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Ruling
LARRY CARLON, ET AL. VS ESTATE OF JONATHAN PATRICK TATONE, DECEASED, ET AL.
Aug 27, 2024 |21STCV36657
Case Number: 21STCV36657 Hearing Date: August 27, 2024 Dept: F43 Larry Carlon, et al. vs. Estate of Jonathan Patrick Tatone, et al. Trial Date: 4-28-25 MOTIONS TO COMPEL FURTHER DISCOVERY RESPONSES MOVING PARTY: Defendant County of Los Angeles RESPONDING PARTY: Plaintiff Bonnie Carlon RELIEF REQUESTED Plaintiffs Further Responses to Defendants Requests for Production RULING: Motion is granted to a narrower extent. SUMMARY OF ACTION AND ANALYSIS On October 5, 2021, Plaintiff Bonnie Carlon (Plaintiff) filed this wrongful death case against Defendant County of Los Angeles (Defendant). Defendant propounded discovery on Plaintiff, including special interrogatories and requests for production of documents. Because Plaintiff is the mother of the adult decedent who is the subject of the wrongful death action, Defendant seeks information as to whether Plaintiff was financially dependent upon the decedent. Plaintiff served responses to Defendants special interrogatories and requests for production on March 6, 2024. This motion concerns the requests for production. Plaintiff objected to and refused to respond to Defendants Requests for Production Nos. 34 through 40. The parties engaged in substantial meet and confer efforts in order to resolve the issues present. They were unsuccessful, so Defendant filed this motion on July 23, 2024. Requests for Production Nos. 34 through 40 seek all documents and communications related to Plaintiffs bank accounts, investment accounts, retirement accounts, retirement-related payments, sources of financial gain (on or after January 1, 2016, until June 1, 2021), real property, and mortgage payments, as well as the balances and values of those accounts and property as of June 1, 2021. Defendant argues that the information it seeks through the requests for production is highly relevant. Defendant also argues that Plaintiff must provide responsive documents, as the right to privacy does not justify Plaintiffs failure to respond and the requests for production are not overly broad. Plaintiff argues in her opposition that the requests for production do not seek highly relevant information and that the right to privacy justifies her objections. She also argues that her objections to the requests have merit. Defendants reply reasserts the arguments made in its motion. ANALYSIS A party may obtain discovery related to any matter, not privileged, that is relevant to the litigation, provided the matter is admissible or appears reasonably calculated to lead to the discovery of admissible evidence. (CCP § 2017.010.) When a responding partys objections and responses to requests for production are without merit and/or too general, a party may move to compel further responses for good cause. (CCP § 2031.310) The good cause requirement is met by a showing of relevance. (TBG Ins. Servs. Corp. v. Superior Court (2022) 96 Cal.App.4th 443, 448.) Relevance in this context is broad. (Id.) Evidence is relevant if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. (Id.) Under the Legislatures very liberal and flexible standard of relevancy, any doubts as to relevance should generally be resolved in favor of permitting discovery. (Williams v. Superior Court (2017) 3 Cal.5th 531, 542 (quoting Pac. Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 173).) Courts presume all relevant nonprivileged evidence in a partys possession is discoverable. (Glenfed Dev. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Relevance of the Requests for Production Defendant argues that the disputed requests for production are relevant because they seek documents that it argues are necessary in determining whether Plaintiff was financially dependent on the decedent. That is a requirement for a wrongful death action pursuant to CCP § 377.60. Plaintiff argues that the information sought by Defendant is not relevant because Defendant seeks documents related to owned businesses, income, investments, properties owned, and loans made by the decedent to his parents. Plaintiff argues that this information is not determinative of whether Plaintiff had some expectancy to have some financial dependence on her son for the necessities in life. Plaintiff further argues that the focus should be on the support provided by the decedent to his mother, the Plaintiff, rather than the overall financial status of Plaintiff. Next, Plaintiff argues that the actions by the decedent right before his death evidence a commitment to provide for both his parents for the necessities of life, due to his parents age and medical complications. Defendant argues in reply that the documents it seeks is highly relevant because [P]arents cannot be considered dependent for purposes of the wrongful death statute unless they were actually dependent, to some extent, upon the decedent for the necessaries of life. (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 189 (citation omitted).) Plaintiff brought her wrongful death claim based on her assertion that she was financially dependent on the decedent. Therefore, documents concerning Plaintiffs financial accounts and the amount of money in those accounts are highly relevant to the lawsuit. It is not enough for her to say that she was financially dependent on the decedent; she needs to demonstrate it through evidence of her own financial condition at that time. Right of Privacy The constitutional right of privacy is not absolute. (Hill v. Natl Collegiate Athletic Assn (1994) 7 Cal.4th 1, 38; see John B. v. Superior Court (2006) 38 Cal.4th 1177, 1199 (a partys privacy interests may have to give way to [the] opponents right to a fair trial (citation omitted))). A party who asserts a right to privacy must establish: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circ*mstances; and (3) conduct by defendant constituting a serious invasion of privacy. (Hill, 7 Cal.4th at 35-37.) However, even if the threshold Hill requirements are established, a court must then balance the right of privacy against the need for disclosure. (Id.) Courts . . . place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion . . .. (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.) Courts allow discovery into a partys finances where the finances are relevant to the case. (Rawnsley v. Superior Court (1986) 183 Cal.App.3d 91-92 (financial information that goes to the cause of action at issue is generally discoverable).) In this case, Plaintiffs financial information is directly relevant to the case. Any privacy interests that Plaintiff might have in that information is overcome by the need for disclosure. Additionally, there is already a protective order in place in this case, so any doubts about the privacy of the information may be resolved by the protective order. Breadth of the Requests for Production Plaintiff argues that the requests for production are overbroad because they seek financial information spanning from January 1, 2016, through June 1, 2021. However, only Request No. 38 deals with this longer time period, and that request seeks sources of financial gain over that time period. The rest of the interrogatories only seek documents on accounts and real property as of June 1, 2021. These requests are not overbroad as to time frame, as they deal with a specific relevant time period or a specific date in time. Plaintiff also objects on the basis that the requests call for legal conclusion and expert opinions and because the requests seek privileged information. The requests do not do any of these things. They do not call for legal conclusions, nor do they seek privileged information. Plaintiff also objects to the requests for production on that basis that they are vague and unintelligible. The Court agrees to an extent. Defendants requests generally seek all documents and communications relating to any&account you held or owned (solely or jointly) as of June 1, 2021, including the balance thereof. The term all documents and communications is very broad. Defendant could have asked for statements for the accounts as of that date, and such a request would likely have fulfilled the information that Defendant is trying to obtain. Instead, Defendant asked for all documents and communications. This is simply too broad of a category. Defendant must be more specific in the types of documents that it is requesting. If Defendant is willing to narrow its request to account statements and other relevant documents as of the specified date, the Court will grant its motion. Conclusion Based on the foregoing, the Court finds that while Defendants Requests for Production are relevant and do not violate Plaintiffs privacy interests, they are, however, vague and overbroad in the types of documents that they are requesting about the accounts. ORDER Defendants motion to compel further