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Law & Motion Calendar

PLEASE NOTE: Per order of the court, any party or representative of a party must appear remotely through Zoom for this calendar unless you request an in-person appearance by 4:00 p.m. the day before the hearing.

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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 notify Judge DeMeo's Judicial Assistant by telephone at (707) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. the court day immediately preceding the day of the hearing. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

PLEASE NOTE: The Court's Official Court Reporters are "not available" within the meaning of California Rules of Court, Rule 2.956, for court reporting of civil cases.

Tentative Rulings

Wednesday, June 12, 2024

3:00 p.m. 

Law & Motion Tentative Rulings 6-12-2024

1.         23CV01507, Haygooni v. Solairus Aviation LLC

DROPPED from calendar based off parties’ stipulation filed June 10, 2024.

 

2.         SCV-269767, Ravioli LLC v. Master Bango Inc

Defendants have requested oral testimony from two of Plaintiffs’ witnesses. THE PARTIES ARE ORDERED TO APPEAR. The Court will hear arguments on the issue of whether oral testimony is necessary before receiving the testimony. The tentative ruling is as follows:

Ravioli LLC (“Ravioli”), Spaghetti LLC (“Spaghetti”), and Tortellini LLC (“Tortellini” all together “Plaintiffs”) filed the currently operative first amended complaint in this action against defendants Master Bango Inc. (“Bango”), Ronald Ferraro (“Ferraro”, together “Defendants”) and Does 1-100 with several causes of action for: 1) three causes of action for breach of contract; 2) three common counts; 3) unfair competition under Business and Professions Code § 17200 et seq. (the “Unfair Competition Law” or “UCL”); and 4) promissory fraud (the “FAC”). Bango (“Cross-Complainant”) has also filed a cross-complaint against Ravioli, Spaghetti and Tortellini, alleging breach of contract, breach of warranties, tortious interference with prospective business relations, and unjust enrichment (the “Cross-Complaint”). This matter is on calendar for Defendants’ motions to set aside the writs of attachment granted to Ravioli, Spaghetti and Tortellini, and the Cross-Complainant’s motion to amend the Cross-Complaint.

The Motions to set aside the writ of attachment is DENIED as to Tortellini and Spaghetti. The motion is GRANTED as to Ravioli. Cross-Complainants’ motion for leave to amend is DENIED without prejudice. 

        I.                    Governing Law

                    A.    Set Aside Right to Attach

“Attachment is an ancillary or provisional remedy to aid in the collection of a money demand by seizure of property in advance of trial and judgment.” Kemp Brothers Construction Inc. v. Titan Electric Corp. (2007) 146 Cal.App.4th 1474, 1476. “California’s Attachment Law…is purely statutory and is strictly construed.” Id. In order to obtain a right to attach order, the plaintiff must demonstrate that the claim is one upon which attachment is permitted and must demonstrate the probable validity of the underlying claim. See CCP §§483.010; 484.090(a)(2). A claim is one upon which an attachment may issue if it is: (1) a claim for money based upon a contract, express or implied; (2) of a fixed or readily ascertainable amount not less than $500; (3) that is either unsecured or secured by personal property, not real property (including fixtures); and (4) that is a commercial claim. CCP §483.010. “A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” CCP §481.190. In determining probable validity, the court “must consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.” Loeb & Loeb v. Beverly Glen Music (1985) 166 Cal.App.3d 1110, 1120.

Thus, “[a]t the hearing of an application for a right to attach order, the court shall consider the showing made by the parties appearing and shall issue such an order if it finds (1) the claim upon which the attachment is based is one upon which an attachment may be issued; (2) the plaintiff has established the probable validity of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and (4) the amount to be secured by the attachment is greater than zero.  CCP § 484.090(a). The court’s determinations shall be made upon the basis of the pleadings and other papers in the record.” Goldstein v. Barak Construction (2008) 164 Cal. App. 4th 845, 852-853, citing CCP §484.090(d); see also Loeb & Loeb, 166 Cal.App.3d at 1120 (“court must consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.”). A claim has “probable validity” where “it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” CCP § 481.190; see also Santa Clara Waste Water Co. v. Allied World Nat’l Assur. Co. (2017) 18 Cal.App.5th 881, 885.

Second, claims must be for a “fixed or readily ascertainable amount not less than $500.” CCP § 483.010. The damages sought need not be liquidated but must be measurable by reference to the contract itself. See Kemp Bros. Const., Inc. v. Titan Elec. Corp. (2007) 146 Cal.App.4th 1474, 1481, n. 5. “It is not necessary that the amount for which the defendant may be liable should appear on the face of the contract by or from which liability is to be determined.” Bringas v. Sullivan (1954) 126 Cal.App.2d 693, 699 (explaining that the CCP “does not require that the amount due on the contract shall appear from the contract itself[,] but that the amount of indebtedness shall be shown by affidavit.”). To demonstrate that a claim is readily ascertainable, “the contract sued on must furnish a standard by which the amount due may be clearly ascertained and there must exist a basis upon which the damages can be determined by proof.” Id. (internal citation omitted). See also CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 540; Hayward Lumber & Inv. Co. v. Construction Prods. Corp. (1952) 110 Cal.App.2d 386, 387.

A party may move for relief from an order of attachment, either requesting that the order be set aside, or that the amount to be secured be reduced. CCP, § 485.240(a). “(A)lthough in a motion under section 485.240 the defendant is the moving party, the plaintiff nevertheless continues to have the burden of proving (1) that his claim is one upon which an attachment may be issued and (2) the probable validity of such claim, the same burden he must meet under section 484.090.” Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1116. “The court's determinations shall be made upon the basis of the pleadings and other papers in the record; but, upon good cause shown, the court may receive and consider at the hearing additional evidence, oral or documentary, and additional points and authorities, or it may continue the hearing for the production of such additional evidence or points and authorities.” CCP, § 485.240(c).

                    B.     Motions for Leave to Amend

The California Code of Civil Procedure provides that a court “may in the furtherance of justice, and on any terms as may be proper” allow a party to amend any pleading to correct a mistake. CCP § 473(a)(1). Likewise, the court may “in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars”. CCP § 473(a)(1). “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” CCP § 576. The general rule is “liberal allowance of amendments.” Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; see Lincoln Property Co., Inc. v. Travelers Indemnity Co. (2006) 137 Cal.App.4th 905, 916. The “policy of great liberality” applies to amendments “at any stage of the proceedings, up to and including trial.” Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487. “Absent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendment of pleadings will prevail.” Board of Trustees v. Superior Court (2007) 149 Cal. App.4th 1154, 1163.

