Filed 10/1/19 Karamooz v. Karamooz CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

NIMA KARAMOOZ, as Special Administrator, etc.,

Plaintiff and Respondent,

v.

HOSSEIN KARAMOOZ,

Defendant and Appellant.

G054712, G054833, G055181

G055209

(Super. Ct. No. 30-2015-00788172)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, William D. Claster, Judge. Request for judicial notice granted. Judgment reversed and remanded with directions.

Haynes and Boone, Mary-Christine Sungaila, Polly Fohn; Ross Wersching & Wolcott, Suzanne M. Tague and Gianna Gruenwald for Defendant and Appellant.

Lefton Law Corp., Jennifer Lefton; Conti Law and Alexander L. Conti for Plaintiff and Respondent.

One, Peter R. Afrasiabi, Oscar M. Orozco-Botello; Law Office of Kathryn M. Davis, Kathryn M. Davis; Kermani, Ramin Kermani-Nejad, Mohamad Ahmad and Makoa Kawabata for original Plaintiff and Respondent

* * *

In this action (Conversion Action), Saeed Karamooz (Saeed), then the administrator of the estate of Nahid Karamooz (decedent), obtained a $4.43 million judgment against defendant and appellant Hossein Karamooz (Hossein) for trespass to chattels and conversion of assets from decedent’s estate. Hossein filed a motion for judgment notwithstanding the verdict (JNOV) and a notice of intent to move for new trial. The court denied the JNOV but granted a new trial.

Saeed filed a motion to set aside the new trial order under Code of Civil Procedure section 473. The court granted the motion and reinstated the original judgment. Hossein then filed another motion for new trial and motion for JNOV, a motion to reduce the damages to the amount alleged in the complaint, and a motion to vacate the order reinstating the judgment, all of which the court denied.

Hossein appealed from the original and reinstated judgments, and from denial of all of his posttrial motions on numerous grounds. He contends plaintiff had no standing to bring this action and the judgment and punitive damages were not supported by substantial evidence. He also asserts the court erred when it found the notice of intent to move for new trial was untimely, when it denied all of Hossein’s motions following reinstatement of the judgment, and when it failed to decide defendant’s equitable defenses. Finally, Hossein claims, at the least, the amount of the judgment should be reduced to conform to the amount prayed for.

Before the Conversion Action was commenced, Nima Karamooz (Nima), the son of decedent and Hossein and the sole beneficiary of decedent’s estate, filed an action to remove Saeed as personal representative of decedent’s estate (In re Estate of Karamooz; Karamooz v. Karamooz, (Super. Ct. Orange County, 2010, No. 30-2010-00380990); Removal Action). After the completion of initial briefing in this case the court in the Removal Action entered a judgment removing Saeed as the estate personal representative and appointed Nima as the special administrator. Over strong objection by Saeed, we subsequently ordered Nima substituted in as the respondent in this appeal. We then allowed the parties to file supplemental briefs.

In the supplemental respondent’s brief, Nima claims Saeed’s original respondent’s brief contained “too many factual errors to address each individually,” and asks that we disregard the entire statement of facts in the original respondent’s brief. He also disagrees with an argument Saeed made with respect to the valuation of the property subject to the Conversion Action. Further, he argues it was error for the valuation of the estate assets to be left to a jury; rather, a referee should have undertaken the valuation. Finally, he asks us to decide whether this is a probate case or a civil case and for direction as to how to inventory and appraise the estate’s assets.

In the supplemental opening and reply briefs Hossein reiterates his arguments Saeed had no authority to file the Conversion Action and the judgment is not supported by substantial evidence.

We conclude there is insufficient evidence to support the judgment and reverse, with directions to the trial court to enter a judgment in favor of Hossein. We decline to address the other issues Nima raised as outside the scope of the appeal.

REQUEST FOR JUDICIAL NOTICE

In connection with filing his supplemental opening brief, Hossein filed an unopposed request for judicial notice of nine documents from the Removal Action and the reporter’s transcript of a hearing in the Removal Action to give us a “comprehensive picture” of the entirety of this matter. We grant the request.

FACTS AND PROCEDURAL HISTORY

Decedent and Hossein were married for 30 years until the marriage was dissolved in 2002. They had three children, including Nima. Saeed is decedent’s brother.

In 2007 decedent created a revocable trust (Trust) and also executed a pour-over will (Will). The purpose of the Trust was to provide for Nima’s “education, health, maintenance and support” as well as for decedent’s support upon her disability, and to distribute her estate after her death. Decedent was the original trustee of the Trust and Nima was the successor trustee. Nima was the sole beneficiary of the Trust.

In early 2009, within a month after decedent’s death, Nima did not want to act as successor trustee and appointed Hossein as trustee. Nima also signed a statutory power of attorney giving Hossein all powers, including the power to act in “[e]state, trust, and other beneficiary transactions.”

In June 2009 Nima filed a petition to confirm Trust ownership of real and personal property assets, to avoid having to probate the Will. (Prob. Code, § 850, subd. (a)(3); all further statutory references are to this code unless otherwise specified.) This type of petition is granted as a matter of course absent an objection. When the petition was filed, Saeed was given notice he was decedent’s personal representative, and he objected to the petition. Saeed then filed a petition to probate decedent’s Will, valuing her estate at approximately $4.85 million.

In June 2010, as part of issuing letters testamentary to Saeed naming him the administrator of the estate, the court informed him in writing he was required to file an inventory and appraisal of all of the estate’s assets within four months. Saeed did not file such an inventory within the four-month period. In June 2012 Saeed filed a final inventory and appraisal and a final accounting and report, showing two bank accounts with not quite $183,000 total balances as the only estate assets.

Nima objected to the accounting and filed the Removal Action seeking to remove Saeed as the decedent’s personal representative. The objection listed 14 grounds for removal, including that Saeed had failed to timely file the inventory of assets, failed to file estate tax returns for three years, and failed to properly safeguard estate assets.

In 2013 Saeed, individually and as personal representative of decedent’s estate, filed the Conversion Action against Hossein for conversion, recovery of property under section 850, trespass to chattels, breach of implied contract, claim and delivery, replevin, and for recovery of double damages under section 859. Saeed sought damages of $3 million. In his answer Hossein raised several equitable defenses, including waiver and estoppel, laches, and unclean hands.

As far as is relevant to this appeal, the trial in the Conversion Action focused on Hossein’s alleged conversion of three categories of property: 186 Persian rugs; a Mercedes; and other property including additional rugs, jewelry, metals, crystals, and chandeliers.

The jury returned a verdict in Saeed’s favor, awarding $3,932,000 in actual damages and $500,000 in punitive damages. As noted above, Hossein filed a JNOV motion and, alternatively, a notice of intent to move for new trial. The court denied the JNOV but granted a new trial, vacating the judgment.

In the new trial order, as to the 186 rugs the court found undisputed testimony that Nima, the sole beneficiary and successor trustee, agreed Hossein could take possession of the rugs for safekeeping. Further, Saeed’s inventory did not list the rugs as assets nor did Saeed seek to recover them for three years. Thus, there was insufficient evidence of conversion.

As to the Mercedes, the court found Hossein’s name remained on title when he sold it, thus “undercut[ting]” conversion. Further, the award of $30,000 was excessive and not supported by credible evidence.

As to the other property, i.e., additional rugs, jewelry, metals, crystals, and chandeliers, the court found “there was not one iota of credible evidence that [Hossein] ever possessed” it. The only evidence as to these items was that someone saw them in decedent’s home six months before she died and after her death Hossein had access to and visited the house twice a month for six months. There was no evidence anyone saw Hossein take the items or saw them in his possession. Nor was there any evidence Hossein “somehow ‘profited’” from them. Therefore the evidence did not support a verdict for conversion or misappropriation.

The court also noted Hossein denied taking anything other than the 186 rugs and the Mercedes. The testimony on this issue of three other witnesses, including Nima and Hossein’s daughter, corroborated Hossein’s testimony.

The court found there was insufficient evidence Hossein acted with fraud, oppression, or malice when he took the 186 rugs and the Mercedes, thereby defeating an award of punitive damages. Also, that Nima was the sole beneficiary and consented to defendant taking them “weigh[ed] heavily” against punitive damages.

Thereafter Saeed filed a motion to vacate the new trial order pursuant to Code of Civil Procedure section 473, contending it was void because the notice of intent to move for new trial was untimely. After a hearing, the trial court changed its prior ruling and concluded Hossein’s filing and service were late. Therefore, it ruled, the order for new trial was void and reinstated the judgment.

After the judgment was reinstated, Hossein filed another motion for new trial and motion for JNOV, a motion to reduce the damages to the amount alleged in the complaint, and a motion to vacate the order reinstating the judgment. The court denied all of the motions.

Hossein appealed from the original and reinstated judgments, and from the denial of all of his posttrial motions.

DISCUSSION

1. Saeed’s Standing

Under section 9820, subdivision (a), a personal representative has the authority to “[c]ommence and maintain actions” “for the benefit of the estate.” Hossein claims Saeed had no standing to bring or maintain the Conversion Action because the action was not “for the benefit of the estate.” Hossein emphasizes Nima, the sole beneficiary of the estate, opposed the Conversion Action.

Hossein contends there is no reason other than Saeed’s personal gain to file the Conversion Action, including increased executor fees and leverage to compel Nima to settle the Removal Action. Thus, Hossein concludes, because the Conversion Action is not for the benefit of the estate, Saeed had no standing to bring it.

Assuming, without deciding, Hossein’s argument was correct, Saeed is no longer the plaintiff; Nima is. Although Nima did not address this issue, as the personal representative and sole beneficiary he plainly has standing to maintain the Conversion Action. That Nima has repeatedly stated it was not in the estate’s best interests to pursue the Conversion Action does not deprive him of standing.

2. Sufficiency of the Evidence Standard of Review

Hossein claims the judgment is not supported by substantial evidence. When we review a claim of insufficiency of the evidence, we begin with the presumption the judgment is correct. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) We determine only if the record as a whole contains substantial evidence, whether contradicted or not, supports the judgment. (Quigley v. McClellan (2013) 214 Cal.App.4th 1276, 1282.)

But this standard does not allow us to rely on any evidence to support the judgment. (Quigley v. McClellan, supra, 214 Cal.App.4th at p. 1282.) Rather, “we must determine whether there exists substantial evidence which is evidence of ponderable legal significance that is reasonable, credible and of solid value, supporting the challenged findings of the trier of fact.” (Id. at pp. 1282-1283.) It must be “‘“relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”’” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 314.)

3. Conversion

“‘“‘Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.’”’” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.)

Hossein argues there is insufficient evidence to support the judgment he converted 186 appraised Persian rugs. We agree.

Nima testified that, more than a year before Saeed was appointed as personal representative and before any actions had been filed, Nima had given Hossein permission to move the rugs out of decedent’s house. Hossein was worried the 186 rugs might be damaged if they were left in an unoccupied home. Nima testified Hossein had never refused Nima access to or possession of the186 rugs. Therefore, there is no evidence to support the jury’s finding Hossein “intentionally and substantially interfere[d]” with the estate property by taking the 186 rugs.

In addition, where the original possession is lawful, there is no conversion unless demand is made by the lawful owner or one with the right to possess. (Cerra v. Blackstone (1985) 172 Cal.App.3d 604, 609.) Further, under section 9650, subdivision (c), a beneficiary may retain a decedent’s tangible personal property unless the personal representative deems it necessary to have possession to administer the estate.

Here, Saeed made no demand for the 186 rugs. This is logical since he never claimed the 186 rugs were assets of the estate, failing to list them on the inventory and appraisal or in the final accounting. This undercuts any claim of conversion.

4. Damages

Hossein challenges the $2.4 million damages award for the other items that were the subject of the Conversion Action, claiming there is insufficient evidence of the value of the items. Hossein is correct.

In his brief, Saeed did not point to any evidence as to the value of most of these items. Instead, he relied on the fact decedent and Hossein valued jewelry, some of the crystals, and most of the silver at $2.5 million at the time of their dissolution. This, he claimed, was roughly equivalent to the $2.4 million aggregate award for precious jewelry, including a Rolex watch and a diamond and ruby necklace; crystal chandeliers and other precious crystals; silver dishes; and gold coins. None of this is sufficient to support the damages awarded.

First, the items allegedly converted are not identical to those valued at the time of the dissolution judgment in June 2002. The alleged conversion occurred after decedent’s death in December 2008. Saeed points to no evidence of the fair market value of these items at the time of the alleged conversion. Generally, damages for conversion are based on the value of the converted property at the time of conversion. (Civ. Code, § 3336; Lueter v. State of California (2002) 94 Cal.App.4th 1285, 1302.) “‘[D]amages which are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery.’” (Lueter, at p. 1302.)

Second, Saeed’s aggregate valuation of the items will not suffice. The jury awarded specific amounts for each of the items, most of which were far in excess of what plaintiff requested in argument. For example, plaintiff sought $20,000 for “precious crystals” and the jury awarded $500,000. Likewise as to precious jewelry, the request was $181,000 and the award $500,000; for silver dishes, the request was $50,000 and the award $500,000. Additionally, Saeed did not argue any amount as to the value of the crystal chandelier, for which the jury awarded $250,000 or the Rolex watch, for which damages awarded were $2,000.

Third, the jury awarded $30,000 for the Mercedes per Saeed’s request. But the only evidence of its value at the time of the alleged conversion was the sale price of $14,500 and there was no evidence the sale price was too low. Thus, no evidence supported a $30,000 award.

Fourth, as to the additional Persian rugs (separate from the 186 appraised rugs), the evidence is also insufficient. There is no evidence the additional rugs were the same type as the appraised rugs, for which there was expert testimony they were worth $200 per square foot. We have not been directed to any other evidence of the value of the additional rugs.

Finally, in the supplemental respondent’s brief, not only does Nima repudiate Saeed’s statement of facts in the original respondent’s brief as erroneous, Nima also specifically disclaims Saeed’s argument the collective value of the items was $2.5 million. He maintains it was improper for a jury to set the value of estate assets but instead the estate’s inventory should have been valued as of the date of death by a probate referee under the supervision of the probate court. (§§ 8800 [personal representative must inventory estate property and file it with the court]; 8801 [supplemental inventory]; 8901& 8902 [probate referee appraises all property except for cash and cash equivalents and insurance proceeds].) As an additional ground for reversal, we construe Nima’s position and concession as admissions the damages amounts set by the jury were incorrect. (Williams v. Superior Court (1964) 226 Cal.App.2d 666, 674.)

5. Punitive Damages

Hossein claims there was no evidence to support the punitive damages award because the underlying causes of action for conversion and trespass to chattels lack substantial evidence and there was insufficient evidence of malice, fraud, or oppression or Hossein’s financial condition. Hossein must prevail on this argument.

As discussed above, there was no evidence Hossein wrongfully took possession of the 186 rugs and insufficient evidence of the value of any of the other items he allegedly converted. Because punitive damages are not recoverable without proof of an underlying tort (569 E. County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 430, fn. 3), the punitive damage award must be reversed. Consequently we need not address the claims there was insufficient evidence of oppression, fraud, or malice or of Hossein’s financial condition.

Saeed’s claim Hossein waived this argument by failing to include it in his notice of intent to move for new trial is wrong. It was included in that notice and argued in the points and authorities. Listing an error in the notice of intent to move for new trial is sufficient to raise the issue in the trial court. (McCarty v. Department of Transportation (2008) 164 Cal.App.4th 955, 983.)

6. Other Issues

Because we reverse on these grounds, there is no need for us to address any other arguments Hossein raised.

Nima raises three additional issues in his supplemental respondent’s brief. First, he asks us to decide whether this case is a probate case, as he contends, or whether it is a civil action as Saeed apparently argues. But a decision on this issue is not necessary to our determination of the case nor is it before us because it is not encompassed by Hossein’s appeal.

Second, Nima asks us to decide whether the estate’s assets at issue should have been appraised by a probate referee after being inventoried by Saeed rather than by a jury. He contends it would be “incredibly problematic” for him to be required to adopt the jury’s valuation of the assets. Again, this issue is not before us. Nevertheless, we note we are rejecting the jury’s award of damages, expressly as to all of the items except the 186 rugs, and impliedly as to the 186 rugs because we have determined they were not converted.

Finally, Nima asks for direction as to how he should fulfill his fiduciary duties vis-à-vis inventorying and appraising the estate’s assets. Again, these issues are not within the scope of the appeal and we may not issue advisory opinions. (Pacific Hills Homeowners Assn. v. Prun (2008) 160 Cal.App.4th 1557, 1567.)

DISPOSITION

The judgment is reversed and the matter is remanded to the superior court with directions to enter judgment in favor of Hossein. The request for judicial notice is granted. Hossein is entitled to costs on appeal.

THOMPSON, J.

WE CONCUR:

FYBEL, ACTING P. J.

IKOLA, J.

Filed 10/2/19 Lopez v. Bland CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

AIDE LOPEZ,

Plaintiff and Respondent,

v.

JOHN R. BLAND, JR.,

Defendant and Appellant.

D075147

(Super. Ct. No. D544691)

APPEAL from an order of the Superior Court of San Diego County, Matthew C. Braner, Judge. Affirmed.

John R. Bland, Jr., in pro per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

John R. Bland, Jr. (Bland) appeals the superior court’s denial of his request to modify his child custody payment amount. Bland contends the method of calculating his payment violates the equal protection clause. Because Bland fails to carry his burden to show reversible error, we affirm.

BACKGROUND

On April 25, 2017, the court ordered Bland to pay Aide Lopez $507.00 per month in child support for the child they share. In determining the amount, the court considered Lopez’s gross income, as well as Bland’s retirement income and imputed earning capacity income for Bland.

In November 2018, Bland sought modification of the amount of child support. He contended it was a violation of the equal protection clause for the court to add minimum wage earning capacity income to his retirement income when calculating the child support amount, while only considering Lopez’s earned income.

Following a hearing, the court denied Bland’s motion. This appeal follows.

DISCUSSION

It is a “cardinal rule of appellate review that a judgment or order of the trial court is presumed correct and prejudicial error must be affirmatively shown.” (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.) “[T]he appellant has the burden of demonstrating prejudicial error.” (Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348.) If the appellant cannot show error in the record, the presumption of correctness requires us to affirm the order. (Foust, at p. 187.)

An appellant is bound by many rules of appellate procedure designed to facilitate our review of claims of reversible error. For example, an appellate brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C); Pierotti v. Torian (2000) 81 Cal.App.4th 17, 29 [“It is axiomatic that an appellant must support all statements of fact in his briefs with citations to the record [citation] . . . .”].)

Bland’s opening brief presents a statement of facts with no citations to the record. He similarly references facts in his argument section without citing the record. This violates rule 8.204(a)(1)(C) of the California Rules of Court, which requires a party to support each reference to a matter in the record by a citation to the record. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [statements in appellate briefs not supported by citations to the record are improper and cannot be considered].) We deem forfeited any matter Bland has failed to adequately support with record citations. (Lonely Maiden Productions, LLC v. Golden Tree Asset Management, LP (2011) 201 Cal.App.4th 368, 384.)

Furthermore, “[m]atters not properly raised or that are lacking in adequate legal discussion will be deemed forfeited.” (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 600.) “In other words, it is not this court’s role to construct theories or arguments that would undermine the judgment and defeat the presumption of correctness. Rather, an appellant is required to present a cognizable legal argument in support of reversal of the judgment. ‘When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary.’ ” (Ibid.) Issues that are not raised or supported by argument and citation to legal authority are forfeited. (Ibid.)

Bland fails to support his claim with reasoned argument. He does not identify a statute he is challenging as violating the equal protection clause. He does not explain why the court’s decision violated the equal protection clause. He does not provide a reporter’s transcript to demonstrate the court’s reasoning to help explain why the court’s actions were erroneous.

Additionally, although he purports to quote a case, Orr v. Orr (1979) 440 U.S. 268, the quotation he provides does not appear in the case, and he does not explain how or why the case is relevant to the facts before us. (See Cal. Rules of Court, rule 8.204(a).)

We understand Bland is self-represented. However, his status as a party appearing in propria persona does not allow for preferential consideration. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) “A party proceeding in propria persona ‘is to be treated like any other party and is entitled to the same, but no greater[,] consideration than other litigants and attorneys.’ [Citation.] Indeed, ‘ “the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.” ‘ ” (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.)

As a self-represented litigant, Bland must follow the rules of appellate procedure and present an intelligible argument supported by the record and applicable legal authority. Based on Bland’s opening brief, we are not able to evaluate his arguments. (See Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [“An appellate court is not required to examine undeveloped claims, nor to make arguments for parties.”].) His deficient brief compels us to conclude he has forfeited any cognizable appellate contentions, and the absence of cogent legal argument leads us to presume the trial court’s order is correct. Accordingly, we affirm.

DISPOSITION

Affirmed. Appellant to bear his own costs.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

GUERRERO, J.

18-CIV-03452 FARZAD DEFAEE VS. SRINIVASA GONUGUNTLA, ET AL.

FARZAD DEFAEE SRINIVASA GONUGUNTLA
PEDRAM ZIVARI EMILY A. MAHONEY

MOTION TO COMPEL VERIFIED RESPONSES BY DEFENDANTS’ SRINIVASA GONUGUNTLA AND HARI POTHEPALLI TENTATIVE RULING:

Plaintiff’s motion to compel verified responses to interrogatories and requests for production of documents is GRANTED. To the extent that Defendants have not provided the verified responses, Defendants shall serve such responses within 10 days of this order.

Defendants contend the motion is moot because they provided signed verifications on September 3rd and 4th. Defendants, however, cite no authority in support of their contention that the motion is moot. There is, however, authority to the contrary. In Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants, 148 Cal. App. 4th 390, 408 (2007), the court concluded that untimely service of discovery responses does not deprive the trial court of authority to hear the motion.

Defendants request that no sanctions be imposed because defense counsel made good faith efforts to locate Defendants so they could provide verified responses. Counsel notes that private investigators were hired in May and August in attempt to locate Defendants. However, Defendants provide no information as to why those efforts were necessary. Ultimately, this fact does not provide substantial justification to deny the request for sanctions.

In Plaintiff’s reply, Plaintiff claims the verifications provided by Defendant Hari Pothepalli are defective because the responses to form interrogatories 2.6, 2.7, and 2.8 state that a response “will be provided.” Plaintiff requests, as a result, that the court issue an order compelling Defendant Pothepalli to provide verified responses, without objections, within 10 days. However, considering that Plaintiff contends Defendant Pothepalli’s responses are inadequate, Plaintiff’s remedy would be to file a motion to compel further responses from Defendant Pothepalli. Further, Plaintiff’s reply is supported by a declaration which is not signed by the declarant, Mr. Wolf. As a result, the reply is disregarded. Defendants’ sur-reply is also disregarded.

Plaintiff’s request for sanctions is GRANTED in the amount of $2,090.00. Defendants shall pay this amount within 21 days of this order.

CIV536294 ANDY SABERI VS. LES STANFORD, ETAL

ANDY SABERI BJ INTERSTATE AUTOTRANSPORTERS, INC
JAMES M. DOMBROSKI JAMES ATTRIDGE

MOTION FOR ATTORNEY FEES AS SANCTIONS AGAINST ANDY SABERI AND JAMES DOMBROSKI TENTATIVE RULING:

Defendant BJ Interstate Auto Transporters, Inc.’s (BJ Interstate) 8-16-19 “Motion for Attorney’s Fees as Sanctions,” filed pursuant to Code Civ. Proc. § 128.5, is DENIED, for the reasons set forth below.

First, the motion is a belated motion for reconsideration. Code Civ. Proc. § 1008(b). On 10-10-18, Plaintiff dismissed its entire case against BJ Interstate. Thereafter, on 4-519, BJ Interstate moved for sanctions against Plaintiff under Code Civ. Proc. § 128.5, asserting the same arguments it now rehashes here. BJ Interstate argued in the prior motion, inter alia, that Plaintiff knew or should have known from the day he filed this case, and certainly from the time Plaintiff filed his First Amended Complaint (FAC), that his claim(s) against BJ Interstate had no merit, and yet Plaintiff continued pursuing its case against BJ until two days prior to the scheduled trial date. The Court already considered this argument and, on 5-20-19, denied BJ’s previous motion for § 128.5 sanctions. 5-20-19 Minute Order. The present motion is indistinguishable from the prior motion. Because it was not filed within 10 days of the Court’s 5-20-19 Minute Order, it is untimely. Code Civ. Proc. § 1008.

Second, and as separate grounds for denying the motion, as stated in the Court’s 5-20-19 Minute Order, BJ Interstate failed to comply with § 128.5’s safe harbor provision. As it argued in its prior motion for sanctions, BJ Interstate again contends Plaintiff persisted in pursuing a clearly meritless Complaint and First Amended Complaint (FAC), despite knowing that co-defendant Dedyk was insured at the time of loss, which purportedly barred any suit against BJ Interstate. § 128.5 requires that the offending party be given an opportunity to withdraw the offending pleading. § 128.5(f)(1)(B). BJ Interstate has not alleged compliance with this procedural requirement. Indeed, Plaintiff could not have withdrawn any offending pleading, because Plaintiff dismissed BJ Interstate from the case long before this motion was filed.

Further, the motion appears based in part on Plaintiff’s discovery responses. § 128.5 does not apply to discovery requests, responses, objections and discovery motions. § 128.5(e).

For at least the foregoing reasons, the motion is DENIED.

BJ Interstate’s 9-26-19 Evidentiary Objection to Parag. 12 of the Dombroski Decl. is OVERRULED, and its related 9-26-19 “Motion to Strike” is DENIED. The Court notes, however, that Parag. 12 of the Dombroski is irrelevant to the Court’s ruling on this motion.

Continuing the parties’ seemingly never-ending request for sanctions against one another, Plaintiff requests sanctions against BJ Interstate for having had to oppose this motion. In the Court’s discretion, Plaintiff’s request is DENIED.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.

Case Number: BC673804 Hearing Date: October 04, 2019 Dept: 4B

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTIONS TO COMPEL DISCOVERY RESPONSES AND REQUEST FOR MONETARY SANCTIONS

On August 25, 2017, Plaintiff Walter Villeda (“Plaintiff”) filed his complaint against defendants Nicholas Ryan Davis and Lillian Sedlakdavis (collectively, “Defendants”) for injuries arising from a September 9, 2016 automobile accident. On May 14, 2019, Plaintiff served Supplemental Request for Production of Documents and Supplemental Interrogatories on Mr. Davis, and Supplemental Request for Production of Documents and Supplemental Interrogatories on Ms. Sedlakdavis. Responses were originally due June 18, 2019, but Plaintiff granted a ten-day extension. After no responses were received, Plaintiff’s counsel filed four motions to compel responses from Defendants and requested monetary sanctions.

On September 23, 2019, Defendants filed opposition briefs in which their attorney declared that verified discovery responses were served without objections. Therefore, Plaintiff’s motions are MOOT.

Sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust. (Code Civ. Proc., § 2030.290, subd. (c), 2031.300, subd. (c).) Plaintiff’s request for monetary sanctions is GRANTED and imposed against Mr. Davis and counsel of record, jointly and severally, in the reduced amount of $720.00 for two hours at Plaintiff’s counsel’s hourly rate of $300.00 and $120.00 in filing fees, to be paid within twenty (20) days of the date of this Order. Sanctions are also imposed against Ms. Sedlakdavis and counsel of record, jointly and severally, in the reduced amount of $720.00 for two hours at Plaintiff’s counsel’s hourly rate of $300.00 and $120.00 in filing fees, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.

Case Number: BC693756 Hearing Date: October 04, 2019 Dept: 4B

TENTATIVE] ORDER RE: PLAINTIFF JUNE ARELLANO’S MOTION TO COMPEL RESPONSES TO DISCOVERY AND MONETARY SANCTIONS

On February 14, 2018, Plaintiffs June Arellano and Brandon Stanisci (collectively, “Plaintiffs”) filed this action against Defendants Jip Chung, and Byung Son (collectively, “Defendants”) for property damage and personal injury arising from a December 17, 2016 motor vehicle accident. On February 12, 2019, Ms. Arellano served form interrogatories to Mr. Chung. Ms. Arellano seeks to compel Mr. Chung’s responses to discovery and monetary sanctions.

Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Code Civ. Proc., §§ 2030.290, 2031.300; Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit and the propounding party has no meet and confer obligations. (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 404.)

Mr. Chung filed no opposition to this motion and it is undisputed he failed to serve responses to Ms. Arellano’s requests for discovery. Accordingly, the motion to compel is GRANTED. Mr. Chung is ordered to serve verified responses, without objection, to Ms. Arellano’s form interrogatories within twenty (20) days of the date of this Order.

Where the court grants a motion to compel responses, sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust. (Code Civ. Proc., § 2030.290, subd. (c), 2031.300, subd. (c).) Ms. Arellano’s request for monetary sanctions is GRANTED and imposed against Mr. Chung and counsel of record, jointly and severally, in the reduced amount of $560.00 for two hours at plaintiff’s counsel’s hourly rate of $250.00 and $60.00 in filing fees, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.

Case Number: BC608370 Hearing Date: October 04, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Sherry Paulson as guardian ad litem for Bennett Paulson,

Plaintiff,

v.

Starbucks coffee company, et al.,

Defendants.

Case No.: BC608370

Hearing Date: October 4, 2019

[TENTATIVE] order RE:

motion to compel depositions

Background

Plaintiffs filed this action against Defendant Starbucks Coffee Company (“Defendant”) based on an accident in which Bennett Paulson was burned by hot tea. Defendant now moves to compel Sherry Paulson and Bennett Paulson to attend depositions. The motion is granted.

LEGAL STANDARD

Per Code of Civil Procedure section 2025.450, if a party to the action fails to appear for deposition after service of a deposition notice and the party has not served a valid objection to that deposition notice, the party that noticed the deposition may move for an order to compel the deponent to attend and testify at deposition. (Code Civ. Proc., §2025.450, subd. (a).)