responses to Requests for Production Nos. 34 through 40 is granted, but only if Defendant narrows its requests to relevant documents. Moving party to give notice. MOTIONS TO COMPEL FURTHER DISCOVERY RESPONSES MOVING PARTY: Defendant County of Los Angeles RESPONDING PARTY: Plaintiff Larry Carlon RELIEF REQUESTED Plaintiffs Further Responses to Defendants Requests for Production RULING: Motion is granted to a narrower extent. SUMMARY OF ACTION AND ANALYSIS On October 5, 2021, Plaintiff Larry Carlon (Plaintiff) filed this wrongful death case against Defendant County of Los Angeles (Defendant). Defendant propounded discovery on Plaintiff, including special interrogatories and requests for production of documents. Because Plaintiff is the father of the adult decedent who is the subject of the wrongful death action, Defendant seeks information as to whether Plaintiff was financially dependent upon the decedent. Plaintiff served responses to Defendants special interrogatories and requests for production on March 6, 2024. This motion concerns the requests for production. Plaintiff objected to and refused to respond to Defendants Requests for Production Nos. 34 through 40. The parties engaged in substantial meet and confer efforts in order to resolve the issues present. They were unsuccessful, so Defendant filed this motion on July 23, 2024. Requests for Production Nos. 34 through 40 seek all documents and communications related to Plaintiffs bank accounts, investment accounts, retirement accounts, retirement-related payments, sources of financial gain (on or after January 1, 2016, until June 1, 2021), real property, and mortgage payments, as well as the balances and values of those accounts and property as of June 1, 2021. Defendant argues that the information it seeks through the requests for production is highly relevant. Defendant also argues that Plaintiff must provide responsive documents, as the right to privacy does not justify Plaintiffs failure to respond and the requests for production are not overly broad. Plaintiff argues in his opposition that the requests for production do not seek highly relevant information and that the right to privacy justifies his objections. He also argues that his objections to the requests have merit. Defendants reply reasserts the arguments made in its motion. ANALYSIS A party may obtain discovery related to any matter, not privileged, that is relevant to the litigation, provided the matter is admissible or appears reasonably calculated to lead to the discovery of admissible evidence. (CCP § 2017.010.) When a responding partys objections and responses to requests for production are without merit and/or too general, a party may move to compel further responses for good cause. (CCP § 2031.310) The good cause requirement is met by a showing of relevance. (TBG Ins. Servs. Corp. v. Superior Court (2022) 96 Cal.App.4th 443, 448.) Relevance in this context is broad. (Id.) Evidence is relevant if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. (Id.) Under the Legislatures very liberal and flexible standard of relevancy, any doubts as to relevance should generally be resolved in favor of permitting discovery. (Williams v. Superior Court (2017) 3 Cal.5th 531, 542 (quoting Pac. Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 173).) Courts presume all relevant nonprivileged evidence in a partys possession is discoverable. (Glenfed Dev. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Relevance of the Requests for Production Defendant argues that the disputed requests for production are relevant because they seek documents that it argues are necessary in determining whether Plaintiff was financially dependent on the decedent. That is a requirement for a wrongful death action pursuant to CCP § 377.60. Plaintiff argues that the information sought by Defendant is not relevant because Defendant seeks documents related to owned businesses, income, investments, properties owned, and loans made by the decedent to his parents. Plaintiff argues that this information is not determinative of whether Plaintiff had some expectancy to have some financial dependence on his son for the necessities in life. Plaintiff further argues that the focus should be on the support provided by the decedent to his father, the Plaintiff, rather than the overall financial status of Plaintiff. Next, Plaintiff argues that the actions by the decedent right before his death evidence a commitment to provide for both his parents for the necessities of life, due to his parents age and medical complications. Defendant argues in reply that the documents it seeks is highly relevant because [P]arents cannot be considered dependent for purposes of the wrongful death statute unless they were actually dependent, to some extent, upon the decedent for the necessaries of life. (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 189 (citation omitted).) Plaintiff brought his wrongful death claim based on his assertion that he was financially dependent on the decedent. Therefore, documents concerning Plaintiffs financial accounts and the amount of money in those accounts are highly relevant to the lawsuit. It is not enough for him to say that he was financially dependent on the decedent; he needs to demonstrate it through evidence of his own financial condition at that time. Right of Privacy The constitutional right of privacy is not absolute. (Hill v. Natl Collegiate Athletic Assn (1994) 7 Cal.4th 1, 38; see John B. v. Superior Court (2006) 38 Cal.4th 1177, 1199 (a partys privacy interests may have to give way to [the] opponents right to a fair trial (citation omitted))). A party who asserts a right to privacy must establish: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circ*mstances; and (3) conduct by defendant constituting a serious invasion of privacy. (Hill, 7 Cal.4th at 35-37.) However, even if the threshold Hill requirements are established, a court must then balance the right of privacy against the need for disclosure. (Id.) Courts . . . place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion . . .. (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.) Courts allow discovery into a partys finances where the finances are relevant to the case. (Rawnsley v. Superior Court (1986) 183 Cal.App.3d 91-92 (financial information that goes to the cause of action at issue is generally discoverable).) In this case, Plaintiffs financial information is directly relevant to the case. Any privacy interests that Plaintiff might have in that information is overcome by the need for disclosure. Additionally, there is already a protective order in place in this case, so any doubts about the privacy of the information may be resolved by the protective order. Breadth of the Requests for Production Plaintiff argues that the requests for production are overbroad because they seek financial information spanning from January 1, 2016, through June 1, 2021. However, only Request No. 38 deals with this longer time period, and that request seeks sources of financial gain over that time period. The rest of the interrogatories only seek documents on accounts and real property as of June 1, 2021. These requests are not overbroad as to time frame, as they deal with a specific relevant time period or a specific date in time. Plaintiff also objects on the basis that the requests call for legal conclusion and expert opinions and because the requests seek privileged information. The requests do not do any of these things. They do not call for legal conclusions, nor do they seek privileged information. Plaintiff also objects to the requests for production on that basis that they are vague and unintelligible. The Court agrees to an extent. Defendants requests generally seek all documents and communications relating to any&account you held or owned (solely or jointly) as of June 1, 2021, including the balance thereof. The term all documents and communications is very broad. Defendant could have asked for statements for the accounts as of that date, and such a request would likely have fulfilled the information that Defendant is trying to obtain. Instead, Defendant asked for all documents and communications. This is simply too broad of a category. Defendant must be more specific in the types of documents that it is requesting. If Defendant is willing to narrow its request to account statements and other relevant documents as of the specified date, the Court will grant its motion. Conclusion Based on the foregoing, the Court finds that while Defendants Requests for Production are relevant and do not violate Plaintiffs privacy interests, they are, however, vague and overbroad in the types of documents that they are requesting about the accounts. ORDER Defendants motion to compel further responses to Requests for Production Nos. 34 through 40 is granted, but only if Defendant narrows its requests to relevant documents. Moving party to give notice.