Absent a showing of prejudice, delay alone is not a basis for denial of leave to amend. Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 563. “(I)t is irrelevant that new legal theories are introduced as long as the proposed amendments relate to the same general set of facts.” Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [internal citations omitted].

It is within the Court’s discretion to deny leave to amend where the amendment has been pursued in a dilatory manner, and that delay has prejudiced other parties. Prejudice exists where the amendment would result in the delay of trial, where there has been a critical loss of evidence, where amendment would add substantially to the costs of preparation, or where it would substantially increase the burdens of discovery. Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488; see P & D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345; Fisher v. Larsen (1982) 138 Cal.App.3d 627, 649.

Great liberality applies to amendment unless the amendment raises new and substantially different issues from those already pleaded. McMillin v. Eare (2021) 70 Cal.App.5th 893, 910. In exercising its discretion over amendment, the court will consider whether there is a reasonable excuse for the delay, whether the change relates to facts or legal theories, and whether the opposing party will be prejudiced by the amendment. Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1378. The underlying merits of the proposed cause of action amendments are not relevant to determining whether amendment is appropriate, as long as they relate to the same general set of facts, as the amended pleadings may be attacked by demurrer, motion for judgment on the pleadings, or other similar proceedings. Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048. Denying leave to amend due to failure to sufficiently plead a cause of action would be most appropriate where the defect cannot be cured by further amendment. California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280–281; disapproved of on different grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390. The exception would lie where a plaintiff makes contradictory pleadings. “As a general rule a party will not be allowed to file an amendment contradicting an admission made in his original pleadings. If it be proper in any case, it must be upon very satisfactory evidence that the party has been deceived or misled, or that his pleading was put in under a clear mistake as to the facts.” Brown v. Aguilar (1927) 202 Cal. 143, 149.

Motions to amend a pleading must contain a copy of the proposed amended pleading, what allegations will be changed, and where the changes are located, by page, paragraph, and line number. Cal. Rules of Court (“CROC”), Rule 3.1324 (a).

        II.                 Analysis

                    A.    Motions to Set Aside the Right to Attach Order and Writ of Attachment

While the Writs of Attachment needed to be applied for separately, and therefore addressed separately by Defendants in the motion, the papers for the motions are nearly identical in all respects, and therefore the legal analysis is the same. The lone differentiation raised as to Ravioli is addressed separately. 

Ravioli, Spaghetti and Tortellini’s argument that the motion here is effectively a motion for reconsideration under CCP § 1008 is unavailing. The Court’s November 30, 2023, is a denial of Plaintiffs’ requested relief, and it elucidates multiple deficiencies in the application. This did not, contrary to Plaintiffs’ position, constitute a hearing on the merits which would implicate a motion under CCP § 1008. Even if this were the case, the Court is not persuaded that a generalized statute such as CCP § 1008 overrides specific provisions regarding set asides of right to attach orders, as is elucidated under CCP § 485.240. As such, the Court’s determination turns to the merits of the motion.

Defendants proffer no evidence attempting to rebut the factual circumstances of the right to attach (that there is no indebtedness), rather averring that Ravioli, Spaghetti and Tortellini have failed to show a probability of prevailing on their causes of action. Defendant avers that the contract shows that Plaintiffs’ breach of contract causes of action will fail because they are not the party directly named on the contract, rather that it was “Pasta Farms, LLC”. Defendant avers that the common count therefore also fails. This is unpersuasive for multiple reasons.

Defendant’s reliance on McBride v. Boughton (2004) 123 Cal.App.4th 379, 394, is unavailing, as that case is entirely inapposite from the case at bar. In McBride, a putative father found out that he was not the biological father of the child at issue, and he sued under theories of unjust enrichment and common counts. The Court found that because of the failure of the unjust enrichment claims, the common count also failed because plaintiff could not express a legally cognizable claim for why he was owed monies from defendant. The common counts claim failed because defendant was not indebted to plaintiff, plaintiff could not state any cognizable theory of liability, and could not shield a claim on which no indebtedness could be claimed under a common count. Here, Defendants do not provide evidence to contest that goods were delivered, that they retained and sold those goods, and that they understood that they owed renumeration on those goods. Defendants cannot avoid this application of facts by citing to improvidently worded statements from the Court of Appeal within cases which are factually inapposite.

Second, Defendant has not shown that the breach of contract cause of action is “demurrable” for this reason. Here, the Court reviews the evidence (which is proper as to the instant motion but not a demurrer), the Declaration of Samuel Edwards in Opposition[1] provides evidence that “Pasta Farms” was a colloquialism used to refer to Ravioli, Spaghetti and Tortellini and other associated cannabis selling entities with pasta-themed names. This shows Plaintiffs have evidence to support their breach of contract cause of action. Arguendo, if the FAC were demurrable, a motion to discharge an attachment on the ground that the complaint does not state a cause of action should be granted only if the complaint shows on its face that the pleader has no cause of action, and the defect cannot be cured by amendment. Peninsula Properties Co. v. Santa Cruz County (1950) 34 Cal.2d 626, 629. Defendants have not shown that the matter is not capable of remedy through amendment.

The Court’s analysis as to Ravioli, Spaghetti and Tortellini’s application appears to have been proper. Plaintiffs have stated contract claims, which they have supported with evidence to show probable validity of the claims. The requested set aside of the order as to Spaghetti and Tortellini appears improper.

As to Ravioli, Defendants make a distinguishing argument from Spaghetti and Tortellini. Ravioli makes no argument on this issue in opposition. In the application for writ, Ravioli avers that the indebtedness Defendants owe them is from the provision of a strain of cannabis called “Alien OG”. Defendants show that in the papers attached to the application, Alien OG is not sold by Ravioli, rather that the $570,000 of Alien OG is sold by Fettuccini, LLC. Inconsistent with this is the invoice for the Alien OG having been issued by Ravioli, rather than Fettuccini. See Request for Judicial Notice in Support of Right to Attach Order, filed 12/11/2023, Declaration of Maureen Lynch, Ex. A (PF0074). In weighing the evidence, it appears that Ravioli does not have a probability of prevailing on the merits of their claims. The Memorandum in Support of the Writ of Attachment attempts to aver that “another Pasta Farm LLC was misidentified as the purveyor of Alien OG”, but this itself is not evidence. See Memorandum in Support of Ex Parte for Writ of Attachment, pg. 1, fn. 1. With only the billing invoice as evidence of the contractual error, this appears insufficient.