DISCUSSION

Defendant has the right to take both depositions without leave of the Court. (See Code Civ. Proc., § 2025.210, subd. (a).) On May 26, 2019, Defendant noticed Plaintiffs’ depositions for July 29, 2019. On that date, Plaintiffs failed to appear for deposition. (Declaration of Shayne Piggins, Exhibit A, ¶¶ 3-6.) Accordingly, the motion to compel depositions is granted.

Defendant requests sanctions against Plaintiffs and their counsel-of-record. The Court concludes that sanctions are warranted per Code of Civil Procedure, section 2025.450, subdivision (g)(1), because the failure to appear for depositions absent objections constitutes an abuse of the discovery process. The Court orders Sherry Paulson and Julius Johnson, Esq., jointly and severally, to pay sanctions in the amount of $1,062 based upon four hours of attorney time at a rate of $200 per hour plus a court reporter fee of $202 and a filing fee of $60.

CONCLUSION AND ORDER

Defendant’s motion to compel Plaintiffs’ deposition is granted. Sherry Paulson and Bennett Paulson shall appear for depositions on October 8, 2019 as follows:

Bennett Paulson:

Aptus Court Reporting

1000 Wilshire Boulevard, Suite #1900

Los Angeles, California 90017

October 8, 2019, at 10:00 a.m.

Sherry Paulson

Aptus Court Reporting

1000 Wilshire Boulevard, Suite #1900

Los Angeles, California 90017

October 8, 2019, at 12:00 a.m.

The Court orders Sherry Paulson and Julius Johnson, Esq., jointly and severally, to pay sanctions in the amount of $1,062 within thirty (30) days of notice of this order. Defendant shall provide notice and file proof of such with the Court.

DATED: October 4, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Filed 10/4/19 LAOSD Asbestos Cases CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

LAOSD ASBESTOS CASES.

SHARRON LINSOWE et al.,

Plaintiffs,

Respondents and Cross-Appellants,

v.

HENNESSY INDUSTRIES, INC.,

Defendant, Appellant and Cross-Respondent. B276252

JCCP 4674

(Los Angeles County

Super. Ct. No. BC460121)

APPEAL and cross-appeal from postjudgment orders of the Superior Court of Los Angeles County, Charles Palmer, Judge. Affirmed in part and remanded in part.

Gordon & Rees, James G. Scadden, Don Willenburg and Robert A. Rich, for Defendant, Appellant, and Cross-Respondent Hennessy Industries.

Heubeck Law, John C. Heubeck and Marc A. Lowe, for Plaintiffs, Respondents, and Cross-Appellants Sharron Linsowe and Henry Linsowe, Jr.

INTRODUCTION

As a lengthy wrongful death trial was winding down, counsel met with the trial court to craft a special verdict form. The task took more than a day to accomplish. The jury subsequently deliberated for several days and rendered a special verdict in favor of one plaintiff, awarding substantial economic and noneconomic damages. The trial court, however, signed a judgment in favor of defendant. Postjudgment, the trial court denied plaintiffs’ motion for judgment notwithstanding the verdict (JNOV), but granted their motion for a new trial, finding the verdict inconsistent and against the law. Both sides appeal. After independently examining the record, we agree with the trial court that the special verdict findings are inconsistent and a new trial is required. Accordingly, we affirm the postjudgment orders granting the motion for a new trial and denying the motion for JNOV. We remand for a new trial.

PROCEDURAL BACKGROUND and TRIAL EVIDENCE

Plaintiffs Sharron Linsowe and her sons, Henry Linsowe, Jr., and Eric Linsowe, sued a number of defendants for the wrongful death of their husband and father, Henry Linsowe. The complaint alleged Mr. Linsowe, a career brake mechanic at Downey Ford, died of mesothelioma after years of asbestos exposure as a result of working with a brake shoe grinder manufactured by Ammco Tools, Inc. Hennessy Industries, Inc., sued and identified as defendant Doe 3, was Ammco’s corporate successor. The Linsowes sought general and punitive damages on strict product liability and negligence theories.

Trial evidence established that Mr. Linsowe began his employment with Downey Ford in the 1960’s. Mr. Linsowe specialized in brake repairs and replacements and worked on as many as eight vehicles per day. It was necessary to grind replacement brake shoe linings, which contained asbestos, to fit the brake drums. Mr. Linsowe used the patented Ammco brake shoe grinder for this purpose.

Mr. Linsowe’s work exposed him to asbestos when he removed worn brake drums that captured “wear dust;” when he used the Ammco brake shoe grinder to fit the new brake shoe linings; and when he emptied the Ammco brake shoe grinder collection bag. Ammco’s brake shoe grinder was designed with a vacuum system and canvas bag to collect dust and asbestos particles, but to allow air to recirculate. Mechanics manually emptied the bag. Evidence demonstrated the canvas bag was permeable enough to allow asbestos particles to escape during the brake shoe grinder’s operation. Mechanics were also exposed to asbestos when they shook the bag to release asbestos-containing dust particles caked on the inside.

Trial exhibit 633 was an Ammco patent application from the early 1970’s for an improved brake shoe grinder. There, Ammco explained there was a “serious problem” with the design of the brake shoe grinder then in use because “the bad [sic] becomes filled with dust and/or the pores thereof become clogged with the dust particles . . . [which] are blown into the atmosphere. In fact, because of the inherent danger to the persons using this type of equipment, there are many localities which have banned the use of brake shoe grinding machinery which incorporates the prior art type of dust collector.” Also in evidence was a brochure Ammco distributed for another product that warned, “Brake material and dust may contain asbestos fibers” and the “machine [was] not to be used with asbestos containing products[, which] . . . can cause cancer, lung disease, and other serious illnesses, including mesothelioma.”

Hennessy did not rebut the Linsowes’ evidence that Mr. Linsowe used the Ammco patented brake shoe grinder at Downey Ford. Rather, Hennessy urged that Mr. Linsowe was not diagnosed with, and did not die from, mesothelioma. Hennessy also argued that if the jury believed Mr. Linsowe died from mesothelioma, other nonparty entities, including Downey Ford and the manufacturers and suppliers of asbestos-containing brakes, were responsible for the Linsowes’ losses.

The evidentiary portion of the trial exceeded the time estimate. At the five-week mark, as the parties neared the completion of testimony, the trial court and counsel cobbled together a 43-question special verdict form. The special verdict form included questions on three strict product liability theories (risk-benefit and consumer expectation tests and failure to warn), three negligence theories (design or manufacture, failure to warn, and failure to recall or retrofit), punitive damage prerequisites, decedent’s comparative fault, apportionment of responsibility among various nonparties, and damages.

During deliberations, the jury asked two questions concerning the special verdict form. The jurors did not question the directions on the special verdict form itself.

The jury staunchly followed the instructions on the form, answered 30 questions, found the brake shoe grinder’s design was “a substantial factor in causing [Mr. Linsowe’s] harm,” and calculated plaintiff Sharron Linsowe’s economic and noneconomic damages as $532,685.37. The jury concluded the use of the brake shoe grinder had “potential risks that were known or knowable,” but also found Hennessy neither knew nor reasonably should “have known that [the product] was dangerous or was likely to be dangerous when used in a reasonably foreseeable manner,” nor did Hennessy become aware that the product “was dangerous or likely to be dangerous when used in a reasonably foreseeable manner.” The special verdict concluded the grinder did not “fail to perform as safely as an ordinary consumer would have expected when used in an intended or reasonably foreseeable way” and the risks in the design of the brake shoe grinder did not outweigh the design’s benefits.

The special verdict findings on all the negligence theories and the punitive damages questions were in Hennessy’s favor. The jury determined Mr. Linsowe and a number of nonparties were not negligent; but that Downey Ford was, although its negligence was not a substantial factor in contributing to his death. The jury nonetheless apportioned fault between Hennessy and Downey Ford at 60 percent/40 percent.

Polling of the jurors extended into what normally would be the noon recess. The trial court immediately discharged the jury, without first asking counsel if there was a reason to keep them; the attorneys did not volunteer any.

The trial court began the afternoon session by announcing, “In light of the verdict, the defendant will prepare the judgment.” After a few housekeeping details, the Linsowes’ counsel stated “for the record [that he] would take exception to the conclusions by the Court that it’s a defense verdict. But I guess we can argue that point later.” Counsel added, “it’s an odd combination of things in the special verdict form . . . . There’s a causation . . . but . . . it’s . . . an odd collection of findings, which we’ll bring up at another date.”

Hennessy’s counsel prepared a proposed judgment. The preamble recited that the “sworn . . . and duly instructed [jury] . . . returned into court with its special verdict . . . [and] [u]pon such verdict, judgment is entered.”

Although the jury determined the design of the brake shoe grinding machine was a “substantial factor” in causing Mr. Linsowe’s illness and awarded Sharron Linsowe $532,685.37 in damages, for which Hennessey was 60 percent responsible, the proposed judgment was in favor of Hennessy, with all plaintiffs to take nothing.

The Linsowes filed written objections to the proposed judgment, arguing the jury’s special verdict was “against the law because it contains inconsistent findings as well as findings contrary to (and sufficiently supported by) the evidence.” Contending the jury’s special verdict was “‘hopelessly ambiguous,’” they sought a hearing before entry of the proposed judgment.

In a written response, Hennessy urged the trial court to enter the proposed judgment as submitted, arguing the Linsowes’ objections were premature and “substantively meritless.” Hennessy dismissed the Linsowes’ claim of ambiguity and asserted the jury found in its favor “on the key questions of liability [and] [t]he proposed judgment reflects the verdict that was reached.”

There was no hearing on the Linsowes’ objections. By minute order, the trial court overruled them “without prejudice” and signed the proposed judgment without any changes.

The Linsowes filed timely, alternative motions for a new trial and for a JNOV. The latter motion sought a partial JNOV on the issue of liability based on insufficiency of the evidence to support a judgment in Hennessey’s favor under the risk/benefit and consumer expectation theories. Although the Linsowes did not make a motion for directed verdict at the close of the evidence, they also argued the trial court should have “direct[ed] the jury to answer question No. 19 in the affirmative” [“‘After the brake shoe grinder was sold, did defendant become aware that the Ammco brake shoe grinder was dangerous or likely to be dangerous when used in a reasonably foreseeable manner?’”].” Noting the jury’s inconsistency in the Downey Ford finding, the Linsowes asked for a partial JNOV and a reallocation of the percentage of fault attributed to Downey Ford so that Hennessey would become 100 percent liable.

The Linsowes’ notice of intention to move for a new trial listed all statutory grounds. (Code Civ. Proc., § 657.) In their memorandum of points and authorities, they argued the damages were inadequate, the evidence was insufficient to justify a verdict in Hennessey’s favor, and the verdicts were inconsistent and against the law. (§ 657(5), (6), (7).)

Hennessy opposed both motions. Addressing the risk-benefit test, Hennessy argued it was not required to prove the benefit of the particular design of the brake shoe grinder outweighed the risk of asbestos exposure; rather, it only needed to present evidence that the grinders “improve[] the safety of automotive brakes−surely a benefit to be considered in any reasonable risk-benefit analysis.”

Hennessy also sought to admit identical declarations from two jurors who averred under penalty of perjury, that, inter alia, based on their posttrial conversations with one of Hennessey’s trial attorneys, they learned “the [Linsowes] are claiming that because the jury answered the damages questions . . . and apportionment of responsibility questions . . ., that this is inconsistent with the jury’s finding of no liability. This is not true. During the deliberations, I and other jurors stated that we were perplexed and confused by the instructions on the verdict form [concerning damages and] discussed . . . that we would answer [the damages questions] hypothetically, as if we had found liability and fault against Hennessy, even though we had not.”

After two rounds of supplemental briefing and two hearings, the trial court sustained the Linsowes’ objections to the declarations, denied the motion for JNOV, and ordered a new trial on the ground that the jury returned an inconsistent verdict and the judgment was against the law. The trial court specifically found substantial evidence supported the jury’s verdict. The trial court timely prepared, signed and filed a written specification of reasons for its decision. (Code Civ. Proc., § 657.)

Hennessy appealed from the order granting a new trial. The Linsowes appealed from the denial of their motion for JNOV and filed a protective cross-appeal to challenge the defense judgment. (Code Civ Proc., § 904.1, subd. (a)(4).)

DISCUSSION

The Linsowes, although they contend inconsistencies in the verdict are irreconcilable, ask this court to engage in a three-step analysis: First, find that “certain” special verdict findings on the issue of liability were not supported by substantial evidence; second, order the entry of a partial JNOV in their favor as to liability; and third, remand for “a partial new trial on compensatory damages, punitive damages and the apportionment of fault.” Alternatively, they ask that we affirm the order for a new trial.

Hennessy insists the special verdict is entirely consistent and asserts “the jury clearly, explicitly and unequivocally found for [it] on all five theories of recovery.” Hennessy asks this court to reinstate “the jury’s verdict.” Underlying this request, however, is an assumption that this court will ignore two significant elements of the jury’s verdict−the contradictory $532,685.37 damages award to Sharron Linsowe and the proximate cause finding. Viewed in context, Hennessy seeks a defense judgment notwithstanding a plaintiff’s verdict for damages.

The parties deftly point to findings in the special verdict that support their respective positions. And that is precisely the problem. By asking this court to accept some of the jury’s findings, but to reject others, both sides

seek to have this court “‘choose between inconsistent answers.’” (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092 (Zagami).) That we cannot do.

Resolution of the parties’ appeals depends on whether the special verdict is inconsistent. “The standard of review for inconsistency in a special verdict is de novo.” (Trejo v. Johnson & Johnson (2017) 13 Cal.App.5th 110, 124, fn. omitted (Trejo).)

I. Effect of Order Granting a New Trial

Before we examine the special verdict for inconsistencies, a procedural comment is in order. The posttrial proceedings in this matter were somewhat unconventional. Section 624 defines a special verdict as one “by which the jury find the facts only, leaving the judgment to the [c]ourt. The special verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented as that nothing shall remain to the Court but to draw from them conclusions of law.” A jury that enters a special verdict in favor of a plaintiff suing for damages must also determine the amount of damages. (§ 626.)

The words “verdict” and “judgment” are not synonymous or interchangeable. “An award or verdict without a judgment is merely symbolic.” (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1331-1332.) Instead, the law contemplates the entry of a judgment that is in accord with the special verdict. (§ 625.) Before a judgment on a special verdict may be entered, the “jury’s special verdict findings must be internally consistent and logical.” (City of San Diego v. D.R. Horton San Diego Holding Co. (2005) 126 Cal.App.4th 668, 681 (D.R. Horton).)

A special verdict that requires the trial court to accept some of the jury’s findings, but reject others because they are contradictory, is irreconcilably inconsistent; and no judgment on that verdict should be entered. Hennessy was “no more entitled than [the Linsowes] to have the favorable [aspects of the] verdict credited and the unfavorable one[s] disregarded.” (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1346 (Shaw).)

Under any standard, a finding that the brake shoe grinder’s design was a substantial factor in causing harm to Mr. Linsowe, coupled with a $532,685.37 damages award, constitutes a verdict in Sharron Linsowe’s favor. Accordingly, at that point, the trial court had two options: (1) Enter judgment in favor of Sharron Linsowe and then entertain motions by the other parties or (2) forgo entry of a judgment in Sharron Linsowe’s favor and entertain various motions, e.g., for a new trial on the ground that, based on inconsistent answers, the special verdict, was against the law (§ 657, subd. (a)(6)). Not included in the available options was what occurred here−the entry of a defense judgment unaccompanied by a motion (either by a party or the court) for JNOV. (Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 179, 181, fn. 7.)

At our invitation, the parties filed supplemental briefs to address the entry of a defense judgment and its effect, if any, on subsequent posttrial proceedings. Hennessy maintains the jury did not find any liability “and therefore, did not ‘award’ damages to anyone.” The Linsowes assert the trial court’s “judgment is a nullification of the jury’s findings, so in substance it is a JNOV.”

Although we conclude the defense judgment amounted to a JNOV in Hennessy’s favor, entry of that judgment does not impact our analysis. When the trial court ordered a new trial, the judgment was vacated. (Pacific Corporate Group Holdings, LLC v. Keck (2014) 232 Cal.App.4th 294, 302.) Because we affirm the trial court’s order for a new trial, the underlying defense judgment is not revived.

II. Special Verdict

A. Overview

Special verdicts are not required in civil cases. Trial courts have discretion to refuse litigants’ requests for a special verdict; and such refusal “is rarely ground for reversal on appeal.’ (Wegner, et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2015) ¶ 17:14, p. 17-6).” (Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1179.)

Appellate courts have heralded and reviled special verdicts. (Contrast, McCloud v. Roy Riegels Chemicals (1971) 20 Cal.App.3d 928, 937 with Ryan v. Crown Castle NG Networks Inc. (2016) 6 Cal.App.5th 775, 795 (Crown Castle).) As one Court of Appeal astutely observed, “it is easier to tell after the fact, rather than before, whether the special verdict is helpful in disclosing the jury conclusions leading to the end result.” (All-West Design, Inc. v. Boozer (1986) 183 Cal.App.3d 1212, 1221.) “Whatever the potential virtues of special verdicts when wisely employed, they also present ‘recognized pitfalls.’ [Citation.]” (Crown Castle, at p. 795.) Pitfalls include the “possibility of a defective or incomplete special verdict, or possibly no verdict at all.” (Falls v. Superior Court (1987) 194 Cal.App.3d 851, 855.) Moreover, a judgment entered on a special verdict is more likely to be reversed. (Crown Castle, at p. 795; see also at p. 791, fn. 14 [recognizing that a “logical inconsistency” in the special verdict “probably rendered the verdict ‘against the law’”].)

Apart from the specter of reversal, “special verdicts present challenges for trial courts when they are drafted by adversaries in litigation. They present an almost irresistible opportunity not only to guide the jury’s determination of dispositive issues but to influence it, subliminally or otherwise, to decide the case a particular way. The court [may attempt] to obviate this concern by requiring counsel to jointly prepare the verdict form. But even if this provides some check against overreaching, it leaves open other hazards.” (Crown Castle, supra, 6 Cal.App.5th at p. 796.) Crown Castle’s concluding admonition would have been well-heeded here: “All litigation is ultimately a matter of striking a reasonable compromise among competing interests, particularly the interest in resolving cases fairly and that of utilizing public and private resources economically. A special verdict is unlikely to serve either of these objectives unless it is drawn with considerable care. . . . [W]e hope [this reversal] may serve as an object lesson for bench and bar, the moral of which is to avoid [a special verdict] unless both court and counsel are prepared to invest the time and attention necessary to ensure that it helps rather than hinders the just and efficient resolution of the case.” (Ibid., fn. omitted.)

B. Governing Principles − Inconsistent Special Verdict

“A special verdict is inconsistent if there is no possibility of reconciling its findings with each other.” (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 357.) “‘The inconsistent verdict rule is based upon the fundamental proposition that a factfinder may not make inconsistent determinations of fact based on the same evidence.’” (D.R. Horton, supra, 126 Cal.App.4th at p. 682.) Where findings on material issues conflict, a special verdict cannot stand. (Ibid.) “‘An inconsistent verdict may arise from an inconsistency between or among answers within a special verdict [citation] or irreconcilable findings. . . . [Under those circumstances,] all the questions are equally against the law.’” (Trejo, supra, 13 Cal.App.5th at p. 124.)

The law pertinent to our analysis has been summarized as follows: If the jury has been discharged, but the “verdict is not ‘hopelessly ambiguous,’ the [trial] court may “‘interpret the verdict from its language considered in connection with the pleadings, evidence and instructions.’”” (Zagami, supra, 160 Cal.App.4th at p. 1092; see also Little v. Amber Hotel Co. (2011) 202 Cal.App.4th 280, 300.) On the other hand, if “the verdict is ‘hopelessly ambiguous,’ . . . a court reviewing a special verdict does not infer findings in favor of the prevailing party [citation], and there is no presumption in favor of upholding a special verdict when the inconsistency is between two questions in a special verdict. [Citation.] ‘Where there is an inconsistency between or among answers within a special verdict, both or all the questions are equally against the law.’ [Citations.] ‘The appellate court is not permitted to choose between inconsistent answers.’” (Zagami, at p. 1092.)

C. This Special Verdict was Irreconcilably Inconsistent

As an aside, we note there is a distinction between a defective special verdict and a defective special verdict form. A special verdict may be inconsistent, i.e., defective, even though the verdict form itself is not.

The special verdict form in this case is defective in a number of respects. In an effort to reduce the length of the special verdict form and eliminate some redundancy, trial counsel took shortcuts that set the stage for inconsistent answers. (Crown Castle, supra, 6 Cal.App.5th at p. 796.) But the parties do not directly challenge the special verdict form. Consequently, waiver or forfeiture is not an issue. (Zagami, supra, 160 Cal.App.4th 1083, 1093, fn. 6 [“inconsistent jury findings in a special verdict are not subject to waiver by a party[, but] if the form of a verdict is defective, the complaining party must object or risk waiver on appeal of any such defect”].)

Additionally, Hennessy’s contention in the trial court that mistakes in the special verdict form “can be laid at [the Linsowes’] feet” is belied by the parties’ on-the-record, last-minute, and generally unsatisfactory discussions to create the special verdict form. Both sides share responsibility for defects in the special verdict form. (Lambert v. General Motors (1998) 67 Cal.App.4th 1179, 1183.)

We begin our independent review of the special verdict with the award of $532,685.37 in economic and noneconomic damages to Sharron Linsowe. The damages award is entirely consistent with the jury’s findings in question 2 (“the Ammco brake shoe grinder’s design [was] a substantial factor in causing harm to decedent”) and question 7 (“use of the Ammco brake shoe grinder [had] potential risks that were known or knowable . . . “).

The damages award is also consistent with the “no” answer to question 4 (“the risk of the Ammco’s brake shoe grinder’s design [did not] outweigh the benefits of the design”), if the “no” answer means the jury determined the risks and benefits of the brake shoe grinder’s design balanced each other out.

(See fn. 3.) But the damages award is inconsistent with this theory of liability if the jury concluded the benefits of the design outweighed the design’s risk. Damages are also irreconcilable with the finding in question 3 concerning the consumer expectation test for design defect liability (“the Ammco brake shoe grinder [did not] fail to perform as safely as an ordinary consumer would have expected when used in an intended or reasonably foreseeable manner”). Question 7’s finding that the potential risks were knowable is inconsistent with the finding in question 14 (Hennessy neither knew nor reasonably should “have known that the Ammco brake shoe grinder was dangerous or was likely to be dangerous when used in a reasonably foreseeable manner”).

There is no inconsistency between the findings in questions 36 and 37 that Downey Ford was negligent, but its negligence was not a substantial factor in causing Mr. Linsowe’s harm. The finding in question 38 that Downey Ford was 40 percent responsible for damages, however, is irreconcilable with question 37.

Seeking to avoid a finding of hopeless ambiguity, Hennessy cites and selectively quotes from several decisions to argue the trial court erroneously failed to apply the “rule of reconciliation” to resolve any “apparent inconsistency”: “If it is reasonable to draw conclusions that would explain the purported inconsistency, the special verdict is upheld.” Hennessy’s argument misstates the law. As this court recently held, the rule of reconciliation “applies when a special finding is alleged to be inconsistent with a general verdict, not when special verdict findings are inconsistent with other special verdict findings−a fact made obvious in portions of the quoted sentence [Hennessy] omits. The rule that ‘a verdict should not be modified “if there is any ‘possibility of reconciliation under any possible application of the evidence and instructions’” . . . [¶] applies only to inconsistencies between general and special verdicts, and inconsistencies between special findings rendered in support of a general verdict.’ (Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 302-303, [96 Cal.Rptr.2d 605].) ‘With a special verdict, unlike a general verdict or a general verdict with special findings, a reviewing court will not infer findings to support the verdict.’” (Trejo, supra, 13 Cal.App.5th at p. 124, fn. 5; D.R. Horton, supra, 126 Cal.App.4th at p. 679.)

Nor did the trial court err in sustaining the Linsowes’ objections to the two juror declarations proffered by Hennessy. Under certain circumstances, a trial court may consider juror declarations to establish the invalidity of a jury verdict, e.g., to demonstrate juror misconduct. (Evid. Code, § 1150; Guernsey v. City of Salinas (2018) 30 Cal.App.5th 269, 284.) Declarations that reflect jurors’ individual or collective reasons for a particular vote or their mental processes are not admissible, however. (Id. at p. 283.) “The ‘mental processes’ prohibition applies to juror affidavits conveying jurors’ statements about their understanding of certain words in instructions.” (Ibid.; Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1124-1125 [“Juror declarations are admissible to the extent that they describe overt acts constituting jury misconduct, but they are inadmissible to the extent that they describe the effect of any event on a juror’s subjective reasoning process”].) The declarations here concerned only mental processes, e.g., their being “perplexed and confused” and ultimately deciding to answer the damages questions “hypothetically.”

In any event, it also must be remembered that Hennessy offered the declarations after judgment had been entered in its favor, notwithstanding the finding of liability and the verdict of damages. (See Part IV, post.) As the declarations concerned apportionment of liability and damages only, Hennessy in effect was attempting to impeach the portion of the jury’s verdict that the trial court already rejected.

Based on the foregoing, we conclude irreconcilable inconsistencies existed between and among the special verdict’s answers.

III. Order Granting New Trial

An inconsistent verdict is against the law and provides a ground for granting a new trial. (Trejo, supra, 13 Cal.App.5th at p. 124; Code Civ Proc., § 657(6).) Having concluded after an independent review that the special verdict is inconsistent, we agree with the trial court that the proper remedy was a new trial. (Shaw, supra, 83 Cal.App.4th at p. 1344.) An order granting a new trial will be affirmed on appeal “unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial court’s] theory.” (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412.) Hennessy has not done so.

IV. Order Denying Motion for JNOV

“An order denying a JNOV motion is appealable even if the trial court granted a new trial motion.” (Hirst v. City of Oceanside (2015) 236 Cal.App.4th 774, 781, fn. 3; § 629, subd. (d).) This rule does not mean, however, that an appellate court affirming an order granting a new trial on the ground the special verdict was inconsistent and against the law will review the order denying a JNOV on the merits. Such is the case here.

An appellate court’s frame of reference for review of the denial of a motion for a JNOV is the special verdict itself. We examine the trial evidence in the light most favorable to the prevailing party to determine whether substantial evidence supports the jury’s verdict. (Ajaxo Inc. v. E*Trade Group, Inc. (2005) 135 Cal.App.4th 21, 49.) Where the special verdict is inconsistent and against the law, there is no way to tell which party prevailed and which inconsistent answers should be accepted. The inconsistencies in the special verdict that require a new trial preclude this court from ordering a JNOV on the issue of liability. The Linsowes are “no more entitled than [Hennessy] to have the favorable [aspects of the] verdict credited and the unfavorable one[s] disregarded.” (Shaw, supra, 83 Cal.App.4th at p. 1346.)

DISPOSITION

The orders granting a new trial and denying a partial JNOV are affirmed. The matter is remanded to the trial court for a new trial. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

DUNNING, J. *

We concur:

WILLHITE, ACTING P.J.

COLLINS, J.

*Retired Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Filed 10/4/19 Marriage of Warren and Langerud CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of JESS WARREN and TINA MAE LANGERUD.

JESS WARREN LANGERUD,

Appellant,

v.

TINA MAE RICE,

Respondent,

ORANGE COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES,

Intervener and Respondent.

G056385

(Super. Ct. No. 10D000481)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Paul T. Minerich, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Motion to Augment. Granted.

Jess Warren Langerud, in pro. per., for Appellant.

Tina Mae Rice, in pro. per., for Respondent.

No appearance for Intervener and Respondent.

* * *

INTRODUCTION

Jess Warren Langerud appeals from the trial court’s order reducing his monthly child support payment to his former spouse, Tina Mae Rice, from $555 to $451. Langerud contends the trial court should have further reduced or entirely eliminated his child support obligation regarding his and Rice’s two minor daughters (the children).

We affirm. As acknowledged by Langerud in his appellate briefs, the amount of modified child support ordered by the trial court was calculated based on the statewide uniform guideline. The court did not abuse its discretion by finding no special circumstance existed that would justify a downward departure from the guideline. Langerud failed to show the court erred in calculating his modified child support obligation by crediting Rice with a deduction for extraordinary health expenses. Sufficient evidence supported the court’s determination that $125 be included in the monthly modified child support amount as Langerud’s contribution to Rice’s travel expenses incurred when she travels from Texas to California to visit the children pursuant to the court’s prior visitation order.

BACKGROUND

In January 2010, Langerud filed a petition for the dissolution of his marriage to Rice. Judgment was entered in June 2011, a copy of which is not included in our record. Starting in July 2013, Langerud and Rice shared equal parenting time with the children on a week on, week off, basis.

In January 2015, Rice requested that the court allow her and the children to relocate to Texas or North Carolina. Rice wanted to move because she believed such a move would benefit the children, ease her financial burdens, and provide opportunities to further her career in psychology. The court found that the children were grounded in Orange County, where their closest family (Langerud’s family) lived. The court also found a high degree of conflict in the relationship between Langerud and Rice.

In an order filed in August 2015 (the August 2015 order), the trial court denied Rice’s move away request; Langerud was awarded legal custody and primary physical custody of the children. The court awarded Rice the following custodial time: “a. Summer Recess from School: Commencing the Monday following the end of school recess for summer, returning to [Langerud] two weeks prior to the commencement of school. [¶] b. School Spring Break: [Rice] shall have minor children for the one week spring break in odd-numbered years. [Langerud] shall have minor children for the one week spring break in even-numbered years. [¶] c. School Thanksgiving Break: [Rice] shall have minor children for the one week Thanksgiving School Break in even-numbered years. [Langerud] shall have minor children for the one week spring break in odd-numbered years. [¶] d. Winter School Vacation: [Rice] shall have minor children during the first half of the winter break in odd-numbered years and the second half in even-numbered years. The winter break is defined as from the day following recess up to the day before school is to resume. The first part is one-half of the total of the entire winter break and the second half is the balance from the midpoint until the day before school resumes.”

As for travel expenses, given Rice’s intended relocation out of state, the trial court ordered: “a. The receiving parent shall be responsible for making travel arrangements and for all costs associated with travel for minor children. [¶] b. The parent whose responsibility [it] is to provide travel arrangements for minor children shall provide an itinerary to the other parent of said travel arrangements, including mode of travel, flight/train number(s), dates and times of travel no less than ten (10) days in advance of travel.”