Ruling
CHRISSIE CARNELL BIXLER, ET AL. VS CHURCH OF SCIENTOLOGY INTERNATIONAL, ET AL.
Aug 28, 2024 |19STCV29458
Case Number: 19STCV29458 Hearing Date: August 28, 2024 Dept: 51 Tentative Ruling Judge Upinder S. Kalra, Department 51 HEARING DATE: August 28, 2024 CASE NAME: Chrissie Carnell Bixler, et al. v. Church of Scientology International, et al. CASE NO.: 19STCV29458 MOTION FOR RECONSIDERATION MOVING PARTY: Plaintiffs Chrissie Carnell Bixler, Cedric Bixler-Zavala, Marie Bobette Riales, Jane Doe #1, Jane Doe #2, and Tricia Vessey RESPONDING PARTY(S): Defendants Church of Scientology International, Church of Scientology Celebrity Centre International, and Religious Technology Center; Joinder by Defendant Daniel Masterson REQUESTED RELIEF: 1. An Order reconsidering the scope of the stay articulated in the courts May 29, 2024 ruling on Plaintiffs Motion for Leave to File a Second Amended Complaint. TENTATIVE RULING: 1. Motion for Reconsideration is DENIED. STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: On August 22, 2019, Plaintiffs Chrissie Carnell Bixler (Bixler), Cedric Bixler-Zavala (Bixler-Zavala), Jane Doe #1, Marie Bobette¿Riales¿(Riales), and Jane Doe #2 (collectively, Plaintiffs) filed the initial complaint against Defendants Church of Scientology International¿(CSI)¿and Church of Scientology Celebrity Centre International (¿CCI), Defendant Religious Technology Center (RTC), Defendant Daniel Masterson (Masterson), Defendant David Miscavige, and Does 1-25 (collectively, Defendants).¿ On February 28, 2020, Plaintiffs filed the operative first amended complaint (FAC) against Defendants for: (1) Stalking in violation of Civil Code section¿1708.7; (2) Physical invasion of privacy in violation of Civil Code section 1708.8; (3) Constructive invasion of privacy in violation of Civil Code section 1708.8; (4) Intentional infliction of emotional distress; and (5) Loss of consortium.¿The FAC alleges five causes of action for: (1) Stalking in Violation of Cal. Civ. Code § 1708.7; (2) Physical Invasion of Privacy in Violation of Cal. Civ. Code § 1708.8; (3) Constructive Invasion of Privacy in Violation of Cal. Civ. Code § 1708.8; (4) Intentional Infliction of Emotional Distress; and (5) Loss of Consortium. According FAC, Defendants stalked, harassed, invaded the privacy of Plaintiffs and Plaintiffs families, and intentionally inflicted emotional distress on Plaintiffs, who are four women sexually assaulted by Defendant Daniel Masterson, a field staff member or recruiter for Church of Scientology and Religious Technology, which organizations are allegedly lead by Defendant David Miscavige (collectively Defendants). Defendants conduct was allegedly to retaliate against Plaintiffs for reporting the alleged sexual assaults.¿¿ Plaintiffs allege Defendant Masterson, a high-ranking member of Church of Scientology and Religious Technology, sexually assaulted Plaintiff Chrissie Bixler at various times between 1996 and 2002 while the two were dating and cohabitating. Plaintiffs allege David Miscavige, Church of Scientology, and Religious Technology and their agents coerced, by threats of violence and ostracization, Plaintiff Bixler not to report the sexual assaults to law enforcement. In 2016, Bixler reported the assaults by Masterson to the Los Angeles Police Department (LAPD). Following Bixlers 2016 report to the present, Plaintiffs Bixler and Bixler-Zavala suffered various trespasses, invasive surveillance, stalking, threats of violence, defamation, sexual harassment, destruction of propertyparticularly pets, identity theft, assaults using automobiles, harassing phone calls, text messages, and social media messages, and wire taping; all purportedly from agents of the Defendants. Plaintiffs allege this conduct is designed to dissuade Bixler from, and punish Bixler for, cooperating with law enforcement.¿¿ Plaintiffs allege that: in September 2002 Masterson drugged and sexually assaulted Plaintiff Jane Doe #1; and in April 2003 Masterson drugged and sexually assaulted Jane Doe #1 while strangling her and threatening her with a firearm. Agents for Defendants attempted to coerce, with threats of violence and ostracization, Jane Doe #1 to not report the sexual assaults to law enforcement. In June 2004, Jane Doe #1 reported the sexual assaults to the LAPD. Agents of Defendants coerced Jane Doe #1 to sign a non-disclosure agreement regarding the sexual assaults. In 2016, Jane Doe #1 asked the LAPD to reopen the investigation into Mastersons sexual assaults against her. Following Jane Doe #1s 2016 request to the present, Jane Doe #1 suffered harassing phone calls, text messages, and social media messages, stalking, witness tampering, invasive surveillance, defamation, various trespasses, larceny, property damage, identity theft, threats of violence, assaults, sexual harassment, and wire taping; all purportedly from agents of the Defendants. Plaintiffs allege this conduct is designed to dissuade Jane Doe #1 from, and punish Jane Doe #1 for cooperating with law enforcement.¿ On October 6, 2020, the court issued rulings on Defendant Mastersons demurrer and motion to strike portions of the FAC and Church Defendants demurrer to FAC. The court OVERRULED the Church Defendants demurrer as to the First and Fourth Causes of Action brought by Plaintiff Riales and SUSTAINED without leave to amend as to the Third and Fourth Causes of Action brought by Plaintiff Riales. For Defendant Mastersons demurrer, the court OVERRULED the demurrer as to the First through Fifth Causes of action, but SUSTAINED without leave to amend the Second Cause of Action for Plaintiff Riales only. The Court GRANTED the motion to strike as to attorneys fees, penalties, trebles damages, and punitive/exemplary damages pursuant to Civil Code §§ 1708.5(3)(b) and 1782(2), but denied with respect to injunctive relief and punitive damages generally. On December 30, 2020, the court issued a ruling compelling arbitration. Plaintiffs appealed. On May 12, 2022, the Court of Appeal issued a Remittitur. On October 10, 2023, the Church Defendants filed a Motion to Strike, which the court GRANTED in part on November 22, 2023. The court struck Paragraphs 273, 279, 285, and 293, portions of Paragraphs 274, 280, 286, 294, 297 seeking exemplary or punitive damages, and the Prayer for Relief Item Nos. 4, 5, and 6. The court otherwise DENIED the motion to strike. On October 26, 2023, the Church Defendants filed the instant four Special Motionss to Strike (anti-SLAPP) portions of the FAC. On December 7, 2023, Defendant Masterson filed a Joinder to the Special Motion to Strike. On December 27, 2023, Plaintiffs filed a Motion for Leave to file a Second Amended Complaint. On January 8, 2024, Plaintiffs filed