Mar 02, 2015

TENTATIVE RULINGS

LAW & MOTION CALENDAR

Wednesday, February 25, 2015 at 3:30 p.m.

Courtroom 18 –Honorable Philip Champlin

 

The following tentative rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, you will need to contact the Judicial Assistant by telephone at (707) 521-6729 by 4:00 p.m. today, Tuesday, February 24, 2015. Any party requesting an appearance must notify all other opposing parties of their intent to appear. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

CourtCall is available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances. CourtCall can be reached directly at (888) 882-6878.

 

1. MCV-227331; Midland Funding v. Clark

As the parties settled the dispute, the motion for attorney fees is dropped.

 

2. MCV-231878; Collectronics, Inc. v. Janda’s Skybox, et al. 

Plaintiff's Motion to Appoint Receiver to sell the defendant’s liquor license is granted. Plaintiff is to submit a written order after hearing consistent with this ruling.

 

3. MCV-232180; Portfolio Recovery Associates, LLC, v. Pimentel

Plaintiff Portfolio Recovery Associates, LLC, move for an order pursuant to CCP §§ 2023.010 and 2033.280 that the truth of all specified facts in Plaintiff’s Request for Admissions, Set One, propounded on defendant be deemed admitted, and for monetary sanctions in the amount of $332.50.

 

Responses to RFAs are due within 30 days from the date the RFAs were served (extended for service by mail, overnight delivery or fax under CCP § 1013). (CCP §§ 2033.250, 2016.050.) Failure to timely respond to RFAs results in waiver of all objections to the requests—including claims of privilege or work product protection. (CCP § 2033.280(a).)

The court “shall” grant the deem-admitted motion “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response ... in substantial compliance with Section 2033.220.” (CCP § 2033.280(c).)

The discovery request was served on defendant Salvador Pimentel by mail on July 15, 2014. (Glauberman dec., ¶ 2). Responses are overdue. Defendant has not responded. (Id. at § 3.)

 

Plaintiff’s Requests for Admissions, Set One, shall be deemed admitted unless defendant Salvador Pimentel serves plaintiff with verified responses prior to the hearing on this motion.

It is mandatory that a monetary sanction be imposed on the party or attorney, or both, whose failure to serve a timely response necessitated the filing of the deemed-admitted motion. (CCP § 2033.280(c).) Sanctions are granted in plaintiff’s favor against defendant in the amount of $332.50. (See Glauberman dec., ¶ 5.)

 

Plaintiff is to submit a written order consistent with this ruling.

 

4. SCV-249611; V.E.M. Engineering, Inc. v. Claeyssens

Plaintiff V.E.M. Engineering, Inc. moves for an order instructing the judgment debtor to assign the judgment debtor’s salary, commission, or payments between defendants and Leading Edge Properties, Inc. to the judgment creditor to the extent necessary to pay the judgment creditor’s judgment in full, including accrued interest through the date of payment. Plaintiff requests that the order restrain the judgment debtor and any servant, agent, employee or attorney for the judgment debtor, and any person in active concert and participating with the judgment debtor, from encumbering, assigning, disposing of, or spending the payments, or rights to the payments.

CCP § 708.510 et seq. authorizes the court to order the assignment to the judgment creditor the debtor's right to payments due from a third person. This includes, but is not limited to, wages due from the federal government that are not subject to an earnings withholding order, rents, commissions and royalties, payments due from a patent or copyright, nonexempt insurance policy loan value, accounts receivable, general intangibles (defined in Comm'l C. § 9102(a)(42)), judgments, and instruments. (CCP § 708.510(a)(1).)

 

The court may only order the assignment of property to the extent necessary to satisfy the money judgment. (CCP § 708.510(d).) In this case, judgment was entered on March 22, 2012, in the amount of $37,414.44 in favor of plaintiff V.E.M. Engineering, Inc. With $9,983.88 in interest accrued through November 20, 2014, the amount owed is $47,398.32. (Beckwith dec., ¶ 2.)

The court has broad discretion in determining whether to order an assignment, and in fixing the amount to be assigned may consider the reasonable economic needs of a natural person judgment debtor and those supported partly or wholly by the debtor, payments the judgment debtor is required to make or that are deducted in satisfaction of other judgments and wage assignments, the amount remaining due on the money judgment, and the amount remaining to be received on the right to payment. (CCP § 708.510(c).)