The procedural deficiencies argued by Defendants as to the writ are immaterial. As Ravioli, Spaghetti and Tortellini concisely point out, the remedy for service defects in the writ of attachment does not “affect the attachment lien created by the levy.” CCP, § 488.120. While Defendants make several arguments about the undertaking, the facts remain that the proper amount of the undertaking was deposited with the Court prior to issuance of the writ and order. While Defendants provide a bevy of authority showing that Plaintiff’s execution of the writ and right to attach order was not in comportment with the applicable statutes, none of that authority shows that the appropriate remedy is to reverse the right to attach order.

Given the nature of the rulings above, the Court need not determine the issues argued regarding judicial admissions. Whether Defendants did or did not make a judicial admission regarding the contractual relationship between the parties does not appear to affect the probability of prevailing on any of the claims at issue.

The Motion to set aside the writ of attachment is DENIED as to Tortellini and Spaghetti. The motion is GRANTED as to Ravioli.

                    B.     Motion for Leave to Amend

                                   1.      Procedural Defects

First, the Court notes that Cross-Complainant’s application is procedurally deficient. An application to amend a complaint must include what allegations will be changed, and where the changes are located, by page, paragraph, and line number. Cal. Rules of Court (“CROC”), rule 3.1324 (a). No such information is included in Cross-Complainant’s motion. As a result, it is impracticable for the Court to determine every change contained in Cross-Complainant’s Proposed Amended Cross-Complaint. What is apparent is that the proposed changes are numerous and extensive. The newly proposed complaint is sixteen pages longer than the Cross-Complaint. It contains allegations which occurred in 2024, against twenty-one new cross-defendants. The necessity of delineating the proposed changes appears more pertinent in this regard. If Cross-Complainant’s argument is that the changes are too extensive to render this method practicable, they have shown that this is more akin to a fresh cross-complaint than an amendment of the Cross-Complaint already on file.

This alone would constitute a basis to deny the motion, however the Court also finds that the merits therein are deficient.

                                   2.      Unwarranted Delay

Second, the Court notes that this amendment appears to be unduly delayed. Cross-Complainant asserts that this claim is in part necessary based on the discovery of the pleading error of former counsel. However, the facts underlying this pleading have been in Cross-Complainant’s possession since the genesis of the case.  This clearly represents a lack of diligence. Unwarranted delay is a substantial factor in deciding in determining whether leave to amend is proper. Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1097. Indeed, Counsel avers that he became counsel of record in May of 2023. This motion was not filed until April 2024. Cross-Complainant (nor their Counsel) aver no discovery of facts nor that the information on which they predicate the amendment was hidden from them. Cross-Complainant has sat on these claims for nearly eighteen months since the filing of their Cross-Complaint before moving to enforce their rights against various proposed cross defendants and amend the Cross-Complaint. The substitution of counsel does not somehow abrogate the delay here. Del Mar Beach Club Owners Assn. v. Imperial Contracting Co. (1981) 123 Cal.App.3d 898, 915. The claims asserted by Cross-Complainant have been subject to unwarranted delay. However, absent prejudice, this alone is not adequate reason to deny leave to amend.

                                   3.      Prejudice

Procedurally, the instant motion is neither a motion for leave to amend, nor a motion to supplement the original complaint. A motion to amend should not allege facts which occur after the filing of the complaint. Hebert v. Los Angeles Raiders, Ltd. (1991) 23 Cal.App.4th 414, 426. Conversely, a motion to supplement the complaint should not seek to add causes of action. Flood v. Simpson (1975) 45 Cal.App.3d 644, 647. Here, Cross-Complainant seeks both these remedies. The dual nature of these proposed allegations is illustrative of the prejudice in allowing amendment. The trial in this matter is currently set for May 16, 2025. Contrary to Defendants’ argument, the proposed amendments do not “arise from the same general set of facts”. Defendant seeks to allege multiple facts which occur after the filing of the Cross-Complaint, including allegations from March 2, 2023. In adding these facts, Cross-Complainant has also added causes of action. While additional causes of action that derive from the same facts are generally treated as non-prejudicial, and facts which reinforce already pled causes of action are the same, the combination appears to be per se prejudicial, as it leaves Ravioli, Spaghetti and Tortellini to address matters they could not possibly have derived from the original Cross-Complaint. The bounds of amended complaints and supplemental complaints appear to be restricted to their relevant niches for just this reason. This does not even begin to address the prejudice potentially experienced by Proposed Cross-Defendants, who despite their association with Ravioli, Spaghetti and Tortellini, have an independent right to discovery on the fresh claims.

Additionally, there is palpable prejudice in allowing amendment to add causes of action. Cross-Complainant alleges a slew of fresh allegations, including that Cross-Defendants were improperly coordinating to avoid competing with one another. 

Based on the above, the Court finds substantial prejudice in allowing amendment. This, combined with the undue delay, dictates the proper discretionary result. The motion for leave to amend is DENIED.

        III.              Conclusion

Based on the foregoing, the motion to set aside the writ of attachment is DENIED as to Tortellini and Spaghetti. The motion is GRANTED as to Ravioli.

Cross-Complainants’ motion for leave to amend is DENIED without prejudice. 

Ravioli, Spaghetti and Tortellini shall submit a written order to the court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).

 

3.         SCV-270482, Barton v. General Motors LLC

Defendant General Motors LLC (“GM”) moves to strike, or in the alternative to tax, costs from Plaintiff Barton’s memorandum of costs filed by counsel Wirtz Law APC (“Wirtz”) for $13,307.17. The motion is partially GRANTED as follows:

1.      The Court strikes the $625.00 included in anticipated costs not yet incurred for the total $2,799.00 requested for court reporter fees;

2.      The Court strikes $50.10 for anticipated costs in filing or service fees for the motion for attorney’s fees and request for dismissal that were not incurred out of the total $350.70 requested for electronic filing or service fees; and

3.      The Court strikes the entire $3,815.85 requested as “Other Costs” which represents generally business overhead expenses incurred to travel to and prepare for trial that are not properly billable to Wirtz’ client.

The motion is DENIED as to all other fees and costs, as explained below.