oppositions to the Special Motions to Strike. On January 29, 2024, the Church Defendants filed replies and Defendant Masterson filed a Joinder to the replies. The court took the Special Motions to Strike under submission on February 13, 2024. On March 20, 2024, the court continued the hearing on Plaintiffs Motion for Leave to file a Second Amended Complaint to May 29, 2024. On May 22, 2024, the Church Defendants filed a Notice of Appeal. On May 24, 2024, Defendant Masterson filed a Notice of Appeal. On May 29, 2024, the court STAYED the entire case pending the Appeals. This included Plaintiffs pending Motion for Leave to file a Second Amended Complaint. The court ordered Plaintiff to provide notice. On May 31, 2024, Plaintiffs filed an Amended Motion for Leave to File Second Amended Complaint. On June 10, 2024, Plaintiffs filed the instant Motion for Reconsideration. On August 15, 2024, the Church Defendants filed an opposition and Defendant Masterson filed a joinder to the opposition. Plaintiffs filed a reply on August 21, 2024. LEGAL STANDARD: Code of Civil Procedure section 1008 provides, in pertinent part: (a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circ*mstances, or law, make an application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circ*mstances, or law are claimed to be shown. (b) A party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circ*mstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts circ*mstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on an ex parte motion. & (e)¿This section specifies the courts jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section. (Code Civ. Proc. § 1008, subds. (a), (b), (e).) (Emphasis added.) ANALYSIS: Plaintiffs contend the court should reconsider its May 29, 2024 ruling whereby it stayed the entire action pending Defendants appeal of the Anti-SLAPP motions because they were not afforded the opportunity to brief the issue on scope of the stay. Defendants argue Plaintiffs did have an opportunity to brief the issue and strategically chose not to. Defendants further argue that Plaintiffs request is procedurally flawed as there are no new facts or evidence supporting reconsideration. As an initial matter, the court notes that Plaintiffs did not provide notice of the May 29, 2024 ruling as they were ordered to do. Notice is the triggering event for the deadline to file a motion for reconsideration. (CCP § 1008.) Plaintiffs did file their motion within 10 days of the hearing. Still, the court cautions Plaintiffs to adhere to its orders. As to the merits of Plaintiffs motion for reconsideration, the court is not persuaded that relief is warranted. First, Plaintiffs contention that they were not afforded sufficient opportunity to brief the issue of the scope of the stay is not well taken. Defendants argued that the stay encompassed all of Plaintiffs claims in their opposition to the Motion for Leave to File a Second Amended Complaint. (Opposition to Motion for Leave to File Second Amended Complaint, 14:18-22.) Plaintiffs reply did not address scope of stay. Furthermore, at the hearing on their motion, Plaintiffs requested further briefing which the court addressed. (Forman Decl., Exhibit D, 7:1-19.) Plaintiffs had sixty-nine days to further brief the scope of the stay issue before the hearing since it was continued from March 20, 2024 to May 29, 2024. Indeed, there was no surprise that Defendants would likely file such an appeal. (Forman Decl., Exhibit D, 7:16-19.) As such, Plaintiffs have not demonstrated new facts or circ*mstances warranting relief. Accordingly, the court DENIES Plaintiffs motion for reconsideration. CONCLUSION: For the foregoing reasons, the Court decides the pending motion as follows: 1.Motion for Reconsideration is DENIED. Moving party is to give notice. IT IS SO ORDERED. Dated: August 28, 2024 __________________________________ Upinder S. Kalra Judge of the Superior Court
Ruling
NATALIE ANN JOHNSON, VS MICHAEL DELAHOUSSAYE, , ET AL.
Aug 28, 2024 |Echo Dawn Ryan |22STCV19727
Case Number: 22STCV19727 Hearing Date: August 28, 2024 Dept: 26 8/28/2024 Dept. 26 Hon. Rolf Treu, Judge presiding JOHNSON v. DELAHOUSSAY, et al. (22STCV19727) Counsel for Plaintiff: Brent Kupfer (Kupfer Legal) Counsel for Defendants/moving party: Daisy Mateo (Sanders Roberts LLP) MOTION TO BE RELIEVED AS COUNSEL TO DEFENDANT GERARDO ALFARO (filed 8/02/2024) TENTATIVE RULING The Motion to be Relieved as Counsel as to Defendant Gerardo Alfaro is GRANTED. I. BACKGROUND On June 16, 2022, Plaintiff Natalie Ann Johnson (Johnson) filed the instant breach of construction contract against Defendants Michael Delahoussaye dba MD Consulting (Delahoussaye), Gerardo Alfaro (Alfaro) and Pedro Quiroz dba Quiroz Cabinets (Quiroz) (collectively Defendants/Cross-Complainants). On September 22, 2022, Plaintiff filed the operative First Amended Complaint (FAC) against Defendants. The FAC asserts seven causes of action for (1) Breach of Implied Covenant of Good Faith and Fair Dealing; (2) Breach of Implied Warranty; (3) Negligence; (4) Violations of Business and Professions Code section 17200;(5) Disgorgement under Business and Professions Code section 7031; (6) Intentional Misrepresentation; and (7) Fraudulent/false representation under Business and Professions Code section 7160. The FAC alleges the following. Johnson is the owner of 2307 Virginia Road, Los Angeles, CA 90016 (Subject Property). (FAC ¶ 7.) In January 2021, Johnson sought to renovate the subject property. (FAC ¶ 8.) In or around March of 2021, Delahoussaye offered to help Johnson renovate her house. In doing so, he said that he would mobilize a crew of subcontractors who were qualified to do the work. (FAC ¶ 9.) Delahoussaye then provided Johnson with a bid for his subcontractors services that included work on the roof, garage, stucco, windows, and a block wall in the yard. The bid also included work for plumbing and drainage, in addition to the installation of cabinets and an HVAC system. The total price of the bid was $120,994.50. (FAC ¶ 10.) Based on this representation, Johnson entered into an oral contract with Delahoussaye for this work. (FAC ¶ 11.) Delahoussaye then mobilized his subcontractors, including Alfaro and Quiroz. During the project, Delahoussaye arranged for and set up work schedules for subcontractors. In addition, he maintained oversight of the construction project, which included coordination of the work and payment to the subcontractors. (FAC ¶ 12.) However, Delahoussaye was not a licensed contractor. (FAC ¶ 13.) Alfaro performed work on the stucco, drainage, block wall, and garage. Alfaro built the garage and the foundation beneath it. (FAC ¶ 14.) Alfaro did not complete his stucco work. In addition, he