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LAW AND MOTION CALENDAR
Wednesday, July 23, 2014, 3:00 p.m.
Courtroom 16 -- Judge Elliot Lee Daum
3035 Cleveland Avenue, Suite 200, Santa Rosa
1. MCV-179048; Retailers v. Ramos
2. SCV-254976; Singler-Ernster v. Perryman
Plaintiff and Cross-Defendant Singler-Ernster, Inc. (SEI) demurrer to the Amended Cross-Complainant’s Fourth Cause of Action for Retaliation in Violation of Public Policy; Fifth Cause of Action for Violation of Business & Professions Code section 17200; and Twelfth Cause of Action for Declaratory Relief are overruled.
Plaintiff and Cross-Defendant Pete Singler, Jr. demurrer to the Amended Cross-Complaint’s Fifth Cause of Action for Unfair Business Practices (B&P §17200 et seq.) and the Eleventh Cause of Action for Breach of Fiduciary are overruled.
Perryman has not stated a statutory cause of action for retaliation against SEI. He has pled a valid common law cause of action against SEI for violation of public policy.
The demurrer is overruled.
Business & Professions Code §17200, the noncompetition clause in Mr. Perryman’s Employment Agreement falls squarely within the Section 16600 proscription and is void.
The Eleventh Cause of Action properly alleges a breach of fiduciary duty claim against Singler. It is not a derivative claim brought on behalf of SEI, but a cause of action brought by Perryman to redress alleged wrongs done to him by Singler. Accordingly, the court overrules Singler’s demurrer to the Eleventh Cause of Action.
Twelfth Cause of Action
A general demurrer is usually not an appropriate method for testing the merits of a declaratory relief action. (Qualified Patients Ass’n v. City of Anaheim (2010) 187 Cal.App.4th 734, 751.) A demurrer to a cause of action for declaratory relief must be overruled as long as an actual controversy is alleged; the pleader need not establish it is also entitled to a favorable judgment. (Weil & Brown, Civil Procedure Before Trial, §7:42.11; DLudgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 606.)
A current controversy exists between Perryman and Cross-Defendants regarding the parties’ legal rights and obligations with regard to SEI’s obligation to purchase Perryman’s stock and whether certain discounts apply to the valuation of such stock. (Id., ¶113.)
Perryman seeks a determination as to the parties’ rights and obligations regarding SEI’s purchase of Perryman’s non-ESOP stock, including the fair market value of the stock now. (Id., ¶114.)
Perryman’s Twelfth Cause of Action alleges an actual controversy between the parties and properly states a declaratory relief claim. Singler-Ernster, Inc.’s demurrer is overruled.
3. SCV-254979; Ashley v. Butler
The evidence shows that defendant Tom Butler suffers from Chronic Fatigue Syndrome (C.F.S.), is totally disabled due to the illness, and was unable to timely file responsive pleadings. Such evidence of such a serious illness show excusable neglect in allowing the default to occur.
Absent any opposition or evidence establishing a basis for denial of this motion, the court orders that:
Defendant’s motion for relief from default and default judgment is granted.
Defendant is ordered to file a responsive pleading within 15 days of this order.