Feb 20, 2017



FRIDAY, FEBRUARY 17, 2017, 1:30pm            

COURTROOM 19 – Judge Allan D. Hardcastle         

3055 Cleveland Avenue, Santa Rosa, CA  95403

Court Call is available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.

** To set up Court Call- Please call them directly at (888) 882-6878.


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 must contact the Judicial Assistant by telephone at (707) 521-6730 by 4:00 p.m. on THURSDAY, FEBRUARY 16, 2017.  Any party requesting an appearance must notify all other parties of their intent to appear.


1.      SCV-251486 Weiler v. Mattei:

This is on calendar for Plaintiffs/Cross-Defendants Ronald Weiler, Lisa Weiler, and Jackson DeVaney’s (“Plaintiffs”) motion to enforce a protective order against Defendants Alfeo Mattei and Leann Mattei (“Defendants”) that relates to billing records that Plaintiffs produced to Defendants in support of their motion for attorney’s fees.  Plaintiffs also request an order imposing monetary sanctions against Defendants’ attorney of record, Steven Pabros, in the amount of $1,500 payable to the Court under Code of Civil Procedure section 177.5.  In Defendants’ opposition to the motion, Defendants do not address the substance of the protective order but argue only that there is no authority for imposition of sanctions, payable to Plaintiffs’ attorney.  However, Defendants appear to ignore the fact that Plaintiffs request sanctions payable “to the Court,” not sanctions for attorney’s fees payable to Plaintiffs’ counsel.  As Defendants acknowledge, Code of Civil Procedure section 177.5 expressly permits an award of sanctions, payable to the Court, for a violation of a Court order without good cause or substantial justification.  Therefore, that is the question that the Court must address here. 

In this case, the subject protective order was entered by the Court on May 4, 2015 and states in part that Defendants’ attorney, Mr. Pabros, “shall not make any copies (including digital copies) of the SMT Bill, and shall return the SMT Bill to Spaulding McCullough & Tansil within 10 days after the hearing on Plaintiffs’ Second Motion for Attorney’s Fees, with written confirmation that no other physical or digital copies exist.”  (See, Spaulding Dec. at ¶4, Ex. C.) 

The hearing on Plaintiff’s second motion for attorney’s fees was held on August 18, 2015.  However, despite Plaintiffs’ repeated requests to Mr. Pabros to return the billing records for more than a year, Mr. Pabros has failed to return the records as of the date Plaintiff’s motion was filed, i.e., January 5, 2017.  It is this failure to return Plaintiffs’ billing records that is the basis of this motion and Plaintiffs’ request for an order of sanctions against Mr. Pabros. 

Code of Civil Procedure section 128 gives every court the authority “[t]o compel obedience to its judgments [and] orders....”  (Code of Civ. Proc., § 128(a)(4).)  A judge has the power “[t]o compel obedience to his [or her] lawful orders as provided in [the Code of Civil Procedure].”  (Code Civ. Proc., § 177(2).)  “When jurisdiction is ... conferred on a [c]ourt ..., all the means necessary to carry it into effect are also given; and ... any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.”  (Code Civ. Proc., §187.)  With respect to sanctions, the Code gives the Court authority to “impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court.   (Code Civ. Proc. 177.5.)  

In this case, there does not appear to be any dispute that Defendants and/or their attorney, Mr. Pabros, have repeatedly violated the two protective orders issued by the Court regarding Plaintiffs’ billing records.  In their opposition, Defendants merely address Plaintiff’s request for sanctions and then mischaracterize that request as one for sanctions made payable to Plaintiffs, when in fact the motion clearly states that the sanctions should be made payable to the Court.  Indeed, neither Defendants nor Mr. Pabros address the merits of the motion and neither provides any justification for their failure to comply with the most recent protective order, especially in light of the substantial meet and confer efforts that Plaintiffs have made. 

Accordingly, Plaintiffs’ Motion to Enforce the Protective Order is GRANTED.  Defendants’ attorney is to file and serve, within ten days of this hearing, a declaration stating that he has returned to Plaintiffs’ counsel all hard copies of the billing records that were provided in relation to Plaintiffs’ Motion for Attorney’s Fees and with confirmation that no other physical or digital copies exist.  With respect to sanctions, in light of the fact that Defendants have failed to comply with the protective order for over a year after compliance was due and despite Plaintiffs’ substantial meet and confer efforts prior to filing this motion, the Court finds that Defendants have not acted with “good cause or substantial justification” and based there, the Court orders Defendants’ counsel, Mr. Pabros, to pay sanctions to the Court in the amount of $500. 