did not waterproof the stucco. Consequently, water is leaking through the foundation and into the house. (FAC ¶ 15.) With respect to the garage, Alfaro did not completely install the roof shingles; he did not weatherproof the fascia board; and he poured concrete that has begun to crack. (FAC ¶ 16.) Alfaro is not a licensed contractor. (FAC ¶ 17.) Quiroz installed the cabinets. The cabinets that Quiroz installed were defective. (FAC ¶ 18.) Quiroz was not a licensed contractor. (FAC ¶ 19.) Johnson paid approximately $174,231.95 for work under the above contact. She made checks payable to Delahoussaye for material and labor. (FAC ¶ 21.) On April 12, 2022, Delahoussaye and Alfaro filed a small claims lawsuit against Johnson in the Los Angeles Superior Court (Case No. 22STSC01394). (FAC ¶ 21.) On April 12, 2022, Quiroz filed a small claims lawsuit against Johnson in the Los Angeles Superior Court (Case No. 22STSC01396). (FAC ¶ 22.) On August 2, 2024, counsel for Defendants filed a Motion to Be Relieved as Counsel as to Gerardo Alfaro. No opposition or other response has been filed. II. ANALYSIS A. Legal Standard California Rules¿of Court,¿rule 3.1362 (Motion to Be Relieved as Counsel) requires (1) notice of motion and motion to be directed to the client (made on the Notice of Motion and Motion to be Relieved as CounselCivil¿form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as CounselCivil¿form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorneys Motion to Be Relieved as CounselCivil¿form (MC-053)).¿ The¿court has discretion to allow an attorney to withdraw, and such a motion should be granted¿provided that¿there is no prejudice to the client, and it does not disrupt the orderly process of justice.¿¿(See¿Ramirez v.¿Sturdevant¿(1994) 21 Cal.App.4th 904, 915.)¿ B. Discussion Here, Defendants counsel, Daisy Mateo, seeks relief under Code of Civil Procedure, Section 284(2). Counsel correctly completed and filed the notice (Form MC-051) and declaration (MC-052). (Code Civ. Proc., § 284(2); Cal. Rules Court, rule 3.1362, subds. (a) & (c).) In the declaration, counsel sufficiently explains that this motion is being brought under Section 284(2) instead of 284(1) because irreconcilable differences have arisen between the client and attorney making it unreasonable difficult to carry out the employment effectively. Counsel also states there has been a breakdown in communication and Mr. Alfaro has not paid for the legal services. Counsel served the notice (MC-051), the declaration (MC-052), and the proposed order (MC-053) on Defendants. The Court finds all the requirements for relief have been completed. Additionally, trial is not scheduled in this case until May 19, 2025. Defendant Alfaro has a reasonable amount of time to obtain new counsel, such that he should not be prejudiced by the withdrawal. Thus, the Court GRANTS the Motion to be Relieved as Counsel to Defendant Alfaro. III. DISPOSITION Accordingly, the Motion to be Relieved as Counsel to Defendant Gerardo Alfaro is GRANTED.
Ruling
CURTIS CROFT VS LIBERTY MUTUAL FIRE INSURANCE COMPANY, ET AL.
Aug 29, 2024 |19STCV40504
Case Number: 19STCV40504 Hearing Date: August 29, 2024 Dept: 57 The Court is granting the motion of Defendant Liberty Mutual Fire Insurance Company (Liberty) for relief under Code of Civil Procedure Section 473(b) from the Court's entry of a default against Liberty on April 30, 2024. The Court entered the default when granting Plaintiff's motion for terminating sanctions against Liberty. The Court granted the Plaintiff's motion for terminating sanctions based on the Court's view that Liberty had willfully disregarded discovery orders in this case, including, as most pertinent here, an October 18, 2023 discovery order. Having reviewed Liberty's Section 473(b) motion and the accompanying declaration of Blake Russum, one of Liberty's outside attorneys, the Court has concluded that Liberty's action that ran counter to the October 18, 2023 order was not the product of a willful disregard of the order, but rather, was rooted in a mistaken interpretation of it. Accordingly, Liberty is entitled to mandatory relief from the default under Section 473(b), which provides that "the Court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by attorneys sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, vacate any (1) resulting default entered by the clerk . . . or (2) resulting default judgment . . . entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The Court disagrees with Plaintiff's argument that Section 473(b) relief is not applicable to defaults entered as a discovery sanction. The caselaw is to the contrary. Plaintiff is on stronger footing in arguing that the declaration that Russum submitted in support of Liberty's Section 473(b) motion cannot be squared with the statements made by Russum's partner and fellow counsel for Liberty Norman Lau at the hearing on Plaintiff's motion for terminating sanctions. According to Plaintiff, Lau's statements manifest an intentional, strategic choice by Liberty to ignore the Court's October 18, 2023 order. The Court acknowledges that there is some tension between Russum's declaration and Lau's statements. In the end, however, the two strands can be reconciled. This harmonization has led the Court to conclude that Lau did in fact make a mistake in interpreting the October 18, 2023 order and thus Section 473(b) relief is available and must be granted. The Court stands by what it said to Lau at the hearing on the terminating sanctions motion: if Liberty did not fully understand the October 18, 2023 order, it should have sought clarification of it from the Court instead of throwing caution to the wind and taking action that the Court determined contravened the order. But the failure to seek clarification, too, was a mistake of Liberty's counsel and thus part and parcel of the basis for relief from default under Section 473(b).
Ruling
SYLVIA QUINTANILLA, ET AL. VS JOSE J. RANGEL, ET AL.
Aug 28, 2024 |23NWCV03231
Case Number: 23NWCV03231 Hearing Date: August 28, 2024 Dept: C QUINTANILLA, ET AL. v. RANGEL, ET AL. CASE NO.: 23NWCV03231 HEARING: 8/28/24 @ 9:30 A.M. #5 TENTATIVE ORDER Defendants motion to set aside default is MOOT. Moving Party to give NOTICE. The motion is unopposed as of August 26, 2024. This is about a property dispute between neighbors arising from the construction of a wall. Defendants Jose J. Rangel and Irma Y. Rangel move to set aside the default entered against them on November 30, 2023. On July 29, 2024, Plaintiffs filed a first amended complaint against Jose J. Rangel and Irma Y. Rangel and others. Thus, the motion to set aside is MOOT.
Ruling
JIANNA ELIZABETH FUENTES, ET AL. VS NICOLAS ELIAS VALLE, ET AL.