In November 2016, the trial court held a hearing on, inter alia, Rice’s request for an order modifying custody and visitation and Langerud’s requests for a modification of child support and a change in visitation. No copies of any of these requests are contained in our record. In an order dated February 8, 2017 (the February 2017 order), the court denied Rice’s request for a change in custody on the ground there had been no material change in circumstances, but the court granted Rice two additional visits each year with the children. The court’s order specified that if Rice travelled to California between February 1 of the year and the start of the summer, she would be entitled to one 48-hour visit (two days), and if she travelled to California between September 1 and November 1, she would have the right to another 48-hour visit. As to child support, the court stated that, effective July 15, 2016, Langerud would no longer be required to pay Rice a separate percentage of his bonus income, and Langerud would pay Rice $555 monthly child support.

In December 2017, Langerud filed a petition for relief/adjustment of his $555 monthly child support obligation. A copy of Langerud’s petition is not included in our record. What occurred at the two-day hearing on Langerud’s petition is summarized in the settled statement prepared by Langerud and certified by the trial court under California Rules of Court, rule 8.137, as follows.

During the first day of the hearing in February 2018, the trial court found that Rice had the children in her care 21% of the time (a percentage that was three percentage points higher than what Langerud argued Rice had and seven percentage points less than what Rice described). At the hearing, the issue was raised that, under the August 2015 order, Rice and Langerud each pay the costs associated with flying the children to their respective homes for long visits but there were no such provisions for Rice’s two 48-hour visits in California; Rice asked that those travel costs be shared. Rice described her estimated expenses for her travel to California but did not provide receipts or other evidence.

Rice also informed the trial court that in late 2017, she was diagnosed with a “brain tumor and possibly MS” and that she had already incurred significant health care costs and expected she would continue to incur such costs as she would need further treatment. Rice stated she was still working on a treatment plan with her doctors but that her health insurance required her to first meet her $7,350 deductible before her expenses would be covered. She stated she also needed to pay for medication and other tests.

The trial court initially deemed Rice’s health expenses to be extraordinary and calculated her monthly health expenses to be $612. Langerud asked the court for a continuance to respond to Rice’s claimed health expenses and asked the court for an order requiring Rice to provide corroborating evidence. The court granted Langerud’s request and continued the hearing to a date in April. The court further ordered that discovery be conducted that would result in Rice producing documentation of the medical expenses she would likely incur, including proof of her annual health insurance deductible, as well as proof of travel and other expenses related to her 48-hour visits in California with the children (the February 2018 order).

When the hearing on the petition resumed in April 2018, Langerud’s counsel confirmed having received “the discovery documents” from Rice. According to Langerud’s settled statement, Langerud’s counsel “began by providing the court with an additional accounting of the timeshare between [Langerud] and [Rice]. This calculation again showed [Langerud] having full physical and legal custody and [Rice] having 18% visitation. [Langerud’s counsel] also said that in this case, even a small change in percent timeshare can have a dramatic effect on the resulting guideline child support. During this discussion, [Rice] began speaking out of turn and became quite emotional. Claiming additional time outside of the orders and that the court had already determined her visitation to be 21%. . . . [T]he court determined it would retain the 21% visitation it had previously found.”

The trial court also found Langerud’s taxable income to be $18,123 per month and nontaxable income to be $211 per month. The court had previously found Rice’s monthly income to be $3,750.

The trial court next addressed Rice’s medical expenses as described in the settled statement: “In the current hearing [Rice] provided evidence of her medical expenses and the deductible portion of her insurance. [Langerud]’s counsel stated the documents provided by [Rice] did not substantiate her claims. [Langerud’s counsel] argued there were really only two expensive MRI test[s] which had been done about a month apart. The medication expenses seemed ordinary as did the few clinic co-pays [Rice] had provided. [Langerud’s counsel] said instead the court should include [Rice]’s anticipated expenses in the tax deduction portion of the Dissomaster as a medical expense.” The settled statement recorded that Rice “testified that she is suffering from a brain tumor and multiple sclerosis and she provided testimony of her medical expenses and the deductible portion of her insurance.” The court “amortized the deductible portion of her medical insurance coverage over the course of one-year which came to $612/month. The court determined that to be an extraordinary expense for [Rice] per Family Code [section] 4071[, subdivision (a)] given her income and the expense she incurs in exercising visitation with her children from [Rice]’s residence in Texas.”

The final issue addressed at the hearing that is pertinent to this appeal is the issue of Rice’s claimed travel expenses to facilitate her twice annual 48-hour visits with the children in California. According to the settled statement, Rice “provided testimony as to what her travel expenses were.” Langerud’s attorney challenged “the receipts” Rice had provided as “excessive.” Rice stated she had “longer visits” than were described in the order and difficulties in finding appropriate accommodations. The court stated it would calculate expenses as follows: $350 for airfare, four nights in or at a hotel at a nightly rate of $150, $200 for a rental car, and $350 for “food/gas/miscellaneous expenses,” for expenses in the total amount of $1,500 per visit for two visits a year; the annual total amount of expenses for these visits the court stated equated to $250 per month. The court allocated those expenses “equally between the parties as a discretionary child support add-on per Family Code [section] 4062[, subdivision (b)(2)]. Therefore $125 (one-half of the total) was added to the resulting [Langerud]’s child support payment.”

The court thereafter issued an order (the April 2018 order) stating that, based on the guideline, it would reduce Langerud’s total monthly child support obligation (which included Rice’s extraordinary health expenses and her travel expenses for California visits) to $451.

Langerud appealed from the April 2018 order.

MOTION TO AUGMENT

After the record on appeal was filed, Langerud filed a motion to augment with the August 2015 order denying Rice’s move away request and setting the parties’ visitation schedule after Rice moved to Texas; this court granted the unopposed motion.

Langerud has since filed a second motion to augment the record on appeal with Rice’s income and expense declarations. We have received no opposition to the motion. As the subject income and expense declarations attached to the motion were filed in the trial court, they are appropriate matters for augmentation. (Cal. Rules of Court, rule 8.155(a)(1)(A).) We therefore grant Langerud’s motion. The documents attached to the motion to augment, filed April 11, 2019, are deemed part of the record on appeal.

DISCUSSION

I.

Standard of Review

We review orders granting or denying requests for modification of child support under the abuse of discretion standard. (Plumas County Dept. of Child Support Services v. Rodriquez (2008) 161 Cal.App.4th 1021, 1026.) The trial court’s exercise of its discretion must be “‘informed and considered,’” the court may not “‘ignore or contravene the purposes of the law’” (ibid.), and the court’s discretion is granted and limited by the statutes and rules regulating child support (In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1234). We review the trial court’s factual findings for substantial evidence and consider the evidence in the light most favorable to the party who prevailed in the trial court. (Plumas County Dept. of Child Support Services v. Rodriquez, supra, at p. 1026.)

II.

The Trial Court’s Modified Child Support Order Was Based on the Presumptively Correct Uniform Guideline.

“With certain exceptions not applicable here, the trial court may modify or terminate a child support order at any time the court deems it necessary. [Citation.] The statutory procedures for modification of a child support order ‘require a party to introduce admissible evidence of changed circumstances as a necessary predicate for modification.’ [Citation.] ‘The burden of proof to establish that changed circumstances warrant a downward adjustment in child support rests with the supporting spouse.’” (In re Marriage of Williams, supra, 150 Cal.App.4th at p. 1234, fn. omitted.)

The amount of child support established by the formula of the statewide uniform guideline set forth in Family Code section 4055 is presumed to be the correct amount of child support. (§ 4057, subd. (a).) The presumption affects the burden of proof and may be rebutted with admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case because one or more of five factors is found to be applicable by a preponderance of the evidence. (§ 4057, subd. (b).) Those five factors are: “(1) The parties have stipulated to a different amount of child support under subdivision (a) of Section 4065. [¶] (2) The sale of the family residence is deferred pursuant to Chapter 8 (commencing with Section 3800) of Part 1 and the rental value of the family residence where the children reside exceeds the mortgage payments, homeowner’s insurance, and property taxes. . . . [¶] (3) The parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the children. [¶] (4) A party is not contributing to the needs of the children at a level commensurate with that party’s custodial time. [¶] (5) Application of the formula would be unjust or inappropriate due to special circumstances in the particular case.” (§ 4057, subd. (b).)

Langerud argues the trial court should not have modified child support based on the official guideline, but instead should have made a downward departure from the guideline because Langerud is “both the High-Earner and the Custodial parent with primary physical and legal custody of the children.” Langerud’s arguments are without merit.

For purposes of section 4057, subdivision (b)(3), “‘[t]he legislature did not define the term extraordinarily high income, leaving that to the discretion of the trial court.’ In exercising that discretion, however, the trial court must at least approximate the point at which the guideline support obligation due from a high earner would exceed the children’s needs.” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 297; see In re Marriage of Macilwaine (2018) 26 Cal.App.5th 514, 539, fn. 31.)

Langerud has failed to cite or analyze any legal authority showing that his monthly taxable income of $18,123 plus nontaxable monthly income of $211 constitutes “an extraordinarily high income” within the meaning of section 4057, subdivision (b) or that his child support obligation as modified exceeds the children’s needs so as to warrant a downward deviation from guideline support. In any event, any such argument is inconsistent with Langerud’s argument that paying Rice child support takes needed resources away from him to use to care for the children when they are in his care. He argues the modified child support obligation unfairly “transfer[s] financial resources away from the custodial parent to the non-custodial parent.” He further argues in his appellate opening brief his child support obligation “has the additional effect of eroding [Langerud]’s available resources to meet the needs of the children he is solely supporting while multiplying the level of expense he is [e]ncumbered with. While he does currently earn more than [Rice], there is no evidence to support that he is living opulently or more than an upper middle-class lifestyle. Children are indeed expensive to raise and he (and his new spouse) are endeavoring to do so for their three teenage daughters, with no support of any kind from [Rice].” Langerud has failed to show the trial court abused its discretion by not finding the extraordinarily high earner exception of section 4057, subdivision (b)(3) applicable.

Langerud relies on section 4057, subdivision (b)(4) to challenge his child support obligation on the ground Rice is not contributing to the children’s needs at a level commensurate with her custodial time. The trial court found that Rice had custody of the children 21% of the time and entered that amount into the DissoMaster to calculate guideline support. Although Langerud argued in the trial court that Rice had custody less than 20% of the time, he does not challenge that finding on appeal and does not argue that the children are in Rice’s physical care less than the visitation times scheduled in the August 2015 and the February 2018 orders. Therefore, the trial court did not abuse its discretion by concluding the modified child support order, which was calculated in part by taking into account Rice’s time caring for the children, did not run afoul of subdivision (b)(4) of section 4057.

Langerud also argues the modified child support order’s adherence to the guideline was improper because the order was unjust or inappropriate due to the existence of special circumstances within the meaning of section 4057, subdivision (b)(5). That subdivision provides that such special circumstances may include, but are not limited to: “(A) Cases in which the parents have different time-sharing arrangements for different children. [¶] (B) Cases in which both parents have substantially equal time-sharing of the children and one parent has a much lower or higher percentage of income used for housing than the other parent. [¶] (C) Cases in which the children have special medical or other needs that could require child support that would be greater than the formula amount. [¶] (D) Cases in which a child is found to have more than two parents.”

Langerud does not argue that any of the special circumstances set forth in section 4057, subdivision (b)(5) apply here. Instead, he argues the modified child support order is unjust because he believes Rice has spent too much time and incurred too much debt pursuing advanced degrees instead of earning a greater amount of income. Even if Rice’s choice to pursue advanced degrees at the expense of delaying earning a higher income constituted a special circumstance justifying deviation from guideline support under section 4057, subdivision (b)(5), the record does not support Langerud’s argument. The record does not show Langerud challenged Rice’s claimed income at the hearings on his petition to modify child support and he cites no evidence showing that the amount of income attributed to Rice is improper. Langerud’s settled statement does not address the calculation of Rice’s income. (Cal. Rules of Court, rule 8.137(d)(1) [“the appeal is then limited to the points identified in the [settled] statement unless the reviewing court determines that the record permits the full consideration of another point”].) We find no error.

III.

Extraordinary Financial Hardship Due to Medical Expenses

“Family Code section 4070 recognizes that if a parent ‘is experiencing extreme financial hardship due to justifiable expenses’ resulting from specified circumstances, the court may modify child support by allowing a deduction from the income of the party experiencing the hardship. [Citation.] The circumstances evidencing hardship are set out in section 4071.” (In re Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1381-1382, fn. omitted.) Section 4071, subdivision (a) identifies circumstances evidencing hardship to include “Extraordinary health expenses for which the parent is financially responsible, and uninsured catastrophic losses.”

Langerud argues there is no evidence to support the finding that Rice was experiencing extreme financial hardship. In his opening brief, Langerud argues: “While [Rice] did describe her commercial medical insurance to have a high initial cost share (50% coverage until the $7,000 deductible was reached), there was no evidence provided that showed she experienced any significant hardship. [Rice] did not describe receiving collection notices, being late on any payments (rent, car, or credit cards) or other financial impacts as a direct result of her new diagnosis.”

“Any evidence or portion of a proceeding not included [in the settled statement] will be presumed to support the judgment or order appealed from.” (Cal. Rules of Court, rule 8.137(d)(2)(A).) The settled statement shows that in response to the trial court’s order that discovery be conducted, Rice produced “discovery documents” and evidence regarding medical expenses. The record does not describe this evidence other than to suggest that it showed Rice has had “two expensive MRI test[s]” and medication expenses. No copies of any such documentary evidence were attached to the settled statement. But the settled statement also states Rice “testified that she is suffering from a brain tumor and multiple sclerosis [and] she provided evidence of her medical expenses and the deductible portion of her insurance.” It does not further describe Rice’s testimony.

Substantial evidence supported the trial court’s finding Rice faced extreme financial hardship due to extraordinary health expenses for which she is financially responsible within the meaning of section 4071, subdivision (a)(1). Langerud’s appellate briefs do not cite any authority showing Rice must produce past due bills in order to seek the extraordinary health expense deduction when sufficient evidence is before the court of Rice’s limited income, high health insurance deductible, and expenses due to recently diagnosed serious health conditions. The trial court did not err.

IV.

Travel Expenses for 48-Hour Visits

Langerud challenges the portion of the modified child support order that includes a share of the travel expenses necessary for Rice to have her twice-annual visits with the children in California. The settled statement’s summary of Rice’s testimony on this issue is as follows: “[Rice] provided testimony as to what her travel expenses were.” The settled statement therefore acknowledges that evidence on this issue was presented to the trial court, but provides no detail regarding that evidence. As “[a]ny evidence or portion of a proceeding not included [in the settled statement] will be presumed to support the judgment or order appealed from” (Cal. Rules of Court, rule 8.137(d)(2)(A)), sufficient evidence supported the trial court’s order adding $125 to Langerud’s monthly child support obligation to facilitate such visits.

DISPOSITION

The order is affirmed. Respondent shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.

Filed 10/4/19 Armstrong v. U.S. Bank, N.A. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

DONALD STEWART ARMSTRONG,

Plaintiff and Appellant,

v.

U.S. BANK, N.A., as Trustee,

Defendant and Respondent.

H045590

(Monterey County

Super. Ct. No. 17CV00854)

This action concerns a 2004 loan secured by a deed of trust obtained by the borrower/trustor/former owner, Cindy Ikeoka (Ikeoka), encumbering certain property located on Aguajito Road, Carmel Area, in Monterey County (the Property). After Ikeoka defaulted on the obligation, the Property was sold through nonjudicial foreclosure (trustee’s sale) in March 2017. The buyer at the trustee’s sale—Chevy Chase Funding LLC Mortgage Backed Certificates Series 2005-1 (hereafter CC Funding)—was the purported beneficiary under the deed of trust, through assignment. U.S. Bank, N.A. (U.S. Bank), is the trustee of CC Funding.

In March 2017, Donald Stewart Armstrong (Armstrong), who had purchased the Property from Ikeoka prior to the trustee’s sale, filed suit against CC Funding. Armstrong thereafter filed a first amended complaint (Complaint). As presented in the Complaint’s caption, Armstrong alleged four claims, namely, causes of action for wrongful foreclosure, cancellation of instruments, violation of Business and Professions Code section 17200, and quiet title. In July 2017, CC Funding, through the Bank as its trustee, filed a demurrer to the Complaint. (Hereafter, we refer to the party to this litigation, CC Funding, through U.S. Bank as its trustee, as defendant.) The trial court sustained defendant’s demurrer to the Complaint without leave to amend as to three of the four claims, overruling the demurrer as to the cancellation of instruments claim. In November 2017, defendant filed a motion for judgment on the pleadings (hereafter sometimes referred to as the motion), directed to the remaining cancellation of instruments claim in the Complaint. The court granted defendant’s motion without leave to amend, and Armstrong filed a timely appeal.

We conclude that the court did not err in granting the motion for judgment on the pleadings. We conclude, however, that the court should have granted leave to amend. We will therefore reverse the judgment.

I. FACTS

Since a motion for judgment on the pleadings addresses the factual allegations of the pleading and searches for defects only disclosed from those allegations or from matters of which judicial notice may be taken (Cloud v. Northrop Grumman Corp (1998) 67 Cal.App.4th 995, 999 (Cloud)), we identify the facts here as those contained in Armstrong’s Complaint which included as attachments the documents referenced in the allegations of that pleading. (See Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1285, fn. 3 [judicial notice of documents referred to extensively in complaint is appropriate on demurrer].)

A. First Amended Complaint

After initiating this action against defendant on March 9, 2017, Armstrong filed the (First Amended) Complaint on May 11, 2017. As presented in the Complaint’s caption, Armstrong alleged claims for “1. wrongful foreclosure; 2. cancellation of instruments; 3. violations of California Business and Professions Code § 17200; and 4. quiet title.” (Capitalization omitted.) The essential allegations of the Complaint are described below.

Armstrong alleged that he formerly owned the Property, having purchased it as reflected by a grant deed recorded December 10, 2014. When he acquired it, the Property was encumbered by a deed of trust recorded July 2, 2004. Under the deed of trust, Ikeoka (Armstrong’s predecessor in interest) was the trustor, Chevy Chase Bank, FSB (CC Bank) was lender and trustee, and Mortgage Electronic Registration Systems, Inc. (MERS) was CC Bank’s nominee and beneficiary. The deed of trust was a security instrument for a loan evidenced by a promissory note signed by the borrower, Ikeoka, dated June 28, 2004, in the principal amount of $1,470,000.

In 2008, Ikeola began to have difficulty making her monthly payments under the deed of trust. She attempted unsuccessfully to renegotiated the terms of her loan. After making a loan payment of $13,686 in September 2008 to bring her loan current—which was made based upon the belief that CC Bank would then renegotiate the loan—CC Bank recorded a notice of default shortly thereafter. In May 2009, Ikeola received a debt validation notice identifying the indebtedness as being “owed to ‘[MERS] as Nominee for U.S. Bank as Trustee for CCB Libor Series 2005-1.’ ”

In or about July 2009, Capital One, N.A. acquired certain assets from CC Bank, which was failing, and Ikeola received a notice that servicing rights had been transferred to Capital One, N.A. In March 2010, after CC Bank was no longer in existence, MERS, acting as CC Bank’s nominee, assigned all beneficial interest in the deed of trust to U.S. Bank as Trustee for CCB Libor Series 2005-1 Trust (CCB Libor Trust). Armstrong alleged in the Complaint that “this was a post-closing assignment of interest in a closed trust pool and as such, was void . . . [and] this purported transfer expressly violated the Pooling and Servicing Agreement (‘PSA’) governing the Trust Pool,” and thus violated certain provisions of the Internal Revenue Code. In April 2010, CCB Libor Trust filed a proof of claim in the United States Bankruptcy Court in a proceeding in which Ikeoka was the debtor; in that proof of claim, Ikeoka’s creditor under the subject deed of trust was identified as “US Bank, NA as trustee for CCB Libor Series 2005-1 Trust.” And more than one year later, in July 2011, MERS recorded a “ ‘Corrective’ Assignment of Deed of Trust” (hereafter the Corrective Assignment), under which MERS, through a purported correction to the March 2010 Assignment of Deed of Trust, identified the assignee as “US Bank, NA as trustee [for] Chevy Chase Funding LLC Mortgage Backed Certificates Series 2005-1” (defendant herein). Armstrong alleged that the Corrective Assignment was “completely void” because it was “not merely a correction of the ‘full Assignee name’ but an attempt to substitute in a completely different Trust Pool by a party [MERS] who no longer held any beneficial interest in the Deed of Trust.”

Armstrong alleged further that despite the absence of a valid transfer of a beneficial interest in the deed of trust, U.S. Bank, as trustee of CC Funding, “proceeded to initiate wrongful and unauthorized foreclosure proceedings against the Subject Property.” U.S. Bank did so by recording a notice of trustee’s sale on behalf of CC Funding and completed the foreclosure sale in 2016. Armstrong alleged that the foreclosure “was unlawful and initiated against [sic] by parties who did not hold have [sic] standing to foreclose.” As a result, Armstrong sought relief “of actual and punitive damages, and a rescission of the [foreclosure] sale.”

Although the caption of the Complaint listed four causes of action, only three were alleged in the text of the pleading. The first cause of action was one for wrongful foreclosure, based upon its initiation by “entities [not] authorized to invoke the power of sale under [the] Deed of Trust,” and because defendant did not possess the original note. Armstrong alleged as a second cause of action that defendant “committed an unfair business practice [under Bus. and Prof. Code, § 17200] by holding itself out to be the owner of [the] loan” while there were “serious questions relating to the standing of [CC Funding] to foreclose[] on the Subject Property” due to uncertainty as to the identity of the owner of the loan. In the third cause of action, Armstrong alleged that “[b]y attempting to claim title to the Subject Property through illegal foreclosure, [d]efendant is asserting a claim of title that is adverse to [Armstrong’s] ownership interest in the Subject Property.” Armstrong therefore sought a determination of title in the Property as against all adverse claims to it.

B. Demurrer to First Amended Complaint

Defendant filed a demurrer to the Complaint on July 14, 2017. Citing Code of Civil Procedure section 430.10, subdivision (e), defendant argued that the Complaint failed to state facts sufficient to constitute a cause of action for wrongful foreclosure, violation of Business and Professions Code section 17200, and quiet title. Defendant did not address in its demurrer the claim for cancellation of instruments. Armstrong opposed the demurrer. The court sustained the demurrer without leave to amend as to the first (wrongful foreclosure), third (violations of Business and Professions Code section 17200), and fourth causes of action (quiet title), and it overruled the demurrer as to the second cause of action (cancellation of instruments).

C. Judgment on the Pleadings

After filing an answer, on October 20, 2017, defendant filed a motion for judgment on the pleadings under section 438. It asserted that Armstrong had failed in the Complaint to state a cause of action for cancellation of instruments because (1) he did not plead the necessary elements, (2) he failed to plead facts sufficient to constitute a cause of action, and (3) in any event, cancellation of instruments is a remedy and Armstrong failed to plead a factual or legal basis for such relief.

Armstrong opposed the motion. He contended that defendant’s motion should not be considered because it was actually a motion for reconsideration that was untimely. Armstrong asserted further that the Complaint had alleged sufficient facts to support a claim for cancellation of instruments based upon factual allegations in the pleading that (1) called into question whether CC Funding had standing to foreclose because it may not have held a beneficial interest in the deed of trust at the time of foreclosure, and (2) CC Funding did not have possession of the original note at the time of foreclosure.

Armstrong filed concurrently with his opposition a motion for leave to file second amended complaint. He asserted that the amendment was prompted by matters learned in discovery to the effect that “Defendants have now admitted that they have no evidence that they possessed the original wet-ink NOTE on the date of the foreclosure sale, because, in fact, they were not the beneficiary at that time, if they ever were.” The proposed amended pleading also named Ikeoka, whom Armstrong identified as his “life-partner” and a beneficiary of his trust, as a plaintiff. In addition to including allegations naming Ikeola as a plaintiff and concerning defendant’s having not possessed the original note at the time of foreclosure, Armstrong alleged in the prayer of the proposed second amended complaint that plaintiffs were seeking a cancellation of the trustee’s deed upon foreclosure sale recorded March 20, 2017.

After hearing argument, on December 1, 2017, the court granted the motion for judgment on the pleadings and denied leave to amend. A formal order was filed December 29, 2017. A judgment of dismissal was entered in favor of the Bank on January 30, 2018. Armstrong filed a timely notice of appeal.

II. DISCUSSION

A. Motions for Judgment on the Pleadings

“A trial court’s determination of a motion for judgment on the pleadings accepts as true the factual allegations that the plaintiff makes. [Citations.] In addition, it gives them a liberal construction.” (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516 (Gerawan Farming).) The motion “performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. [Citations.]” (Cloud, supra, 67 Cal.App.4th at p. 999.)

Because the trial court determines as a matter of law whether a pleading is vulnerable to a motion for judgment on the pleadings, “ ‘we review the ruling de novo, assuming the truth of all material facts properly pled.’ [Citation.]” (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 166; see also Gerawan Farming, supra, 24 Cal.4th at p. 515.) An appellate court will affirm the granting of a motion for judgment on the pleadings if it was correct on any legal basis, irrespective of the correctness of the trial court’s rationale. (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1220.)

In determining whether leave to amend should have been granted where a pleading is vulnerable to a motion for judgment on the pleadings, we assess “whether the defect can reasonably be cured by amendment.” (Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1465 (Schonfeldt).) We review for abuse of discretion the trial court’s determination as to whether the plaintiff has shown a reasonable possibility that the complaint may be amended to cure the defect exposed by the motion for judgment on the pleadings. (Mendoza v. Rast Produce Co., Inc. (2006) 140 Cal.App.4th 1395, 1402 (Mendoza).) “The burden of proof is squarely on the plaintiff” to establish error in the denial of leave to amend. (Baughman v. State of California (1995) 38 Cal.App.4th 182, 187.)

B. No Error in Granting of Judgment on the Pleadings

On appeal, Armstrong contends that the court erred in granting the motion for judgment on the pleadings on the Complaint. He raises two arguments, one procedural and the other substantive. Neither is persuasive.

1. Motion Not Precluded Under Section 1008

Armstrong contends—as he argued below—that defendant’s motion for judgment on the pleadings was a disguised motion for reconsideration of the court’s prior order, wherein it had overruled the demurrer to the Complaint as to the second cause of action for cancellation of instruments. Because, Armstrong argues, the motion for reconsideration was not brought within 10 days after service of notice of the prior order on demurrer as required under section 1008, subdivision (a), it could not be considered by the court.

Section 1008, subdivision (b) provides: “A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, 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, circumstances, 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 ex parte motion.” “The overriding purpose of Code of Civil Procedure section 1008 is to prevent duplicative motions. [Citation.]” (UAS Management, Inc. v. Mater Misericordiae Hospital (2008) 169 Cal.App.4th 357, 367 (UAS Management).)

The court below, in ruling on the merits of the motion, impliedly found that the motion for judgment on the pleadings was not a disguised, untimely motion for reconsideration. This implied conclusion was not erroneous, because (1) the Complaint contained no allegations at all concerning a claim for cancellation of instruments; (2) the Complaint, while mentioning in the caption “2. cancellation of instruments” (capitalization omitted), did not contain a second cause of action for cancellation of instruments in the body of the pleading (but instead, pleaded as the second cause of action a claim based on violation of Business and Professions Code section 17200); (3) defendant’s demurrer to the Complaint did not separately address a purported cancellation of instruments claim; (4) defendant, as explained in its motion, only addressed in its demurrer the three causes of action alleged in the body of the Complaint and “surmised that the Cancellation of Instruments cause of action was inadvertently included in the [Complaint’s] caption due to a drafting error”; and (5) as argued by defendant below, prior to the filing of the motion for judgment on the pleadings, the trial “[c]ourt ha[d] not yet had an opportunity to rule on the merits of the cancellation cause of action.” Simply stated, the motion was not a “duplicative motion[]” of the kind section 1008 was intended to prevent. (UAS Management, supra, 169 Cal.App.4th at p. 367.) The court below therefore did not err in impliedly concluding that the motion for judgment on the pleadings was not an untimely motion for reconsideration barred under section 1008.

2. Complaint Failed to State Cause of Action

Defendant asserted in its motion for judgment on the pleadings that Armstrong had failed to state facts sufficient to constitute a cause of action for cancellation of instruments. Defendant argued that the Complaint “[did] not contain a single allegation relating to cancellation,” and “[i]n fact, [d]efendant cannot even surmise which instruments [Armstrong] is seeking to cancel.” (Original italics.) Defendant’s position below was well-taken.

Civil Code section 3412 provides that “[a] written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.” In order to prosecute successfully a claim for cancellation of an instrument, the plaintiff must plead and prove “ ‘(1) the instrument is void or voidable due to, for example, fraud; and (2) there is a reasonable apprehension of serious injury including pecuniary loss or the prejudicial alteration of one’s position. [Citation.]’ [Citation.]” (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1194 (Thompson).) For cancellation, the “plaintiff must allege, inter alia, facts showing actual invalidity of the apparently valid instrument or piece of evidence.” (Wolfe v. Lipsy (1985) 163 Cal.App.3d 633, 638 (Wolfe), disapproved on other grounds in Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 35-36.)

As correctly noted by defendant, the Complaint contained no allegations whatsoever regarding a cancellation of instruments claim. And while Armstrong identified generally in the Complaint at least six instruments—the promissory note, the deed of trust, the debt validation notice, the assignment of deed of trust, the correction of assignment of deed of trust, and the trustee’s deed upon sale—he failed to identify in the Complaint which instrument or instruments should be ordered canceled by the court. Having failed to identify the instrument Armstrong contends to be void or voidable and thus subject to cancellation (see Thompson, supra, 11 Cal.App.5th at pp. 1193-1194), the Complaint failed to state facts sufficient to constitute a cause of action. Thus, the court did not err in granting judgment on the pleadings.