 

Here, the judgment debtor has made no payments on the nearly three-year-old judgment. (Beckwith dec., ¶ 2.) Plaintiff’s attorney, Mr. Beckwith, believes that the judgment debtor will have the right to commissions paid to her in her capacity as a real estate agent. (Id. at ¶ 5.) Based upon these facts, the court will grant the motion. However, the court will reserve ruling on the percentage or portion of defendant’s commissions or wages to be assigned pending input from the parties.

 

When a motion for assignment order is made, or anytime thereafter, the judgment creditor may apply for an order restraining the judgment debtor from assigning or otherwise disposing of or encumbering the right to payment sought to be assigned. (CCP § 708.520(a).) The court may issue an order pursuant to this section upon a showing of need for the order. (CCP § 708.520(b).)

Mr. Beckwith, states that there is a need to refrain the judgment debtor from encumbering, assigning, disposing of, or spending the payments, commissions, or salary because “the debtor has various earning capacities to which the debtor could or would transfer the payments, commissions or salary and judgment creditor would be frustrated in his attempt to satisfy said judgment.” (Beckwith dec., ¶ 7.) Mr. Beckwith states, “it is believed that Leading Edge Properties is [owned] by Debtor’s husband [and] he may try to dispose, assign or otherwise hide any payments, commissions or salary that Debtor has earned or is entitled to.” (Ibid.) The court will deny plaintiff’s request for a restraining order as there are no facts showing an actual need for such order. However, if such need later arises, plaintiff may reapply for a restraining order ex parte. (CCP § 708.520(a).)

 

Plaintiff is to submit a written order consistent with this ruling.

 

5. SCV-254487; Watson v. Pudil

Defendant Brooke Marie Pudil moves for summary adjudication in her favor and against plaintiff William Watson on the grounds that no triable issue of material fact exists as to defendant Pudil’s liability for punitive damages and/or non-economic damages. Defendant moves pursuant to her Tenth Affirmative Defense. Defendant argues that plaintiff’s claim for punitive damages fails as a matter of law because the undisputed factual record establishes that defendant was not driving under the influence at the time of the incident. Defendant also argues that plaintiff is barred as a matter of law from recovery of non-economic and/or general damages in that plaintiff was not covered by a policy of automobile liability insurance at the time of the subject incident.

Plaintiff has opposed the motion and objected to the declarations of Nancy Baumgarner and defendant’s counsel, Gregory Huber. The objection to paragraphs 5 and 10 of the declaration of Nancy Baumgarner are sustained. The remaining objections are overruled.

 

Punitive Damages

Plaintiff’s basis for punitive damages is that defendant Pudil is guilty of “oppression” because she was driving under the influence as a result of her having smoked marijuana. (Huber dec., Ex. F.) Oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ. Code 3294(c)(2).)

Defendant provides two pieces of evidence to support her position that she was not driving under the influence. The first is the Traffic Collision Report. The traffic report makes no mention of whether defendant was under the influence.

 

The second piece of evidence is defendant’s deposition testimony stating that shortly after the accident, while she was in the hospital, a police officer gave her a breathalyzer test and tested her eyes to determine whether she was under the influence of drugs. (Huber dec., Ex. J, pgs. 45-49.) Defendant has also provided her deposition to prove that she had not been drinking the night prior to the accident. (FACT 10.) Pudil admitted to smoking marijuana. (FACT 11.) Defendant has not established that the above tests are capable of determining the level of intoxication from marijuana and, if so, the test’s reliability in making that determination. Defendant could not recall the full extent of the eye test or exactly how long after the accident it took place. No evidence has been presented from the police officer who performed the tests.

In opposition, plaintiff provides the declaration of Berlin Fisher who witnessed the accident and who opines that defendant attempted to flee the scene. He also opines that defendant was “incoherently high on some sort of drugs, and did not understand what had happened and the condition that her vehicle was in.” (Fisher dec., ¶ 5.) He hear her exclaim, “Oh, no. Not again,” and saw her attempt to cover up a bong in her car. (Ibid.)

 

In sum, defendant has not provided sufficient evidence to meet her burden to establish that no triable issue of material fact exists regarding whether she was under the influence at the time of the incident. Additionally, plaintiff has provided evidence that supports finding a triable issue of material fact exists with respect to this issue. Accordingly, the motion for summary adjudication of plaintiff’s request for punitive damages is denied.