Plaintiffs’ counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312.


2.      SCV-251814 County of Sonoma v. Davis:

This case is on calendar for a hearing on the Receiver’s Final Accounting Update.  Pursuant to the Third Report of Receiver and Declaration of Andrew Adams, the parties shall APPEAR for the hearing on February 17, 2017 at 1:30 P.M. in Department 19, or by telephonic appearance, to update the Court regarding the status of this receivership.


3.      SCV-258546 Nicholson v. Emeritus:

Appearances required.  It is recommended that counsel and his client both personally appear and that Plaintiff’s counsel have a substitution of attorney form in hand.


4.      SCV-258610 Savage v. Roman Catholic Bishop:   

This matter is on calendar for Defendants The Roman Catholic Bishop of Santa Rosa’s and Father William Donahue’s (collectively “Defendants”) Motion for Summary Judgment or Alternatively, Motion for Summary Adjudication as to Plaintiffs Jo Savage’s (“Ms. Savage”) and Megan Dominici’s (“Ms. Dominici”) (collectively “Plaintiffs”) Complaint for (1) Wrongful Termination in Violation of Public Policy; (2) Constructive Discharge in Violation of Public Policy; and (3) Defamation Per Se.  Defendants bring this motion pursuant to Code of Civil Procedure section 437c(o) and on the grounds that Plaintiffs cannot prove one or more elements for each of their causes of action.  Plaintiffs oppose the motion and argue that there are triable issues of material fact which make summary judgment unwarranted in this case. 

Defendants’ Request for Judicial Notice of Plaintiff’s Complaint is GRANTED.  Defendants’ Objections to Plaintiffs’ Evidence No. 1 is GRANTED and No. 2 is DENEID.   Defendants’ Motion for Summary Judgment is DENIED and Defendants’ Motion for Summary Adjudication is GRANTED in part and DENIED in part. 

 I.                  General Rules of Summary Judgment and Summary Adjudication 

The purpose of summary judgment and summary adjudication is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  In ruling on the motion, the trial court must draw all reasonable inferences from the evidence in the light most favorable to the opposing party.  (Id. at 843, 860.)  Summary adjudication motions are “procedurally identical” to summary judgment motions and a party can obtain summary judgment “only by establishing the merit of his [or her] case ‘as a matter of law.”  (Code Civ. Proc. §437c(c).)  “The phrase “as a matter of law” is another way of saying that the evidence available to the parties, and placed before the court in support of and in opposition to the motion, raises no material issue that a trier of fact could resolve in favor of the party opposing the motion.”  (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 756.)

A defendant moving for summary judgment or summary adjudication must demonstrate that the plaintiff’s cause of action has no merit by showing either that (1) one or more elements of the cause of action cannot be established, or (2) there is a complete defense to that cause of action.  (Code Civ. Proc., § 437c(p)(2).)  The moving defendant can make this prima facie showing either by presenting evidence that conclusively negates an element of a plaintiff’s cause of action or by presenting evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.  (Id. at 854-855.)  Either showing must be supported by evidence, such as affidavits, declarations, admissions, interrogatory answers, depositions, and matters of which judicial notice may be taken.  (Code Civ. Proc. §437c(p)(2).)  If the moving party makes this prima facie showing, the burden shifts to the plaintiff to show of the existence of a triable issue of material fact.  (Aguilar, supra, 25 Cal.4th at 849-850.)  The plaintiff “may not rely upon the mere allegations or denials’ of his pleadings to show that a triable issue of material fact exists but, instead, must set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.”  (Ibid; see also, Aguilar, supra, 25 Cal.4th at 849.)

II.                Plaintiffs’ First Cause of Action for Wrongful Termination

Plaintiffs’ first cause of action is Ms. Savage’s claim for wrongful termination in violation of public policy under Labor Code section 1102.5, which is California’s general whistleblower statute.  (McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 468.)  Labor Code section 1102.5(b) states in part that “[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information…to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance…”  (Lab. Code §1102.5(b).)  The purpose of this statute is to “encourage workplace whistle-blowers to report unlawful acts without fearing retaliation.”  (Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1545–1546.)  To establish a prima facie case of retaliation “a plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.”  (McVeigh, supra, 213 Cal. App. 4th at 468.)  An employee engages in protected activity when she discloses to a governmental agency “reasonably based suspicions” of illegal activity.”  (Id. at 469.)  “If the plaintiff meets his [or her] prima facie burden, the defendant has the burden to prove a legitimate, nonretaliatory explanation for its actions.  (Hager, supra, 228 Cal.App.4th at 1540.) To prevail, the plaintiff has to show that the explanation is a pretext for the retaliation.”  (Ibid.)