C. Court’s Denial of Leave to Amend Was an Abuse of Discretion

Although Armstrong urges that he made a sufficient showing below that the Complaint was not subject to the motion for judgment on the pleadings, he asserts further that he sought leave below to file a second amended complaint “to more fully flesh out the facts and allegations for the Cause of Action for Cancellation of Instruments.” And Armstrong contends that the court’s denial of leave to amend constituted an abuse of discretion.

Defendant responds that the grounds for Armstrong’s request for leave to file a second amended complaint “consisted of the same recycled facts and arguments set forth in the [Complaint].” Defendant contends further that the cancellation of instruments claim “is a remedy that must be yoked to a cause of action creating a basis for liability, and [Armstrong] did not have a single surviving cause of action” as result of the trial court’s ruling on the demurrer to the Complaint. We conclude for the reasons stated below that Armstrong should have been granted leave to amend.

As noted above, a plaintiff alleging a claim for cancellation of instruments must plead and prove “ ‘(1) the instrument is void or voidable . . . ; and (2) there is a reasonable apprehension of serious injury including pecuniary loss or the prejudicial alteration of one’s position. [Citation.]’ [Citation.]” (Thompson, supra, 11 Cal.App.5th at p. 1194.) As to the first element, Armstrong identified in the proposed second amended complaint that the “instrument” he claimed to be void was the trustee’s deed upon sale. As to the second aspect of the first element, Armstrong, in order to demonstrate that he should have been granted leave to amend, needed to make a showing that he could reasonably cure the defect in the Complaint (Schonfeldt, supra, 61 Cal.App.4th at p. 1465) by alleging “facts showing actual invalidity of the apparently valid instrument.” (Wolfe, supra, 163 Cal.App.3d at p. 638.) Armstrong argued below and argues on appeal that the foreclosure was invalid and hence the trustee’s deed upon sale was void because (1) the party foreclosing and making the credit bid to purchase the property was not in fact the beneficiary; and (2) the foreclosing party did not have possession of the original promissory note at the time of foreclosure. We address Armstrong’s first argument here, which is dispositive.

“There are three parties in the typical deed of trust: the trustor (debtor), the beneficiary (lender), and the trustee. [Citation.] The trustee holds a power of sale. If the debtor defaults on the loan, the beneficiary may demand that the trustee conduct a nonjudicial foreclosure sale. [Citation.] . . . [¶] Civil Code sections 2924 through 2924k . . . govern nonjudicial foreclosure sales pursuant to a power of sale contained in a deed of trust.” (Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 813-814.) Although it is the trustee that takes the steps to proceed with a nonjudicial foreclosure, it “may take these steps only at the direction of the person or entity that currently holds the note and the beneficial interest under the deed of trust—the original beneficiary or its assignee—or that entity’s agent. [Citations.]” (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 927, fn. omitted (Yvanova).) And under Civil Code 2924h, subdivision (b), the beneficiary under a deed of trust or its assignee is entitled to make a credit bid at the trustee’s sale up to the amount of the debt owed. (Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 45.)

As the California Supreme Court recently explained, “A beneficiary or trustee under a deed of trust who conducts an illegal, fraudulent or willfully oppressive sale of property may be liable to the borrower for wrongful foreclosure. [Citations.] A foreclosure initiated by one with no authority to do so is wrongful for purposes of such an action. [Citations.] . . . [O]nly the original beneficiary, its assignee or an agent of one of these has the authority to instruct the trustee to initiate and complete a nonjudicial foreclosure sale.” (Yvanova, supra, 62 Cal.4th at p. 929, fn. omitted.) An allegation that the party claiming to be the beneficiary and that directed the foreclosure sale was not beneficiary of record supports a claim that the foreclosure sale was void. (Sciarratta v. U.S. Bank National Association (2016) 247 Cal.App.4th 552, 563-564 (Sciarratta); see also Dimock v. Emerald Properties LLC (2000) 81 Cal.App.4th 868, 874-876 [because only the current trustee is authorized to proceed with trustee’s sale, foreclosure was void where conducted by former trustee after successor trustee was substituted].) And the Supreme Court held in Yvanova that a borrower has standing to sue to challenge an illegal foreclosure due to a void assignment. (Yvanova, supra, at pp. 929-938.)

In Sciarratta, the borrower challenged the trustee’s sale in which the purported beneficiary through assignment, Bank of America, acquired the property through a credit bid. (Sciarratta, supra, 247 Cal.App.4th at p. 558.) The plaintiff alleged that the foreclosure sale was void, inter alia, because the purported beneficiary through assignment that made a credit bid was not the beneficiary. (Id. at pp. 558-559.) In fact, as the appellate court noted, the beneficiary of record at the time of foreclosure was Deutsche Bank National Trust Company, as trustee for Long Beach Mortgage Loan Trust 2006–6 (Deutsche Bank). (Id. at p. 556.) As explained by the court, (1) the original lender/beneficiary under the June 2005 notes and deed of trust was Washington Mutual Bank, F.A. (WaMu); (2) on April 27, 2009, JPMorgan Chase Bank, N.A. (Chase), as successor in interest to WaMu, assigned the deed of trust and promissory notes to Deutsche Bank; (3) on November 9, 2009, Chase, as successor in interest to WaMu, recorded an assignment in which it purportedly assign the deed of trust and notes to Bank of America; (4) on the same day, the trustee recorded a trustee’s deed upon sale identifying Bank of America as the foreclosing beneficiary taking title through a credit bid; and (5) in December 2009, Chase filed a “ ‘[c]orrective’ [a]ssignment” indicating that it was recorded to correct the name of the assignee from the April 27, 2009 to be Bank of America. (Id. at pp. 556-558.) Based upon these facts, the appellate court held that the plaintiff-borrower had alleged sufficient facts to support the claim that the “ ‘[c]orrective’ [a]ssignment” was void and that the purported beneficiary foreclosing on the property had no authority to do so. (Id. at pp. 562-564.)

Sciarratta is instructive, as the circumstances are analogous to those alleged here by Armstrong. Armstrong has alleged in his Complaint (and in his proposed second amended complaint) facts that, if proved, would support a claim that the foreclosure sale was unlawful because the purported foreclosing beneficiary taking title through a credit bid—CC Funding (Chevy Chase Funding LLC Mortgage Backed Certificates Series 2005-1, through its trustee, U.S. Bank)—was not the current beneficiary. Instead, the true beneficiary at the time, according to the allegations of the Complaint, was CCB Libor Trust (CCB Libor Series 2005-1 Trust, through its trustee, U.S. Bank). The relevant chronology, based upon the allegations in the Complaint, is as follows: (1) in July 2004, the deed of trust was recorded identifying Ikeoka as trustor, CC Bank as trustee and lender, and MERS as nominee and beneficiary; (2) in March 2010, MERS recorded an assignment in which it assigned all beneficial interest in the deed of trust to U.S. Bank as trustee for CCB Libor Trust; (3) in July 2011, MERS recorded the Corrective Assignment, under which MERS purportedly corrected the March 2010 assignment of deed of trust by identifying the assignee as defendant herein (CC Funding, through its trustee, U.S. Bank), and (4) CC Funding, through its trustee, U.S. Bank, commenced foreclosure proceedings and completed the foreclosure sale, but it did not have standing to foreclose on the Property. Armstrong alleged that the Corrective Assignment was “completely void” because it was “not merely a correction of the ‘full Assignee name’ but an attempt to substitute in a completely different Trust Pool by a party [MERS] who no longer held any beneficial interest in the Deed of Trust.”

Having shown that he could plead facts showing that the instrument (trustee’s deed upon sale) was void, Armstrong was also required to plead the second element of a cancellation of instruments claim, namely, “ ‘reasonable apprehension of serious injury including pecuniary loss or the prejudicial alteration of one’s position. [Citation.]’ [Citation.]” (Thompson, supra, 11 Cal.App.5th at p. 1194.) The record shows that Armstrong could satisfy this pleading requirement.

The appellate court in Sciarratta addressed the nature of harm required to be proved by a trustor whose property is lost through a wrongful foreclosure. The appellate court framed the issue as follows: “Where a homeowner alleges foreclosure by one with no right to do so, do such allegations alone establish the requisite prejudice or harm necessary to state a cause of action for wrongful foreclosure? Or instead, to adequately plead prejudice, does the plaintiff-homeowner have to allege the wrongful foreclosure interfered with his or her ability to pay on the debt, or lead to a foreclosure that would not have otherwise occurred?” (Sciarratta, supra, 247 Cal.App.4th at p. 555.) The court concluded the borrower need not allege prejudice or harm other than the wrongful foreclosure itself. (Id. at p. 565.) Relying on Yvanova, supra, 62 Cal.4th at page 937, the Sciarratta court reasoned as follows: “A homeowner experiences prejudice or harm when an entity with no interest in the debt forecloses. When a non-debtholder forecloses, a homeowner is harmed because he or she has lost her home to an entity with no legal right to take it. If not for the void assignment, the incorrect entity would not have pursued a wrongful foreclosure. Therefore, the void assignment is the cause in fact of the homeowner’s injury and all he or she is required to allege on the element of prejudice. The critical issue is not the plaintiff’s ability to pay, but rather whether the defendant’s conduct resulted in the plaintiff’s harm; i.e., a foreclosure that was wrongful because it was initiated by a person or entity having no legal right to do so; i.e. holding void title.” (Sciarratta, supra, at pp. 565-566.)

Armstrong, through the loss of his interest in the Property through a foreclosure that he alleges to have been invalid, has shown that he can allege “ ‘reasonable apprehension of serious injury including pecuniary loss or the prejudicial alteration of one’s position. [Citation.]’ [Citation.]” (Thompson, supra, 11 Cal.App.5th at p. 1194.) As successor-in-interest to Ikeoka, the prior owner of the Property, he had standing to assert such claim. (See Munger v. Moore (1970) 11 Cal.App.3d 1, 7-8.)

The court accepts the factual allegations in the pleading challenged by motion for judgment on the pleadings as true and it liberally construes those factual allegations. (Gerawan Farming, supra, 24 Cal.4th at p. 515-516.) From the allegations in the Complaint, and the allegations in the proposed second amended complaint identifying the instrument sought to be cancelled, Armstrong has shown that he can allege facts sufficient to support a claim based upon cancellation of instruments based upon the voidness of an apparently valid instrument (Wolfe, supra, 163 Cal.App.3d at p. 638), and “ ‘a reasonable apprehension of serious injury including pecuniary loss or the prejudicial alteration of one’s position. [Citation.]’ [Citation.]” (Thompson, supra, 11 Cal.App.5th at p. 1194.) The record therefore showed that he could amend the Complaint to allege a cause of action for cancellation of instruments. (See Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1101 [borrower stated viable claim for cancellation of instruments based upon allegations of unlawful foreclosure based upon void sale].)

“[I]t is an abuse of discretion to grant a motion for judgment on the pleadings without leave to amend ‘ “if there is any reasonable possibility that the plaintiff can state a good cause of action.” ’ [Citations.]” (Dudley v. Department of Transp. (2001) 90 Cal.App.4th 255, 260.) Armstrong, as plaintiff bearing the burden of showing a reasonable possibility that the complaint could be amended to cure the defect exposed by the motion for judgment on the pleadings (Mendoza, supra, 140 Cal.App.4th at p. 1402), satisfied his burden. The court erred in denying leave to amend. In so concluding, we express no opinion concerning the merits of his claim for cancellation of instruments. (See Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496 [appellate court in reviewing propriety of the sustaining of a demurrer without leave to amend is not concerned with whether plaintiff ultimately will be able to prove the pleading’s allegations].)

IV. DISPOSITION

The judgment entered on the order granting judgment on the pleadings is reversed. The parties shall bear his/its own respective costs on appeal.

___________________________________________ BAMATTRE-MANOUKIAN, J.

WE CONCUR:

__________________________

ELIA, ACTING P.J.

__________________________

MIHARA, J.

Armstrong v. U.S. Bank, N.A., as Trustee

H045590

Stacy McCrory v. County of Santa Barbara, et al.
Case No: 15CV02871
Hearing Date: Mon Oct 07, 2019 9:30

Nature of Proceedings: Motion for Summary Judgment/Adjudication

Stacy McCrory v. County of Santa Barbara, et al. (Judge Sterne)

Case No. 15CV02871

Hearing Date: October 7, 2019

HEARING:

Motion of Defendants County and Dark for Summary Judgment or Alternatively for Summary Adjudication

ATTORNEYS:

For Plaintiff Stacy McCrory: James H. Cordes, Angelica Caro, James H. Cordes and Associates

For Defendants County of Santa Barbara and Patricia Dark: Michael C. Ghizzoni, Michael M. Youngdahl, Office of the County Counsel

TENTATIVE RULING:

The motion of defendants County of Santa Barbara and Patricia Dark for summary judgment or alternatively for summary adjudication is granted as to summary adjudication in favor of defendants on the fourth (intentional interference with prospective economic advantage) and fifth (negligent interference with prospective economic advantage) causes of action and is in all other respects denied.

Background:

In April 2014, In the County Department of Alcohol Drug and Mental Health Services (ADMHS) employed plaintiff Stacy McCrory as a Forensic Liaison. (Plaintiffs’ Response Separate Statement [PSS], undisputed fact 1.) Also in April 2014, the County Public Defender employed defendant Patricia Dark as a Deputy Public Defender. (PSS, undisputed fact 2.)

On April 21, 2014, Dark listened to a voicemail message from McCrory regarding a criminal case against “JM,” one of Dark’s clients. (PSS, fact 3 [undisputed on this point].)

On April 23, 2014, Dark sent McCrory’s voicemail message to Dr. Takishi Wada, the interim Director of ADMHS, and attached to it an email characterizing McCrory and her message (the Email). (PSS, fact 4 [undisputed on this point].) (Note: The Email is stated in strong and inflammatory terms. McCrory asserts that the Email is defamatory. The issue presented in this motion relates to the publication of the Email and not its contents. Thus, for purposes of this motion only, the court assumes that McCrory’s assertion that the Email is legally defamatory is correct.)

Dark sent the Email to Wada because he was the person assigned the statutory duty to make a competency restoration placement recommendation for JM. (PSS, fact 5 [undisputed on this point].) According to defendants, Dark assumed that the Email and the private and privileged medical and mental health information regarding JM would remain confidential with Wada. (Defendants’ Separate Statement [DSS], fact 5; Dark decl., ¶¶3-8.) According to McCrory, Dark did not assume that the Email would remain confidential with Wada because Dark herself republished the Email to multiple persons. (Cordes decl., exhibit B [Dark’s Responses to Special Interrogatories No. 1 & 2].)

Before sending the Email to Wada, Dark showed it to her supervisor, Chief Deputy Robert Ikola. (PSS, fact 6 [not disputed on this point].)

During the evening of April 23, 2014, Wada forwarded the Email to then ADMHS Assistant Director Michael Craft and to ADMHS Medical Director, Ole Behrendtsen, M.D., asking for their input regarding how to respond. (PSS, undisputed fact 7.) Craft responded to Wada later in the evening and requested Behrendtsen’s thoughts on the matter as part of an email string that included the Email. (PSS, undisputed fact 8.)

On April 24, 2014, Dark sent copies of the Email and McCrory’s voicemail to another Deputy Public Defender in her office, Maria Martino. (PSS, fact 11 [undisputed on this point].) According to defendants, Martino did not share the Email with anyone. (DSS, fact 12.) According to McCrory, Martino forwarded the Email to Lawanda Lyons-Pruitt, former Investigator for the Santa Barbara Public Defender’s Office on September 26, 2014. (Martino decl., ¶ 13.)

On April 25, Craft forwarded his communications with Wada, including the Email, to McCrory’s direct supervisor, Regional Manager Andrew Vesper. (PSS, fact 9 [undisputed on this point].) Craft’s response indicated that if the Email raised any personnel issues, those issues should be dealt with by Vesper. (Camacho-Craft decl., ¶ 3.) Also on April 25, 2014, Wada forwarded the Email to Celeste Andersen, the ADMHS Compliance Officer, seeking input regarding how to respond. (PSS, undisputed fact 10.)

On May 13, 2014, at a chambers conference in the JM case, Dark gave hardcopies of the Email to the District Attorney prosecuting the JM case, Chrystal Joseph, and to Deputy County Counsels Victoria Tuttle and Aylin Bilir on behalf of ADMHS. (PSS, fact 13 [undisputed on this point].) Dark offered a copy to the Court, which declined the offer. (Ibid.) Joseph, Tuttle, and Bilir put the hardcopies of the Email in their office files, did not make copies of it, and did not share copies of it with anyone other than, perhaps, McCrory. (PSS, undisputed fact 14.) Because Dark did not bring enough copies of the Email to the chambers conference, Dark sent an electronic copy of the Email, and a copy of the voicemail, to ADMHS Clinical Psychologist Dr. Joseph Lockhart, who also was present at the chambers conference. (PSS, fact 15.) Lockhart played the McCrory voicemail for his colleague, ADMHS Clinical Psychologist Kathleen Curtis. (PSS, fact 16.) According to Lockhart, Lockhart did not share the Email with anyone other than his counsel. (Lockhart decl., ¶ 11.)

According to Dark, the only persons with whom Dark shared the Email in 2014 were Wada, Martino, Tuttle, Bilir, Joseph and Lockhart. (DSS, fact 17; Dark decl., ¶¶ 8-14.) According to McCrory, Dark also admits to sharing the Email to Ikola. (Dark decl., ¶ 9.) (Note: As discussed below, McCrory argues that these factual assertions of Dark at to her limited republication of the Email are disputed based upon circumstantial inferences.) According to Dark, at no point in 2014 did Dark intend that the Email would be distributed to anyone other than the people with whom she shared it—Wada, Martino, Tuttle, Bilir, Joseph, and Lockhart. (DSS, fact 18.) According to McCrory, the Email in its text states that “I am confident that your department will do the right thing …,” suggesting that Dark did not expect Wada to keep the Email confidential and the Email does not state or request that the Email remain confidential. (Defendants’ exhibits, exhibit 3 [the Email].) McCrory had nothing to do with republishing the Email. (McCrory decl., ¶ 7.)

On McCrory’s last day working for defendant County of Santa Barbara (County), July 25, 2014, CEO Annmarie Cameron and Director of Operations Patricia Collins of McCrory’s new employer, the Mental Wellness Center, received copies of the Email. (PSS, undisputed fact 19.) McCrory started to work with the Mental Wellness Center in late July 2014. (PSS, undisputed fact 25.) The Email did not cause Cameron concern because she knew McCrory and her qualifications. (PSS, undisputed fact 26.)

In August 2014, Leonard Kwock, a Program Manager employed by the Ventura County Behavior Health Department, overseeing the Juvenile Facility—Mental Health Services, received a copy of the Email. (PSS, fact 20 [undisputed on this point]; Kwock decl., ¶ 1.)

The copies of the Email delivered to Cameron, Collins, and Kwock were delivered by U.S. Mail in envelopes with no return address or other indications of the sender’s identity. (PSS, fact 21 [undisputed on this point].)

According to defendants, neither Dark nor any of the other County employees who came into possession of the Email sent it, or caused or influenced anyone else to send it to Cameron, Collins, or Kwock. (DSS, fact 22 & evidence cited.) Neither Dark nor any of the other County employees who came into possession of the Email have any information regarding who sent it to Cameron, Collins, or Kwock. (DSS, fact 23 & evidence cited.) According to defendants, in this litigation, McCrory has not identified any County employee other than Dark whom she claims is responsible for sending the Email to Cameron, Collins, or Kwock. (DSS, fact 24 & evidence cited.) (Note: McCrory’s response to these assertions are discussed in the analysis below.)

While working at the Mental Wellness Center, McCrory’s performance evaluations were positive. (PSS, undisputed fact 27.) McCrory believes that her compensation increased while employed there. (PSS, undisputed fact 28.) When McCrory announced that she had applied for a job that would involve her returning to the County, Cameron did not want her to leave and discussed the possibility of remaining with the Mental Wellness Center. (PSS, undisputed fact 29.)

Before Kwock received the Email, he and McCrory had one, maybe more, telephone conversation exploring the possibility of her working part-time for Ventura County while she was working for the Mental Wellness Center. (PSS, undisputed fact 30.) Sometime after talking with Kwock, another unidentified person, who may have been from the Ventura County Probation Department and was supposed to follow up with Kwock, called McCrory to discuss the type of work that would be involved. (PSS, undisputed fact 31.) McCrory had never worked for Ventura County before Kwock contacted her. (PSS, undisputed fact 32.) McCrory and Kwock knew each other because they had worked in the same department with County. (PSS, fact 33 [undisputed on this point].)

According to defendants, McCrory and Kwock did not agree to, or negotiate regarding, any of the terms and conditions of employment. (DSS, fact 34; Kwock decl., ¶ 4.) According to McCrory, in a telephone conversation between McCrory and Kwock, Kwock told McCrory about an employment opportunity and wondered if McCrory would be willing to do restoration services for them on a part-time basis as a contractor out of McCrory’s private practice. (McCrory depo. [Defendants’ exhibit 7], pp. 262-263.) McCrory said she would consider it and thought it was a good idea. (Id. at p. 263.)

According to defendants, Kwock did not offer McCrory a job or indicate in any way that Ventura County would hire her. (DSS, fact 35; Kwock decl., ¶¶ 3-4.) According to McCrory, Kwock telephoned McCrory briefly to tell her that she got the Supervisor’s approval and Kwock would be in touch. (McCrory decl., ¶ 5.) According to defendants, McCrory and Kwock’s conversations were limited to whether she was qualified to do the work and whether she was interested. (DSS, fact 36; Kwock decl., ¶¶ 3-4.) According to McCrory, the conversations also involved the potential for provided contracted service to three counties, Ventura County, Santa Barbara County, and San Luis Obispo County. (McCrory decl., ¶ 6.)

McCrory was one of several persons that Kwock contacted during a state-wide search he conducted for a Ventura County planning group, at the end of which he presented to the group a list of five or six possible candidates to consider as options to hire, including McCrory. (PSS, facts 37-38 [undisputed on this point].) The planning group was not obligated to hire from the list provided by Kwock. (PSS, facts 39-40 [undisputed on this point].) After Kwock received the Email in a letter not including a return address, Kwock called McCrory and informed her of this. (Kwock decl., ¶ 8.) Kwock also informed the planning group of the contents of the email. (Ibid.) Because of the information received in the letter, the planning group decided not to pursue McCrory as an option to consider for hire. (Ibid.) Ventura County did not hire anyone in 2014 for the position that the planning group was considering when Kwock and McCrory spoke. (PSS, fact 41 [undisputed on this point].)

On September 4, 2015, McCrory filed her original complaint for damages against County and Dark.

On October 28, 2015, County and Dark filed their answer to the complaint generally denying the allegations thereof and asserting 14 affirmative defenses.

On February 16, 2016, County and Dark filed a special motion to strike pursuant to Code of Civil Procedure section 425.16.

On April 4, 2016, the court granted the special motion to strike in part. (Note: The court grants defendants’ request to take judicial notice of the court’s minute order of April 4, 2016, ruling on this motion. (Evid. Code, § 452, subd. (d)(1).)) In so ruling, the court found that the initial publication of the Email to County employees was absolutely privileged under Civil Code section 47, subdivision (b), but that the republication of the Email to others was not activity subject to the special motion to strike. The court permitted McCrory to file a first amended complaint (FAC) which eliminated the claims struck by the special motion to strike.

On April 15, 2016, McCrory filed her FAC. The FAC asserts five causes of action: (1) defamation; (2) negligent supervision/ retention; (3) negligent investigation; (4) intentional interference with prospective economic advantage; and, (5) negligent interference with prospective economic advantage. (Note: A request for dismissal without prejudice as to the second and third causes of action was filed in the consolidated case, McCrory v. County of Santa Barbara, case number 15CV01554, on October 8, 2015.)

On June 1, 2016, defendants filed their notice of appeal as to the partial denial of the special motion to strike. On December 18, 2017, the Court of Appeal issued its opinion affirming this court’s ruling on the special motion to strike. On February 23, 2018, the Court of Appeal issued its remittitur.

On January 11, 2019, defendants filed their answer to the FAC generally denying the allegations thereof and asserting 15 affirmative defenses.

On July 24, 2019, defendants filed this motion for summary judgment, or alternatively, for summary adjudication. The motion addresses the first, fourth, and fifth causes of action. The motion is opposed as discussed below.

On September 18, 2019, McCrory filed her amendment to the FAC identifying Lockhart as defendant “Doe 1.” (For purposes of this motion, the court refers to moving parties County and Dark collectively as “defendants,” which term does not include newly-added defendant Lockhart.)

Analysis:

Defendants move for both summary judgment and for summary adjudication. “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).) By contrast, “[a] party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).)

There is a procedural problem with the motion for summary judgment in that it assumes that there is an effective dismissal of the second and third causes of action. This assumption is incorrect. In case number 15CV01554, McCrory sought and obtained leave to proceed against defendants. The present case (No. 15CV02871) was filed as a separate action. A request for partial dismissal, without prejudice, as to the second and third causes of action was filed in case number 15CV01554 on October 8, 2015. This was erroneous because, at that time, the only complaint was filed in this case and not in case number 15CV01554. These two cases were consolidated by stipulation and order filed on June 13, 2016, with this case (number 15CV02871) as the lead case. Even if the voluntary dismissal is deemed effective in this case (rather than ineffective as filed in a different case), it is only effective as to the causes of action in the then-operative original complaint. The FAC was filed on April 15, 2016, after the entry of the requested dismissal as to the original complaint, restating the second and third causes of action. Although it may be that McCrory intended that the second and third causes of action remain dismissed, “ ‘ “It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.” ’ [Citation.] Thus, an amended complaint supersedes all prior complaints. [Citations.] The amended complaint furnishes the sole basis for the cause of action, and the original complaint ceases to have any effect either as a pleading or as a basis for judgment.” (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130–1131.) As a result, the second and third causes of action are now effective (whether that is the parties’ intention or not) and so summary judgment cannot be granted on the FAC as now alleged. Additionally, because the court finds, as discussed below, that there are triable issues of fact as to some causes of action, summary judgment is precluded because defendants are not entitled to judgment on the entirety of this action.

(1) Adjudications re Republication

Defendants seek five alternative summary adjudications. The first four all address republication of the Email. The first requested adjudication is as to the first cause of action as against Dark, asserting that McCrory cannot establish that Dark was responsible for republishing the Email to the Mental Wellness Center or to Kwock. The second requested adjudication is as to the first cause of action against County, asserting that McCrory cannot establish that any County employee was responsible for republishing the Email or that McCrory has not identified a County employee other than Dark who was responsible. The third requested adjudication is as to the fourth and fifth causes of action against Dark, for the same reasons as the first requested adjudication. The fourth requested adjudication is as to the fourth and fifth causes of action against County, for the same reasons as the second requested adjudication.

“A defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff … shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

Whether or not defendants have met their initial burden on summary adjudication as to the first four requested adjudications, there are triable issues of fact that preclude summary adjudication. Defendants’ separate statement number 22, which is a fact set forth in support of each of the first four requested adjudications, is: “Neither Dark nor any of the other County employees who came into possession of her email to Dr. Wada sent it, or caused or influenced anyone else to send it to Cameron, Collins or Kwock.” In support of this fact, defendants provide the declarations of each person for whom there is evidence that the Email was communicated among the County employees.

“ ‘[W]e accept as true the facts … in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.’ [Citation.] And we must ‘“view the evidence in the light most favorable to plaintiff[] …’ and “liberally construe plaintiff[’s] evidentiary submissions and strictly scrutinize defendant[’s] own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff[’s] favor.”’ [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254.)

Separate statement fact number 22 is disputed by inferences from defendants’ own evidence that the County employees from whom declarations are presented here are the only persons who had access to the Email and the ability to send the Email to Cameron, Collins, or Kwock. McCrory provides her own evidence that she did not send the Email on. Because the copies of the Email that were sent to Cameron, Collins, and Kwock were nearly identical to the original Email, a reasonable inference is that one of the recipients of the Email must have been responsible for the republications here at issue. Under the standards for summary judgment, McCrory is excluded by her evidence. Thus, the only persons who could have republished the Email are Dark and “any of the other County employees who came into possession of her email.” A reasonable inference is that one of these persons sent it to Cameron, Collins, or Kwock. This inference logically disputes separate statement number 22. As a matter of logic, it is not necessary for McCrory to identify which of the persons listed in separate statement number 22 is or are particularly responsible in order to dispute separate statement number 22.

“‘[T]he separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!’” (Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at p. 252, quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 10:95.1, p. 10-35 (rev. # 1, 2009).) A triable issue of fact is raised as to separate statement fact number 22. That triable issue of fact requires that the court deny each of the first four requested adjudications. The court therefore does not need to address other issues of fact presented by the separate statement facts for these requested adjudications.

Accordingly, the court will deny the motion for summary adjudication as to the first, second, third, and fourth requested adjudications.

(2) Adjudication re Interference

Defendants’ fifth requested adjudication is that the fourth and fifth causes of action (for intentional and negligent interference with prospective economic advantage, respectively) have no merit because McCrory cannot establish the disruption of an economic relationship that would have resulted in an economic benefit to her. Unlike the first four requested adjudications, this requested adjudication does not depend upon who sent the Email but instead depends upon the effect that the Email had upon its non-County recipients.

“Intentional interference with prospective economic advantage has five elements: (1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant’s action.” (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512.) The last two elements are the same for negligent interference. (Redfearn v. Trader Joe’s Co. (2018) 20 Cal.App.5th 989, 1005.)

In this motion, the issue is presented in the fifth element of the cause of action as to whether there was economic harm proximately caused by the Email disrupting an economic relationship. The facts in support and in opposition to this motion are essentially undisputed. There is undisputed evidence that Kwock had approached McCrory regarding employment and that they had discussed preliminaries to employment, to the extent that Kwock included McCrory among those candidates Kwock presented to the Ventura County planning group as options to hire. These facts are not disputed by McCrory’s evidence providing a slightly different characterization of the same preliminary discussions. It is undisputed that Kwock was not the hiring authority and his recommendations were not determinative. It is also undisputed that after Kwock provided information about the Email to the planning group, McCrory was dropped from consideration. McCrory argues that the “harm was that Ms. McCrory was no longer eligible to be hired into that position.” (Opposition, at p. 24.)