Non-Economic Damages

 

Defendant also moves for summary adjudication of her tenth affirmative defense that, pursuant to Civ. Code § 3333.4, plaintiff is barred from recovery of non-economic damages.

Plaintiff argues that this is not a proper subject for a motion for summary adjudication.

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (CCP § 437c(f)(1).) Civil Code § 3294 applies to claims for punitive damages based upon a finding of oppression, fraud or malice.

 

Prior to January 1, 2015, a party could also move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, an affirmative defense, or an issue of duty, by stipulation of the parties and an order of the court. (See former CCP § 437c(s).) This section is no longer good law and is therefore irrelevant.

 

Here, defendant does not argue that there is no affirmative defense to a cause of action and/or that there is no merit to an affirmative defense as to any cause of action. (See CCP § 437c(f)(1).) Therefore, defendant’s request to determine that plaintiff is precluded by Civil Code section 3333.4 from recovering noneconomic damages is not a proper subject for this motion. A defendant’s motion on this issue is usually determined in limine. (E.g., Allen v. Sully-Miller Contracting Co. (2002) 28 Cal.4th 222, 226; Savnik v. Hall (1999) 74 Cal.App.4th 733, 736; Goodson v. Perfect Fit Enterprises, Inc. (1998) 67 Cal.App.4th 508, 511; Yoshioka v. Superior Court (1997) 58 Cal.App.4th 972, 978.)

 

Sanctions

Plaintiff requests sanctions in the amount of $14,000 pursuant to CCP § 128.5. Plaintiff’s counsel argues that he made defendant’s counsel was aware that CCP § 3333.4 was not a proper subject of the summary adjudication but defendant’s counsel refused to take this issue off calendar.

 

CCP § 128.5(a) provides: “A trial court may order a party, the party's attorney, or both to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.”

Plaintiff has not provided any discussion of section 128.5, including how the actions of defendant’s attorney may meet any standards or definitions of being frivolous or in bad-faith when the motion was merely made through the wrong mechanism—i.e., a summary adjudication motion instead of a motion in limine—or how section 128.5 may be applied when only a portion of the motion is claimed to be frivolous. Therefore, the court cannot reach a determination on this issue. Accordingly, plaintiff’s request for sanctions is denied.

Plaintiff is to submit a written order consistent with this ruling.

 

6. SCV-255421; Gorgizian v. The Outsource Group

Defendants Santa Rosa Memorial Hospital and The Outsource Group, Inc. demur to plaintiff Jacqueline Gorgizian’s First Amended Complaint (“FAC”) on the ground that the first cause of action for Violation of Government Code § 12940 is uncertain, ambiguous, and unintelligible, and that it fails to state sufficient facts to constitute a cause of action. In its motion, defendants have only argued that the complaint is uncertain. The court will only address this argument.

Plaintiff’s FAC separates his allegations into five counts under his “First Cause of Action Violation of Gov’t. Code Sec. 12940.” The FAC contains general allegations and then, under the first cause of action, alleges violations of subsections (a), (m), (n), (h), and (k) of section 12940.

Defendants argue that the FAC is fatally uncertain because it improperly joins five causes of action, and possibly more, under one cause of action.

 

California defines a “cause of action” in accord with Pomeroy's “primary right” theory. A cause of action consists of (1) a primary right possessed by the plaintiff and a corresponding primary duty imposed upon the defendant, and (2) a delict or wrong committed by the defendant which constitutes a breach of such primary right and duty. (Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1364.)

 

The cause of action is based on the injury to the plaintiff, not on the legal theory or theories advanced to characterize it. Thus, if a plaintiff states several purported causes of action which allege an invasion of the same primary right he has actually stated only one cause of action. On the other hand, if a plaintiff alleges that the defendant's single wrongful act invaded two different primary rights, he has stated two causes of action, and this is so even though the two invasions are pleaded in a single count of the complaint. (Ibid.)

 

The same cause of action may be stated variously in separate counts. (Steele v. Litton Industries, Inc. (1968) 260 Cal.App.2d 157, 172.) Alternative counts in a complaint usually constitute a pleading of the same cause of action according to different legal theories or different versions of ultimate facts. This was permissible at common law, and is also allowed under the codes. Because there is but one cause of action, no problem of joinder of causes is involved and because the individual “counts” are internally consistent, there is no violation of the rule against pleading in the alternative. (4 Witkin, Cal. Proc. 5th (2008) Plead, § 402, p. 542.) “[W]hen for any reason the pleader thinks it desirable so to do, as where the exact nature of the facts is in doubt, or where the exact legal nature of plaintiff's right and defendant's liability depend on facts not well known to the plaintiff, his pleading may set forth the same cause of action in varied and inconsistent counts with strict legal propriety.” (Witkin, supra, citing Tanforan v. Tanforan (1916) 173 C. 270, 273.)