PROCEDURAL HISTORY

Plaintiff filed this action against GM asserting three causes of action under the Song-Beverly Act regarding a vehicle Plaintiff bought from GM. Ultimately, Plaintiff accepted GM’s Code of Civil Procedure (“C.C.P.”) section 998 offer to compromise and settle the lawsuit for a payment of $85,000.00 and either $10,000.00 for attorneys’ fees and costs or fees by motion. Plaintiff filed two memorandum of costs on March 18, 2024, to support their motion for fees after the settlement. GM disputes the total requested amount of $13,307.17 in one of the memorandum of costs submitted by Plaintiff’s counsel Wirtz Law APC (“Wirtz”). GM requests the Court to strike or tax a majority of the costs requested.

ANALYSIS

Legal Standard

Motion to Strike

The court may, “upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (C.C.P. §§ 435, 436.) Any party may serve and file a notice of motion to strike the whole or any part of a pleading within the time allowed to respond to the pleading, within the notice specifying the hearing date on a motion to strike the complaint. (Id. at § 435(a)-(b).)

Fees & Costs

C.C.P. section 1032 allows the prevailing party of an action to recover costs. C.C.P. section 1033.5(a) lists the costs that the prevailing party may claim, while section 1033.5(b) lists the costs that are not allowed. 

Motion to Tax Costs

A party seeking to tax costs on a memorandum of costs has the burden of showing that the costs were not reasonable or necessary. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) If this burden is met using proper objections, the burden of proof shifts to the party claiming costs by providing documentary evidence. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1265.) Once documentation is provided, the party challenging the costs must provide contradicting evidence and the trial court will determine if the disputed costs were reasonably necessary. (Id. at 1265-1266.) If a cost claimed is expressly allowed by a statute, the party seeking to tax the costs must show that it was unnecessary and unreasonable; however, where costs are not expressly allowed by statute, the burden is on the party claiming the costs to show the charges were reasonable and necessary. (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.)

Moving Papers

The motion seeks to reduce Wirtz’ costs by $11,073.17, arguing these costs lack merit and are self-enriching, but GM changed its request in the reply brief to a reduction of $8,870.46 so that recovery is no more than $4,436.71. Wirtz opposes the motion and finds issue with there being no mention of the other memorandum of costs in the motion. As the other memorandum is not the subject of this motion, the Court will not address it.

Wirtz primarily relies on the Song-Beverly Act’s allowance for additional recovery by a buyer who prevails in an action per Civil Code section 1794(d), for reasonably incurred costs including attorney’s fees based on actual time expended expenses and other costs in connection with the commencement and prosecution of such action.

Filing and Motion Fees

Wirtz requests $60.00 in filing and motion fees. GM has not objected to this request, and it is an allowable cost per C.C.P. section 1033.5(a)(1). The Court will not strike or tax this request.

Deposition Costs

Wirtz requests $3,889.56 for deposition costs. Initially, GM sought in the motion to strike these costs entirely, but in the reply brief, GM argues that it should not have to reimburse Wirtz for $1,686.85 of the deposition costs as they relate to depositions of Platinum Chevrolet technicians and employees. These deponents were non-parties with their own counsel and were neither controlled nor represented by GM. As the case did not go to trial, GM argues that these depositions did not advance Plaintiff’s case, but rather benefited counsel only.  

Wirtz argues these costs were all reasonably incurred because GM contested liability, so Plaintiff needed to demonstrate that the vehicle had defects covered by warranty and to do so, Plaintiff deposed the relevant and available dealership personnel and also GM’s PMQ to obtain evidence both to build Plaintiff’s case and to defend against GM’s affirmative defenses. Wirtz provided the receipts related to the deposition costs.

The Court finds that the deposition costs were reasonably incurred to prosecute Plaintiff’s case against GM and obtain relevant evidence. The Court will not strike or tax these costs.

Service of Process

Wirtz requests $1,050.00 for service of process for deposition subpoenas served to various individuals. In the motion and reply, GM argues that it should not be required to reimburse any of these costs because seven of the individuals subpoenaed did not sit for their deposition and the other three depositions did not benefit Plaintiff’s case according to GM.

Wirtz argues that these costs were reasonably incurred and necessary to prosecute the action. The individuals whose depositions went forward were the only ones who still worked at the dealership at the time of the deposition. Plaintiff’s counsel updated GM’s counsel which ones would be going forward out of the ones noticed and which would not. 

The Court finds that these service of process costs were reasonably incurred to prosecute Plaintiff’s case against GM. The Court will not strike or tax these costs.

Court Reporter Fees per Statute

GM argues that it should not be required to pay $625.00 of the $2,799.00 court reporter fees requested because such costs are not properly billable yet to Plaintiff arguing that at the time the memorandum of costs was filed, Plaintiff’s counsel still had not filed a motion for attorney’s fees and the motion has yet to be heard.

Plaintiff argues that these costs are sought under the more expansive Civil Code section 1794(d), because Plaintiff will hire a reporter for the hearing on the fees motion at a rate of $625.00.

As Plaintiff has not yet incurred the $625.00, the Court will strike these future costs. 

Models, Enlargements, and Photocopies of Exhibits

In the motion and reply, GM requests that the Court strike the $1,342.06 of costs requested for exhibits because Wirtz did not provide an explanation as to the breakdown of these costs and because the case did not ultimately go to trial. Wirtz provided a breakdown of the exhibit costs attached as Exhibit 8 to the Declaration of Rotman. Wirt argues that it was still necessary to prepare for trial before the parties settled at the trial call.

The Court finds that Plaintiff reasonably incurred these costs in preparing the exhibits in preparation for trial. The Court will not strike these costs.

Fees for Electronic Filing or Service

In the motion and reply, GM requests that the Court should strike the $350.70 that Wirtz requests for electronic filing or service because these were optional costs that Counsel elected and did not advance Plaintiff’s case. Plaintiff submitted invoices for the charges incurred to date, and also included additional anticipated charges for future motions for fees and request for dismissal.

As Plaintiff has not yet incurred the $50.10 for future motions, the Court will strike these costs from the total electronic filing or service fees requested.

Other Costs

Wirtz requests $3,815.85 for “Other Costs.” These costs include: (1) $302.85 for business meals; (2) $900.00 for courtesy copies; (3) $12.50 for legal research; (4) $21.53 for miscellaneous; (5) $1.00 for parking; (6) $155.98 for postage; and (7) $2,421.99 for travel. GM argues that these should be stricken because they are not required expenses and otherwise general overhead costs which are not properly billable to clients.

