plaintiffs claim of wrongful termination plaintiff allegessufficient facts to support this claim, within 50-56 of theComplaint. Additionally, as employment discrimination based on age,disability or medical condition is illegal, this claim is adequately stated.Government Code §12900. Further, these factual allegations aresufficient circumstances to suggest the requisite discriminatory motive.Finally, Pursuant to Khoury v. Maly’s of California, Inc. (1993) 14Cal.App.4 th 612, “[a] demurrer for uncertainty is strictly construed,even where a complaint is in some respects uncertain, becauseambiguities can be clarified under modern discovery procedures.” Id. at616. While it appears that the Complaint includes some apparentlymisplaced references, they do not render the claims undulyvague. Further, for purposes of demurrer plaintiff has identified adisability his cataracts:Government Code §12926.1(b) states “[t]he law of this state containsbroad definitions of physical disability, mental disability, and medicalcondition. It is the intent of the Legislature that the definitions…beconstrued so that applicants and employees are protected fromdiscrimination due to an actual or perceived physical or mentalimpairment that is disabling, potentially disabling, or perceived asdisabling or potentially disabling.”RulingDefendant’s Motion to Strike is GRANTED without leave as to Plaintiff’srequest for penalties under Labor Code § 558. It is DENIED as topunitive damages and the other basis asserted by Defendant’s.ReasonRemedies under Labor Code §558Labor Code §558 seeks a “civil penalty” and, thus, the one-year statuteof limitations articulated in C.C.P. §340 applies. Here, it is undisputedthat Plaintiff’s request for penalties under this statute was assertedmore than a year after Plaintiff’s termination. Thurman v. BayshoreTransit Management, Inc. (2012) 203 Cal.App.4 th 1112.Plaintiff’s request for punitive damagesIn Cloud v. Casey (1999) 76 Cal.App.4 th 895, a finding that aDefendant intentionally discriminated against a Plaintiff, denying themtheir protected rights under FEHA, is sufficient to support a finding ofmalice and/or oppression, as such conduct could be determined to be

“base, contemptible or vile.” Id. at 912. Here, plaintiff alleges sufficientfacts to state claims for wrongful termination and discrimination,Plaintiff thus alleges sufficient facts to demonstrate “malice” or“oppression.”

TENTATIVERULINGS ON LAW & MOTION MATTERSDepartment C-6Judge Luis A. RodriguezLaw and Motion heard at 1:30OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduledThursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 (657-622-5206)for the ruling. Motions generally will not be continued after the tentative has been posted.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTYSHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION ISDISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will benecessary and the tentative will become the final ruling. If no one appears at the hearing and the court has notbeen notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely restate their pointsand authorities.August 8, 2013# Case Name Tentative4 12-555721McLauglin v. McLaughlinRulingAlthough the trial herein has been continued once by stipulation, there beingno opposition and no apparent prejudice the court finds good cause andGRANTS the motion the trial is continued to April 7 th 2014 and all discoveryand motion deadlines are based on the new trial date. If counsel desire amutually convenient date subsequent to this date they may submit bystipulation a request at the time of this hearing identifying that date inwhich case this ruling will be modified to set that date as the new trial date.Defendant to give Notice.5 12-556409Benowitz v HighwindsCapital, Inc.RulingThe motion brought by Plaintiff/Cross-Defendant Ari Benowitz to compelcompliance with the 12/4/12 ruling is CONTINUED to 8-29-13 at 1:30 asthere are additional areas that should be the subject of further meet andconfer efforts. Specifically, Defendants must disclose the search termsused, and counsel must then meet and confer as to any reasonable followupsearches (i.e. what additional terms are to be searched in the vendordatabase; what additional custodians’ files should be searched, for what,and why) that may be necessary to complete the process ordered by thisCourt last December. If, after such meet and confer efforts are complete,there are remaining issues, the parties shall present a joint statementidentifying their respective positions as to the particular RFP’s at issue andthe issues that remain at least 6 court days before the continued hearingdate.The Court does not find that its Order was violated by Defendants’ use ofsearch terms or its targeting of custodians, as that was clearly contemplatedin the “meet and confer” process that was a basis for the prior Order. Nordoes the Court find that production “by custodian” is inconsistent with eitherC.C.P. § 2031.280(a) or the Court’s Order, as it did not require thatDefendants’ production be made “by request.”In addition, if these additional meet and confer efforts do not resolve thedisputes between the parties, but instead generate a multitude of new

disputes which may make resolution inordinately time consuming, the Courtwill consider appointment of a discovery referee to address thoseissues. Accordingly, the parties are also ordered to meet and confer as to apotential stipulation for appointment of a discovery referee, and to includetheir respective positions relating thereto in the joint statement to besubmitted before the continued hearing date.The respective requests for sanctions are, at this time, DENIED. The Courtwill reserve further consideration of the requests for sanctions for the timeof the continued hearing.The Evidentiary Objections to the Declaration of Mr. Fisher areOVERRULED.6 12-566800T.D. Service Company v.KaczmarekWELLS FARGO’S DEMURRERRulingThe court SUSTAINS Cross-Defendant Wells Fargo, N.A.’s demurrer toDefendant/Cross-Complainant John Kaczmarek’s Second Amended Cross-Complaint, with final leave to amend for the limited purpose of curing thedefects discussed herein.Kaczmarek is to file and serve any such amendedcross-complaint within 30 days after service of notice of this order. WellsFargo is to serve notice of this order.Request for Judicial Notice. The court grants Wells Fargo’s request forjudicial notice of the existence and recordation of its Exhibits 1-7 and 9, aswell as the clear legal effects thereof, pursuant to Evid. Code, § 452, subds.(c) and (h). (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th256, 264-265.) The court grants Wells Fargo’s request for judicial notice asto the existence and clear legal effects of its Exhibits 8 and 10-11, pursuantto Evid. Code, §§ 452, subd. (d).Reason1. Fourth Cause of Action for Breach of Contract – Promissory EstoppelThis cause of action is confusing in that it blends a contract issue with thetheory of promissory estoppel which is distinct. The court will addresseach. First, Kaczmarek again fails to address any breach of contract theoryin his opposition papers. Accordingly, Kaczmarek appears to waive any suchtheory of liability. (See Herzberg v. County of Plumas (2005) 133Cal.App.4th 1, 20 [failure to oppose issue raised in demurrer deemedabandonment of the issue].) Second, As to promissory estoppel, the SACCadequately pleads all of the essential elements of promissory estoppel otherthan detriment suffered in reliance on the alleged promise. Kaczmarekalleges that Wells Fargo, “through a clear and unambiguous promise[,] toldKaczmarek it would process the Wells Note modification under HAMP andthat Wells would not foreclose during the modification reviewprocess.” (SACC, 61.) Kaczmarek relied upon that promise by submittingdocuments requested and required by Wells, and by delaying other actionsto save his property from foreclosure. (SACC, 65, 67.) Because WellsFargo foreclosed before completing the HAMP modification review,Kaczmarek was damaged measured by the loss of his equity in the property,expenses associated with the foreclosure, and a loss of credit rating and adiminished ability to purchase a home in the future. (SACC, 64,67.) Missing, however, is any allegation of actual detrimental reliance, i.e.that Kaczmarek could have taken any other action to save his property fromforeclosure. For example, there is no allegation that he would have beenable to refinance one or both loans, or bring current his past due balance, orsell the property. In his opposition, Kaczmarek asserts that he could havefiled for Chapter 13 bankruptcy, which might support such a claim. (SeeAceves v. U.S. Bank, N.A. (2011) 192 Cal.App.4th 218, 227,228.) However, the SACC is devoid of any such allegation.

2. Fifth Cause of Action.Wells Fargo correctly argues that Kaczmarek did not have leave of the courtto add this cause of action to the SACC. The court notes that the new fraudclaim is not responsive to the defects sustained by the court in the priordemurrer. Notwithstanding plaintiffs failure to get court approval on its facethe sufficiency of the allegations are subject to demurrer because it allegesnothing more than a failure to perform on an oral promise barred by thestatute of frauds. Moreover, Kaczmarek fails to address this issue in hisopposition, effectively conceding its merit. (See Herzberg v. County ofPlumas (2005) 133 Cal.App.4th 1, 20 [failure to oppose issue raised indemurrer deemed abandonment of the issue].)WELLS FARGO’S MOTION TO STRIKERulingThe court DENIES Wells Fargo’s motion to strike portions of Kaczmarek’sSACC on the grounds that the motion is moot in light of the order sustainingWells Fargo’s demurrer.Wells Fargo is to serve notice of this order.CITIMORTGAGE’S DEMURRERThe court OVERRULES Defendant/Cross-Defendant CitiMortgage, Inc.’sdemurrer to Defendant/Cross-Complainant 1 st and 2 nd Causes of Action. Asto the 3 rd Cause of Action it is SUSTAINED AND IT IS FURTHER ORDERDTHAT IT MAY NOT BE AMENDED UNTIL PLAINTIFF CROSS COMPLAINTANTFILES THE PROPER MOTION TO AMEND. Accordingly, Cross-Complainantmay either choose to proceed with the 1 st and 2 nd causes of action in hisamended - Cross-Complaint by reason of the Wells Fargo Demurrer in whichcase defendant is to answer within 30 days or Prior to filing its amendedCross-Complaint he must seek approval of court to include as new causes ofaction negligence and declaratory relief thereby allowing defendantCityMortgage opportunity to respond to the request to amend.Request for Judicial Notice.The court GRANTS CitiMortgage’s request for judicial notice of the existenceof its Exhibits A-E, their recordation, and the clear legal effects thereof,pursuant to Evid. Code, § 452, subds. (c) and (h). (Fontenot v. Wells FargoBank, N.A. (2011) 198 Cal.App.4th 256, 264-265.)ReasonBefore discussing the specific causes of action the issue of tender raised bydefendants must be dealt with. Kaczmarek’s claims are not based on anyalleged irregularity in the sale procedure and he does not seek to cancel thetrustee’s sale. He instead seeks damages in connection with alleged fraudleading up to the trustee’s sale, and a declaration of the parties’ respectiverights to the proceeds from the trustee’s sale. Therefore, the tender ruledoes not apply. (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th1101, 1109; Karlsen v. American Savings & Loan Association (1971) 15Cal.App.3d 112, 117.)First and Second Causes of Action.Kaczmarek alleges that CitiMortgage represented to him, both in writing andorally, that: the deed of trust held by CitiMortgage was a First Deed ofTrust; refinancing the note secured by that deed of trust would not changethe deed’s priority; that the new deed of trust would remain a purchasemoney first deed of trust; and that note held by CitiMortgage had to bemodified under HAMP as a first deed of trust. (SACC, 12, 21, 39.) Those

epresentations were allegedly false and known by CitiMortgage to befalse. (SAC, 40.) They were nevertheless made by CitiMortgage with theintent of inducing Kaczmarek to negotiate with CitiMortgage for amodification as though CitiMortgage held a first deed of trust instead ofWells Fargo, and Kaczmarek reasonably relied on the representations in sonegotiating. (SAC, 41-42.) The court notes that defendant correctlypoints out that Kaczmarek failed to allege the name of the CitiMortgagerepresentative and his/her authority to speak. However, at the pleadingstage a complaint need not do so where a defendant is in a better positionto know the facts concerning the alleged fraud. (Tarmann v. State FarmMutual Automobile Insurance Co. (1991) 2 Cal.App.4th 153, 158.) Suchappears to be the case here.As to damages, Kaczmarek now alleges that Wells Fargo’s foreclosure of thesubject property, and the resulting trustee’s sale, would have been avoidedhad Kaczmarek known that Wells Fargo actually held the first deed oftrust. (SACC, 43-46.) Kaczmarek seeks money damages for the loss ofhis equity in the property, expenses associated with the foreclosure, and aloss of his credit rating and a diminished ability to purchase a home in thefuture. (SACC, 47.) While it is far from clear whether Kaczmarek willultimately prevail on either of these claims, the claims appears to have beenadequately pled for the purpose of surviving demurrer.Third Cause of Action.As with the Fifth Cause of Action discussed above in connection with WellsFargo’s demurrer, Kaczmarek did not have leave of the court to add thisnew cause of action to the SACC. Cross-Complainant may not blithely ignorethis courts prior ruling irrespective of the merits of this new cause ofaction. Cross-Complainant if it wants to assert this negligence claim mustfirst obtain leave of court to include this claim for negligence when it files itsamended Cross-Complaint in response to the Well Fargo Demurrer.Declaratory ReliefAs with the Third Cause of Action for negligence, Kaczmarek did not haveleave of the court to add this new cause of action to the SACC.CITIMORTGAGE’S MOTION TO STRIKEThe court GRANTS without leave to amend CitiMortgage’s motion to strikethe following portions of Kaczmarek’s SACC: 48 and Prayer, 2-3. CitiMortgage’s motion to strike is otherwise denied.Kaczmarek is to serve notice of this order.ReasonKaczmarek does not oppose the motion to strike as to these items, orotherwise address these issues at all. Therefore, the court treats them asconceded by Kaczmarek for the purpose of this motion. (See Herzberg v.County of Plumas (2005) 133 Cal.App.4th 1, 20 [failure to oppose issueraised in demurrer deemed abandonment of the issue].) Such a concessionalso appears appropriate. Kaczmarek failed to adequately plead any basisfor an award of punitive damages against CitiMortgage as required by Civ.Code, § 3294, subd. (b). Kaczmarek also failed to allege any contractual orstatutory basis for an award of attorney’s fees. Further, leave to amend isdenied, and the court anticipates that Kaczmarek will not include allegationsseeking punitive damages or attorney’s fees against CitiMortgage in anyamended cross-complaint filed in response to the order on Wells Fargo’sdemurrer. This order is without prejudice to Kaczmarek’s right to seek suchleave to amend at a future date, should investigation and/or discoverydisclose a basis for seeking punitive damages and/or attorney’s fees against

CitiMortgage.8 12-606450Morales v. City of NewportBeachRulingDefendant Newport-Mesa Unified School District’s demurrer is sustainedwith 20 days leave to amend. RJN is denied and Court did not considerexhibits attached to Plaintiff’s opposition.ReasonPlaintiff’s 2 nd cause of action for Dangerous ConditionAs currently pled, plaintiff fails to state sufficient facts to surmountdefendant’s apparent immunity from liability pursuant to Ca GovtCode§830.8 and Ca Educ. Code§44808. For example, Plaintiff does notadequately plead the crosswalk was a concealed trap sufficient to avoid theimmunity provided in §830.8.In addition the cases to which plaintiff relies on require active knowledge orencouragement to use the property where the dangerous condition isalleged. Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th292, 301 [open gate at a public school can be a dangerous condition]; andBonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4 th 139,149 [bus stop constituted dangerous condition] to support her position thatthe school District can be liable for failing to exercise reasonable care (evenwhen she was not on school property). Here plaintiff offers no facts tosupport that the school actively encouraged the use of this particularcrosswalk. Indeed, the FAC alleges at 21 that there were “several othercrosswalks at other areas of the school campus that were of safer designwherein the students should have been directed”, meaning, this was not theonly crosswalk available. Further, plaintiff fails to show any factssuggesting that the design of the crosswalk acted to encourage the use ofthis more dangerous crosswalk as opposed to the adjoining ones. At thispoint plaintiff has pled conclusions or facts such as page 8 of the oppositionthat the “school never took efforts to move the anchor” which were notconsidered10 12-610579Ibrahim v. BustosRulingThe Motion to Consolidate is granted, pursuant to C.C.P. §1048(a) as thesubject cases involve common questions of law and fact.The court orders the following cases consolidated :1. Eva Mena v. Suhair Ibrahim, et al., Case No. 30-2012-00601313;and2. Ibrahim v. Bustos, Case No. 30-2012-00610579Additionally, Ibrahim v. Bustos, Case No. 30-2012-00610579, shall bedesignated the lead case, given that Ibrahim is seeking damages in excessof $25,000.Moving party to give notice. Additionally, moving party shall file the instantorder, within both of the above stated actions, in compliance with CRC3.350(c).11 12-617168Williams v. Orange CountyTransportation AuthorityRulingMotion to have Plaintiff Deemed a Vexatious Litigant is GRANTED. The courtdetermines that Plaintiff is a vexatious litigant as that term is defined in

Section 391 of the Code of Civil Procedure. Pursuant to Section 391.7 of theCode of Civil Procedure, the court enters a pre-filing order prohibitingPlaintiff from filing any new proceeding in any court of this state in propriapersona without first obtaining leave of the presiding judge.13 13-622847Maze v. StaglianoRulingPursuant to Cal. Rules of Court, rule 3.1324, subd. (c), the court deemsPlaintiff Monica Maze’s motion to file an amendment to her Complaint to bea motion to file an amended complaint and GRANTS the motion.Within 10 days after the date of this order, Plaintiff is to file an amendedcomplaint incorporating the following amendment: “The name of the plaintiff‘Monica Maze’ is amended and changed to ‘Monica Eva Maze, trustee of theMonica Eva Maze Trust created March 5, 2009’.”Plaintiff shall serve notice of this order.14 13-623947Health Essist Holdings, Inc.v. Neuckranz16 13-631391Prada v. City of Costa Mesa18 10-387291Malek v. Wells Fargo Bank,N.A.RulingMotion for Change of Venue is DENIED.ReasonFirst, Defendant resides in Arizona, Plaintiff Pursuant to C.C.P. §395(a) isfree to bring this action within any county in California. Second, while acourt may change the place of trial “[w]hen the convenience of witnessesand the ends of justice would be promoted by the change.” if the witnessesare parties requires a showing unusual circumstances to changevenue. C.C.P. §397(c); Stanning v. White (1958) 156 Cal.App.2d547. Here, while Defendant’s motion briefly references a disability, themotion makes clear that Defendant is “[a]voiding the financial debt of hotels[and] rental cars, each time a court appearance is scheduled.” (Motion:4:16-17). Further, Defendant provides no evidence, demonstrating thatwitnesses residing in Arizona will be required for trial or will beinconvenienced.RulingAt the time of this ruling neither party has submitted a brief in support of oropposing the Court’s sua sponte motion. Court’s Motion to Reclassify case tolimited is granted. Clerk to give notice.RulingDemurrer to Second Amended Complaint is SUSTAINED, without leave toamend, as to the First, Second, Third, Fifth and Sixth Causes of Action. Asto the Fourth Cause of Action it is SUSTAINED with 15 days leave to amend.Defendant's Request for Judicial Notice is GRANTED.Reasonthe First, Second and Third Causes of ActionSimply put there are no allegations to demonstrate the falsity of the allegedmisrepresentations or damages resulting therefrom; rather, the SACconcedes that: (1) Plaintiff's Application was reinstated to Loss Mitigation;(2) the foreclosure was postponed until June 8, 2010; and (3) Defendantcontacted Cal-Western to prevent foreclosure. (22-23 and 32 of SAC).Further, while Plaintiff alleges Defendant falsely represented that the salewould be rescinded. (34 of SAC), Plaintiff does not allege any reliance on

this statement or resulting damage; rather, Plaintiff's only allegations ofreliance, indicate that Plaintiff: (1) continued making modified loanpayments prior to the sale (29 of SAC); and (2) failed to take additionalsteps "to secure her Property." (41).As both of these acts of reliance necessarily refer to the time period prior tothe sale, they are insufficient to demonstrate reliance on statements madeafter foreclosure.The Fourth Cause of ActionHere, plaintiff fails to specify which portions of the contract where oral andwhich portions were written. Additionally, Plaintiff does not attach thewritten portion, to clarify this ambiguity. Based on the above, Plaintiff failedto plead her contract with specificity. Levy v. State Farm Mut. Auto. Ins. Co.(2007) 150 Cal.App.4 th 1, 6. Plaintiff is granted final leave to amend, toclarify this claim.The Fifth Cause of ActionPlaintiff’s Fifth Cause of Action asserts Defendant violated Civil Code §2924,by failing to appropriately post a Notice of Default and Notice of Sale. (71of SAC). Here, fatal to plaintiff’s claim are any facts pleading damages with“reasonable particularity,” as required by Khoury v. Maly's of California, Inc.(1993) 14 Cal. App. 4th 612. Moreover, given this failure, Plaintiff has notdemonstrated standing to sue under the UCL.Rather, as the SAC concedes that Plaintiff was, at all times, aware of thepotential foreclosure sale and in contact with Defendant, up to the sale,(13, 25 and 30-32 of the SAC) the SAC fails to demonstrate thatPlaintiff suffered injury "as a result of the unfair competition." Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176, 1184.The Sixth Cause of ActionA financial institution generally owes no duty to a borrower and, as Plaintifffailed to allege conduct that goes beyond the “conventional role as a merelender of money,” this claim fails as a matter of law. Nymark v. Heart Fed.Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096; Ragland v. U.S.Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 207.19 12-600963Le v. WatkinsRulingMotion to be Relieved as Counsel of Record is denied for the followingdefects: Documents were mailed and faxed despite Court order for documentsto be by personal service. The POS fails to list Dieu-Hoa Le and Tien Le as having been servedw/ the documents herein POS fails to list the proposed order as having been served (and theNotice of Ruling from 7/25/13) Counsel failed to submit a declaration on the required judicial councilform MC-052. CRC, Rule 3.1362(c).

TENTATIVERULINGS ON LAW & MOTION MATTERSDepartment C-6Judge Luis A. RodriguezLaw and Motion heard at 1:30OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduled Thursdayhearing. If your internet service is not available you may contact the clerk in Dept. 6 (657-622-5206) for theruling. Motions generally will not be continued after the tentative has been posted.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILING PARTYSHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVEOF A PARTY OR THE CASE.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will benecessary and the tentative will become the final ruling. If no one appears at the hearing and the court has notbeen notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely restate their pointsand authorities.August 15, 2013# Case Name Tentative1 09-305278Persiani v. JordanRulingMotion to Confirm Arbitration Award is GRANTED. The arbitrationaward shall be confirmed and judgment entered in accordancetherewith.ReasonAny party to an arbitration in which an award has been made maypetition the court to confirm, correct or vacate the award. C.C.P.§1285. Additionally, the Court shall confirm an award, unless it“corrects the award and confirms it as corrected, vacates theaward or dismisses the proceedings.” C.C.P. §1286. Further,C.C.P. §1286.2(a) provides that a Court shall vacate an award, ifthe Court determines any of the following, relevant, items:(3) The rights of the party were substantially prejudiced bymisconduct of a neutral arbitrator.(4) The arbitrators exceeded their powers and the awardcannot be corrected without affecting the merits of thedecision upon the controversy submitted; or(5) The rights of the party were substantially prejudiced bythe refusal of the arbitrators to postpone the hearing uponsufficient cause being shown therefor or by the refusal of thearbitrators to hear evidence material to the controversy or byother conduct of the arbitrators contrary to the provisions ofthis title.Absent proof of one of the grounds for vacating an arbitrationaward listed in C.C.P. §1286.2, “a court may not vacate an award,even if the arbitrator commits legal or factual errors which appearon the face of the award and which cause substantial injustice.”Roitz v. Coldwell Banker Residential Brokerage Co. (1998) 62Cal.App.4 th 716, 722.Moreover, "[t]he burden is on the party complaining to

affirmatively show error was committed by the arbitrators…and anaward will not be vacated for any error that does not prejudice hisrights.” Turner v. Cox (1961) 196 Cal.App.2d 596, 603. As isexplained below plaintiff has failed to offer any evidence that fitswithin these specific round holes. Instead all plaintiff has offeredis collateral issues which are not relevant to this specific statutoryprocedure to confirm or vacate.The Award is not Preempted by Family LawFirst, Plaintiff asserts the Arbitrator exceeded his power (pursuantto C.C.P. §1286.2(a)(4)), as the Arbitrator ruled on issues withinthe exclusive jurisdiction of the family law court. Plaintiff cites toAskew v. Askew (1994) 22 Cal.App.4 th 942, which affirms familylaw jurisdiction as a general matter. Here, while plaintiff assertsfamily law jurisdiction she offers no evidence which would voidthis award. For example, plaintiff fails to provide an order that herprior dissolution action is active or has been re-opened to addresscommunity issues. Nor does plaintiff show how this award waspremised on a finding of the community or separate character ofthe royalties of the disputed contract.This is evident from the following explanation of the Arbitrator:“The original claims filed by Ms. Persiani, that was orderedto arbitration by the superior court, alleged four causes ofaction: Breach of Contract, Fraud/False Promise,Fraud/Concealment, and Deceit.“Ms. Persiani was seeking her share of royalties based onher community property rights derived from her marriageto Paul Persiani, one of the principals in the disposableglove company.”(Attachment “8c” of Petition).Plainly, the Arbitrator started with the community propertycharacter already determined by the Family court. The factthat the Arbitrator found that “Claimant has no interest inpatent numbers : 7063233 and 6901723” suggest someproperty uncertainty plaintiff offers no argument or evidencepresented that the Arbitrator premised this patent conclusionon whether they were separate or communityproperty. Plaintiff has shown no evidence to show thisconnection. Rather, she offers unsupported speculation andunsupported argument. For example the court notes thefollowing to which it takes judicial notice for purposes of itsdecision to confirm:1. Plaintiff opted to file this action in civil court in 2009 (SeeComplaint); and2. Plaintiff entered into a Stipulation with Defendants, in2009, within the family law action, which states: “Upon theagreement between the parties that Respondent would beentitled to fifty percent (50%) of any royalties due andowing under the Royalty Agreement, if any, there are noremaining 'family law' issues left to be adjudicated by thefamily law court and the Family Law Action is hereby fullyresolved and adjudicated.” (Exhibit “1” of Reply).Even if the court were to give credence to plaintiff’scharacterization claim which it does not. The Arbitrators awardresolved the primary issue the moneys if any due to plaintiffunder the Royalty Agreement.

Based on all of the above, Plaintiff failed to meet her burden, ofdemonstrating an excess of jurisdiction.Bankruptcy stay is not a basis to vacate the Award.Plaintiff relies on 11 U.S.C. §362(a), which provides that abankruptcy filing automatically stays “the commencement orcontinuation…[of an] action or proceeding against the debtor…” tooppose confirmation by claiming that the Arbitrator exceeded hispower (pursuant to C.C.P. §1286.2(a)(4)), as the Arbitrator ruledon critical issues, during a bankruptcy stay. As is pointed outbelow he did not.It is undisputed that Defendant Paul Persiani filed for bankruptcyduring the arbitration. Additionally, it is undisputed that duringthe application of this stay, the Arbitrator made two orders: (1)continuing arbitration pending removal of the bankruptcy stay;and (2) granting relief to Plaintiff’s Counsel. The court agrees thatneither of these orders constitute the “continuation…[of an] actionor proceeding against the debtor.” Indeed, the first orderindisputably sought to continue arbitration, in order to complywith the bankruptcy stay. Further, the second order affected onlyplaintiff (an individual to which no stay applied). Moreover,pursuant to 11 U.S.C. §362(a), as the automatic stay operatesonly to stay proceedings against the bankruptcy debtor, theArbitrator could have proceeded with arbitration, with respect tothe remaining Defendants (although he opted not to for the sakeof efficiency). These orders contrary to plaintiff’s claim only affectthe (1)general timing of arbitration and (2) relieving Plaintiff’sCounsel. They are not substantive and not specific to the debtor.These orders were proper and not impacted by the bankruptcystay and even if they had impact plaintiff fails to show how eitherof these orders prejudiced her rights. Turner v. Cox (1961) 196Cal.App.2d 596, 603.Denial after 83 days to request to continue arbitration to findcounselLastly, plaintiff argues vacating the award because the Arbitratorengaged in misconduct and inappropriately denied her acontinuance (pursuant to C.C.P. §1286.2(a)(3) and (4)), when heprovided only 83 days for Plaintiff to obtain new Counsel. Thisargument has no merit. First, 83 days appears more thansufficient to secure counsel. Second, plaintiff’s Counsel could havesought a continuance of the arbitration, if additional time wasneeded to prepare for the hearing. There is no indication that anyattorney sought such a continuance. Third, there is no indicationthat plaintiff sought any continuance of arbitration, after the orderrelieving counsel. Absent a request for additional time, this Courtcannot find the Arbitrator acted inappropriately by failing to granta continuance. Indeed, there is no evidence that the Arbitratorfailed to grant a continuance “after sufficient cause being shown.”C.C.P. §1286.2(a)(5). Finally, and most damaging to plaintiff’sclaimed prejudice that she was deprived of an opportunity topresent evidence is contained in this part of the Arbitrator’s order:“Ms. Persiani was unable to proceed on her claims due to herfailure to pay her fees to underwrite the arbitration hearing.”(Attachment 8(c): 3:16-17).It is disingenuous at best to now argue that she wasn’t given

enough time when in fact she admitted that it was not the lack oftime that caused her lack of preparation but that she had nofunds for the hearing. The Arbitrator’s further denial to continueafter 83 days was proper.Improper Re-consideration of Grant of Arbitration.A non-signatory Plaintiff can be equitably estopped from avoidingarbitration. As the Court in JSM Tuscany, LLC v. Superior Court(2011) 193 Cal.App.4 th 1222 explained:“When a plaintiff brings a claim which relies on contractterms against a defendant, the plaintiff may be equitablyestopped from repudiating the arbitration clausecontained in that agreement. [citation removed] There isno reason why this doctrine should not be equallyapplicable to a non-signatory plaintiff. When thatplaintiff is suing on a contract – on the basis that, eventhough the plaintiff was not a party to the contract, theplaintiff is nonetheless entitled to recover for its breach,the plaintiff should be equitably estopped fromrepudiating the contract’s arbitration clause.”Here, plaintiff’s action sought to enforce an alleged breach of theRoyalty Agreement, despite the fact that Plaintiff was not asignatory of that agreement. Consequently, plaintiff may not nowseek to repudiate that clause because the Arbitrator found againsther. Nor may plaintiff now claim that the court should vacate theaward because she did not give consent ie again seeking to relitigatethe order to compel arbitration. It is untimely and animproper motion to reconsider.Based on all of the above, Plaintiff failed to demonstrate anyjustification for vacating the arbitration award and, as a result,the award is confirmed.3 10-428817Serrano v. Orellana4 11-501167Inhale v. Worldwide Smoke Inc.RulingThe court GRANTS Plaintiff Francisco Serrano’s unopposed motionto set aside the dismissal entered by the court on 12/18/12,pursuant to Code Civ. Proc., § 473, subd. (b). Such relief isappropriate and mandatory under Section 473(b).The 12/18/12 dismissal is hereby set aside. Plaintiff shall, within5 days, file an executed version of the Request for CourtJudgment attached as Exhibit 1 to Plaintiff’s motion.The court sets this matter for an OSC re Dismissal on November19 th at 9:30 A.M in Department C-6. No appearance shall benecessary if judgment has been entered prior to that date.Plaintiff shall serve notice of this order.RulingDefendant’s Motion to Compel Further Responses to Requests forProduction of Documents is GRANTED in its entirety.Sanctions against Plaintiff Inhale in the amount of $ 1000 arepayable to defendant’s counsel within 30 days of this order.Plaintiff inhale’s motion to compel production of documents isDENIED.Sanctions are DeniedReason

Motion to Compel Further Responses to Requests for Production ofDocumentsFor discovery purposes, information is relevant if it mightreasonably assist a party in evaluating the case, preparing fortrial, or facilitating settlement. Admissibility is not the test andinformation, unless privileged, is discoverable if it mightreasonably lead to admissible evidence. These rules are appliedliberally in favor of discovery. See Gonzalez v. Superior Court(1995) 33 Cal.App.4th 1539, 1546. Here, Plaintiff objected to therequests at issue based on relevancy grounds, but in eachinstance, the requests are clearly relevant to the case as they willassist Defendant Starbuzz in evaluating the case, preparing fortrial, or facilitating settlement. Responses to be provided withoutobjection within 20 days of this order.Motion to Compel Production of DocumentsPlaintiff Inhale’s is denied as untimely. Defendant objected to theproduction of its sales records in response to the 1 st Set ofRequest for Production of Documents by Plaintiff, Nos. 38-40, 42.Although Plaintiff filed a Motion to Compel Further Responses, thatmotion did not include 38-40, 42 and therefore, since this motionwas not brought w/in 45 days of the original objection, it iswaived to compel a further response of the identical request.CCP§2031.310(c).5 12-556310Mercury Casualty Company v. Chu8 12-599707Rodriguez v. Integrity Metal, Inc.As the Judgment which is the subject of this motion was notsigned by this court this motion is continued and transferred toJudge Claster who signed the subject Judgment for hearing onAugust 23 at 10:00 A.M in Department C-25RulingThe court DENIES Defendant Integrity Metal, Inc.’s motion tocompel Plaintiff Lino Rodriguez to appear for a medicalexamination.The instant motion was moot when filed. Defendant filed theinstant motion on 07/29/13. It is undisputed that Plaintiffappeared for the desired medical examination on 07/25/13, fourdays prior. (Madoni Dec., 10-11.) To the extent that thepurpose of bringing this motion was to obtain as monetarysanctions the cancellation costs charged by the examining experts(see McCarthy Dec., 17 and 18(c)-(d)), such fees cannot beawarded as monetary sanctions. (See Ghanooni v. Super Shuttle(1993) 20 Cal.App.4th 256, 262 [monetary sanctions forcompelling discovery participation may include only the costs ofbringing the motion, including attorneys' fees].)The court therefore finds that Defendant brought the motionwithout substantial justification. Monetary sanctions are thereforeawarded against Defendant in the amount of $900.00, pursuant toCode Civ. Proc., § 2032.250, subd. (b). Such sanctions are to bepaid to Plaintiff within 30 days after service of notice of this order.

Plaintiff is to serve notice of this order.9 12-600381Tachdijian v. John Hancock Life &Health Insurance CompanyRulingThe Court is inclined to GRANT the unopposed Motion filed byDefendants/Cross-Complainants John Hancock Life & Health Ins.Co. & John Hancock Life Ins. Co. U.S.A. (collectively “JohnHancock”), upon submission of a stipulation signed by counsel forJohn Hancock and counsel for Plaintiff reflecting the allegedagreement with Plaintiff as to moving parties’ claim for $5,000 inattorney’s fees and costs.The unopposed Request for Judicial Notice is GRANTED pursuantto Evid. Code §§ 452(d) and 453.10 12-608194Collins v. LumenisRulingMotion Requesting In Camera Review of Notes by DiscoveryReferee is DENIED.ReasonPlaintiff has failed to demonstrate that any harm will result,separate from the claimed attorney-client privilege, which thisCourt has already found does not apply.11 12-609422Kelly v. Daniel T. Stein, M.D. IncRulingDefendants’ Demurrer as to the 3rd, 5th, 6th and 7th causes ofaction in the SAC is OVERRULED.ReasonThe demurrers as to the claims for Conversion, Negligence, andIntentional Interference with Prospective Economic Advantage areoverruled for the same reasons already stated in the Minute Orderof 5/2/13.Defendants’ new limitations claim as to the Conversion cause ofaction is overruled because, when an obligation or liability ariseson a recurring basis, a cause of action accrues each time awrongful act occurs, triggering a new limitations period. (HogarDulce Hogar v. Community Development Com'n of City ofEscondido (2003) 110 Cal.App.4th 1288, 1295.) But as Plaintiffhas alleged multiple events of conversion into 2013, at least someof the alleged conduct occurred within the 3-year limitationsperiod, so the claim is not time-barred. Defendants’ laches claimsfail because laches is not a defense in an action at law. (5 Witkin,Cal. Proc. 5th (2008) Plead, § 1125, p. 552.) It is also beyondthe scope of a demurrer in any event where the defense is notdemonstrated from the face of the pleading. (5 Witkin, Cal. Proc.5th (2008) Plead, § 963, p. 376.As to the Conspiracy claim SAC alleges that Defendants conspiredto misappropriate Plaintiffs’ funds and to divert patients seekingout Plaintiff’s services after the OESA’s terminated: as the OESAsdo not support Defendants’ claim that Section 14 survivedtermination, these claims thus go beyond allegations of aconspiracy to breach a contract. Nor would the agent immunityrule preclude claims of conspiracy as between the individualdefendants. Plaintiffs also allege that Defendants took specificactions in furtherance of their common design, (see SAC 39 –47, & 108 -114) which would give rise to an independent cause ofaction for conversion, defamation, and IIPEA – all of which are

sufficiently pled to survive demurrer.RulingDefendants’ Motion to Strike portions of Plaintiffs’ First AmendedComplaint is DENIED.ReasonPlaintiffs have alleged sufficient facts to support, for purposes of aMotion to Strike, their claims for punitive damages on the Third,Sixth, Seventh and Eighth causes of action. Defendants have notestablished any defect in Plaintiffs’ prayers for interest, and havefailed to provide any support for their request to strike theattorney’s fee requests.13 13-645935Smith v. AyazRulingPlaintiff’s Motion for Trial Preference is GRANTED. However, theMotion for severance or bifurcation is DENIED without prejudice.ReasonActions for declaratory relief are set for trial at the earliestpossible date and “take precedence over all other cases, exceptolder matters of the same character and matters to which specialprecedence may be given by law.” [C.C.P. 1062.3(a); 7 Witkin,Cal. Proc. 5th (2008) Trial, § 67, p. 93]. As Defendant/Cross-Complainant has no opposition to trial preference, there is nojustification for bifurcation/severance of the FAXC for thepurposes of trial at this time. Moving party to give notice.16 12-602686Dowell v. Original Mike’s EnterprisesRulingMotion to be Relieved is DENIED, without prejudice. AlthoughCounsel has substantially complied with CRC 3.1362, as Counselhas not produced a Proof of Service, demonstrating timely serviceon Mr. Lonnie Dotson. However in the alternative if counsel canoffer at the hearing proof of valid service on Mr. Lonnie Dotson,the instant motion is GRANTED.

TENTATIVERULINGS ON LAW & MOTION MATTERSDepartment C-6Judge Luis A. RodriguezLaw and Motion heard at 1:30OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduledThursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 (657-622-5206)for the ruling. Motions generally will not be continued after the tentative has been posted.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILINGPARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION ISDISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will benecessary and the tentative will become the final ruling. If no one appears at the hearing and the court has notbeen notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely restate theirpoints and authorities.August 15, 2013# Case Name Tentative1 09-305278RulingPersiani v. JordanMotion to Confirm Arbitration Award is GRANTED. Thearbitration award shall be confirmed and judgment entered inaccordance therewith.ReasonAny party to an arbitration in which an award has been mademay petition the court to confirm, correct or vacate the award.C.C.P. §1285. Additionally, the Court shall confirm an award,unless it “corrects the award and confirms it as corrected,vacates the award or dismisses the proceedings.” C.C.P. §1286.Further, C.C.P. §1286.2(a) provides that a Court shall vacate anaward, if the Court determines any of the following, relevant,items:(3) The rights of the party were substantially prejudiced bymisconduct of a neutral arbitrator.(4) The arbitrators exceeded their powers and the awardcannot be corrected without affecting the merits of thedecision upon the controversy submitted; or(5) The rights of the party were substantially prejudiced bythe refusal of the arbitrators to postpone the hearing uponsufficient cause being shown therefor or by the refusal of thearbitrators to hear evidence material to the controversy orby other conduct of the arbitrators contrary to the provisionsof this title.Absent proof of one of the grounds for vacating an arbitrationaward listed in C.C.P. §1286.2, “a court may not vacate anaward, even if the arbitrator commits legal or factual errorswhich appear on the face of the award and which causesubstantial injustice.” Roitz v. Coldwell Banker ResidentialBrokerage Co. (1998) 62 Cal.App.4 th 716, 722.Moreover, "[t]he burden is on the party complaining to

affirmatively show error was committed by the arbitrators…andan award will not be vacated for any error that does notprejudice his rights.” Turner v. Cox (1961) 196 Cal.App.2d 596,603. As is explained below plaintiff has failed to offer anyevidence that fits within these specific round holes. Instead allplaintiff has offered is collateral issues which are not relevant tothis specific statutory procedure to confirm or vacate.The Award is not Preempted by Family LawFirst, Plaintiff asserts the Arbitrator exceeded his power(pursuant to C.C.P. §1286.2(a)(4)), as the Arbitrator ruled onissues within the exclusive jurisdiction of the family law court.Plaintiff cites to Askew v. Askew (1994) 22 Cal.App.4 th 942,which affirms family law jurisdiction as a general matter. Here,while plaintiff asserts family law jurisdiction she offers noevidence which would void this award. For example, plaintifffails to provide an order that her prior dissolution action is activeor has been re-opened to address community issues. Nor doesplaintiff show how this award was premised on a finding of thecommunity or separate character of the royalties of the disputedcontract.This is evident from the following explanation of the Arbitrator:“The original claims filed by Ms. Persiani, that wasordered to arbitration by the superior court, alleged fourcauses of action: Breach of Contract, Fraud/FalsePromise, Fraud/Concealment, and Deceit.“Ms. Persiani was seeking her share of royalties based onher community property rights derived from her marriageto Paul Persiani, one of the principals in the disposableglove company.”(Attachment “8c” of Petition).Plainly, the Arbitrator started with the community propertycharacter already determined by the Family court. The factthat the Arbitrator found that “Claimant has no interest inpatent numbers : 7063233 and 6901723” suggest someproperty uncertainty plaintiff offers no argument or evidencepresented that the Arbitrator premised this patent conclusionon whether they were separate or communityproperty. Plaintiff has shown no evidence to show thisconnection. Rather, she offers unsupported speculation andunsupported argument. For example the court notes thefollowing to which it takes judicial notice for purposes of itsdecision to confirm:1. Plaintiff opted to file this action in civil court in 2009 (SeeComplaint); and2. Plaintiff entered into a Stipulation with Defendants, in2009, within the family law action, which states: “Uponthe agreement between the parties that Respondentwould be entitled to fifty percent (50%) of any royaltiesdue and owing under the Royalty Agreement, if any,there are no remaining 'family law' issues left to beadjudicated by the family law court and the Family LawAction is hereby fully resolved and adjudicated.” (Exhibit“1” of Reply).Even if the court were to give credence to plaintiff’scharacterization claim which it does not. The Arbitratorsaward resolved the primary issue the moneys if any due to

plaintiff under the Royalty Agreement.Based on all of the above, Plaintiff failed to meet her burden, ofdemonstrating an excess of jurisdiction.Bankruptcy stay is not a basis to vacate the Award.Plaintiff relies on 11 U.S.C. §362(a), which provides that abankruptcy filing automatically stays “the commencement orcontinuation…[of an] action or proceeding against the debtor…”to oppose confirmation by claiming that the Arbitrator exceededhis power (pursuant to C.C.P. §1286.2(a)(4)), as the Arbitratorruled on critical issues, during a bankruptcy stay. As is pointedout below he did not.It is undisputed that Defendant Paul Persiani filed for bankruptcyduring the arbitration. Additionally, it is undisputed that duringthe application of this stay, the Arbitrator made two orders: (1)continuing arbitration pending removal of the bankruptcy stay;and (2) granting relief to Plaintiff’s Counsel. The court agreesthat neither of these orders constitute the “continuation…[of an]action or proceeding against the debtor.” Indeed, the first orderindisputably sought to continue arbitration, in order to complywith the bankruptcy stay. Further, the second order affectedonly plaintiff (an individual to which no stay applied). Moreover,pursuant to 11 U.S.C. §362(a), as the automatic stay operatesonly to stay proceedings against the bankruptcy debtor, theArbitrator could have proceeded with arbitration, with respect tothe remaining Defendants (although he opted not to for the sakeof efficiency). These orders contrary to plaintiff’s claim onlyaffect the (1)general timing of arbitration and (2) relievingPlaintiff’s Counsel. They are not substantive and not specific tothe debtor. These orders were proper and not impacted by thebankruptcy stay and even if they had impact plaintiff fails toshow how either of these orders prejudiced her rights. Turner v.Cox (1961) 196 Cal.App.2d 596, 603.Denial after 83 days to request to continue arbitration to findcounselLastly, plaintiff argues vacating the award because the Arbitratorengaged in misconduct and inappropriately denied her acontinuance (pursuant to C.C.P. §1286.2(a)(3) and (4)), whenhe provided only 83 days for Plaintiff to obtain new Counsel.This argument has no merit. First, 83 days appears more thansufficient to secure counsel. Second, plaintiff’s Counsel couldhave sought a continuance of the arbitration, if additional timewas needed to prepare for the hearing. There is no indicationthat any attorney sought such a continuance. Third, there is noindication that plaintiff sought any continuance of arbitration,after the order relieving counsel. Absent a request for additionaltime, this Court cannot find the Arbitrator acted inappropriatelyby failing to grant a continuance. Indeed, there is no evidencethat the Arbitrator failed to grant a continuance “after sufficientcause being shown.” C.C.P. §1286.2(a)(5). Finally, and mostdamaging to plaintiff’s claimed prejudice that she was deprivedof an opportunity to present evidence is contained in this part ofthe Arbitrator’s order:“Ms. Persiani was unable to proceed on her claims due to herfailure to pay her fees to underwrite the arbitration hearing.”(Attachment 8(c): 3:16-17).