 

Defendants argue that plaintiff’s claims under the different subsections of section 12940, i.e., for wrongful termination or retaliation, are separate and distinct cause of actions. The only case cited that contains a cause of action based upon section 12940 is Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952. (The court is unable to find a case by the name Rodriguez v. Hoag Memorial Hospital Presyterian.)

 

In Nadaf-Rahrov, the plaintiff’s first cause of action for “disability discrimination” alleged three unlawful employment practices under section 12940. (Nadaf-Rahrov, supra, at 962.) I.e., that plaintiff alleged three different counts under the same cause of action. She expressly alleged violations of section 12940(m), and 12940(n), and then she impliedly alleged a count under subsection (a) that defendant’s “termination of Plaintiff's work assignment,” as well as its refusal to accommodate her, violated section 12940. (Ibid.) Subdivision (a) prohibits terminations of qualified employees because of disability.

 

Defendants’ concern that it will be unable to bring a motion for summary adjudication due to the form of plaintiff’s complaint is misplaced. Regardless of the form the Nadaf-Rahrov complaint, the court considered defendant’s summary adjudication motion regarding each cause of action alleged under section 12940. A motion for summary adjudication will be granted if it completely disposes of a cause of action. (CCP § 437c(f)(1).) Because the allegations under each subsection of section 12940 were separate theories of liability, the court could grant summary adjudication on one or more of them. (See Nadaf-Rahrov, supra; Garrett v. Howmedica Osteonics Corporation (2013) 214 Cal.App.4th 173, 185, fn. 7.)

 

Here, plaintiff’s allegations under different subsections of section 12940 allege invasions of different primary rights. Subsection (a) alleges the violation of plaintiff’s right to be free from discrimination based upon her disability. Subsection (m) alleges the violation of plaintiff’s right to reasonable accommodation. Subsection (n) alleges the violation of plaintiff’s right to an interactive process. Subsection (h) alleges a violation of plaintiff’s right to be free from retaliatory discrimination. Subsection (k) alleges a violation of plaintiff’s right to have her employer take all reasonable steps necessary to prevent discrimination and harassment from occurring. Accordingly, plaintiff’s complaint alleges five “causes of action.”

CRC, Rule 2.112 requires each cause of action to be separately stated and numbered. As plaintiff’s five counts allege violations of five different primary rights, plaintiff should allege each as its own cause of action.

 

The grounds for demurrer are enumerated in CCP § 430.10. Joining multiple causes of action is not listed. In addition, defendants have not cited any case that holds that the mere joining of multiple causes of action into one cause of action renders the complaint per se subject to a special demurrer for being uncertain, ambiguous, or unintelligible. However, a defect of form, such as joining multiple causes of action, is subject to special demurrer if it makes the joined causes of action uncertain, ambiguous, or unintelligible. (See Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 9; Craig v. City of Los Angeles (1941) 44 Cal.App.2d 71, 73.)

 

The instant FAC is a close call. However, the court will require plaintiff to amend the complaint to state each cause of action individually as the complaint is slightly uncertain. Defendants’ special demurrer is sustained with leave to amend.

 

Defendants are to submit a written order consistent with this ruling.

 

7. SCV-255676; Adams v. Baker

 

Continued to March 11, 2015 at 3:30 p.m. in Dept. 18.

 

8. SPR-76411; In Re Matter of the Fred DeMattei Trust

 

Demurrer

Respondents, Nancy McKean, Trustee, and Lorraine DeMattei, Trustor, demur to petitioner David DeMattei’s First Amended Petition for Report, Accounting, and Determination as to the Internal Proceedings of a Trust (“Amended Petition”) on the ground that petitioner lacks standing.

 

A demurrer is used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) It may be filed to challenge the contestant's standing where the contestant's lack of interest appears on the face of the pleading. (CCP § 430.10.) No extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal. App. 3d 868, 881.) For the purpose of testing the sufficiency of the pleading, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). (Aubry v. Tri–City Hosp. Dist. (1992) 2 Cal. 4th 962, 966–967; Serrano v. Priest (1971) 5 Cal. 3d 584, 591; Adelman v. Associated Int'l Ins. Co. (2001) 90 Cal. App. 4th 352, 359.)