Wirtz argues that because C.C.P. section 1033.5 permits reimbursement for travel expenses in connection with depositions, the Court should imply that travel expenses incurred for other appearances, like trial, ought to be permitted as reimbursement too. Wirtz does not cite any additional authority for this apart from Civil Code section 1794. Wirtz also argues that Sonoma Local Rules requires courtesy copies, however the Court notes that courtesy copies are required to be delivered to the judicial officer’s chambers when filing documents for a hearing fewer than 10 court days prior to the hearing date per Local Rule 9.28, or otherwise in relation a formal discovery hearing in a Juvenile Court proceeding per Local Rule 10.6(B). It is unclear to the Court how all $900.00 worth of courtesy copies were served to comply with these specific local rules. Plaintiff also includes in this amount anticipated costs for the motion for fees and reply briefs. The legal research cost requested is for the Westlaw account to do research. The “miscellaneous” cost was incurred due to Wirtz’ own error in attempting to wire the settlement funds to Plaintiff after GM had already transmitted them properly to Wirtz. The travel expenses (flight, hotel, rental car, and Uber) and parking charges were incurred when travelling to trial call. Finally, the postage expenses incurred were to mail the trial binders to the department before trial and to send the settlement funds to Plaintiff after the wire attempt had failed.

The Court finds that the above-described charges are all general business expenses and overhead costs that Wirtz cannot appropriately bill to Plaintiff. Thus, it is not appropriate to include these in the memorandum of costs to support a motion for attorney’s fees against GM. Thus, the Court will strike these costs in their entirety.

CONCLUSION

Based on the foregoing. GM’s motion is partially GRANTED as follows:

1.      The Court strikes $625.00 from the $2,799.00 requested for court reporter fees.

2.      The Court strikes $50.10 from the total $350.70 requested for electronic filing or service.

3.      The Court strikes the entire $3,815.85 requested as “Other Costs” for business expenses.

The motion is DENIED as to all other fees and costs, as explained below. GM shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).

 

4.         SCV-270614, Mendonca v. Lisenmeyer

Plaintiff/Cross-Defendant Mendonca (“Plaintiff”) moves unopposed to consolidate this matter with Mendonca v. Linsenmeyer, Case No. 24CV01063 (the “Second Action”), which is pending before the Hon. Patrick Broderick. The motion is GRANTED.

PROCEDURAL HISTORY

This matter arises from a dispute between Plaintiff and Defendant Linsenmeyer over real property in which they each have a one-half interest. Plaintiff commenced this action for partition and Defendant cross-complained for declaratory relief and a determination that he has a life estate in part of the real property.

In February of 2024, Plaintiff commenced the Second Action seeking partition under the Partition of Real Property Act under Code of Civil Procedure sections 874.311 et seq. (the “PRPA”), which took effect on January 1, 2023. Plaintiff initially made a claim under the PRPA in this action but dismissed it because the PRPA only applies to actions brought after January 1, 2023. For that reason, Plaintiff commenced the Second Action.

Per California Rules of Court, Rule 3.300, Plaintiff filed a notice of related case in both actions. Plaintiff now seeks to consolidate both actions into one. Per Plaintiff’s counsel’s declaration, he learned through Defendant’s new counsel, Attorney Weaver, that there would be no opposition. Plaintiff served proper notice of the motion to all parties on April 30, 2024. New counsel substituted in on May 14, 2014. Defendant has not filed any opposition.

MOTION TO CONSOLIDATE

Plaintiff moves to consolidate on the grounds that the two actions have identical facts, identical parties, and identical types of claims with the only difference being that the second action relies on a law that applies only to cases filed after January 1, 2023. Plaintiff filed a notice of this motion in both cases per California Rules of Court, Rule 3.350.

Code of Civil Procedure section 1048(a) provides that “when actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” An order of complete consolidation results in separate actions becoming a single action, the pleadings in the various actions being considered as an overall set of pleadings, and a single verdict and judgment issuing for all parties on all issues. (Kropp v. Sterling Sav. & Loan Ass’n (1970) 9 Cal.App.3d 1033, 1046-47.) The Court ordinarily considers the following factors in deciding whether to order consolidation: the timeliness of the motion (i.e. whether granting consolidation would delay trial or whether discovery in one or more cases has proceeded without all parties present); complexity (i.e. whether joining the actions involved would make trial too confusing or complex); and prejudice (i.e. whether consolidation would adversely affect the rights of any party). (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (Rutter Group 2020) ¶ 12:362.)

Here, a consideration of the above-stated factors supports consolidation of the two actions as they arise from the same facts and involve the same parties. Consolidation does not seem likely to prejudice Defendant. 

CONCLUSION

Based on the foregoing, the Court GRANTS Plaintiff’s motion to the two actions be consolidated with the present action as the lead case. Unless oral argument is requested, the Court will sign the proposed order lodged with the motion.

 

5.         SCV-271948, Crane v. General Motors, LLC

Plaintiff Bryan Crane’s motion for attorney’s fees is GRANTED for the reduced amount of $38,393.19 and costs of $5,423.19.

PROCEDURAL HISTORY

This is a Song-Beverly Act action related to Plaintiff’s purchase of a vehicle from Defendant General Motors LLC (“GM”). Ultimately, Plaintiff accepted GM’s Code of Civil Procedure section 998 offer to compromise for the amount of $225,000.00 including civil penalties agreeing that Plaintiff was the prevailing party, and that GM would pay attorney’s fees, costs, and expenses pursuant to Civil Code section 1794(d) per noticed motion. Plaintiff filed this motion for fees and costs, but GM opposes the motion requesting a reduction in the fees requested.

ATTORNEY’S FEES

Legal Standard

Fees & Costs

C.C.P. section 1032 allows the prevailing party of an action to recover costs. C.C.P. section 1033.5(a) lists the costs that the prevailing party may claim, while section 1033.5(b) lists the costs that are not allowed. 

Civil Code section 1794(d) allows recovery for reasonably incurred costs including attorney’s fees based on actual time expended expenses and other costs in connection with the commencement and prosecution of such action.

Lodestar Calculation

The “lodestar” calculation is the number of hours reasonably expended in legal representation multiplied by the reasonable hourly rate prevailing in the community for similar services by an attorney with similar skill and experience. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) The trial court may adjust the lodestar amount based on various factors specific to the case to fix the attorney fees at fair market value for the services provided, including: “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Ketchum, supra, 24 Cal.4th at 1132.)