It is disingenuous at best to now argue that she wasn’t givenenough time when in fact she admitted that it was not the lackof time that caused her lack of preparation but that she had nofunds for the hearing. The Arbitrator’s further denial to continueafter 83 days was proper.Improper Re-consideration of Grant of Arbitration.A non-signatory Plaintiff can be equitably estopped fromavoiding arbitration. As the Court in JSM Tuscany, LLC v.Superior Court (2011) 193 Cal.App.4 th 1222 explained:“When a plaintiff brings a claim which relies on contractterms against a defendant, the plaintiff may beequitably estopped from repudiating the arbitrationclause contained in that agreement. [citation removed]There is no reason why this doctrine should not beequally applicable to a non-signatory plaintiff. Whenthat plaintiff is suing on a contract – on the basis that,even though the plaintiff was not a party to thecontract, the plaintiff is nonetheless entitled to recoverfor its breach, the plaintiff should be equitably estoppedfrom repudiating the contract’s arbitration clause.”Here, plaintiff’s action sought to enforce an alleged breach of theRoyalty Agreement, despite the fact that Plaintiff was not asignatory of that agreement. Consequently, plaintiff may notnow seek to repudiate that clause because the Arbitrator foundagainst her. Nor may plaintiff now claim that the court shouldvacate the award because she did not give consent ie againseeking to re-litigate the order to compel arbitration. It isuntimely and an improper motion to reconsider.Based on all of the above, Plaintiff failed to demonstrate anyjustification for vacating the arbitration award and, as a result,the award is confirmed.3 10-428817Serrano v. Orellana4 11-501167Inhale v. Worldwide Smoke Inc.RulingThe court GRANTS Plaintiff Francisco Serrano’s unopposedmotion to set aside the dismissal entered by the court on12/18/12, pursuant to Code Civ. Proc., § 473, subd. (b). Suchrelief is appropriate and mandatory under Section 473(b).The 12/18/12 dismissal is hereby set aside. Plaintiff shall,within 5 days, file an executed version of the Request for CourtJudgment attached as Exhibit 1 to Plaintiff’s motion.The court sets this matter for an OSC re Dismissal on November19 th at 9:30 A.M in Department C-6. No appearance shall benecessary if judgment has been entered prior to that date.Plaintiff shall serve notice of this order.RulingDefendant’s Motion to Compel Further Responses to Requestsfor Production of Documents is GRANTED in its entirety.Sanctions against Plaintiff Inhale in the amount of $ 1000 arepayable to defendant’s counsel within 30 days of this order.Plaintiff inhale’s motion to compel production of documents isDENIED.Sanctions are DeniedReason

Motion to Compel Further Responses to Requests for Productionof DocumentsFor discovery purposes, information is relevant if it mightreasonably assist a party in evaluating the case, preparing fortrial, or facilitating settlement. Admissibility is not the test andinformation, unless privileged, is discoverable if it mightreasonably lead to admissible evidence. These rules are appliedliberally in favor of discovery. See Gonzalez v. Superior Court(1995) 33 Cal.App.4th 1539, 1546. Here, Plaintiff objected tothe requests at issue based on relevancy grounds, but in eachinstance, the requests are clearly relevant to the case as theywill assist Defendant Starbuzz in evaluating the case, preparingfor trial, or facilitating settlement. Responses to be providedwithout objection within 20 days of this order.Motion to Compel Production of DocumentsPlaintiff Inhale’s is denied as untimely. Defendant objected tothe production of its sales records in response to the 1 st Set ofRequest for Production of Documents by Plaintiff, Nos. 38-40,42. Although Plaintiff filed a Motion to Compel FurtherResponses, that motion did not include 38-40, 42 and therefore,since this motion was not brought w/in 45 days of the originalobjection, it is waived to compel a further response of theidentical request. CCP§2031.310(c).8 12-599707Rodriguez v. Integrity Metal, Inc.RulingThe court DENIES Defendant Integrity Metal, Inc.’s motion tocompel Plaintiff Lino Rodriguez to appear for a medicalexamination.The instant motion was moot when filed. Defendant filed theinstant motion on 07/29/13. It is undisputed that Plaintiffappeared for the desired medical examination on 07/25/13, fourdays prior. (Madoni Dec., 10-11.) To the extent that thepurpose of bringing this motion was to obtain as monetarysanctions the cancellation costs charged by the examiningexperts (see McCarthy Dec., 17 and 18(c)-(d)), such feescannot be awarded as monetary sanctions. (See Ghanooni v.Super Shuttle (1993) 20 Cal.App.4th 256, 262 [monetarysanctions for compelling discovery participation may include onlythe costs of bringing the motion, including attorneys' fees].)The court therefore finds that Defendant brought the motionwithout substantial justification. Monetary sanctions aretherefore awarded against Defendant in the amount of $900.00,pursuant to Code Civ. Proc., § 2032.250, subd. (b). Suchsanctions are to be paid to Plaintiff within 30 days after serviceof notice of this order.Plaintiff is to serve notice of this order.9 12-600381 Ruling

Tachdijian v. John Hancock Life &Health Insurance CompanyThe Court is inclined to GRANT the unopposed Motion filed byDefendants/Cross-Complainants John Hancock Life & Health Ins.Co. & John Hancock Life Ins. Co. U.S.A. (collectively “JohnHancock”), upon submission of a stipulation signed by counselfor John Hancock and counsel for Plaintiff reflecting the allegedagreement with Plaintiff as to moving parties’ claim for $5,000in attorney’s fees and costs.The unopposed Request for Judicial Notice is GRANTED pursuantto Evid. Code §§ 452(d) and 453.10 12-608194Collins v. LumenisRulingMotion Requesting In Camera Review of Notes by DiscoveryReferee is DENIED.ReasonPlaintiff has failed to demonstrate that any harm will result,separate from the claimed attorney-client privilege, which thisCourt has already found does not apply.11 12-609422Kelly v. Daniel T. Stein, M.D. IncRulingDefendants’ Demurrer as to the 3rd, 5th, 6th and 7th causes ofaction in the SAC is OVERRULED.ReasonThe demurrers as to the claims for Conversion, Negligence, andIntentional Interference with Prospective Economic Advantageare overruled for the same reasons already stated in the MinuteOrder of 5/2/13.Defendants’ new limitations claim as to the Conversion cause ofaction is overruled because, when an obligation or liability ariseson a recurring basis, a cause of action accrues each time awrongful act occurs, triggering a new limitations period. (HogarDulce Hogar v. Community Development Com'n of City ofEscondido (2003) 110 Cal.App.4th 1288, 1295.) But as Plaintiffhas alleged multiple events of conversion into 2013, at leastsome of the alleged conduct occurred within the 3-yearlimitations period, so the claim is not time-barred. Defendants’laches claims fail because laches is not a defense in an action atlaw. (5 Witkin, Cal. Proc. 5th (2008) Plead, § 1125, p. 552.) Itis also beyond the scope of a demurrer in any event where thedefense is not demonstrated from the face of the pleading. (5Witkin, Cal. Proc. 5th (2008) Plead, § 963, p. 376.As to the Conspiracy claim SAC alleges that Defendantsconspired to misappropriate Plaintiffs’ funds and to divertpatients seeking out Plaintiff’s services after the OESA’sterminated: as the OESAs do not support Defendants’ claim thatSection 14 survived termination, these claims thus go beyondallegations of a conspiracy to breach a contract. Nor would theagent immunity rule preclude claims of conspiracy as betweenthe individual defendants. Plaintiffs also allege that Defendantstook specific actions in furtherance of their common design, (seeSAC 39 – 47, & 108 -114) which would give rise to anindependent cause of action for conversion, defamation, andIIPEA – all of which are sufficiently pled to survive demurrer.RulingDefendants’ Motion to Strike portions of Plaintiffs’ First AmendedComplaint is DENIED.Reason

Plaintiffs have alleged sufficient facts to support, for purposes ofa Motion to Strike, their claims for punitive damages on theThird, Sixth, Seventh and Eighth causes of action. Defendantshave not established any defect in Plaintiffs’ prayers for interest,and have failed to provide any support for their request to strikethe attorney’s fee requests.13 13-645935Smith v. AyazRulingPlaintiff’s Motion for Trial Preference is GRANTED. However, theMotion for severance or bifurcation is DENIED without prejudice.ReasonActions for declaratory relief are set for trial at the earliestpossible date and “take precedence over all other cases, exceptolder matters of the same character and matters to whichspecial precedence may be given by law.” [C.C.P. 1062.3(a); 7Witkin, Cal. Proc. 5th (2008) Trial, § 67, p. 93]. AsDefendant/Cross-Complainant has no opposition to trialpreference, there is no justification for bifurcation/severance ofthe FAXC for the purposes of trial at this time. Moving party togive notice.16 12-602686Dowell v. Original Mike’sEnterprisesRulingMotion to be Relieved is DENIED, without prejudice. AlthoughCounsel has substantially complied with CRC 3.1362, as Counselhas not produced a Proof of Service, demonstrating timelyservice on Mr. Lonnie Dotson. However in the alternative ifcounsel can offer at the hearing proof of valid service on Mr.Lonnie Dotson, the instant motion is GRANTED.

Rulings 1http://www.occourts.org/tentativerulings/lrodriguezrulings.htmPage 1 of 89/5/2013TENTATIVE RULINGS ON LAW & MOTION MATTERSDepartment C-6Judge Luis A. RodriguezLaw and Motion heard at 1:30OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to thescheduled Thursday hearing. If your internet service is not available you may contact the clerkin Dept. 6 (657-622-5206) for the ruling. Motions generally will not be continued after thetentative has been posted.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY.PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT’SSIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, noappearance will be necessary and the tentative will become the final ruling. If no one appears atthe hearing and the court has not been notified all parties submit on the tentative ruling, thetentative ruling will become the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the timescheduled for the motion. No new issues may be raised at oral argument, but the attorneysshould not merely restate their points and authorities.September 5, 2013# Case Name Tentative1 08-113526Brown v. OsmonRulingThe court STAYS the pending motions by DefendantThe Bank of New York Mellon for: (1) an award ofattorney’s fees against Plaintiff Cynthia Loiuse Brownand; (2) an order expunging the lis pendens recordedby Brown on 02/24/09 and awarding additionalattorney’s fees against Brown and her counsel inconnection therewith.ReasonThis stay is entered in light of Brown’s pendingbankruptcy proceeding. The stay shall remain ineffect until the earlier of the following two events:(1) the filing of a notice in this court that Brown’sbankruptcy proceeding has been terminated; and (2)the filing of a notice in this court of an order by thebankruptcy court lifting the automatic stay as to TheBank of New York Mellon’s claim for attorney’s fees inconnection with this lawsuit.Brown is to serve notice of this order.2 10-353214U.S. Bank N.A. asTrustees v. Bella TerraOffice J.V. LLCO/C

Rulings 1http://www.occourts.org/tentativerulings/lrodriguezrulings.htmPage 2 of 89/5/20133 11-522139Jobe v. Apex MortgageServices, Inc.4 12-596556Boeker v. County of OrangeCont to 10-24RulingThe court GRANTS Defendant City of Anaheim’smotion for an order granting it summary judgment asto Plaintiff Donald Boeker’s First Amended Complaint.City of Anaheim is to serve notice of this order, andprepare a proposed judgment consistent with thisorder.ReasonSTANDARDS FOR SUMMARY JUDGMENTA defendant moving for summary judgment bears aninitial burden of producing admissible evidencesufficient to show that the plaintiff’s action has nomerit; i.e. that, as to each cause of action, one ormore elements of the cause of action cannot beestablished or there is a complete defense. (CodeCiv. Proc., § 437c, subds. (a), (p)(2).) Only after adefendant meets that burden, does the burden shiftto the plaintiff to produce admissible evidenceshowing the existence of a triable issue as to a causeof action or complete defense. (Ibid.; Hawkins v.Wilton (2006) 144 Cal.App.4th 936, 940.)Accordingly, a defendant’s motion for summaryjudgment cannot be granted where it does notnegate all theories of liability pled by the plaintiff.(Hawkins v. Wilton, supra, 144 Cal.App.4th atp. 945.)CITY OF ANAHEIM MET ITS BURDEN OF SHOWINGTHAT PLAINITFF’S ACTION HAS NO MERITDUTY TO PROVIDE PROTECTIONPlaintiff’s sole cause of action against City of Anaheimis for negligence, based on the allegation that theCity:undertook affirmative steps to provide [Plaintiff]with protection [and was therefore] charged witha duty of care to protect [Plaintiff] in exchange forhis testimony. [] However, upon [Plaintiff’s]release, [the City] failed to continue to provide[Plaintiff] with witness protection which led to thephysical attack on [Plaintiff].(FAC, 19-20.)As a general rule, “one owes no duty to control theconduct of another, nor to warn those endangered bysuch conduct.” (Hernandez v. City of Pomona (1996)49 Cal.App.4th 1492, 1499.) Such a duty may arise,

Rulings 1http://www.occourts.org/tentativerulings/lrodriguezrulings.htmPage 3 of 89/5/2013however, if a special relationship exists between theactor and the other which gives the other a right toprotection. (Ibid.) Such a special relationship existsbetween a police department and a testifying witnessonly upon proof of a “specific or implicit undertakingto provide … protection for [the witness] prior to,during, or after trial.” (Id. at p. 1502.) In order tofind a special relationship sufficient to create a dutyby police officers to warn a witness, “the plaintiffmust plead reliance by the plaintiff on the officers’conduct and statements made by the officers whichinduced a false sense of security and therebyworsened the plaintiff’s position.” (Carpenter v. Cityof Los Angeles (1991) 230 Cal.App.3d 923, 931.)The City proffered evidence to establish that theCity’s agents did not ever tell Plaintiff that Clementswas not a potential threat. (UMF 3, 8, 10.)Moreover, Plaintiff was expressly aware of thepotential for retaliation by Clements. (UMF 4.This high bar is necessary because, unlike a duty towarn discussed below, imposition of a duty to provideprotection “requires the commitment of substantiallygreater resources [and] should be undertaken, if atall, only after careful consideration and in the contextof an explicit and well defined commitment to doso.” To put it simply a specific commitment by thepolice officers to protect the testifying witness againstthe vindictiveness of [the defendant against whomtestimony is provided. (Hernandez v. City of Pomona,supra, 49 Cal.App.4th at p. 1503.) Here, The Cityproffered evidence sufficient to establish that Plaintiffspoke about offering evidence against Clements withonly two people affiliated with the City: Officer ChadMeyer and Detective Kathleen Reiss. (UMF 2-3,5-11.) At no time did Plaintiff speak with eitherMeyer or Reiss about witness protection. (UMF 3, 10,11.) However it is clear to the court that whilePlaintiff spoke to Reiss once about his concern thatClements would retaliate, Reiss said only, “[d]on’tworry about it, we’ll protect you.” (Plaintiff Depo,62:5-21, 64:14-24.) As a matter of law thisstatement fall short of the Such a statement, on itsown, falls far short of the specific commitmentrequired to create a special relationship and it’scorresponding duty. (See Hernandez v. City ofPomona, supra, 49 Cal.App.4th at pp. 1501-1502[officer’s “assurance” that no harm would come towitness inadequate to establish duty].) It is apparenthere from the evidence that absent is any evidencefor example, as to when any putative protectionwould begin, how long it would last, or whatresources would be involved.DUTY TO WARN

Rulings 1http://www.occourts.org/tentativerulings/lrodriguezrulings.htmPage 4 of 89/5/2013Apart from the duty to protect plaintiff’s cause ofaction although not raised directly must be addressedbecause in considering summary judgment pleadingsserve as the “outer measure of materiality” (SeeLaabs v. City of Victorville (2008) 163 Cal.App.4th1242. In reviewing the evidence the undisputedmaterial facts establish that it did not owe Plaintiff aduty to warn him and, in any event, did nothing tobreach that duty. For example the City profferedevidence sufficient to show it had no specificinformation – prior to the assault indicating thatPlaintiff might be subjected to physical harm as aresult of his interactions with Clements in jail orpotential testimony against Clements. (UMF 13.)PLAINTIFF FAILED TO MEET HIS BUDEN OFSHOWING A TRIABLE ISSUE OF MATERIAL FACTAs to the above duties the court finds that plaintiffhas failed to proffer evidence sufficient to show atriable issue as to whether the City made any specificor implicit undertaking to provide Plaintiff protection.Although plaintiff offers that Orange County Sheriff’sDeputies Lopez and Enriquez expressed concern thatPlaintiff could be subject to retaliation, andtransferred Plaintiff to a cell block away fromClements. (Plaintiff Depo, 42:4-43:22, 52:6-25.)There is no evidence that Deputies Lopez or Enriquezwere agents of the City in doing so, as opposed toagents of the County of Orange, by whom Sherriff’sDeputies are employed this is lack of agency is fatalto plaintiff to show that there are triable issues of facteither as part of the duty to protect or the duty towarn. For example, plaintiff submits that a triableissue of fact exist as to the extent of Sutter’s role inhandling plaintiff’s application for witness protection.However, this evidence is insufficient since there areno facts indicating whether Sutter was affiliated withthe City (as opposed to the County or the State.Further, there is evidence that plaintiff did not meetwith Sutter or submit the witness protectionapplication until after the retaliation by Clementsoccurred. (Plaintiff Depo, 65:7-22.) Finally, althoughplaintiff claims in his declaration that Officer ChadMeyer “told me not to worry, that [Plaintiff] would bemoved to a new cell block, which they did” and thatReiss “told [Plaintiff] not to worry [about Clementsbecause] they will protect me.” (Plaintiff Dec., 2.)His deposition testimony directly contradicts as suchconflicting testimony cannot create a triable issuesufficient to avoid summary judgment. (Benavides v.City of San Jose Police Department (1999) 71Cal.App.4th 853, 861, 864.)Similarly, plaintiff fails to proffer evidence sufficientto show a triable issue as to whether the City

Rulings 1http://www.occourts.org/tentativerulings/lrodriguezrulings.htmPage 5 of 89/5/2013breached any duty to warn Plaintiff. At most theevidence proffered is that Reiss was aware thatClements had attempted to smuggle a handcuff keyinto jail in an effort to escape. (Plaintiff Depo,73:3-13.) But, again no evidence is offered or couldbe reasonably inferred as too when Reiss learnedthat information, or any evidence to connect suchknowledge with the beating that Plaintiff receivedfrom two unidentified men other than Clements. Toconstrue a triable issue to warn on this evidencewould create facts supporting a duty to warn wherein reality none exist.5 12-600083Buffington v RouseRulingThe court GRANTS Defendant Terry Rouse’s motionto strike the following portions of Plaintiff DavidBuffington’s Second Amended Complaint, withoutleave to amend:• Page 3, 10(f), “EXEMPLARY DAMAGES;”• Page 3, 14(a)(2);• Page 5, IT-1, “THE PLAINTIFF IS ENTITLED TORECOVER FROM THE DEFENDANT PUNITIVEDAMAGES IN AN AMOUNT ACCORDING TOPROOF AT TIME OF TRIAL;” and• Page 6 (“Exemplary Damages Attachment”).Defendant shall file and serve his answer to the SACwithin 10 days after the date of this order.Defendant is to serve notice of this order.6 12-620118Chappell v. NationstarMortgage LLCRulingDemurrer to Second Amended Complaint isSUSTAINED, in its entirety, without leave to amend.Additionally, Defendant’s Request for Judicial Noticeis GRANTED.Reason1 st C/AThe First Cause of Action fails, as liability under theUCL cannot be based on successor liability andPlaintiff concedes that this claim arises from theconduct of AURORA. Emery v. Visa InternationalService Association (2002) 95 Cal.App.4 th 952, 960and Opposition 10:8-17, which cites 34-35 of theSAC.2 nd C/AThe Second Cause of Action for Negligence fails, as aLoan Modification attempt is insufficient to establish aduty owed by a lender. Nymark v. Heart Fed. Savings

Rulings 1http://www.occourts.org/tentativerulings/lrodriguezrulings.htmPage 6 of 89/5/2013& Loan Assn. (1991) 231 Cal.App.3d 1089, 1096 andRagland v. U.S. Bank Nat. Assn. (2012) 209Cal.App.4 th 182, 207.3 rd C/AThe Third Cause of Action for Breach of the ImpliedCovenant fails, as this claim arises from Defendant’salleged denial of a loan modification and “[t]hecovenant…cannot be endowed with an existenceindependent of its contractual underpinnings…Itcannot impose substantive duties or limits on thecontracting parties beyond those incorporated in thespecific terms of the agreement." Guz v. Bechtel Nat.Inc. (2000) 24 Cal.4 th 317, 349-350.4 th C/AThe Fourth Cause of Action for Quiet Title fails forlack of tender. Aguilar v. Bocci (1974) 39 Cal.App.3d475, 477. Additionally, Plaintiff failed to allege facts,demonstrating tender would be inequitable.5 th C/AFinally, the Fifth Cause of Action for DeclaratoryRelief fails as, based on the above findings, Plaintiffhas not alleged an actual controversy. City of Cotativ. Cashman (2002) 29 Cal.4 th 69, 80.Lastly, leave to amend is denied, as the nature ofPlaintiff’s claim is clear, Plaintiff failed to show anymanner in which the claims may be amended, andPlaintiff was provided a prior opportunity to amendand was unable to successfully state a claim.7 13-626372Barrett Business Services,Inc. v OlsenRulingPlaintiff Barrett Business Services, Inc’s Motion toCompel Responses to Form Interrogatories, Set 1 andRequests for Production of Documents, Set 1 isgranted. Defendants Coordinated Delivery &Installation, Inc and Flynn A. Olsen to provide writtenresponses within 15 days.Plaintiff’s motion to establish admissions, Set 1 isalso granted and sanctions against DefendantsCoordinated Delivery & Installation, Inc and Flynn A.Olsen and/or their counsel of record in the amount of$950 to be paid within 30 days.MP to give notice.8 13-640849BRK Brands, Inc. v. PaulHastings Janofsky & WalkerLLP9 13-647869Gregg v. DuttonO/CRuling

Rulings 1http://www.occourts.org/tentativerulings/lrodriguezrulings.htmPage 7 of 89/5/2013The court GRANTS the unopposed motions byDefendant State of California and DefendantCalifornia Highway Patrol to transfer this matter tothe Superior Court of California, County of Riverside,pursuant to Govt. Code, § 955.2 and Code Civ. Proc.,§ 396b.Plaintiffs shall pay the costs and fees of transferringthis action, pursuant to Code Civ. Proc., § 399, subd.(a).State of California shall serve notice of this order onall parties who have appeared in this case.10 13-651213Frye v. Winkle11 13-655389Kucsan v JP Morgan ChaseBank, N.A.12 13-656024Force v. FrancisCont to 10-8RulingThe demurrer by defendant Orange Coast MemorialMedical Center is Sustained without leave to amendas to the 2 nd C/A for NIED. It is Sustained as to the3 rd C/A for battery with 15 days leave to amend.The motion by defendant Orange Coast MemorialMedical Center to strike is moot.ReasonThe 2 nd C/A is superfluous to the 1 st C/A forprofessional negligence. As to the 3 rd C/Aplaintiff fails to allege facts showing that defendantcommitted a medical battery (i.e., when a doctorperforms an operation to which the patient has notconsented.)13 13-658887Glazer v. LeeRulingDemurrer to Complaint is OVERRULED, in its entiretyReasonDefendants Demurrer, fails on its face to comply withCRC 3.1112(d) and CRC 3.1320(a); People ex rel.Flynn v. Abbott (1860) 16 Cal. 358, at 364.14 12-586889Seidel Enterprises v.Universal MoldingRulingDefendant Universal Molding Company’s Motion toCompel Further Responses to Form Interrogatories-Set 1 is granted.

Rulings 1http://www.occourts.org/tentativerulings/lrodriguezrulings.htmPage 8 of 89/5/2013Plaintiff is ordered to serve full and complete verifiedfurther responses, without objections within 15 days.Sanctions are awarded against Plaintiff in the amountof $860 to be paid within 30 days.MP to give notice.

Rulings 1http://www.occourts.org/tentativerulings/lrodriguezrulings.htmPage 1 of 79/13/2013TENTATIVE RULINGS ON LAW & MOTION MATTERSDepartment C-6Judge Luis A. RodriguezLaw and Motion heard at 1:30OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to thescheduled Thursday hearing. If your internet service is not available you may contact the clerkin Dept. 6 (657-622-5206) for the ruling. Motions generally will not be continued after thetentative has been posted.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY.PREVAILING PARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT’SSIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, noappearance will be necessary and the tentative will become the final ruling. If no one appears atthe hearing and the court has not been notified all parties submit on the tentative ruling, thetentative ruling will become the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the timescheduled for the motion. No new issues may be raised at oral argument, but the attorneysshould not merely restate their points and authorities.September 12, 2013# Case Name Tentative1 08-109915Bane v. MartynecRulingMotion to Strike Motion for Relief from Default andDefault Judgment Pursuant to CCP Section 128.7 isDENIED. Sanctions as to both Plaintiff and Defendantare also DENIED.ReasonIt is understood that the imposition of sanctionsunder CCP §128.7 is an extreme remedy reserved forthe rare and exceptional case where the action isclearly frivolous. Operating Engineers Pension Trustv. A-C Co. (9 th Cir. 1988) 859 F. 2d 1336, 1344(referencing FRCP §11, which CCP §128.7 wasmodeled after).While not addressing at this time the merits ofdefendant’s pending motion the court does find thatit rises to the level that it should be heard by thecourt. Contrary to plaintiff’s claim that it should bestricken as frivolous. The court finds that as it isbrought under C.C.P. §473(d) it is not the sameground as the prior denied motion nor is it subject totime limitations as it seeks from relief from a voidjudgment. Plotitsa v. Superior Court (1983) 140Cal.App.3d 755, 761. [“a default that is void on theface of the record when entered is subject tochallenge at any time.”]. For purposes of this Motion

Rulings 1http://www.occourts.org/tentativerulings/lrodriguezrulings.htmPage 2 of 79/13/2013the court finds that some justification exist for thefiling of a second Motion for Relief under C.C.P. §473(d),The Court declines to award sanctions under C.C.P.§128.7. Standard Microsystems Corp. v. WinboundElectronics Corp. (2009) 179 Cal.App.4 th 868, 891.Similarly, Defendant’s request for sanctions againstPlaintiff is denied, as unwarranted.2 11-501167Inhale v. WorldwideSmoke IncRulingSTARBUZZ’S MOTION TO COMPELThe court DENIES Defendant Starbuzz Tobacco, Inc.’smotion to compel Plaintiff Inhale Inc. to serve furtherresponses to Starbuzz’s Third Set of Requests forAdmission, Nos. 26-28 and 31-33 on the groundsthat the motion appears moot in light of the furtherresponses apparently served by Plaintiff Inhale Inc.on 08/20/13.However, the court awards monetary sanctionsagainst Plaintiff in the amount of $ 1000.00 pursuantto Code Civ. Proc., § 2033.290, subd. (d), payablewithin 20 days after service of notice of this order.Starbuzz is to serve notice of this order.BARDS MOTION TO DISMISS/JUDGMENT ON THEPLEADINGSRulingThe court DENIES Defendant Hussam Bard’s motionfor an order dismissing him from this action or, in thealternative, granting him judgment on the pleadingsas to Plaintiff Inhale Inc.’s Fourth AmendedComplaint.ReasonAt the outset the court notes that Bard fails to citeany authority permitting the court to dismiss theclaims against him by way of this motion. Forexample, Bard moves the court for dismissalpursuant to Code Civ. Proc., § 1287.2. Bardrepeatedly notes the mandatory language of Section1287.2, but overlooks the language limiting theapplication of that section to “proceedings under thischapter” in which the moving party is “named as arespondent.” “This chapter” refers to Code Civ.Proc., Part 3, Title 9, Chapter 4 (“Enforcement of theAward”), which governs petitions brought to confirm,correct, or vacate an arbitration award. The plainlanguage of Section 1287.2 therefore applies only tothe dismissal of such petitions. (See Mid-WilshireAssociates v. O’Leary (1992) 7 CalApp.4th 1450,1454; Younger & Bradley, Younger on CaliforniaMotions (2012 ed.) § 9:26.) Because the instantproceeding is not one to confirm, correct, or vacatean arbitration award, Section 1287.2 is simplyinapplicable, and provides no authority for the courtto dismiss the instant case.

Rulings 1http://www.occourts.org/tentativerulings/lrodriguezrulings.htmPage 3 of 79/13/2013The alternative request for judgment on thepleadings is without merit because it relies heavily onevidence that is not properly before the courtbecause of the following:(1) it is not within the operative complaint; (2) noparty asked the court to take judicial notice of it; and(3) it does not appear to be evidence of which thecourt could properly take judicial notice. It istherefore irrelevant as either a non-statutory motionfor judgment on the pleadings or a motion forreconsideration of its prior order overruling Bard’sdemurrer.3 12-556409Benowitz v. HighwindsCapital4 12-565289Lazar v Laguna Terrace Park,LLC5 12-586419Camaj v. Judge Law FirmO/C and Cont to 10/10Cont to 10/17RulingMotion to Compel Further Responses is GRANTED inpart. Further, the court finds that Given therepresentations made within the Opposition,indicating all documents were produced, Defendantis ordered to provide further verified discoveryresponses to Requests Nos. 14-16, within 15 days ofthis order, which comply with C.C.P. §2031.220.The court orders that with respect to Requests Nos.17-20, the motion is moot, given that supplementalresponses were subsequently provided.Finally, as Defendant failed to provide a cleardiscovery response, indicating production was madeand asserted numerous objections it subsequentlyabandoned, The court concludes that discoverymonetary sanctions are justified.Accordingly, the court orders Defendant and Counsel,Kyle Kubisch, shall jointly pay sanctions to Plaintiff, inthe amount of $1,600.00, within 15 days of thisorder. §2031.310(h) and C.C.P. §2023.030.6 12-589220Mcfadden v. William JordanAssociates, Inc.RulingThe court DENIES Plaintiff Lauren McFadden’s motionto deem facts admitted, but GRANTS the alternativerequest to compel Defendant William JordanAssociates, Inc. to serve further, verified responsesto the Requests for Admission, Set One, withoutobjection. The court awards monetary sanctions

Rulings 1http://www.occourts.org/tentativerulings/lrodriguezrulings.htmPage 4 of 79/13/2013against Defendant in the amount of $1,092.50 inconnection with this motion.The court GRANTS Plaintiff’s motion to compelDefendant to serve a verified response to the FormInterrogatories – General, Set Two, InterrogatoryNo. 17.1, without objection. The court awardsmonetary sanctions against Defendant in the amountof $880.00 in connection with this motion.Defendant is to serve the above-referencedresponses and pay the monetary sanctions within 10days after service of notice of this motion. Plaintiff isto serve notice of this motion.7 12-602686Dowell v Original MikesEnterpises LLC.8 12-607439U.S. Bank NationalAssociation v. KhaloghiO/CRulingPlaintiff’s Motion for Summary Judgment/SummaryAdjudication is DENIED.ReasonThe moving party bears the burden of persuasion todemonstrate that there are no triable issues ofmaterial fact and that it is thus entitled to summaryjudgment as a matter of law. (C.C.P. §437c(p)(2);Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th 826,851.) Where the moving party is the plaintiff, theplaintiff must prove each element of the COA entitlingthe plaintiff to judgment thereon. (C.C.P. § 437c(p)(1).) For summary adjudication, the motion “shall begranted only if it completely disposes of a cause ofaction, an affirmative defense, a claim for damages,or an issue of duty.”(C.C.P. § 437c(f)(1).) If plaintiff cannot meet itsburden, then the opposing party has no burden tooppose the motion by submitting evidencedemonstrating that triable issues of fact exist. Binderv. Aetna Life Ins. Co. (1999) 75 Cal.App.4 th 832,840. However, if the plaintiff carries its initialburden, then the party opposing the motion mustproduce admissible evidence to show that one ormore triable issues of fact exist as to that cause ofaction or a defense thereto. (C.C.P. § 437c(p)(1),(2); Green v. Ralee Engineering Co. (1998) 19 Cal.4 th66, 72.) Further, The moving party’s papers are to bestrictly construed, while the opposing party’s papersare to be liberally construed. (Comm. to Save BeverlyHighland Homes Ass’n v. Beverly Highland (2001) 92Cal.App.4 th 1247, 1260.) A court may not makecredibility determinations, or weigh the evidence, ona motion for summary judgment: all evidentiaryconflicts are to be resolved against the moving party.

Rulings 1http://www.occourts.org/tentativerulings/lrodriguezrulings.htmPage 5 of 79/13/2013(McCabe v. Am. Honda Motor Corp. (2002) 100Cal.App.4 th 1111, 1119.) With these standards inmind the court proceeds below to review theevidence.While the court agrees that there are no disputes asto the existence and validity of the loan documentsand the Guaranty, or to Plaintiff’s rights as successorto the original lender, or that Borrower defaulted, orthat the real property security was non-judiciallyforeclosed. (See Defendants’ responses re Fact Nos.1-16.) Nevertheless, the evidence proffered byplaintiff shows that there are disputed issues ofmaterial fact. Specifically, First, as to whether theGuaranty was breached. In support plaintiff submitsthat Borrower failed to surrender all “net cashflows” (Motion, p. 11) generated by the propertyduring the post-default period and failed to pay ormake deposits for all sums owed for taxes andinsurance, and thus triggered 1(e), (g) and (h) ofthe Guaranty. This is disputed as Defendant claimsthat Borrower paid all net income to Plaintiff duringthat time, and that Plaintiff’s claim is based entirelyon mathematical miscalculations, so there was nobreach of the Guaranty. (See Defendants’ responsesre Fact Nos. 17-19.) The material issue of fact is“what sums were collected” and what sums were paidto plaintiff? Thus given the concessions ofmiscalculations this gives rise to the issue of fact asto whether there was a breach of the Guaranty.9 12-617293Mountain West Medical Inc.v. Eccard10 13-630419Newport Beach Dockownersv. Newport Beach CityCouncil11 13-640032Molnar v. Margott12 13-646288Rossin v. Horowich13 13-655691Schaffer v. VentresecaO/CCont to 10/10O/CO/CRulingThe court SUSTAINS the unopposed demurrer ofDefendants Cesar Ventresca and Michele Houston-Ventresca to the Complaint, with leave to amend asplaintiff may be able to allege: (1) attempts toarbitrate; (2) waiver of the right to arbitrate; or (3)an unenforceable agreement.]Plaintiff is to file any amended complaint within 20days after service of notice of this order. DemurringDefendants to serve notice of this order.

Rulings 1http://www.occourts.org/tentativerulings/lrodriguezrulings.htmPage 6 of 79/13/201314 11-473005Morgan v. Hyatt15 11-532088Welch v. The Regents of theUniversity of CaliforniaNo TentativeDEMURRERRulingThe court OVERRULES Defendant The Regents of theUniversity of California’s demurrer to the Sixth,Seventh, and Eighth Causes of Action in PlaintiffJoanne Welch’s Third Amended Complaint.Plaintiff is ordered to file – within 3 days after noticeof this order – a “Further Notice of Errata re ThirdAmended Complaint,” which attaches an executed,corrected copy of the TAC that reflects all priorcorrections as well as the one noted above.Defendant is ordered to file and serve its answer tothe TAC within 10 days thereafter.ReasonSixth Cause of ActionThe court points out that plaintiff clarifies in heropposition that she intended to rely on Section12940, subd. (j)(1), and that the reference tosubdivision (j)(3) was a typographical error.Subdivision (j)(1) does appear applicable to theallegations of this claim and Defendant does notargue otherwise). This typographical error is easilycorrected by way of a notice of errata. However,because Plaintiff has already filed a notice of errataregarding her TAC, a further notice is necessary.Seventh and Eighth Causes of Action.It appears that these causes of action were notincluded in any prior version of Plaintiff’s complaint,and are based entirely on conduct that occurred afterthe instant action was commenced. Accordingly,they should not have been presented by way of anamended complaint, but by way of a supplementalcomplaint. (See Code Civ. Proc., § 464, subd. (a);Radar v. Rogers (1957) 49 Cal.2d 243, 247.) But asupplemental complaint cannot be used to addcauses of action district and independent from thosepresent in the operative complaint. (Flood v.Simpson (1975) 45 Cal.App.3d 644, 647.) Therefore,the Seventh and Eighth Causes of Action are notproperly in this action. Notwithstanding, Defendantwaived this objection because the court recalls thatplaintiff filed the TAC, adding these causes of action,after moving the court for leave to do so. At thattime Defendant received proper notice of thatmotion yet failed to respond or otherwise oppose themotion for leave. It can not now contest that

Rulings 1http://www.occourts.org/tentativerulings/lrodriguezrulings.htmPage 7 of 79/13/2013approved amended complaint with these new causesof action. Further, even if Defendant did not waivethe objection there is no indication that defendanthas suffered prejudice from permitting the newclaims to proceed in this lawsuitTherefore, there seems to be no compelling reason tosustain the demurrer and require plaintiff to file anew lawsuit, just to have them consolidated for trialand return the parties to the very same position asthey now face.MOTION TO STRIKERulingThe court DENIES Defendant’s motion to strikeportions of Plaintiff’s TAC.ReasonDefendant argues that the court should strike 65-120 and 126-128 of the TAC, on the grounds thatthose paragraphs contain nothing but allegations offacts arising after this lawsuit was filed, whichsupport only the newly-added Seventh and EighthCauses of Action. This argument is based on thesame principles and authority as Defendant’sdemurrer to the Seventh and Eighth Causes ofAction, and is denied for the same reasons discussedabove.Defendant also argues that the court should strikevarious portions of the TAC containing allegations ofconduct outside of the time periods framed byPlaintiff’s DFEH claims and Govt. Code, § 12960.Plaintiff responds by invoking the “continuingviolation” doctrine, which permits a plaintiff to baseclaims of unlawful employment practices on eventsthat would otherwise be time-barred where theevents were part of a larger, continuing course ofunlawful conduct. (See, e.g., Richards v. CH2M Hill,Inc. (2001) 26 Cal.4th 798.) Whether Plaintiff willultimately be able to establish that the continuingviolation doctrine is properly applied in this case, herallegations appear sufficient to invoke the doctrine forthe purpose of surviving a motion to strike.Moreover, Defendant does not argue otherwise onreply.