Aug 29, 2024 |23PSCV02608
Case Number: 23PSCV02608 Hearing Date: August 29, 2024 Dept: 6 CASE NAME: Jianna Elizabeth Fuentes, et al. v. Nicolas Elias Valle, et al. 1 - Claimant Eden Lomas Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person with a Disability; 2 - Claimant Emerie Lomas Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person with a Disability; and 3 - Claimant Emma Fuentes Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person with a Disability TENTATIVE RULING The Court DENIES Claimant Eden Lomas petition for approval of compromise of claim or action or disposition of proceeds of judgment for minor or person with a disability without prejudice. The Court DENIES Claimant Emerie Lomas petition for approval of compromise of claim or action or disposition of proceeds of judgment for minor or person with a disability without prejudice. The Court DENIES Claimant Emma Fuentes petition for approval of compromise of claim or action or disposition of proceeds of judgment for minor or person with a disability without prejudice. Petitioner is ordered to provide notice of the Courts ruling and file proof of service of same within five days of the Courts order. BACKGROUND This is an auto accident case. On August 24, 2023, plaintiffs Jianna Elizabeth Fuentes (Petitioner), minor Eden Lomas (Eden), minor Emerie Lomas (Emerie), and minor Emma Fuentes (Emma) (collectively, Plaintiffs) filed this action against defendants Nicolas Elias Valle (Defendant), Joseph Adam Pedroza,[1] and Does 1 through 50, alleging causes of action for motor vehicle and general negligence. On May 21, 2024, the Court approved Petitioners applications and orders for appointment as guardian ad litem for Eden, Emerie, and Emma (collectively, Claimants). On June 6, 2024, Plaintiffs filed a notice of settlement. On August 15, 2024, Petitioner filed petitions for approval of compromise of claim or action or disposition of proceeds of judgment for minor or person with disability on behalf of Claimants. The petitions are unopposed. LEGAL STANDARD Court approval is required for all settlements of a minor's claim or that of a person lacking the capacity to make decisions. (Prob. Code, §§ 2504, 3500, 3600 et seq.; Code Civ. Proc., § 372; see Pearson v. Superior Court (2012) 202 Cal.App.4th 1333, 1337.) "[T]he protective role the court generally assumes in cases involving minors, [is] a role to assure that whatever is done is in the minor's best interests . . . . [I]ts primary concern is whether the compromise is sufficient to provide for the minor's injuries, care and treatment." (Goldberg v. Superior Court (1994) 23 Cal.App.4th 1378, 1382.) A petition for court approval of a compromise under Code of Civil Procedure section 372 must comply with California Rules of Court Rules 7.950, 7.951, and 7.952. The petition must be verified by the petitioner and contain a full disclosure of all information that has "any bearing upon the reasonableness" of the compromise or the covenant. (Cal. Rules of Court, rule 7.950.) The person compromising the claim on behalf of minor, and the represented person, must attend the hearing on compromise of the claim unless the court for good cause dispenses with their personal appearance. (Cal. Rules of Court, rule 7.952(a).) An order for deposit of funds of a minor or person lacking decision-making capacity and a petition for the withdrawal of such funds must comply with California Rules of Court Rules 7.953 and 7.954. (Cal. Rules of Court, rule 3.1384; see also Super. Ct. L.A. County, Local Rules, rules 4.115-4.118.) DISCUSSION Form MC-350 (Rev. January 1, 2021) The petitions have been verified by Petitioner and presented on a fully completed mandatory Judicial Council Form MC-350, using the current January 1, 2021 revision. (Cal. Rule of Court Rule 7.950.) Settlement Claimants agree to settle their respective claims with Defendant in exchange for $8,000.00 each, $3,250.00 of which will go to each Claimant. If approved, $2,000.00 will be paid in attorneys fees, and $2,750.00 will paid to Wellness Involved Chiropractic, leaving a balance of $3,250.00 for each Claimant, to be transferred to a custodian for the benefit of Claimants under the California Uniform Transfers to Minors Act. Court approval is required for all settlements of a minor. (Probate Code, §§ 3600, et seq.; Code Civ. Proc., § 372.) The Court has reviewed the proposed settlement and finds the Petitions do not contain a full disclosure of all information that has any bearing upon the reasonableness of the settlement amount to Claimants, as paragraph 10 of the Petitions is incomplete, and only indicates that Defendant will pay $8,000.00. (See Petitions, ¶ 10.) $8,000.00 seems reasonable given Claimants injuries, but Petitioner needs to properly complete the Petitions. The Court also notes that paragraph 11.b.(5) is incomplete as the names and amounts listed total only $56,000, not the $64,000 total amount offered by Defendant. (See Petitions, ¶11.) Attorney Fees The retained attorney's information has been disclosed as required by Rule of Court 7.951. (Petitions, ¶ 17, subd. (b).) There is an agreement for services provided in connection with the underlying claim. (Petition, ¶ 17, subd. (a)(2).) Copies of the agreements were submitted with the Petitions as required by Rule 7.951, subdivision (6), of the California Rules of Court. (Teroganesyan Decls., Ex. A; Cal. Rules of Court, rule 7.951, subd. (6).) Claimants counsel is seeking to recover $2,000.00 in attorney fees from each Claimant, i.e., 25% of $8,000.00. (Petitions, ¶ 13, subd. (a); Teroganesyan Decls., ¶ 4, Ex. A.) Counsel has provided a declaration addressing the reasonableness of the fee request, as required by Rule 7.955, subdivision (c), of the California Rules of Court, accounting for the factors specified in Rule 7.955, subdivision (b). (Cal. Rules of Court, rule 7.955, subd. (c).) Rule 7.955, subdivision (b), provides: (b) Factors the court may consider in determining a reasonable attorney's fee. In determining a reasonable attorney's fee, the court may consider the following nonexclusive factors: (1) The fact that a minor or person with a disability is involved and the circ*mstances of that minor or person with a disability. (2) The amount of the fee in proportion to the value of the services performed. (3) The novelty and difficulty of the questions involved and the skill required to perform the legal services properly. (4) The amount involved and the results obtained. (5) The time limitations or constraints imposed by the representative of the minor or person with a disability or by the circ*mstances. (6) The nature and length of the professional relationship between the attorney and the representative of the minor or person with a disability. (7) The experience, reputation, and ability of the attorney or attorneys performing the legal services. (8) The time and labor required. (9) The informed consent of the representative of the minor or person with a disability to the fee. (10) The relative sophistication of the attorney and the representative of the minor or person with a disability. (11) The likelihood, if apparent to the representative of the minor or person with a disability when the representation agreement was made, that the attorney's acceptance of the particular employment would preclude other employment. (12) Whether the fee is fixed, hourly, or contingent. (13) If the fee is contingent: (A) The risk of loss borne by the attorney; (B) The amount of costs advanced by the attorney; and (C) The delay in payment of fees and reimbursem*nt of costs paid by the attorney. (14) Statutory requirements for representation agreements applicable to particular cases or claims. (Cal. Rules of Court, rule 7.955, subd. (b).) The Court addresses these factors below. Amount of Fee in Proportion to Value of Services Performed Claimants counsel indicates that the contingency rate for