Moving Papers

Plaintiff requests attorneys’ fees in the amount of $39,907.50 and costs in the amount of $5,423.19, supported by the memorandum of costs submitted with the motion. The motion is made per Civil Code section 1794(d). The rates requested are as follows:

Name

Position & Experience

Hours

Hourly Rate

Fees

David N. Barry

Attorney (23 yrs.)

15.9

675.00

$10,722.50

Brian J. Kim

Attorney (3 yrs.)

83.4

350.00

$29,185.00

COSTS:

$5,423.19

TOTAL:

 =SUM(ABOVE) $45,330.69

In support of the above fees, Plaintiff’s counsels provided evidence of the work done and declarations that show they have been awarded rates of $500-$625 and $250-$300 respectively in multiple similar matters in various counties in California. Plaintiff’s counsels propose that the requested hourly rates are reasonable in the Sonoma County market. Plaintiff’s counsels are based in Los Angeles.

GM opposes the motion claiming that Plaintiff’s counsel’s fee claim must be reduced and limited to $15,545.00 in fees and $1,731.45 in costs. GM argues that counsel has not sufficiently shown the reasonableness of the rates requested. GM finds issue with the following types of fees: pre-engagement work, drafting the complaint, reviewing court’s notice, preparing templated discovery requests and responses and deposition notices, reviewing GM’s discovery requests and responses, stipulated protective order, preparing meet and confer correspondences, informal discovery conference, excessive communication with client, templated motions to compel, failure to appear at hearing, and attorneys’ fees demand.

In reply, Plaintiff argues that GM failed to provide this Court with any citation to case law or statutory authority that would support a reduction in the hours billed by Plaintiff and that the opposition mainly contains GM’s counsel’s opinions. Plaintiff reaffirms that the hourly rates requested are reasonable and the fees sought are reasonably incurred.

Application

Based on the parties’ arguments, the Court finds Plaintiffs are entitled to both fees and costs per Civil Code section 1794(d). The Court finds that 99 hours and more of work appear reasonable for the two attorneys that assisted Plaintiffs in this matter over the last two years. The Court will reduce both counsel’s rates to the amounts previously awarded that are reasonable in the local area. As Plaintiff’s counsel did not sufficiently show that Plaintiff attempted to find local counsel, but were unsuccessful, the Court will not award rates acceptable in the Los Angeles area. The Court finds that the costs expended by Plaintiffs’ counsel were reasonably incurred to litigate the matter.

Accordingly, the Court will reduce the hourly rates as follows:

Name

Position & Experience

Hours

Hourly Rate

Fees

David N. Barry

Attorney (23 yrs.)

15.9

500.00

$7,950.00

Brian J. Kim

Attorney (3 yrs.)

83.4

300.00

$25,020.00

COSTS:

$5,423.19

TOTAL:

 =SUM(ABOVE) $38,393.19

CONCLUSION

Based on the foregoing, Plaintiffs motion for fees and costs is GRANTED for the amount of $38,393.19 and costs of $5,423.19. Plaintiffs shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).

 

6.         SCV-273115, MAR SR LLC v. Rashed, SR

Petitioner MAR SR, LLC moves as prevailing party under Code of Civil Procedure sections 527.6, 1032, and 1033.5 for an order awarding it attorney’s fees in the amount of $19,383.92 and costs of $65.00 against Respondent Alexander Rashed, Sr.

Petitioner’s motion for attorney’s fees is GRANTED for the reduced amount of $7,857.50 for attorney’s fees and for costs of $65.00, for the reasons stated below.

PROCEDURAL HISTORY

Petitioner successfully obtained a Workplace Violence Restraining Order (“WVRO”) against Respondent Alexander Rashed, Sr. at the hearing that took place on October 4, 2023. The WVRO was instated because Respondent and Alexander Rashed, Jr. entered Petitioner’s workplace and began using foul language, aggressive behavior, and physically assaulted two employees. Although the police were called and interviewed the parties, no arrests were made.

Petitioner now seeks attorney’s fees as the prevailing party. Respondent opposes. The Court notes that Petitioner is seeking an identical fees request in the separate civil harassment action (Case No. SCV-273121) brought against Alexander Rashed, Jr. for the same work done on both matters. The hearing on that fees motion is on the same date as this motion. Essentially, in total, Petitioner is seeking $38,767.84 across the separate two actions for the same work done.

ATTORNEY’S FEES

Legal Standard

Fees and Costs

C.C.P. section 1032 allows the prevailing party of an action to recover costs. C.C.P. section 1033.5(a) lists the costs that the prevailing party may claim, while section 1033.5(b) lists the costs that are not allowed. A “prevailing party” includes: (1) the party with a net monetary recovery; (2) a defendant in whose favor a dismissal is entered; (3) a defendant where neither plaintiff nor defendant obtains any relief; (4) and a defendant as against those plaintiffs who do not recover any relief against that defendant. (C.C.P. § 1032(a)(4).) When relief other than monetary relief is recovered, the court determines the “prevailing party” and may allow costs in its discretion and may apportion costs between the parties. (Ibid.)

Per the Civil Harassment statute under C.C.P. section 527.6(s), the court has the authority to award court costs and attorney fees to the prevailing party in a civil harassment proceeding in its discretion.

Moving Papers

Petitioner’s counsel, who is an experienced partner at her law firm, declares that she spent 30 hours on this matter to meet with the victims, prepare the ex parte application for the WVROs, supporting declarations, and ancillary Judicial Council court forms relating to the WVRO, for court appearances prior to the hearing, to communicate with opposing counsel, to review documents and discovery from Respondents in both actions, to prepare for trial, and for trial. An associate prepared the instant motion and spent 2.2 hours on it. Petitioner’s counsel also anticipates spending 4 hours to review the opposition, prepare the reply, prepare for oral argument, and attend the hearing. The amounts claimed in attorney’s fees are as follows:

Attorney

Hours

Rate

Amount Claimed

Traci Carrillo

30

$500.00

$15,000.00

Associate

2.2

$325.00

$715.00

Traci Carrillo

Anticipated 4 hours

$500.00

$2,000.00

 

 

TOTAL:

 =SUM(ABOVE) $17,715.00

Though the motion states that $19,383.92 is requested in fees, the Court does not find that that amount is supported by counsel’s declaration and evidence. Respondent’s counsel requests that the Court not award any fees at all in its discretion because the fees requested are excessive, but if fees are awarded, award them at a reduced rate of $300-$400.