TENTATIVERULINGS ON LAW & MOTION MATTERSDepartment C-6Judge Luis A. RodriguezLaw and Motion heard at 1:30OBTAINING THE RULINGS:Tentative rulings will usually be posted on the internet by 5:00 pm the Wednesday prior to the scheduledThursday hearing. If your internet service is not available you may contact the clerk in Dept. 6 (657-622-5206)for the ruling. Motions generally will not be continued after the tentative has been posted.PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY. PREVAILINGPARTY SHALL PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION ISDISPOSITIVE OF A PARTY OR THE CASE.APPEARANCES:If all parties wish to submit on the tentative ruling and call our clerk to notify the court, no appearance will benecessary and the tentative will become the final ruling. If no one appears at the hearing and the court has notbeen notified all parties submit on the tentative ruling, the tentative ruling will become the final ruling.ORAL ARGUMENT:All requests for oral argument will be granted. Oral argument will be heard at the time scheduled for themotion. No new issues may be raised at oral argument, but the attorneys should not merely restate theirpoints and authorities.September 19, 2013# Case Name Tentative3 11-494398Beck v. ShieldsRulingDefendant A2Z Deck Coating, Inc’s Motion for SummaryJudgment, or alternatively, summary adjudication is DENIED.ReasonSTANDARDS FOR SUMMARY JUDGMENTSummary Judgment “provide[s]courts with the mechanism tocut through the parties pleadings in order to determine whether,despite their allegations, trial is in fact necessary to resolve theirdispute. (cite omit) The court can properly grant a motion forsummary judgment if all the papers submitted establish thatthere is no triable issue of material fact and the moving party isentitled to judgment as a matter of law. (Code Civ. Proc., §437csubd.(c). Further, the party moving for Summary Judgmentbears the initial burden of production to make a prima faciashowing of the non-existence of any triable issue of materialfact; if he carries his burden of production, he causes a shift,and the opposing party is then subjected to a burden ofproduction of his own to make a prima facia case showing theexistence of a triable issue of fact.Briefly, the undisputed facts are that defendant A2z was hired toinstall the waterproofing on the balcony decks as part ofplaintiff’s remodel of their home in 2003. A2z installed apedestrian waterproofing system which was intended forpedestrian traffic and a final walking surface. Specifically, itinstalled Miracote Miraflex Repair Mortar II Deck CoatingSystem. Defendant motion is limited to summary judgment onthe sole cause of action for negligence because any summaryadjudication would improperly require splitting negligence. Thusdefendant must run the table so to speak that is show that thereis no triable issue of fact supporting plaintiffs negligence claimagainst it. As explained below defendant is not even remotely

close to meeting this burden.Whether A2z’s work fall below the standard of careIn construction defect cases it is a battle of experts to determineif the actions fall below a standard of care. The question ofwhether an applicable standard of care has been breached isordinarily one of fact. Hernandez v. KWPH Enterprises (2004)116 Cal.App.4 th 170, 175. This is particularly true when as herethere is disputed expert opinion on this issue as such Summaryjudgment must be denied.For example, A2Z’s expert does not believe the waterproofing isfailing, any failure of the waterproofing was due to the improperinstallation of tile over a system that was not compatible thuscausing the existing waterproofing to prematurely deteriorate.Directly opposite is the declaration of plaintiff’s expert, EricDomeier opines that the work by A2Z was below the standard ofcare. Specifically, that the Miracote Miraflex system isappropriate for use under a tile surface. Indeed, themanufacturer expressly states that this use is appropriate.Further, he opines that fault lies with the installation of thewaterproofing system by pointing out that that the failure isthroughout and not simply at the same areas as the guardrailfailure. (See Declaration of Domeier generally and 7, 9.; (SeePlaintiff’s Separate Statement of Undisputed Material Facts Nos.3, 12, 18, 19, 23, 24, 25, 27, 28, 29, 30, 31 which are disputedand additional facts 1 and 2. ) ; Domeier Declaration at 8, 9,Ex. 3.)A2Z’s work was not a substantial factor in bringing aboutPlaintiff’ damageAgain defendant faces the burden of showing no triable issue offact as to the element of causation. He again fails why becausecausation is usually a question of fact for a jury unless, underundisputed facts, show there is no room for a reasonabledifference of opinion. City of Los Angeles v. Shpegel-Dimsey, Inc(1988) 198 Cal.App.3d 1009,1021-1022.As pointed out above there is wide gulf separating the opinionsof the partie’s respective experts on what caused the failure ofthe deck. Defendant’s expert opines that “The installation of theglass railing on the curbs, which in my opinion is the mainreason for the failure of the decks, is completely unrelated tothe scope of work performed by A2Z and unrelated to theinstallation of the waterproofing membrane.” Declaration ofMarsch16. In stark contrast plaintiff’s expert contends, “mostor all of the flashing on the decks showed significant corrosion.This damage occurred throughout and was not limited just tothe areas near the glass rails. This condition is indicative ofprolonged exposure to moisture as noted in my report….Thisdamage is completely separate from and unrelated to anydamage caused by the guardrail system.” Declaration ofDomeier8. See also Plaintiff’s Separate Statement ofUndisputed Material Facts Nos. 35, 44, 51, 52, 56, 57, 58, 60,61, 62, 63, 64 which are disputed and additional facts 1 and 2.4 11-501167Inhale Inc v. Worldwide Smoke Inc.RulingsDefendant Starbuzz Tobacco, Inc’s Motion to Compel FurtherResponses to Special Interrogatories (set 3

The Motion is GRANTED as to Special Rogs. Numbers 100, 102,111, 113 as Plaintiff failed to respond as completely and asstraightforward as the information reasonably permits. Themotion is denied as to Special Rogs Numbers 106-110, and112. Further responses due within 20 days.Request for sanctions is DENIED.Moving party to give Notice.Defendant Starbuzz Tobacco, Inc.’s motion to compel PlaintiffInhale Inc. to serve further responses to Starbuzz’s Third Set ofForm Interrogatories, Nos. 17.1The court DENIES Defendant Starbuzz Tobacco, Inc.’s motion tocompel Plaintiff Inhale Inc. to serve further responses toStarbuzz’s Third Set of Form Interrogatories, Nos. 17.1 on thegrounds that the motion appears moot in light of the furtherresponses apparently served by Plaintiff Inhale Inc. on08/20/13. However, the court awards monetary sanctionsagainst Plaintiff in the amount of $459.00, payable within 20days after service of notice of this order.Starbuzz is to serve notice of this order.Motion for protective order directing that a 2 nd deposition ofPlaintiff’s PMK not be taken by Defendant Starbuzz Tobacco, Incand Wael Elhalawani.5 11-533896Hynes v. Avocado PacificCommunities LLCThe Motion for Protective Order is DENIED. It is clear from thetranscript of the prior Deposition of Chaoui that, to the extentthere was new information with respect to damages, other e-mails, any correspondence, Defendants reserved the right tohave another deposition to address those issues. Also, defensecounsel pointed out (leave to file) a Fourth Amended Complaintwas pending before the court and therefore because of that,defendants reserved the right to call Mr. Chaoui for deposition.To all of this, Mr. Teran (plaintiff’s counsel), specifically stated,“So stipulated” (See Chaun Declaration, Ex. B pg. 229:8), so itis difficult to see how Plaintiff is now complaining about the 2 nddeposition. The Fourth Amended Complaint was in fact allowedto be filed adding a new cause of action against Starbuzzdefendants for intentional interference with the manufacturingagreement between Inhale and Worldwide. Therefore, goodcause exists for Mr. Chaoui to sit for a second deposition.Sanctions against Plaintiff in the amount of $560 are awardedand to be paid within 20 days after service of this order.Responding Party to Give Notice.Ruling:Defendants’ Motion for Judgment on the Pleadings is DENIED.Defendants’ judicial notice request is GRANTED.ReasonThe issue of StandingAs to Standing this claim fails because according to the SAC, theAgreement, as Plaintiff allegedly signed it, was between Plaintiffpersonally (among others), as seller, and Sugarman personally,as buyer, and concerned a sale of the sellers’ respectivemembership interests in Bayside. (SAC 10; Ex. 1.) Plaintiffthus has standing to assert claims based on an alleged breach ofthat Agreement on her own behalf. Although Plaintiff alsoalleged in the SAC that it was APC that promised to make therequired payments, and that both Sugarman and APC failed to

perform under the terms of the Agreement (SAC 11, 20),these allegations at most create an uncertainty in the pleadings,which would be an appropriate basis for a demurrer, but not forthe instant motion. (See Code Civ. Proc. §§ 430.10(f)[demurrer] and 438(c) [MJOP].)The Statute of LimitationsIn order to prevail that the SOL applies defendant must show“clearly and affirmatively” from the pleading that the statute hasrun. It is not enough that the claim might be barred. (Marshallv. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403;Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316,324-325].) Here, the SAC as pled claims that two events had tooccur before the obligation to make the second payment wouldaccrue. Further, defendants have not offered any evidencesubject to judicial notice to establish when both events in factoccurred. As a result, even though Plaintiff may ultimately beunable to avoid a limitations bar it can’t be achieved with thislimited motionThe issue of Collateral EstoppelDefendants’ claim that the action is barred under the doctrine ofcollateral estoppel also fails. Defendants have argued generallythat issues in a different proceeding (in which Plaintiff wasevidently not a party) were the same, and then pointed topapers filed in that prior proceeding as proof thereof. (Motion,pp. 8 and 9; Reply p. 4.) However, the other action clearlyinvolved other parties and issues, and the final determinationupon which Defendants rely was a ruling on ademurrer. Therefore, even if there was some overlap betweenthat action and this one, Defendants have failed to meet theirburden to establish that all of the requirements for collateralestoppel are established here.The Fraud claimFinally, Defendants are correct that a fraud claim cannotordinarily be premised upon a breach of contract. Here,however, Plaintiff has alleged more than just a breach ofcontract – she has also alleged that the Agreement she signedwas later interlineated, and then used as a means to effectuatefurther transfers. (SAC 10-16.) These allegations, althoughnot a model of clarity, thus appear to go beyond a pure breachof contract claim.7 12-590002Gasca v The Home Depot U.S.A.,Inc.RulingThe court DENIES Defendant Home Depot U.S.A., Inc.’s motionfor summary judgment as to Plaintiff Maria Gasca’s FirstAmended Complaint. The alternative motion for summaryadjudication is GRANTED as to Issues 9, 10, 11, 22, and 24, andotherwise DENIED.The court DENIES Defendant Mario Mora’s motion for summaryadjudication.In connection with these motions, the court sustains Defendants’Objection No. 3 to Plaintiff’s evidence. The parties’ objectionsare otherwise overruled. The court also grants Defendants’

unopposed request for judicial notice.Defendants are to serve notice of this order.ReasonSTANDARDS FOR SUMMARY JUDGMENTSummary Judgment “provide[s]courts with the mechanism tocut through the parties pleadings in order to determine whether,despite their allegations, trial is in fact necessary to resolve theirdispute. (cite omit) The court can properly grant a motion forsummary judgment if all the papers submitted establish thatthere is no triable issue of material fact and the moving party isentitled to judgment as a matter of law. (Code Civ. Proc., §437csubd.(c). Further, the party moving for Summary Judgmentbears the initial burden of production to make a prima faciashowing of the non-existence of any triable issue of materialfact; if he carries his burden of production, he causes a shift,and the opposing party is then subjected to a burden ofproduction of his own to make a prima facia case showing theexistence of a triable issue of fact.ISSUES 1-3 (FIRST CAUSE OF ACTION)Home Depot’s first 3 issues for summary adjudication seek toestablish that Plaintiff’s First Cause of Action for sexualharassment fails as a matter of law because the allegedharassment: (1) was not committed within the scope ofemployment; (2) does not have a causal nexus to Plaintiff’swork; and (3) was not severe enough or sufficiently pervasive toalter the conditions of employment and create a hostile workenvironment. Plaintiffs are not entitled to summary adjudicationof these issues.The Only Harassment At Issue Is An Alleged Assault ByDefendant MoraPlaintiff’s First Cause of Action is for sexual harassment basedon a hostile work environment theory. (FAC, 8.) Morespecifically, Plaintiff alleges that her work environment wasmade hostile by sexually harassing conduct by Randy McFall(FAC, 10-19), an unnamed “Second Harasser” (FAC, 20-23), and a sexual assault by Defendant Mora on 12/01/11 (FAC, 24-34). In the course of this litigation, Plaintiff stipulatedthat she is not relying on any conduct of McFall to support thisclaim. (UMF 32.) Plaintiff also admits in her response toDefendants’ Separate Statement of Undisputed Material Factsthat she is not specifically seeking damages for the allegedlyharassing conduct of the Second Harasser. (Plaintiff’sResponses to UMF 33-34.) Therefore, the only allegedlyharassing conduct at issue is the alleged assault by Mora on12/01/11. (See UMF 54.) However, despite this concessionplaintiff seeks to link Mora’s harassing conduct as being madeduring the course of her employment. (See Plaintiff’s Responseto UMF 54; Plaintiff’s Dec, 7.) Defendant correctly objects tothis reversal as it goes beyond the allegations of plaintiff’s FAC.(See Plaintiff Depo, 352:7-10.) This is new conduct which issubject to Summary Adjudication (Hutton v. Fidelity NationalTitle Company (2013) 213 Cal.App.4th 486, 493; Benavides v.City of San Jose Police Department (1999) 71 Cal.App.4th 853,

861, 862.) But plaintiff also urges that this is evidence thatdemonstrate that Mora was Plaintiff’s “supervisor” within themeaning of the FEHA. The court agrees.A Triable Issue of Fact Exists As To Whether Mora WasPlaintiff’s SupervisorAs an initial matter, it should be noted that the parties relyexclusively on federal authority that analyzes the definition of“supervisor” under Title VII. The FEHA contains a statutorydefinition of “supervisor” that differs from the one used for TitleVII, rendering the parties’ authority of only marginalrelevance. Under the FEHA, a “supervisor” is:any individual having the authority, in the interest of theemployer, to hire, transfer, suspend, layoff, recall, promote,discharge, assign, reward, or discipline other employees, orthe responsibility to direct them, or to adjust theirgrievances, or effectively to recommend that action, if, inconnection with the foregoing, the exercise of that authorityis not of a merely routine or clerical nature, but requires theuse of independent judgment.(Govt. Code, § 12926, subd. (s).) As applied plaintiff offersevidence that: (1) Mora had authority to investigate andeffectively recommend the termination of employees (includingPlaintiff) in the course of his loss-prevention investigations; and(2) Mora directed Plaintiff’s work on at least someoccasions. (Plaintiff Depo, 263:12-264:1; Plaintiff Dec, 2.) This evidence is sufficient to show a triable issue as towhether Mora was Plaintiff’s supervisor within the meaning ofthe FEHA. Moreover, applying the deferential standardapplicable to motions for summary adjudication and therequirement that courts construe the FEHA “broadly, to protectemployees’ rights to seek and hold employment withoutdiscrimination.” (Chapman v. Enos (2004) 116 Cal.App.4th 920,931.) Further, defendant’s proffer no evidence to establish theexistence of a completely private relationship between Plaintiffand Mora, such as a personal dating relationship, at the time ofthe alleged assault. This is critical because even a single assaultinvolving much less violent behavior than the conduct allegedhere – “constitutes actionable conduct sufficient to defeatsummary judgment/adjudication” of a claim for sexualharassment. (Myers v. Trendwest Resorts, Inc., supra, 148Cal.App.4th at p. 1419 [single incident of physical groping bysupervisor].)ISSUES 5-7 (SECOND CAUSE OF ACTION)As defendant’s have lost on Issues 1-3 above, plaintiff’s SecondCause of Action for failure to prevent sexual harassment is alsodefeats summary disposition as plaintiff has met its burden byoffering a triable issue as to whether Mora was Plaintiff’ssupervisor within the meaning of the FEHA.ISSUES 8-9 (THIRD CAUSE OF ACTION)Issues 8 and 9 seek to establish that Plaintiff’s Third Cause ofAction for sexual battery fail as a matter of law because thealleged battery: (1) was not committed within the scope ofemployment; and (2) did not have a causal nexus to Plaintiff’semployment.Home Depot is entitled to summary adjudication because

plaintiff has failed to show that the sexual battery had a causalnexus to plaintiff’s employmentIn contrast to plaintiff’s first and second cause of action dealingwith sexual harassment Home Depot’s potential liability forsexual battery is narrower because liability is premised under onagency principles and on statutory principles embodied in theFEHA. (See Doe v. Capital Cities (1996) 50 Cal.App.4th 1038,1048-1049.) Here, Home Depot will only be liable for Mora’sconduct only if there is a causal nexus between his conduct andhis employment. (Lisa M. v. Henry Mayo Newhall MemorialHospital (1995) 12 Cal.4th 291, 297) and this element isdispositive. Thus, the claimed sexual battery must have eitherbeen an outgrowth of the employment or a generallyforeseeable consequence of the employment. (Id. at plaintiff298-299.) A tort is an outgrown of the employment where it ismotivated by reasons fairly attributable to work-related eventsor conditions). (Lisa M. v. Henry Mayo Newhall MemorialHospital, supra, 12 Cal.4th at pp. 301-302.) Here, the batteryoccurred after hours, off of Home Depot’s property, afterPlaintiff and Mora got drinks. (See UMF 112.) Indeed, plaintiff’sown version of events strongly suggests that Mora’s motivatingreasons for the battery were personal and not fairly attributableto work-related events or conditions. (See Plaintiff’s UMF 373,375-376.) For example, his attempt to use company-issuedhandcuffs during the battery and his reputation as a“womanizer” – even if true – do not show that this is a sufficientnexus that Mora’s sexual battery on plaintiff grew from plaintiff’semployment with Home Depot. Plaintiff has offered no evidenceto refute this. Next is there vicarious liability because the sexualbattery of Mora was a foreseeable consequence of plaintiff’semployment? Again the answer is no because a reasonablyforeseeable consequent of employment is only shown if “in thecontext of the particular enterprise an employee’s conduct is notso unusual or startling that it would seem unfair to include theloss resulting from it among other costs of the employer’sbusiness.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital,supra, 12 Cal.4th at p. 302.) Here, there is no evidencesuggesting that Mora’s duties as an Asset Protection Specialistpredict that he would sexually batter a coworker afterhours. The court is not persuaded with plaintiff’s analogy topolice officers abusing their authority to engage in sexual tortsshould apply. (See Lisa M. v. Henry Mayo Newhall MemorialHospital, supra, 12 Cal.4th at pp. 303-304 [imposition ofvicarious liability for officer’s sexual assault flowed from “theunique authority vested in police officers”].) Why because thereis no evidence that Home Depot gave Mora any power toexercise general control over Plaintiff’s liberty or any coerciveauthority over Mora at all.ISSUES 10-12 (FIFTH AND SIXTH CAUSES OF ACTION)Plaintiff’s Sixth Cause of Action alleges that Home Depot violatedthe FEHA by terminating her employment in retaliation forcomplaining of sexual harassment. Plaintiff’s Fifth Cause ofAction is for wrongful termination in violation of public policy,based on the same termination and the public policy embodiedin the same provision of the FEHA. Accordingly, they can beeasily treated together.Defendant Home Depot proffers evidence that plaintiff hadnothing other than her belief that the two incidents were

elated, plus the fact that Mora was allowed to return toPlaintiff’s store 2 days after she was terminated. (UMF146.) Responding to this evidence plaintiff offers evidence thatthe person who decided to terminate her – Kimberly Martin –called Plaintiff a “cancer,” But no evidence whether Martin begandoing so only after Plaintiff complained about Mora, why Martincalled Plaintiff a “cancer,” or what Martin meant by doing so.Neither is the proffer of facts that that the investigation that ledto her termination was deficient since plaintiff offers noadditional evidence to even infer that the investigation wasmotivated or affected by Plaintiff’s complaint regarding Mora. Inshort, Plaintiff failed to show any triable issue as to whether hercomplaint about Mora was actually the cause of her termination.ISSUES 13-16 AND 23(SEVENTH, EIGHTH, NINTH, TENTH, AND TWELFTH CAUSES OFACTION)These issues seek to establish that Plaintiff’s Seventh, Eighth,Ninth, Tenth, and Twelfth Causes of Action have nomerit. These issues are moot because Plaintiff dismissed thosecauses of action with prejudice.ISSUES 17, 19, AND 21-22(ELEVENTH CAUSE OF ACTION)These issues seek to establish that Plaintiff’s Eleventh Cause ofAction for IIED fails as a matter of law because it is:(1) preempted by Workers’ Compensation exclusivity;(2) personnel management decisions cannot form the basis of aclaim for IIED; (3) the alleged harassment and battery were notcommitted in the course of Plaintiff’s employment; and (4) thealleged harassment and battery do not have a causal nexus toPlaintiff’s employment. Home Depot is entitled to summaryadjudication on issue number 22.First, as discussed in connection with Issue 9 above, thestandard for holding Home Depot liable for Mora’s alleged tortsis narrower than the standard for holding it liable for his sexuallyharassing conduct. Second, the undisputed material factsbefore the court establish that Plaintiff cannot show the causalnexus necessary to hold Home Depot liable for the tortiousconduct at issue. Therefore, while Plaintiff may neverthelessseek emotional distress damages in connection with hersurviving claims against Home Depot, this separate cause ofaction for IIED fails as a matter of law.ISSUES 24-25 (PUNITIVE DAMAGES)It appears undisputed that Plaintiff seeks punitive damagespursuant to Civ. Code, § 3294 is based on Mora’s conduct andthe decision to terminate Plaintiff’s employment made by StoreManager Kimberly Martin. The standard to apply is that noemployer may be liable for punitive damages under Section3294 based upon its employee’s conduct unless the employerhad advance knowledge of the unfitness of the employee andemployed him or her with a conscious disregard of the rights orsafety of others or authorized or ratified the wrongful conductfor which the damages are awarded or was personally guilty ofoppression, fraud, or malice. (Civ. Code, § 3294, subd.(b).) With respect to a corporate employer, the advanceknowledge and conscious disregard, authorization, ratification or

act of oppression, fraud, or malice must be on the part of anofficer, director, or managing agent of thecorporation. (Ibid.) Here, defendants have met their burden byproffering evidence that neither Mora or Martin were corporateofficers, corporate directors, or managing agents of HomeDepot. (UMF 348-351.) This is not sufficiently disputed byplaintiff evidence which only shows that at best Mora’s andMartin’s “authority”, was limited to the store in which theyworked. (See Plaintiff’s Response to UMF 348-351.) Missingfrom plaintiff’s proffer is any evidence even remotely showingthat Mora or Martin exercised “substantial discretionaryauthority over significant aspects of [Home Depot’s] business,”or “substantial discretionary authority over decisions thatultimately determine corporate policy.” (See White v. Ultramar,Inc. (1999) 21 Cal.4th 563, 573, 576-577 [defining “managingagent” for purpose of Section 3294].)MORA’S ISSUESISSUE 4 (FIRST CAUSE OF ACTION)Mora first seeks to establish that Plaintiff’s First Cause of Actionfor sexual harassment fails as a matter of law because thealleged harassment was not severe or pervasive enough to alterPlaintiff’s employment and create a hostile workenvironment. This argument relies on the same evidence andlaw on which Home Depot relies for Issue 3. As discussedabove, Defendants failed to carry their burden as to Issue3. Therefore, and for the same reasons, Mora is not entitled tosummary adjudication of this issue.ISSUES 18 AND 20 (ELEVENTH CAUSE OF ACTION)Issues 18 and 20 seek to establish that Plaintiff’s EleventhCause of Action for IIED fails as a matter of law because: (1) itis preempted by Workers' Compensation exclusivity; and(2) personnel management decisions cannot form the basis ofan intentional infliction of emotional distress claim. On bothissues defendants fail to carry their burden as to Issue 18because a claim for distress caused by conduct amounting tounlawful harassment is not preempted by Worker’sCompensation exclusivity. (Nazir v. United Airlines, Inc. (2009)178 Cal.App.4th 243, 288.) In addition, defendants also fail tocarry their burden as to Issue 20 because Plaintiff’s claim forIIED against Mora is based on the alleged sexual assault, whichcannot be properly characterized as a personnel managementdecision.8 12-600069Bulkin v. Bank of AmericaN.A.RulingDefendants’ Bank of America, N.A and ReconTrust Company,N.A.’s demurrer is SUSTAINED with 20 days leave to amend.RJN is Granted.ReasonAs to the fraud causes of action (1 st , 2 nd , 3 rd ) these are, ingeneral, not pled with requisite specificity.The 1 st c/a for Fraud and 5 th c/a for Negligence appear barred bythe applicable statutes of limitation.Regarding the 4 th c/a for Accounting it fails because Plaintiffdoes not allege any debt was owed from any Defendant, asrequired.

As to the 6 th c/a for Breach of the Duty of Good Faith and FairDealing fails because Plaintiff cannot point to any express termsin the DOT or Note which require that Defendants “honestly deal[with him” nor are there any express terms which requireDefendants to provide him w/ modified loan terms that Plaintifffinds acceptable. It is not enough to allege that plaintiff believeshe is entitled to a better loan since defendant had no duty toprovide one.The 7 th c/ for Violation of B&P Code§17200 fails as it is simply aduplicate of Plaintiff’s other defective causes of action.Finally, 8 th c/a for Promissory Estoppel fails because Plaintiffdoes not plead a clear and unambiguous promise. He claimsonly that he “reasonably presumed that by complying with theDefendant’s request, an amenable loan modification would behad.” FAC71. Simply because he is told he prequalifies for aloan modification does not mean he is promised a loanmodification.9 12-600963Le v Watkins10 12-608194Collins v. LumenisRulingMotion to be Relieved as Counsel of Record is granted.RulingDefendant’s Motion for Summary Judgment isDENIED. Additionally, Adjudication of Issues Nos. 1-4, 7-8, 10,12-15, and 19-23 is DENIED. Adjudication of Issues Nos. 5, 9,11, 16 and 18 is GRANTED. Adjudication of Issues Nos. 6 and 17are MOOT.Additionally, the Court rules as follows on Defendant’sevidentiary objections: Overruled: Nos. 1-16, 18-31, 34-44, 46-59 and 61-66. Sustained: Nos. 17, 32-33, 45 and 60.ReasonSTANDARDS FOR SUMMARY JUDGMENTSummary Judgment “provide[s]courts with the mechanism tocut through the parties pleadings in order to determine whether,despite their allegations, trial is in fact necessary to resolve theirdispute. (cite omit) The court can properly grant a motion forsummary judgment if all the papers submitted establish thatthere is no triable issue of material fact and the moving party isentitled to judgment as a matter of law. (Code Civ. Proc., §437csubd.(c). Further, the party moving for Summary Judgmentbears the initial burden of production to make a prima faciashowing of the non-existence of any triable issue of materialfact; if he carries his burden of production, he causes a shift,and the opposing party is then subjected to a burden ofproduction of his own to make a prima facia case showing theexistence of a triable issue of fact. Grafted on to these generalstandards are the standards that are specific to claims ofDiscrimination.Standard Applied to Claims of DiscriminationWhen a Plaintiff alleges discrimination in violation of FEHA, andthe Defendant seeks summary judgment, California follows theburden shifting analysis of McDonnell Douglas Corp. v. Green(1973) 411 U.S. 792, to determine whether there are triableissues of fact for resolution by a jury. Guz v. Bechtel Nat.Inc.

(2000) 24 Cal.4 th 317, 354.In the first stage, the Plaintiff must establish a prima facie caseof discrimination. Id. Generally, the Plaintiff must provideevidence that (1) she was a member of a protected class, (2)she was qualified for the position she sought or was performingcompetently in the position she held; (3) she suffered anadverse employment action; and (4) some other circumstancessuggest discriminatory motive. Id. at 355. Next, if the employeesuccessfully establishes these elements, the burden shifts to theemployer to provide evidence that there was a legitimate,nondiscriminatory reason for the adverse employment action.Id. at 355-356. Finally, “[i]f the employer sustains this burden,the presumption of discrimination disappears. The Plaintiff mustthen have the opportunity to attack the proffered reasons aspretexts for discrimination, or to offer any other evidence ofdiscriminatory motive.” Id. at 356. This then requires the burdento shift back to the employee to provide ‘substantial responsiveevidence’ that the employer’s proffered reasons were untrue orpretextual.” Loggins v. Kaiser Permanente Intern. (2007) 151Cal.App.4 th 1102, 1108-1109. To establish pretext plaintiff mustoffer evidence that discriminatory reasons more likelymotivated the employer or indirectly show that the employer’sproffered explanation is unworthy of credence.” Morgan v.Regents of University of California (2000) 88 Cal.App.4 th 52, 68.This evidence although circumstantial must be specific andsubstantial in order to create a triable issue. Id. at 68-69;however, in determining whether the above stated burdens aremet, the Court must view the evidence in the light mostfavorable to Plaintiff, as the non-moving party, liberallyconstruing her evidence while strictly scrutinizing Defendants.Scotch v. Art Institute of California-Orange County, Inc. (2009)173 Cal.App.4 th 986, 1005. To each of the below causes ofaction the court applies both the above general and specificstandards.First and Second Causes of Action: Gender and AgeDiscrimination (Issues Nos. 1-4):As explained in Hersant v. Department of Social Services (1997)57 Cal.App.4 th 997, a prima facie case of age discrimination isestablished where the employee shows: (1) at the time of theadverse action he or she was 40 years of age or older; (2) anadverse employment action was taken against the employee;(3) at the time of the adverse action the employee wassatisfactorily performing his or her job; and (4) the employeewas replaced in his position by a significantly younger person.”Id. at 1003. Applying this test in the context of genderdiscrimination, a prima facie case is established when anindividual demonstrates they were satisfactorily performing theirjob prior to being replaced by a member of the opposite sex.Vincent v. Brewer Co. (2007) 514 F.3d 489, 495. Here, it isundisputed that Plaintiff is a 58 year old woman. Additionally, itis undisputed that Plaintiff was demoted from her Directorposition and offered a position as a Manager. (See Declaration ofMr. Fowlks, Director of Human Resources at Lumenis – “…theposition Mr. DiSilvio offered to Ms. Collins was a demotion intitle.” (7)). Finally, it is apparently undisputed that Plaintiff wasperforming well in her position. Indeed, the evidencedemonstrates that Ms. Collins received positive evaluations. (5and 6 of Collins Dec. and DiSilvio Dep. 121: 2-4 and 50:5-52:20). Despite these facts defendant argues that as a matterof law plaintiff has failed to show evidence that plaintiff was

“replaced” rather the all the evidence points to that Mr.Merritwho is 42 years was offered a new Director position. (14 ofDiSilvo Dec.). As further support that plaintiff was not replacedis his testimony that “While some of Ms. Collins’ priorresponsibilities were absorbed by Mr. Merritt, the majority of herduties remained the same – establishing GPO contracts – whichis evident in the National Accounts/IDN Manager job descriptionwhich I prepared.” (7 of Fowlks Dec.).Plaintiff counters this “new” position that she“performed all of the functions and responsibilities identifiedin the job description provided to Mr. Merrit.” (12 of CollinsDec.). Further, plaintiff testifies that while employed as theDirector of National Accounts, she managed Governmentdistributions and distributions in Canada. (11-13 of CollinsDec.). Finally, proffers the testimony of Mr. McMillan, aNational Accounts Manager who reported to plaintiff that Mr.Merritt performed the same functions in the director positionas Ms. Collins had, including responsibility for the NationalAccounts and Government contracts.” (5 of McMillan Dec.).Based on the above, Plaintiff has produced evidencedemonstrating she was replaced by Mr. Merritt (a substantiallyyounger man), sufficient to support prima facie claims of both,sex and age discrimination. This finding that defendant hasfailed to negate the replacement element renders it unnecessaryto address Issues Nos. 1 and 3except to deny them.Next, Defendant attempts to demonstrate a legitimate nondiscriminatorymotive for Plaintiff’s demotion by arguing: (1)Plaintiff was not a candidate/unqualified for the new position;and (2) the demotion resulted merely from a “reorganization” ofDefendant’s sales force. (MSJ: 7:4-10). Both of these arerejected by the court.Firstly, while Mr. DiSilvio declares that Ms. Collins “lackedleadership qualities” and innovation, which disqualified her fromthe “new” position (9-11 of DiSilvio Dec.), given the evidenceindicating the positions were substantially the same and Ms.Collins prior positive evaluations, sufficient evidence exists todispute this testimony. Second, this evidence is disputed by thetestimony of Mr. Hampton, the former Senior Vice President ofLumenis, who declares that Plaintiff “continued to excel in allaspects of her job, including in her leadership and teamworkskills.” (4 of Hampton Dec.). Given this evidence it isinsufficient to demonstrate a “legitimate non-discriminatory”basis for the demotion. (Ms. Collins Depo: 78:3-79:3).In sum while evidence has been presented, to indicateDefendant’s stated reason for demoting Plaintiff and potentiallyreplacing her with a much younger man, are false. This evidenceraises triable issues of fact. (Issues Nos. 2 and 4).Third Cause of Action: Retaliation:“To establish a prima facie case of retaliation under the FEHA, aplaintiff must show: (1) he or she engaged in protected activity,(2) the employer subjected the employee to an adverseemployment action, and (3) a causal link existed between theprotected activity and the employer's action.” Scotch v. ArtInstitute of California-Orange County, Inc. (2009) 173Cal.App.4 th 986, 1020.Here, Defendant disputes the existence of a causal connectionbetween Plaintiff’s termination and the protected activity (herComplaint to DFEH) offering the following evidence:

Mr. Fowlks declares that, on January 31, 2012 prior toPlaintiff’s February 3, 2012 termination, Plaintiffcommunicated to him that she was choosing theseverance option and, thus, declining the Managerposition. (15 of Fowlks Dec.).Plaintiff unequivocally testified within her Deposition,that on January 31, 2012 she told Mr. Folwks “I want theseverance agreement.” (Ms. Collins Depo: 128:16-20). Exhibit “F” of Mr. Fowlks Declaration is a February 2,2012 email from Plaintiff, wherein she states: “I had 21days to review the severance agreement, throughJanuary 31st and, accordingly, called you on January31st and informed you that I would accept the severanceagreement…” (Exhibit “F” of Fowlks Dec.).Exhibit “F”: “I’m not resigning from my employment withLumenis,” she again makes clear “I wish to accept aseverance package….” (Exhibit “F”).Plaintiff’s declaration denies the above however it is clearthat her testimony is contradicted by her Depositiontestimony and other exhibits. Thus, even liberally viewingher evidence she communicated to Mr. Fowlks an intent toend her employment. In the alternative to supportretaliation plaintiff offers evidence that she had “throughJanuary 31 st ” to consider severance. (Exhibit “F” of FowlksDec.). But again plaintiff’s own testimony contradicts her.Q: As of December 29 th , 2011 was it yourunderstanding from Guy Fowlks that you had only twooptions: Accept the demotion or accept theseverance. Otherwise your employment would beterminated?A: Yes.(Ms. Collins Depo: 88:2-6). .Consequently, pursuant to Collins v. Hertz Corp. (2006) 144Cal.App.4 th 64, where representations included withindeclarations are contradicted by deposition testimony, they areinsufficient to defeat summary judgment. Id. at 79.The evidence proffered by defendant coupled with plaintiff’scontradictions establishes that plaintiff would have beenterminated, regardless of the DFEH complaint, either throughher voluntary request for severance on January 31, 2012 or herfailure to make a decision. As a matter of law no claim exists forretaliation.As to defendant’s Request for Adjudication of Issue No. 5 isGRANTED. The Request for Adjudication of Issue No. 6 issubsequently rendered moot.Fourth Cause of Action: Failure to Prevent Discrimination andRetaliation:Plaintiff's Fourth Cause of Action for Failure to PreventDiscrimination and Retaliation arises under Government Code§12940(k), which requires employers to take “all reasonablesteps necessary to prevent discrimination.” California Fair

Employment and Housing Com’n v. Gemini Aluminum Corp.(2004) 122 Cal.App.4 th 1004, 1025. Reasonable steps include“the establishment and promulgation of antidiscriminationpolicies and the implementation of effective procedures tohandle complaints and grievances regarding discrimination.”Id. Here, Defendant provides, as Exhibit “H” to the Declarationof Mr. Fowlk’s a copy of its Employee Handbook, whichestablishes “antidiscrimination policies” and indicates Defendantis an “equal opportunity employer.”Based on the above, Defendant asserts it took reasonable stepsto prevent discrimination and retaliation. Plaintiff, in response,merely asserts that this claim necessarily survives, based on theFirst, Second and Third Causes of Action. However, the failureto prevent discrimination is not the same as a failure to takereasonable steps and, as Plaintiff fails to demonstrate anyreasonable steps Defendant failed to take.Fifth and Sixth Causes of Action: Wrongful Demotion andWrongful Termination in Violation of Public Policy:Both parties concede that the Fifth Cause of Action for WrongfulDemotion in Violation of Public Policy, rises and falls withPlaintiff's discrimination claims. Thus, as the First and SecondCauses of Action survive, issues 12-15 are denied.Similarly, both parties concede that the Sixth Cause of Action forWrongful Termination in Violation of Public Policy, rises and fallswith the claim for Retaliation, thus, for the reasons articulatedabove, adjudication of the Sixth Cause of Action is granted.Seventh Cause of Action: Breach of the Implied Covenant ofGood Faith:Plaintiff’s claim appears to assert she was unfairlyterminated. Pursuant to Foley v. Interactive Data Corp. (1988)47 Cal.3d 654 and Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4 th317, a claim for Breach of the Implied Covenant, in relation toan at-will employment agreement may be possible. However,such a claim cannot “logically be based on a claim that thedischarge [of an at-will employee] was made without goodcause.” Id. at 350. Thus, this claim goes against the principlearticulated in Guz.Eighth Cause of Action: Intentional Infliction of EmotionalDistress:As explained in Accardi v. Superior Court (1993) 17 Cal.App.4 th341:“Emotional distress caused by misconduct in employmentrelations involving, for example, promotions, demotions,criticism of work practices, negotiations as to grievances,is a normal part of the employment environment. Acause of action for such a claim is barred by the exclusiveremedy provisions of the workers’ compensation law…TheLegislature, however, did not intend than an employer beallowed to raise the exclusivity rule for the purpose ofdeflecting a claim of discriminatory practices…Thus, aclaim for emotional and psychological damage, arisingout of employment, is not barred where the distress isengendered by an employer’s illegal discriminatorypractices.”

Id. at 352 (abrogated by Richards v. CH2M Hill, Inc. (2001) 26Cal.4 th 798 on a different point (continuing harassmentdoctrine)).Thus, the instant claim is not barred by the California Worker’sCompensation Act.Similarly, as Plaintiff’s claims for discrimination survive,evidence of “outrageous” conduct exists.Punitive DamagesHere, as Plaintiff’s claims for discrimination survive, and triableissues remain as to whether Mr. DiSilvio (Defendant’s Presidentof the North Americas Region) unlawfully discriminated againstPlaintiff, sufficient evidence of oppression by a corporate officerexists.12 13-643372Kattan v MartinRulingMotion to Compel Production is GRANTED, in its entirety. Mr.Franklin is ordered to produce documents responsive toRequests Nos. 1-2, 5-6 and 9-10, within 15 days of this order.14 13-652567Voit v MallietRulingCross-Defendant Voit Real Estate Services, L.P.’s demurrer isSUSTAINED with 20 days leave to amend. RJN is GRANTED.ReasonDefendant challenges the 2 nd c/a for Breach of Fiduciary Duty,the 7 th c/a for Intentional Interference with Economic Advantageand Contractual Relationships, 8 th c/a for Negligent Interferencewith Economic Advantage and Contractual Relationships, 9 th c/afor Appointment of Receiver and 10 th c/a for Judicial Dissolution.The basis to attack these claims is that they all are infected bythe lack of standing to bring a derivative claim. It appearsclear that Malliet intended to bring these causes of action as“derivative” claims. For example, at 53 of the Cross-Complaintstates “Malliet is entitled, under Corporations Code§17501 andfor the reasons otherwise alleged in this Complaint, to instituteand maintain an action in right of VRES LLC. VRES LLC, as alimited partner of VRES LP at all times relevant to thisComplaint, is entitled under Corporations Code §15910.02 tobring a derivative action to enforce rights of VRES LP.”Indeed, Corporations Code§15910.03 states:(a) A derivative action may be maintained only by a person thatis a partner at the time the action is commenced.HERE, it is clear that from the Cross-Complaint itself that Mallietis not a partner of the LP, and thus cannot bring a derivativeaction. Malliet makes the argument that The court rejects Mallietclaim that since he is a 20% owner of the LLC, which in turn isthe sole limited partner of the LP, that somehow this factcircumvents the language of the statute. However, “It isaxiomatic that in interpretation of a statute where the languageis clear, its plan meaning should be followed.” Great LakesProperties, Inc v. City of El Segundo (1977) 19 Cal.3d 152, 155.Further, no authority is offered holding that a party who neverhad ownership in the stock of the subject company or apartnership interest in the subject company has a direct right tothe partnership interest in order to bring a derivative action.

# Case Name Tentative1 09-301800Lee v. KoRuling(1) Demurrer to Third Amended Complaint (Ko): SUSTAINED,without leave to amend, as to the Sixth and Seventh Causes ofAction. OVERRULED, as to the Fifth Cause of Action. Defendantshall file an Answer to the Third Amended Complaint, within 10days of this order.Defendant Ko’s Request for Judicial Notice is GRANTED.[The merits of the claims are discussed below, in connectionwith the Demurrer filed by Defendants Kim and BCRK.](2) Demurrer to Third Amended Complaint (Kim andBCRK): SUSTAINED, without leave to amend, as to the Sixthand Seventh Causes of Action. OVERRULED, as to the FifthCause of Action. Defendants shall file an Answer to the ThirdAmended Complaint, within 10 days of this order.ReasonFirst. the Demurrers are timely. §430.40(a) and C.C.P.§1013(a. Even if not the court will exercise its discretion toconsider the merits.Additionally, regardless, the Court has discretion Jackson v.Doe (2011) 192 Cal.App.4 th 742, 749.Adding new causes of action“Following an order sustaining a demurrer or a motion forjudgment on the pleadings with leave to amend, the plaintiffmay amend his or her complaint only as authorized by thecourt’s order.” Harris v. Wachovia Mortg., FSB (2010) 185Cal.App.4 th 1018, 1023. Or the new cause of action is within thescope to that granted leave to amend. Here, the courtpreviously ruled that plaintiff’s seventh cause of action of“Assumption of Successor Liability” is not a cause of action.Plaintiff was given leave to plead this allegation in relation tospecific claims to render defendants liable. Contrary to plaintiff’sinterpretation the court did not give plaintiff any permissionexcept leave to add successor liability allegations to Plaintiff’sremaining claims (the First through Fifth Causes of Action), toany extent Plaintiff sought to hold Defendants Carol Kim andBCRK, Inc. liable within these actions. Not to bring new claimsagainst defendants.2 10-362027Koudriavtseva v. Versailles onthe LakeRulingThe motion of Defendants/Judgment Creditors Domino RealtyManagement Company, Inc. and Versailles Lakes Investors,Ltd., L.P. to compel Plaintiff Alla Koudriavtseva to serve verifiedresponses to first sets of post-judgment special interrogatoriesand requests for production is DENIED.ReasonThe Proofs of Service attached to the discovery at issue reflectthat it was served on Plaintiff’s counsel on 04/16/13. (Motion,Exhs. A and B.) On 03/05/13, however, equally clear is thatplaintiff filed a substitution of attorney leaving her self-

epresented. No subsequent substitution of attorney wasfiled. Therefore, Defendants failed to properly serve the writtendiscovery on plaintiff so plaintiff never became obligated torespond to it.Defendants are to serve notice of this order.4 11-512322Quick v Starlight Cinemas, IncRulingThe instant Motion to be Relieved is GRANTED, as Counsel hasfully complied with the requirements articulated in CRC3.1362. Additionally, as Counsel declares that a breakdown inthe attorney-client relationship has occurred, relief isappropriate.5 12-554759California Bank & Trust, asaasignee of the Federal DepositCorporation, as receiver forVineyard Bank v. HemstreetRulingMotion for Leave to File First Amended Complaint isGRANTED. Plaintiffs are ordered to file and serve an executedcopy of the FAC attached as Exhibit A to Ms. Encheff’sDeclaration, within 3 court days of the date of this order.ReasonThis action is in its early stages, thus, no prejudice orunnecessary delay will result to Defendants. Further, leave toamend is granted as Plaintiff’s motion complies with CRC3.1324.6 12-556293GrunBaum v HudsonRulingCross-Complainant’s Motion for Summary Judgment on the soleremaining cause of action (the Second, for Declaratory Relief) isDENIED.ReasonSimply put moving party has not met her burden to establisheach element of the cause of action entitling her to judgmentthereon. (C.C.P. § 437c(p)(1).) For example, although movingparty argues that the contingency in the Short Sale Addendum(for both lenders to consent to the terms of the short salepurchase agreement) did not timely occur, the evidenceproffered is not sufficient. First, under the purchase agreement,the deadline for lender approval was 45 days after the “time theoffer or final counter offer is accepted in writing by a party andpersonally delivered to and personally received by the otherparty or that party’s authorized agent ….” (Hudson Ev., Ex. C at 22A; UF 9, 10.) The Acceptance date thus appears to be12/7/11, as that is the date on the final counter-offer acceptedby Seller. (Hudson Ev., Ex. C; UF 10.) However, in the X-Complaint, Hudson alleges that 19), that the Acceptance datehad passed on 12/22/11, based on the original PA. Second, thecourt points out that moving party did not identify or discuss theapplication of this provision. The failure to challenge this criticalfact dictates finding that she has failed to meet her burden toprevail on Summary Judgment. Third, the court points out thatmoving party has failed to proffer sufficient evidence to establishthat she was entitled to cancel the agreement if she could notrecover the incentives from Chase, as the contract documents

do not appear to include any such term as a condition of theproposed sale, and she cites to no evidence to suggestotherwise. Instead, she incorrectly relies on the SSA provisionsclaiming that she “not have to agree to any of Short SaleLenders’ proposed terms.” (UF 11.) However, the only “term”in US Bank’s response that she objected to was a requirementthat she not receive any proceeds from the sale. (UF19.) Since moving party has failed to establish that either thePA or the SSA provided otherwise, she has not established thatthis term required any change to the terms of the purchasecontract. Finally, she has also failed to establish that Plaintiffsactually cancelled the purchase agreement. She proffersevidence of cancellation from the one communication from Mr.Grunbaum to Ms. Elton dated January 20, 2012. (UF22.) However, it is this is not a cancellation. In sum, theevidence submitted thus fails to establish, for purposes ofsummary judgment, that Plaintiffs cancelled the sale on1/20/12. Indeed plaintiffs evidence suggest the opposite is trueas it points out that neither Plaintiffs nor Brokers understoodthat communication to be a cancellation, and that it was neverintended to be submitted to moving party. (UF 22; GrunbaumDecl., 3, 4.) Therefore, even if that communication weredeemed sufficient to shift the burden on summary judgment,there would still be an issue of material fact as to the intent andeffect of that communication.Moving party to give notice.7 12-580982Grisknoss v. THC-Orange County,Inc.RulingThe court DENIES AS MOOT the motions by Defendants KindredHealthcare Operating, Inc. and THC Orange County, Inc. forsummary judgment as to Plaintiff Donald Griskonis’s FirstAmended Complaint or, in the alternative, summary adjudicationas to certain issues.ReasonThe instant motions were filed and served on 04/11/13, and aredirected at Plaintiff Donald Griskonis’s FAC. Four months later,the parties stipulated to permit Plaintiff to file the SAC. The SACsupersedes the FAC, mooting motions directed to the priorcomplaint. (State Compensation Insurance Fund v. SuperiorCourt (2010) 184 Cal.App.4th 1124, 1131.) “Thus, once anamended complaint is filed, it is error to grant summaryadjudication on a cause of action contained in a previouscomplaint.” (Ibid.)This order is without prejudice to Defendants’ right to move forsummary judgment and/or adjudication as to Plaintiffs’ SAC.Defendants are to serve notice of this order.8 12-615638Elements Food Group, Inc. v.FowlerRulingDefendant Tom Fowler and Food Makers Bakery Equipment,Inc’s Demurrer to the Second Amended Complaint is Overuledas to the 2 nd C/A for Fraud and Deceit the 4 th C/A for forViolation of Penal Code§496(a) the Demurrer to the 5 th C/A forViolation of Penal Code§496(a) (embezzlement by agent) and6 th C/A for Violation of Penal Code §496(a) (embezzlement bybailee) is sustained without leave to amendReasonDeceit is a promise, made without any intention of performing it.