Defendants also present undisputed evidence that, notwithstanding dropping McCrory from consideration, Ventura County did not hire anyone in 2014 for the position that the planning group was considering. (PSS, fact 41.) The undisputed evidence thus establishes that although McCrory was eliminated from consideration by the Email, no one was hired at the relevant time. Unlike other torts for which damages may be measured more broadly, the tort of interference requires proof of loss of economic benefit from the disrupted relationship. “Although varying language has been used to express this threshold requirement, the cases generally agree that it must be reasonably probable the prospective economic advantage would have been realized but for defendant’s interference.” (Youst v. Longo (1987) 43 Cal.3d 64, 71.) “[A] cause of action for tortious interference has been found lacking when either the economic relationship with a third party is too attenuated or the probability of economic benefit too speculative.” (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc., supra, 2 Cal.5th at p. 515.)

Here, the undisputed evidence shows that there was no probability of economic benefit because there is no showing that McCrory would have been hired by the Ventura County planning group. The simple fact is that no one was hired at the relevant time. McCrory provides no evidence that had she not been removed from consideration, the hiring result would have been different to any degree of probability. This is not a situation, such as in FEHA claims, where evidence may be presented of a less qualified person being hired instead of the claimant.

Consequently, the court finds that defendants have met their initial burden on summary adjudication as to the fourth and fifth causes of action and that McCrory has failed to meet her burden to show a triable issue of fact. The motion for summary adjudication will be granted as to the fourth and fifth causes of action.

McCrory filed evidentiary objections that are not consecutively numbered as required by Rules of Court, rule 3.1354(b). The court declines to rule on these objection on the basis of the failure to comply with rule 3.1354(b). Otherwise, there are no evidentiary objections for which a ruling is required by the court. (See Code Civ. Proc., § 437c, subd. (q).)

Case Number: BC703775
FERNANDO AGUIRRE ET AL VS LEONARDO LEO TAMAZYAN ET AL
Filing Courthouse: Stanley Mosk Courthouse

Filing Date: 04/25/2018
Case Type: Motor Vehicle – Personal Injury/Property Damage/Wrongful Death (General Jurisdiction)
Status: Pending

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FUTURE HEARINGS
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

02/11/2020 at 10:00 AM in Department 4B at 312 North Spring Street, Los Angeles, CA 90012
Final Status Conference

02/27/2020 at 08:30 AM in Department 4B at 312 North Spring Street, Los Angeles, CA 90012
Jury Trial

04/26/2021 at 08:30 AM in Department 4B at 312 North Spring Street, Los Angeles, CA 90012
: OSC RE Dismissal

PARTY INFORMATION
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

AGUIRRE ALEX – Plaintiff

AGUIRRE EULALIA – Plaintiff

AGUIRRE FERNANDO – Plaintiff

KNAPP PETERSEN & CLARKE LAW OFFICES OF – Attorney for Defendant

MADOYAN LENA – Defendant

PASAROW STEPHEN C. – Attorney for Defendant

TAMAZYAN LEONARDO – Defendant

TIJERINA ROLAND R. ESQ. – Attorney for Plaintiff

Documents Filed
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

Documents Filed (Filing dates listed in descending order)

09/05/2019 Notice of Ruling
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

08/26/2019 [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District)
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

08/20/2019 Minute Order ( (Hearing on Motion to Compel Discovery (not “Further Discovery…))
Filed by Clerk

08/07/2019 Declaration (Declaration of Roland R. Tijerina in Support of Plaintiff’s Alex Aguirre, Fernando Aguirre & Eulalia Aguirre Opposition to Three Motions to Compel Responses to Form Interrogatories, Request for Production of Documents and Special Interrogatories)
Filed by Fernando Aguirre (Plaintiff)

07/01/2019 Declaration (of Andrew A. Antaramian in Support of Motion to Compel Plaintiffs Responses to Request for Production of Documents)
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

07/01/2019 Motion to Compel (Plaitiffs Responses to Request for Production of Documents)
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

07/01/2019 Declaration (of Andrew A. Antaramian in Support of Motion to Compel Plaintiffs Responses to Special Interrogatories)
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

07/01/2019 Motion to Compel (Plaintiffs responses to Special Interrogatories)
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

07/01/2019 Declaration (of Andrew A. Antaramian in Support of Motion to Compel Plaintiffs Responses to Form Interrogatories)
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

07/01/2019 Motion to Compel (Responses to Form Interrogatories)
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

09/17/2018 CIVIL DEPOSIT

09/17/2018 ANSWER TO PLAINTIFF’S COMPLAINT

09/17/2018 Receipt
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

09/17/2018 Answer
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

09/17/2018 Notice of Posting of Jury Fees
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

09/17/2018 Demand for Jury Trial
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

09/17/2018 DEMAND FOR JURY TRIAL

09/14/2018 NOTICE OF POSTING JURY FEES

06/21/2018 Proof-Service/Summons
Filed by Fernando Aguirre (Plaintiff)

06/21/2018 PROOF OF SERVICE SUMMONS

04/25/2018 SUMMONS

04/25/2018 COMPLAINT FOR DAMAGES 1. NEGLIGENCE ;ETC

04/25/2018 Complaint
Filed by Fernando Aguirre (Plaintiff); Eulalia Aguirre (Plaintiff); Alex Aguirre (Plaintiff)

Proceedings Held
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

Proceedings Held (Proceeding dates listed in descending order)

08/20/2019 at 1:30 PM in Department 4B, Laura A. Seigle, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

08/20/2019 at 1:30 PM in Department 4B, Laura A. Seigle, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

08/20/2019 at 1:30 PM in Department 4B, Laura A. Seigle, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

Register Of Actions
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

Register of Actions (Listed in descending order)

09/05/2019 Notice of Ruling
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

08/26/2019 [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District)
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

08/20/2019 at 1:30 PM in Department 4B, Laura A. Seigle, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

08/20/2019 at 1:30 PM in Department 4B, Laura A. Seigle, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

08/20/2019 at 1:30 PM in Department 4B, Laura A. Seigle, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

08/20/2019 Minute Order ( (Hearing on Motion to Compel Discovery (not “Further Discovery…))
Filed by Clerk

08/07/2019 Declaration (Declaration of Roland R. Tijerina in Support of Plaintiff’s Alex Aguirre, Fernando Aguirre & Eulalia Aguirre Opposition to Three Motions to Compel Responses to Form Interrogatories, Request for Production of Documents and Special Interrogatories)
Filed by Fernando Aguirre (Plaintiff)

07/01/2019 Motion to Compel (Plaintiffs responses to Special Interrogatories)
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

07/01/2019 Declaration (of Andrew A. Antaramian in Support of Motion to Compel Plaintiffs Responses to Form Interrogatories)
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

07/01/2019 Motion to Compel (Responses to Form Interrogatories)
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

07/01/2019 Declaration (of Andrew A. Antaramian in Support of Motion to Compel Plaintiffs Responses to Request for Production of Documents)
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

07/01/2019 Declaration (of Andrew A. Antaramian in Support of Motion to Compel Plaintiffs Responses to Special Interrogatories)
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

07/01/2019 Motion to Compel (Plaitiffs Responses to Request for Production of Documents)
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

09/17/2018 Notice of Posting of Jury Fees
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

09/17/2018 Demand for Jury Trial
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

09/17/2018 DEMAND FOR JURY TRIAL

09/17/2018 CIVIL DEPOSIT

09/17/2018 ANSWER TO PLAINTIFF’S COMPLAINT

09/17/2018 Answer
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

09/17/2018 Receipt
Filed by Leonardo Tamazyan (Defendant); Lena Madoyan (Defendant)

09/14/2018 NOTICE OF POSTING JURY FEES

06/21/2018 Proof-Service/Summons
Filed by Fernando Aguirre (Plaintiff)

06/21/2018 PROOF OF SERVICE SUMMONS

04/25/2018 SUMMONS

04/25/2018 COMPLAINT FOR DAMAGES 1. NEGLIGENCE ;ETC

04/25/2018 Complaint
Filed by Fernando Aguirre (Plaintiff); Eulalia Aguirre (Plaintiff); Alex Aguirre (Plaintiff)

Case Number: BC708171
MICHELE L ASTIAZARAN VS TODD A GROTH
Filing Courthouse: Stanley Mosk Courthouse

Filing Date: 05/31/2018
Case Type: Premises Liability (e.g.slip & fall) (General Jurisdiction)
Status: Request for Dismissal – Before Trial not following ADR or more than 60 days since ADR 09/23/2019

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FUTURE HEARINGS
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

None

PARTY INFORMATION
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

ASTIAZARAN MICHELLE L. – Plaintiff

GROTH TODD – Defendant Erroneously Sued As

GROTH TODD A. – Defendant

LONG MICHAEL FRANCIS ESQ. – Attorney for Legacy Party

PABST KINNEY AND ASSOCIATES – Non-Party

SPANIAC KATHARINE LYNN ESQ. – Attorney for Non-Party

WORKMAN DAVID JAMES ESQ. – Attorney for Plaintiff

Documents Filed
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

Documents Filed (Filing dates listed in descending order)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
04/23/2019

09/24/2019 Certificate of Mailing for ((Non-Appearance Case Review Re: Notice of Settlement of Entire…) of 09/24/2019)
Filed by Clerk

09/24/2019 Minute Order ( (Non-Appearance Case Review Re: Notice of Settlement of Entire…))
Filed by Clerk

09/24/2019 Notice of Settlement
Filed by Michelle L. Astiazaran (Plaintiff)

09/23/2019 Request for Dismissal
Filed by Michelle L. Astiazaran (Plaintiff)

08/26/2019 Notice of Ruling
Filed by Michelle L. Astiazaran (Plaintiff)

08/22/2019 Minute Order ( (Hearing on Plaintiff’s Motion to Enforce Compliance With Depo…))
Filed by Clerk

08/20/2019 Notice (of Taking Motion to Quash Off Calendar)
Filed by Pabst Kinney and Associates (Non-Party)

08/16/2019 Reply (Plaintiff’s REPLY to Pabst Kinney & Associates’ OPPOSITION to Plaintiff’s Motion to Enforce Compliance with Deposition Subpoena for Business Records from Pabst Kinney & Associates; Memorandum of Points and Authorities; Dec of David J. Workman; Dec of Edd)
Filed by Michelle L. Astiazaran (Plaintiff)

08/14/2019 Declaration (in Support of Motion to Quash)
Filed by Pabst Kinney and Associates (Non-Party)

08/14/2019 Motion to Quash
Filed by Pabst Kinney and Associates (Non-Party)

08/09/2019 Declaration (of Katherine Spaniac in Support of Non-Party Pabst Kinney & Associates’ Opposition to Plaintiff’s Notice of Motion and Motion to Enforce Compliance With Deposition Subpoena for Business Records From Pabst Kinney & Associates)
Filed by Pabst Kinney and Associates (Non-Party)

08/09/2019 Declaration (of Pamela Feltnor in Support of Non-Party Pabst Kinney & Associates’ Opposition to Plaintiff’s Notice of Motion and Motion to Enforce Compliance With Deposition Subpoena for Business Records From Pabst Kinney & Associates)
Filed by Pabst Kinney and Associates (Non-Party)

08/09/2019 Non-Party Pabst Kinney & Associates’ Opposition to Plaintiffs’ Notice of Motion and Motion to Enforce Compliance With Deposition Subpoena for Business Records From Pabst Kinney & Associates; Request for Sanctions in the Amount of $2,200.00 Against
Filed by Pabst Kinney and Associates (Non-Party)

07/23/2019 Proof of Service re: Notice of Motion and Motion to Enforce Compliance Subpoena for Business Records; Request for Sanctions of $2,686.65
Filed by Michelle L. Astiazaran (Plaintiff)

07/22/2019 Plaintiff’s Notice of Motion and Motion to Enforce Compliance with Deposition Subpoena for Business Records from Pabst Kinney & Associates, Inc.; Request for Sanctions of $2,686.65
Filed by Michelle L. Astiazaran (Plaintiff)

07/08/2019 Notice (Notice of Taking Motion to Quash Off Calendar)
Filed by Todd A. Groth (Defendant)

06/20/2019 Notice (of Taking Motion to Quash Off Calendar)
Filed by Todd A. Groth (Defendant)

06/14/2019 Notice of Joinder of Non-Party Pabst Kinney & Associates to Motion to Quash Deposition Subpoena Filed by Defendant Todd A. Groth
Filed by Pabst Kinney and Associates (Non-Party)

05/28/2019 Notice of Ruling
Filed by Michelle L. Astiazaran (Plaintiff)

05/21/2019 Minute Order ( (Hearing on Plaintiff’s Ex Parte Application for An Order Adva…))
Filed by Clerk

05/21/2019 Ex Parte Application (Plaintiff’s Ex Parte Application for an Order Advancing the Hearing of Defendant’s Motion to Quash Deposition Subpoena to Pabst Kinney & Associates, Inc.; Memorandum of Points and Authorities; Declaration of David J. Workman)
Filed by Michelle L. Astiazaran (Plaintiff)

05/20/2019 Opposition (to Ex Parte Application to Advance Hearing Date on Motion to Quash Subpoena for Production of Business Records)
Filed by Todd A. Groth (Defendant)

05/20/2019 Declaration (of Telephonic, Facsimile and E-mail Notice of Ex Parte Application for an Order Advancing the Hearing of Defendant’s Motion to Quash Deposition Subpoena to Pabst Kinney & Associates, Inc.)
Filed by Michelle L. Astiazaran (Plaintiff)

05/15/2019 The Law Offices of Anthony T. Schneider’s Notice of Motion and Motion to Quash Deposition Subpoena; Request for Sanctions of $2,510.00
Filed by Todd A. Groth (Defendant)

05/08/2019 Notice of Ruling
Filed by Michelle L. Astiazaran (Plaintiff)

05/02/2019 Notice of Ruling
Filed by Michelle L. Astiazaran (Plaintiff)

05/02/2019 Certificate of Mailing for (Minute Order (Hearing on Motion to Compel Plaintiff’s Notice of Motion and …) of 05/02/2019)
Filed by Clerk

05/02/2019 Minute Order ( (Hearing on Motion to Compel Plaintiff’s Notice of Motion and …))
Filed by Clerk

04/24/2019 Plaintiff’s Reply to Defendant Todd Groth’s Opposition to Plaintiff’s Motion to Compel Deposition of Sandra Corella and For Sanctions; Memorandum of Points and Authorities; Declaration of David J. Workman; Declaration of Eddie Avalos
Filed by Michelle L. Astiazaran (Plaintiff)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 04/23/2019

04/23/2019 Plaintiff’s Reply to Defendant Todd Groth’s Opposition to Plaintiff’s Motion to Compel Deposition of Sandra Corella and for Sanctions
Filed by Michelle L. Astiazaran (Plaintiff)

04/18/2019 Opposition (to Motion to Compel Deposition of Sandra Corella and for Sanctions)
Filed by Todd A. Groth (Defendant)

04/02/2019 Notice of Deposit – Jury
Filed by Michelle L. Astiazaran (Plaintiff)

03/15/2019 Plaintiff’s Notion of Motion and Motion to Compel Sandra Corella to Attend and Give Testimony at Deposition and to Produce Documents; and Request for Sanctions
Filed by Michelle L. Astiazaran (Plaintiff)

07/12/2018 Receipt
Filed by Clerk

07/12/2018 CIVIL DEPOSIT

07/11/2018 Demand for Jury Trial

07/11/2018 Notice
Filed by Todd A. Groth (Defendant)

07/11/2018 Demand for Jury Trial
Filed by Todd A. Groth (Defendant)

07/11/2018 Answer
Filed by Todd A. Groth (Defendant)

07/11/2018 Notice of Posting Jury Fees

07/11/2018 Answer OF TODD A. GROTH

06/18/2018 Notice and Acknowledgment of Receipt
Filed by Michelle L. Astiazaran (Plaintiff)

06/18/2018 NOTICE AND ACKNOWLEDGMENT OF RECEIPT – CIVIL

06/04/2018 PLAINTIFFS DEMAND FOR JURY TRIAL

06/04/2018 Demand for Jury Trial
Filed by Michelle L. Astiazaran (Plaintiff)

05/31/2018 COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

05/31/2018 SUMMONS

05/31/2018 Complaint
Filed by Michelle L. Astiazaran (Plaintiff)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 04/23/2019

Proceedings Held
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

Proceedings Held (Proceeding dates listed in descending order)

09/30/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Quash (Motion to Quash Deposition Subpoena) – Not Held – Continued – Party’s Motion

09/24/2019 at 10:00 AM in Department 2, Kristin S. Escalante, Presiding
Non-Appearance Case Review

09/17/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Quash (Plaintiff’s Deposition Subpoena For Personal Appearance and Production of Documents and Things;) – Not Held – Taken Off Calendar by Party

08/22/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion – Other (to Enforce Compliance With Deposition Subpoena For Business Records From Pabst Kinney & Associates, Inc.; Request For Monetary Sanctions) – Held – Motion Granted

07/10/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Quash (Deposition Subpoena; Request for Sanctions) – Not Held – Taken Off Calendar by Party

06/10/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Quash (Motion to Quash Deposition Subpoena) – Not Held – Rescheduled by Party

05/21/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Hearing on Ex Parte Application (for An Order Advancing The Hearing of Defendant’s Motion to Quash Deposition Subpoena to Pabst Kinney * Associates, Inc.) – Held – Motion Granted

05/02/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel (Plaintiff’s Notice of Motion and Motion to Compel Sandra Corella to Attend and Give Testimony at Deposition and to Produce Documents; Request for Sanctions) – Held – Motion Granted

Register Of Actions
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

Register of Actions (Listed in descending order)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
05/15/2019

09/30/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Quash (Motion to Quash Deposition Subpoena) – Not Held – Continued – Party’s Motion

09/24/2019 at 10:00 AM in Department 2, Kristin S. Escalante, Presiding
Non-Appearance Case Review

09/24/2019 Certificate of Mailing for ((Non-Appearance Case Review Re: Notice of Settlement of Entire…) of 09/24/2019)
Filed by Clerk

09/24/2019 Minute Order ( (Non-Appearance Case Review Re: Notice of Settlement of Entire…))
Filed by Clerk

09/24/2019 Notice of Settlement
Filed by Michelle L. Astiazaran (Plaintiff)

09/23/2019 Request for Dismissal
Filed by Michelle L. Astiazaran (Plaintiff)

09/17/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Quash (Plaintiff’s Deposition Subpoena For Personal Appearance and Production of Documents and Things;) – Not Held – Taken Off Calendar by Party

08/26/2019 Notice of Ruling
Filed by Michelle L. Astiazaran (Plaintiff)

08/22/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion – Other (to Enforce Compliance With Deposition Subpoena For Business Records From Pabst Kinney & Associates, Inc.; Request For Monetary Sanctions) – Held – Motion Granted

08/22/2019 Minute Order ( (Hearing on Plaintiff’s Motion to Enforce Compliance With Depo…))
Filed by Clerk

08/20/2019 Notice (of Taking Motion to Quash Off Calendar)
Filed by Pabst Kinney and Associates (Non-Party)

08/16/2019 Reply (Plaintiff’s REPLY to Pabst Kinney & Associates’ OPPOSITION to Plaintiff’s Motion to Enforce Compliance with Deposition Subpoena for Business Records from Pabst Kinney & Associates; Memorandum of Points and Authorities; Dec of David J. Workman; Dec of Edd)
Filed by Michelle L. Astiazaran (Plaintiff)

08/14/2019 Motion to Quash
Filed by Pabst Kinney and Associates (Non-Party)

08/14/2019 Declaration (in Support of Motion to Quash)
Filed by Pabst Kinney and Associates (Non-Party)

08/09/2019 Declaration (of Pamela Feltnor in Support of Non-Party Pabst Kinney & Associates’ Opposition to Plaintiff’s Notice of Motion and Motion to Enforce Compliance With Deposition Subpoena for Business Records From Pabst Kinney & Associates)
Filed by Pabst Kinney and Associates (Non-Party)

08/09/2019 Non-Party Pabst Kinney & Associates’ Opposition to Plaintiffs’ Notice of Motion and Motion to Enforce Compliance With Deposition Subpoena for Business Records From Pabst Kinney & Associates; Request for Sanctions in the Amount of $2,200.00 Against
Filed by Pabst Kinney and Associates (Non-Party)

08/09/2019 Declaration (of Katherine Spaniac in Support of Non-Party Pabst Kinney & Associates’ Opposition to Plaintiff’s Notice of Motion and Motion to Enforce Compliance With Deposition Subpoena for Business Records From Pabst Kinney & Associates)
Filed by Pabst Kinney and Associates (Non-Party)

07/23/2019 Proof of Service re: Notice of Motion and Motion to Enforce Compliance Subpoena for Business Records; Request for Sanctions of $2,686.65
Filed by Michelle L. Astiazaran (Plaintiff)

07/22/2019 Plaintiff’s Notice of Motion and Motion to Enforce Compliance with Deposition Subpoena for Business Records from Pabst Kinney & Associates, Inc.; Request for Sanctions of $2,686.65
Filed by Michelle L. Astiazaran (Plaintiff)

07/10/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Quash (Deposition Subpoena; Request for Sanctions) – Not Held – Taken Off Calendar by Party

07/08/2019 Notice (Notice of Taking Motion to Quash Off Calendar)
Filed by Todd A. Groth (Defendant)

06/20/2019 Notice (of Taking Motion to Quash Off Calendar)
Filed by Todd A. Groth (Defendant)

06/14/2019 Notice of Joinder of Non-Party Pabst Kinney & Associates to Motion to Quash Deposition Subpoena Filed by Defendant Todd A. Groth
Filed by Pabst Kinney and Associates (Non-Party)

06/10/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Quash (Motion to Quash Deposition Subpoena) – Not Held – Rescheduled by Party

05/28/2019 Notice of Ruling
Filed by Michelle L. Astiazaran (Plaintiff)

05/21/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Hearing on Ex Parte Application (for An Order Advancing The Hearing of Defendant’s Motion to Quash Deposition Subpoena to Pabst Kinney * Associates, Inc.) – Held – Motion Granted

05/21/2019 Ex Parte Application (Plaintiff’s Ex Parte Application for an Order Advancing the Hearing of Defendant’s Motion to Quash Deposition Subpoena to Pabst Kinney & Associates, Inc.; Memorandum of Points and Authorities; Declaration of David J. Workman)
Filed by Michelle L. Astiazaran (Plaintiff)

05/21/2019 Minute Order ( (Hearing on Plaintiff’s Ex Parte Application for An Order Adva…))
Filed by Clerk

05/20/2019 Declaration (of Telephonic, Facsimile and E-mail Notice of Ex Parte Application for an Order Advancing the Hearing of Defendant’s Motion to Quash Deposition Subpoena to Pabst Kinney & Associates, Inc.)
Filed by Michelle L. Astiazaran (Plaintiff)

05/20/2019 Opposition (to Ex Parte Application to Advance Hearing Date on Motion to Quash Subpoena for Production of Business Records)
Filed by Todd A. Groth (Defendant)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 05/15/2019

05/15/2019 The Law Offices of Anthony T. Schneider’s Notice of Motion and Motion to Quash Deposition Subpoena; Request for Sanctions of $2,510.00
Filed by Todd A. Groth (Defendant)

05/08/2019 Notice of Ruling
Filed by Michelle L. Astiazaran (Plaintiff)

05/02/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel (Plaintiff’s Notice of Motion and Motion to Compel Sandra Corella to Attend and Give Testimony at Deposition and to Produce Documents; Request for Sanctions) – Held – Motion Granted

05/02/2019 Certificate of Mailing for (Minute Order (Hearing on Motion to Compel Plaintiff’s Notice of Motion and …) of 05/02/2019)
Filed by Clerk

05/02/2019 Minute Order ( (Hearing on Motion to Compel Plaintiff’s Notice of Motion and …))
Filed by Clerk

05/02/2019 Notice of Ruling
Filed by Michelle L. Astiazaran (Plaintiff)

04/24/2019 Plaintiff’s Reply to Defendant Todd Groth’s Opposition to Plaintiff’s Motion to Compel Deposition of Sandra Corella and For Sanctions; Memorandum of Points and Authorities; Declaration of David J. Workman; Declaration of Eddie Avalos
Filed by Michelle L. Astiazaran (Plaintiff)

04/23/2019 Plaintiff’s Reply to Defendant Todd Groth’s Opposition to Plaintiff’s Motion to Compel Deposition of Sandra Corella and for Sanctions
Filed by Michelle L. Astiazaran (Plaintiff)

04/18/2019 Opposition (to Motion to Compel Deposition of Sandra Corella and for Sanctions)
Filed by Todd A. Groth (Defendant)

04/02/2019 Notice of Deposit – Jury
Filed by Michelle L. Astiazaran (Plaintiff)

03/15/2019 Plaintiff’s Notion of Motion and Motion to Compel Sandra Corella to Attend and Give Testimony at Deposition and to Produce Documents; and Request for Sanctions
Filed by Michelle L. Astiazaran (Plaintiff)

07/12/2018 CIVIL DEPOSIT

07/12/2018 Receipt
Filed by Clerk

07/11/2018 Answer
Filed by Todd A. Groth (Defendant)

07/11/2018 Notice of Posting Jury Fees

07/11/2018 Answer OF TODD A. GROTH

07/11/2018 Demand for Jury Trial

07/11/2018 Demand for Jury Trial
Filed by Todd A. Groth (Defendant)

07/11/2018 Notice
Filed by Todd A. Groth (Defendant)

06/18/2018 NOTICE AND ACKNOWLEDGMENT OF RECEIPT – CIVIL

06/18/2018 Notice and Acknowledgment of Receipt
Filed by Michelle L. Astiazaran (Plaintiff)

06/04/2018 Demand for Jury Trial
Filed by Michelle L. Astiazaran (Plaintiff)

06/04/2018 PLAINTIFFS DEMAND FOR JURY TRIAL

05/31/2018 COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

05/31/2018 Complaint
Filed by Michelle L. Astiazaran (Plaintiff)

05/31/2018 SUMMONS

Filed 10/7/19 LaBonty v. Momager CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

JOHN C. LABONTY, JR.,

Plaintiff and Respondent,

v.

MOMAGER, INC., et al.,

Defendants and Appellants.

B289830

(Los Angeles County

Super. Ct. No. BC676635)

APPEAL from an order of the Superior Court of Los Angeles County, Michelle Court Williams, Judge. Affirmed.

Kinsella Weitzman Iser Kump & Aldisert, Michael Kump, Jonathan P. Steinsapir and Nicholas C. Soltman for Defendants and Appellants.

Allen Matkins Leck Gamble Mallory & Natsis, Todd E. Whitman and Scott J. Leipzig for Plaintiff and Respondent.

_________________________

The question presented is whether the trial court correctly concluded there was no arbitration agreement, express or via equitable estoppel, between plaintiff John LaBonty and defendants Kim, Khloe, and Kourtney Kardashian; their mother and manager Kris Jenner; their four respective corporations, Kimsaprincess, Inc., Khlomoney, Inc., 2Die4Kourt, Inc., and Momager, Inc.; and their attorney Todd Wilson (collectively the Kardashian defendants). Plaintiff/respondent John LaBonty alleged he was terminated as Chief Executive Officer (CEO) of Haven Beauty, Inc., (Haven) at the instigation of the Kardashian defendants who wanted to deprive him of his equity interest in Haven. The Kardashian defendants moved to compel arbitration. Finding no applicable agreement to arbitrate, the trial court denied the Kardashian defendants’ motion to compel arbitration. We affirm.

BACKGROUND

LaBonty’s complaint states the following allegations:

The Kardashian defendants routinely grant licenses to third parties to sell various Kardashian products. In May 2012, some of the Kardashian defendants entered into a Licensing Agreement with Boldface Group, Inc., (Boldface) which authorized Boldface to sell Kardashian branded cosmetics and to use the Kardashians’ trademark, names, likenesses, and images in connection with sale of those cosmetics. (¶ 18.) The Licensing Agreement between Boldface and the Kardashians included an arbitration clause.

In December 2013, LaBonty began consulting for Boldface. In March 2014, LaBonty signed a three-year written Employment Agreement to serve as Boldface’s CEO and President. The Employment Agreement between Boldface and LaBonty included an arbitration clause. LaBonty soon discovered that Boldface was in financial distress. LaBonty advised the board of directors that Boldface was insolvent and needed a buyer, a merger partner, a receivership, bankruptcy protection, or some other restructuring event to survive. (¶¶ 23-25.) Boldface’s largest secured creditor was Hillair Capital Management LLC.

In July 2014, the Kardashian defendants, Hillair, and Boldface decided the best course of action was for the Boldface assets, including the Kardashian licenses, to be sold through a vehicle known as an assignment for the benefit of creditors. It was agreed that the Kardashian defendants, Hillair, and LaBonty would form, own, and operate a new company (Newco later named Haven). On July 30, 2014, Hillair and the Kardashian defendants signed a Term Sheet for the new business. The Term Sheet stated Hillair would contribute about $5 million to Newco—about $2 million through a credit bid for Boldface’s assets in contemplated insolvency proceedings and about $3 million in equity capital. The Term Sheet provided the [unnamed] CEO of Newco/Haven would have a 5 percent equity interest in the company, with the possibility of earning an additional 4 percent. LaBonty was not a signatory to the Term Sheet, but it is undisputed that the term “CEO” in the Term Sheet referred to him. (¶¶ 29-33, Exh. A.)

Hillair believed Boldface’s shareholders would be unwilling to sell the company’s assets to Newco so Hillair, as a secured creditor, brought a lawsuit against Boldface, in effect, to foreclose on Boldface’s assets. Hillair sought and obtained appointment of a receiver to take over Boldface’s assets and property. During the receivership, LaBonty continued to act as CEO of Boldface. (¶¶37–40.)

In October 2014, the receiver scheduled an auction of Boldface’s assets. On October 17, 2014, Hillair won the auction with a credit bid. On October 22, 2014, Boldface’s assets were awarded to Newco/Haven. The next day, the Kardashian defendants and Hillair named LaBonty CEO of Newco/Haven. (¶¶ 42–46.)