Application

The Court finds that an award of fees is warranted, but that requested fees are excessive, especially because an identical request for fees for the same work done has been filed in the separate harassment action against Alexander Rashed, Jr. Furthermore, the Court record does not reflect that counsel timely filed any reply brief, so the Court will not award those fees requested for anticipated work. So, the Court finds that $15,000.00 and the $715.00 requested in fees are warranted, but will reduce this amount by half in its discretion as identical fees are being requested in the other civil harassment action for the same work done. In total, the Court will award a reduced amount of $7,857.50 in attorney’s fees as well as $65.00 in filing costs.

CONCLUSION

Based on the foregoing, Petitioner’s motion for fees and costs is GRANTED for the reduced amount of $7,857.50 for attorney’s fees and costs of $65.00. Petitioner shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).

 

7.         SCV-273121, MAR SR LLC v. Rashed, JR

Petitioner MAR SR, LLC moves as prevailing party under Code of Civil Procedure sections 527.6, 1032, and 1033.5 for an order awarding it attorney’s fees in the amount of $19,383.92 and costs of $65.00 against Respondent Alexander Rashed, Jr.

Petitioner’s motion for attorney’s fees is GRANTED for the reduced amount of $7,857.50 for attorney’s fees and for costs of $65.00, for the reasons stated below.

PROCEDURAL HISTORY

Petitioner successfully obtained a Workplace Violence Restraining Order (“WVRO”) against Respondent Alexander Rashed, Jr. at the hearing that took place on October 4, 2023. The WVRO was instated because Respondent and Alexander Rashed, Sr. entered Petitioner’s workplace and began using foul language, aggressive behavior, and physically assaulted two employees. Although the police were called and interviewed the parties, no arrests were made.

Petitioner now seeks attorney’s fees as the prevailing party. Respondent opposes. The Court notes that Petitioner is seeking an identical fees request in the separate civil harassment action (Case No. SCV-273115) brought against Alexander Rashed, Sr. for the same work done on both matters. The hearing on that fees motion is on the same date as this motion. Essentially, in total, Petitioner is seeking $38,767.84 across the separate two actions for the same work done.

ATTORNEY’S FEES

Legal Standard

Fees and Costs

C.C.P. section 1032 allows the prevailing party of an action to recover costs. C.C.P. section 1033.5(a) lists the costs that the prevailing party may claim, while section 1033.5(b) lists the costs that are not allowed. A “prevailing party” includes: (1) the party with a net monetary recovery; (2) a defendant in whose favor a dismissal is entered; (3) a defendant where neither plaintiff nor defendant obtains any relief; (4) and a defendant as against those plaintiffs who do not recover any relief against that defendant. (C.C.P. § 1032(a)(4).) When relief other than monetary relief is recovered, the court determines the “prevailing party” and may allow costs in its discretion and may apportion costs between the parties. (Ibid.)

Per the Civil Harassment statute under C.C.P. section 527.6(s), the court has the authority to award court costs and attorney fees to the prevailing party in a civil harassment proceeding in its discretion.

Moving Papers

Petitioner’s counsel, who is an experienced partner at her law firm, declares that she spent 30 hours on this matter to meet with the victims, prepare the ex parte application for the WVROs, supporting declarations, and ancillary Judicial Council court forms relating to the WVRO, for court appearances prior to the hearing, to communicate with opposing counsel, to review documents and discovery from Respondents in both actions, to prepare for trial, and for trial. An associate prepared the instant motion and spent 2.2 hours on it. Petitioner’s counsel also anticipates spending 4 hours to review the opposition, prepare the reply, prepare for oral argument, and attend the hearing. The amounts claimed in attorney’s fees are as follows:

Attorney

Hours

Rate

Amount Claimed

Traci Carrillo

30

$500.00

$15,000.00

Associate

2.2

$325.00

$715.00

Traci Carrillo

Anticipated 4 hours

$500.00

$2,000.00

 

 

TOTAL:

 =SUM(ABOVE) $17,715.00

Though the motion states that $19,383.92 is requested in fees, the Court does not find that that amount is supported by counsel’s declaration and evidence. Respondent’s counsel requests that the Court not award any fees at all in its discretion because the fees requested are excessive, but if fees are awarded, award them at a reduced rate of $300-$400.

Application

The Court finds that an award of fees is warranted, but that requested fees are excessive, especially because an identical request for fees for the same work done has been filed in the separate harassment action against Alexander Rashed, Sr. Furthermore, the Court record does not reflect that counsel timely filed any reply brief, so the Court will not award those fees requested for anticipated work. So, the Court finds that $15,000.00 and the $715.00 requested in fees are warranted, but will reduce this amount by half in its discretion as identical fees are being requested in the other civil harassment action for the same work done. In total, the Court will award a reduced amount of $7,857.50 in attorney’s fees as well as $65.00 in filing costs.

CONCLUSION

Based on the foregoing, Petitioner’s motion for fees and costs is GRANTED for the reduced amount of $7,857.50 for attorney’s fees and costs of $65.00. Petitioner shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).

 

8.         SCV-273342, Rowen v. Prasifka

Respondents Bonta, Diehl, Gatschet, Ross, Prasifka, Tan, and Varghese (“Respondents”) and Real Party in Interest Medical Board of California (“Board”) Demurrer to Petitioner’s Amended Writ of Mandate or Alternative Writ of Prohibition (the “Amended Writ”) is SUSTAINED without leave to amend. 

PROCEDURAL HISTORY

Petitioner filed the initial petition for writ of mandate against Respondents Prasifka and Tan. Though Respondents demurred to the initial petition, Petitioner filed an amendment at the same time he filed his opposition, and this Court denied the demurrer as moot. This Court later sustained Respondent and Board’s demurrer to the amendment to the petition with leave to amend.

Petitioner then filed the Writ for a writ of mandate or prohibition pursuant to Code of Civil Procedure (“C.C.P.”) sections 1085, 1086, 1102 and 1103, regarding Respondent’s actions in suspending and revoking his license to practice medicine based on an alleged coerced guilty plea to the crime of tax evasion. Petitioner alleges that Respondents and Board:

1.      Violated his 8th and 14th Amendment U.S. Constitutional rights by seizure of his right to livelihood (license to practice medicine);

2.      Violated his 14th Amendment U.S. Constitutional rights by depriving him of the right to work without due process;

3.      Violated his 6th Amendment rights by acting under the color of law in taking his means of livelihood without a sworn or verified complaint or accusation signed before a neutral detached magistrate;

4.      Violated Civil Code section 52.1;

5.      Relied on Business & Professions Code section 2236(a) which is “Void for Vagueness” and unconstitutionally applied to plaintiff;

6.      Violated his 4th Amendment rights without a warrant or complaint;

7.      Violated his rights under the Magna Carta and made an accusation that is an unconstitutional bill of attainder and/or bill of pains and penalties;

8.      Violated his 6th and 7th Amendment U.S. Constitutional Rights to a civil or criminal jury trial before being deprived of his right to protect his life, liberty and property;

9.      Acted with a Conflict of Interest; and

10.     Did not act with competence and reasonable diligence per California State Bar, Rule 1.3 causing Petitioner damages and suffering.