Cal Civ Code§1710(4). Here, is it is clear from the SAC thatDefendant essentially promised that he would pick up the slicerin order to do a demo for a buyer and sell it. See SAC18.However, that promise of essentially acquiring the slicer for thepurpose of helping Plaintiff to sell it was false because a)defendant did not have a buyer at the time the representationwas made [SAC21a]; Defendant told Plaintiff the slicer wasalready sold when Plaintiff indicated he wanted the return of theslicer for plaintiff’s own use when in fact the slicer had not beensold [SAC21b]; Defendant did not in fact perform ademonstration; for nearly five months defendant would notreturn the slicer and only returned it when Plaintiff filed thislawsuit. SAC21d. As to the 4 th C/A plaintiff alleges thatdefendants obtained the slicer by “making themisrepresentations of material fact (that Defendants had abuyer for the Grote Slicer and that they were going to provide ademonstration of the Slicer immediately), and by making thefalse promises alleged above in order to induce Plaintiff to partwith the Grote Slicer, Defendant in effect stole said Grote Slicerfrom Plaintiff.” SAC34. This is sufficient for pleadingpurposes. The court rejects defendant’s claim as there has beenno conviction there can be no claim. “We hold, based on thestatutory language, a criminal conviction under section 496(a) isnot a prerequisite to recovery of treble damages under section496(c). We also hold the phrase “any manner constituting theft”under section 496(a) includes theft by false pretense” Bell v.Feibush (2013) 212 Cal.App.4th 1041, 1043] But the courtagrees that plaintiff’s use of other penal code sections areduplicative moreover, plaintiff did not seek leave to add them tothe SAC.9 13-622654Talebdoost v. Viking RangeCorporationRulingDefendant Viking’s Demurrer is OVERRULED and the motion tostrike DENIED.ReasonPlaintiff has adequately pled the express warranty pursuant toCal. Comm. Code 2313 in 43 of the FAC. As to IIED, whetherfailing to remove a product from the market or properly devisinga product to fix the hazardous product despite being fined andinjuring consumers is sufficiently outrageous conduct should bedetermined by the trier of fact.RulingDefendant Executive Appliance Services, Inc’s demurrer isOVERRULED. Plaitniff has pled sufficient facts to state a cause ofaction for Breach of Express Warranty and IIED. Motion to strikeis DENIED.10 13-624695Aquarium Industrial, Inc. v.Imagine Gold LLCRulingThe Motion filed by The Law Offices of Thomas Nowland to berelieved as counsel to Defendant Imagine America LimitedLiability Company is GRANTED, subject to prompt submission ofa proposed Order reflecting the next scheduled StatusConference date.

11 13-633273A.A.E. Services Inc. v. West HillsConstruction Inc.RulingsDefendant’s Demurrer is SUSTAINED as to the First Cause ofAction, with 20 days leave to amend. The balance of theDemurrer has been withdrawn by Defendant. The Requests forJudicial Notice, both of which pertained thereto, are thusMOOT. Defendant’s Motion to Strike is also MOOT, as it pertainsonly to the prayer for attorney’s fees in the First Cause ofAction. Defendant to give notice.14 12-589220McFadden v. William JordonAssociatesRulingPlaintiff Lauren McFadden’s motion to compel the production ofdocuments responsive to the deposition notices/subpoenasserved by Plaintiff for the depositions of Mickey Payne, AzinRahmanpanah, Tawnia Bair, and Amberly Miller is DENIED.Plaintiff’s request for monetary sanctions against DefendantWilliam Jordan Associates, Inc. and Defendant’s counsel isDENIED.ReasonThe basis for the instant motion is a failure by four percipientwitnesses to produce documents at deposition. The properremedy would have been to bring a motion to compel thosewitnesses to produce the documents at a subsequent depositionsession, and for an award of sanctions against thewitnesses. (See Code Civ. Proc., §§ 2025.450, subd. (a)[employees of party], 2025.480, subd. (a) [anydeponent].) However, Plaintiff brought the instant motion seeksto compel Defendant to produce documents, and seeks anaward of monetary sanctions against Defendant and Defendant’scounsel. The proof of service attached to the moving papersreflects that it was served on Defendant (through its counsel),but not on any of the deponents. Plaintiff therefore failed todirect this motion at the proper persons.15 10-353214US Bank v. Bella TerraRulingsMotion for Termination of Receivership and Approval of FinalAccount is GRANTED.The Court makes the following orders:1. The Receivership is terminated;2. The Receiver is discharged;3. The Receiver’s actions and expenditures, through theFinal Report and Accounting, are approved;4. The Receiver is authorized to deliver possession of thepaper records of the Receivership Estate to any partyrequesting such documents, and shall deliver suchdocuments to the Defendant, within 10 days of thisorder; and5. All surety bonds are exonerated.Further, the Receiver is authorized to pay its remainingexpenses, in the amount of $10,000, from the remaining fundson hand.Lastly, the Receiver shall return all of the remaining funds in thereceivership, approximately $142,000, to Plaintiff.

The Court declines to maintain the Receivership, pending theMotion for Attorney’s Fees, as Defendant has presented noevidence demonstrating the Trust lacks the assets to pay anyjudgment against it and such an order may significantly extendthe Receivership.Motion for Attorney’s Fees is DENIED.ReasonDefendant failed to demonstrate that it is the prevailing partyunder the Loan Agreement, as required to obtain a recovery ofattorney’s fees. Butler-Rupp v. Lourdeaux (2007) 154Cal.App.4 th 918; .” Hsu v. Abbara (1995) 9 Cal.4 th 863, 876 andFrog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206Cal.App.4 th 515, 535.

# Case Name Tentative1 09-301800Lee v. KoRuling(1) Demurrer to Third Amended Complaint (Ko): SUSTAINED,without leave to amend, as to the Sixth and Seventh Causes ofAction. OVERRULED, as to the Fifth Cause of Action. Defendantshall file an Answer to the Third Amended Complaint, within 10days of this order.Defendant Ko’s Request for Judicial Notice is GRANTED.[The merits of the claims are discussed below, in connectionwith the Demurrer filed by Defendants Kim and BCRK.](2) Demurrer to Third Amended Complaint (Kim andBCRK): SUSTAINED, without leave to amend, as to the Sixthand Seventh Causes of Action. OVERRULED, as to the FifthCause of Action. Defendants shall file an Answer to the ThirdAmended Complaint, within 10 days of this order.ReasonFirst. the Demurrers are timely. §430.40(a) and C.C.P.§1013(a. Even if not the court will exercise its discretion toconsider the merits.Additionally, regardless, the Court has discretion Jackson v.Doe (2011) 192 Cal.App.4 th 742, 749.Adding new causes of action“Following an order sustaining a demurrer or a motion forjudgment on the pleadings with leave to amend, the plaintiffmay amend his or her complaint only as authorized by thecourt’s order.” Harris v. Wachovia Mortg., FSB (2010) 185Cal.App.4 th 1018, 1023. Or the new cause of action is within thescope to that granted leave to amend. Here, the courtpreviously ruled that plaintiff’s seventh cause of action of“Assumption of Successor Liability” is not a cause of action.Plaintiff was given leave to plead this allegation in relation tospecific claims to render defendants liable. Contrary to plaintiff’sinterpretation the court did not give plaintiff any permissionexcept leave to add successor liability allegations to Plaintiff’sremaining claims (the First through Fifth Causes of Action), toany extent Plaintiff sought to hold Defendants Carol Kim andBCRK, Inc. liable within these actions. Not to bring new claimsagainst defendants.2 10-362027Koudriavtseva v. Versailles onthe LakeRulingThe motion of Defendants/Judgment Creditors Domino RealtyManagement Company, Inc. and Versailles Lakes Investors,Ltd., L.P. to compel Plaintiff Alla Koudriavtseva to serve verifiedresponses to first sets of post-judgment special interrogatoriesand requests for production is DENIED.ReasonThe Proofs of Service attached to the discovery at issue reflectthat it was served on Plaintiff’s counsel on 04/16/13. (Motion,Exhs. A and B.) On 03/05/13, however, equally clear is thatplaintiff filed a substitution of attorney leaving her self-

epresented. No subsequent substitution of attorney wasfiled. Therefore, Defendants failed to properly serve the writtendiscovery on plaintiff so plaintiff never became obligated torespond to it.Defendants are to serve notice of this order.4 11-512322Quick v Starlight Cinemas, IncRulingThe instant Motion to be Relieved is GRANTED, as Counsel hasfully complied with the requirements articulated in CRC3.1362. Additionally, as Counsel declares that a breakdown inthe attorney-client relationship has occurred, relief isappropriate.5 12-554759California Bank & Trust, asaasignee of the Federal DepositCorporation, as receiver forVineyard Bank v. HemstreetRulingMotion for Leave to File First Amended Complaint isGRANTED. Plaintiffs are ordered to file and serve an executedcopy of the FAC attached as Exhibit A to Ms. Encheff’sDeclaration, within 3 court days of the date of this order.ReasonThis action is in its early stages, thus, no prejudice orunnecessary delay will result to Defendants. Further, leave toamend is granted as Plaintiff’s motion complies with CRC3.1324.6 12-556293GrunBaum v HudsonRulingCross-Complainant’s Motion for Summary Judgment on the soleremaining cause of action (the Second, for Declaratory Relief) isDENIED.ReasonSimply put moving party has not met her burden to establisheach element of the cause of action entitling her to judgmentthereon. (C.C.P. § 437c(p)(1).) For example, although movingparty argues that the contingency in the Short Sale Addendum(for both lenders to consent to the terms of the short salepurchase agreement) did not timely occur, the evidenceproffered is not sufficient. First, under the purchase agreement,the deadline for lender approval was 45 days after the “time theoffer or final counter offer is accepted in writing by a party andpersonally delivered to and personally received by the otherparty or that party’s authorized agent ….” (Hudson Ev., Ex. C at 22A; UF 9, 10.) The Acceptance date thus appears to be12/7/11, as that is the date on the final counter-offer acceptedby Seller. (Hudson Ev., Ex. C; UF 10.) However, in the X-Complaint, Hudson alleges that 19), that the Acceptance datehad passed on 12/22/11, based on the original PA. Second, thecourt points out that moving party did not identify or discuss theapplication of this provision. The failure to challenge this criticalfact dictates finding that she has failed to meet her burden toprevail on Summary Judgment. Third, the court points out thatmoving party has failed to proffer sufficient evidence to establishthat she was entitled to cancel the agreement if she could notrecover the incentives from Chase, as the contract documents

do not appear to include any such term as a condition of theproposed sale, and she cites to no evidence to suggestotherwise. Instead, she incorrectly relies on the SSA provisionsclaiming that she “not have to agree to any of Short SaleLenders’ proposed terms.” (UF 11.) However, the only “term”in US Bank’s response that she objected to was a requirementthat she not receive any proceeds from the sale. (UF19.) Since moving party has failed to establish that either thePA or the SSA provided otherwise, she has not established thatthis term required any change to the terms of the purchasecontract. Finally, she has also failed to establish that Plaintiffsactually cancelled the purchase agreement. She proffersevidence of cancellation from the one communication from Mr.Grunbaum to Ms. Elton dated January 20, 2012. (UF22.) However, it is this is not a cancellation. In sum, theevidence submitted thus fails to establish, for purposes ofsummary judgment, that Plaintiffs cancelled the sale on1/20/12. Indeed plaintiffs evidence suggest the opposite is trueas it points out that neither Plaintiffs nor Brokers understoodthat communication to be a cancellation, and that it was neverintended to be submitted to moving party. (UF 22; GrunbaumDecl., 3, 4.) Therefore, even if that communication weredeemed sufficient to shift the burden on summary judgment,there would still be an issue of material fact as to the intent andeffect of that communication.Moving party to give notice.7 12-580982Grisknoss v. THC-Orange County,Inc.RulingThe court DENIES AS MOOT the motions by Defendants KindredHealthcare Operating, Inc. and THC Orange County, Inc. forsummary judgment as to Plaintiff Donald Griskonis’s FirstAmended Complaint or, in the alternative, summary adjudicationas to certain issues.ReasonThe instant motions were filed and served on 04/11/13, and aredirected at Plaintiff Donald Griskonis’s FAC. Four months later,the parties stipulated to permit Plaintiff to file the SAC. The SACsupersedes the FAC, mooting motions directed to the priorcomplaint. (State Compensation Insurance Fund v. SuperiorCourt (2010) 184 Cal.App.4th 1124, 1131.) “Thus, once anamended complaint is filed, it is error to grant summaryadjudication on a cause of action contained in a previouscomplaint.” (Ibid.)This order is without prejudice to Defendants’ right to move forsummary judgment and/or adjudication as to Plaintiffs’ SAC.Defendants are to serve notice of this order.8 12-615638Elements Food Group, Inc. v.FowlerRulingDefendant Tom Fowler and Food Makers Bakery Equipment,Inc’s Demurrer to the Second Amended Complaint is Overuledas to the 2 nd C/A for Fraud and Deceit the 4 th C/A for forViolation of Penal Code§496(a) the Demurrer to the 5 th C/A forViolation of Penal Code§496(a) (embezzlement by agent) and6 th C/A for Violation of Penal Code §496(a) (embezzlement bybailee) is sustained without leave to amendReasonDeceit is a promise, made without any intention of performing it.

Cal Civ Code§1710(4). Here, is it is clear from the SAC thatDefendant essentially promised that he would pick up the slicerin order to do a demo for a buyer and sell it. See SAC18.However, that promise of essentially acquiring the slicer for thepurpose of helping Plaintiff to sell it was false because a)defendant did not have a buyer at the time the representationwas made [SAC21a]; Defendant told Plaintiff the slicer wasalready sold when Plaintiff indicated he wanted the return of theslicer for plaintiff’s own use when in fact the slicer had not beensold [SAC21b]; Defendant did not in fact perform ademonstration; for nearly five months defendant would notreturn the slicer and only returned it when Plaintiff filed thislawsuit. SAC21d. As to the 4 th C/A plaintiff alleges thatdefendants obtained the slicer by “making themisrepresentations of material fact (that Defendants had abuyer for the Grote Slicer and that they were going to provide ademonstration of the Slicer immediately), and by making thefalse promises alleged above in order to induce Plaintiff to partwith the Grote Slicer, Defendant in effect stole said Grote Slicerfrom Plaintiff.” SAC34. This is sufficient for pleadingpurposes. The court rejects defendant’s claim as there has beenno conviction there can be no claim. “We hold, based on thestatutory language, a criminal conviction under section 496(a) isnot a prerequisite to recovery of treble damages under section496(c). We also hold the phrase “any manner constituting theft”under section 496(a) includes theft by false pretense” Bell v.Feibush (2013) 212 Cal.App.4th 1041, 1043] But the courtagrees that plaintiff’s use of other penal code sections areduplicative moreover, plaintiff did not seek leave to add them tothe SAC.9 13-622654Talebdoost v. Viking RangeCorporationRulingDefendant Viking’s Demurrer is OVERRULED and the motion tostrike DENIED.ReasonPlaintiff has adequately pled the express warranty pursuant toCal. Comm. Code 2313 in 43 of the FAC. As to IIED, whetherfailing to remove a product from the market or properly devisinga product to fix the hazardous product despite being fined andinjuring consumers is sufficiently outrageous conduct should bedetermined by the trier of fact.RulingDefendant Executive Appliance Services, Inc’s demurrer isOVERRULED. Plaitniff has pled sufficient facts to state a cause ofaction for Breach of Express Warranty and IIED. Motion to strikeis DENIED.10 13-624695Aquarium Industrial, Inc. v.Imagine Gold LLCRulingThe Motion filed by The Law Offices of Thomas Nowland to berelieved as counsel to Defendant Imagine America LimitedLiability Company is GRANTED, subject to prompt submission ofa proposed Order reflecting the next scheduled StatusConference date.

11 13-633273A.A.E. Services Inc. v. West HillsConstruction Inc.RulingsDefendant’s Demurrer is SUSTAINED as to the First Cause ofAction, with 20 days leave to amend. The balance of theDemurrer has been withdrawn by Defendant. The Requests forJudicial Notice, both of which pertained thereto, are thusMOOT. Defendant’s Motion to Strike is also MOOT, as it pertainsonly to the prayer for attorney’s fees in the First Cause ofAction. Defendant to give notice.14 12-589220McFadden v. William JordonAssociatesRulingPlaintiff Lauren McFadden’s motion to compel the production ofdocuments responsive to the deposition notices/subpoenasserved by Plaintiff for the depositions of Mickey Payne, AzinRahmanpanah, Tawnia Bair, and Amberly Miller is DENIED.Plaintiff’s request for monetary sanctions against DefendantWilliam Jordan Associates, Inc. and Defendant’s counsel isDENIED.ReasonThe basis for the instant motion is a failure by four percipientwitnesses to produce documents at deposition. The properremedy would have been to bring a motion to compel thosewitnesses to produce the documents at a subsequent depositionsession, and for an award of sanctions against thewitnesses. (See Code Civ. Proc., §§ 2025.450, subd. (a)[employees of party], 2025.480, subd. (a) [anydeponent].) However, Plaintiff brought the instant motion seeksto compel Defendant to produce documents, and seeks anaward of monetary sanctions against Defendant and Defendant’scounsel. The proof of service attached to the moving papersreflects that it was served on Defendant (through its counsel),but not on any of the deponents. Plaintiff therefore failed todirect this motion at the proper persons.15 10-353214US Bank v. Bella TerraRulingsMotion for Termination of Receivership and Approval of FinalAccount is GRANTED.The Court makes the following orders:1. The Receivership is terminated;2. The Receiver is discharged;3. The Receiver’s actions and expenditures, through theFinal Report and Accounting, are approved;4. The Receiver is authorized to deliver possession of thepaper records of the Receivership Estate to any partyrequesting such documents, and shall deliver suchdocuments to the Defendant, within 10 days of thisorder; and5. All surety bonds are exonerated.Further, the Receiver is authorized to pay its remainingexpenses, in the amount of $10,000, from the remaining fundson hand.Lastly, the Receiver shall return all of the remaining funds in thereceivership, approximately $142,000, to Plaintiff.

The Court declines to maintain the Receivership, pending theMotion for Attorney’s Fees, as Defendant has presented noevidence demonstrating the Trust lacks the assets to pay anyjudgment against it and such an order may significantly extendthe Receivership.Motion for Attorney’s Fees is DENIED.ReasonDefendant failed to demonstrate that it is the prevailing partyunder the Loan Agreement, as required to obtain a recovery ofattorney’s fees. Butler-Rupp v. Lourdeaux (2007) 154Cal.App.4 th 918; .” Hsu v. Abbara (1995) 9 Cal.4 th 863, 876 andFrog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206Cal.App.4 th 515, 535.

# Case Name Tentative1 09-301800Lee v. KoRuling(1) Demurrer to Third Amended Complaint (Ko): SUSTAINED,without leave to amend, as to the Sixth and Seventh Causes ofAction. OVERRULED, as to the Fifth Cause of Action. Defendantshall file an Answer to the Third Amended Complaint, within 10days of this order.Defendant Ko’s Request for Judicial Notice is GRANTED.[The merits of the claims are discussed below, in connectionwith the Demurrer filed by Defendants Kim and BCRK.](2) Demurrer to Third Amended Complaint (Kim andBCRK): SUSTAINED, without leave to amend, as to the Sixthand Seventh Causes of Action. OVERRULED, as to the FifthCause of Action. Defendants shall file an Answer to the ThirdAmended Complaint, within 10 days of this order.ReasonFirst. the Demurrers are timely. §430.40(a) and C.C.P.§1013(a. Even if not the court will exercise its discretion toconsider the merits.Additionally, regardless, the Court has discretion Jackson v.Doe (2011) 192 Cal.App.4 th 742, 749.Adding new causes of action“Following an order sustaining a demurrer or a motion forjudgment on the pleadings with leave to amend, the plaintiffmay amend his or her complaint only as authorized by thecourt’s order.” Harris v. Wachovia Mortg., FSB (2010) 185Cal.App.4 th 1018, 1023. Or the new cause of action is within thescope to that granted leave to amend. Here, the courtpreviously ruled that plaintiff’s seventh cause of action of“Assumption of Successor Liability” is not a cause of action.Plaintiff was given leave to plead this allegation in relation tospecific claims to render defendants liable. Contrary to plaintiff’sinterpretation the court did not give plaintiff any permissionexcept leave to add successor liability allegations to Plaintiff’sremaining claims (the First through Fifth Causes of Action), toany extent Plaintiff sought to hold Defendants Carol Kim andBCRK, Inc. liable within these actions. Not to bring new claimsagainst defendants.2 10-362027Koudriavtseva v. Versailles onthe LakeRulingThe motion of Defendants/Judgment Creditors Domino RealtyManagement Company, Inc. and Versailles Lakes Investors,Ltd., L.P. to compel Plaintiff Alla Koudriavtseva to serve verifiedresponses to first sets of post-judgment special interrogatoriesand requests for production is DENIED.ReasonThe Proofs of Service attached to the discovery at issue reflectthat it was served on Plaintiff’s counsel on 04/16/13. (Motion,Exhs. A and B.) On 03/05/13, however, equally clear is thatplaintiff filed a substitution of attorney leaving her self-

epresented. No subsequent substitution of attorney wasfiled. Therefore, Defendants failed to properly serve the writtendiscovery on plaintiff so plaintiff never became obligated torespond to it.Defendants are to serve notice of this order.4 11-512322Quick v Starlight Cinemas, IncRulingThe instant Motion to be Relieved is GRANTED, as Counsel hasfully complied with the requirements articulated in CRC3.1362. Additionally, as Counsel declares that a breakdown inthe attorney-client relationship has occurred, relief isappropriate.5 12-554759California Bank & Trust, asaasignee of the Federal DepositCorporation, as receiver forVineyard Bank v. HemstreetRulingMotion for Leave to File First Amended Complaint isGRANTED. Plaintiffs are ordered to file and serve an executedcopy of the FAC attached as Exhibit A to Ms. Encheff’sDeclaration, within 3 court days of the date of this order.ReasonThis action is in its early stages, thus, no prejudice orunnecessary delay will result to Defendants. Further, leave toamend is granted as Plaintiff’s motion complies with CRC3.1324.6 12-556293GrunBaum v HudsonRulingCross-Complainant’s Motion for Summary Judgment on the soleremaining cause of action (the Second, for Declaratory Relief) isDENIED.ReasonSimply put moving party has not met her burden to establisheach element of the cause of action entitling her to judgmentthereon. (C.C.P. § 437c(p)(1).) For example, although movingparty argues that the contingency in the Short Sale Addendum(for both lenders to consent to the terms of the short salepurchase agreement) did not timely occur, the evidenceproffered is not sufficient. First, under the purchase agreement,the deadline for lender approval was 45 days after the “time theoffer or final counter offer is accepted in writing by a party andpersonally delivered to and personally received by the otherparty or that party’s authorized agent ….” (Hudson Ev., Ex. C at 22A; UF 9, 10.) The Acceptance date thus appears to be12/7/11, as that is the date on the final counter-offer acceptedby Seller. (Hudson Ev., Ex. C; UF 10.) However, in the X-Complaint, Hudson alleges that 19), that the Acceptance datehad passed on 12/22/11, based on the original PA. Second, thecourt points out that moving party did not identify or discuss theapplication of this provision. The failure to challenge this criticalfact dictates finding that she has failed to meet her burden toprevail on Summary Judgment. Third, the court points out thatmoving party has failed to proffer sufficient evidence to establishthat she was entitled to cancel the agreement if she could notrecover the incentives from Chase, as the contract documents

do not appear to include any such term as a condition of theproposed sale, and she cites to no evidence to suggestotherwise. Instead, she incorrectly relies on the SSA provisionsclaiming that she “not have to agree to any of Short SaleLenders’ proposed terms.” (UF 11.) However, the only “term”in US Bank’s response that she objected to was a requirementthat she not receive any proceeds from the sale. (UF19.) Since moving party has failed to establish that either thePA or the SSA provided otherwise, she has not established thatthis term required any change to the terms of the purchasecontract. Finally, she has also failed to establish that Plaintiffsactually cancelled the purchase agreement. She proffersevidence of cancellation from the one communication from Mr.Grunbaum to Ms. Elton dated January 20, 2012. (UF22.) However, it is this is not a cancellation. In sum, theevidence submitted thus fails to establish, for purposes ofsummary judgment, that Plaintiffs cancelled the sale on1/20/12. Indeed plaintiffs evidence suggest the opposite is trueas it points out that neither Plaintiffs nor Brokers understoodthat communication to be a cancellation, and that it was neverintended to be submitted to moving party. (UF 22; GrunbaumDecl., 3, 4.) Therefore, even if that communication weredeemed sufficient to shift the burden on summary judgment,there would still be an issue of material fact as to the intent andeffect of that communication.Moving party to give notice.7 12-580982Grisknoss v. THC-Orange County,Inc.RulingThe court DENIES AS MOOT the motions by Defendants KindredHealthcare Operating, Inc. and THC Orange County, Inc. forsummary judgment as to Plaintiff Donald Griskonis’s FirstAmended Complaint or, in the alternative, summary adjudicationas to certain issues.ReasonThe instant motions were filed and served on 04/11/13, and aredirected at Plaintiff Donald Griskonis’s FAC. Four months later,the parties stipulated to permit Plaintiff to file the SAC. The SACsupersedes the FAC, mooting motions directed to the priorcomplaint. (State Compensation Insurance Fund v. SuperiorCourt (2010) 184 Cal.App.4th 1124, 1131.) “Thus, once anamended complaint is filed, it is error to grant summaryadjudication on a cause of action contained in a previouscomplaint.” (Ibid.)This order is without prejudice to Defendants’ right to move forsummary judgment and/or adjudication as to Plaintiffs’ SAC.Defendants are to serve notice of this order.8 12-615638Elements Food Group, Inc. v.FowlerRulingDefendant Tom Fowler and Food Makers Bakery Equipment,Inc’s Demurrer to the Second Amended Complaint is Overuledas to the 2 nd C/A for Fraud and Deceit the 4 th C/A for forViolation of Penal Code§496(a) the Demurrer to the 5 th C/A forViolation of Penal Code§496(a) (embezzlement by agent) and6 th C/A for Violation of Penal Code §496(a) (embezzlement bybailee) is sustained without leave to amendReasonDeceit is a promise, made without any intention of performing it.

Cal Civ Code§1710(4). Here, is it is clear from the SAC thatDefendant essentially promised that he would pick up the slicerin order to do a demo for a buyer and sell it. See SAC18.However, that promise of essentially acquiring the slicer for thepurpose of helping Plaintiff to sell it was false because a)defendant did not have a buyer at the time the representationwas made [SAC21a]; Defendant told Plaintiff the slicer wasalready sold when Plaintiff indicated he wanted the return of theslicer for plaintiff’s own use when in fact the slicer had not beensold [SAC21b]; Defendant did not in fact perform ademonstration; for nearly five months defendant would notreturn the slicer and only returned it when Plaintiff filed thislawsuit. SAC21d. As to the 4 th C/A plaintiff alleges thatdefendants obtained the slicer by “making themisrepresentations of material fact (that Defendants had abuyer for the Grote Slicer and that they were going to provide ademonstration of the Slicer immediately), and by making thefalse promises alleged above in order to induce Plaintiff to partwith the Grote Slicer, Defendant in effect stole said Grote Slicerfrom Plaintiff.” SAC34. This is sufficient for pleadingpurposes. The court rejects defendant’s claim as there has beenno conviction there can be no claim. “We hold, based on thestatutory language, a criminal conviction under section 496(a) isnot a prerequisite to recovery of treble damages under section496(c). We also hold the phrase “any manner constituting theft”under section 496(a) includes theft by false pretense” Bell v.Feibush (2013) 212 Cal.App.4th 1041, 1043] But the courtagrees that plaintiff’s use of other penal code sections areduplicative moreover, plaintiff did not seek leave to add them tothe SAC.9 13-622654Talebdoost v. Viking RangeCorporationRulingDefendant Viking’s Demurrer is OVERRULED and the motion tostrike DENIED.ReasonPlaintiff has adequately pled the express warranty pursuant toCal. Comm. Code 2313 in 43 of the FAC. As to IIED, whetherfailing to remove a product from the market or properly devisinga product to fix the hazardous product despite being fined andinjuring consumers is sufficiently outrageous conduct should bedetermined by the trier of fact.RulingDefendant Executive Appliance Services, Inc’s demurrer isOVERRULED. Plaitniff has pled sufficient facts to state a cause ofaction for Breach of Express Warranty and IIED. Motion to strikeis DENIED.10 13-624695Aquarium Industrial, Inc. v.Imagine Gold LLCRulingThe Motion filed by The Law Offices of Thomas Nowland to berelieved as counsel to Defendant Imagine America LimitedLiability Company is GRANTED, subject to prompt submission ofa proposed Order reflecting the next scheduled StatusConference date.

11 13-633273A.A.E. Services Inc. v. West HillsConstruction Inc.RulingsDefendant’s Demurrer is SUSTAINED as to the First Cause ofAction, with 20 days leave to amend. The balance of theDemurrer has been withdrawn by Defendant. The Requests forJudicial Notice, both of which pertained thereto, are thusMOOT. Defendant’s Motion to Strike is also MOOT, as it pertainsonly to the prayer for attorney’s fees in the First Cause ofAction. Defendant to give notice.14 12-589220McFadden v. William JordonAssociatesRulingPlaintiff Lauren McFadden’s motion to compel the production ofdocuments responsive to the deposition notices/subpoenasserved by Plaintiff for the depositions of Mickey Payne, AzinRahmanpanah, Tawnia Bair, and Amberly Miller is DENIED.Plaintiff’s request for monetary sanctions against DefendantWilliam Jordan Associates, Inc. and Defendant’s counsel isDENIED.ReasonThe basis for the instant motion is a failure by four percipientwitnesses to produce documents at deposition. The properremedy would have been to bring a motion to compel thosewitnesses to produce the documents at a subsequent depositionsession, and for an award of sanctions against thewitnesses. (See Code Civ. Proc., §§ 2025.450, subd. (a)[employees of party], 2025.480, subd. (a) [anydeponent].) However, Plaintiff brought the instant motion seeksto compel Defendant to produce documents, and seeks anaward of monetary sanctions against Defendant and Defendant’scounsel. The proof of service attached to the moving papersreflects that it was served on Defendant (through its counsel),but not on any of the deponents. Plaintiff therefore failed todirect this motion at the proper persons.15 10-353214US Bank v. Bella TerraRulingsMotion for Termination of Receivership and Approval of FinalAccount is GRANTED.The Court makes the following orders:1. The Receivership is terminated;2. The Receiver is discharged;3. The Receiver’s actions and expenditures, through theFinal Report and Accounting, are approved;4. The Receiver is authorized to deliver possession of thepaper records of the Receivership Estate to any partyrequesting such documents, and shall deliver suchdocuments to the Defendant, within 10 days of thisorder; and5. All surety bonds are exonerated.Further, the Receiver is authorized to pay its remainingexpenses, in the amount of $10,000, from the remaining fundson hand.Lastly, the Receiver shall return all of the remaining funds in thereceivership, approximately $142,000, to Plaintiff.

The Court declines to maintain the Receivership, pending theMotion for Attorney’s Fees, as Defendant has presented noevidence demonstrating the Trust lacks the assets to pay anyjudgment against it and such an order may significantly extendthe Receivership.Motion for Attorney’s Fees is DENIED.ReasonDefendant failed to demonstrate that it is the prevailing partyunder the Loan Agreement, as required to obtain a recovery ofattorney’s fees. Butler-Rupp v. Lourdeaux (2007) 154Cal.App.4 th 918; .” Hsu v. Abbara (1995) 9 Cal.4 th 863, 876 andFrog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206Cal.App.4 th 515, 535.

# Case Name Tentative4 12-536859Colford v. NunezRulingPlaintiff’s Motions to Compel Further Responses to Requests ForAdmissions and to Form Interrogatories, as filed on 9/24/13, areGRANTED. Defendant Annette Nunez shall provide supplementalresponses thereto within 10 days after service of notice of thisOrder. Plaintiff to give notice.6 12-582369Maldonado v. Shaw-SproulRulingDefendant Linda Shaw’s Motion for Summary Judgment isGRANTED as a matter of law.ReasonAs a matter of law plaintiff has failed to show a legal duty bypermitting a “zone of danger. ”Plaintiff has cited no authority inits opposition that an exception to the rule below is liability forcreating a “zone of danger”. Rather this concept is more adescription of conduct rather than a variant of a recognized dutybecause as general matter, there is no duty to act to protectothers from the conduct of third parties. Delgado v. Trax Bar &Grill (2005) 36 Cal.4th 224, 234-35. However, A defendant mayowe an affirmative duty to protect another from the conduct ofthird parties if he or she has a “special relationship” with theother person. Here, the evidence offered is that Shaw andMaldonado had been romantically involved and whether theyhad carried on this romance is unclear from theevidence. However, what is undisputed is that they did nothave the recognized “special relationships” that impose anaffirmative duty to protect a 3 rd party. For example, Maldonadowas not a business invitee (cite omit) nor was Shaw hislandlord( cite omit) At best she is a former lover, girlfriend whois still on occasion seeing her ex- boyfriend. Plaintiff offer nocase that an ex-girlfriend and boyfriend by virtue of theirinvolvement in the past that they owe a legal duty to protectfrom harm each other from the violent behavior of a third party.On this ground alone defendants have met their burden that asthere is no duty on Shaw there is no liability for the actions ofOstrom her apparent new boyfriend and lover. As there is no“special relationship” then the existence of duty which is a legalquestion turns on an analysis of the following factors:(1) the foreseeability of harm; (2) the degree of certaintythat the plaintiff suffered injury; (3) the closeness ofconnection between the plaintiff's injury and thelandowner's conduct; (4) the moral blame attached tothe landowner's conduct; (5) the policy of preventingfuture harm; (6) the burden on the landowner and theconsequences to the community of imposing a duty onthe landowner; and (7) the availability, cost, andprevalence of insurance for the risk.FORSEEABILITY OF HARMEven if we take all of Plaintiffs’ versions of the events as true,that this was essentially a lovers triangle (as opposed to Shawand Decedent having been broken up), that Maldonado toldShaw he was coming over and Shaw told Ostrom, that Shaw

knew Maldonado was angry and drunk and used steroids andwanted to fight Ostrom—there is no evidence that Shaw couldhave possibly foreseen Maldonado pushing past Shaw andultimately, Ostrom shooting him. This is because although as ageneral principle, a defendant owes a duty of care to all personswho are foreseeably endangered by his conduct, with respect toall risks which make the conduct unreasonably dangerous(Tarasoff v. Regents of University of California (1976) 17 Cal.3d425, 434–435, it also is well established that, as a generalmatter, there is no duty to act to protect others from theconduct of third parties. Delgado v. Trax Bar & Grill (2005) 36Cal.4th 224, 234-35. In addition, it appears to the court that toconclude that it was reasonably forseeable would requireevidence that Shaw knew what Maldanado intented if sheopened the door and that with that knowledge it was reasonablyforeseeable that he would go past her and be shot byOstrom. The court can infer multiple scenarios based on theversions that would be reasonably foreseeable that Maldonadowould not be subject to harm if she let him in. Plaintiff has failedto proffer facts meeting this critical component of imposing aduty to prevent Maldonados’s harm.DEGREE OF CERTAINTY THAT THE PLAINTIFF SUFFEREDINJURY.There is no dispute that Maldonado died from his gunshotwounds.THE CLOSENESS OF CONNECTION BETWEEN THE PLAINTIFF’SINJURY AND THE LANDOWNER’S CONDUCTThe thrust of Plaintiffs’ entire argument is that Shaw created thezone of danger in her home by opening her door. If she had notopened the door, Maldonado may not have been shot, that istrue. However, she did not open the door and invite him inknowing he wanted to beat up her new boyfriend. Rather, thefacts are undisputed that she opened the door to try toneutralize the situation and he pushed past her into the home.Maldonado’s conduct is more connected to his injury thanShaw’s conduct in opening the door. He came to the home afterShaw told him not to. He arrived late at night, pounding ondoors and yelling. Although Shaw opened the door, he pushedpast her. He was in a drunken rage and it is likely thatsomething violent would have happened that night irrespectiveof whether Shaw opened the door or not.THE MORAL BLAME ATTACHED TO THE LANDOWNER’SCONDUCTThere is no moral blame attached to a homeowner for openingher door to a known friend. She cannot know his state of mindwhen she opened the door. She cannot know Ostrom’s state ofmind in shooting Maldonado. The only moral blame here is thatthe three were caught in a lover’s triangle where they all knewabout one another—not sure how much moral blame can evenbe assigned.THE POLICY OF PREVENTING FUTURE HARM: It is impossible toconceive how imposing a duty under these circumstances wouldprevent future harm.THE BURDEN ON THE LANDOWNER AND CONSEQUENCES TOTHE COMMUNITY OF IMPOSING A DUTY ON THE LANDOWNER

The burden on Shaw to not open her door and wait for the policewas minimal.THE AVAILABILITY, COST, PREVALENCE OF INSURANCE FORTHE RISKThis appears to be a non-issue.9 12-608283Zimmmerman v. Wheel Solutions,Inc.RulingPlaintiff Jason Zimmerman’s Motions to Compel FurtherResponses to Form Interrogatory 15.1 (motions 1 and 3), areGRANTED, sanctions in the amount of $1085.45 against eachdefendant (Glenn Paul Roberts and Wheel Solutions Inc).Defendants failed to properly answer the sub-parts of thisinterrogatory and fail to establish responding would beoppressive.Plaintiff Jason Zimmerman’s Motions to Compel FurtherResponses to Request for Production of Documents (motions 2and 4), motions are DENIED and sanctions against Plaintiff inthe amount of $775 total. Defendants have providedsupplemental responses and have produced all the documents intheir custody, possession, or control. Plaintiff cites to noauthority that Defendants must produce documents in thecontrol of subcontractors.Further responses are due within 20 days. Sanctions to be paidwithin 30 days. MP to give notice.10 13-630419Newport Beach DockownersAssociation v. Newport Beach CityCouncilRulingThe court GRANTS Defendant Newport Beach City Council’smotion for an order striking the following portions of theAmended Complaint and Petition of Plaintiffs Newport BeachDockowners Association, Robert McCaffrey, and Coalition toPreserve Newport Harbor: 5, 11-23, and 31; 9, lines 14-19 (“This ‘working group’ was formed …tideland use issues.”); 25, lines 10-12 (“The City staff report dated … meetingand adopted.”; and 33, line 27 (“commercial and”).The court grants Defendant’s request for judicial notice of itsExhibits B, J, K, and M (Evid. Code, §§ 452, subd. (b) and 453)and Exhibits A, C-I, and L (Evid. Code, §§ 452, subd. (c) and

453). Defendant’s request is denied as to its Exhibits N and O.Plaintiffs shall file any amended complaint within 10 days afterservice of notice of this order. Defendant shall serve notice ofthis order.ReasonThe heart of the dispute presented in this motion is whether –as a matter of law – Plaintiffs’ “Demand to Cure” letter satisfiedthe Brown Act’s pre-filing requirement as to certain allegationsin the Amended Complaint and Petition. (See Govt. Code, §54960.1, subds. (b) and (c).) That issue cannot be decided atthis time, because the “Demand to Cure” letter is not properlybefore the court. It is not attached to the Amended Complaintand Petition, nor is it properly the subject of judicial noticebecause there is no evidence before the court sufficient to showthat either document was an “enactment” or “official act” ofDefendant. (See Evid. Code, § 452, subds. (b) and (c); Hughesv. Blue Cross of Northern California (1989) 215 Cal.App.3d 832,857, fn. 2 [judicial notice not properly taken under Section452(c) or (h) of certain papers filed with state and federalagencies].)As to the Motion to Strike the motion has merit becausePlaintiffs fail to allege any facts sufficient to establish that theysatisfied the Brown Act’s pre-filing requirement. The onlyallegation in the Amended Complaint and Petition relevant tothis issue is at 60. That allegation is nothing more than alegal conclusion; not an allegation of ultimate fact sufficient tosupport Plaintiffs’ pleading burden. Additionally, it is includedonly in Plaintiffs’ Second Cause of Action for Declaratory Reliefand omitted from Plaintiffs’ First Cause of Action for a Writ ofMandate and Injunctive Relief. However, Plaintiffs are givenleave to adequately plead facts to allege compliance with theBrown Act’s pre-filing requirement, and attach copies of therelevant documents upon which they rely, if any.11 13-636352H v. VuRulingThe court GRANTS Plaintiff Cao H. Duong’s motion to set asidethe dismissal entered by the court on 08/06/13, pursuant toCode Civ. Proc., § 437, subd. (b). Such relief is appropriate andmandatory under Section 473(b). The 08/06/13 dismissal ishereby set aside.The court sets this matter for Case Management Conference tobe set at the hearing. Plaintiff shall serve notice of this order.12 13-643372Kattan v. MartinRULINGS(1) Demurrer to Complaint filed by Defendant State Farm:SUSTAINED, in its entirety, without leave to amend.ReasonPursuant to Fitzpatrick v. Hayes (1997) 57 Cal.App.4 th 916, theclaim for Negligence fails, as the alleged breaches imply anobligation to volunteer and/or recommend additional coverage.Id. at 927; 22 and 24-27 of FAC.Pursuant to Harford Fire Ins. Co. v. Spartan Realty International,Inc. (1987) 196 Cal.App.3d 1320, the claim for Estoppel fails as

Plaintiffs do not allege Mr. Martin misrepresented the terms oftheir coverage.Pursuant to American Home Ins. Co. v. Travelers Indemnity Co.(1981) 122 Cal.App.3d 951, the claim for Reformation fails asPlaintiffs do not allege either, that they requested insurance tocover a rental property, or that Mr. Martin intended to provideinsurance with this coverage.Additionally, Plaintiffs' claim for Breach of Contract fails, as theComplaint concedes that Plaintiff’s Insurance Policy did notprovide coverage for the specific loss suffered (58(o) of FAC).Moreover, while Plaintiffs allege Defendant breached the termsof the agreement by failing to investigate Mr. Martin'snegligence and/or the application of estoppel, there is noindication that this conduct was contractually required.Similarly, as no coverage was due, the claim for Breach of theImplied Covenant fails. Waller v. Truck Ins. Exchange, Inc.(1995) 11 Cal.4 th 1, 36.Further, the claim for Fraud fails for lack of specificity. Tarmannv. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4 th 153, 157;(73 of FAC).Finally, leave to amend is denied as: (1) Plaintiffs failed tosuccessfully amend, following a previous opportunity to clarifytheir claims; and (2) Plaintiffs failed to file Opposition to thisDemurrer or demonstrate the manner in which amendmentcould change the legal effect of the Complaint.Pursuant to Goodman v. Kennedy (1976) 18 Cal.3d 335, theburden was on Plaintiffs to show the manner in which they mayamend, and how the amendment will change the legal effect ofthe pleading. Id. at 349. As Plaintiffs failed to meet this burden,leave is denied.(2) Motion to Strike filed by Defendant State Farm: Based onthe above ruling, the Motion to Strike is rendered MOOT.(3) Demurrer to Complaint filed by DefendantMartin: SUSTAINED, in its entirety, without leave to amend.Pursuant to Lippert v. Bailey (1966) 241 Cal.App.2d 376,Plaintiff’s claims are barred against Defendant Martin, as theComplaint concedes that Martin acted at all times within thescope of his agency. Id. at 382; (3 and 12 of the FAC).Similarly, pursuant to Fitzpatrick v. Hayes (1997) 57 Cal.App.4 th916, the claim for Negligence fails, as all of the alleged breachesimply an obligation to volunteer and/or recommend additionalcoverage. Id. at 927; 22 and 24-27 of FAC.Further, the claim for Fraud fails for lack of specificity. Tarmannv. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4 th 153, 157;(73 of the FAC).Lastly, leave to amend is denied as Plaintiffs failed todemonstrate any ability to amend. Goodman v. Kennedy (1976)18 Cal.3d 335, 349.(4) Motion to Strike filed by Defendant Martin: Based on theabove ruling, the Motion to Strike is rendered MOOT.