About one year later, on September 21, 2015, Hillair principals notified LaBonty he was being terminated as CEO of Haven effective immediately. (¶ 55.)

On September 20, 2017, LaBonty filed this lawsuit against Hillair and the Kardashian defendants, alleging causes of action for (1) breach of contract based on the Term Sheet; (2) breach of the implied covenant of good faith and fair dealing, also based on the Term Sheet; (3) intentional interference with prospective economic advantage, based on the equity share provision in the Term Sheet; and (4) intentional interference with contractual relations, based on the Term Sheet.

In the general allegations of the complaint, LaBonty alleged that after he was terminated, the Kardashian defendants and Wilson “took steps to undermine the deal set forth in the Term Sheet.” (¶ 60.) LaBonty alleged two specific examples: on information and belief the Kardashian defendants “ceased making any effort to market, promote, and support the Kardashian Beauty line, as well as interfered with Haven’s ability to effectively distribute the Kardashian Beauty line.” (¶ 61.) LaBonty then alleged that “[m]ultiple examples of the Kardashian Defendants’ failure to perform under the Term Sheet and their conscious effort to undermine Haven are set forth in the Hillair Complaint.” (¶ 62.) The allegations in Paragraphs 1 through 62 are incorporated by reference into all four causes of action. For each cause of action LaBonty alleged he was a third-party beneficiary of the Term Sheet and the Kardashian-prompted termination of his employment deprived him of his equity interest in Haven. For each cause of action LaBonty sought damages in the amount of the value he put on the equity interest in Haven granted to him by the Term Sheet.

DISCUSSION

“Both the Federal Arbitration Act (9 U.S.C. § 1 et seq.) and the California Arbitration Act (Code Civ. Proc.,[ ] § 1280 et seq.) favor enforcement of valid arbitration agreements. (Moses H. Cone Hospital v. Mercury Constr. Corp. (1983) 460 U.S. 1, 24–25 [74 L.Ed.2d 765, 103 S.Ct. 927] [‘the [Federal] Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration . . .’]; Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 25–26 [58 Cal.Rptr.3d 434, 157 P.3d 1029] [strong public policy in favor of arbitration].) ‘The fundamental policy underlying both acts “is to ensure that arbitration agreements will be enforced in accordance with their terms.” ’ [Citation.]” (UFCW & Employers Benefit Trust v. Sutter Health (2015) 241 Cal.App.4th 909, 918-919, fn. omitted.)

“The strong public policy in favor of arbitration does not extend to those who are not parties to an arbitration agreement, and a party cannot be compelled to arbitrate a dispute that he has not agreed to resolve by arbitration.” (Benasra v. Marciano (2001) 92 Cal.App.4th 987, 990; accord, Matthau v. Superior Court (2007) 151 Cal.App.4th 593, 598.)

The parties to an arbitration agreement may agree to delegate the issue of arbitrability to the arbitrator, when, for example, an arbitration agreement incorporates all the JAMS rules for arbitration. (See Greenspan v. LADT, LLC (2010) 185 Cal.App.4th 1413, 1442–1443 (Greenspan) [incorporation of JAMS rules evidences intent to delegate issue of arbitrability to arbitrator].) However, an agreement to delegate arbitrability does not relieve a party seeking arbitration of its burden of proving to a court the existence of a valid arbitration agreement. As the United States Supreme Court recently made clear, “before referring a dispute to an arbitrator, the court determines whether a valid arbitration agreement exists. See 9 U.S.C. § 2. But if a valid agreement exists, and if the agreement delegates the arbitrability issue to an arbitrator, a court may not decide the arbitrability issue.” (Henry Schein, Inc. v. Archer & White Sales, Inc. (2019) 586 U.S. ___ [139 S.Ct. 524, 530] (Henry Schein, Inc.).)

California cases interpreting the California Arbitration Act are in accord. “ ‘The question of whether a nonsignatory is a party to an arbitration agreement is one for the trial court [to decide] in the first instance.’ ” (Benaroya v. Willis (2018) 23 Cal.App.5th 462, 469; see also American Builder’s Assn. v. Au-Yang (1990) 226 Cal.App.3d 170, 179 [“If an arbitrator, rather than a trial court, were to determine whether an arbitration provision were operative against a nonsignatory, a stranger to the agreement might be subjected to and be bound by an arbitration to which such stranger had not consented and would be without effective review.”].)

When a party brings a motion to compel arbitration, the trial court may resolve the motion “in summary proceedings, in which ‘[t]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination. [Citation.]’ [Citation.] ‘We will uphold the trial court’s resolution of disputed facts if supported by substantial evidence. [Citation.] Where, however, there is no disputed extrinsic evidence considered by the trial court, we will review its arbitrability decision de novo.’ [Citations.]” (Lane v. Francis Capital Management LLC (2014) 224 Cal.App.4th 676, 683.)

A. It Was The Trial Court’s Obligation to Consider Whether The Boldface Employment Agreement Was A Valid Arbitration Agreement.

It is undisputed that the Employment Agreement between LaBonty and his former employer Boldface contains an arbitration provision. The Kardashian defendants contend the trial erred “by ruling on arbitrability at all” as to the Employment Agreement because that agreement incorporated the JAMS rules for arbitration, and in doing so the parties agreed to have the issue of arbitrability decided by the arbitrator. (See Greenspan, supra, 185 Cal.App.4th at pp. 1442–1443.)

“[B]efore referring a dispute to an arbitrator, the court determines whether a valid arbitration agreement exists. See 9 U.S.C. § 2. But if a valid agreement exists, and if the agreement delegates the arbitrability issue to an arbitrator, a court may not decide the arbitrability issue.” (Henry Schein, Inc., supra, 139 S.Ct. at p. 530.)

Here, the trial court determined that the Employment Agreement was not a valid arbitration agreement between LaBonty and the Kardashian defendants. It found that the Employment Agreement between LaBonty and Boldface had not been adopted by LaBonty and/or Haven, and so did not govern or apply to LaBonty’s employment with Haven. This is a finding that no valid arbitration agreement existed, a decision entrusted only to the trial court and not to any arbitrator.

B. The Employment Agreement Between LaBonty And Boldface Does Not Govern LaBonty’s Relationship With Haven.

The Kardashian defendants contend in the alternative that the trial court erred in refusing to compel arbitration under the Employment Agreement between LaBonty and Boldface because Haven adopted the written Employment Agreement between Boldface and LaBonty and LaBonty’s claims arise out of his employment with Haven.

The parties offered conflicting evidence on whether Haven adopted the Employment Agreement between LaBonty and Boldface.

LaBonty stated in his declaration in opposition to the motion to compel arbitration: “During my tenure as CEO of Haven Beauty, Inc. I did not have a written employment agreement. [¶] At no time during my tenure as CEO of Haven Beauty, Inc., did I discuss or agree that I would be employed by Haven Beauty, Inc. pursuant to the terms of my written employment agreement with Boldface Group, Inc.” He attached a copy of a severance agreement proffered to him upon his termination, and noted that it “makes no reference to any written employment agreement with Haven Beauty, Inc., because one did not exist.”

The Kardashian defendants offered evidence “that the amount for which Plaintiff settled [his termination claim against Haven] is the same as the salary under the Boldface agreement.” The trial court noted there were at least two apparent differences between the Boldface Employment Agreement and LaBonty’s agreement with Haven: (1) the complaint alleges LaBonty as CEO was paid considerably more by Haven than he was paid by Boldface; and (2) the Boldface employment agreement itself contained a provision providing for LaBonty to acquire an equity interest in Boldface, yet LaBonty’s entitlement as CEO to an equity share in Haven was specified in the Term Sheet.

The court found the Kardashian defendants’ evidence “insufficient to establish that Plaintiff and Haven agreed Plaintiff’s employment would be under the terms and conditions as set out in the Boldface agreement.” The court also found Haven was “not the assignee or successor in interest to Boldface, but the purchaser of its asset at a receivership auction.”

Undisputed facts establish Haven as a newly formed corporation which acquired the assets of Boldface at a receivership auction. Haven’s status as purchaser only of Boldface’s assets, LaBonty’s declaration, and the difference in the location of the equity interest provisions are substantial evidence to support the trial court’s finding that Haven and LaBonty did not agree LaBonty’s employment with Haven would be under the same terms and conditions as his employment with Boldface. If we were to review the record de novo, we would reach the same conclusion as the trial court. That LaBonty decided to settle his claims against Haven for the same salary he had received from Boldface does not support an inference that the parties had adopted or ratified all the terms of the written Employment Agreement between LaBonty and Boldface. The Boldface Employment Agreement and its arbitration clause do not reach the claims between LaBonty and the Kardashian defendants.

C. Equitable Estoppel Does Not Compel Arbitration Under the License Agreement.

The Kardashian defendants contend the trial court committed reversible error in failing to address their argument that equitable estoppel compelled application of the arbitration clause of the Licensing Agreement to LaBonty’s claims. They argue LaBonty’s claims depend on and are inextricably intertwined with the License Agreement executed by certain Kardashian defendants and Boldface. They further contend this court can independently determine the applicability of the doctrine and compel arbitration.

LaBonty replies the Kardashian defendants have forfeited their claim of error based on omissions in the court’s written explanation of its ruling. We agree. Ordinarily, we would apply the doctrine of implied findings to this issue. However, because the Kardashian defendants did not offer any extrinsic evidence to support their claim, and relied on the allegations of the complaint and the relevant agreements, we presume only that the trial court ruled against the Kardashian defendants. We will review the merits of their claim. We determine that equitable estoppel does not apply.

1. Forfeiture

A statement of decision can be issued in support of a trial court’s order denying a motion to compel arbitration. (Metis Development LLC v. Bohacek (2011) 200 Cal.App.4th 679, 687.) Section 1291 provides: “A statement of decision shall be made by the court, if requested pursuant to Section 632, whenever an order or judgment, except a special order after final judgment, is made that is appealable under this title.” As the Court in Metis explained, “[S]ection 1291 mandates the issuance of a statement of decision in the part of the Code of Civil Procedure that pertains to petitions to compel arbitration, and the denial of a petition to compel arbitration is an appealable order, [so] the logical inference is that the Legislature intended to require the trial court to issue a statement of decision, upon proper request under section 632, when denying a petition to compel arbitration.” (Metis, at p. 687.)

The Kardashian defendants failed to request a statement of decision. “A party’s failure to request a statement of decision when one is available has two consequences. First, the party waives any objection to the trial court’s failure to make all findings necessary to support its decision. Second, the appellate court applies the doctrine of implied findings and presumes the trial court made all necessary findings supported by substantial evidence. [Citations.] This doctrine ‘is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error.’ [Citation.]” (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 970.)

Notwithstanding the absence of a request, the trial court sua sponte issued a written decision explaining its ruling. The Kardashian defendants assert the writing is “the functional equivalent of a statement of decision.” They contend that we should look to the court’s writing to determine whether it was supported by the facts and the law and determine the trial court erred in failing to discuss their equitable estoppel argument.

Treating the writing as a statement of decision means it was rendered pursuant to section 632 et seq. “[S]ection 634 requires that any omissions or ambiguities in the statement of decision must be ‘brought to the attention of the trial court either prior to entry of judgment or in conjunction with’ a new trial motion (§ 657) or a motion to vacate the judgment (§ 663), thus allowing the court to respond to objections before the taking of an appeal.” (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 982.) When a party “fails to object under section 634 (depriving the trial court of the opportunity to clarify or supplement its statement of decision before losing jurisdiction), objections to the adequacy of a statement of decision may be deemed waived on appeal.” (Id. at p. 983.)

The Kardashian defendants believe that because the trial court made a written ruling, this court should review the writing without regard to the waiver doctrine. They rely on In re Marriage of Rising (1999) 76 Cal.App.4th 472, where the Court of Appeal undertook a substantive review of a statement of decision issued sua sponte by the trial court, found the trial court failed to explain the reasons for its step-down order, and remanded the matter for further proceedings. (Id. at pp. 476–479 & fn. 7.) In that case, however, “appellant specifically objected to the court’s statement of decision on the ground it did not specify the factual or legal basis for the step-downs.” (Id. at p. 477, fn. 7.) Thus, Rising does not assist the Kardashian defendants.

2. Equitable estoppel does not apply.

Equitable estoppel is generally a question of fact. (Mt. Holyoke Homes, LP v. California Coastal Com. (2008) 167 Cal.App.4th 830, 840.) If the trial court’s decision depends on disputed facts or extrinsic evidence, the doctrine of implied findings applies. If “the facts bearing on the trial court’s decision derive solely from the language of plaintiff’s complaint and from the terms of the [arbitration agreement], [and] neither [are] in dispute,” the “doctrine of implied factual findings does not come into play.” (Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696, 708.) In such instances we independently review the questions of law raised by the decision. (Ibid.)

Here, the Kardashian defendants did not offer extrinsic evidence to support their argument that equitable estoppel applied. They generally relied on the allegations of the complaint and the language of the Term Sheet and License Agreement. Independently reviewing the record, we find that the doctrine of equitable estoppel cannot be supported by the allegations of the complaint and the language of the agreements alone.

The Kardashian defendants relied on one or two phrases from the general allegations of the complaint, specifically LaBonty’s allegation that “the Kardashian Defendants and Wilson took steps to undermine the deal set forth in the Term Sheet. [¶] . . . [T]he Kardashian Defendants ceased making any effort to market, promote and support the Kardashian Beauty line.” (¶¶ 60, 61.) LaBonty further alleged that defendants took these “steps to undermine the deal set forth in the Term Sheet in part to deprive LaBonty of any benefits to which he might otherwise be entitled.” (¶ 63.) They contend the Term Sheet does not impose any duty on them to make such an effort, and any duty must therefore arise from the License Agreement. Hence the arbitration clause of the License Agreement must apply.

The Kardashian defendants do not address the remainder of the allegations in the post-termination section of the complaint. There, LaBonty also alleges that the Kardashian defendants “interfered with Haven’s ability to effectively distribute the Kardashian Beauty line” and that “[m]ultiple examples of the Kardashian Defendants’ failure to perform under the Term Sheet and their conscious effort to undermine Haven are set forth in the Hillair Complaint.” (¶¶ 61, 62.) It is not possible to determine from these allegations whether LaBonty’s termination claim depends on and is intertwined with the Kardashian defendants’ actions or inactions after his termination.

The quoted allegations may “ ‘ “touch matters” relating to’ ” the License Agreement, but that is not sufficient under state and federal law to support application of the equitable estoppel doctrine to a non-signatory plaintiff. (Jensen v. U-Haul Co. of California (2017) 18 Cal.App.5th 295, 306.) The allegations do not show that LaBonty’s “claims are so dependent on and inextricably intertwined with the underlying contractual obligations of the agreement containing the arbitration clause that equity requires those claims to be arbitrated.” (Id. at p. 307.) Regardless of the Kardashian defendants’ post-termination conduct with respect to their marketing obligations under the Licensing Agreement, LaBonty’s claims all rest on their decision to terminate him so they would not have to give him the equity interest set forth in the Term Sheet.

The Kardashian defendants urge that even if doubts exist about the applicability of equitable estoppel, those doubts should be resolved in favor of arbitration, noting that “California has a strong public policy in favor of arbitration,” with any doubt “resolved in favor of arbitration, not against it.” (Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686–687.) However, the “strong public policy in favor of arbitration does not extend to those who are not parties to an arbitration agreement.” (Benasra v. Marciano, supra, 92 Cal.App.4th at p. 990.)

We note that in their reply brief on appeal, the Kardashian defendants make factual arguments they only hinted at in the trial court: “Haven had gone belly up” by the time LaBonty brought this lawsuit. “[W]ithout the Kardashians’ performance of these separate marketing and promotion obligations, LaBonty could not receive any benefits from the ‘Term Sheet’ bargain (i.e., the value of the equity in the licensee).” (Italics omitted.) “In mathematical terms, 9 percent of a penniless company . . . is of course $0. Only if the Kardashians proximately caused the company to go under would the lost equity have harmed LaBonty in a legal sense.” (Italics omitted.)

Claims raised for the first time in a reply brief on appeal are generally forfeited, but even if these specific arguments had been raised in the opening brief, they would not succeed. Assuming Haven is insolvent is a fact not found in the record before us; indeed, appellants include no citations to the record to show that this insolvency argument was a basis of the motion to compel arbitration. The Kardashian defendants did not establish factually or legally that LaBonty could only receive the value of his equity interest by relying on the Kardashian defendants’ non-performance under the License Agreement.

To “demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record.” (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286–287.) The Kardashian defendants have not done so. We may and do “disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wanted us to adopt.” (Id. at p. 287.) “We are not bound to develop appellants’ arguments for them.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.)

DISPOSITION

The trial court’s order denying arbitration is affirmed. Respondent is awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

GRIMES, Acting P. J.

WILEY, J.

Filed 10/7/19 Velez v. JPMorgan Chase Bank CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

EDMUNDO VELEZ,

Plaintiff and Appellant,

v.

JPMORGAN CHASE BANK, N.A.,

Defendant and Respondent.

C084147

(Super. Ct. No. 34-2013-00149821-CU-OR-GDS)

Edmundo Velez sued JPMorgan Chase Bank, N.A. (Chase) for fraud and negligent misrepresentation in connection with his loan modification application. The trial court granted Chase’s motion for summary judgment, mainly because there was no evidence to support the misrepresentations alleged in Velez’s second amended complaint.

Velez now contends (1) there are disputed issues of material fact, (2) Chase failed to establish there was no evidence of misrepresentations, (3) there was evidence of reasonable reliance on misrepresentations, and (4) there was evidence of actionable damages. We conclude (1) there are no remaining triable, material issues of fact, (2) there is no evidence to support the allegations of misrepresentation in the second amended complaint, (3) there is no evidence of reasonable reliance on the pleaded misrepresentations, and (4) we need not consider whether there was evidence of actionable damages because other elements of the fraud and negligent misrepresentation causes of action are absent.

STANDARD OF REVIEW

“On review of a summary judgment, we ‘examine the record de novo and independently determine whether [the] decision is correct. [Citation.]’ [Citation.] In undertaking our independent review of the evidence submitted, we apply ‘ “the same three-step process required of the trial court: First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claims and justify a judgment in movant’s favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citations.]” ’ [Citation.]” (Dawson v. Toledano (2003) 109 Cal.App.4th 387, 392.)

The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues, while the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) Thus, the allegations of the complaint frame the material issues against which the evidence concerning the motion for summary judgment is judged. (Ibid.)

BACKGROUND

In the operative second amended complaint, Velez alleged three causes of action: (1) violation of the California Homeowner Bill of Rights, (2) negligent misrepresentation, and (3) fraud.

In a section titled “GENERAL ALLEGATIONS,” Velez alleged the following:

He submitted several complete loan modification applications to Chase, but those applications were either misplaced or lost. Velez went to a Chase branch and, with the help of a Chase representative, submitted another loan modification application. The “Chase representative with the authority to speak on Chase’s behalf represented to [Velez] that the application was complete and that he would hear back within the next thirty days as to whether he would be approved for a loan modification.” Meanwhile, Chase recorded a notice of trustee’s sale regarding Velez’s residence. Chase requested further documentation on the loan modification application, which Velez provided. After Velez filed this action, Chase cancelled the pending trustee’s sale.

In the first cause of action for violation of the California Homeowner Bill of Rights, Velez alleged that Chase impermissibly filed a notice of trustee’s sale while the loan was being reviewed for modification. In response to Chase’s motion for judgment on the pleadings on this cause of action, Velez voluntarily dismissed the cause of action for violation of the California Homeowner Bill of Rights. No issue concerning the first cause of action is presented on appeal.

In the second cause of action for negligent misrepresentation, Velez asserted the following allegations: Chase employee Michael Woody told Velez that some documents concerning Velez’s loan modification application were either lost or misplaced. Another Chase employee, Christine Kitka-Westmoveland told Velez (1) his loan modification application was complete, (2) he would hear back from Chase within 30 days, (3) Chase would not move forward with foreclosure while the loan modification application was being reviewed, and (4) Velez qualified for a loan modification based on the information he provided. The representations of Wood and Kitka-Westmoveland were false, and Chase knew or should have known of their falsity. Velez reasonably relied on the representations because Woody and Kitka-Westmoveland held themselves out as having authority to speak on Chase’s behalf. And Velez suffered damages from the misrepresentations because he spent hours and resources reapplying for a loan modification and eventually lost the opportunity to apply for a loan modification.

In the third cause of action for fraud, Velez alleged the following: Kitka-Westmoveland told Velez (1) he submitted a complete loan modification application, (2) he was not under risk of foreclosure while his loan was being reviewed for modification, and (3) he qualified for loan modification based on the information he provided. Kitka-Westmoveland knew her representations were false, and Chase intended for Velez to rely on Kitka-Westmoveland’s representations so that he would not act to stop the foreclosure proceedings. Velez reasonably relied on Kitka-Westmoveland’s representations because Chase had sole authority to stop foreclosure proceedings and Chase was prohibited under the California Homeowner Bill of Rights from proceeding with foreclosure while Velez’s loan was being reviewed for modification. Velez suffered damages from the fraud because he spent time and resources on multiple attempts to obtain modification of his loan and, as a result of the stress, suffered a heart-related injury. Velez also lost the opportunity to obtain an affordable loan and save his home.

In deposition testimony, Velez said he did not remember speaking to Michael Woody or Christine Kitka-Westmoveland. He admitted the Chase employees did not lie to him about whether his loan modification application was complete, and he acknowledged that the branch employees he spoke to did not have authority to approve or deny his application.

Chase filed a motion for summary judgment, which the trial court granted. Concerning the second cause of action for negligent misrepresentation, the trial court concluded there was no misrepresentation because Velez said he did not believe any Chase employee lied to him. Concerning the third cause of action for fraud, the trial court concluded there was no misrepresentation because Velez admitted he did not know whether the Chase employees’ statements about the completeness of his loan modification application were wrong. The trial court also concluded there were no actionable damages because Velez continues to occupy the home despite being in default and the time spent applying for loan modification was de minimis.

After granting the motion for summary judgment, the trial court dismissed the action.

DISCUSSION

I

Velez contends the trial court improperly granted summary judgment because there remained triable issues of material fact.

“The elements of fraud are (1) the defendant made a false representation as to a past or existing material fact; (2) the defendant knew the representation was false at the time it was made; (3) in making the representation, the defendant intended to deceive the plaintiff; (4) the plaintiff justifiably relied on the representation; and (5) the plaintiff suffered resulting damages. [Citation.] The elements of negligent misrepresentation are the same except for the second element, which for negligent misrepresentation is the defendant made the representation without reasonable ground for believing it to be true. [Citations.]” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792.) Thus, both fraud and negligent misrepresentation causes of action require a false representation of past or existing fact.

According to Velez, a trial court must find that no fact enumerated in the moving party’s statement of undisputed facts is triable before it can grant summary judgment, and because Velez produced evidence to dispute some of the facts enumerated in Chase’s separate statement of undisputed facts, the trial court could not grant summary judgment. We disagree. The trial court may grant summary judgment if any element of the cause of action is negated by an undisputed fact. In such instances, the remaining facts are immaterial. (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 84.)

In support of its motion for summary judgment, Chase produced evidence that Velez did not remember talking to the two Chase employees who allegedly made the misrepresentations to him. Velez produced no evidence that he spoke to Woody or Kitka-Westmoveland. By establishing the absence of evidence to support Velez’s claim that Woody and Kitka-Westmoveland made any representation at all to Velez, let alone a misrepresentation, Chase established the absence of an element of both the negligent misrepresentation and fraud causes of action.

In addition to the absence of the alleged misrepresentation, Velez admitted in his deposition testimony the Chase employees did not lie to him about whether his loan modification application was complete. Chase was therefore entitled to summary judgment.

II

Velez also argues the evidence established misrepresentations made by “Ms. Franco,” a Chase employee. But Velez did not allege any statements or misrepresentations made by Ms. Franco in the second amended complaint.

“Fraud allegations ‘ “involve a serious attack on character” ’ and therefore are pleaded with specificity. [Citation.] General and conclusory allegations are insufficient. [Citation.] The particularity requirement demands that a plaintiff plead facts which ‘ “ ‘show how, when, where, to whom, and by what means the representations were tendered.’ ” ’ [Citation.] Further, when a plaintiff asserts fraud against a corporation, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’ [Citation.] Less specificity in pleading fraud is required ‘when “it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy . . . .” ’ [Citation.]” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469; see also Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166 [specificity requirement applies to both fraud and negligent misrepresentation causes of action].)

In the second and third causes of action of his second amended complaint, Velez alleged that misrepresentations were made by Woody and Kitka-Westmoveland — that is, specific people. He did not allege misrepresentations were made by a Chase employee he could not identify or would identify later. Nevertheless, Velez argues in a footnote that the name of the particular Chase employee is immaterial. For this proposition, he relies on West v. JPMorgan Chase Bank, N.A., supra, 214 Cal.App.4th 780. However, that case is unhelpful to him. In that case, the pleadings blamed unnamed bank employees for misrepresentations. (Id. at pp. 793-794.) Here, the names of specific employees were alleged, but the evidence did not support the allegations. And Velez made no attempt to amend his second amended complaint to allege facts supported by evidence. (See Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 182.)

Because the complaint frames the issues for summary judgment, fraud allegations must be pleaded with specificity, and Velez did not plead any misrepresentation by Ms. Franco, Velez’s appellate argument regarding Ms. Franco lacks merit.

III

Velez further contends there was evidence of reasonable reliance on misrepresentations. But because the evidence failed to establish any misrepresentation pleaded in the second amended complaint, there is no misrepresentation upon which a reasonable reliance argument can be made.

IV

In addition, Velez claims the trial court erred by concluding he did not suffer actionable damages. Because Velez failed to establish any of the alleged misrepresentations, an essential element to both the fraud and negligent misrepresentation causes of action, we need not consider whether there was evidence of actionable damages and also need not consider Velez’s related contention that the trial court erred by overruling his objection to evidence concerning damages.

DISPOSITION

The judgment is affirmed. Chase is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

/S/

MAURO, J.

We concur:

/S/

BLEASE, Acting P. J.

/S/

RENNER, J.

Filed 10/7/19 Marriage of Wullert-Zucca and Zucca CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of MAGDALENA WULLERT-ZUCCA and FERNANDO ZUCCA.

MAGDALENA WULLERT-ZUCCA,

Respondent,

v.

FERNANDO ZUCCA,

Appellant.

G055398

(Super. Ct. No. 14D011212)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Barry S. Michaelson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed and remanded.

Magdalena Wullert-Zucca, in pro. per., for Respondent.

Quinn & Dworakowski, Stephane Quinn and David Dworakowski for Appellant.

* * *

Appellant Fernando Zucca (Fernando) appeals from a pendente lite order awarding child support, spousal support, and sanctions to respondent Magdalena Wullert Zucca (Magdalena) in a marital dissolution proceding. Fernando raises several challenges to the court’s order. First, he contends the order is void as to spousal support because he stipulated to the commissioner hearing the issue of child support, not spousal support. Second, he asserts the court exceeded its jurisdiction by making the spousal and child support orders retroactive to August 1, 2015. Third, he argues the court erred by including, as part of his income, rental income from his subtenant. He further argues the court made mathematical errors in calculating his income. Fourth, he contends the court abused its discretion in determining his temporary spousal support obligation because the court failed to consider either Magdalena’s ability to earn income or his ability to pay after his company lost its contract. Lastly, he asserts the court erred in awarding $5,000 in attorney fees and sanctions against him. We agree the court made mathematical errors in calculating Fernando’s income and remand for the court to recalculate his child support payments under the state guideline based on the corrected calculation. In all other respects, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

After approximately 15 years of marriage, Magdalena filed a petition for dissolution of her marriage to Fernando in December 2014; at the time, they had two children, ages 7 and 10. Fernando filed a response and a request for dissolution but listed a different date of separation.

On July 10, 2015, Fernando filed an ex parte request for order (RFO) for, among other things, legal and physical custody of their two children. It was denied pending a hearing scheduled for August 4, 2015. Magdalena filed an ex parte RFO on July 24, 2015, which was also denied pending the August 4 hearing. In her RFO, she requested legal and physical custody of the children and that Fernando be ordered to pay child support and spousal support.

On August 4, 2015, Judge Naughton initiated a hearing on the two RFOs, indicating custody would be decided first and then the support issues. A few minutes into the hearing, Magdalena, appearing in propria persona, requested the court continue the matter so she could obtain counsel. The court granted her request, ordered Fernando to pay $5,000 toward her attorney fees, and gave her two weeks to obtain counsel. A temporary order of joint legal custody of the children was issued with primary physical custody to Magdalena.

Magdalena was represented by counsel at the next hearing on August 17, 2015, and the parties reached agreements as to child custody, visitation, and support. Based on the parties’ stipulation, the court ordered Fernando to pay monthly child support of $1,193 and monthly spousal support of $633, effective August 1, 2015. The stipulation and order provided the total monthly support of $1,826 was an interim order “subject to recalculation and retroactivity upon evidence of each party’s income.” The order further stated, “The issue of retroactivity of support is reserved.”

The next hearing on the RFOs was before Judge Sarmiento on October 26, 2015. Neither party was ready to proceed on the family support issues because they were still conducting discovery. Fernando’s counsel requested the court take the matter off calendar, but Magdalena’s counsel explained there was a dispute as to the date of separation and a finding was needed on that issue as it affected other orders. Pursuant to a stipulation of the parties, the court set a briefing schedule for a bifurcated trial on the date of separation and all pending RFOs.

On January 22, 2016, Magdalena filed another RFO for attorney fees and costs and for the appointment of a forensic accountant.

A hearing on the pending RFOs was scheduled for March, continued to April, and then to June. When the parties appeared before Judge Sarmiento on June 29, 2016, Magdalena was represented by newly retained counsel, who requested the matter be continued. Fernando’s counsel again requested the matter be taken off calendar. The court ordered all RFOs taken off calendar “subject to being restored in 90 days.”