Respondents and Board demur again to the Amended Writ and Petitioner opposes.

REQUEST FOR JUDICIAL NOTICE

Judicial notice of official acts and court records is statutorily appropriate. (Evid. Code §§ 452(c)-(d).) The court must take judicial notice of any matter requested by a party, so long as it complies with the requirements under Evidence Code section 452. (Evid. Code § 453.) Courts may take notice of public records, but not take notice of the truth of their contents. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Subject to these restrictions, Respondents’ and Board’s requests for judicial notice of court records from the criminal proceedings and administrative proceedings against Petitioner are GRANTED.

ANALYSIS

Legal Standard

Demurrer

A demurrer can be 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. (C.C.P. § 430.30(a).) Leave to amend should generally be granted liberally where there is some reasonable possibility that a party may cure the defect through amendment. (The Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th 831, 852; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Writ of Mandate

C.C.P. section 1085 provides that a writ of mandate may issue to “compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded by such... person.”  An inquiry under this section is limited to considering whether the underlying administrative decision was “arbitrary, capricious, or entirely lacking in evidentiary support.” (Stone v. Regents of Univ. of California (1999) 77 Cal.App.4th 736, 745.)

C.C.P. section 1086 governs the standard situation where a writ may be issued. If there is not a plain, speedy, and adequate remedy in the ordinary course of the law, then a writ must be issued upon the verified petition of the party beneficially interested after they have exhausted all of their administrative and contractual remedies that apply. (Coffey v. Los Angeles Fireman’s Relief Ass’n (1937) 22 Cal.App.2d 510, 511.) A party does not need to exhaust administrative remedies if the effort would clearly be futile. (Jonathan Neil & Assocs, Inc. v. Jones (2004) 33 Cal.4th 917.)

Writ of Prohibition

C.C.P. sections 1102 and 1103 govern writs of prohibition.  Section 1102 provides that a writ of prohibition arrests “the proceedings of any tribunal, corporation, board, or person exercising judicial functions, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person.”  Section 1103 governs courts which may issue such a writ, the parties to whom such a writ is issued, and the petition. 

Demurrer

Respondents and Board once more demur to the entire Amended Writ on the following grounds per Code of Civil Procedure section 430.10:

1.      Petitioner fails to state facts sufficient to constitute any valid cause of action;

2.      The Court lacks jurisdiction to hear the subject matter because Petitioner has not exhausted administrative remedies;

3.      The Court cannot provide the remedy Petitioner seeks because Respondents and Board must carry out the law as required by the California constitution and laws;

4.      The Court lacks jurisdiction to hear the subject matter as all legal proceedings instituted against the Board must occur pursuant to Business and Professions Code section 2019;

5.      Petitioner’s Amended Writ is ambiguous and unintelligible, and Respondents cannot respond to the allegations.

Petitioner opposes the demurrer arguing it is a “frivolous sham pleading.” Petitioner does not contest that he has a federal felony conviction against him but argues that this conviction was used unfairly against him in revoking his medical license. Petitioner argues that the demurrer does not comport with procedural requirements but has not made a clear argument as to how the demurrer and supporting documents do not comply, so the Court does not find that the demurrer is procedurally deficient.

Writ of Mandate

Petitioner concedes in the opposition that he made a “special appearance” for the purpose of challenging jurisdiction at the administrative proceedings held against him but has otherwise not made any argument that he exhausted his administrative resources prior to filing his Amended Writ. Respondents and Board did follow through with disciplinary proceedings against Petitioner, which he participated in even with his stated “special appearance.” After the administrative hearing, the Administrative Law Judge Aspinwall noted that Petitioner’s criminal convictions were severe and recent, and that Petitioner provided no evidence of rehabilitation and exhibited a poor attitude towards the proceedings. The Board adopted this decision, and it was made effective September 25, 2023.

Respondents and Board argue that the proper remedy in this case is through an administrative writ pursuant to C.C.P. section 1094.5 and that he cannot state any facts sufficient to constitute a cause of action for traditional mandamus. However, Petitioner failed to exhaust the administrative remedies and timely raise any jurisdictional defects in the underlying administrative proceedings prior to filing this Amended Writ, so he is barred from seeking judicial relief. Petitioner has also not demonstrated in his opposition or Amended Writ that it would be futile for him to attempt to exhaust the administrative remedies available to him. There was also no basis legally to find that Respondents and Board lacked the jurisdiction to institute the underlying disciplinary proceedings against Petitioner because they acted within their authority to regulate the practice of professions to protect the public under the Business & Professions Code.

As the Amended Writ fails to state facts to support any causes of action for writ of mandate, and the Court does not find that Petitioner can reasonably cure the Amended Writ to sufficiently state any cause of action, the Court SUSTAINS the demurrer without leave to amend as to the writ of mandate.   

Writ of Prohibition

Petitioner alternatively seeks a writ of prohibition to prevent Respondents and Board from conducting further disciplinary proceedings against him. As Respondents and Board point out, litigation against the Board must be filed where the Board officers are, such as Los Angeles, San Diego, San Francisco, and Sacramento, pursuant to Business and Professions Code section 2019. Furthermore, for the reasons stated above regarding the writ of mandate, Petitioner has not provided any reasonable basis to demonstrate that the underlying administrative proceedings were without or in excess of their legal jurisdiction.   

For these reasons, the Court SUSTAINS the demurrer without leave to amend to this cause of action because the Court does not find that there is any reasonable possibility that Petitioner can cure the defects within the Amended Writ.

CONCLUSION

Based on the foregoing, the Court SUSTAINS without leave to amend Respondents and Board’s demurrer. Respondents and Board shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).

 


[1] While the Court notes that this is filed particularly as to the motion for leave to amend, it appears salient to the instant analysis.

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