14 13665845Steven Jenison Trustee of theSteven Jenison Living Trust datedFeb 28, 2007 v. JenisonRulingThe court DENIES Plaintiff Steven Jenison’s motion, as Trusteeof the Steven Jenison Living Trust dated Feb 28, 2007, for anorder entering an interlocutory judgment.ReasonThe motion fails for three separate and sufficient reasons.First, the interlocutory judgment that Plaintiff seeks is availableonly after trial. (Code Civ. Proc., § 872.610; see Miller & Starr,California Real Estate (3d ed. 2012) Right of Partition –Procedure in Partition Action, § 12:15; Richmond v. Dofflemyer(1980) 105 Cal.App.3d 745, 748-752.) No such trial has yetoccurred and Plaintiff cites no authority that would permit thecourt to instead resolve disputed issues by way of a motion likethe present one.Second, Plaintiff fails to proffer sufficient, admissible evidence toestablish the parties’ respective interests in the subjectproperty. Plaintiff’s only evidence on this issue is a declarationfrom his attorney that lacks foundation, and Plaintiff’s owndeclaration that he is a 33.333% owner of the property atissue. (See Karlin Dec., 4; Plaintiff Dec, 2.) No competentevidence is proffered as to the interests of the defendantsnamed in Plaintiff’s Complaint: Elizabeth Tatum (individually);Elizabeth J. Tatum and Richard W. Tatum (as Trustees of theTatum Family Trust dated May 21, 2003); and Leslie Jenison(individually).Third, Plaintiff fails to proffer sufficient, admissible evidence tojustify a partition at sale. In the absence of an agreement, aparty seeking a sale of the property rather than division of it,must show that under the circumstances a sale and division ofthe proceeds would be more equitable than division of theproperty. (Code Civ. Proc., § 872.820.) The burden of proof ison the party seeking to force a sale. (Richmond v. Dofflemyer,supra, 105 Cal.App.3d at p. 757.) No clear agreement hereexists among all putative owners of the property. Evidenceproffered by Plaintiff reflects that Leslie Jenison expresslyrejected the notion of a judicial sale of the property. (KarlinDec., Exh. F.) Plaintiff submits no other evidence on this issue,relying instead on the allegations of his unverified Complaintonly. (See Motion, p. 7 [citing Complaint, 9].)The stipulation for appointment of a referee is moot in light ofthe court’s denial of the motion for an interlocutory judgmentordering a sale by partition.

# Case Name Tentative1 10-362027Koudriavtsev v. Versailles on theLakeRulingThe Motion of Defendant/Judgment Creditor Domino RealtyManagement Company, Inc. to compel Plaintiff AllaKoudriavtseva to serve verified responses, without objection, tofirst sets of post-judgment special interrogatories and requestsfor production is DENIED. The request for sanctions is alsoDENIED.ReasonOnce again proper notice is the problem. The court points outthat the Proofs of Service attached to the discovery at issueshow that it was served on Plaintiff’s then-former counsel on04/16/13. (Dominguez Decl., 2, 3, Exs. A & B.) However,on 03/05/13, Plaintiff had filed a substitution of attorney,becoming self-represented. No subsequent substitution ofattorney was filed. Therefore, Domino failed to properly servethe discovery on Plaintiff, so Plaintiff never became obligated torespond to it.The fact of the 3/5/13 substitution of attorney was noted at the9/26/13 hearing. However, although Domino then re-filed thisMotion, Domino evidently did not re-propound the discovery atissue. The underlying defect in the Motion thus remains.6 12-583178Balboa Capital Corporation v.Grandma’s IncRulingPlaintiff’s motion to strike Defendant’s answer that theDefendant Corporation has no standing pro-persona is GRANTEDbut is stayed for 30 days from the date of this order to allowDefendant Corporation to engage legal counsel (Van Gundy v.Camelot Resorts, Inc (1982) 152 Cal. App 3 rd Supp. 29, 31.)Plaintiff to give Notice7 12-589220McFadden v. William JordonAssociates, Inc.Rulingthe court GRANTS Plaintiff’s unopposed motion to compel MickeyPayne, Azin Rahmanpanah, Tawnia Bair, and Amberly Miller (the“Deponents”) to produce all documents in their custody,possession, and control that are responsive to the requests forproduction included in the deposition notices/subpoenas servedby Plaintiff for the their depositions in this matter. Documentspreviously produced by the Deponents to Plaintiff need not beproduced again.The court also awards monetary sanctions against counsel forDefendant William Jordan Associates, Inc. in the requestedamount of $2,277.50.It is further ordered that the Deponents are to serve the abovereferenceddocuments on Plaintiff, and Defendant’s counsel is topay the monetary sanctions called for in this order, within 10days after service of notice of this order. Plaintiff is to servenotice of this order.ReasonOn counsel for the Defendant accepting representation ofDefendant’s employees there is a corresponding obligation toprovide to plaintiff’s attorney all relevant documents relating tothose employees. This motion was necessary to force defensecounsel to comply with his discovery obligations as to these

8 13-640849BRK Brands, Inc. v. Paul HastingsJanofsky & Walkerpotential witnesses. It is obvious to the court that defensecounsel has chosen despite this obligation to not and with nogood cause turn over the documents pursuant to the productionof documents notice. Moreover, this failure is without cause asevidenced from the lack of opposition to this motion tocompel. (see also Ex 1 to Supp Decl Weinman ) Consequently,monetary sanctions are the appropriate first step in remindingdefense counsel of his statutory discovery obligations toplaintiff’s attorney and to the court.RulingPlaintiffs’ Motion to Lift Stay on Proceedings is GRANTED.Plaintiff to give Notice.ReasonThe issue of arbitrability of the claim as to Mr. Stuhlbarg (whichwas the sole claim previously identified as potentially subject toarbitration under the SPA) has been determined by theArbitrator to be non-arbitrable. (Daichman Decl., Ex. A.)Although there continues to be substantial factual overlapbetween the two proceedings, there are no longer any claims inthis action that are potentially subject to arbitration under theterms of the SPA. Nor have Defendants identified any issue offact or law which is to be decided in the arbitral forum that mustalso be decided in this action, so as to create a risk ofinconsistent rulings on any pending issues. It therefore appearsappropriate to lift the stay now that the Arbitrator has decidedthe arbitrability issue.The Requests for Judicial Notice filed by Plaintiffs andDefendants are both GRANTED. To the extent that both seekjudicial notice of materials from the JAMS arbitration, neitherside has offered any authority to suggest that judicial notice isproper for those documents. However, as both have beensubmitted with supporting declarations and there is evidently nodispute as to the authenticity of either document, they havebeen considered here.9 13-641694Harry v. EstesRulingMotion for Relief from Waiver of Jury Trial GRANTED. The motionis granted pursuant to Gann v. Williams Brothers Realty, Inc.(1991) 231 Cal.App.3d 1698, as there has been no prejudice toDefendant or the Court. The trial scheduled for May 5, 2014 willproceed as a jury trial.11 13-645935OC Restaurant Group, LLCv. AyazTHE DEMURRERRulingDemurrer to the 5th c/a for fraudulent inducement isSUSTAINED with 20 days leave to amend.Reason“The elements of fraud, which give rise to the tort action fordeceit, are (a) misrepresentation (false representation,concealment, or nondisclosure); (b) knowledge of falsity (or‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d)justifiable reliance; and (e) resulting damage.” (5 Witkin,Summary of Cal.Law (9th ed. 1988) Torts, § 676, p. 778; seealso Civ.Code, § 1709. “Promissory fraud” is a subspecies of theaction for fraud and deceit. A promise to do something

necessarily implies the intention to perform; hence, where apromise is made without such intention, there is an impliedmisrepresentation of fact that may be actionable fraud. (UnionFlower Market, Ltd. v. Southern California Flower Market, Inc.(1938) 10 Cal.2d 671, 676, 76 P.2d 503. An action forpromissory fraud may lie where a defendant fraudulentlyinduces the plaintiff to enter into a contract. (Chelini v. Nieri(1948) 32 Cal.2d 480, 487. Here, Ayaz alleges that in order toinduce Ayaz to work full time on getting Tilted Kilt franchise upand running and have access to Ayaz’ connections, G. Smithpromised Ayaz (a) 49% interest in the Tilted Kilt (b) that G.Smith and Ayaz would be business partners in future Tilted Kiltopportunities (c) that Ayaz would be the Director of Operationsof the Tilted Kilt Franchise and (d) that Ayaz would receivemonthly distributions of a minimum of $10,000 per month.FAXC46c, f, g, h. However these allegations fall short as tothe pleading requirements stated above. For example,47 pleads:47. G. Smith knew the representations to Ayaz inParagraph 46 were false at the time he made thembecause G. Smith intended to and did maintain absolutecontrol over the operations and money of the business atall times, always intended to push Ayaz out of thebusiness and/or to buy Ayaz out for less than his 49%stake was worth, intended to usurp additional franchiseopportunities for himself, intended to have his daughterKelly Smith work as the Director of Operations, neverintended to make any monthly distributions to Ayaz andnever intended to honor the 49% stake agreed-upon withAyaz. Indeed, Ayaz is informed and believes and on thatbasis alleges that G. Smith had previously engaged in asimilar plan to oust a business partner who he hadbrought in to provide services.What is missing are the specific facts supporting the contentionsthat G. Smith had no intention of performing at the time thepromise was made. What is necessary as opposed to what hasbeen pled which is changing the position over the course of therelationship. No facts are offered to support a specific lack ofintention.Motion to StrikeAt this point evidenced from the courts below ruling on theMotion to Strike this case is a breach of contract:RulingThe Court rules on the motion to strike various portions of theFAXC as follows:Motion is DENIED as to: Page 3, lines 10-11: "or buy him out on the cheap” Subparagraph (a) of 15 in its entirety Portions of Subparagraph (b) of 15 Subparagraph (c) of 15 in its entirety Subparagraph (d) of 15 in its entirety Page 9: Line 10Motion is GRANTED as to:

Subparagraph (e) of 15 in its entirety. These facts areirrelevant. Ayaz admits that none of these facts form thebasis of his claims. Therefore, other than to show he wasbeing intimidated in a roundabout way, there is no needfor these facts.Page 7, lines 8-12: The language in the Notice of motiondoes not match up to the language in the FAXC.Ayaz’ prayer for relief for punitive damages, including38 and 52 in their entirety. There are insufficient factsplead, at this time to support punitive damages inconnection w/ the Breach of Fiduciary Duty or Fraudcauses of action.20 days leave to amend. MP to give notice.13 13-651213Frye v WinkleRulingThe Court having already granting reconsideration of its 9-18-2013 ruling, now rules as follows:Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the3 rd cause of action for Wrongful Transfer of Property byConcealment and Undue Influence. Probate Code§850 does notallow a remedy in a civil action.The Demurrer as to the 13 th , 15 th , and 17 th causes of action isOTHERWISE SUSTAINED WITH 20 DAYS LEAVE TO AMEND.ReasonAs to the 13 th cause of action, Plaintiffs should attempt to pleadcausation. As to the 15 th c/a, facts should be pled either thatLinda Frye is the administrator of the estate or that allbeneficiaries of the estate have verified the complaint. Plaintiffsshould also plead a legal description of the property as requiredby CCP§761.020(a). Finally, as to the 17 th cause of action, tothe extent this c/a relies on the absconding of Earl’s property,demurrer is sustained with leave to amend as fraud andconversion have not been adequately pled.14 13-656024Force v. FrancisRulingThe court will grant the Motion on condition that counsel appearand confirm his client’s current address.

# Case Name Tentative1 10-362027Koudriavtsev v. Versailles on theLakeRulingThe Motion of Defendant/Judgment Creditor Domino RealtyManagement Company, Inc. to compel Plaintiff AllaKoudriavtseva to serve verified responses, without objection, tofirst sets of post-judgment special interrogatories and requestsfor production is DENIED. The request for sanctions is alsoDENIED.ReasonOnce again proper notice is the problem. The court points outthat the Proofs of Service attached to the discovery at issueshow that it was served on Plaintiff’s then-former counsel on04/16/13. (Dominguez Decl., 2, 3, Exs. A & B.) However,on 03/05/13, Plaintiff had filed a substitution of attorney,becoming self-represented. No subsequent substitution ofattorney was filed. Therefore, Domino failed to properly servethe discovery on Plaintiff, so Plaintiff never became obligated torespond to it.The fact of the 3/5/13 substitution of attorney was noted at the9/26/13 hearing. However, although Domino then re-filed thisMotion, Domino evidently did not re-propound the discovery atissue. The underlying defect in the Motion thus remains.6 12-583178Balboa Capital Corporation v.Grandma’s IncRulingPlaintiff’s motion to strike Defendant’s answer that theDefendant Corporation has no standing pro-persona is GRANTEDbut is stayed for 30 days from the date of this order to allowDefendant Corporation to engage legal counsel (Van Gundy v.Camelot Resorts, Inc (1982) 152 Cal. App 3 rd Supp. 29, 31.)Plaintiff to give Notice7 12-589220McFadden v. William JordonAssociates, Inc.Rulingthe court GRANTS Plaintiff’s unopposed motion to compel MickeyPayne, Azin Rahmanpanah, Tawnia Bair, and Amberly Miller (the“Deponents”) to produce all documents in their custody,possession, and control that are responsive to the requests forproduction included in the deposition notices/subpoenas servedby Plaintiff for the their depositions in this matter. Documentspreviously produced by the Deponents to Plaintiff need not beproduced again.The court also awards monetary sanctions against counsel forDefendant William Jordan Associates, Inc. in the requestedamount of $2,277.50.It is further ordered that the Deponents are to serve the abovereferenceddocuments on Plaintiff, and Defendant’s counsel is topay the monetary sanctions called for in this order, within 10days after service of notice of this order. Plaintiff is to servenotice of this order.ReasonOn counsel for the Defendant accepting representation ofDefendant’s employees there is a corresponding obligation toprovide to plaintiff’s attorney all relevant documents relating tothose employees. This motion was necessary to force defensecounsel to comply with his discovery obligations as to these

8 13-640849BRK Brands, Inc. v. Paul HastingsJanofsky & Walkerpotential witnesses. It is obvious to the court that defensecounsel has chosen despite this obligation to not and with nogood cause turn over the documents pursuant to the productionof documents notice. Moreover, this failure is without cause asevidenced from the lack of opposition to this motion tocompel. (see also Ex 1 to Supp Decl Weinman ) Consequently,monetary sanctions are the appropriate first step in remindingdefense counsel of his statutory discovery obligations toplaintiff’s attorney and to the court.RulingPlaintiffs’ Motion to Lift Stay on Proceedings is GRANTED.Plaintiff to give Notice.ReasonThe issue of arbitrability of the claim as to Mr. Stuhlbarg (whichwas the sole claim previously identified as potentially subject toarbitration under the SPA) has been determined by theArbitrator to be non-arbitrable. (Daichman Decl., Ex. A.)Although there continues to be substantial factual overlapbetween the two proceedings, there are no longer any claims inthis action that are potentially subject to arbitration under theterms of the SPA. Nor have Defendants identified any issue offact or law which is to be decided in the arbitral forum that mustalso be decided in this action, so as to create a risk ofinconsistent rulings on any pending issues. It therefore appearsappropriate to lift the stay now that the Arbitrator has decidedthe arbitrability issue.The Requests for Judicial Notice filed by Plaintiffs andDefendants are both GRANTED. To the extent that both seekjudicial notice of materials from the JAMS arbitration, neitherside has offered any authority to suggest that judicial notice isproper for those documents. However, as both have beensubmitted with supporting declarations and there is evidently nodispute as to the authenticity of either document, they havebeen considered here.9 13-641694Harry v. EstesRulingMotion for Relief from Waiver of Jury Trial GRANTED. The motionis granted pursuant to Gann v. Williams Brothers Realty, Inc.(1991) 231 Cal.App.3d 1698, as there has been no prejudice toDefendant or the Court. The trial scheduled for May 5, 2014 willproceed as a jury trial.11 13-645935OC Restaurant Group, LLCv. AyazTHE DEMURRERRulingDemurrer to the 5th c/a for fraudulent inducement isSUSTAINED with 20 days leave to amend.Reason“The elements of fraud, which give rise to the tort action fordeceit, are (a) misrepresentation (false representation,concealment, or nondisclosure); (b) knowledge of falsity (or‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d)justifiable reliance; and (e) resulting damage.” (5 Witkin,Summary of Cal.Law (9th ed. 1988) Torts, § 676, p. 778; seealso Civ.Code, § 1709. “Promissory fraud” is a subspecies of theaction for fraud and deceit. A promise to do something

necessarily implies the intention to perform; hence, where apromise is made without such intention, there is an impliedmisrepresentation of fact that may be actionable fraud. (UnionFlower Market, Ltd. v. Southern California Flower Market, Inc.(1938) 10 Cal.2d 671, 676, 76 P.2d 503. An action forpromissory fraud may lie where a defendant fraudulentlyinduces the plaintiff to enter into a contract. (Chelini v. Nieri(1948) 32 Cal.2d 480, 487. Here, Ayaz alleges that in order toinduce Ayaz to work full time on getting Tilted Kilt franchise upand running and have access to Ayaz’ connections, G. Smithpromised Ayaz (a) 49% interest in the Tilted Kilt (b) that G.Smith and Ayaz would be business partners in future Tilted Kiltopportunities (c) that Ayaz would be the Director of Operationsof the Tilted Kilt Franchise and (d) that Ayaz would receivemonthly distributions of a minimum of $10,000 per month.FAXC46c, f, g, h. However these allegations fall short as tothe pleading requirements stated above. For example,47 pleads:47. G. Smith knew the representations to Ayaz inParagraph 46 were false at the time he made thembecause G. Smith intended to and did maintain absolutecontrol over the operations and money of the business atall times, always intended to push Ayaz out of thebusiness and/or to buy Ayaz out for less than his 49%stake was worth, intended to usurp additional franchiseopportunities for himself, intended to have his daughterKelly Smith work as the Director of Operations, neverintended to make any monthly distributions to Ayaz andnever intended to honor the 49% stake agreed-upon withAyaz. Indeed, Ayaz is informed and believes and on thatbasis alleges that G. Smith had previously engaged in asimilar plan to oust a business partner who he hadbrought in to provide services.What is missing are the specific facts supporting the contentionsthat G. Smith had no intention of performing at the time thepromise was made. What is necessary as opposed to what hasbeen pled which is changing the position over the course of therelationship. No facts are offered to support a specific lack ofintention.Motion to StrikeAt this point evidenced from the courts below ruling on theMotion to Strike this case is a breach of contract:RulingThe Court rules on the motion to strike various portions of theFAXC as follows:Motion is DENIED as to: Page 3, lines 10-11: "or buy him out on the cheap” Subparagraph (a) of 15 in its entirety Portions of Subparagraph (b) of 15 Subparagraph (c) of 15 in its entirety Subparagraph (d) of 15 in its entirety Page 9: Line 10Motion is GRANTED as to:

Subparagraph (e) of 15 in its entirety. These facts areirrelevant. Ayaz admits that none of these facts form thebasis of his claims. Therefore, other than to show he wasbeing intimidated in a roundabout way, there is no needfor these facts.Page 7, lines 8-12: The language in the Notice of motiondoes not match up to the language in the FAXC.Ayaz’ prayer for relief for punitive damages, including38 and 52 in their entirety. There are insufficient factsplead, at this time to support punitive damages inconnection w/ the Breach of Fiduciary Duty or Fraudcauses of action.20 days leave to amend. MP to give notice.13 13-651213Frye v WinkleRulingThe Court having already granting reconsideration of its 9-18-2013 ruling, now rules as follows:Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the3 rd cause of action for Wrongful Transfer of Property byConcealment and Undue Influence. Probate Code§850 does notallow a remedy in a civil action.The Demurrer as to the 13 th , 15 th , and 17 th causes of action isOTHERWISE SUSTAINED WITH 20 DAYS LEAVE TO AMEND.ReasonAs to the 13 th cause of action, Plaintiffs should attempt to pleadcausation. As to the 15 th c/a, facts should be pled either thatLinda Frye is the administrator of the estate or that allbeneficiaries of the estate have verified the complaint. Plaintiffsshould also plead a legal description of the property as requiredby CCP§761.020(a). Finally, as to the 17 th cause of action, tothe extent this c/a relies on the absconding of Earl’s property,demurrer is sustained with leave to amend as fraud andconversion have not been adequately pled.14 13-656024Force v. FrancisRulingThe court will grant the Motion on condition that counsel appearand confirm his client’s current address.

HON. NANCY WEIBEN STOCKSuperior Court of Orange County, CaliforniaBorn: 1951, Oakland, CaliforniaUndergraduate: University of California, Davis, 1973Law School: Univ. of California, Davis, 1976Admitted to Practice:1976Appointed to the Bench:1990Appointed by: George Deukmejian, Jr, RepublicanCareer as an AttorneyAssociate, Friedemann & Menke, Orange County, California, 1976-78Chief Assistant, U.S. Attorney, Department of Justice,Orange County, Santa Ana Branch, & Assistant, U.S. District Attorney, U.S.Department of Justice, Los Angeles, California, 1978-87 & Chief of Major CrimesDivision, (headed the Arson Task Force)First Assistant to the Chief of Criminal Division, U.S. Attorney’s Office,U.S. Department of Justice, Los Angeles, California, 1988-90Relevant Organizational AffiliationsBoard of Directors, Federal Bar Association, Orange County Chapter, 1989-California Judges Association, 1990Judicial Council Advisory Committee on Family & Juvenile Law, 1993Advisory member of the 28-member Judicial Council of CaliforniaChair, Trial Court Presiding Judges Advisory CommitteeNational Association of Women Judges, (life member)Constitutional Rights Foundation, Orange County, CaliforniaOrange County Women Lawyers, CaliforniaOrange County Trial Lawyers of CaliforniaAmerican Board of Trial Advocates, (ABOTA)Consumer Lawyers of CaliforniaOrange County Bar Association, California, 2009

Other InformationNotable Case:Presiding judge over the custody hearing in 1996 regarding the two minor children ofOrenthal J. (O.J.) Simpson, and withstood a recall effort over her ruling to award custodyto the father. The ordered was reversed and remanded by the 4 th District Court ofAppeals. Subsequently, the children were ordered to remain in Mr.Simpson’s custody.Admissions:U.S District Court, Central District of California, 1978U.S. Court of Appeals 9 th Circuit, 1979Political/Religious Affiliation:Republican/Episcopalian

TENTATIVE RULINGSDEPT CXC-105Judge Nancy Wieben StockDate: February 19-22, 2013Law & MotionEx PartesTHIS COURT FOLLOWS CRC 3.1308 (a) (2) FOR TENTATIVE RULINGS EXCEPT WHEREEXPRESSLY STATED.Case Name TentativeFebruary22, 20131:30P.M.1. BARKER V.SHAPELLINDUSTRIES INC.2. INVESTORSEQUITY LIFEHOLDINGCOMPANY V.SCHMIDT3. OKADA V. BANKOF AMERICA N.A.4. PALM BEACHPARKASSOCIATION V.EICHERLY5. QUILES V. KOJI’SJAPANINCORPORATED6. VENTUREPHARMALLC V. CONNELLY(1) Defendant Shapell Industries, Inc.’s Motion to ExcludeEvidence of DamagesOff Calendar pursuant to moving party’s request.Defendant Shapell Industries, Inc. to give notice.(1) Plaintiffs’ Motion to Vacate StayOff Calendar pursuant to minute order dated February 4,2013. Defendant Schmidt to give notice.(1) Defendant Bank of America, N.A.’s Demurrer to 3 rdAmended Complaint(2) Hearing re: Dismissal(3) Status Conference(1) Defendants Steve Eicherly and Sue Eicherly’s Motionfor Attorney FeesOff Calendar pursuant to moving parties’ requests.Defendants Steve and Sue Eicherly to give notice.(1) Defendant Arthur Parent, Jr.’s Demurrer to 3 rdAmended Complaint(2) Plaintiffs’ Motion to Certify Class(1) Plaintiffs’ Motion to Enforce Settlement(2) Status Conference10:00A.M.7. TERRAZAS V.MEMORIALHEALTHSERVICES1:30P.M.(1) Plaintiffs’ Motion to Certify Class(2) Ex Parte8. HARDWICK V.COUNTY OFORANGE(1) Plaintiff Kendall Hardwick’s Motion for SummaryAdjudicationContinued to April 12, 2013 at 9:00 A.M. pursuant tomoving party’s request. Plaintiff to give notice.

9. PEOPLE V.STEVEN MARKTAYLOR(2) Status ConferenceContinued to April 12, 2013 at 9:00 A.M. pursuant tostipulation of counsel.(1) Hearing on Petition for Recall of Sentence (Prop. 36)Probable Continence (to 3/8/13 10:30 A.M.) to allow forsubmission of supplemental documents by the Parties.

TENTATIVE RULINGSDEPT CXC-105Judge Nancy Wieben StockDate: February 25-28, 2013Law & MotionEx PartesTHIS COURT FOLLOWS CRC 3.1308 (a) (2) FOR TENTATIVE RULINGS EXCEPT WHEREEXPRESSLY STATED.Case Name TentativeFebruary25, 20131:30P.M.February26, 20131:30 P.M.ORANGECOUNTY WATERDISTRICT V.SABICATHERTON V.SHEA HOMESDefendant RadioShack’s Ex Parte Application for Leave toHave joinder deemed Filed.No Hearing. The matter is submitted.See Ruling bellow.Defendant Allen J. Trust’s Ex Parte Application for Relieffrom CMO or Order Setting Hearing for MSA on Date Inside30 Days of Trial.No Hearing. The matter is submitted.The Applications are Granted. The Campbell Trust isexcused from compliance with the Order AuthorizingElectronic Service with regard to its service on January 4,2013 of its Motion for Summary Judgment and such serviceis deemed valid and timely under CCP Section 437c. As toRadioShack, the 2-day extension prescribed by CCP Section1010.6(4) is shortened to one (1) day and the Joinder filedby RadioShack, joining in the Motion for Summary Judgmentby UCI, is deemed timely.Both The Campbell Trust and RadioShack have givenreasonable explanations for their “late” filings and bothshould be given the relief sought. The District is notprejudiced and has plenty of time to prepare its opposition.The Court will sign and file the Ex Parte Orders with theClerk. Moving Party to give Notice as to its respectiveApplication.Plaintiff’s (Unopposed) Ex Parte Application for TrialContinuance, Alternatively Order Shortening Time forNoticed Motion.No Hearing Necessary. On an ex parte basis the Court willvacate the current trial date of March 18, 2013, and set aTrial setting Conference to be held March 6, 2013, 8:30 A.M.Counsel to meet and confer as to case status. Trialpreparation, likelihood of settlement, settlement activities todate and planned in the future and jointly proposed new trialdate. A joint statement regarding these factors shall besubmitted by Shea Homes by 12:00 P.M. Monday March 4,2013. Parties are relived of Trial Readiness Conference Order

tasks and statutory milestones, if any, pending the hearing.February27, 20138:30 A.M.(partial)LOPEZ V. WAREDISPOSAL, INC.Final Fairness Hearing.The Court has considered the supplemental documents filedafter the original hearings date set in this matter. The Courtfinds that the Settlement is fair , adequate and reasonable,albeit not a superb settlement. It resolved the essentialclaims and allowed Class Members to receive an average of$1700 for alleged workplace violations. There were noobjectors or opt-out members of the Class.As to Representative Plaintiff enhancements, the Courtconcludes that the requested $5,000 per plaintiff amount isnot supported in the evidence provided. It would greatlyexceed the amounts awarded to the Class Members and thiscondition raises the objective specter of collusion, althoughthe Court is not make any finding of such. EachRepresentative Plaintiff is awarded the sum of $1000.00.Attorney’s Fees are awarded in the total amount of$100,000, to be divided one-third to each of the three setsof Class Counsel. Although the combined lodestar is morelike $196,000, counsel have requested $133,333.33. TheCourt can find no utility in awarding duplicate fees merelybecause there were three separate class counsel on thiscase. The case complexity did not warrant same. Further,the number of se4parate law firms required duplicative tasksand thus, billing, which did not always benefit the class, butrather, kept all the various law firms up to speed. Finally, asa percentage of common fund recovered for the class, theCourt has not added the proposed $133,333.33 into thecommon fund, since that is not what was recovered by theClass Members. They will share approximately $145,000.Attorney’s fees at 90% of class recovery is not warranted inthis case.Attorney Costs are award to the Hawkins Law Firm in theamount of $7,235.23 (Hawkins Decl. Exh. “B”). AttorneyCosts are awarded to the Garay law firm in the amount of$4820.79. (Decl. of Garay filed, 2-26-13). Attorney costs areawarded to the Mahoney law Group, APC in the amount of$6198.83. (Decl. of Kim filed, 2-16-13).CAA Costs are awarded to CPT Group, Inc. in the amount of$20,000.The Court will sign and file the (proposed) Order(s),conformed to its final rulings, at time of hearing. Note, theOrder references an “accompanying Judgment,” but there isnot on file.A Final Accounting Hearing is set for ___________, 2014,8:30 A.M. Defendant to give Notice.

TENTATIVE RULINGSDEPT CXC-105Judge Nancy Wieben StockDate: May 10, 2013Law & MotionTHIS COURT FOLLOWS CRC 3.1308 (a) (2) FOR TENTATIVE RULINGS EXCEPT WHERE EXPRESSLYSTATED.May 10,20139:00 A.M.Case Name1. DOE V. DSMNUTRITIONALPRODUCTS INC.Tentative(1) Defendants DSM Nutritional Products LLC, etc.’s Demurrer to 2 ndAmended ComplaintThe Demurrer is sustained with 20 days leave to amend.The Demurrer is sustained on the grounds that the entire SecondAmended Complaint (“SAC”) is uncertain and ambiguous. The SACwas filed in apparent response to the prior denial of the Motion forClass Certification. A Demurrer should be sustained as to class claimsif the pleadings indicate that the elements of a class action are notpresent. Clausing v. San Francisco Unified School Dist. (1990) 221C.A.3d 1224, 1234.Plaintiff Not a member of Class Two. The Demurrer is sustained on thegrounds that Plaintiff is not alleged to be a proper class representativefor Class Two since she has not alleged facts to allow her standing toassert a cause of action on her own. This is because Plaintiff is allegedto have purchased the product in May of 2011 and there is noallegation that she purchased the product in June 2011 orlater. Because of this she is not alleged to be a member of sub-classTwo, she has no claim to assert to underlie the claims of Class Two,and, as she has no claim, her claim cannot be typical. Therefore, sheis not alleged to be an adequate representative.Uncertainty Prevails Whether it is Class One or Class Two. Plaintiffalleges two different classes in paragraph 15, purportedly to address achange in the packaging of the product in question. Yet she fails tomention the classes separately anywhere else in the pleading, thusleaving the Defendants and the Court to guess as to just what thedifferences in the sub-classes are and how they both have claimsagainst Defendants. Each element of class certification and eachelement of each cause of action must be alleged separately as to eachclass. No matter which Class is alleged to have encountered certainmarketing, packaging or media messages about the product, the SAClacks any specific as to what types of messages and their contentwere encountered. Without further delineation it is impossible todetermine that common issues predominate, that class membership(by virtue of exposure to one, two, three or four different marketingmessages), is ascertainable and that class action is a superior vehiclefor this lawsuit. The SAC at various places suggests that the messagesare on the packaging (SAC 8), associated with the point of purchase(SAC 8), or otherwise generally in the “media.” (SAC 45) Some ofthe false representations in the SAC are not tied to any of these. (SAC’s 9, 12, 13, 14) To confuse things further, some of the misleading

statements are characterized generally as “advertisements,” withoutany tie-in to labeling, packaging, outside media, etc. (SAC ’s 18 (a)-(d), 24)(2) Defendants DSM Nutritional Products LLC, etc.’s Motion to Strike2 nd Amended ComplaintThe Motion to Strike is Granted without leave to amend on Items 1through 4 in the Notice, on all grounds asserted. Item No. 1. Theallegations in Paragraph 11 and Footnote 4 have no place in acomplaint. No matter what their purpose, the allegations do notpertain to any element necessary to allege a cause of action or aclass. By definition, they pertain to “another one of (Defendant’s)products.” (SAC 11). They are therefore irrelevant to thepleading. Further, they are evidentiary facts; only operative factsbelong in a complaint. Item No.’s 2-4 (Sub-Class 2). As noted withregard to the Demurrer, Plaintiff cannot assert a claim on behalf ofClass Two. Plaintiff cites Aguiar v. Cintas Corp. (2006) 144 C.A.4 th121, for the notion that a suitable class representative can beamended into the case. However, as Aguiar points out, this is doneafter the typical representative plaintiff has been identified. Id. at137.3. ORANGE COUNTYWATER DISTRICTV. SABICINNOVATIVEPLASTICS US LLC(1) Defendant Campbell Trust’s Motion for ClarificationThe Motion is Denied in all its aspects. First of all, there is no suchthing as a motion for clarification or correction. Campbell’s assertionthat such a motion is proper is devoid of the reference to any legalauthority supporting such an assertion. The Bernstein case involveda motion under CCP Section 437c, under which a motion may bemade to require that a trial court comply with the requirements ofthat Section in specifying material facts upon which a triable issue isfound. The Bernstein Court also noted that the Court may alwaysvoluntarily clarify or correct its orders on its own motion. Neither ofthose scenarios exists here. Likewise, the Sommer case is of noassistance, as it did not involve a motion for clarification or a motionfor reconsideration. And, more importantly, it involved new law afterthe decision was made by the trial court.There is no legal authority by which a party can require a Court, onmotion of a party, to cull through its prior ruling and correct every“mistake” that a party may believe the Court made in the wording onits ruling, in the Court’s recitation of relevant facts, in the Court’sinterpretation of the law, or to clarify an evidentiary ruling or adifferent ruling. Any such request is nothing more than a request tore-argue the Motion and Ruling; something that the Court has nojurisdiction to entertain. Judicial efficiency and legal finality wouldcome to a halt if such motions were allowed.Secondly, there is no proper basis for reconsideration here. Campbellfirst seeks reconsideration based on this Court’s ruling on the Motionfor Summary Adjudication of the District’s Nuisance Cause of Action, aseparate motion. That is not a proper basis for reconsideration. TheCourts’ separate ruling on the Nuisance Cause of Action regardingproperty rights is irrelevant to the Court’s ruling here, as that was not

a basis for Campbell’s Motion for Summary Adjudication here. WhatCampbell apparently seeks to accomplish is to change the motiontargeted by this particular motion, into a completely different motionbased on different grounds. That is not a motion for reconsideration;that is a completely new motion.Further, what Campbell fails to realize is that the Courts’ ruling on theprior Nuisance cause of action is based on facts and law that couldhave been brought to the attention of the Court in Campbell’s Motionfor Summary Adjudication; Campbell could have argued that anegligence cause of action was precluded as the District held nointerest in property; it didn’t and it is precluded from doing so onreconsideration.Finally, to the extent that Campbell seeks reconsideration on the basisof arguments and evidence actually presented, as stated in Crotty v.Trader (1996) 50 Cal. App. 4th 765, 770 “Code of Civil Proceduresection 1008 gives the court no authority when deciding whether togrant a motion to reconsider to “reevaluate” or “reanalyze” facts andauthority already presented in the earlier motion.”