Within 90 days, Magdalena filed, in propria persona, a request for orders on child support, spousal support, attorney fees and costs, and the date of separation. A hearing on her request was held on January 23, 2017, before Judge Sarmiento. Her request for child support was transferred to a child support commissioner because the Department of Child Support Services (DCSS) was enforcing the earlier child support order. Judge Sarmiento indicated Magdalena’s request for attorney fees would have to wait as he needed findings on income and child support before determining attorney fees. A hearing on the date of separation and spousal support was set for a later date.

The trial on Magdalena’s request for child support finally began on April 13, 2017, before Commissioner Michaelson. After the presentation of some evidence, the court ordered both parties to produce additional documents to each other and DCSS, and the hearing was continued to May 2017. At the hearing in May, the court found Fernando had not complied with its April order to produce documents. Fernando was ordered to comply with the court’s order, and the matter was continued to June 2017.

Prior to the June hearing, Magdalena’s counsel, Vicki Roberts, submitted two requests for sanctions against Fernando under Family Code section 271 based on his violations of the court’s orders to produce documents.

Additional evidence to determine Fernando’s child support obligation was presented on June 6, June 14, and July 5, 2017. Multiple hearings were necessary to establish Fernando’s income because of the complexity of his finances. Fernando owned Z-Power Solutions, a subchapter S corporation, which he described as a database consulting company. His company had one client, Yamana Gold.

On July 18, 2017, Commissioner Michaelson filed an eight-page tentative decision with two attachments. The two attachments detailed the state guideline calculations of Fernando’s child support obligations based on the court’s findings as to the parties’ income. The tentative decision indicated “[t]he first issue to be determined is the effective date of the jurisdiction of the court to modify the August 17, 2015 stipulation for child support and spousal support.” The court found Magdalena’s requests for orders filed on July 24, 2015 and January 22, 2016 were before Judge Sarmiento on June 29, 2016, when he ordered “‘all Requests for Order on calendar taken off calendar subject to being restored in 90 days’” and that Magdalena filed a request for orders within 90 days, thereby complying with Judge Sarmiento’s order and “substantially compl[ying] with local rule 705([D]).” The court, therefore, concluded its jurisdiction was retroactively effective to July 24, 2015, the date on which Magdalena filed her request for orders regarding child support and spousal support.

The second issue addressed in the tentative was Fernando’s “net income available . . . for child support and also for spousal support.” The court explained its findings and calculations as to Fernando’s income, and based on its calculations, the court determined Fernando had a monthly income of $18,604 between August 1, 2015 through March 31, 2017. Using a state guideline child support calculation program, the court calculated Fernando’s child support obligations for this period to be $3,092 a month. From April 1, 2017 forward, the court calculated Fernando’s child support obligations to be $1,180 a month based on an assumed minimum monthly income of $4,000. The calculation of Fernando’s income and child support payments changed as of April 1, 2017, because the contract between Fernando’s corporation and its client Yamana Gold had been terminated for the 2017 fiscal year.

In determining Fernando’s child support obligations for both time periods, the court included in the calculation an amount for spousal support payments to Magdalena. In its tentative, the court indicated “a temporary order for spousal support is appropriate to be paid by [Fernando] to [Magdalena] in the amount of $2,000 per month effective July 1, 2016.”

The court also found Fernando “caused increased costs to be incurred . . . by his continued failure to comply with the court orders previously issued,” and indicated Fernando was to pay $5,000 in sanctions under section 271 to Magdalena’s counsel.

DCSS was ordered to prepare a minute order “incorporating the provisions” of the court’s intended decision. Fernando did not object to the court’s tentative decision or request a statement of decision addressing any controverted issues. At Magdalena’s request, the court subsequently ordered that its tentative decision become the statement of decision under California Rules of court, rule 3.1590. On August 4, 2017, DCSS filed an “Amended Minutes and/or Order” that incorporated the court’s written decision and orders to pay child support, spousal support, and sanctions. Fernando appealed from the August 4 order.

DISCUSSION

I. MOTION TO DISMISS THE APPEAL

After Fernando filed his opening brief, Magdalena moved to dismiss the appeal. She seeks dismissal under the disentitlement doctrine on the ground Fernando is not in compliance with the child and spousal support orders that he is challenging in his appeal. We ordered her motion to be decided with the decision on appeal.

The disentitlement doctrine empowers a reviewing court to dismiss an appeal by a party who refuses to comply with trial court orders. (Stoltenberg v. Ampton Investments, Inc. (2013) 215 Cal.App.4th 1225, 1229.) The doctrine “‘is based on the equitable notion that a party to an action cannot seek the assistance of a court while the party “stands in an attitude of contempt to legal orders and processes of the courts of this state.”’” (In re E.M. (2012) 204 Cal.App.4th 467, 476.) “No formal judgment of contempt is required; an appellate court ‘may dismiss an appeal where there has been willful disobedience or obstructive tactics.’” (Stoltenberg, at p. 1230.)

In support of her motion to dismiss, Magdalena submitted an accounting from DCSS showing that over an 18-month period, between January 2017 and June 2018, Fernando made only one spousal support payment of $555.58. He has done a little better with his child support obligations, paying something most months, but only once has he satisfied his monthly child support obligation. Based on this and other exhibits, Magdalena argues the appeal should be dismissed because Fernando has “refused to comply” with the court’s orders for child and spousal support. Fernando counters he is “unable” to comply because he has had difficulty finding work and his failure to pay his support obligations is “not a willful act.” Whether Fernando’s failure to pay his support obligations is due to inability or willful disobedience is a factual question that has not been resolved by the trial court.

Although a formal judgment of contempt is not a prerequisite for the dismissal of an appeal under the disentitlement doctrine, generally, when the doctrine has been applied without a formal contempt finding, the misconduct was not subject to a factual dispute. For example, in Stone v. Bach (1978) 80 Cal.App.3d 442, the court dismissed an appeal (id. at p. 449) based on the appellant’s refusal to comply with a pretrial order to deposit money into a trustee account and refusal to participate in a postjudgment debtor examination (id. at pp. 443-444). There was no factual dispute regarding the amount to be deposited. The order simply required the appellant to “deposit partnership monies collected by him” into the trust account. (Id. at p. 443.) In Blumberg v. Minthorne (2015) 233 Cal.App.4th 1384, we applied the disentitlement doctrine to dismiss a trustee’s appeal after she disobeyed a court order to file an accounting and quitclaimed certain property to her daughter that the court had ordered her to quitclaim to her stepgrandson. (Id. at p. 1386.)

In contrast, in this case, we are presented with a factual dispute as to whether Fernando’s failure to pay is an act of willful disobedience or lack of finances. But we are not fact finders. That is the job of a trial court where testimony and exhibits can be subjected to examination and cross-examination and the credibility of witnesses can be judged. (See, e.g., People v. Woods (1999) 21 Cal.4th 668, 673 [the trial court is “vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences” when presiding over a motion to suppress evidence under Pen. Code, § 1538.5].) Findings as to whether Fernando has deliberately failed to comply with the court’s family support orders must come from the trial court. Absent those findings, we cannot say dismissal is appropriate in this case under the disentitlement doctrine. We deny Magdalena’s motion to dismiss and proceed to the issues Fernando has raised in his appeal.

II. COURT’S AUTHORITY REGARDING SPOUSAL SUPPORT

Fernando contends Commissioner Michaelson did not have authority to enter an order for spousal support. Fernando’s failure to object below is fatal to his claim.

The facts relating to this issue are not in dispute. Because DCSS was enforcing the interim child support order, the trial concerning calculation of Fernando’s child support obligation was transferred from Judge Sarmiento to Commissioner Michaelson, a child support commissioner. (§ 4251, subd. (a).)

When the parties first appeared before Commissioner Michaelson, he clarified with them that the only issue before him was child support. He explained that because it was a DCSS case, he would be presiding as a temporary judge unless either party objected, and if there was an objection, he would preside as a referee. None of the parties objected. After looking at the prior family support order, the commissioner again sought verification from the parties that spousal support was not before him. Magdalena’s counsel explained DCSS would not take on enforcement of the spousal support order so it remained with Judge Sarmiento. The following exchange then occurred between the court and Fernando’s counsel regarding the spousal support matter:

“The parties can stipulate for me to do both [child support and spousal support] since I do regular family law as well as child support. However, it now is postured that I only do the child support. If that’s acceptable to everyone, let’s do it that way. I’d hate to see you try a case twice on the same criteria, but that’s up to you. And I feel uncomfortable unless all parties stipulate.

“[Fernando’s Counsel]: Judge Sarmiento indicated that the economic findings that this court makes will—absent a material change in circumstances from the time the court makes it to the time we have our hearing, will be utilized to calculate a guideline spousal support order pending trial.

“So I don’t know that there’s a difference between this court making economic findings and putting it into the disso-master or Judge Sarmiento doing it in July.

“The Court: Well, the difficulty is this. Spousal support impacts because of tax considerations the net income available for support under Family Code 4058. This court uses by law the guideline from the CSE, the Child Support Enforcement of Department of Child Support Services. So the numbers are generally very close.

“But the question is, if I do not include—well let’s just leave it as it is. And Judge Sarmiento will do what he wants to do. That makes sense.”

The record of the trial, which was heard on five dates over several months, does not show any change in the understanding of the court or the parties that the court was only determining Fernando’s child support obligation and not spousal support. Yet, when the court filed its tentative decision on July 18, 2017, it included a finding as to spousal support. The tentative decision stated “[t]he issues of child support . . . and spousal support” had been transferred to Commissioner Michaelson “for trial and decision” and subsequently explained, “[t]he second issue to be determined is the net income available to [Fernando] under Family Code Section 4058 for child support and also for spousal support.” The court’s tentative decision, after calculating Fernando’s income, indicates “that a temporary order for spousal support is appropriate to be paid by [Fernando] to [Magdalena] in the amount of $2,000 per month effective July 1, 2016.” At Magdalena’s request, the court’s tentative decision became its statement of decision. (Cal. Rules of Court, rule 3.1590(b),(d)). Consistent with the court’s tentative and statement of decision, Fernando was ordered to pay $2,000 a month in spousal support. At no point did Fernando object to the court’s proposed decision concerning spousal support or move for a new trial or reconsideration of the spousal support order.

Now on appeal, Fernando contends the spousal support order is void because he did not stipulate to Commissioner Michaelson hearing and ruling on this issue. Fernando cites little authority to support his argument; he relies only on section 4251, subdivision (a), and our decision in Orange County Dept. of Child Support Services v. Superior Court (2005) 129 Cal.App.4th 798, 806. Because Fernando’s contention concerns the application of a statute, we apply the de novo standard of review. (Kern County Dept. of Child Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1035.) We begin our analysis by looking at section 4251.

Section 4251 concerns child support cases, like this one, where DCSS is enforcing a child support obligation (§ 17400). Subdivision (a) of section 4251 explains that if enforcement services are being provided by the local child support agency, “[a]ll actions or proceedings” filed by either a party or the child support agency “to modify or enforce a support order” must be referred to a child support commissioner for hearing. Subdivision (b) of the statute provides in relevant part, “The commissioner shall act as a temporary judge unless an objection is made by the local child support agency or any other party.” Subdivision (c) states: “If any party objects to the commissioner acting as a temporary judge, the commissioner may hear the matter and make findings of fact and a recommended order. Within 10 court days, a judge shall ratify the recommended order unless either party objects to the recommended order, or where a recommended order is in error. In both cases, the judge shall issue a temporary order and schedule a hearing de novo within 10 court days. Any party may waive his or her right to the review hearing at any time.”

As applied, section 4251 required Magdalena’s request for modification of the interim child support order be heard by a child support commissioner because DCSS was providing enforcement services for her. (§ 4251, subd. (a).) As neither the parties nor DCSS objected, Commissioner Michaelson acted as a temporary judge in hearing the matter as to child support. (Id. subd. (b).) He also had the power as a commissioner to “[h]ear and report findings and conclusions” as to spousal support, subject to the supervision of the court. (Code Civ. Proc., § 259, subds. (e), (f).) Although Commissioner Michaelson had the power to make findings and recommendations as to spousal support, it was not requested of him.

In County of Orange v. Smith (2002) 96 Cal.App.4th 955 (Smith), we examined section 4251 and concluded it requires a party “object to a commissioner twice (before and after the commissioner rules in the case) to have the matter reviewed by a superior court judge.” (Id. at p. 961.) Fernando’s failure to satisfy this two-objection requirement is fatal to his appellate claim. Perhaps we could imply an initial objection by Fernando to Commissioner Michaelson hearing the spousal support issue because Fernando did not stipulate to the commissioner deciding this issue. But even if we imply an initial objection, the commissioner still had authority to “hear the matter and make findings of fact and a recommended order” (§ 4251, subd. (c)), and Fernando failed to object after the commissioner ruled.

When Fernando received the tentative decision and realized Commissioner Michaelson strayed beyond the parameters of ordering child support, Fernando had an obligation to object. Had Fernando objected to Commissioner Michaelson’s findings and order regarding spousal support, he would have been entitled to a de novo hearing before a superior court judge. Section 4251, subdivision (c), provides that if either party objects to the commissioner’s recommended order “or where a recommended order is in error,” “the judge shall issue a temporary order and schedule a hearing de novo within 10 court days.” (Ibid.) Absent an objection or a party informing the court that a recommended order was issued “in error,” a judge has no duty to schedule a de novo hearing within 10 court days. Fernando neither objected nor otherwise informed the court that he believed the spousal support order was in error. He did not file a motion for new trial (Code Civ. Proc., § 657) or for reconsideration (Code Civ. Proc., § 1008) of the spousal support order or seek to vacate the order (Code Civ. Proc., § 663).

“It is axiomatic that arguments not raised in the trial court are forfeited on appeal.” (Kern County Dept. of Child Support Services v. Camacho, supra, 209 Cal.App.4th at p. 1038.) A bedrock principle of appellate practice is that a reviewing court “‘will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) Here, the absence of any objection by Fernando in the trial court necessarily results in the forfeiture of his argument on appeal. Accordingly, we affirm the spousal support order.

III. RETROACTIVITY OF THE PENDENTE LITE SUPPORT ORDERS

Generally, pendente lite support orders can be made retroactive to the date the request was filed, but not earlier. (§§ 3603, 3653, subd. (a), 4009; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 300.) Here, the issue is whether the support orders were retroactive to Magdalena’s July 2015 RFO, which had been taken off calendar by the court, or her September 2016 RFO. Fernando contends the support orders could only be retroactive to September 2016 and that the court exceeded its jurisdiction by making them retroactive to 2015. We conclude the court correctly found that Magdalena’s July 2015 request for support orders was restored when she filed another request for orders in September 2016, within 90 days of her first request being taken off calendar.

Background

On June 29, 2016, the parties appeared before Judge Sarmiento for a hearing on pending RFOs, which at the time included Magdalena’s request for child support and spousal support filed on July 24, 2015, and her request for attorney fees and costs filed on January 22, 2016. The court also had before it the parties’ briefs on the bifurcated issue of the date of separation. Fernando’s counsel requested the matters be taken off calendar, while Magdalena’s counsel requested a continuance because he was newly retained. The court ordered all requests for orders “taken off calendar subject to being restored in 90 days.”

Within the 90-day timeframe, in September 2016, Magdalena filed a request for orders on the issues previously before the court: child support, spousal support, attorney fees and costs, and the date of separation (September 2016 RFO). A hearing on her request was scheduled for January 23, 2017. On that date, Judge Sarmiento transferred the trial on the request for child support. The court set a new briefing schedule on the date of separation issue after noting Magdalena had included it in her RFO, which was filed within 90 days of the court taking it off calendar.

During the trial before Commissioner Michaelson, a question arose as to the effective date for the court’s determination of Fernando’s child support obligation. The court reviewed the minute order for the proceedings in which Judge Sarmiento took the RFOs off calendar subject to restoration, and the court noted that Superior Court of Orange County, Local Rules, rule 705 (local rule 705) permitted a matter taken off calendar to be reset with the original effective date if filed within 90 days. Fernando’s counsel argued there was “no request to restore”; while Magdalena’s counsel asserted the RFO was filed within 90 days. The court reviewed Magdalena’s September 2016 RFO and commented, “It doesn’t say change or temporary. It just says request for order child support, spousal support, date of separation” “and attorney fees.” After reading local rule 705, the court stated, “I don’t see a written application with the court.” When Magdalena’s counsel argued the September 2016 RFO satisfied the local rule, the court responded the RFO was “not an application to restore. That’s a request for order to modify going forward.” Taking the matter under submission, the court indicated it was unsure whether the effective date for the child support order was when the original request for orders was filed in July 2015 or when Magdalena filed her September 2016 RFO.

In its tentative decision, the court found its jurisdiction was effective to the date of Magdalena’s requests for orders in July 2015, explaining she “complied with the order of Judge Sarmiento and substantially complied with local rule 705[D],” by timely filing her September 2016 RFO within 90 days of Judge Sarmiento taking all pending RFOs off-calendar. Fernando did not object, and the court’s findings were unchanged in its statement of decision, which was attached to its order for child and spousal support filed on August 4, 2017.

The Court’s Finding is Supported by Substantial Evidence

Fernando contends “[w]hether Commissioner Michaelson had jurisdiction to retroactively modify the existing support orders beyond September 23, 2016 is purely a legal question subject to this court’s independent review.” We view the issue differently. We view the issue as whether there is substantial evidence to support the court’s finding that Magdalena complied with Judge Sarmiento’s order and substantially complied with local rule 705(D), thereby reviving her prior requests for orders. If the court’s determination is supported by substantial evidence, and we find that it is, then it follows that the court’s jurisdiction extended back to Magdalena’s original requests for orders for child support and spousal support filed in July 2015.

Fernando asserts the court erred in finding that Magdalena’s September 2016 RFO complied with Judge Sarmiento’s order and “substantially complied with” local rule 705(D). He argues Magdalena’s September 2016 RFO requests “the court determine new issues . . . namely, the parties’ date of separation and a request for attorneys’ fees and costs” that were not in her July 2015 RFO, and therefore, her September 2016 RFO “is materially different from” her July 2015 RFO. We disagree. Magdalena did not request orders on any new issues in her September 2016 RFO. Magdalena filed a request for orders on child and spousal support in July 2015 and filed a request for attorney fees and costs in January 2016. The parties had also briefed the date of separation issue before Judge Sarmiento took all pending RFOs off calendar. Thus, Magdalena’s September 2016 RFO was not materially different; it included the previously pending issues and nothing more.

We also reject Fernando’s assertion that Magdalena’s September 2016 RFO was “materially different” because it “no longer requested original interim support orders, but rather sought to modify the August 17, 2015, stipulation for child support and spousal support.” We conclude Magdalena’s September 2016 RFO requesting modification of the August 2015 support orders was consistent with the parties’ understanding. In August 2015, the court had entered interim orders for child and spousal support based on the stipulation of the parties. The court order and stipulation stated the parties’ intent was that the interim orders would be “subject to recalculation and retroactivity upon evidence of each party’s income.” In her September 2016 RFO, Magdalena was trying to get the matter back on calendar for a hearing to be held to determine the parties’ incomes so the interim support orders could be recalculated, consistent with the prior stipulation.

Fernando also argues Magdalena’s September 2016 RFO “cannot be construed as a motion to restore because the RFO made no reference whatsoever to the July 24, 2015 filing” and failed to mention Judge Sarmiento’s order that the matters taken off calendar could be restored in 90 days. But Fernando has not pointed us to any authority indicating that such statements are required. Nor did Fernando provide us with the reporter’s transcript of the June 29, 2016 hearing during which Judge Sarmiento ordered Magdalena’s requests for orders taken off calendar subject to being restored in 90 days. Without a transcript showing otherwise, we must infer Judge Sarmiento did not impose any specific requirements to restore a request for orders within 90 days. (See County of Orange v. Smith, supra, 132 Cal.App.4th at p. 1448 [on appeal all reasonable inferences must be indulged to uphold the trial court’s finding].) We also note that when the parties appeared before him in January 2017, Judge Sarmiento treated Magdalena’s September 2016 RFO as restoring her prior requests for orders. At that hearing, Judge Sarmiento stated that the date of separation issue was previously before the court but was taken off calendar subject to being restored within 90 days and that Magdalena had filed a request for an order on the issue within that timeframe. Thus, we conclude Commissioner Michaelson’s finding that Magdalena complied with Judge Sarmiento’s order is supported by substantial evidence.

Commissioner Michaelson’s finding that Magdalena “substantially complied” with local rule 705 is also supported by substantial evidence. Local rule 705(D) states, in pertinent part: “A request for order which has been ordered off calendar may be restored to the court’s calendar by written request and, if such application is made within ninety (90) days, the initial filing will be deemed the filing date for purposes of determining commencement of child and/or spousal support.” While the rule requires a “written request” or “application” it does not specify the contents of either. Within 90 days of her RFOs being taken off calendar, Magdalena filed her September 2016 RFO which requested orders on the issues taken off calendar, substantially complying with local rule 705(D). Accordingly, we uphold the court’s finding that the child support and spousal support orders were retroactive to August 2015.

IV. CALCULATION OF FERNANDO’S INCOME

Fernando argues the court made multiple errors in calculating his monthly income available for support as $18,604 between August 1, 2015 and March 31, 2017. He asserts, when correctly calculated, his monthly income available for support was $10,679.60, and he requests the matter be remanded for recalculation of the support order. We agree there are some mathematical errors in the court’s calculation, but because we reject one of Fernando’s assertions of error, our calculation of his monthly income is $11,679.60. We remand the matter for the court to redetermine Fernando’s monthly child support obligations and any child support arrearages based on the state uniform guideline for child support.

In its statement of decision, the court explained how it calculated Fernando’s monthly income for the period of August 1, 2015 through March 31, 2017, which was then used to calculate his child support obligations. The court categorized Fernando’s income into three sections; the first two were amounts added back as income, and the third was income received. The court calculated the “Sub-total” for each section, added the three subtotals together to determine Fernando’s total income over the 20-month period, and then divided this sum by 20 to arrive at Fernando’s monthly income.

On appeal, Fernando argues the court erred in calculating each subtotal. Because Fernando did not alert the trial court to these calculation errors, his appellate contentions are subject to forfeiture. (In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 144 [explaining any alleged errors in the calculation of child support “must be brought to the trial court’s attention at the trial level while the error can still be expeditiously corrected”]. Nevertheless, we exercise our discretion to review them. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [appellate court has discretion to excuse forfeiture].)

Subtotal No. 1 Should be $73,480

Fernando complains the court made two errors in calculating Subtotal No.1; both complaints relate to rental income from his subtenant. First, he contends the court erred by including his subtenant’s rental payments in his income. Second, he argues Subtotal No.1 contains a mathematical error as the court failed to correct the subtotal after adjusting the number of months Fernando received rental payments from his subtenant. We conclude substantial evidence supports the court’s finding that the sublease rental payments constitute income for Fernando and reject his first contention. However, we agree with his second complaint and recalculate Subtotal No. 1 accordingly.

Fernando contends, without citation to authority, that the court erred by characterizing as income the $2,000 in monthly rent he receives from his subtenant. We disagree. In County of Orange v. Smith (2005) 132 Cal.App.4th 1434, we concluded when calculating child support, rental payments from a subtenant count as income under section 4058, subdivision (a)(1), “so long as the housing arrangement with the roommate is properly characterized as a sublease and the roommate’s payments are properly characterized as sublease rental payments . . . .” (Id. at p. 1448.) Reviewing the evidence in this case, we conclude substantial evidence supports the court’s finding that the sublease rental payments meet this test. In May 2015, Fernando leased a house for $4,835 a month and paid a year’s rent in advance. In June 2016, Fernando obtained a subtenant who signed a one-year sublease for $2,000 a month. In February 2017, during the subtenant’s rental period, Fernando paid all of the rent for the house for the remainder of the year. The evidence indicates the subtenant was obligated to make his rental payments to Fernando rather than the owner of the property. Thus, we reject Fernando’s appellate assertion he was “merely a pass through for [the subtenant]’s portion of the rent.” Under section 4058, subdivision (a)(1), the subtenant’s payments were properly characterized as income to Fernando.

We now turn to Fernando’s contention that there was a mathematical error in Subtotal No. 1. The court’s original calculation showed an add-back for rental income of $2,000 a month for 20 months, from August 1, 2015 through March 31, 2017, for a total of $40,000. Recognizing an error, the court made a handwritten correction to reflect that the sublease rental payments commenced on June 1, 2016, rather than August 1, 2015, and thus the rental income was $2,000 a month for 10 months, for a total of $20,000. Although the court corrected this line item, it did not recalculate the total for Subtotal No. 1. As the rental income was reduced by $20,000, the total should have been reduced from $93,480 to $73,480.

Subtotal No. 2 Should be $56,097.07

Subtotal No. 2 included 10 items added back as income to Fernando for a total of $96,097.07. Fernando challenges only the first item, contending the court erred in adding back as income a $40,000 transfer for May 13, 2015, because it occurred before August 1, 2015. We agree. Thus, the total for Subtotal No. 2 should be $56,097.07.

Subtotal No. 3 Should be $104,015

In the third section, the court calculated amounts Fernando received, including salary and net profits, from August 1, 2015 through March 31, 2017. The court also listed three items previously included in Subtotal No. 1: rental income from the renter, rental income from Z-Power, and Ms. Soto’s charges. Including these line items in both Subtotal No.1 and Subtotal No. 3 results in them being double-counted as income. We agree with Fernando that these line items should not be included in Subtotal No. 3. Thus, the total for Subtotal No. 3 is $104,015.

Fernando’s Child Support Obligation Must be Recalculated Using the State Guideline

By adding together the three subtotals, the court calculated Fernando’s total income from August 1, 2015 to March 31, 2017 to be $372,072.07, and his monthly income as $18,604 over this 20-month period. Based on the corrections discussed above, Fernando’s total income for the 20-month period should be $233,592.07 and his monthly income $11,679.60. We remand the matter to the trial court to recalculate Fernando’s monthly child support obligations and any arrearages under the state uniform guideline (§ 4055) and to enter the appropriate orders. (In re Marriage of Whealon, supra, 53 Cal.App.4th at p. 145.)

V. PENDENTE LITE SPOUSAL SUPPORT ORDER

On appeal, Fernando also challenges the court’s order that he pay Magdalena $2,000 a month in temporary spousal support effective July 1, 2016.

Temporary spousal support is available in dissolution proceedings and “‘“is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations.”’” (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327 (Wittgrove).) Because temporary spousal support is intended to maintain the status quo before the divorce, it is usually higher than permanent support. (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 522, 525.) “Awards of temporary spousal support rest within the broad discretion of the trial court and may be ordered in ‘any amount’ [citation] subject only to the moving party’s needs and the other party’s ability to pay.” (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594.) Consequently, “in exercising its broad discretion, the court may properly consider the ‘big picture’ concerning the parties’ assets and income available for support in light of the marriage standard of living.” (Wittgrove, at p. 1327.)

Fernando complains “there is no indication in the written decision that the court considered the needs of the parties and [his] expenses and ability to pay” in issuing the temporary spousal support order. We disagree. In its tentative decision, the court made findings relating to Magdalena’s needs and Fernando’s ability to pay. Fernando failed to object to the court’s tentative or statement of decision or request further findings. Thus, he has forfeited any claim that the court’s written decision was deficient. (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928.)

We also reject Fernando’s argument that the court abused its discretion by not imputing minimum wage earnings to Magdalena. As Fernando acknowledges, “no statute or published appellate decision requires a trial court to impute minimum wage to a nonworking spouse when computing temporary spousal support.” Fernando has not convinced us to impose such a requirement. Under section 3600, a court has broad discretion in determining the amount of temporary spousal support (In re Marriage of Murray, supra, 101 Cal.App.4th at p. 594), and we see no reason to impose such a condition on the court’s exercise of its discretion. Fernando’s contention that the court erred by failing to consider state guidelines in determining his spousal support obligation, similarly fails because a “court is not restricted by any set of statutory guidelines in fixing a temporary spousal support amount.” (Wittgrove, supra, 120 Cal.App.4th at p. 1327.)

Fernando also contends the court abused its discretion in determining his ability to pay. He does not attack the court’s finding that he had the ability to pay $2,000 in monthly spousal support from July 1, 2016 to March 31, 2017, but he does challenge the maintenance of this amount after his company lost its contract and the court imputed a monthly income of $4,000. We conclude the court did not abuse its discretion. In addition to Fernando’s imputed income, the court could also consider his assets in determining his ability to pay temporary spousal support. (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 159 [“Ability to pay encompasses” not only income but also “investments and other assets”].)

Fernando’s income and expense declaration filed on January 20, 2017, showed over $60,000 in easily accessible assets (cash, checking, savings, etc.). But two months later, when he signed another income and expense declaration on March 29, 2017, he stated his accessible assets were now less than $3,000. When questioned as to what happened to these assets, Fernando explained that in February 2017 he withdrew around $50,000 from his accounts to pay the rent for his residence 11 months in advance because he did not want the court to see the money and “take it” from him. The court concluded this money, $53,185, should be charged back to Fernando, a finding he does not challenge on appeal. In determining Fernando’s temporary spousal support obligation, the court could look at “the ‘big picture’” and consider Fernando’s imputed income, his accessible assets, and that Fernando listed no outstanding debts or attorney fees as expenses in his income and expense declaration. (Wittgrove, supra, 120 Cal.App.4th at p. 1327.) We affirm the temporary spousal support order.

V. SANCTIONS

The court found Fernando “caused increased costs to be incurred in this matter by his continued failure to comply with the” court’s discovery orders and ordered Fernando to pay $5,000 in sanctions to Magdalena’s counsel, Vicki Roberts, under section 271. On appeal, Fernando advances two challenges to the court’s sanctions order. First, he contends the court abused its discretion by imposing $5,000 in sanctions when Roberts only requested $4,000. Second, he asserts he complied with the court’s May 8, 2017 disclosure order, and therefore, the court abused its discretion by sanctioning him $2,000 for violating this order. We reject both contentions.