In their Complaint, Plaintiffs allege that Ms. Savage was employed by the Diocese of Santa Rosa from about 1987 through May 7, 2015.  (Complaint at ¶69.)  Plaintiff contends that in November 2012, Fr. Donahue took over as Pastor of the Parish and shortly thereafter, he began making decisions and engaging in a course of conduct that caused Ms. Savage became concerned with how he was managing the Parish, the school, and the finances connected therewith.  (Id. at ¶¶20-21.)  The actions that concerned Ms. Savage included Fr. Donahue’s decision to remodel certain areas of the rectory without obtaining proper permits and without using a properly licensed or certified contractor; operating classrooms in the school that did not meet fire, building, and/or safety codes; hiring a principal for the school who did not hold the required credentials or qualifications; charging rent and fees for use of school property that jeopardized the school’s tax exempt status; underreporting and misusing the Parish’s finances.  (Id. at ¶¶22-36.)  Ms. Savage alleges that she addressed her concerns about Fr. Donahue to the Human Resources Department at the Diocese of Santa Rosa and was told to speak with the Vicar of Priests, Msgr. Whelton.  (Id. at 37.)  Ms. Savage met with Msgr. Whelton on May 6, 2015 and expressed her many concerns about Fr. Donahue.  (Id. at 38.)  The very next day, Ms. Savage was terminated.  (Id. at ¶¶39-41.)  Ms. Savage contends that she was terminated “in retaliation for…addressing her concerns with the Diocese of Santa Rosa and the Vicar for Priests regarding Fr. Donahue, his actions, and his control and management of the Parish, school, and financial accounts and matters associated therewith…”  (Id. at ¶71.)

A.     “Causal Link” Between Protected Activity and Adverse Employment Action    

The “causal link” that is required to support a cause of action under section 1102.5(b) may be established by an inference derived from circumstantial evidence, “such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.”  (Morgan v. Regents of University of California (2001) 88 Cal.App.4th 52, 69; see also, Diego v. Pilgrim United Church of Christ (2014) 231 Cal.App.4th 913, 932.)  “[T]emporal proximity, although sufficient to shift the burden to the employer to articulate a nondiscriminatory reason for the adverse employment action, does not, without more, suffice also to satisfy the secondary burden borne by the employee to show a triable issue of fact on whether the employer’s articulated reason was untrue and pretextual.”  (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1112.)  Additionally, under CCP § 437c(c), the Court is required to consider all inferences reasonably deducible from the evidence and at the same time, such inferences must be reasonable, and may not be derived from speculation, conjecture, imagination, or guesswork.  (Annod Corp. v. Hamilton & Samuels (2002) 100 Cal. App. 4th 1286, 1298-1299.)  Thus, for a summary judgment motion to be successful, the evidence must leave no room for conflicting inferences as to material facts.  (Aguilar, supra, 25 Cal.4th at 856; see also, Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 735; Anderson v. Metaldad Insulation Corp. (1999) 72 Cal. App. 4th 284, 297.  Doubts as to the propriety of summary judgment should be resolved against granting the motion.  (Huynh v. Ingersoll-Rand (1993) 16 Cal. App. 4th 825, 830.)

Here, Defendants contend that Plaintiffs cannot establish a “causal link” between Ms. Savage’s whistleblowing activity and the adverse employment action because Fr. Donahue had contemplated terminating Ms. Savage for months before her meeting with Msgr. Whalton; because Msgr. Whalton has stated that he did not tell Fr. Donahue about the meeting with Ms. Savage; and because Fr. Donahue has stated that he did not know about this meeting at the time he terminated Ms. Savage.  However, Defendants do not address the allegations that Ms. Savage had been communicating her concerns regarding Fr. Donahue’s conduct starting in February 2015, including in conversations or attempted conversations with Fran de la Forest, the Human Resources Coordinator for the Dioceses; Joan Goodwin of the Parish Finance Committee; and Dave Adams, the Diocesan Financial Officer.  (See, Plaintiffs’ Opp. to Sep. St. at No. 2.)  Additionally, Plaintiffs’ allegation that “[i]n January 2014, Fr. Donahue informed Savage she was not to speak or communicate with the Parish Finance Committee ever again or there would be ‘serious consequences.’”  (See, Opp. at 16:3-6; Opp. to Sep. St. Nos. 4.)  Furthermore, Plaintiffs allege that “the only prior concerns, questions or dissatisfaction that Fr. Donahue had ever expressed to [Ms. Savage] regarding her work performance came during an April 24, 2015 meeting attended by Savage, Donahue and De La Forest, and during which time all of Fr. Donahue’s concerns were addressed and explained.”  (Opp. at 6:23-26.)  Despite the fact that these job performance issues had been “addressed and explained” during the April 24, 2015 meeting, Fr. Donahue relied on these same reasons for terminating Ms. Savage.  (Opp. at 6:26-28.)