TENTATIVE RULINGSDEPT CXC-105Judge Nancy Wieben StockDate: May 17, 2013Law & MotionEx PartesTHIS COURT FOLLOWS CRC 3.1308 (a) (2) FOR TENTATIVE RULINGS EXCEPT WHERE EXPRESSLYSTATED.May 17,20139:00 A.M.Case Name1. JAIMES V. ABLEBUILDINGMAINTENANCETentative(1) Defendant Able Acquisition Corp’s Motion to Compel ProductionNote to Counsel: In light of the below-referenced ruling, counsel mayjointly contact the Clerk and take this hearing off calendar, in lieu ofthe continued hearing date.On the Court’s motion, The Motions are continued to June 7, 2013,9:00 A.M. for the sole purpose of allowing Plaintiff the time to file andserve evidence to support her assertion of the attorney client privilegeand work product doctrine. Plaintiff’s Supplemental Opposition shall befiled/served May 24, 2013; Defendants’ Supplemental Reply, May 31,2013. There will be Response to the Supplemental replypermitted. The Motions are granted in all other respects, includingsanctions against Plaintiff’s counsel in the amount of $2,000. AnOrder will be filed by the Court at time of hearing. Defendants to givenotice.The meet and confer process was sufficient. If Plaintiff and hercounsel cannot be convinced in five months, and four attempts atmeeting the requirements of the Discovery Act, Defendants and theircounsel have a right to come to court to seek relief.If Plaintiff asserts an inability to reply to a particular Request, suchassertion must state whether the particular item or document “neverexisted, has been destroyed, has been lost, misplaced, or has neverbeen, or is no longer, in the possession, custody or control of theresponding” and the documents must be identified ( CCP Section2031.230). Plaintiff has not done so.With regard to the assertion of attorney client privilege and workproduct doctrine, it is the burden of the Plaintiff to prove theexistence of such privilege and doctrine. Plaintiff and her counselhave failed to set forth any evidence in support of them and thereforehave not met their burden. The Court, however, is reluctant to find awaiver if a true privilege or work product exists.Further sanctions will be awarded at the further hearing if Plaintiff andher counsel fail to meet their burden to prove the existence of theattorney client privilege and work product doctrine.(2) Defendant Crown Building Maintenance’s Motion to CompelProduction

See ruling above.2. GUILLERMOMONROY V.EXEMPLISCORPORATION(1) Plaintiff’s (Unopposed) Motion for Leave to File a Second AmendedComplaint.No Hearing.Please Take Notice. On the Court’s motion, the unopposed motion forleave to file an amended complaint is advanced to this dateand Granted. Plaintiff shall serve the Second Amended Complaintforthwith. No extension within which to file a responsive pleading shallbe granted without written leave of court. The docket reflects that noresponsive pleading has been filed and motions to amend are to beliberally granted. Here the amendment serves a very good purpose inattempting to more clearly delineate the proposed classdescription(s). The Initial case Management set for May 17, 2013 iscontinued to July 10, 2013, 8:30 A.M.Plaintiff to file/serve the (proposed) Orders, within five (5) days andgive notice.(2) Initial Case Management Conference.See, Order above.3. ORANGE COUNTYWATER DISTRICTV. SABICINNOVATIVEPLASTICS US LLC(1) Defendant Marotta Controls, Inc.’s Motion for Reconsideration ofOrder Denying Summary Adjudication on Fifth (Nuisance) and Sixth(Declaratory Relief) Causes of Action.The Motion for Reconsideration is Denied. Marotta Controls to submita (proposed) Order and give Notice.The Court deems the motion timely. While the District argues that anotice of entry need by served prior to a motion for reconsiderationbeing made regarding the underlying order, the District has cited tono legal authority for that argument and the Court is unaware of anysuch requirement. The existence of a written order, on the otherhand might be a necessary predicate in some circumstances if thecontent of the Court’s order is uncertain. In the Court’s final ruling,given at time of the April 9, 2013 hearing the Court indicated that asigned order would be filed that date. Typically, this means the Courtwill either sign the Minute Order or a modified version of a (proposed)order previously filed by any party to the motion. When the Courtchoses the latter option and a fully reasoned ruling is in the minutes,along with evidentiary rulings, it is the Court’s practice to attach theminutes to the written order. That did not occur in this case, but hadit occurred, the ruling would not have differed any aspect from theMinutes. Accordingly, the Court has signed and filed concurrentlyherewith a written order. Marotta Controls to give Notice.There is no basis for reconsideration here. Marotta argues that thenew circumstance supporting reconsideration is the Court’s ruling onSanmina’s Motion which Marotta contends was based on the sametestimony. Marotta is incorrect. The rulings on the two Motions forSummary Adjudication on the Cause of Action for Nuisance haddifferent bases, and were not equally adjudicated on the sameevidence. While Sanmina and Marotta were sued for contamination ofthe same Site, their positions in relation to the Site are not thesame. As noted by the District, the evidence as to Marotta showedthat it was the only entity to have used PCE at the Site, the samecannot be said for Sanmina. Since the rulings were indeed not made

on the same bases, there is no right to reconsideration.Ultimately, what Marotta is attempting to accomplish by this motion isto reargue its underlying motion, in all its aspects. That is not acorrect purpose of a motion for reconsideration. A motion forreconsideration considers only that new, different or changed law, factor circumstance in determining whether the result in the underlyingmotion would be different. Such a motion is not a carte blanchereopening of the prior motion even if there is a new, different orchanged fact, law or circumstance.(2) Plaintiff’s Motion for New Trial on Second Cause of Action againstDefendant Marotta Controls, Inc.The Motion is Ordered Off Calendar as premature. In thealternative, the Motion is Denied on the merits. The Court will fileand sign the Oder at time of hearing. OCWD to give Notice.Improperly Set Motion for New Trial. The Notice of Intention to Movefor a New Trial filed by the District as to the Order Granting MarottaControl’s Motion for Summary Adjudication (HSAA- Second COA) waspremature and void. The matter should not have been set forhearing. A new trial may only be sought when a decision has beenmade in the action. A decision is only made in an action upon therendition of a judgment (See, Collins v. Sutter Memorial Hosp. (2011)196 C.A.4th 1, 12, holding that “rendition of judgment occurs whenthe written order granting summary judgment is entered (citationomitted).”). Here, no judgment has been rendered against Marotta asa result of the ruling on the Motion for Summary Adjudication of theSecond Cause of Action. Only summary adjudication was granted,not summary judgment, and no judgment has or will be entered as aresult of the ruling on only the Second Cause of Action.Motion Would Be Denied. The Motion for New Trial would have beendenied in any event. As noted by Marotta, the District’s Motion didnot address the specific parameters of the Court’s ruling on Marotta’sMotion for Summary Adjudication of the HSAA Cause ofAction; namely the retroactivity of the statute and the requirementsthat the acts of Marotta would have violated state or federal laws orstatute. (See, Order at decl. of Massey Exhibit “2”). Addressing theissue in the Reply is simply insufficient. There the District takes thesame approach that failed in the first motion, in simply listing alaundry list of possible state and federal statutes that might havebeen violated if Marotta had engaged in certain acts, without anyexpert testimony to tie the concepts together. This approach waswoefully deficient the first time around (See, Marotta Reply, SectionI.(b)(2)) and fails to get the job done this time.(3) Status Conference4. VENTUREPHARMALLC V. CONNELLY(1) Defendant Scott Connelly’s Motion to Lift Stay and Set for TrialThe Motion is Denied. Counsel for the PDB Parties shall file and servea proposed Judgment by May 21, 2013, based on the granting of theMotion to Enforce the Settlement Agreement on March 27, 2013. Anyobjection to that proposed judgment shall be filed and served by May23, 2013. The Court will sign the Minute Order in the absence of a(proposed) order having been submitted with the moving papers. TheCourt declines to award attorney’s fees at this time, reserving theissue on prevailing party attorney’s fees pursuant to 32(b) of theSettlement Agreement. The reservation includes fees for the bringing

on the enforcement motion, as well as the defending of the currentunsuccessful motion.This action has been settled. Under CCP Section 664.6, this Courtfound that a binding and enforceable written settlement agreementexisted between the Parties. Although no proposed judgment wassubmitted to the Court at the time it granted Plaintiff’s prior motion onMarch 27, 2013, it is appropriate that the Court sign a judgmentunder the express provisions of CCP section 664.6The Settlement Agreement provides that the Court retains jurisdictionto enforce the terms of the Settlement. As this point in time, then,the Court is neither going to lift the stay nor set the matter for trialunless and until the terms of the Settlement are carried out. Theterms of the Settlement do not allow for a party to seek to lift the stayand seek a trial date if that party believes the Settlement Agreementhas been breached by the other side or a contingency is not met. ThisMotion is therefore improper in that regard.Please Take Notice. The Review Hearing previously set for May 27,2013 is Vacated. There are no future court dates set at this time.Plaintiff to give Notice.5. POOLE V.RELEVANT ADSINC.(1) Defendant Relevant Ads, Inc.’s Motion to Compel ArbitrationNo Tentative Ruling.(2) Status Conference

TENTATIVE RULINGSDEPT CXC-105Judge Nancy Wieben StockDate: Week of May 31, 2013Law & MotionTHIS COURT FOLLOWS CRC 3.1308 (a) (2) FOR TENTATIVE RULINGS EXCEPT WHERE EXPRESSLYSTATED.Case NameTentativeMay 31,20139:00 A.M.2. DOHR V. LINTZ (1) Cross-Defendant Amberhill Development Ltd.’s Motion for AttorneyFeesThe Motion is Granted. The Court orders that contractual Attorney’sFees be paid in the amount of $4125 for 15 hours of billable work atthe agreed-upon hourly rate of $275 per hour. While agreeing that thebilling rate is imminently reasonable, the Court must order fees onlyfor the number of hours that are allocated to the discrete issue ofreformation of the note. The billing statements provided in support ofthe Motion indicate that when it came to supporting demurrers,multiple topics were researched, e.g. fraud, declaratory relief, inaddition to reformation. The Court finds the 3.2 hours of research andpreparation spent on December 12, 2012 to be reasonable given thesubject matter and awards additional time for the multiple rounds ofdemurrers and an apportionment of time in court, etc.Costs shall be awarded in accordance with the procedures associatedwith the serving of the Memorandum of Costs.3. ORANGE COUNTYWATER DISTRICTV. SABICINNOVATIVEPLASTICS US LLCNote to Counsel. The Court’s Ruling on Certain Defendants’ Follow-OnMotion for Summary Adjudication Third Cause of Action (Negligence)Statute of Limitations and Evidentiary Rulings will be filed andavailable at or before the hearing on these matters.(1) Defendants Soco West Inc., etc.’s Joint Motion for Judgment onthe PleadingsThe Joinder is Granted. The Motion is Denied. The Court grants theJoint Defendants’ Request for Judicial Notice (RJN), although RequestNo. 3 is probably not relevant. The Court grants Joint Defendant’srequest to strike the evidence filed by Plaintiff. As to Plaintiff’sRequest for Judicial Notice, Items 1-9 are not relevant to the inquiryat hand, which is an evaluation of the Second Amended Complaint.Defendants have failed to meet their burden of proof to show that nocause of action can be stated based on HSAA Section 25363. In itsprevious rulings on the HSAA Section 25363 Causes of Action, theCourt has found, and once more finds here, that the District mustplead and prove one of three things in order to have standing and theability to pursue a claim under that Section, namely:1) that theDistrict has an ownership interest in real property or in thegroundwater sufficient to support a claim for indemnity orcontribution; or 2) that the District was ordered to remediate theproperty, or 3) that the District was potentially liable for such

emediation.Here, the Defendants have address Nos. 2 and 3 but fail to addressNo. 1 and thus fail in their burden. Defendants are correct that theDistrict has failed to plead facts showing that it was ordered toremediate property or that it is potentially liable to a third party forremediation. In fact, the District concedes this, as it argues that it isnot required to plead and prove either of those two things to pursue aclaim.Here, the Defendants have not met their burden to show that theDistrict cannot proceed on its Section 25363 claim based on anownership interest in the groundwater. Now, it is true that the Courthas previously found that the District does not have a sufficientinterest in property or the groundwater in order to pursue such aclaim. However, the Court’s ruling to that effect was made inresponse to Motions for Summary Adjudication and made based onevidence presented by both sides. (RJN Exh. 1) The rulings on theprevious motions are not binding on the District as to Parties to thismotion who were not parties to those motions (CCP Section437c(n)(2)).The Court will sign the (proposed) (non-consolidated) Order this date.Soco West to give Notice.(2) Defendant Alcoa Global Fasteners, Inc.’s Joinder to Joint Motionfor Judgment on the PleadingsThe Joinder is Granted. See, Motion No. 1 for the ruling.(3) Defendant Ricoh Electronics Inc.’s Motion for Summary Judgment(4) Status Conference5. LIAO V. WILLIS(12-00605322)(1) Defendants Brian N. Willis, etc.’s Motion to Expunge Lis PendensThe Court will give an oral tentative ruling at time of hearing.(2) Status Conference6. ZENITHINSURANCECOMPANY V.HOFFMAN(1) Plaintiff’s Motion to Lift Stay of ProceedingsThe Motion is Denied. The request for sanctions is Denied.The basis for the stay remains, a criminal proceeding is pendingagainst some of the Defendants which mandates a stay under theInsurance Code. Contrary to the assertions of Zenith, the stay wassought under Insurance Code Section 1871.7(f)(4). In fact, Zenithwas granted additional briefing time to address the issue. The Courtimposed the stay under that statute and the circumstances have notchanged such that the stay should be lifted.It is unclear whether a waiver of the protection against selfincriminationwould abrogate Section 1871.7(f)(4), as the statute ismandatory. There has been no waiver here, in any event. As notedby Defendants, most of the actions which Hoffman has taken allegedlyconstituting the waiver took place before the indictment. Theremainder were actions to protect the rights of Hoffman onappeal; they were not voluntarily taken and thus don’t constitute awaiver.Sanctions cannot be awarded under CCP Section 128.5 as that Section

only applies to actions filed prior to December 31, 1994; this Actionwas filed after that. Also, there was no fee declaration attached to therequest.10:30A.M.7. HARDWICK V.COUNTY OFORANGE(1) Plaintiff Kendall Hardwick’s Motion for Summary AdjudicationContinued on the Court’s Motion to June 7, 2013, 10:30 A.M. (notethe time change) Plaintiff to give notice.(2) Status ConferenceContinued on the Court’s Motion to June 7, 2013, 10:30 A.M. (notethe time change) Plaintiff to give notice.

TENTATIVE RULINGSDEPT CXC-105Judge Nancy Wieben StockDate: Week of June 3, 2013Law & MotionEx PartesTHIS COURT FOLLOWS CRC 3.1308 (a) (2) FOR TENTATIVE RULINGS EXCEPT WHERE EXPRESSLYSTATED.June 4,20138:30 A.M.Case NameWILLIAMS V. SRSLABS INC.Tentative(1) Class Member Karen Fong’s Motion for Leave to InterveneAdvanced and Granted. No Hearing.The matter was set for hearing on June 4, 2013 on a Minute Orderdated May 29, 2013, to allow for the filing of any opposition. Noopposition having been received, the Court advances the matter, onits own motion, and Grants the Application, permitting Intervener toflea supplemental submission in support of Preliminary Approval andappear at all further hearings.A signed Order will be filed by the Court with the Clerk. ProposedIntervener Karen Fong to give Notice.2. INGHAM V.PACIFICA ROYALE(1) Defendant Pacifica Royale Assisted Living Community, Inc.’sDemurrer to ComplaintThe Demurrer was filed one day before the Court filed an Orderentering a stay of litigation pending the Initial case ManagementConference. The Order required that Plaintiff serve the Initial CaseManagement Order on the Defendant. This apparently did not occur,as the required Joint Case Management Statement has not been filedand only Plaintiff has filed a (form) Case Management Statement thatdoes not address any of the requirements of the Initial CaseManagement Order. Therefore, the Court lifts the stay for purposes ofruling on the Demurrer and associated Motion to Strike.The Demurrer is Sustained and the Motion to Strike is Granted,with 45 days leave to amend. In light of the imminent transfer ofthis case, the Court will sign the Minutes, making them an Order.Moving Party to give Notice.A Complaint must set forth ultimate facts which establish each andevery element of each cause of action sought to be alleged (CCPSection 425.10) It also must clearly apprise the Defendant of thealleged wrongdoing is such a manner that the Defendant canappropriately respond to the allegations. The Complaint here doesneither. It contains no ultimate facts and therefore states no cause ofaction. Defendant cannot be expected to be able to properly reply tosuch a Complaint.The recovery of punitive damages requires the pleading of specificfacts establishing fraud, oppression or malice. Additionally, the

equirements of Code of Civil Procedure Section 3294 must beestablished when, as here, such damages are sought against a legalentity.(2) Defendant Pacifica Royale Assisted Living Community, Inc.’sMotion to Strike Portions of ComplaintSee, Ruling above.(3) Case Management ConferenceThe Court’s Initial Case Management Order. Filed May 10, 2013,required that Plaintiff serve the Order on the Defendant. Thisapparently did not occur, as the required Joint Case ManagementStatement has not been filed and only Plaintiff has filed a (form) CaseManagement Statement that does not address any of therequirements of the Initial Case Management Order. Therefore, theCourt lifts the stay for purposes of ruling on the Demurrer andassociated Motion to Strike.Transfer of Case. The Court, on its own motion determines that thecase has been inadvertently filed as a Complex Civil case. Plaintiff isnot represented by counsel and may not have been familiar with thecriteria. However based upon the standards set forth in CaliforniaRules of Court 3.400, the Court has determined that this is not a casethat warrants extraordinary case management. Accordingly, at theclose of the hearing on the Demurrer and Motion to Strike, the InitialCase Management Order shall be vacated and the case be orderedtransferred to the General Civil Panel, whereupon it will be assignedby the Supervising Judge of the Civil Panel to a judge. Parties shallawait an Order designating the new department.Defendant to give Notice.SO ORDERED: June 7, 20133. JAIMES V. ABLEBUILDINGMAINTENANCE(1) Defendant Able Acquisition Corp.’s Motion to Compel Production(RFP Set 3)Last-Minute Response to Supplemental Reply: The Court is informedthat on June 5, 2013 Plaintiffs filed a response to the Defendant’sSupplemental Reply. It was been stricken. There is no legal right tofile another round of briefing on this topic and the Court’s order ofMay 17, 2013 granted leave and set a briefing schedule for the filingof only two sets of supplemental documents. A Response toSupplemental Reply was not indicated in the briefing schedule and istherefore barred. In an attempt to advise that there be no filing of asupplemental reply permitted, the Minute Order is ambiguous as theword “no” was inadvertently omitted, but obviously grammatically, itis apparent that there is a word missing and counsel could havegained clarification by calling the Clerk.The entirety of both Motions (1) & (2) is Granted. The Court will signthe (proposed) orders and file them at the hearing. Moving PartyCrown Building to give Notice. Plaintiff shall provide further, properResponses to the Requests for Production, without objection, andparticularly without objection on the basis of the attorney clientprivilege and work product doctrine, by June 18, 2013. Plaintiff’sCounsel, Kevin Mahoney, Sam Kim, and the Mahoney Law Group,APC, jointly and severally, shall pay sanctions to Defendants in thetotal sum of $3,500 (combined sanctions from first round andtoday), by June 18, 2013, for their abuse of the discovery process,

for their failure to provide discovery responses in proper form, andfor their invocation of improper objections.The information that Plaintiff supposed supplied by way of theSupplemental briefing is not evidence and therefore, fails to establishthat the documents are protected by the attorney-client privilege orwork product doctrine. The submission is nothing but a series of legalconclusions, factually devoid and leads to only more questions ratherthan answers as to whether the privilege or doctrine applies.If any of this material were eligible for protection, it is unfortunatethat counsel having been given two opportunities to follow theDiscovery Act have failed to do so. It would unfair and inappropriatefor the Court to hold this any further.(2) Defendant Crown Building Maintenance’s Motion to CompelProduction (RFP Set 3)See, Ruling above.4. TERRAZAS V.MEMORIALHEALTH SERVICES(1) Plaintiff’s Renewed (unopposed)Motion to SealNo Hearing.Please Take Notice. On the Court’s motion, the matter is Advancedand the Motion Granted. The Court has signed and filed the(proposed) Order. Moving Party to give Notice.No opposition having been received, the (proposed) Order properlyconforms to the narrow requirements of CRC 2.550. The Court findsthat there exists an overriding interest in medical procedure privacythat overrides the public’s access to this type of record and that thesealing has been narrowly tailored to accommodate the properbalance. No less restrictive means is available. CRC 2.550(d).SO ORDERED: June 4, 20135. FLORES V. MEXI-GRILL LLC(1) Plaintiffs’ Motion to Compel ProductionNo Hearing.Please take Notice. The Motion is advanced on the Court’s motion andDenied. Moving Party to submit the (proposed) Order within three (3)days and give Notice. Moving party has failed to follow the basic rulesmandated for the bringing of a motion and since this implicates thedue process rights of the opposing party and leaves the Court with noability to rule, the hearing date is vacated.The Notice is deficient as it does not recite specifically what is to beordered. Surely the Moving Party cannot except that the Court wouldenter an open-ended order that merely say “produce your point ofsale data,” without any limiting perimeters. CRC 3.1112(a). Moreimportantly, the Points and Authorities in support of a motion and insupport of a reply must include not just argument (points), butcitation to law (authorities). Plaintiffs have provided no legal authorityfor their Motion and therefore have provided no authority for theCourt to act. CRC 3.1113(b) (“statement of the law” required to beincluded).The fact that Counsel for Defendants may have represented at somepoint in time that point of sale data would be provided is not a proper

grounds for a motion to compel, absent an underlying formaldiscovery request or a Court Order, and Plaintiffs have not shownotherwise. Neither exists here. Plaintiffs concede their Motion is notbased on either a discovery request nor a Court order.SO ORDERED: June 5, 20136. SCHOOL DISTRICTCONSTRUCTIONCASES(1) Defendant Thompson Pacific Construction, Inc.’s Motion forAttorney FeesThe Motion is Granted as to Attorney’s Fees. The Motion is Deniedwithout prejudice as to the proper recovery of statutorycosts. Attorney’s fees are awarded in the amount of $41,268.50. Tothe extent costs are sought beyond those that may be obtainedthrough the serving of a Memorandum of Costs, they are Denied.Thompson was the prevailing party and is entitled to the recovery ofattorney’s fees. Thompson sought no affirmative relief, so for it toprevail it had to defeat the complaint filed by Circulating Air. It did sowhen the complaint was dismissed and Circulating Air recoverednothing. Elms v. Builders Disbursements, Inc. (1991) 232 C.A.3d671, 674.Thompson is to be awarded reasonable fees “actually incurred.” (CivilCode section 1717). The billing statements set forth the exact hours,tasks and billing rates charged exclusively for the Circulating Airdefense activities. The rates are quite reasonable and areappropriately allocated by attorney level. Circulating Air lodges noobjections to the rates, hours, billing detail or any aspect of thebillings. (Opposition). Finally, statutory prevailing party costs shall besought via a Memoranda of Costs. Non-statutory attorney costs arenot included within the contract recovery provision which allows for“actual attorney’s fees incurred” and nothing else. (Thompson Decl.Exhibit “A.”Thompson to submit a (proposed) order within three (3) days andgive Notice to Circulating Air and any related party, only.8. HARDWICK V.COUNTY OFORANGEPlaintiff’s Motion for Summary Adjudication. (Continued from May 31,2013)This is a continuation of a hearing that commenced on April 12, 2013.No further written tentative ruling will be issued. The Court hasreviewed Plaintiff’s Supplemental Statement of MaterialFacts, Supplemental Declaration of Shawn A. McMillan, Defendants’Opposition to Plaintiff’s Supplemental Statement of Material Facts andthe Declaration of Pancy Lin Misa in Opposition to Plaintiff’sSupplemental Statement of Material Facts (Transcript 04-12-13). Anoral ruling will be announced, following any additional oral argumentat the hearing.

TENTATIVE RULINGSDEPT CXC-105Judge Nancy Wieben StockDate: June 14, 2013Law & MotionTHIS COURT FOLLOWS CRC 3.1308 (a) (2) FOR TENTATIVE RULINGS EXCEPT WHERE EXPRESSLYSTATED.June 14,20139:00 A.M.Case Name1. CAMBRIDGECREEKCONDOMINIUMHOMEOWNERSASSOCIATION IIV. BEAZER HOMESHOLDING CORP.Tentative(1) Cross-Defendant North Orange Coast Painting, Inc.’s Motion to BeRelieved as Counsel of RecordNo Hearing.Please Take Notice. On the Court’s motion, this unopposed motion isadvanced and Granted, effective the date that Moving Party files aProof of Service of the (1) Order and (2) Trial Readiness ConferenceOrder CX-105) on the client. The Order has been signed and filed withthe Clerk.So Ordered: June 12, 20132. DONOVAN V.SHEA HOMES INC.(1) Cross-Complainants Shea Homes Limited Partnership, etc.’sMotion for Leave to File 1 st Amended Cross-ComplaintThe Motion is Denied. Moving party to file a (proposed) Order withinthree (3) days and give Notice.Notice. Sufficient notice was given for this Motion; a Motion served bymail must be noticed 21 days prior to the hearing and that was doneso here.Merits. This Motion to Amend comes too late in the litigation. Cross-Complainants admit that “the relevance of the Contract was revealed(to them) on December 2012.” (Reply Section III). Constructively itsexistence was displaces quite a bit earlier than that. (Decl. ofBenjamin W. Blaisdell). They chose however, to wait to seek to amenduntil after a trial date was set and Cross-Defendant Sukut had filed itsMotion for Summary Judgment. Cross Defendant has a right toproceed to trial and has a right to have a summary judgment motionheard before that trial.Trial is set for August 5, 2013 on a case that was filed in 2009. CCPSection 437c mandates that the Motion for Summary Judgment bebased on 75 days’ notice and heard no later than 30 days before thedate of trial. The granting of this Motion would contravene all of thesemandates and require the Court to continue the trial, reopendiscovery and the responsive pleading period, and allow a furtherMotion for Summary Judgment to be filed, should Cross-DefendantSukut so choose.Cross-Complainants admit that they will not be prejudiced by thedenial of this Motion as they argue that their proposed amendments

are not compulsory and can be pursued in a separate action. Further,the amendments apparently have nothing to do with the granting ordenial of the Motion for Summary Judgment brought by Sukut, theyare based on different contracts, rights and obligations. To allowsuch amendment now contravenes Cross-Defendant Sukut’s rightsand unnecessarily delays these proceedings.3. JARAMILLO-TABARV. NAKASEBROTHERSWHOLESALENURSERY(1) Defendants Nakase Brothers Wholesale Nursery, etc.’s Motion forOrder to Stay ProceedingsDeny. The Court will sign and file an Order at the hearing. MovingParty to give Notice.The stated purpose for the stay, that two Ninth Circuit decisions in theoffing could “provide invaluable guidance” on certain legal issues, isnot a sufficient justification for delaying this case. In the field of wageand hour class actions, appellate decisions are often pending and thelaw has been known to shift from time to time. This is not a reason todelay. The burden of litigation this lawsuit is not, in and of itself avalid reason to delay.4. SEGERSTROMDANIELS V.STONEFIELDDEVELOPMENTINC.(1) Cross-Defendant American Coatings, Inc.’s Demurrer to 1 stAmended Cross-Complaint (Thirteenth Cause of Action-Negligence(“COA”))Sustain Demurrer without leave. Cross-Complaint (“Stonefield”)bases its tort claim on the duty that arises from its subcontract withAmerican Coatings. (First Amended Cross-Complaint (“FACC”) ’s 42-43, incorporated into the Thirteenth Cause of Action, 93.) There isno independent tort duty alleged. The law is clear that Stonefield maynot create a common law tort out of an express contractual duty.Applied Equipment Corp. v. Lillon Saudi Arabia Ltd. (1994) 7 Cal.4 th503, holding that when it comes to contractual duties, “limit(ing) …available damages (to non-tort recovery) serves to encouragecontractual relations and commercial activity by enabling parties toestimate in advance the financial risks of their enterprise.” Id at 516.As Stonefield does not own the property allegedly damaged and hasnot suffered personal injury, its straight negligence claim isforeclosed. See, Aas v. Superior Court (2000) 24 Cal.4 th 627.Further, the Thirteenth COA of the FACC fails because it is entirelylimited to future damages. As pointed out in the Reply, tort damagesmust be apparent; otherwise a critical element for recovery is missing.Stonefield has its express contractual and other indemnity allegationsintact. There is no need to plead a tort that sound in indemnity, buthas not present damages.Moving Party to submit the (proposed) Order at or before the hearingand give notice.

TENTATIVE RULINGSDEPT CXC-105Judge Nancy Wieben StockDate: June 21, 2013Law & MotionEx PartesTHIS COURT FOLLOWS CRC 3.1308 (a) (2) FOR TENTATIVE RULINGS EXCEPT WHERE EXPRESSLY STATED.Case NameTentativeJune 21,20139:00 A.M.2.(To BeCalled at1:30 P.M.)3.(To BeCalled at1:30 P.M.)HAMIDIAN V.TAYLOR WOODROWHOMES INC.KENT V. BANK OFAMERICA(1) Defendant Taylor Morrison of California, LLC’s Demurrer to FirstAmended Complaint (First-Strict Liability; Second-Negligence; Third-Nuisance; Fourth-Breach of Contract; Fifth- Breach Express WarrantyCauses of Action)The Demurrer is Sustained without leave as to the First (Strict Liability)and Second (Negligence) Causes of Action, by agreement (OppositionSection I).The Demurrer is Sustained without leave as to the Third Cause of Action(Nuisance). Plaintiff alleges straight construction defect actions on the partof Defendant, nothing more. There is nothing n SB 800 suggesting that ahomeowner can convert these claims into tort damages for emotionaldistress, etc. Plaintiff’s argument for nuisance focuses exclusively on theresult, the loss of use and enjoyment and ignores the genesis of nuisance,that the tortfeasor created the condition and it effected a nearby oradjacent property owner.The Demurrer is Sustained with 21 days leave to amend as to the FourthCause of Action. Breach of Contract is permitted under SB 800, but, thedefense is correct, the Complaint must delineate the particular provisionsof the Contract that were breached.The Demurrer is Sustained without leave as to the Fifth Cause of Action(Breach of Express Warranty). Whereas warranty might be an exception tothe exclusivity provisions of SB 800, the Agreement attached to theComplaint establishes that there is no warranty beyond a limited area, andnot one that would encompass the global allegations in the Fifth COA.Moving Party to file a (proposed) order and give notice.(1) Defendant Bank of America, N.A.’s Motion for SummaryJudgmentEvidence. Grant Defendant’s Request for Judicial Notice, No.’s 1-3 (OCCLetter(s). Plaintiff’s Objections to portions of the Declaration of Elkersonare Overruled. Original Deposition Transcripts have been lodged byDefendant under Notice dated 6-14-13. Objections to portions of theDeclaration of Beauchamp are Overruled on the first ground for lack of a

viable citation to the California Evidence Code. The Objection on thesecond ground (lacks personal knowledge; foundation) is overruled.Plaintiff’s Objections to the Declaration of Terri Tate are unnumbered andwill be referred to in sequence. Objection No.’s 1 & 2 are overruled asunintelligible. Objection No.’s 3 & 4 are overruled for failure to cite tospecific pieces of evidence. By lumping 6-7 separate statements and/ordocuments into a single objection, Objector places it beyond the ability ofthe Court to make a meaningful ruling.The Motion. The Motion for Summary Judgment is Granted. The No MeritDetermination under Civil Code Section 1781 is also Granted.Defendant has produced admissible evidence establishing that there is nomerit to any of the causes of action stated in the First Amended Complaint.(FAC) This shifts the burden to Plaintiff to establish through admissibleevidence triable issues of fact. Plaintiff has not met his shifted burden.Summary. Each of Plaintiff’s various causes of action arise from a singlecomplaint, that as a non-account owner, he was charged a $5 checkcashingfee by the Bank. Plaintiff alleges that the existence of an IOLTAaccount for the benefit of attorney client trust funds, enabled him topersonal check-cashing benefits otherwise reserved for actual accountholders. While it is true that Plaintiff caused an attorney client trustaccount to be opened at the bank, he admits that no other type of accountwas ever opened. Plaintiff has failed to establish any legal duty on the partof the bank to honor account-owner privileges sought by a non-accountowner or any duty to advise Plaintiff that he was not entitled to theserights at the time be created the IOLTA account. Notwithstanding theforegoing, on the only two occasions where Plaintiff was charged the $5fee, he was advised in advance that it would be charged, he chose to paythe fee anyway and was later refunded the fee. As explained in more detailbelow, these facts deprive Plaintiff of the upper hand. No law violationshave been established and he has not been harmed or damaged.Who is the Plaintiff? Plaintiff sued as an individual. (See, discussion ofpleadings and evidence on concurrent ruling on Plaintiff’s MSA.)Plaintiff hasnot established that he has an account with the Bank. (UMF No. 3) Anyaccount was an attorney client trust account related to the clients of theLaw Offices of William A. Kent.” (UMF No. 4-5, 60-61) Lacking a personalcontract with the bank, Plaintiffs claims for Breach of Contract and Breachof the Implied Covenant fail.Breach of Written Contract . Plaintiff has not stated any facts in hisOperative Complaint to establish that he has a written contract with theBank or that a contract exists by which its terms require the Bank to notcharge a fee to Plaintiff for a personal check not related to the Accountopened by the Law Office. It is undisputed that the only checks sought tobe cashed for free, by Plaintiff were personal checks made out to “WilliamKent.” (Response to UMF No. 10, 46, 69, 88).Further, Plaintiff has not established any contract containing any term bywhich fees for cash checking cannot be charged. The Motion does nobetter and refers to a hodgepodge of documents which may or may notconstitute a contract and which may or may not contain the requiredterms; but certainly none have been identified. Where is the exact term bywhich IOLTA account holders are not to be charged for cashingchecks; what is it exact term? Nothing has been established. Once more,the contract is with the Law Office and not with Plaintiff. Where is the termthat agents of the IOLTA account holder will not be charged fees forcashing their personal checks?Non-Written Contract Claim. The Court has discussed the failure of

proof as to the written contract-related claims. This leaves an oralcontract, although not pleaded anywhere in the FAC. The only possiblecontract that the Plaintiff had with the Bank was the oral contractestablished when he cashed the checks when he agreed to pay the checkcashing fees and actually paid them. (UMF No. 22-24, 49-50). There wasno breach there.Damages. Plaintiff has not been damaged. The $10 he was charged wasreturned to him. (UMF No. 27, 35, 52; Plaintiff’s dispute of this fact isactually an admission) The fact that Plaintiff did not cash the checksreimbursing him for his alleged damages is irrelevant. Plaintiff cannotcreate his own cause of action. Plaintiff caused his loss by not negotiatingthe reimbursement checks, the Bank did not cause the loss.Standing CRLA. The evidence shows that Plaintiff has no standing underthe CLRA as the only bank account in existence was associated with the“Law Offices of William A. Kent,” not Plaintiff personally. Therefore, forpurposes of the Third Cause of Action (CLRA) the transaction (the openingof a business-related back account without adequate disclosures aboutcheck-cashing fees to non-owners) was not a “consumer” transaction. See,Civil Code section 1761(d).Federal Preemption. Although it is not necessary to reach this additionalissue, to the extent that any Cause of Action seeks to impose on the Banka requirement of disclosure or an obligation to not charge a check-cashingfee, it is preempted by the NBA.Breach of Implied Covenant. The Complaint does not plead factssufficient to state a cause of action based on the implied covenant of goodfaith and fair dealing. There is no contract set forth by which a covenantof good faith and fair dealing arises which requires the Bank to not chargePlaintiff, who has no account or contract with the Bank, a fee for cashinghis personal checks unrelated to his the business account or the TrustAccount. The covenant cannot be used to rewrite contracts and imposeobligations that were not agreed to by the Parties.Standing FAL/UCL. Contrary to the allegations of the Complaint Plaintiffdid not lose money or property by virtue of the actions of Defendant andhe therefore has no standing to pursue an FAL or UCL claim. Hevoluntarily paid the check cashing fees and was reimbursed for thembefore any lawsuit was filed. Cf. Wallace v. GEICO General Ins. Co. (2010)183 C.A.4 th 1390, 1400-01.No False Advertising. Separate from the standing problem, Plaintiff failsto establish a viable claim for false advertising by the Bank as alleged inthe Fourth Cause of Action (Section 17500). None of the documentsreferenced in the FAC or in the evidence contain any false statements andindeed, do not address the check-cashing fee topic at all.Declaratory Relief. As the Sixth Cause of Action for Declaratory relief isfounded upon allegations of illegality and inequity set forth ante, theMotion is granted as to that Cause of Action as well.(2) Plaintiff’s Motion for Summary JudgmentThe Motion is Denied. Rulings on Plaintiff’s Evidentiary Objections are filedby separate order. A signed Order will be filed at time of hearing.Summary Judgment is not available as the Motion reaches only two of theCauses of Action. Summary Adjudication as to the two causes of Action,the First (Breach of Contract) and Third, (C.L.R.A.) are Denied. The FirstAmended Complaint (FAC) does not support the relief sought and theevidence offered by Plaintiff in his Separate Statement fares no better. The

FAC makes clear that the bank accounts which are the subject of the actionare attorney client trust accounts and not personal checking accounts, oreven personal business accounts. The FAC further alleges that the concernis a fee charged for “cashing checks made payable to Plaintiff in his BOA(Bank of America) attorney client trust account.” (FAC 11). To theextent that the Complaint is unclear on this point, the evidence offered inthe Separate Statement and Response to Separate Statement make theproper distinction. Neither of the two checks offered as evidence byPlaintiff fall into the description indicated in the Complaint. (UndisputedMaterial fact No.’s 13, 14). Thus, he has failed to supply admissibleevidence to support the linchpin of his two claims.Further, the motion fails because it is clear from the Complaint thatPlaintiff is not suing as the account owner of the attorney client trustaccount, but in his personal capacity. (“Plaintiff is William Kent, anindividual…” FAC 1). Even if the law firm were the account owner, whichis placed in question by the Response to separate Statement, Plaintiff doesnot sue as a law firm, only as an individual. It is undisputed that Plaintiffhad no account at the bank other than the IOLTA account. DefenseAdditional UMF No. 1.Plaintiff’s misunderstanding as to the required separation between personaland client trust account banking is reflected in his Separate Statement,where he tellingly refers to the account as “his account emphasis),” (UMFNo. 9) and complains that the bank failed to inform him that he coulddeposit personal checks into his IOLTA account “to avoid a check cashingfee.” (UMF No. 24).10:30 A.M.4. ORANGE COUNTYWATER DISTRICTV. SABICINNOVATIVEPLASTICS US LLCNotice to Parties & Counsel. On June 20, 2013, the Court signed an Orderon Media Request to Permit Coverage, pursuant to CRC 1.150, permitting aprint reporter from the Orange County Register to use a still camera in thecourtroom for this set of hearings. Order on file.(1) Cross-Complainant Gallade Chemical, Inc.’s Motion for Judgment onthe Pleadings(2) Defendants Soco West, Inc., etc.’s Motion for Judgment on thePleadingsOff Calendar pursuant to moving parties’ request.(3) Plaintiff’s Motion for Judgment on the Pleadings(4) Plaintiff’s Motion for Reconsideration(5) Defendant Marotta Controls, Inc.’s Motion for Summary Adjudication(6) Defendants ICI Americas Inc., etc.’s Motion for Judgment on thePleadings(7) Court Trial(8) Status Conference

TENTATIVE RULINGSDEPT CXC-105Judge Nancy Wieben StockDate: July 12, 2013Law & MotionEx PartesTHIS COURT FOLLOWS CRC 3.1308 (a) (2) FOR TENTATIVE RULINGS EXCEPT WHERE EXPRESSLYSTATED.July 12,20139:00 A.M.Case Name1. GERSHFELD V.CHAMPIONAEROSPACE LLCTentative(1) Defendant Champion Aerospace LLC’s Demurrer to First (CLRA),Second (UCL), Third (Song Beverly Implied Warranty) Causes ofAction in the Second Amended ComplaintThe Demurrer is Sustained with twenty (20) days leave to amend asto the First Cause of Action, and Sustained as to the Third Cause ofAction without leave to amend. The Demurrer is Off Calendar, asmoot as to the Fourth Cause of Action (Intentional Misrepresentation);it has been dismissed, with court approval and the dismissal filed July11, 2013. There is no written tentative ruling as to the Second Causeof Action.Grant Defendant’s Request for Judicial Notice. (court documents)Deny Plaintiffs Request for Judicial Notice; Sustain all Objections ofDefendant to Plaintiffs Request for Judicial Notice and the associatedDeclaration of Vladi Khiterer. The dictionary definition of “retail,” ifaccepted does not aid Plaintiff on this demurrer. Likewise, the Code ofFederal Regulations does not assist and is therefore not relevant.First Cause of Action (CRLA). Plaintiff has failed to allege factsestablishing that he is a “consumer” under the CLRA (Civil Codesection 1761(d)). He alleges only that on a particular day he wasusing his airplane for personal, family or household use, when asparkplug cracked. (SAC 7) Left unsaid is whether the ultimateconsumer purchase of the spark plugs was for personal, family orhousehold use. If installed in his airplane, then presumably theinquiry is directed at whether the airplane was used for personal,family or household use, not just on one day, but within the meaningof Section 1761(d).Plaintiff has failed to allege under which provision of the CLRA heproceeds. There are no less than 25 paragraphs of consumer-relatedmisconduct to choose from. See, Civil Code section 1770(a) Plaintiffmust chose because in asserting a specific statutory violation, it isinsufficient to merely allege that the Defendant concealed ormisled. Depending on what is alleged in the area of concealment,Plaintiff must be mindful of the obligation to plead factsestablishing an obligation to disclose or any exceptions to the rulethat manufacturers may not be liable under the CRLA for failure todisclose a defect that manifests itself only after the warranty periodhas passed.As to affirmative misrepresentations, the same problem is noted thatPlaintiff des not tie any of it to a specific area of Section 1770(a). As

the only alleged representations are those made after the purchaseand contained in the Service Letter, there are no allegations that thealleged omissions relate to representations made. Plaintiff has allegedno facts showing that Defendant had knowledge of the defect, or thatit knew that the defect had caused personalinjury. Further, Plaintiff’s alleged damages, the replacementplugs, were apparently not caused by not replacing the plugsearlier, the plugs had to be replaced, according to Plaintiff, becauseof the defect, not because of the omission, concealment ormisrepresentations.Third Cause of Action (Song Beverly Implied Warranty) Plaintiff hasfailed to allege that the spark plugs were purchased at retail inCalifornia. (SAC 7) This fact is easily pled if true and Defendant isnot required to speculate whether a California retail purchase of aspark plug took place merely because Plaintiff’s airplane is located inCalifornia.The claim on the face of the complaint is also time-barred by statute.Contrary to the assertions of Plaintiff, we are not dealing with thespark plugs purchased on March 15, 2011 and replaced as thathappened before the Letter was received. We are dealing with sparkplugs that were replaced on September 10, 2012, and purchased onsome unknown date, after the Letter was received. (SAC 13. “afterthe express warranty …had expired…(plaintiff) removed all saidChampion spark plugs…”) Since the defect manifested itself on orabout the date of the replacement, it was concededly outside the termof the express warranty; it was also outside the implied warranty.Here, the plugs were not unmerchantable from the outset as theyperformed properly as warranted. In this respect Plaintiffs case isentirely different than Mexia v. Rinker Boat Co., Inc. (2009) 174C.A.4 th 1297, assuming Mexia is good law. Defendant is also correctthat, for the above reasons, Plaintiff cannot plead the required injurydue to a failure of warranty. When a product fails after the warrantyperiod, that is not a breach of warranty no matter what damage maybe experienced in the timeframe.(2) Defendant Champion Aerospace LLC’s Motion to Strike SecondAmended ComplaintThere is no written tentative ruling.(3) Order to Show Cause re: Monetary SanctionsThis hearing is ordered Off Calendar in light of the circumstancesrecited in the Declaration of Vladi Khiterer in Support of Discharge ofthe OSC re: Sanctions.(4) Status Conference3. ORANGEREDEVELOPMENTAGENCY V. CITYOF ORANGE** SUBMITTED**(1) Cross-Defendant County of Orange’s Motion for Judgment on thePleadingsThe Motion is Granted as to the Fifth and Sixth Causes of Action,without leave to amend and Denied as to the First, Second, Seventhand Eighth Causes of Action. The Court will sign and file the Order attime of hearing. Moving Party to give Notice.

As to the Fifth Cause of Action (Porter Cologne ActIndemnity/Contribution) and Sixth Cause of Action (Porter CologneAct Declaratory Relief), the language of the California Water Code isclear, indemnity may only be sought for monies paid in response toorders of liability issued by a regional board or state board. The Cityhas alleged neither and has not hinted that such orders for liabilityhave been issued and could therefore, be amended into its SecondAmended Cross-Complaint (“SACC”). The City has cited no caseunder which it can recover under Section 13350. The two federalcases cited by the County, while not binding on this Court, seempersuasive and correct.As to the Seventh Cause of Action (Nuisance) and Eight Cause ofAction (Trespass) the County seeks Judgment on the ground that theStatute of Limitations has expired on these claims. (Motion, section 3,C). However, the SACC does not necessarily just allege aclaim recovery of damages for construction defects and therefore it isnot clear that CCP Section 337.15 would apply. (Further clarification ofthis is stated in the Opposition, p. 6) In Gaggero v. County of SanDiego (2004) 124 C.A.4 th 609, cited by the County the Plaintiffexpressly alleged that construction defects led to the damagessought. Further, as noted by the Fourth District in distinguishingGaggero, in San Diego Unified School Dist. v. County of San Diego(2009) 170 C.A.4 th 288, 305-306, CCP Section 337.15 only applies toallegations based on construction defects and latent deficiency.And, even if CCP Section 337.15 applied to the claims as to the YorbaLinda Site, there are no facts alleged showing any relationshipbetween construction defects and the La Veta Site and a Section337.15 bar. The County’s assertion that the City may be arguing thatmethane gas from the La Veta Site is migrating to the Yorba LindaSite and as such would show a construction defect claim at the YorbaLinda Site is pure speculation without any allegations or facts tosupport it. For this reason it is an improper vehicle for Judgment onthe Pleadings.Request(s)for Judicial Notice. This warrants a comment on theevidence offered by the County on the Seventh and Eight Causes ofAction discussed, above, the Court declined to consider the majority ofevidence offered as a request for Judicial Notice. (See, County’sRequest for Judicial Notice). While the Court may considerdocuments within its own records, it is not required to accept all factscontained in those documents as true. Day v. Sharp (1975) 50 Cal.App. 3d 904, 914). The County’s citation to Tucker v. Pacific BellMobile Services (2012) 208 C.A.4 th 201 does not assist. There thetrial court’s consideration of judicially noticed documents in support ofdemurrer was without objection by any party. Further, the Court ofAppeal noted that if such use of documents were proper in a challengeto pleadings, their use is generally confined to the types of adverseparty admissions that arise from pleadings and discovery responses,such as requests for admissions. Tucker at p. 218, fn. 11. Thesecomments will serve as rulings on City’s Objections to the County’sRequest for Judicial Notice No.’s 1-8.As to the City’s request for Judicial Notice. Other than considering theSecond Amended Cross-Complaint (RJN No. 1), which the court mustconsider even without such a request, it has not been necessary forthe court to consider City’s RJN No.’s 2-8.Insofar as the County’s attack on the First and Second causes ofAction for Indemnity/Contribution and Declaratory relief, respectively,

are founded on the absence of valid claims elsewhere in the SACC, theMotion for Judgment on the Pleadings is denied as to these Causes ofAction as well. (See, Motion p. 1, line 27- p. 2, line 1).