The Amended Petition alleges that the subject Trust has never been amended and thus petitioner remains a beneficiary under the Trust. For the purposes of a demurrer, the court assumes that this fact is true.

 

Respondents argue that, in the case of a beneficiary of a revocable trust, the Trustee does not have a duty to account to beneficiaries. (Probate Code § 16069.) While petitioner alleges that the Trust has not actually been modified to remove petitioner has a beneficiary, pursuant to the September 15, 2004 order, the Trustee may do this at any time; i.e., she may revoke petitioner’s status as a beneficiary. Therefore, she does not have to account to the petitioner. And, petitioner does not have standing to remove the Trustee under Probate Code § 17200.

The petition also states that the Trustee is estopped to assert that the Trust is revocable because petitioner only agreed to be removed as a beneficiary because Lorrain DeMattei agreed to amend the Survivor’s Trust to make a specific gift of the Ranch to him.

Petitioner claims that under these facts the gift of the Ranch is irrevocable and is subject to a constructive trust under Civ. Code § 2224.

 

Respondents argue that even though the Ranch was held as an asset in an irrevocable trust, that petitioner still had no right to it because Lorraine DeMattei is still living and is the sole beneficiary of both the Decedent’s Trust and the Survivor’s Trust and that she is entitled to all income and principal of both trusts. Respondents note that the Ranch may not even exist at the time of Ms. DeMattei’s death. This argument relies on facts and interpretation of the trust instrument, which is not attached to the petition and is not a proper subject of judicial notice. Therefore, this argument is not proper on a demurrer. Respondents have not provided any authority that otherwise establishes that petitioner’s estoppel allegation is subject to demurrer.

Therefore, they have not met their burden on this issue.

 

The petition also states that the principal of judicial estoppel gives petitioner standing to enforce and interpret the Modification because the language of the Modification Order supports petitioner’s position. The court’s order is subject to judicial notice. (Ev.C. § 452(d).) The September 2004 order makes no mention of amending the Survivor’s Trust to make a specific gift of the Ranch to petitioner. Therefore, this allegation does not have merit.

However, as at least one of petitioner’s allegations has not succumbed to Respondent’s demurrer, the general demurrer is overruled.

 

Petitioner is to submit a written order consistent with this ruling.

 

Motion for Review of Trust Documents

In conjunction with Respondent’s demurrer, they request that the court review the subject Trust in camera in order to determine that the Trust instrument was indeed modified pursuant to the court’s September 2004 order.  No extrinsic evidence may be considered on a demurrer. (Ion Equip. Corp. v. Nelson (1980) 110 Cal. App. 3d 868, 881.) Therefore, this request is improper. The motion is denied.

 

Motion to Strike

Respondents, Nancy McKean, Trustee, and Lorraine DeMattei, Trustor, move to strike petitioner’s Amended Complaint, or portions thereof, on various grounds as listed in the notice of motion. However, in their memorandum, Respondents do not actually address the grounds as listed in the notice. Rather, they argue that the Amended Petition should be stricken based upon the court’s prior order granting their previous demurrer on the basis of lack of standing, petitioner’s continued lack of standing, and the court’s ability to strike sham pleadings.

Motions to strike can be used to reach defects or objections to pleadings that are not challengeable by demurrer. A motion to strike may be used to strike any “irrelevant, false or improper matter inserted in any pleading” or any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” (CCP § 436.)

While Respondents claim that the Amended Petition does not contain any new facts, it does contain a new theory, namely, estoppel, as discussed in the court’s ruling on Respondent’s demurrer.

 

As with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice. (CCP § 437.) Thus, Respondents cannot base a motion to strike on extrinsic evidence, such as the Trust instrument, to show that the allegations are “false” or a “sham.”

Respondent’s motion to strike is denied.

Petitioner is to submit a written order consistent with this ruling.

 

Motion for Sanctions

Respondents, Nancy McKean, Trustee, and Lorraine DeMattei, Trustor, move for an order imposing sanctions against petitioner David DeMattei and his counsel pursuant to CCP § 127.7, including reasonable attorney fees and costs, on the ground that the Amended Petition is baseless. As discussed above, the Amended Petition has not been shown to be meritless. Therefore, Respondents’ motion for sanctions is denied.

 

 

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