These allegations and the supporting evidence, including the fact that Fr. Donahue knew that Ms. Savage had been speaking with the Finance Committee and warned that she would suffer “serious consequences” if she continued these communications; together with the proximity in time between the protected activity and the termination, are sufficient to establish a “causal link” between the protected activity and the adverse employment action.  Thus, Plaintiffs have met their burden of presenting prima facie evidence of a “causal link” to support their cause of action.  Conversely, Defendants have failed to meet their burden of presenting any evidence to show a legitimate, non-retaliatory reason for Ms. Savage’s termination.  Accordingly, Defendants’ motion for summary adjudication on the first cause of action, as to the Diocese only, is DENIED.         

B.     Personal Liability of Fr. Donahue Under Labor Code Section 1102.5

As stated above, Labor Code section 1102.5(b) states that “[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee…”  (Lab. Code §1102.5(b).)  The Labor Code defines “employer” or “a person acting on behalf of the employer” as including, but not limited to, “a client employer as defined in paragraph (1) of subdivision (a) of Section 2810.3 and an employer listed in subdivision (b) of Section 6400.”  (Lab. Code §1102.5(i).)  The term “person” is defined as “any person, association, organization, partnership, business trust, limited liability company, or corporation.”  (Lab. Code §18.)    

Although the statue is not clear as to whether it imposes liability on individuals who violate its provisions, courts have consistently held similar rules prohibiting wrongful termination, whether brought as a Tameny common law tort claim or as a FEHA claim under the corresponding Government Code section 12940(h), can only be asserted against the employer and not against the offending employee.  (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162-1163, citing Reno v. Baird (1998) 18 Cal.4th 640 and Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55; see also, Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1351; Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 900.  Additionally, the Federal District Courts appear to agree that while the statute itself in unclear, “[t]he statutory text, structure, and legislative history all indicate that only employers—not individual employees - are liable for violations of the statute.”  (See, Vera v. Con-way Freight, Inc. (C.D. Cal. Apr. 6, 2015) WL 1546178, at *1, citing Conner v. Aviation Serv. of Chevron U.S.A., (N.D.Cal. Nov. 5, 2014) WL 5768727, *5.) The court recognizes there is not unanimity in the trial courts of California but the weight of authority and the logic of the statute point to the finding that employers are liable, not individual employees.

Accordingly, the Court finds that Labor Code section 1102.5(b) provides a cause of action only against the employer only and does not create a right of action against an individual supervisor, manager or other employee.  Therefore, Defendants’ motion for summary adjudication on the first cause of action, as it is alleged against Fr. Donahue only, is GRANTED. 

III.       Plaintiff’s Second Cause of Action for Constructive Discharge

In Plaintiffs’ second cause of action, Ms. Dominici asserts a cause of action for constructive discharge in violation of public policy.  “In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.”  (Turner v. Anheuser–Busch, Inc. (1994) 7 Cal.4th 1238, 1251.) “Constructive discharge occurs when the employer’s conduct effectively forces an employee to resign” and [a]lthough the employee may say, ‘I quit,’ the employment relationship is actually severed involuntarily by the employer’s acts, against the employee’s will” and “[a]s a result, a constructive discharge is legally regarded as a firing rather than a resignation.”  (Id. at 1244–1245.)  

“The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.”  (Id. at 1246.)  Thus, an essential element of a constructive discharge claim is “that the adverse working conditions must be so intolerable that any reasonable employee would resign rather than endure such conditions.”  (Id. at p. 1247.)  Adverse working conditions are not established by “[s]ingle, trivial, or isolated acts of misconduct.”  (Cloud v. Casey (1999) 76 Cal.App.4th 895, 903.) Rather, “adverse working conditions must be unusually “aggravated” or amount to a “continuous pattern” before the situation will be deemed intolerable.”  (Id. at 902–903.)