TENTATIVE RULINGSDEPT CXC-105Judge Nancy Wieben StockDate: July 19, 22, 23, 24, 2013Law & MotionTHIS COURT FOLLOWS CRC 3.1308 (a) (2) FOR TENTATIVE RULINGS EXCEPT WHERE EXPRESSLYSTATED.July 19,20139:00 A.M.Case Name1. ADAMS V.NEWPORT CRESTHOMEOWNERSASSOCIATIONTentative(1) Plaintiff’s Motion for ReconsiderationNo Hearing.Please Take Notice. This hearing will not take place on this date,because, on the Court’s motion, an Order to Show Cause re:Sanctions against Plaintiff, Kristine L. Adams (CCP section 128.7) hasbeen concurrently set for hearing August 19, 2013, 8:30 A.M.The Motion for Reconsideration shall trail to August 19, 2013, 8:30A.M. No further briefing is permitted on the Motion forReconsideration. Plaintiff to give Notice.2. FROST V.SHAKEY’S USAINC.(1) Plaintiff’s Motion to Certify ClassBy Order filed May 3, 2013, the Court confirmed its ruling thatPlaintiffs had met their burden on all aspects of class certification onthe above-described Overtime Claims, with the exception that theCourt required further evidence and argument on the issue ofSuperiority, as indicated by a trial management plan. The Court hasreviewed the Supplemental Brief in Support of Motion for ClassCertification and Declaration of Amy T. Wootton in Support ofSupplemental Brief, to which there was no response or opposition byDefendant.Please Take Notice. On July 18, 2013, ten (10) days after the courtordereddeadline to file a response, The Carlton Firm, filed aresponse. It has not been considered and is stricken for violation ofthe court-ordered briefing schedule. This is the second time that thishas happened in this same case. Counsel for Defendant, ChristopherW. Carlton shall appear in person at the hearing to show cause whythe Court is not required to make a referral to the State Bar.The Court now Grants Certification of the Overtime claims alleged inthe First and Fifth Causes of Action in the First Amended Complaint;Certifies the Class Members as described in par. 3, Section 2 of the(proposed) Order; and appoints Class Counsel and ClassRepresentative.Parties shall meet and confer on the content and mailing of ClassNotice, and the setting of a Trial Setting Conference (any Monday-Wednesday at 8:30 A.M.).The Order shall be filed at time of hearing. Moving Party to giveNotice.

3. NAYLOR V. HMSHOST USA INC.(1) Defendant Host International, Inc.’s Demurrer to 2 nd AmendedComplaintGrant Defendant’s Request for Judicial Notice (RJN) items 1 & 2.The Demurrer is Sustained without leave to amend. Plaintiff’s claimfor penalties under PAGA is barred by the statute of limitations andtherefore she has no standing to bring a representative PAGA claim.The Court will file the signed order at time of hearing. Moving Party togive Notice.Plaintiff has failed to allege and could not ever allege circumstancesthat would bring this case within the doctrine of equitable tolling, firstannounced in American Pipe & Construction Co. v. Utah (1974) 414U.S. 538. First of all, the Second Amended Complaint fails to showthat American Pipe would apply to this action. It fails to specificallyapprise Defendant and the Court of the exact nature of the Medlocklawsuit, of the exact claims there were or are pending in that action,and how each of the claims has been disposed of, if they have. Itspecifically does not address the nature of the PAGA claims or when orwhy they were apparently dropped. There is no indication that theMedlock action is no longer pending. If it is pending, then whatissues, claims and cause of action will be resolved is yet to be finallydetermined. It is not even clear that Plaintiff was encompassed in thePAGA claim in that action.Even if the above-stated allegations were to be included in anamended complaint, Plaintiff has not convinced this Court thatAmerican Pipe should be applied to a PAGA claim. AlthoughDefendant’s RJN No. 2 (Superior Court ruling in similar case) is notbinding on this Court, the reasoning is sound and the Court concurs init. (See, RJN No. 2, p.4. Section B, “The Sixth Cause of Action UnderPAGA”).10:30A.M.4. SAN DIEGO NAVYBROADWAYCOMPLEXCOALITION V. SANDIEGO UNIFIEDPORT DISTRICT(1) Defendant San Diego Unified Port District’s Motion for SummaryJudgmentThe Joinder by USS Midway Museum is Granted. Plaintiff’s Requestfor Judicial Notice is Granted. The Motion for Summary Judgment isGranted. Within five (5) days Moving Party shall serve a (proposed)Order granting judgment on all parties and after the required holdingperiod under the California Rules of Court, file the (proposed) orderwith the Court.The essential facts are not in dispute. See, Plaintiff’s Response toSeparate Statement of Material Facts (“UMF”).Practice Tip. It is preferable in a Response Separate Statement thatthe references to the Moving Party’s supporting exhibits not beeliminated. This can be avoided if the Moving Party inserts itssupporting evidence in the same column as the material fact(underneath the material fact) leaving the right-side column for theResponse Separate Statement. This placement is critical when theCourt is ruling on evidentiary objections. This was not as critical in

this particular case, as there were none. But, even without evidentiaryobjections, it allows to have both party’s evidence references on onedocument.Ruling. The starting point for consideration of any summary judgmentis the Complaint. In this case Plaintiff sets forth the whole purpose ofits lawsuit in Paragraph 5, where it states, “(t)he basis for this lawsuitis the loss of public views caused by the Midway Museum, which wereto have been mitigated by the maintenance and enhancement ofpublic view on Broadway pier, but the new cruise ship terminal beingbuilt on Broadway Pier illegally interferes with the mitigation andrenders it inadequate and non-existent (emphasis).” Yet, this exactground was argued and decided in the action filed by this Plaintiff inthe earlier San Diego Superior Court lawsuit. In fact the identicalallegation also appears in Paragraph 5 of that Complaint. (Exhibit 1,5). Further, in that action, based upon the issue raised by thisPlaintiff, the San Diego Court specifically found the cruise shipterminal did not constitute a violation of the Coastal Act with specificregard to the mitigation measures adopted for the Midway Museum.Accordingly, Summary Judgment is granted on the basis of evidencepresented on Issue No. 2 (“Collateral Estoppel is a Complete Defenseto both Causes of Action”) (See, Third Affirmative Defense). See, UMFNo.’s 1-23, inclusive. For this reason it is not necessary to determinewhether on the theory of privity the doctrine of res judicata would alsoapply between Midway Museum (a former lawsuit litigant) and SanDiego United Port District (not a former lawsuit litigant). Res judicatarequires parity between parties in the present and earlier proceedings.Privity between a non-party and a former party with the sameinterests might suffice. See, Planning & Conservation League v.Castaic Lake Water Agency (2009) 180 C.A.4 th 210, 226.For purposes of collateral estoppel it does not matter that the secondlawsuit is framed differently or even that it seeks slightly differentrelief. The question presented by this Plaintiff in both cases waswhether the Midway Museum mitigation measure had been renderednon-complaint by the erection of a “massive immovable cruise shipterminal…” on the Broadway Pier.In addition, Moving Party has met its burden on Issue No. 3, inestablishing that Plaintiff’s claims are barred by the statute oflimitations and they constitute an improper and untimely attack onthe administrative findings of the Port and the Coastal Commission ofwhich Plaintiff did not seek judicial review. (Fourth AffirmativeDefense) Plaintiff’s attempt to plead around this is unavailing. AtParagraph 17 it alleges that it does not have to comply withrequirements challenging an administrative decision simply because it“is challenging lack of compliance with the CDP…” But the underlyingevents that constitute the heart of the alleged non-compliance werethe very acts that Plaintiff was required to timely respond to. And hedid. At Plaintiff’s urging the San Diego Superior Court considered theissue and specifically found “the Port District and the CoastalCommission previously considered and rejected Plaintiff’s claim thatthe cruise ship terminal would eliminate a mitigation measure adoptedin connection with the Midway Museum”. (Evidence in support of UMFNo.’s 60, 64, 65 & 67).To the extent that Plaintiff attempts to avoid the limitations periodthrough a conclusory allegation of delayed discovery. (Complaint 15) this allegation is refuted by the undisputed evidence recited

above. Also the limitations period is not extended by operation of acontinuing act doctrine, inasmuch as the complained of immovablestructure is just that. There is nothing ongoing, now that all of therequired pre-construction activities have occurred.(2) Defendant USS Midway Museum’s Joinder to Memorandum ofPoints and AuthoritiesGranted.(3) Status ConferenceOff Calendar. The Court sets an OSC re: Dismissal onAugust 21, 2013, 8:30 A.M. (Court Call appearances allowed) for thepurpose of ascertaining whether the Order granting Judgment hasbeen signed and filed. If so, the Court will take the OSC off calendaron its own motion. Defendant USS Midway to give Notice.5. CRISWELL V. MMRFAMILY LLC(1) Cross-Defendants Robert Allen, etc.’s Motion for SanctionsDefendant Current Owners’ Objections to the Declaration of Gary C.Weisberg are Overruled.The Motion is Denied. Moving Party seeks relief under CCP section575.2, apparently pointing to Current Owner’s failure to appear inperson at the MSC one year ago, and citing OCR 316(A) (“all partiesmust attend the MSC”). While CCP section 575.2 would have allowedMoving Party to bring a motion to this effect, the more obvioussolution, which would have entirely prevented any harm to MovingParty, would be a timely request to the settlement Judge that CurrentOwners appear physically or via telephone for the on-the-recordpronouncement of the Settlement Agreement.The Court cannot conclude on this record that attorney’s fees andcosts incurred by Moving Party over the ensuing one year have beencaused by Current Owners and their counsel, with no responsibilityborn by Moving Party.(2) Status ConferenceDetermine current status and likely case disposition of this lawsuit inlight of the: (1) prior affirmed order denying class certification,leaving only individual claims; and (2) subsequent filing of Strada v.M.M.R. Family LLC by certain individuals who may be the same as theindividual plaintiffs in Criswell.7. WOOTEN-SCHOCKV. MMR FAMILYLLC(1) Plaintiffs’ Motion for Preliminary Approval of Class ActionSettlementDeny. The Settlement Agreement is not enforceable under CCP.Section 664.6 because the JS Stadium LLC party was not presentwhen the agreement was placed on the record before the Court andthe Defendant did not sign subsequently sign a written settlementagreement. See, CCP section 644.6; Levy v. Superior Court (1995) 10C.4 th 578, 586.Plaintiffs’ complaints that, in failing to have a company representativeat the MSC, Current Owners violated local rules of court, is unavailing.It does not benefit anyone to speculate as to what might havehappened, had a Party notified the settlement judge early in theprocess that a party was missing or offered to have the party appearvia telephone, to place the oral agreement on the record.

In Current Owner’s Opposition to Cross-Defendant Allen’s Motion forSanctions, there is a reference to acquiescence in Current Ownersappearing at the MSC by telephone. (See, Opposition, Section I). Thisis not supported by a declaration, but no contrary declaration isoffered on the point either. The Court infers that Current Ownerswere available via telephone, as would normally be the case, if theywere not physically present. The Court’s Minutes do not confirm thisone way or the other.Current Owners counsel’s representation that he had had full authorityto bind his absent client to the settlement may be evidence of sometype of enforceability, but it does not extend to enforcement underCCP section 664.6. The device of statutory enforcement through amotion to enter judgment is not available here.(2) Cohen McKeon LLP’s Motion for Sanctions (against Hart,King Coldren; Robert S. Coldren)Rulings on Current Owners’ Objections to the Decl. of Mariconda arefiled concurrently.(3) Plaintiff’s Motion for Entry of Judgment; Request forAttorney’s Fees/Costs Sanctions (against Current Owners);Request for Protective OrderDeny. The Settlement Agreement is not enforceable under CCP.Section 664.6 because the JS Stadium LLC Party was not presentwhen the agreement was placed on the record before the Court andthe Defendant did not sign subsequently sign a written settlementagreement. See, CCP section 644.6; Levy v. Superior Court (1995) 10C.4 th 578, 586.Plaintiffs’ complaints that, in failing to have a company representativeat the MSC, Current Owners violated local rules of court, is unavailing.It does not benefit anyone to speculate as to what might havehappened, had a Party notified the settlement judge early in theprocess that a party was missing or offered to have the party appearvia telephone, to place the oral agreement on the record.In Current Owner’s Opposition to Cross-Defendant Allen’s Motion forSanctions, there is a reference to acquiescence in Current Ownersappearing at the MSC by telephone. (See, Opposition, Section I). Thisis not supported by a declaration, but no contrary declaration isoffered on the point either. The Court infers that Current Ownerswere available via telephone, as would normally be the case, if theywere not physically present. The Court’s Minutes do not confirm thisone way or the other.Current Owners counsel’s representation that he had had full authorityto bind his absent client to the settlement may be evidence of sometype of enforceability, but it does not extend to enforcement underCCP section 664.6. The device of statutory enforcement through amotion to enter judgment is not available here.The Court denies attorney’s fees and costs, as the Court is not able togrant the underlying relief, e.g. enforcement of settlement throughentry of judgment.As to the request for Protective Order, the Notice of Motion does notspecify with any particularity what specific order is sought. The Courtis unable to grant this request as stated, but will consider the contentof a timely filed (proposed) Order for clarification and consideration.

(4) Defendants MMR Family LLC (“Former Owners”), etc.’sJoinder to Motion for Entry of Judgment (Only)Grant Joinder as to Plaintiffs’ Motion for Entry of Judgment Pursuantto Settlement Agreement only and not as to Plaintiffs’ Request forsanctions Against Current Owners. (See, Joinder p. 2, line 16). Therulings indicated in Motion No.’s 1 & 2, above, apply to FormerOwners.(5) Defendants MMR Family LLC, etc.’s Motion forReimbursement of Attorneys’ Fees (by Current Owners)Deny. The Court denies attorney’s fees and costs, as the Court is notable to grant the underlying relief, e.g. enforcement of settlementthrough entry of judgment. Further, as to the proffered factual basisfor the attorney fees request, that Current Owners, alone wereresponsible for bad faith delaying tactics and obstructive conduct, thatconclusion is contradicted by Moving party’s own expressions offrustration with the conduct of persons other than CurrentOwners. See, Exhibit “O”, Current Owner’s Compendium of Evidence(DeGrave 7-page letter to Mariconda, dated May 24, 2013).(6) Defendants MMR Family LLC, (“Former Owners”) etc.’sMotion to Decertify ClassThis Motion is Ordered Off Calendar as Moot, in light of the Court’sintended Order Granting Dismissal of the Complaint against allDefendants. (See, Motion No.’s 7 & 8, infra).(7) Defendants JS Stadium LLC, (“Current Owners”) etc.’sMotion to Dismiss/ De-Certify Class ActionThe Court having denied the Motion(s) for entry of judgment pursuantto CCP section 664.7 (Motions No.’s 3 & 4, above) and Motion forPreliminary Approval of Class Action Settlement (Motion No. 1,above), the Court orders the Pending-Settlement Stay previouslyimposed, be terminated forthwith, since the agreement of the partiesallowed for the stay only until the Court approved the class action(and related global) settlement. Approval will not be forthcoming, asindicated in rulings on other motions heard this date.Background. By Minute Order dated February 26, 2013, the Courtset an Order to Show Cause/ Motion to Dismiss based upon apreviously filed Motion to Dismiss the Complaint for violation of theFive-Year Rule, filed by Current Owners and Joined by Former Owners.(The Motion also requested, as separate relief, an order Decertifyingthe Class. That portion of the Motion is not addressed herein. (See,ruling on related Motion No. 6, above).The matter was set, after further briefing, for hearing on March 29,2013. Current Owners filed their Motion to Dismiss on march 7, 3013,Former owners filed their Joinder to the Motion that same date.Plaintiffs filed their Opposition on March 18, 2013. No Replies werefiled.The OSC/Motion to Dismiss was trailed to various hearings datesthereafter as the hearing dates were consumed by the supersedingactivity of working toward a written global settlement agreement andstipulation to settlement of class claims.Current Owners’ Request for Judicial Notice is Granted (Document

No.’s 1-67, inclusive). Rulings on Plaintiff’s Evidentiary Objections tothe Declaration of Robert S. Coldren filed in Support of (Current)Owners’ Motion are filed concurrently.Ruling. The Court having considered the matter, now GrantsDismissal. CCP section 583.310 mandates that an action be brought totrial within five years after its commencement. Plaintiffs concede thatas of the date of the settlement stay on July 13, 2013, the five-yearstatute would have expired on August 18, 2012, leaving them a merethirty-six (36) days to bring the matter to trial. (Opposition p.9). Under CCP § 581(a)(6) trial does not commence until theswearing of the first witness. In the case of a jury trial such as this,jury selection would have to be completed and the panel sworn beforewitnesses would be sworn and testify. In this Court’s experience, it isreasonable to conclude that jury selection would take at least two (2)court days, followed by the settling and delivery of openinginstructions, at least the Plaintiffs’ opening statement, consuming aprobable additional two (2) court days. Notably, the five-year statuteruns on calendar, not court days, further impacting the calculation.As explained further below, the Court finds that, a mere 36 calendardays left on the clock, Plaintiffs were then are still are in no conditionto try a class action lawsuit to a jury, on these issues, with thislitigation background, within the five-year deadline. While the Courtcould theoretically order the Parties to immediately resume their trialpreparation, and meet all of the of this Court’s Trial ReadinessConference Order and OCR 317 requirements forthwith, it would besupremely inappropriate for this Court to do that. The Court findsthat as a matter of law, there is no conceivable way that Plaintiffscould commence trial in 36 days, consistent with the due processrights of the defendants and most of the class members, for thatmatter, and so, the Court enters the order granting dismissal now.See, Massey v. Bank of America (1976) 56 C.A.3d 29, 33. (immediatedismissal under the five-year rule warranted with an undisputed 34days left.)The Court has reviewed the entire electronic docket in this case,spanning 6 ½ years, to come to the conclusion that pursuant to CCPsection 583.340(c), other than the findings made on October 24, 2011resulting in the calculation of the remaining time left on the five-yearclock, there is no basis for any further finding that any additionalperiod of tolling is required under the guise that Plaintiffs were unableto move faster due to reasons of impossibility, impracticality orfutility. Quite simply, the Plaintiffs were unprepared to meet the 36-day run-up to trial on the day they entered into the oral settlementagreement, and with that agreement no longer in play, they arereturned to that condition today. Further, in balancing the Plaintiff’sconduct (the inability to reach timely case milestones throughout theentire course of the lawsuit) with the interest of the Defendants, theCourt concludes that, even with two lengthy tolling periods excluded,there is no reasonable basis for extending the Defendants’ exposureto litigation for more than the 6 ½ years that it has persisted.Plaintiffs have still not complied with all of this Court’s critical trialreadiness orders, which were never vacated or amended as a result ofsettlement. In fact one key order, that class action special juryverdicts be filed by Plaintiffs, required compliance before thesettlement was reached. To this date, no such verdicts have beenfiled, the Plaintiffs choosing instead to unilaterally opt-out of theorder, by declaring that it no longer wants a jury. (See, comment tospecial verdict on individual claim of one plaintiff only (7-13-12). Thisdepartment will not commence a jury trial until Plaintiffs have

submitted a court-worthy special verdict form. This is why the specialorder was entered. In a recent class action jury trial commenced inDepartment CX-104, Complex Civil Center, the Parties were held upfor many weeks due to the submission of inadequate and poorlyconceived special verdict forms. In a complex case, it is inappropriateto commence trial without everyone in the case having a clearunderstanding as to exactly what the jury will be asked to decide.Exercising this Court’s inherent authority and obligation to managecomplex litigation in a manner that does not unnecessarily waste thepublic’s (juror’s) precious resources, this Court takes seriously its trialreadiness orders.In evaluating the record in this case, the Court has considered thatthis is a class action where absent class members’ interests are atstake. Plaintiffs consumed over 5 ½ years to certify a class and serveclass notice. The class by all accounts exceeds 400 households. Bydefinition the members fall into various sub-classes and it is not clearthat those sub-class members have yet been identified. (DeGraveDecl. filed 6-11-13) With a hypothetical trial commencement in 36calendar days, there is no reason to believe that class members whohave not opted out would be given adequate means of notice, so theycould participate, observe or retain their own counsel. The Court is notsuggesting a full re-noticing would be required, but there is noindication in the record that a website has been established and theClass Notice itself does not provide for anything other than a one-waysnail mail access by class members to class counsel. (no e-mailaddresses or phone numbers provided; includes instructions not tocall counsel or the court).To the extent it might be argued that the Court could still timely trythe individual claims of the numerous representative plaintiffs, theCourt heads off this argument at the pass. First, it would beunseemly and a violation of the representative plaintiffs’ duty to theclass to seek any personal advantage, not otherwise afforded to theclass. This is the requirement and burden that the representativeplaintiffs took on when the sought and received the Court’sappointment. Secondly, one of the “individual” plaintiffs, GSMOL 571is an entity, which purports to represent scores of additional unnamedhouseholds, and so the trial of its claims would involve many of theintractable same problems outlined in this ruling.Further Problems. As stated above there have been extreme delaysin achieving key litigation milestones, that have cost the Plaintiffsdearly, in this final leg. Not unrelated has been the problem of staffingthe case. Ever since Judge Velasquez required that experienced classcounsel associate in as a condition to certification, original counsel hasstruggled to increase the pace of this lawsuit. While some of cocounsel’sincompatibilities will necessarily remain confidential, thepublically-aired conflicts have only caused further delays.Before the aforementioned settlement conference of July 13, 2013,trial had been set for August 6, 2013. There were no orderssuggesting that the trial date was not firm, particularly with the wellacknowledgedfive-year issue looming. Serious signs that the trialwould not proceed on schedule first surfaced on May 23, 2013, whenexperienced class counsel Cohen & McKeon filed a Notice ofDissociation of Counsel coupled with a Motion to be Relieved asCounsel. Inasmuch as the certification order was expresslyconditioned on the association of experienced class counsel, thedisassociation alone, would have eliminated the Class’s ability to bringtheir matter to trial. Based on the grounds of dysfunction set forth inthe Declaration in Support of the Motion, the condition persisted and

on June 8, 2013 the Court denied the Motion and struck the Notice. Itwas of grave concern that experienced class counsel had indicatedthat they did not have access to key litigation documents.There is no reason to believe that Plaintiffs’ trial team fared any betterafter that because on July 3, 2013, a mere 34 days before trial, Cohen& McKeon filed an Ex Parte Application to be Relieved as Counsel ofRecord, citing continuing compatibility problems with co-counsel. TheCourt, based upon its own experience infers from this secondapplication that extremely serious dysfunction was occurring,rendering the Plaintiff’s trial team impotent. The Court draws thisinference from the fact that class counsel with an established andunblemished reputation in representative matters, knowing full welltheir professional obligations to absent class members and the Court,found it necessary to exercise the nuclear motion of an eve-of-trialdeparture from the trial team. This gesture speaks volumes as to thePlaintiff’s trial readiness 34 days before the trial date. After the Courtattempted to solve the problem by appointing Cohen & Mckeon aslead counsel, the case settled. Inasmuch as the settlement occurredonly 10 days after the appointment of lead counsel, there is no basisin reason to conclude that this forced marriage produced anythingother than a pathway toward settlement. Trial on the other hand,requires an entirely different relationship dynamic, not in evidence atany time during the final months leading to the trial date.Other Considerations. Plaintiff’s sole opposition to the Motion toDismiss consists of a statement in that “equitable estoppel and judicialestoppel” should require a further tolling and or “waiver” of the fiveyearstatute (Opposition, Section 3(A)). This argument is notsupported by any authorities. If Plaintiffs are suggesting that certaindefendants have acted to delay trial preparation through a year-longprocess of completing a written settlement agreement, thosearguments even if true, would not provide sufficient equities becausethe 36-day clock was ticking before the year-long settlement efforts.Taking away the one year delay (for which the Plaintiffs had a tollingorder in place), places them in the same position they were prior toany settlement.Moving Party to file and serve the Order of Dismissal within five (5)days.(8) Defendant MMR Family LLC, (“Former Owners”) etc.’sJoinder to Motion to DismissGrant Joinder.(9) Status Conference(1) Wooten-Schock (No. 06-CC00262). Set OSC re: Dismissal for July30, 2013, 8:30 A.M. Court Call appearances permitted. If Dismissalsas to all Defendants are signed and filed prior to that date, the Courtmay take the OSC off calendar on its own motion. Plaintiffs to giveNotice.(2) Criswell (No. 07-CC01416) (See, Above)(3) Strada (No. 30-2011-00445983). Set Trial Setting Conference for_________________(Monday-Wednesday, 8:30 A.M. Counsel tomeet and confer on discovery completion; trial preparation and trialestimate. Plaintiffs to give Notice.

JABAROGHLI V.U.S.HEALTHWORKSHOLDINGCOMPANY, INC.Motion for Preliminary Approval of Class Action Settlement.The matter is advanced from July 22, 2013, on the Court’s motionand re-set for July 31, 2013, 8:30 A.M. The Court finds that thesettlement is fair, adequate and reasonable and tentatively grantsapproval, appointing class counsel and class representatives.July 23,2013,8:30 A.M.(partial)July 24,2013 8:30A.M.(partial)RODRIGUEZ V.BILLABONGWASSON V.CHINO HILLS OIL,INC.On or before July 26, 2013 counsel shall file supplementaldocumentation addressing: (1) Attorney’s Fees. Detailed billingstatements for co-counsel (a) Spiro Moore LLP and (b) Lavi &Ebrahimian LLP law firms; (2) Attorney Costs. Reconciliation of all the“mediation fees” costs posted by four separate attorneys, when, howmany mediations, etc. (3) Representatives’ Enhancement(s). (a) TheRepresentatives’ personal recovery amount(s); (b) average classmember recovery amount; (c) high and low recovery amount(s)Plaintiff to give Notice.SO ORDERED: July 18, 2013Motion for Preliminary Approval of Class Action Settlement.The matter is advanced from July 23, 2013, on the Court’s motionand re-set for August 13, 2013, 8:30 A.M. The Court finds that thesettlement is fair, adequate and reasonable and tentatively grantsapproval, appointing class counsel and class representatives.On or before August 6, 2013 counsel shall file supplementaldocumentation addressing: (1) Attorney Fees. Detailed and itemizedattorney billing statements; (2) Attorney Costs. Further breakdown ofthe higher-ticket costs submitted by Attorney Meneses, e.g. mediationfees: $8250; Investigation Services: $3288. (Decl. of Meneses 8).Plaintiff to give Notice.SO ORDERED: July 18, 2013Motion for Preliminary Approval of Class Action Settlement.Please Take Notice. The Court has reviewed the supplementaldocumentation ordered at the hearing held on March 22, 2013. TheCourt advances the hearing set for July 23, 2013, and GrantsPreliminary Approval of Class Action Settlement, finding it to be fair,adequate and reasonable, appointing class counsel, classrepresentatives, and the class administrator, CTP Group, Inc.The Court has signed and filed the Order this date, makingadjustments to the timeline at Paragraph 10.A Final Fairness Hearing is set for ________________, 8:30A.M. Plaintiffs to give Notice.SO ORDERED: July 18, 2013

SILVA V. JO-ANNSTORES, INC.Motion for Attorney’s Fees (Supplemental)Please Take Notice. On the Court’s motion, this matter is advancedfrom the hearing set on June 26, 2013, and the Court now rules. OnJune 24, 2013 the Court entered rulings at the Final Fairness Hearingon all issues, with the exception of Attorney’s Fees. Class Counselhave now submitted supplemental filings and the Court hasconsidered them.The Court orders that Class Counsel be awarded total fees in theamount of $250,000, with 84% ($210,000) awarded to Capstone LawAPC and 16% ($40,000) awarded to Initiative Law Group APC. Thefee awards have been entered into the Order Granting Final Approvalof Class Settlement and Judgment, filed concurrently herewith.Plaintiff to give Notice.This was a very good settlement for those who made claims, at afairly good claims rate of 78%. The claims paid ranged from $4,700to $8,400. The billings look appropriate and are properly billed at10ths of an hour. As to a common fund or percentage approach, a25% to 30% recovery is appropriate here and would render alodestar of $100, 000- $117,000. Cross-checking with a lodestarmultiplier approach, the Court observes that Counsel billed a total of863.4 hours for a claimed lodestar of $391,658. The billing rates area little on the high side, but even if billed at $350 an hour, that wouldcreate a lodestar of $306,000. Even a multiplier of 1.5 would render afee of $460,000.Balancing the lodestar multiplier with the percentage approach, a feein the range of $200,000 to $275,00 is appropriate given the positivenature of the Settlement and response. The requested $250,000 isappropriate.A Final Accounting Hearing is set for _______________8:30A.M. Plaintiff (or Class Administrator) shall file a Status ConferenceStatement three (3) days before hearing. Plaintiff to give Notice.SO ORDERED: July 18, 2013

TENTATIVE RULINGSDEPT CXC-105Judge Nancy Wieben StockDate: July 26, 2013Law & MotionTHIS COURT FOLLOWS CRC 3.1308 (a) (2) FOR TENTATIVE RULINGS EXCEPT WHERE EXPRESSLYSTATED.July 26,20139:00 A.M.Case Name2. GARCIA V. ABLEBUILDINGMAINTENANCETentative(1) Plaintiff’s Motion for Leave to File Fourth Amended ComplaintThe Motion is Denied. Moving Party shall file a (proposed) Orderwithin five (5) days and give Notice in all related cases.Overtime Claims. Mr. Garcia is concededly a member of the Overtimeputative class in the related case of Jaimes v. Able BuildingMaintenance, Case No. 30-2011-00513867 (Reply) and therefore, hisinterests in prosecuting those claims is intact. The fact that the Jaimesclass had not been certified yet is of no consequence, because there isno greater guarantee that Mr. Garcia’s case would be certified either.Such would be pure speculation.PAGA Allegation. In a Supplemental Reply, Mr. Garcia withdraws hisrequest to amend his complaint to add a PAGA allegation.Additional Class Representative (Alexandra Castejon). The MovingPapers are silent as to the reason that Mr. Garcia requires a secondClass Representative after three and one-half years of litigating thecase on behalf of the putative class.(2) Status ConferenceThe Court is reviewing the (proposed) Case Management Order filed inthe Garcia matter, both Plaintiff and Defense versions, and will beprepared to provide comments at time of the conference.3. JAIMES V. ABLEBUILDINGMAINTENANCE(1) Plaintiff’s Motion for Leave to File Third Amended ComplaintThe Motion is Denied on multiple grounds. First, it was improperlyserved late. Plaintiff does not deny this, and only states that sheoffered a continued hearing date. (Reply) The motion should neverhave been served late with the noticed hearing date intact, in the firstplace.It is also denied because the motion does not comply with Rule3.1324. It does not list the additions and deletions by page,paragraph and line number, does not set forth facts as to why theseamendments could not have been made previously, and does not setforth the effect of the amendment; namely, its effect on previousdiscovery rulings, its effect on necessary new discovery and its effecton certification and the timing of certification in a case that is nowalmost two years old. Further, there is no evidence offered as to thereason that the new proposed plaintiffs were not retained earlier and

why the new claims were not learned earlier. It is also entirely unclearwhy two new Plaintiffs need to be added to the existing Causes ofAction and why it could not have been done earlier.Thirdly, and most importantly, the motion is denied because it is notis not a motion to amend to add new causes of action on behalf of thecurrent Plaintiff, Ms. Jaimes, and the class she purports to represent.This motion adds two entirely new and unrelated causes of action thatare not shared by Ms. Jaimes. Indeed without the proposed two newplaintiffs, Messrs. Asher & Cervantes, there is no case on the claimsfor reporting time penalties and business expense reimbursement.(Third Amended Complaint, Paragraphs 62-71).This raises substantial problems with respect to the statute oflimitations as a new lawsuit is proposed to be interwoven with anexisting lawsuit and each should have separate commencement datesfor a statute of limitations calculation. This is because the new causesof action do not relate back the filing of the original Complaint, asthey arise out of different transactions. This is illustrated in part, bythe fact that the current Plaintiff, Ms. Jaimes, is not even a member ofthe purported new class. As such, Ms. Jaimes is a stranger to the newclass claims and Plaintiff has cited no legal authority to allow astranger to this new class to amend his Complaint to assert suchallegations.The Court will file the Order at time of hearing. Plaintiff to give notice.(2) Status ConferenceThe Court is reviewing the (proposed) Case Management Order filed inthe Garcia matter, both Plaintiff and Defense versions, and will beprepared to provide comments at time of the conference.4. DAVIS V. ST.JUDE HOSPITAL(1) Defendants St. Jude Hospital, etc.’s Motion to Strike Portions ofSecond Amended ComplaintGrant Defense Request for Judicial Notice Exhibits A-C, G,only. Sustain Objections to Exhibits D-F. (separate order on file)The Motion to Strike is Granted without leave to amend. Thestatutes of limitations noted by Defendants in their Reply will apply tothis Action. The Plaintiffs need not file an amended pleading toconform to this ruling. The Court will sign and file the (proposed)Order; Moving party to give Notice.Procedure. The Motion to Strike is a proper vehicle to address theissues raised here. Even if it were not, the Court could treat theMotion as a demurrer or motion for judgment on the pleadings to thesame effect.Ruling. The Second Amended Complaint which is the subject of theMotion to Strike does not relate back to the Original Complaint andFirst Amended Complaint for purposes of the statute of limitationsbecause the facts alleged in the Second Amended Complaint,compared to the first two Complaints, demonstrate that they do notarise out of the same general set of facts. This is because neitherDefendants St. Jude Medical Center or Mission Hospital regionalMedical Center, nor Plaintiffs Davis or Krajec were parties to the firsttwo Complaints. Therefore, the statute of limitations continued to runas to St. Jude and Mission up to the point when they each became aparty to the action. See, Union Tank & Pipe Co. v. Mammoth Oil Co.(1933) 134 Cal. App. 229, 231; Ingram v. Superior Court (1979) 98

Cal. App. 3d 483, 492.Plaintiffs contend that the first two complaints alleged a jointemployertheory. There are no such allegations nor any facts allegedwhich would support such a theory. Paragraph 9, although somewhatnebulous, did not seek to impose liability on St. Jude or Mission; itsought to impose liability on the Defendants Queen of the ValleyMedical Center and St. Joseph Health System. Therefore, in additionto not being named as joint employers, St. Jude Medical Center andMission Hospital Regional Medical Center were not placed on notice oftheir potential liability.Further, the American Pipe case does not provide for equitable tollinghere because Plaintiffs Davis and Krajec were not members of theclass alleged in the first two complaints, as they were not employeesof the Defendants and named in those Complaints, e.g. Queen of theValley Medical Center or St Joseph Health System, an entity alleged tohave “control(led) and operate(d)” Queen of the Valley MedicalCenter (Complaint 9, Defense RJN Exhibit “A”). Further, as statedabove, Plaintiffs Vinas, and Asuncion were never alleged to have beenemployees of St. Judge or Mission. For these reasons, it is notnecessary to reach the issue of whether under California law whetherAmerican Pipe applies to a situation where class certification has notbeen denied.(2) Status Conference. (Advanced from 7-31-13 by stipulation/orderfiled 7-22-13)5. DONOVAN V.SHEA HOMES INC.(1) Cross-Defendant Sukut Construction, Inc.’s Motion to CompelProduction (Shea Homes LP)** SUBMITTED**The Motions are Denied. These are motions to compel responsesunder CCP section 2030.290(b)(c); 2031.300(b)(c) governing acomplete failure to make any timely response. (Notice of Motion).However, responses were served as to each and every Interrogatory.(Joint Opposition, Exh. “A”). Moving Party Sukut cites no authority forthe proposition that a written objection filed in response to a requestfor production or an interrogatory is not a “response” within themeaning of the Discovery Act. Therefore any motion concerning theresponses must be a motion to compel further responses. See, e.g.CCP sections 2030.300; 2031.310.Sanctions are denied Moving Party Sukut as it has not made asuccessful discovery motion. Sanctions are denied Opposing Part(ies)Shea/The Reserve under CCP section 2030.290(c) as there arecircumstances which render the imposition of sanctions in favor ofopposing part(ies) unjust. These circumstances include the misuse ofserial objections, in lieu of substantive responses, when opposingcounsel would not grant additional time for the filing of substantiveresponses. In light of the ruling, ante, the Court has not analyzed thelegal viability of the objections, since this was not a motion to compelfurther responses, there was no separate statement and counsel didnot meet and confer. However, if the practice should surface again, inconnection with a viable discovery motion, the use of objections in lieuof simple answers to simple questions will be deemed a discoveryabuse and will result in monetary sanctions.Counsel are ordered to visit the Orange County Superior Courtwebsite www.occourts.org, and review the California AttorneyGuidelines of Civility and Professionalism, approved by the State Bar

and adopted for use in all Complex Civil Departments.(2) Cross-Defendant Sukut Construction, Inc.’s Motion to CompelProduction (The Reserve South at Forster Highlands)** SUBMITTED**See ruling above.(3) Joint Motion to Vacate Trial Date (continued from July 23, 2014,above)6. LINTZ V. DOHR(NEIL SHAPIRO,SPECIALTRUSTEE)(1) Cross-Complainants William F. Dohr, etc.’s Motion for Leave to FileSecond Amended Cross-ComplaintThe Evidentiary Objections to the Declaration of Thomas Vogele areOverruled. The type of material required to make a showing underCRC 3.1324 is not the typical factual eye-witness type evidence but ofnecessity, a revelation of the reasons for certain actions from theperspective of the declarant.The Court has no tentative ruling, however, offers the followingconcerns for consideration at oral argument. The reason that CRC3.1324 requires a statement regarding the “effect of the amendment(emphasis)” is in a long-delayed case such as this there may andlikely are significant problems with the statute of limitations (addingnew cross-complainants); the allegation of a sham pleading (earlierversions irreconcilable with current proposed version; or interimdiscovery responses cannot be avoided) and other related problems.See, CRC 3.1324(b)(1). Further, when the proposed amendedpleading involves wholesale deletions of pages of prior allegations,this cries out for a very robust treatment of CRC 3.3124(b)(2)(4)’srequirement that the “necessity” for such a wholesale revamping is“proper.” Even if the above areas are adequately addressed, theCourt would not grant leave to file an amended cross-complaint thathas stylist changes owing to a newer law firm taking over for a formerone. One person’s style is another person’s substance. Inevitably,considerable judicial and attorney resources will be taken up trollingthrough hundreds of paragraphs of pleadings, on the eve of trial to noone’s benefit.Finally, since the proposed amendment could have a profound effecton the viability of the trial date, one of the “effects” under CRC3.1324(b)(1) is the inability to bring the case to trial within the fiveyearstatute. This is not addressed by Moving party.7. ORANGE COUNTYWATER DISTRICTV. SABICINNOVATIVEPLASTICS US LLC(1) Defendant Colonial Engineering, Inc.’s (Unopposed) Motion forDetermination of Good Faith SettlementNo Hearing.Please Take Notice. On the Court’s motion, this unopposed motion isadvanced and Granted. There is no opposition to this motion, savefor a conditional opposition filed on behalf of the CaliforniaDepartment of Toxic Substances Control, indicating no opposition tothe (proposed) Order that was filed and served by Moving Party.The Court has, this date signed and filed the (proposed) Order,modifying it only to conform the dismissal language (3) CCP section877.6(c). Moving Party to give Notice.SO ORDERED: July 25, 2013

(2) Defendants Accurate Circuit Engineering Inc., etc.’s Motion toDismissNo Hearing. This matter was advanced by order entered 7/24/13 andheard on 7/25/13.8. TINKER V.LENNAR HOMESOF CALIFORNIAINC.(1) Plaintiffs’ (Unopposed) Motion for Leave to File Second AmendedComplaintPlease Take Notice. On the Court’s motion this matter is advanced toJuly 22, 2013 and Granted. amendments are to be liberally granted,absent a compelling reason not to and this Motion is unopposed.The Order is signed and filed this date, Moving Party to give Notice.9. STUEVE V.NOVELLSO ORDERED: July 22, 2013(1) Plaintiffs’ Motion to Authorize Discovery of Defendants’ FinancialRecordsDeny. On the basis of the Notice alone, the Court would have noauthority to grant the requested relief, which is an open-ended order“authorize(ing) discovery of Raymond A. Novell’s and Jay WayneAllen’s financial records.” This is a non-starter under California law.Relevance is not the determining factor when it comes to financialrecords. Even assuming relevancy, Plaintiffs have not met theirburden of proof under any applicable legal standard.First, Plaintiffs have failed to cite to any authority, other than CivilCode Section 3295, by which a Court can pre-approve the wholesalediscovery of financial records without knowing the exact scope of theinformation sought.Secondly, Plaintiffs have failed to set forth precisely what financialrecords they want, so the Court can assess whether they arediscoverable.Thirdly, If Plaintiffs are seeking the records under Civil Code Section3295, they have failed to meet their burden as they have failed topresent evidence that there is a substantial probability that Plaintiffswill prevail on their claims for punitive damages. Civil Code Section3295. Further, if Plaintiffs are seeking financial recordsotherwise, they have failed to show that personal financial recordsare directly relevant or essential to proceedings or that there is acompelling need for the information; the fact that the records may berelevant to the subject matter of the action or relevant to theallegations made in the operative Complaint is insufficient toovercome the privacy concerns.Finally, the open-ended nature of the order sought forecloses anyassessment of the document types and periods sought or any otheranalysis that the Court is required to perform in balancing the interestof the Parties. This problem is underscored in the Opposition(s) whereit is indicated that some types of financial documents have alreadybeen produced or are otherwise in possession of Plaintiffs.On this basis, it is unnecessary to consider the evidentiary objectionslodged by Defendant Allen as to the Declaration of Robert E. Barnes.Allen’s Request for Judicial Notice is Granted.The Court will sign and file the Order at time of hearing. Moving Partyto give Notice.