each of the Claimants in this matter is 25%, and claims to have represented Claimants zealously in the prelitigation and litigation phases of this action. (Teroganesyan Decls., ¶¶ 4, 9.) Novelty and Difficulty Claimants counsel provides no information about the novelty or difficulty of this case. The Court infers from the Petitions and attached medical bills that this case was neither novel nor particularly difficult. (See Petitions, Attachment.) Amount Involved and Results Obtained Claimants counsel only mentions a 25% contingency and does not mention the actual dollar amount involved or the results obtained. (See Teroganesyan Decls., ¶ 4.) Nature and Length of Professional Relationship Claimants counsel has been representing Claimants in this action since November of 2021. (Teroganesyan Decls., ¶ 2, Ex. A.) Experience, Reputation, and Ability of Counsel Claimants counsel states that she has extensive experience representing Plaintiffs in personal injury cases. (Teroganesyan Decls., ¶ 8.) Time and Labor Required Claimants counsel provides no information about the amount of work undertaken for this case. Acceptance of Case Precluding Other Employment Claimants counsel does not address whether acceptance of this case precluded other employment. Contingent Fee Claimants counsel accepted Claimants case for a 25% contingency fee. (Teroganesyan Decls., ¶ 4, Ex. A.) Claimants counsel offered to advance the costs associated with this action, and otherwise does not request reimbursem*nt for any costs. (Teroganesyan Decls., ¶ 5; Petitions, ¶ 13, subd. (b).) The Court finds that Claimants counsel has adequately demonstrated the reasonableness of the fee award in light of the factors and circ*mstances in this case. Medical Bills Claimants have each incurred $4,091.50 in medical expenses, but Wellness Evolved Chiropractic has agreed to reduce its liens to $2,750.00 each. (Petitions, ¶ 12, subd. (b)(5); Id., Attachment, p. 23 of pdf.) Costs Claimants counsel is not seeking to recover costs. (Petitions, ¶ 13, subd. (b).) Amount to Be Paid to Claimant The net amount to be paid to each of the Claimants is $3,250.00. (Petitions, ¶ 15.) Disposition of Balance of Proceeds Petitioner requests that the net proceeds, $3,250.00 for each Claimant, be transferred to a custodian for the benefit of the minor under the California Uniform Transfers to Minors Act. (Petitions, ¶ 18, subd. (b)(6).) Petitioner did not provide the name and address of the proposed custodian and the money or other property to be transferred on Attachment 18b(6), as directed in the Petitions. (Id.) The Court needs more information on this, considering that it appears Petitioner is seeking to have the money made payable to her. (Proposed Orders, ¶ 8, subd. (b)(2).) Court Appearance Rule 7.952, subdivision (a), of the California Rules of Court requires attendance by the petitioner and claimant unless the court for good cause dispenses with their personal appearance. (Cal. Rules of Court, rule 7.952, subd. (a).) The Court finds that the appearances of the Claimants are not required due to their minor status. However, the petitioners attendance is required. Prognosis Claimants have recovered completely from the effects of their injuries. (Petitions, ¶ 8, subd. (a).) Proposed Order MC-351 Petitioner has filed a Proposed Order Form MC-351 for each of the Claimants. Incomplete Forms The Court also notes that although the Court approved Petitioners applications and orders for appointment as guardian ad litem for Claimants, Petitioner did not mark the box for guardian ad litem on the Petitions. (See Petitions, ¶ 1.) Petitioner also did not mark the same box on the proposed orders. (See Proposed Orders, ¶ 2.) The Court further notes that Petitioner did not provide the judicial officers name on paragraph 1, subdivision (c), of the proposed orders. (See Proposed Orders, ¶ 1, subd. (c).) Based on the foregoing, the Court DENIES the Claimants petitions for approval of compromise of claim or action or disposition of proceeds of judgment for minor or person with a disability without prejudice. CONCLUSION The Court DENIES Claimant Eden Lomas petition for approval of compromise of claim or action or disposition of proceeds of judgment for minor or person with a disability without prejudice. The Court DENIES Claimant Emerie Lomas petition for approval of compromise of claim or action or disposition of proceeds of judgment for minor or person with a disability without prejudice. The Court DENIES Claimant Emma Fuentes petition for approval of compromise of claim or action or disposition of proceeds of judgment for minor or person with a disability without prejudice. Petitioner is ordered to provide notice of the Courts ruling and file proof of service of same within five days of the Courts order. [1] Defendant Pedroza appears to be named only and not served.
Ruling
JEFFREY H. ANDERSON, ET AL. VS KRISTINE TICEHURST, ET AL.
Aug 27, 2024 |22STCV41082
Case Number: 22STCV41082 Hearing Date: August 27, 2024 Dept: 58 Judge Bruce G. Iwasaki Department 58 Hearing Date: August 27, 2024 Case Name: Anderson Real Estate Group Inc. v. Kristine Ticehurst, etc. et al Case No.: 22STCV41082 Matter: Demurrer to Cross-complaint Moving Party: Plaintiff and Cross-defendant Anderson Real Estate Group, Inc. Responding Party: Defendants and Cross-complainants Coralyn Wahlberg and Claudia Pardon Tentative Ruling: The demurrer is sustained in its entirety with leave to amend. In March 2024, Plaintiff Anderson Real Estate Group (Plaintiff or Anderson) filed a third amended complaint against, inter alia, Defendants and Cross-complainants Coralyn Wahlberg and Claudia Pardon (Cross-complainants). In May 2024 Wahlberg and Pardon filed a Cross-complaint against Anderson for violation of Business and Professions Code sections 16600 and 17200. Anderson demurs to the Cross-complaint. The Court sustains the demurrer with leave to amend. Procedural background Andersons operative complaint alleges six causes of action. The first two, for breach of contract and fraud, are alleged only against Defendant Ticehurst. Those counts aver that Ticehurst violated duties by keeping commissions earned on transactions begun while working with Plaintiff, but that closed after she left. The remaining claims, alleged against all defendants thus applying to Wahlberg and Pardon are for tortious interference with contract, misappropriation of trade secrets, tortious interference with prospective economic advantage, and section 17200. The challenged Cross-complaint of Wahlberg and Pardon is cryptic. They claim in the first cause of action that Anderson forced them to sign agreements as part of their employment which precluded them from competing against [Plaintiff]&and also precluded [them] from soliciting employees&. This, they assert, violated Business and Professions Code section 16600. They further allege that Anderson attempted to enforce these agreements which caused Cross-complainants to incur damages as a result. The second cause of action is similar, in part because it also invokes section 16600. Cross-complainants allege that as Anderson employees, they were required to sign non-compete and confidentiality agreements as part of their employment as well as agreements to pay [Anderson] commissions for matters where [Anderson] did not contribute to the transaction. They also allege that Anderson forced them to submit to numerous unspecified violations of the Labor Code. These acts, they assert, violate Business and Professions Code section 17200. Legal Standard for Demurrers A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (Code Civ. Proc., § 452.) The court treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . . (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) Discussion The first cause of action alleges a violation of Business and Professions Code section 16600. That statute provides at subdivision (a): Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void. Plaintiff and Cross-defendant Anderson assumes that when Cross-complainants say Anderson attempted to enforce these agreements, they are referring to the agreements referred to in the Third Amended Complaint. Anderson argues that the Third Amended Complaint is solely related to the Misappropriation of Trade Secrets. That is not true; other claims are asserted as well. But all these causes of action stem from the use of leads and contacts that were allegedly Andersons property but used to generate revenue for Defendants. Anderson insists that its claims against Wahlberg and Pardon are based on common law and statutory theories prohibiting misappropriation of trade secrets and interference with economic relationships, not any breach of contract. The Cross-complainant, contends Anderson, fails to allege how Wahlberg and Pardon suffered any damages. That is, there are no allegations that they have been restrained from engaging in a lawful profession or how they have been harmed. Cross-complainants devote much of their opposition to discussion of prior pleadings, irrelevant here. The focus is on the sufficiency of the Cross-complaint, not allegations in Andersons prior complaints. The Cross-complaints first cause of action is vague about what contracts Cross-complainants were forced to enter. It does not name or describe the agreements, it sets forth no contract terms deemed unlawful, and does not attach a copy. Though the Cross-complaint does not allege a breach of contract, it alleges that Anderson violated section 16600 because Wahlberg and Pardon entered agreements with it that Anderson may enforce. The Cross-complaint is similarly uncertain about how Plaintiff attempted to enforce the unspecified contracts, and fails to allege any facts indicating how Cross-complainants were damaged. Most glaringly, Cross-complainants do allege no facts showing that they have been restrained from engaging in a lawful profession, trade, or business. The demurrer to the first cause of action of the Cross-complaint is sustained. The second cause of action simply incorporates the purported violation of Business and Professions Code section 16600 as the unlawful act pleaded under Business and Professions Code section 17200. The same deficiencies of the first cause of action, in other words, are part of the second cause of action. Thus, the second cause of action lacks essential elements because it fails to show how Cross-complainants are restrained in engaging in their profession and how they have been damaged. An unlawful business practice or act within the meaning of the UCL is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law. [Citation.] Further, [b]y proscribing any unlawful business practice, section 17200 borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable. [Citation.] (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) To the extent Anderson required Cross-complainants to agree not to misappropriate confidential client information and other trade secrets, Cross-complainant has not alleged an unlawful business practice. If Cross-complainants refer to some other conduct by Anderson they contend is unlawful, they have failed to allege it. The demurrer to the second cause of action of the Cross-complaint is sustained. Conclusion The demurrer is sustained. Cross-complainants are granted leave to amend. Their amended Cross-complaint must be served and filed on or before September 11, 2024.
Ruling
RICHARD SWEET, ET AL. VS ARCHIBUILDZ, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY
Aug 28, 2024 |23STCV12448
Case Number: 23STCV12448 Hearing Date: August 28, 2024 Dept: 31 Tentative Ruling Judge Kerry Bensinger, Department 31 HEARING DATE: August 28, 2024 TRIAL DATE: September 16, 2024 CASE: Richard Sweet, et al. v. Archibuildz, LLC CASE NO.: 23STCV12448 MOTION TO DEEM REQUESTS FOR ADMISSION, SET ONE, ADMITTED MOVING PARTY: Plaintiffs Richard Sweet, et al. RESPONDING PARTY: No opposition I. FACTUAL AND PROCEDURAL BACKGROUND On July 12, 2024, Plaintiffs Richard Sweet, Lori Sweet, individually and as Co-Trustees of the Sweet Living Trust, filed this motion to deem Plaintiffs Requests for Admissions, Set One, admitted (the Motion) against Defendant Archibuildz, LLC. Plaintiffs seek sanctions against Defendant and its counsel. On July 16, 2024, Plaintiffs filed an ex parte application to specially set the hearing on Plaintiffs Motion. The application was heard by Judge Escalante in Department 24 due to unavailability of this department. Judge Escalante granted the application and specially set the hearing for August 28, 2024. The Motion is unopposed. II. LEGAL STANDARD If a party to whom requests for admission are directed fails to serve a timely response, the propounding party may move for an order that the truth of the matters specified in the requests be deemed admitted.¿ (Code Civ. Proc., § 2033.280, subd. (b).)¿ Failure to timely serve responses waives objections to the requests. ¿(Code Civ. Proc., § 2033.280, subd. (a).)¿ ¿ ¿ Monetary Sanctions¿¿ ¿¿ Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for misuse of the discovery process, which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿¿¿¿ ¿¿¿ If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿¿¿ ¿¿¿ In the context of a motion to deem requests for admission admitted, it is mandatory that the court impose monetary sanctions on the party or attorney, or both, whose failure to serve a timely response to the request necessitated the motion.¿ (Code Civ. Proc., § 2033.280, subd. (c).)¿ Sanctions against counsel:¿ The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:¿¿¿¿¿¿¿ ¿¿¿¿¿ By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a partys attorney unless the court finds that the attorney advised the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ Unlike monetary sanctions against a party, which are based on the party's misuse of the discovery process, monetary sanctions against the party's attorney require a finding the attorney advis[ed] that conduct. (Ibid.) It is not enough that the attorney's actions were in some way improper. (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney's advice to a client is peculiarly within [his or her] knowledge, the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)¿¿ III. DISCUSSION It is undisputed that Plaintiffs properly served Defendant with Requests for Admissions, Set One, on May 30, 2024. To date, Defendant has not responded. (See Declaration of Rebecca D. Wester, ¶¶ 3-4.) Accordingly, Plaintiffs are entitled to an order deeming Plaintiffs Requests for Admissions admitted against Defendant. Monetary Sanctions Plaintiffs request sanctions against Defendant. Given the courts ruling, sanctions are mandatory.¿ (Code Civ. Proc., § 2033.280, subd. (c).)¿ Pursuant to Hennings, supra, imposition of monetary sanctions against counsel is also proper unless counsel shows that he or she did not counsel the discovery abuse.¿ (Hennings, 58 Cal.App.5th at p. 81.)¿ Defense counsel does not meet their burden.¿ Accordingly, sanctions are imposed against Defendant and its counsel of record in the amount of $1,350, consisting of two hours at defense counsels hourly rate. Accordingly, sanctions are imposed against Defendant and its counsel in the sum of $675, consisting of one and a half hours at Plaintiffs counsels hourly rate. IV. CONCLUSION The unopposed motion is GRANTED. Plaintiffs Requests for Admissions, Set One, is deemed admitted against Defendant Archibuildz, Inc.¿¿¿ ¿ The request for sanctions is granted.¿ Defendant and its counsel are ordered to pay, jointly and severally, sanctions in the amount of $675 to Plaintiffs, by and through their counsel, within 30 days of this order. Plaintiffs to give notice. Dated: August 28, 2024 ¿ ¿¿¿ ¿ ¿ Kerry Bensinger¿¿ ¿ Judge of the Superior Court¿
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