Ordinarily, whether working conditions were so intolerable as to meet the Turner standard is a question of fact.  (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1022.)  However, summary judgment or adjudication is nevertheless appropriate “when, under the undisputed facts, the decision to resign was unreasonable as a matter of law.”  (Ibid.)

Additional proof is needed to establish a cause of action for constructive discharge in violation of public policy and a plaintiff pursuing a claim for constructive discharge in violation of public policy must demonstrate a nexus between the discharge and the public policy violation.  (Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1311 [“besides proving constructive discharge from employment, a plaintiff must also prove a tort or a breach of a contract, in connection with the termination, that entitles her to damages for wrongful discharge.”]; see also, Gould v. Maryland Sound Indus., Inc. (1995) 31 Cal.App.4th 1137, 1148 [if the employer discharged the plaintiff “in order to avoid paying him the commissions, vacation pay, and other amounts he had earned, it violated a fundamental public policy of this state”].)  “In order to sustain a claim of wrongful discharge in violation of fundamental public policy, [plaintiff] must prove that his [or her] dismissal violated a policy that is (1) fundamental, (2) beneficial for the  public, and (3) embodied in a statute or constitutional provision.  (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256.)   “Tort claims for wrongful discharge typically arise when an employer retaliates against an employee for “(1) refusing to violate a statute ... [,] (2) performing a statutory obligation ...[,] (3) exercising a statutory right or privilege ...[, or] (4) reporting an alleged violation of a statute of public importance.”  (Ibid.)

Here, the Court finds that Defendants have met their burden and have presented a prima facie case that Ms. Dominici will not be able to prove all the elements for a cause of action for constructive discharge.  Therefore, the burden shifted to Ms. Dominici to demonstrate a triable issue of material fact.  Although a determination of working conditions were so intolerable establish a cause of action are usually a question of fact, the Court finds here that there is insufficient evidence in the record to show that the Ms. Dominici’s work conditions were “so extraordinary and egregious” that “any reasonable employee would resign rather than endure such conditions.”  (Turner, supra, 7 Cal.4th at 1247.)  Moreover, Ms. Dominici has not made a prima facie showing that her alleged “constructive discharge” was in violation of an established public that is (1) fundamental, (2) beneficial for the public and (3) embodied in a statute or constitutional provision.  (Id. 1256.)   Accordingly, Defendants’ motion for summary adjudication as to Plaintiffs’ second cause of action is GRANTED. 

IV.             Plaintiff’s Third Cause of Action for Defamation Per Se –Slander Per Se

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312, Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369.)  “The defamatory statement must specifically refer to, or be of and concerning, the plaintiff.”  (Ibid, citing Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1042.)  “To be actionable, the publication must be in fact made by the defendant.”  (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 535, p. 787.)  “One who takes a responsible part in a publication of defamatory material may be held liable for the publication.”  (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 712, citing, Shively v. Bozanich (2003) 31 Cal.4th 1230, 1245.)

In this case, Plaintiffs’ cause of action for defamation is based on the allegation, made on “information and belief,” that “Fr. Donahue had spread rumors throughout the Parish that Plaintiffs had been embezzling funds from the Parish.”  (Complaint at ¶96.)  Plaintiffs allege that the Diocese was aware of these false rumors and “failed to take any action to cease or otherwise limit or even address Fr. Donahue’s actions and his dissemination of this information.”  (Id. at ¶97.)  “Through its knowing failure to act, the Diocese…ratified the spreading of these rumors…”  (Id. at ¶98)  Although Defendants may have demonstrated that Plaintiffs do not presently possess the necessary admissible evidence to support their claim for defamation, Defendants have not sufficiently demonstrated that Plaintiffs cannot reasonably obtain this evidence.  (See, Aguilar, supra, 25 Cal.4th at 850.)  The moving defendant can make this prima facie showing either by presenting evidence that conclusively negates an element of a plaintiff’s cause of action or by presenting evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.  (Id. at 854-855; see also, Saelzler, supra, 25 Cal.4th at 780.)   Thus, Defendants’ motion for summary adjudication as to the third cause of action is DENIED.

Defendants’ counsel shall submit a written order addressing both motions to the Court that is consistent with this tentative ruling and in compliance with Rule of Court 3.1312.



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