(2) Trial Setting Conference(3) Status Conference

TENTATIVE RULINGSDEPT CXC-105Judge Nancy Wieben StockDate: August 2, 2013Law & MotionTHIS COURT FOLLOWS CRC 3.1308 (a) (2) FOR TENTATIVE RULINGS EXCEPT WHERE EXPRESSLYSTATED.August 2,20139:00 A.M.Case Name1. FROST V.SHAKEY’S USAINC.2. GOLDENEYEHOLDINGS INC. V.STRATUSFRANCHISING LLC3. JAIMES V. ABLEBUILDINGMAINTENANCETentative(1) Plaintiff Rafael Johnson-Villalobos’s Motion to Compel FurtherResponses to Special Interrogatories(2) Plaintiff Rafael Johnson-Villalobos’s Motion to Compel Production(1) Defendants David Farrell, etc.’s Demurrer to 2 nd AmendedComplaint(1) Plaintiff’s Motion for ReconsiderationThe Motion for Reconsideration is Denied. Discovery Sanctions areGranted in favor of Defendants Crown Building Maintenance and AbleAcquisition Corp. jointly, payable by Mahoney Law Group, APC andSam Kim, Esq., jointly in the amount of $2,000, payable on or beforeAugust 14, 2013. CCP. Section 2023.010(h); 2023.030(a). See,Mattco Forge, Inc. v. Arthur Young & Co. (1990), 223 Cal.App.3d1429. The Court will file a signed Order at time of hearing.The Motion does not comply with CCP Section 1008, as it does not setforth any new or different facts, circumstances or law by way ofaffidavit. The Declaration of Mr. Kim is silent as to these importantand relevant facts and the Court therefore has no jurisdiction to hearthe matter.Further, there is nothing inconsistent between the Order of June 25,2013, and any other proceedings or order with regard to thisdiscovery issue. (The Court has since signed and filed the (proposed)orders submitted in the Declaration of Paul J. McDonald, in Oppositionto the Motion). The Order of June 25, specifically addressed the issueof sanctions when it stated that the belated and improperly submittedsupplemental documents would still be considered, but they would notaffect the issue of sanctions.5. QUILES V. KOJI’SJAPANINCORPORATED(1) Defendant AJ Parent, LLC’s (Unopposed) Motion to DismissModified 7/31/13; 5:15 P.M.No Hearing.The matter is advanced on the Court’s motion; the unopposed motionto dismiss defendant AJ Parent LLC with prejudice is Granted. Ademurrer was previously sustained and the subsequent complaint

failed to assert any claims against this defendant. Accordingly,pursuant to CCP 581, the Defendant is dismissed with prejudice. Canov. Glover (2006) 143 C.A.4 th 326, 329.SO ORDERED: July 31, 2103(2) Order to Show Cause Re: Monetary SanctionsPlease Take Notice. The Court vacates this OSC. There hearing will betaken Off Calendar. The Court has considered Mr. Madoni’sResponsive Declaration filed July 30, 2013 and supporting evidenceand concurs that sanctions under CCP section 128.7 would not beappropriate.Defendant to give Notice.6. PEOPLE V.DERRICK SLEDGESO ORDERED: July 31, 2013(1) Motion for Reconsideration7. ORANGEREDEVELOPMENTAGENCY V. CITYOF ORANGEDefendant City of Orange’s Ex Parte Application to Compel Principalsand Liability Insurers to Appear at Mediation.No Hearing. On the Court’s motion the hearing is advanced and theapplication is Denied.Moving Party reports disappoint in the lack of progress in a recentmediation session. However, Moving Party has failed to establishfacts indicating irreparable injury or harm warranting ex parte relief.Further, Moving Party lacks authority for the proposition that one thefacts presented in the Application, the Court could or should ordercertain persons to attend a second mediation session. Even if it werea first session, the Court lacks the authority to order persons toattend, as under California law, mediation of this type is purelyvoluntary. Jeld-Wen Inc. v. Superior Court (2007) 146 C.A.4 th 536.Moving Party’s reliance on OCR 360 E. (5) is misplaced as this is notpart of the voluntary civil mediation program established as a pilotprogram by that rule. Further Moving Party cannot rely on the Court’slocal rules governing Mandatory Settlement Conferences as the lawgoverning these courthouse-based, judicially-supervised events isentirely different.The County’s explanation for why it did not produce the attendance ofthe other two named carriers at the mediation session makes sense.It also does not appear to be the product of the County prematurely“throwing in the towel” or sending negative messages aboutsettlement prospects. Hopefully, the facts discussed in this applicationand response will remind the parties of the core concerns and coregoals that need to be obtained through a confidential mediationprocess. Parties are also reminded that a court-based MandatorySettlement Conference could and should be sought at the appropriatetime.The Court has signed and filed the Order. City of Orange to giveNotice.SO ORDERED: August 1, 2013.

TENTATIVE RULINGSDEPT CXC-105Judge Nancy Wieben StockDate: August 2, 2013Law & MotionEx PartesTHIS COURT FOLLOWS CRC 3.1308 (a) (2) FOR TENTATIVE RULINGS EXCEPT WHERE EXPRESSLY STATED.Case Name1. FROST V. SHAKEY’SUSA INC.Tentative(1) Plaintiff Rafael Johnson-Villalobos’s Motion to Compel FurtherResponses to Special Interrogatories (Set One)The Request for Judicial Notice is denied on relevance grounds. Further,the Court may consider its own files at any time without a formal Requestfor Judicial Notice.The Motion is Granted. Defendant shall provide further full and complete,verified, written responses to the Interrogatories, without objection, byAugust 14, 2013. The Responses shall be personally served on thatdate. No extensions of that time shall be given. Defendant’s counsel,Christopher W. Carlton and The Carlton Firm, jointly and severally, shallpay sanctions to Plaintiff Rafael Johnson Villalobos, in the amount of$1,500, by August 14, 2013 for the abuse of the discovery process, for thefailure to properly meet and confer, and for the necessity of this motion.As this Plaintiff had not served interrogatories previously, he was notsubject to the 35-interrogatory limit. If Defendant thought otherwise,Defendant should have brought a motion for a protective order assuggested by Weil & Brown. The Interrogatories all dealt with issuesrelevant to class certification. Defendant has not even attempted to showthe propriety of the other objections made to the Interrogatories.(2) Plaintiff Rafael Johnson-Villalobos’s Motion to Compel Response toRequest for Production of Documents (Set One)The Motion is Granted. Defendant shall provide further full and complete,verified, written responses to the Requests For Production of Documentsand provide the required documents, without objection, by August 14,2013. The Responses and the documents shall be personally served onthat date. No extensions of that time shall be given. Defendant’s counsel,Christopher W. Carlton and The Carlton Firm, jointly and severally, shallpay sanctions to Plaintiff Rafael Johnson Villalobos, in the amount of$1,500, by August 14, 2013, for the abuse of the discovery process, forthe failure to properly meet and confer and for the necessity of thisMotion.The documents requested all dealt with issues relevant to classcertification. Defendant has failed to present any evidence that thediscovery was intended to harass or annoy or was overly broad,burdensome or oppressive. If Defendant found certain terms vague,Defendant was required to properly meet and confer to agree to aworkable definition or use a common definition and respondaccordingly. Further, the Responses do not comply with CCP Section2031.240 (b)(1).

2. GOLDENEYEHOLDINGS INC. V.STRATUSFRANCHISING LLC(1) (Individual) Defendants David Farrell, Marvin Ashton & CarmenGarcia’s Demurrer to Seventh Cause of Action (UCL) of the SecondAmended ComplaintThe Demurrer to the Seventh Cause of Action (UCL) is Sustained withoutleave to amend as to Moving Defendants, David Farrell, Marvin Ashton &Carmen Garcia’s (hereinafter “Defendants” or “Moving Parties”). MovingParties to submit the (proposed) Order within five (5) days and giveNotice.The Demurrer is proper here. Plaintiff decided to file an amendedComplaint. An amended Complaint supersedes the prior Complaint andopens up the amended pleading to demurrer. The prior Demurrer did notaddress the specific issues raised here. Even if that were not so, acomplaint that fails to state a cause of action is subject to attack, by allsorts of means, through trial and up to judgment. This is so for the verysimple reason that if no cause of action is stated there is nothing uponwhich to proceed. If necessary, this Demurrer can be treated as acommon law motion for judgment on the pleadings. And, in the end, theissue raised by the Demurrer needs to be dealt with.To the extent that prior allegations of interference formed the basis for theUCL claim against these Defendants, Judge Moss’s correct prior rulingeliminated that basis.As to the UCL claim, as to Defendants, there are no allegations thatsupport a violation of the UCL under the fraudulent prong or unlawfulprong. And, the allegations as to Defendants do not constitute unfairconduct as that term is used in relation to the UCL as they do notconstitute “conduct that threatens an incipient violation of an antitrust law,or violates the policy or spirit of one of those laws because its effects arecomparable to or the same as a violation of the law, or otherwisesignificantly threatens or harms competition. ” Cel-Tech Communications,Inc. v. Los Angeles Cellular (1999) 20 Cal. 4th 163, 186-87.The UCL claim fails otherwise. Damages are not recoverable under theUCL, only restitution. The SAC does not allege and cannot allege that theseDefendants who were at all times acting as the agents of the Corporation,personally received monies, which must now be disgorged as restitutionunder the UCL.Finally, the Barsegian case is not controlling here. It involved aboilerplate allegation that all the defendants were the agents of all theother defendants and was dealing with an arbitration issue. Here, theseDefendants are specifically alleged to be officers of the Corporation andindeed their liability is based on that fact. Their liability is not based on anymutual agency allegation.3. JAIMES V. ABLEBUILDINGMAINTENANCE(1) Plaintiff’s Motion for ReconsiderationThe Motion for Reconsideration is Denied. Discovery Sanctions areGranted in favor of Defendants Crown Building Maintenance and AbleAcquisition Corp. jointly, payable by Mahoney Law Group, APC and SamKim, Esq., jointly in the amount of $2,000, payable on or before August14, 2013. CCP. Section 2023.010(h); 2023.030(a). See, Mattco Forge,Inc. v. Arthur Young & Co. (1990), 223 Cal.App.3d 1429. The Court will filea signed Order at time of hearing.The Motion does not comply with CCP Section 1008, as it does not set forthany new or different facts, circumstances or law by way of affidavit. The

Declaration of Mr. Kim is silent as to these important and relevant factsand the Court therefore has no jurisdiction to hear the matter.Further, there is nothing inconsistent between the Order of June 25,2013, and any other proceedings or order with regard to this discoveryissue. (The Court has since signed and filed the (proposed) orderssubmitted in the Declaration of Paul J. McDonald, in Opposition to theMotion). The Order of June 25, specifically addressed the issue of sanctionswhen it stated that the belated and improperly submitted supplementaldocuments would still be considered, but they would not affect the issue ofsanctions.5. QUILES V. KOJI’SJAPANINCORPORATED(1) Defendant AJ Parent, LLC’s (Unopposed) Motion to DismissModified 7/31/13; 5:15 P.M.No Hearing.The matter is advanced on the Court’s motion; the unopposed motion todismiss defendant AJ Parent LLC with prejudice is Granted. A demurrerwas previously sustained and the subsequent complaint failed to assertany claims against this defendant. Accordingly, pursuant to CCP 581, theDefendant is dismissed with prejudice. Cano v. Glover (2006) 143 C.A.4 th326, 329.SO ORDERED: July 31, 2103(2) Order to Show Cause Re: Monetary SanctionsPlease Take Notice. The Court vacates this OSC. There hearing will betaken Off Calendar. The Court has considered Mr. Madoni’s ResponsiveDeclaration filed July 30, 2013 and supporting evidence and concurs thatsanctions under CCP section 128.7 would not be appropriate.Defendant to give Notice.6. PEOPLE V. DERRICKSLEDGESO ORDERED: July 31, 2013(1) Motion for Reconsideration8. OCWD v. SABICINNOVATIVEPLASTICSPlaintiff’s Ex Parte Application for Extension of Time to File a Motion to TaxCosts (Sabic Innovative/ General Electric; Gallade Chemical; ExxonMobilUpdate: (8-02-13, 11:40 A.M.) Ex Parte Order signed and filed. Plaintiffto give Notice.No Hearing.The Court advances the matter, and on its own motion Grants theApplication, in the interests of justice. Plaintiff shall submit a (proposed)Order forthwith and serve the Parties. Plaintiff shall have until August 30,2013 to file any Motion(s) to Tax Costs as to Cost Memoranda filed byDefendants (1) Sabic Innovative Plastics US, LLC & General ElectricCompany jointly; (2) Gallade Chemical; and (3) ExxonMobil OilCorporation.SO ORDERED: August 1, 2013

Rulings 1http://www.occourts.org/tentativerulings/nstockrulings.htmPage 1 of 19/13/2013TENTATIVE RULINGSDEPT CXC-105Judge Nancy Wieben StockDate: August 2013Law & MotionEx PartesTHIS COURT FOLLOWS CRC 3.1308 (a) (2) FOR TENTATIVE RULINGS EXCEPT WHEREEXPRESSLY STATED.Case NameTentative

TENTATIVE RULINGSCase NameWatumull v.AssomullTentativePlaintiffs’ (Unopposed) Ex Parte Application for Order Shortening Time forHearing on Motion to be Relieved as Counsel of Record.No Hearing Necessary.PLEASE TAKE NOTICE.(1) The Ex Parte Application is Granted and inasmuch as the Motion isalso unopposed by all defense counsel(Decl. of Charles Hokanson, Exhibits6-8, inclusive), the time for hearing on the Motion to be Relieved asCounsel of Record is set for October 11, 2013, 9:00 A.M. to be heard withother matters already on calendar in this case. The Ex Parte Order issigned and shall be served by Moving Party.(2) Motion to be Relieved as Counsel of Record. This motion has not yetbeen filed by the Clerk pending an Order shortening time (nowaccomplished per, No. 1 above) and the payment of a motion filingfee. Moving Party shall file the Motion, reflecting the correct hearing dateand time. Also, the Motion will have to be re-served so as to include theproper hearing date.Status Conference/ OSC re Sanctions (Priya Assomull). The directivegiven by this Court on July 9, 2013 that Moving Party notice a StatusConference and OSC re Sanctions for the same date as the hearing on theMotion to be Relieved is Vacated, as impractical under the circumstances.A Status Conference and OSC re Sanctions for failure to Appear (PriyaAssomull) is set for October 29, 2013, 8:30 A.M. Moving Party to giveNotice.SO ORDERED.3. OCWD v. SabicInnovative PlasticsLLCFor purposes of continuity, each of the following motions shall be heard inDepartment CX-104 (Hon. Kim G. Dunning, presiding), where all priorsuch motions have been heard and ruled upon.(1) Plaintiff’s Motion to Strike/Tax Costs (Sanmina-SCI Corporation)(2) Plaintiff’s Motion to Strike/Tax Costs (Marotta Controls, Inc.)5. SCTPII MaintenanceAssociation v.Talega TechnologyPark, Inc.(3) Plaintiff’s Motion to Strike/Tax Costs ( Ricoh Electronics, Incand BASF Corporation)Defendant Abilene Engineering, Inc.’s Motion to Withdraw Mediation Brieffrom Public Court File.On the Court’s motion, this unopposed motion is advanced and GRANTED.The Clerk or Courtroom Attendant is ordered to electronically “lock down”as a confidential filing, Defendant Abilene Engineering, Inc.’s MediationBrief, filed September 5, 2013.The Clerk shall prepare the Minute Order for the Judge’s Signature,creating an enforceable Order and serve it on Moving Party, who shallserve the Parties.SO ORDERED: October 1, 2013

Case Name2. MONROY V.EXEMPLISCORPORATIONTentative(1) Plaintiff’s Motion for Order that Notice be Sent to All Potential ClassMembers to Locate Suitable Class RepresentativeThe Motion is Granted. The Action is stayed for a period of 60 days fromthe date of the signing/filing of the Order, except as to Plaintiff’s efforts tofind a suitable potential class representative.Proposed Order. The (proposed) Order is missing some key elements andmust be re-submitted for signature. (1) It is missing the order for stay ofproceedings; (2) If it is the Plaintiff’s desire to dismiss individual claims,then he needs to include that in the order and also file the dismissal on aJudicial Council form; (3) the dismissal must reference CRC 3.770; (4)thedismissal and stay must both be set forth in the title of the order on theface page; (5) the order allowing for notice to class members is lackingany directives as to who shall serve the class members (third partyadministrator or Plaintiff’s counsel with class list) and when the serviceshall take place; and how and when the parties shall approve the Spanishlanguage version; (6) the proposed Notice to Class Members must beattached to the Order and its approval incorporated into the Order.Ruling. A short stay while actions are taken to find another representativeseems a wise course.First of all, none of the factual assertions made by Defendant aresupported by competent evidence. Ms. Nacouzi’s Declaration shows alack of personal knowledge of the matters to which she testifies and herassertions as to the existence of settlement and arbitration agreements isvague at best. Separate evidentiary rulings have been concurrently.Second, Plaintiff does have standing; his action has not beendismissed. Whether there is a valid release between Plaintiff andDefendant remains to be seen and is a matter of pleading and proof bythe Defendant; witness the Cross Complaint filed by the Defendant. Evenif there is a valid release, Plaintiff may still be a viable classrepresentative, and, even if he is not, a new putative representativemay be sought under patient appellate decisions. Defendant’s assertionthat it did not pick off Plaintiff lacks a factual basis and is probablyirrelevant.Waiver of Claims or Class Action. Defendant asserts that many of theclass members to be given notice have either signed SettlementAgreements with Releases of Class Claims or Employment Agreementswith Class Action Waivers. None of these documents are provided asevidence in the Opposition. However, their existence would notnecessarily deprive such employees of the ability to prosecute a classaction, not without further litigation on the issues.(2) Status Conference4. QUILES V. KOJI’SJAPANINCORPORATED(1) Defendant AJ Parent, LLC’s Motion for Attorney FeesThe Motion is Granted and Defendant is awarded $1,000 is attorney’sfees. The Court will file the signed Order with the Clerk at time ofhearing. Defendant to give Notice.Fees are available to Defendant on any cause of action Plaintiffs pursuedfor wages, fringe benefits or health and welfare or pension fundcontributions, except those causes of action for which attorney’s fees are

ecoverable under Labor Code section 1194. Here, fees are probably onlyinvolved in the Fifth Cause of Action. Therefore the recovery of fees is toa very small percentage of the action. The majority of the fees wereexpended on the majority of the action and not recoverable.The Amendment to Labor Code Section 218.5 is not retroactive andtherefore the amended provision does not apply here. Plaintiffs havefailed to argue effectively otherwise. It does not matter that theamendment may have been a clarification, the law prior to theamendment was set forth by the Supreme Court in the Kirby case, whichspecifically allowed the fee-shifting in actions for nonpayment ofwages; specifically finding meal and rest break actions not to be actionsfor wages.(2) Plaintiffs’ Motion to Strike or Tax CostsThe Motion is Denied. An Order will be filed by the Court with the Clerk attime of hearing. Plaintiffs to give Notice.The costs submitted represent a modest package of focused expensesproperly related to this particular Defendant’s participation in its owndefense. Plaintiffs have not properly objected to the costs, as they havefailed to show the filing fees and two deposition costs were unnecessaryor unreasonable, as is their burden. The objection to costs must consistof something more than mere statements in the points and authorities orthe declaration of counsel (Rappenecker v. Sea-Land Serv., Inc., (1979)93 Cal. App.3d 256, 266.(3) Plaintiffs’ Motion to Vacate Court OrderThe Motion is Denied. The dismissal was proper and no notice had to begiven to Plaintiffs regarding the dismissal ( Sadler v. Turner (1986) 186C.A.3d 245, 250). There is no need to vacate the order and grant a newtrial when the outcome is going to be the very same; a dismissal withprejudice of AJ Parent, LLC. Plaintiffs have cited no legal authority forthe proposition that it is entitled to a dismissal withoutprejudice. Plaintiffs to file the Order and give notice.5. SCTPIIMAINTENANCEASSOCIATION V.TALEGATECHNOLOGY PARKINC.(1) Defendant Abilene Engineering, Inc.’s Motion to Withdraw MediationBrief from Public Court File.No Hearing.On the Court’s motion, this unopposed motion was advanced andGRANTED. The Clerk or Courtroom Attendant is ordered to electronically“lock down” as a confidential filing, Defendant Abilene Engineering, Inc.’sMediation Brief, filed September 5, 2013.The Clerk shall prepare the Minute Order for the Judge’s Signature,creating an enforceable Order and serve it on Moving Party, who shallserve the Parties.SO ORDERED: October 1, 20136. WATUMULL V.ASSOMULL(1) Defendant McKenna Long & Aldridge, LLP’s Motion to Compel Answersto Form Interrogatories (Gulu Watumull)SUBMITTED.The Motions are all Granted; all requests for sanctions are Denied.

Plaintiffs Gulu Watumull and Watumull Group, Ltd., shall each providewritten, verified responses, without objection, to the First Set of FormInterrogatories, the First Set of Special Interrogatories and the First Set ofRequests for Production of Documents by October 25, 2013, and shallprovide the responsive documents to the Requests for Production by thatsame date. The First Set of Requests for Admissions are deemedadmitted as to each of the Plaintiffs.All of the discovery was properly served on Plaintiffs who failed to respondin any manner. The Notice with regard to monetary sanctions wasunclear as against whom sanctions were sought and the request thereforehad to be denied.Moving Party to give Notice.(2) Defendant McKenna Long & Aldridge, LLP’s Motion to Compel Answersto Form Interrogatories (Watumull Group, LTD)SUBMITTED.See, above(3) Defendant McKenna Long & Aldridge, LLP’s Motion to Compel Answersto Special Interrogatories (Gulu Watumull)SUBMITTED.See, above(4) Defendant McKenna Long & Aldridge, LLP’s Motion to Compel Answersto Special Interrogatories (Watumull Group, LTD)SUBMITTED.See, above(5) Defendant McKenna Long & Aldridge, LLP’s Motion to CompelProduction (Gulu Watumull)SUBMITTED.See, above(6) Defendant McKenna Long & Aldridge, LLP’s Motion to CompelProduction (Watumull Group, LTD)SUBMITTED.See, above(7) Defendant McKenna Long & Aldridge, LLP’s Motion to CompelProduction (Shirt Printer, Inc.)SUBMITTED.See, above(8) Defendant McKenna Long & Aldridge, LLP’s Motion to Deem FactsAdmitted (Gulu Watumull)SUBMITTED.See, above(9) Defendant McKenna Long & Aldridge, LLP’s Motion to Deem FactsAdmitted (Watumull Group, LTD)SUBMITTED.

See, above(10) Plaintiffs’ Motion to Be Relieved as Counsel of RecordDenied. There has been an irreparable breakdown of the workingrelationship between counsel and the Plaintiffs which is sufficient groundsfor Counsel to be relieved.However, Counsel has not verified the address of the Plaintiffs andtherefore it is unknown whether Plaintiffs received notice of this Motion. Ifcounsel is unable to verify a proper address, Counsel needs to explainwhy this Motion should still be granted. Counsel served the Motion bymail with a return receipt requested; was a receipt obtained? Counsel’s10-04-13 Declaration fails to recited in paragraph 3(b)(1) the means bywhich counsel has, within the last 30 days, confirmed the clients’addresses. Finally, the service of a corporation on a “client contact” isnot sufficient, thus requiring the other information indicated herein.Moving party to give Notice to other litigants in this case.

* THE DOE RUNRESROURCESCOPR. V. ZURICH-AMERICANINSURANCENote to Counsel: On August 27, 2013 Parties submitted a stipulation to,among other things eliminate the need for the filing of any separatestatements on dispositive motions. The Order was signed and filed byJudge Steven Perk on August 29, 2013.On November the Court is scheduled to hear a Motion for SummaryAdjudication/Judgment filed by Continental Insurance Co., as successor toThe Fidelity & Casualty Company of New York. Pursuant to CCP § 437c, etseq. it will be difficult, if not impossible, for the Court to properly addressthe motion, without access to separate statements.Counsel should meet and confer on a solution. The Court willaccommodate any reasonable suggestion, including a brief delay of thehearing date on that one motion. Please contact the Clerk to set up aconference call with the Court to arrive at an agreement on this topic.(657) 622-5305.2. DONOVAN V. SHEAHOMES INC.(1) Mandatory Settlement Conference(2) Cross-Complainants Shea Homes Limited Partnership, etc.’s(Joint)Motion to ConsolidateGranted.(3) Cross-Complainants Shea Homes Limited Partnership, Etc.’s JointMotion to Vacate Trial DateOff Calendar as moot.(4) Court TrialTo be trailed, pending outcome of MSC.3. SHEA HOMESLIMITEDPARTNERSHIP V.SUKUTCONSTRUCTIONINC.(1) Mandatory Settlement Conference(2) Defendant Sukut Construction, Inc.’s Demurrer to Complaint (TheReserve South at Forster Highlands, LLC (“The Reserve”) First, second,Third and Fourth Causes of Action)As to Plaintiff, The Reserve, The Demurrer is Overulled to the First,Second, Third and Fourth Causes of Action. The Answer shall be filed andserved on or before October 30, 2013. Moving Party to submit a(proposed) Order within 3 days and give Notice in all related cases.(3) Case Management Conference3. KENT V. BANK OFAMERICA(1) Plaintiff’s Motion to SealPLEASE TAKE NOTICE. The matter is advanced, on the Court’s motion andGranted. However, the Court cannot electronically seal one document(Exhibit “G”) in a single filing (Declaration). Therefore, the Order shallpermit Plaintiff to file a redacted version of the full Declaration of RichardQuintilone, with all attached exhibits. The temporary sealing orderpreviously entered is made permanent. The Court’s findings pursuant toCRC 2.550 are set forth in the concurrently filed order herein.Plaintiff to give immediate Notice.SO ORDERED: October 21, 2013

4. ORANGEREDEVELOPMENTAGENCY V. CITY OFORANGE(1) Cross-Complainant City of Orange’s Motion for Leave to File 3 rdAmended Cross-ComplaintThe Motion is Granted. The City shall file a (revised proposed) ThirdAmended Cross-Complaint which does not set forth any claims or causesof action that have been previously foreclosed in prior orders of theCourt. This is to say if a Cause of Action as to which a demurrer haspreviously been sustained without leave to amend is set forth, it shouldbe removed. The Court will file the Order at time of hearing. The City togive Notice.The City contends that the Inverse Condemnation Cause of Action isbased on the same set of facts as the other Causes of Action set forth andthe County agrees. There is therefore no need to set forth new factsunder the CRC’s or to state when the new facts were discovered. Thisamendment could even be made during trial. Mere delay and therequirement of further discovery and a need for a further summaryjudgment/adjudication motion are not grounds to deny amendment.As to any defenses to the new Cause of Action, they are not properlyaddressed here and need be brought up in the appropriate manner.7. RAMIREZ V.LENNAR HOMES OFCALIFORNIA INC.(1) Plaintiffs’ Motion to Compel Deposition of Kim HanseleNote to Counsel: There are flaws in the Notice of Motion for Sanctions(Notice) and in the form of the Deposition Subpoena to Ms. Hansele(Reply, Exh. 1). However, sanctions would also be denied to OpposingParty, as the grounds would be on a basis not articulated in theOpposition. However, it appears that counsel have made efforts to workout an appearance and document production by the managementcompany.Accordingly, on the Court’s motion, the hearing or Ordered Off Calendar,subject to it being re-set, with written leave of Court, and the Partiesordered to immediately meet and confer on a deposition appearance ofdocument production, to take place within the next 30 days.Plaintiff to give Notice.8. VILLASPORT LLC V.MOOREFIELDCONSTRUCTIONINC.(1) Cross-Defendant Moorefield Construction, Inc.’s Demurrer to Cross-Complaint** SUBMITTED**The Demurrer is overruled, with ten (10) days to answer. Moving Partyshall file the (proposed) Order within five (5) court days.Cross-Defendant (“Moorefield”) requests that the Court take judicialnotice of the Sub-contract attached to its own Cross-Complaint, as a basisfor sustaining the Demurrer. Normally there is no need to take judicialnotice of matter in the Court record. When this is done, typically mattermay be judicially noticed for their existence, but not for the truth. Theproblem is further exacerbated by the admission that the Roe Amendmentagainst McNelly Construction, as filed on July 12, 2013, never attachedthe subcontract in question. (Reply, Decl. of Kenneth O. Taylor, III, ’s 5-6). This is an improper, speaking Demurrer.9. WATUMULL V.ASSOMULL**SUBMITTED**The Motions are Granted. The Court will file a single signed Order on the

day set for hearing.Plaintiffs Gulu Watumull, Watumull Group, Ltd. and California ShirtPrinter, Inc., are ordered to provide verified responses, withoutobjection, to the Form Interrogatories by November 8, 2013, and areordered to produce the documents requested under the Requests forProduction of Documents, without objection, by November 8, 2013. TheRequests for Admissions served upon Plaintiffs California Shirt Printer,Inc., Watumull Group, Ltd. and Watumull Trust No. 1 are deemedadmitted.Plaintiffs Gulu Watumull, Watumull Group, Ltd., California ShirtPrinter, Inc., and Watumull Trust No. 1 are jointly and severally orderedto pay sanctions to Suresh Khemlani and S.N.R. Graphics, in the sum of$1,750, for the necessity of these Motions, by November 8, 2013.(1) Defendants Suresh Khemlani and S.N.R. Graphics’ (Unopposed)Motion to Compel Responses to InterrogatoriesSee ruling above.(2) Defendants Suresh Khemlani and S.N.R. Graphics’ (Unopposed)Motion to Compel ProductionSee ruling above.(3) Defendants Suresh Khemlani and S.N.R. Graphics’ (Unopposed)Motion to Deem Facts AdmittedSee ruling above.

Case Name2. HAMIDIAN V.TAYLOR WOODROWHOMES INC.Tentative(1) Cross-Defendant PTD, Inc.’s Demurrer to Cross-ComplaintGrant PTD’s Request for Judicial Notice.Grant Taylor Woodrow’s Request for Judicial Notice.Overrule the Demurrer, order that an Answer be filed within 10 days.The Court will sign and file an Order at time of hearing. Moving Party togive Notice.It has not been established by Moving Party that the claimed defects inthe Certificate of Merit form the basis of a pleadings challenge under CCPsection 430.10(a)(b). (Motion, Section III). The Cross-Complaint,particularly the allegations against the design professional, is notinsufficient to state a cause of action, nor is it uncertain.Having said that, the inclusion of a verbatim cut-and-paste version of CCPsection 411.35 in the Certificate of Merit, leaves doubt as to whether theproper type of expert was consulted, inasmuch as the Certificatereferences all three types (architect, engineer, or land surveyor) in thedisjunctive. In a given case, it is possible that all three specialties couldbe implicated in a Developer’s Cross-Complaint. If all three are notinvolved, then the use of the phrase may draw a costly attack such as theone on calendar today.Sanctions. CCP section 128.7 sanctions are denied, as there is no noticedmotion before the Court that fulfills the requirements of that Section. Onlya demurrer is before the Court. It is doubtful that such sanctions could beawarded on these facts, inasmuch as the Demurrer is being overruled andthe question of statutory compliance with CCP section 411.35 is a closeone.4. STRADA V. MMRFAMILY LLC(1) Defendants JS Stadium LLC, Shorecliff LP, Shorecliff Main LP,Huntington BSC Park, LP and JS Commercial, LLC’s Motion for SummaryAdjudicationNote to Counsel. This motion is premised on the proposition that therelease(s) of claims signed by the particular plaintiffs “include all of theclaims asserted by them in this lawsuit.” (Motion, p. 1). Plaintiffs SeparateStatement does not offer any evidence that places the undisputedexistence of the release(s) in dispute. Plaintiffs’ Separate Statementmerely argues the effect of the language and this is not a proper responseto an Undisputed Fact. However the key question is whether therelease(s) actually do cover all of the claims in the currentcomplaint. Counsel should be prepared to address this key issue.(2) Defendant JS Stadium, LLC’s (New Owner) Motion to Compel FurtherResponses to Special InterrogatoriesDeny Plaintiffs’ request for Judicial Notice on the grounds of relevance.Sustain all of New Owner’s Evidentiary Objections to the Declaration ofKent G. Mariconda on the grounds of relevance. This Minute Order shallserve as the written rulings.The Motions No.’s (2) & (3) herein) are Granted. Plaintiffs shall eachprovide written, verified responses, without objection, to the Request forProduction of Documents by November 15, 2013, and produce alldocuments requested by that same date. Plaintiffs shall each providewritten, verified answers, without objection, to the First Set of Special

Interrogatories by November 15, 2013. Pursuant to CCP section2023.010(e) Plaintiffs’ counsel Kent G. Mariconda, and the Law Offices ofKent G. Mariconda, shall pay to Defendants, jointly and severally,sanctions in the amount of $2,000, for the necessity of theseMotions. Such sanctions shall be paid November 15, 2013. The Court willsign and file the Order(s) at time of hearing. Moving Party to give Notice.If Plaintiffs wish to challenge the standing of the Defendant then theyneed to pursue that challenge with an appropriate Motion. That challengeis not properly brought in opposition to a motion to compeldiscovery. For all the reasons noted with regard to the Motion for aProtective Order, Plaintiffs’ arguments with regard to the Settlement, astay, judicial estoppel, etc. have no merit. The discovery propoundedhere is directly relevant to the issues involved, and is not excessive innumber given the many and diverse issues in this Action.There is no need for a discovery referee with regard to this discovery, asit was properly propounded and proper responses are required.Sanctions are appropriate here. If Counsel believed that a protectiveorder was warranted, Counsel should have brought a motion for aprotective order before the Responses to the discovery were due. There isno substantial justification for the unmeritorious objections to thediscovery sought.(3) Defendant JS Stadium, LLC’s Motion to Compel ProductionSee Ruling on Motion No. 2, above.(4) Plaintiffs’ Motion for Protective OrderThe Motion is Denied. The request for sanctions is Denied. EvidentiaryObjections by New Owner to the declaration are not considered, in light ofthe basis for the Court’s ruling herein.Moving Party to submit the (proposed) order within five (5) calendar daysand give Notice.First, the Court has ruled that there is no Settlement enforceable underCCP Section 664.6, and therefore this Case, and the Criswell and Wooten-Schock Cases, need to proceed to trial as soon as possible, these issueshaving been the subject of litigation in this Court since 2006.Second, the question of whether there is a Settlement amongst theParties is not part of this Action, it is the subject of a separate Action, theDana Action. The Court specifically denied the Motion to Supplement thisAction to add the claims of the Settlement to this Action.Third, there is no stay in this Action. The stay was lifted by this Courton July 19, 2013. In fact, if there were such a stay, then this Motion isimproper as it is barred by the stay. Plaintiffs’ contention that theSettlement included a stay is irrelevant and incorrect. Once more, thisAction does not involve the issue of whether there is Settlement. TheSettlement has been held to be unenforceable under CCP Section 664.6,so this Action is proceeding. Any stay element of the Settlement is asequally unenforceable, as any other provision of the Settlement.Fourth, there is no judicial estoppel here. In order for judicial estoppel toapply, as noted in the Jackson case cited by Plaintiffs, “the party wassuccessful in asserting the first position (i.e. the tribunal adopted theposition or accepted it as true)”. There has been no finding by this Courtthat there is a valid Settlement Agreement. In fact, the only rulingmade by this Court as to the propriety of the Settlement has been to find

that there is no enforceable Settlement as one of the Parties failed toagree to its terms. As noted by Plaintiffs themselves, the Court has notruled on the merits of whether there is a Settlement; no judicial estoppelapplies.

November8, 20139:00 A.M.Case Name1. AZIZI V. D.R.HORTON LOSANGELES HOLDINGCOMPANY INC.Tentative(1) Intervener Zurich American Insurance Company’s Unopposed) Motionfor Leave to Intervene** SUBMITTED**Grant Request for Judicial Notice.Grant. The Order shall not have the conditions set forth at page 5, lines6-17 of the Motion, as counsel has not provided any authority for theirinclusion or established that they would not apply to the circumstance asa matter of law.Deem the Complaint in Intervention Filed and Served. Moving Party to filea (proposed) Order before the hearing date and give Notice.2. DADE V. REINACH (1) Plaintiff’s Motion to Enforce SettlementGrant (Modified) Order enforcing Settlement pursuant to CCP section664.6 and File (Modified) Judgment thereon. Moving Party to give Notice.The proposed Order and judgment conform to the oral settlementagreement except that the reference in the oral settlement agreement tothe $1000/ month payments, following month 37, does not indicate thatthere is to be a payment in an amount greater than $1,000 (to includeinterest in each payment). (See, Judgment (b)).4. PALM DESERTUNIVERSITYVILLAGE LLC V. WLBUTLERCONSTRUCTIONINC.(1) Cross-Defendant Monaco Concepts’ Motion for Sanctions** SUBMITTED**The Motion is Granted. Evidentiary and Issue Sanctions areDenied. Butler shall provide the privilege log as is required by ACMONo. 3.5 by November 29, 2013. Moving Party to provide a (proposed)Order for the day of hearing and give Notice.While Butler has complied with No. 3.3, Butler has failed to comply withparagraph 3.5 by providing a privilege log at the time the Notice ofCompliance was served and deposited. A statement that the documentswere redacted to protect attorney client and attorney work productprivileges does not constitute any sort of privilege log. The fact thatMonaco may also have failed to comply with paragraph 3.5 also is not agrounds for a further violation or a proper response to this Motion byButler.The Motion is timely as Butler failed to complywhatsoever with paragraph3.5. As the timing of the Motion is per the Code under paragraph 3.7,there is no time limit to bring this Motion, as there was no responsewhatsoever under paragraph 3.5. This is a motion to compel a responseunder paragraph 3.7, not a motion to compel a further response.Butler’s argument that it is obvious that attorney billings are protected bythe attorney client privilege and work product doctrine is misplaced. Theyare almost never so protected, as it is rare that any confidentialcommunication or work product is contained in them. This Court viewsthousands of pages of billings in a year and there is little, if any,

privileged information in them. As the Clarke opinion cited by Butlernotes, attorney billings are normally not within the attorney clientprivilege. Here, the billings and their contents are particularly relevant asthey constitute the actual damages sought.Although Butler has failed to comply with paragraph 3.7 the drasticremedy of evidentiary or issue sanctions is not available under theDiscovery Act, under these circumstances, so they should not be imposedhere, at least at this point in time.5. T-12 THREE LLC V.TURNERCONSTRUCTIONCOMPANYNote to Counsel. The Stipulated Protective Order has been signed andfiled as of 11-06-13. Plaintiff to give Notice.(1) Plaintiff’s Motion for Leave to File 1 st Amended ComplaintGrant the Joinder in Opposition of five (5) sets of Joinders in TurnerConstruction’s Opposition.Grant Motion for Leave to file the First Amended Complaint. Deem it filedserved this date. Plaintiff to give Notice and to file a (proposed) Orderwithin five (5) calendar days.Efficiency and economics support the inclusion of these “operator” claimsin this lawsuit rather than a separate lawsuit. Statute of limitationsdefense may be asserted later, not now. The inclusion of “operator” coplaintiffsshould not cause disruption in case preparation and will not denydefendant and cross-defendants due process. Even if the damages matrixsubstantially differed between the operators and the hotel owner, this isan issue that could be dealt with in the form of a bifurcation, ifneeded. Liability issues are almost identical. Plaintiff is correct that defectareas often evolve as litigation progresses. The allegedly new defectareas associated with the operators appear to be largely subsumed withinthe prior repaid costs. Further the loss of earnings damages, thoughindicated in the original complaint can be culled from the hotel’s generalledger and other readily identifiable sources, some of them alreadyproduced. Finally, plaintiff-specific defenses, such as tenantimprovements, can be readily discovered and investigation completed wellbefore trial.7. WOOTEN-SCHOCKV. MMR FAMILY LLC Plaintiffs’ Joint Motion(s) to: Judicially Estop Defendants; Stay All RelatedProceedings; for Protective Order; Injunctive ReliefGrant Plaintiffs’ Request for Judicial Notice. Written rulings on JS StadiumLLC, et al. (“New Owners’”) Evidentiary Objections are filed concurrently.New Owners to give Notice. Written rulings on Plaintiffs’ EvidentiaryObjections are filed concurrently. Plaintiffs to give Notice.The Joint Plaintiffs’ Motion for the four (4) sets of relief is Denied. TheCourt will sign and file Orders at time of hearing. Plaintiffs to give Notice.Further Delay in all Three Lawsuits. Plaintiffs seek orders that would havethe combined effect of bringing all litigation activities to a halt, for anindefinite period of time, with no guarantee that any purpose(resurrecting the prior settlement attempts) would ultimately beserved. Whereas Joint Plaintiffs are correct that enforcement of thealleged settlement agreement as a stand-alone claim may have differentfeatures than a CCP section 664.6 motion, this alone does not justify thedelay. Therefore, for the stated below, the Court is compelled to deny theJoint Motions.

Perhaps of greatest concern is the Joint Plaintiff’s assertion that delayingthese three (3) cases indefinitely will not prejudice the Defendants. Thiscase is the poster child for the proposition that “justice delayed is justicedenied.”The 2006 Wooten-Schock case was filed as a class action. Unfortunatelyfor all concerned, lead counsel for Plaintiffs was unable to obtain afavorable certification decision until years had flown by and then, onlyafter the judge insisted that co-counsel be appointed to create anadequate litigation team for the benefit of absent class members.The pattern continued in the 2007 Criswell case, where Plaintiffs made atactical decision to spend years of precious time attempting to certify aclass based upon individualized losses related to alleged MobilehomeResidency Law claims. The Court of Appeal had little trouble affirming theJudge Velasquez’s denial of certification, but precious time was consumedin this ill-fated endeavor.The newer 2011 Strada case is an admitted replication of the 2007Criswell matter and transparently filed for the purpose of back-stoppingagainst the adverse consequences of the statute of limitations. The recordtaken as a whole reflects that Joint Plaintiffs have been affordedexceedingly generous opportunities to get it right and pursue the litigationwith alacrity. Such opportunities have come at the expense of all theParties, including certain Plaintiffs who have died in the interim.Reconsideration. Although not set forth in the Notice, the body of theJoint Motion includes requests for additional orders. In particular, JointPlaintiff’s ask that the Court sua sponte reconsider rulings on certainmotions (Motion p. 4, line 25- page 5, line 15). The rulings include a widevariety of topics in three (3) separate cases, including judgment on thepleadings, seeking dismissal of GSMOL-571 in Criswell, a demurreraffecting GSMOL-571 and deceased plaintiffs in Strada, and decertificationof the sub-classes in Wooten-Schock and motions to supplement thepleadings in all three (3) cases.Whereas it is possible that the Court, on its own motion, could reconsidera prior ruling pursuant to CCP § 1008 and the case of Le Francois v. Goel(2005) 35 Cal.4 th 1094, 1096-97, the Court does not find any basis fordoing so here. For this reason it is not necessary to consider themeritorious objections by Defendants that such a written invitation to theCourt should be treated as noticed motion for reconsideration, with itsattendant due process protections.7.1 CRISWELL V. MMRFAMILY LLCPlaintiffs’ Joint Motion(s) to: Judicially Estop Defendants; Stay All RelatedProceedings; for Protective Order; Injunctive ReliefInsofar as this is a Joint Motion with the other two (2) cases on calendar,the Court adopts the ruling in Motion No. 7 above.7.2 STRADA V. MMRFAMILY LLCPlaintiffs’ Joint Motion(s) to: Judicially Estop Defendants; Stay All RelatedProceedings; for Protective Order; Injunctive Relief1:30 P.M.Insofar as this is a Joint Motion with the other two (2) cases on calendar,the Court adopts the ruling in Motion No. 7 above.