“Section 271 authorizes an award of attorney fees and costs as a sanction for uncooperative conduct that frustrates settlement and increases litigation costs.” (In re Marriage of Fong (2011) 193 Cal.App.4th 278, 290.) A trial court has broad discretion in determining whether to impose sanctions under section 271 and in setting the amount. (In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1100.) “Accordingly, we will overturn such an order only if, considering all of the evidence viewed most favorably in its support and indulging all reasonable inferences in its favor, no judge could reasonably make the order.” (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225-1226.) “‘We review any findings of fact that formed the basis for the award of sanctions under a substantial evidence standard of review.’” (Id. at p. 1226.) We conclude the court’s finding that Fernando violated the May 8, 2017, disclosure order is supported by substantial evidence, and the court did not abuse its discretion by ordering Fernando to pay $5,000 in sanctions for his failures to comply with the court’s orders to produce documents.

Fernando was initially ordered to produce certain documents to Magdalena and DCSS, including his 2016 W-2 from Z-Power by May 5, 2017. When Fernando failed to produce this document and several others by the time of the next hearing on May 8, 2017, the court found Fernando had failed to comply with its order to produce documents. A new order was issued for Fernando to produce the documents previously ordered and to produce additional documents, with all of the documents to be served by May 23, 2017. Fernando was ordered to produce the 2016 corporate tax return for Z-Power if it was prepared. But the court warned that if Fernando “does not have [a] document, then he better have a statement under oath as to why he doesn’t have it.”

Magdalena’s counsel made an oral request for sanctions at the hearing on May 8, 2017, and then filed a written request for $2,000 in sanctions based on Fernando’s violation of the court’s April 13, 2017 order to produce documents. Fernando did not contest this request for sanctions, either on appeal or in the trial court.

In a second sanctions motion, Roberts requested an additional $2,000 in sanctions based on Fernando’s failure to produce his 2016 federal tax returns, which were included in the court’s May 8 order to produce. Roberts explained the compliance date had passed and Fernando had produced neither the tax returns nor a declaration as to why they were not provided. She indicated she had contacted Fernando’s counsel about the missing items but they had not been produced yet. Her request for sanctions was submitted after the compliance date but before the next hearing on June 6; it was not stamped filed until June 9, after the hearing.

At the June 6 hearing, Fernando stated his tax returns had not been prepared yet. Roberts complained, nonetheless, that she had not received any verification—either a declaration from Fernando that the returns had not been prepared or proof of an extension. Fernando then provided Roberts and the court documentation showing he obtained an extension to file his taxes. When the court asked if any other ordered items remained outstanding, Roberts responded, “I don’t believe so.”

On appeal, Fernando asserts he did not violate the court’s May 8 order to produce documents because he had no duty to produce his 2016 tax returns as they had not been prepared yet. Fernando overlooks the fact that he was ordered to provide either his tax returns or a declaration explaining why they were not produced to Roberts by May 23. This he failed to do. Roberts’ second motion for sanctions was dated May 30, a week after Fernando was to have produced either his tax returns or a declaration explaining why his tax returns were not provided. While Roberts was eventually given proof that Fernando had obtained an extension to file his tax returns, this was not provided until June 6, well after the compliance deadline. In her closing argument when the trial ended, Roberts argued the court should grant both of her sanction requests. Fernando’s counsel did not address the requests for sanctions in his argument. Based on the appellate record, we cannot say the court abused its discretion by sanctioning Fernando for failing to comply with its order to produce documents.

We also reject Fernando’s contention that the court could award only $4,000 in attorney fees and costs because that was the amount Roberts requested in her motions. In making an award under section 271, a court is not limited to the amount requested or the costs to the other side resulting from the sanctionable conduct. (Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142, 1155 [a “party seeking sanctions pursuant to section 271 need not establish with great precision an amount directly caused by the improper conduct”].) Although the sanction amount ordered was greater than the amount Roberts requested, the amount ordered is supported by the record. Fernando’s failure to produce the ordered documents necessitated a continuance of the May 8 hearing and directly increased the costs of the litigation. In her first sanctions motion, Roberts indicated the costs resulting from Fernando’s conduct as she explained the amount of time and she and her paralegal spent preparing for the truncated May 8 hearing and that at their hourly rates the cost was $10,800, but she was only being paid $2,000 by Magdalena for representing her at the hearing. She further explained that once Fernando provided the ordered documents, she would have to expend significant time revising her planned questioning of Fernando to prepare for the next hearing. Given Fernando’s failures to comply with the court’s orders to produce documents and its impact on the litigation costs, we cannot say the sanction amount of $5,000 was arbitrary, capricious, or unreasonable.

DISPOSITION

The spousal support order and the sanctions award are affirmed. For the reasons stated in part IV of this opinion, the child support order for the period August 1, 2015, through March 31, 2017, is reversed with directions to recalculate the amount of child support using the corrected calculation of Fernando’s income reflected in this opinion. Each party is to bear its own costs on appeal.

IKOLA, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.

Case Number: 18STCV09536 Hearing Date: October 09, 2019 Dept: 20

Tentative Ruling

Judge Dalila C. Lyons

Department 20

Hearing Date: Wednesday, October 9, 2019

Case Name: Cory Brookshire v. Michael Nicholson, et al.

Case No.: 18STCV09536

Motion: Order Requiring Vexatious Litigant to Furnish Security

Moving Party: Defendants Michael Nicholson, Southland Income Properties, Inc., and Jay S. Rosenthal

Responding Party: Plaintiff Cory Brookshire

Ruling: Defendants Michael Nicholson, Southland Income Properties, Inc., and Jay S. Rosenthal’s motion for an order requiring Plaintiff Cory Brookshire, a vexatious litigant, to furnish security is GRANTED.

Plaintiff Cory Brookshire is ordered to furnish security in the amount of $30,000 by October 23, 2019. CCP § 391.3(a).

Plaintiff is ordered to file proof that he has furnished the ordered security bond by October 25, 2019.

Pursuant to CCP § 391.6, all proceedings in this case are stayed until November 11, 2019.

A status conference regarding Plaintiff’s compliance with this order and OSC re dismissal of this case is set for November 11, 2019, 8:30 a.m.

WARNING: Failure to comply with this order will subject the Plaintiff to sanctions, including dismissal of this case. Failure of Plaintiff to appear at the November 11, 2019 hearing or to timely furnish the ordered security will be deemed consent for the Court to dismiss this case on November 11, 2019 without further notice or hearing per CCP § 391.3(b).

Given the filing of the First Amended Complaint, as previously ordered by the Court, the hearing set for October 9, 2019 at 8:30 a.m. on the Motion for Judgment on the Pleadings on the Complaint is OFF CALENDAR.

Despite the stay, the parties are ordered to meet and confer regarding the outstanding discovery the subject of the Defendants’ two motions to compel discovery set for November 21, 2019. Discovery sanctions will be issued if appropriate.

Moving party shall give notice and file notice of ruling within 10 days of this ruling.

BACKGROUND

On December 24, 2018, Plaintiff Cory Brookshire (“Plaintiff”) in pro per[1] filed the Complaint against Defendants Michael Nicholson (“Nicholson”), Jay S. Rosenthal (“Rosenthal”), and Southland Income Properties, Inc. (“Southland”) and Does 1-25 for (1) intentional tort – discriminatory failure to add Plaintiff to lease; (2) breach of contract – oral and written agreement to add Plaintiff to lease; (3) intentional tort – negligence in maintaining habitable premises; and (4) “Cause of Action #6” – breach of implied warranty of habitability.

On April 15, 2019 the Court deemed Plaintiff a vexatious litigant in Los Angeles Superior Court Case No. 18STCV03281.

On September 30, 2019, Plaintiff filed the First Amended Complaint (“FAC”) against Defendants Nicholson, Rosenthal, Southland, M&M Nicholson Partners Limited No. 1; Hoffman Family Limited Partnership; Group Family Limited Partnership (collectively, “Defendants”); and Does 1-25 for (1) breach of contract; (2) negligence; (3) breach of covenant of quiet enjoyment; (4) breach of implied warranty of habitability; (5) breach of implied warranty of habitability – contract; (6) breach of implied warranty of habitability – tort; (7) violation of Bus. & Prof. Code § 17200; (8) intentional infliction of emotional distress; (9) fraud: intentional misrepresentation; (10) fraud: negligent misrepresentation; (11) fraud: false promise; (12) intrusion into private affairs.

This case arises from a lease of real property commonly known as 11250 Morrison St, Apartment 208, North Hollywood, CA (“Property”) between Brandon Winston (“Winston”) and Defendant Southland commencing on October 11, 2018 (“Lease”). Plaintiff alleges he entered the Lease on behalf of Winston. Plaintiff alleges Plaintiff was lead to believe that Plaintiff would be added to the Lease for the Property but that Defendants ultimately failed to add Plaintiff to the Lease. Plaintiff further alleges that Defendants failed to keep the Property in a habitable condition. Plaintiff alleges Defendants entered the Property without Plaintiff’s consent and video recorded Plaintiff without Plaintiff’s consent.

MOVING PARTY POSITION

Defendants move for an order requiring Plaintiff to furnish security because Plaintiff has been declared a vexatious litigant and Plaintiff has not reasonable probability of prevailing in this litigation.

OPPOSITION

Plaintiff opposes the present motion because Plaintiff is represented in this matter, Plaintiff cannot afford to furnish security, and Plaintiff has a reasonable probability of prevailing in this litigation now that the FAC has been filed.

REPLY

Defendants argue Plaintiff misstates his financial resources, it is irrelevant that Plaintiff is represented in this matter, and Plaintiff lacks a reasonable probability of prevailing because most of Plaintiff’s claims are barred by collateral estoppel or contradicted by Plaintiff’s other claims.

ANALYSIS

I. Request for Judicial Notice

Defendants request for judicial notice of the following documents pursuant to California Evidence Code Section 452(d) is GRANTED:

Judgment after jury trial entered in Los Angeles Superior Court Case No. 18PDUD04017 (“UD Case”);

Answer filed by Plaintiff in the UD Case;

Completed special verdict form in the UD Case; and

Order Deeming Plaintiff a vexatious litigant in Los Angeles Superior Court Case No. 18STCV03281.

II. Evidentiary Objections

A. Plaintiff’s Objections

Plaintiff’s objections are ruled upon as follows:

OVERRULED: 1-2

Plaintiff is not objecting to evidence, but rather to arguments of opposing counsel. A party cannot object to arguments by reference to the rules of evidence. Plaintiff is ordered to review the evidence code and comply with it in future proceedings.

B. Defendants’ Objections

Defendants’ objection to the Declaration of Eric Sapir is SUSTAINED. Defendants’ objections to the Declaration of Cory Brookshire are ruled upon as follows:

SUSTAINED: 16, 19-23, 29-34, 36-40, 42

OVERRULED: 1-15, 17-18, 24-28, 35, 41

III. Furnish Security

A defendant may move the court anytime before entry of final judgment for an order requiring the plaintiff to furnish security “upon a showing that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he or she will prevail in the litigation against the moving defendant.” CCP § 391.1. The court shall consider any evidence, written and oral, by witnesses or affidavit, as may be material to the motion. Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 784-786. Where a Plaintiff is a vexatious litigant and there is no reasonable probability that he will prevail in the litigation, the court shall order the plaintiff to furnish security. CCP § 391.3(a). The required security is an undertaking to assure payment of the opposing party’s reasonable expenses, including attorney’s fees and not limited to taxable costs, incurred in connection with a litigation instituted by a vexatious litigant. CCP § 391(c).

Here, Plaintiff shall be required to furnish security because Plaintiff has been deemed a vexatious litigant and Plaintiff lacks a reasonable probability of prevailing in the litigation.

A. Vexatious Litigant

The Court in Los Angeles Superior Court in case No. 18STCV03281 granted a motion to deem Plaintiff a vexatious litigant. Request for Judicial Notice (“RJN”) No. 4.

Plaintiff argues the present motion is improper because Plaintiff is currently seeking reconsideration of the order deeming Plaintiff a vexatious litigant. Plaintiff’s argument is unconvincing because Plaintiff has cited no authority for the idea that a vexatious litigant is not subject to the code sections requiring the vexatious litigant to furnish security while the vexatious litigant is seeking reconsideration of the order deeming him vexatious. At the time this ruling is issued Plaintiff is deemed a vexatious litigant.

Next, Plaintiff argues that the present motion is improper because Plaintiff is represented by counsel in this action. However, Plaintiff fails to provide case law supporting this argument. Plaintiff’s citation to Shalant v. Girardi (2011) 51 Cal.4th 1164 is unavailing because Shalant dealt with a different provision of the code of civil procedure that required a prefiling order for vexatious litigants filing new litigation in propia persona. Plaintiff fails to cite any cases holding a vexatious litigant need not furnish security if the vexatious litigant is represented in the present matter.

Plaintiff next argues the present motion is improper because Defendants motives in filing the motion are improper. Again, Plaintiff cites no case law stating a party’s motive affects the analysis.

Plaintiff also argues that the present motion is improper because it violates the right of Plaintiff’s counsel to represent Plaintiff. This argument lacks logic and case support. First, requiring Plaintiff to furnish security does not prevent Plaintiff from continuing to retain Plaintiff’s counsel. Second, Plaintiff’s citation to In re Marriage of Flaherty (1982) 31 Cal.3d 637 is inapposite because that case dealt with sanctions against an attorney for filing a frivolous appeal. The present motion does not seek sanctions, does not seek anything from Plaintiff’s attorney, and does not arise from an appeal.

Lastly, whether Plaintiff can afford to furnish security is not a factor in this analysis, and Plaintiff cites no case law holding a vexatious litigant is excused from furnishing security for lack of financial resources. “Trial court was not required, in setting amount of security required of plaintiff, as vexatious litigant, to take into consideration plaintiff’s means.” Devereaux v. Lathan & Watkins (1995) 32 Cal.App.4th 1571, 1588.

The Court previously determined that Plaintiff is a vexatious litigant.

B. No Reasonable Probability of Prevailing

“A showing that a vexatious litigant lacks a reasonable probability of success, as required to impose bond requirement and prefiling order, is ordinarily made by the weight of the evidence, but a lack of merit may also be shown by demonstrating that the plaintiff cannot prevail in the action as a matter of law.” Golin v. Allenby (2010) 190 Cal.App.4th 616, 642 (modified on denial of rehearing). “[T]he court does not assume the truth of a litigant’s factual allegations.” Id. at p. 635.

Here, Plaintiff lacks a reasonable probability of prevailing on all of his claims because collateral estoppel precludes Plaintiff from asserting rights under the Lease which underpin most of his claims, Plaintiff cannot prove damages for his fraud claims, and Plaintiff’s evidence of invasion of privacy contradicts allegations for invasion of privacy.

1. Contract Claims

Plaintiff’s First, Third, Fourth, and Fifth Causes of Action in the FAC are contract claims based on the Lease. Plaintiff is collaterally estopped from raising any contract claims based on the Lease against Southland. The jury in the UD Case found that Southland was the lessor of the Property and the Property was leased to Winston, not Plaintiff. RJN No. 3. Collateral estoppel applies because the issue is identical between the cases, was determined by a final decision on the merits, and binds the party–Plaintiff–against whom the doctrine is asserted. Further, the jury’s finding that Southland was the lessor precludes Plaintiff from asserting contract claims against the remaining Defendants, who were not parties to the Lease. Therefore, Plaintiff has no reasonable probability of prevailing on his First, Third, Fourth, and Fifth Causes of Action.

2. Negligence Claims

Plaintiff’s Second and Sixth Causes of Action are negligence claims based on a duty of Defendants to maintain the Property in a habitable condition. Plaintiff is collaterally estopped from claiming the Property was not maintained in a habitable condition because the jury in the UD Case found that the defective condition, leaking roof, in the Property was repaired within a reasonable time and did not affect the rental value of the Property. RJN No. 3. Again, collateral estoppel applies because the issue is identical between the cases, was determined by a final decision on the merits, and binds the party–Plaintiff–against whom the doctrine is asserted. Therefore, Plaintiff has no reasonable probability of prevailing on his Second and Sixth Causes of Action.

3. Unfair Competition Claim

Plaintiff’s Seventh Cause of Action claims violation of unfair competition law based on Defendants breaching the implied warranty of habitability and still requiring Plaintiff to pay full rent. As stated above, Plaintiff is collaterally estopped from asserting Defendants did not maintain the Property in a habitable condition because the jury in the UD Case found to the contrary in a final decision binding upon Plaintiff. Because Plaintiff cannot establish the underlying violation of law upon which his unfair competition claim is based, Plaintiff has no reasonable probability of prevailing on his Seventh Cause of Action.

4. Emotional Distress Claim

Plaintiff’s Eighth Cause of Action alleges intentional infliction of emotional distress based on Defendants’ eviction of Plaintiff from the Property. Intentional infliction of emotional distress claims must be based on “extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard for causing, emotional distress…” Hughes v. Pair (2009) 46 Cal.4th 1035, 1050. Conduct is not outrageous unless it is “so extreme as to exceed all bounds of decency usually tolerated in a civilized community.” Id. at p. 1051. Evicting a tenant is not conduct exceeding all bounds of decency. It is a societal necessity formalized through an orderly judicial process. Plaintiff’s participation in the unlawful detainer process does not involve extreme and outrageous conduct, particularly when Plaintiff was not a party to the Lease for the Property. RJN No. 3; Compl., Exh. B. Any promises by Defendants to add Plaintiff to the Lease do not convert the judicial process of unlawful detainer into extreme and outrageous conduct exceeding all bounds of decency because any promises did not change the nature of the proceedings or exacerbate the emotional toll a reasonable person would have felt from the eviction. Therefore, Plaintiff has no reasonable probability of prevailing on his Eighth Cause of Action.

5. Fraud Claims

Plaintiff’s Ninth, Tenth, and Eleventh Causes of Action are fraud claims based on Defendants’ alleged promises to add Plaintiff to the Lease. “The elements of fraud are (1) misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance on the misrepresentation, (4) justifiable reliance on the misrepresentation, and (5) resulting damages.” Cansino v. Bank of America (2014) 224 Cal. App. 4th 1462, 1459. Plaintiff has no reasonable probability of prevailing on the fraud claims, not only because the jury in the UD Case found that Southland did not communicate with Plaintiff about adding Plaintiff to the Lease after December 3, 2018, but also because Plaintiff cannot show any resulting damages from whatever promise to add Plaintiff to the Lease. RJN No. 3. The UD Case conclusively established that Plaintiff had no right to live in the Property. RJN No. 3. Plaintiff remained at the Property illegally regardless of any promises to add Plaintiff to the Lease. RJN No. 3. The UD Case also conclusively established that Defendants did not communicate with Plaintiff after December 3, 2018 about adding Plaintiff to the Lease. RJN No. 3. Therefore, the only communications Plaintiff can base his fraud claim upon occurred before December 3, 2018. According to Plaintiff, declaration filed in opposition to this motion, the only actions Plaintiff took in reliance on an alleged promise by Defendants were to exchange phone calls with Defendants about Winston moving in and Plaintiff providing an application and Plaintiff’s identification. Thus, Plaintiff fails to even allege any compensable damages arising from any fraudulent promises by Defendants, and consequently Plaintiff has no reasonable probability of proving any compensable damages for fraud. Therefore, Plaintiff has no reasonable probability of prevailing on his Ninth, Tenth, and Eleventh Causes of Action.

6. Privacy Claim

Plaintiff’s Twelfth Cause of Action is a claim for intrusion into private affairs based on Defendants entering the Property without Plaintiff’s consent and video recording Plaintiff without consent. Plaintiff has no reasonable probability of prevailing on this claim based on Defendant’s entering the Property without Plaintiff’s consent because the UD Case conclusively established Plaintiff was not a party to the Lease and therefore had no property rights in the Property. Because Plaintiff had not rights in the Property, Plaintiff did not have the right to exclude Defendants from the Property and did not have a privacy interest in the Property. A reasonable person would not be highly offended by Defendants entering property that Defendants owned and Plaintiff lacked any legal interest in.

Additionally, Plaintiff has no reasonable probability of prevailing on the Twelfth Cause of Action based on Defendants video recording Plaintiff without Plaintiff’s consent because Plaintiff’s declaration in opposition to this motion contradicts Plaintiff’s claim. Specifically, Plaintiff’s declaration refers to only one instance of video recording but states “I [Plaintiff] was not present when this happened and I did not know it happened.” Brookshire Decl. ¶ 13. Plaintiff repeats twice more that Plaintiff was not at the Property when Defendants did their video recording. Brookshire Decl. ¶ 13. Given that Plaintiff’s declaration contradicts his allegation that Plaintiff was video recorded without his consent, Plaintiff lacks a reasonable probability of prevailing on his Twelfth Cause of Action based on an offensive video recording of Plaintiff himself, as opposed to the Property.

Therefore, Plaintiff lacks a reasonable probability of prevailing on his Twelfth Cause of Action.

Accordingly, Plaintiff lacks a reasonable probability of prevailing on all of Plaintiff’s Causes of Action and Plaintiff is ordered to furnish security.

C. Amount of Security

The required security is an undertaking to assure payment of the opposing party’s reasonable expenses, including attorney’s fees and not limited to taxable costs, incurred in connection with a litigation instituted by a vexatious litigant. CCP § 391(c).

Here, Defendants request $50,000 in security based on “(1) the money already owed by Plaintiff from the unlawful detainer judgment; (2) the attorneys’ fees incurred in prosecuting the unlawful detainer action; (3) the attorney’s fees incurred in defending this action; (4) and the attorney’s fees expected to be incurred over the next 6 to 9 months in defending this action.”

Defendant’s requested amount is improper because it includes amounts from the UD Case. Security is an undertaking to cover the costs incurred in the present litigation, not to cover the judgment and costs in a previous litigation. CCP § 391(c). Defendant’s declaration does not differentiate between the costs incurred in this litigation and the UD Case but notes $46,731 in attorney’s fees have been incurred in both actions, the majority because of “Plaintiff’s repetitive filings of motions, applications, and other documents in an effort to delay the eviction proceedings.” Babaian Decl. ¶ 3. Since any delay in the eviction proceedings necessarily arise in the UD Case, the Court read the Babaian Declaration to say very little of the $46,731 in attorney’s fees come from defending the present action. Therefore, the Court will order security in an amount it believes reasonable to cover the costs of defending this current lawsuit to conclusion.

The Court finds $30,000 in security adequate. This case has lasted 287 days and the FAC was only recently filed. Defendants are likely to demur to the FAC on collateral estoppel grounds, which demur if sustained without leave to amend would greatly reduce the number of causes of action in play. Any remaining causes of action are not likely to require extensive discovery since the parties and facts are generally known to all, and the UD Case covered much of the same ground. Although the case may not settle given the contentious relationship of the parties, it is also not likely to go to trial given the undisputed nature of the evidence and the application of collateral estoppel. Likely, the case will cost less or the same to defend as the UD Case. Given that the UD Case’s $13,170 judgment was included in Defendants’ request for $46,731, Defendants attorney’s fees and costs were actually $33,561. Babaian Decl. ¶ 3; RJN No. 1. The “large majority” of those attorney’s fees and costs are assignable to the UD Case, meaning the UD Case likely costs about $30,000 to defend. The Court finds an equivalent amount should be adequate to defend the present action, too. If the $30,000 proves to be inadequate in the future, the Court will consider increasing the amount of security.

Accordingly, the Court orders Plaintiff to pay an undertaking in the amount of $30,000 to cover Defendants costs in defending this lawsuit only.

SO ORDERED.

[1] Plaintiff later retained counsel.

Case Number: BC638721
LALAINE FELIPE VS DAVID GREENE
Filing Courthouse: Stanley Mosk Courthouse

Filing Date: 10/26/2016
Case Type: Motor Vehicle – Personal Injury/Property Damage/Wrongful Death (General Jurisdiction)
Status: Pending

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FUTURE HEARINGS
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

11/04/2019 at 10:00 AM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012
Final Status Conference

11/12/2019 at 08:30 AM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012
Jury Trial

PARTY INFORMATION
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

BANNER BRIAN..ESQ. – Attorney for Plaintiff

FELIPE LALAINE – Plaintiff

GREENE DAVID – Defendant

GURAL KELLY – Attorney for Defendant

Documents Filed
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

Documents Filed (Filing dates listed in descending order)

08/30/2019 Notice (Notice of Entry of Order)
Filed by David Greene (Defendant)

08/28/2019 Minute Order ( (Hearing on Motion to Compel Discovery (not “Further Discovery…))
Filed by Clerk

07/30/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by David Greene (Defendant)

07/30/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by David Greene (Defendant)

05/21/2019 Notice (Notice of Order on Stipulation to Continue Trial)
Filed by David Greene (Defendant)

05/20/2019 [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District)
Filed by David Greene (Defendant)

10/31/2018 Minute Order ((Legacy Event Type : OSC RE Dismissal))
Filed by Clerk

05/08/2018 NOTICE OF POSTING JURY FEES

05/08/2018 ANSWER TO COMPLAINT

05/08/2018 Answer
Filed by David Greene (Defendant)

05/08/2018 Receipt
Filed by David Greene (Defendant)

05/08/2018 Notice
Filed by David Greene (Defendant)

05/08/2018 CIVIL DEPOSIT

05/01/2018 Proof-Service/Summons
Filed by Lalaine Felipe (Plaintiff)

05/01/2018 PROOF OF SERVICE SUMMONS

04/11/2018 Minute Order

04/11/2018 Minute order entered: 2018-04-11 00:00:00
Filed by Clerk

10/26/2016 COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

10/26/2016 SUMMONS

10/26/2016 Complaint
Filed by Lalaine Felipe (Plaintiff)

Proceedings Held
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

Proceedings Held (Proceeding dates listed in descending order)

08/28/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

08/28/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

07/12/2019 at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding
Jury Trial – Not Held – Continued – Stipulation

06/28/2019 at 10:00 AM in Department 5, Stephen I. Goorvitch, Presiding
Final Status Conference – Not Held – Continued – Stipulation

10/31/2018 at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding
(OSC RE Dismissal) – Held

04/11/2018 at 10:00 AM in Department 97
Final Status Conference (Final Status Conference; Court makes order) –

Register Of Actions
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

Register of Actions (Listed in descending order)

08/30/2019 Notice (Notice of Entry of Order)
Filed by David Greene (Defendant)

08/28/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

08/28/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

08/28/2019 Minute Order ( (Hearing on Motion to Compel Discovery (not “Further Discovery…))
Filed by Clerk

07/30/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by David Greene (Defendant)

07/30/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by David Greene (Defendant)

07/12/2019 at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding
Jury Trial – Not Held – Continued – Stipulation

06/28/2019 at 10:00 AM in Department 5, Stephen I. Goorvitch, Presiding
Final Status Conference – Not Held – Continued – Stipulation

05/21/2019 Notice (Notice of Order on Stipulation to Continue Trial)
Filed by David Greene (Defendant)

05/20/2019 [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District)
Filed by David Greene (Defendant)

10/31/2018 at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding
(OSC RE Dismissal) – Held

10/31/2018 Minute Order ((Legacy Event Type : OSC RE Dismissal))
Filed by Clerk

05/08/2018 Answer
Filed by David Greene (Defendant)

05/08/2018 NOTICE OF POSTING JURY FEES

05/08/2018 Receipt
Filed by David Greene (Defendant)

05/08/2018 Notice
Filed by David Greene (Defendant)

05/08/2018 CIVIL DEPOSIT

05/08/2018 ANSWER TO COMPLAINT

05/01/2018 PROOF OF SERVICE SUMMONS

05/01/2018 Proof-Service/Summons
Filed by Lalaine Felipe (Plaintiff)

04/11/2018 at 10:00 AM in Department 97
Final Status Conference (Final Status Conference; Court makes order) –

04/11/2018 Minute order entered: 2018-04-11 00:00:00
Filed by Clerk

04/11/2018 Minute Order

10/26/2016 Complaint
Filed by Lalaine Felipe (Plaintiff)

10/26/2016 COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

10/26/2016 SUMMONS

Case Number: BC636026
CARIN MEMMER VS MIDTOWN CARPET COMPANY ET AL
Filing Courthouse: Stanley Mosk Courthouse

Filing Date: 10/06/2016
Case Type: Motor Vehicle – Personal Injury/Property Damage/Wrongful Death (General Jurisdiction)
Status: Pending

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FUTURE HEARINGS
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

01/06/2020 at 10:00 AM in Department 2 at 312 North Spring Street, Los Angeles, CA 90012
Final Status Conference

01/22/2020 at 08:30 AM in Department 2 at 312 North Spring Street, Los Angeles, CA 90012
Jury Trial

PARTY INFORMATION
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

GAFOURI MASSOUD – Defendant

GAFOURI QAYUM – Defendant

KORFF EVE HELENE ESQ. – Attorney for Defendant

MEMMER CARIN – Plaintiff

MIDTOWN CARPET COMPANY – Defendant

SHAPIRO MARC STEVEN ESQ. – Attorney for Defendant

VO ALEX SILVA ESQ. – Attorney for Defendant

Documents Filed
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

Documents Filed (Filing dates listed in descending order)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
12/14/2018

09/26/2019 Minute Order ( (Hearing on Self-Represented Plaintiff’s Ex Parte Application:…))
Filed by Clerk

09/26/2019 Opposition (Opposition to Plaintiff’s Ex Parte Application)
Filed by Massoud Gafouri (Defendant)

09/11/2019 Notice of Ruling
Filed by Massoud Gafouri (Defendant)

09/06/2019 Notice of Ruling
Filed by Massoud Gafouri (Defendant)

09/04/2019 Minute Order ( (Hearing on Self-Represented Plaintiff’s Ex Parte Application …))
Filed by Clerk

09/04/2019 Opposition (To Plaintiff’s Ex-Parte Application Filed 09/04/2019)
Filed by Massoud Gafouri (Defendant)

09/03/2019 Minute Order ( (- Hearing on Defendant Massoud Gafouri’s Motion to Compel Dis…))
Filed by Clerk

08/30/2019 Notice of Ruling
Filed by Massoud Gafouri (Defendant)

08/30/2019 Minute Order ( (1- Hearing on Self-Represented Plaintiff’s Ex Parte Applicati…))
Filed by Clerk

08/29/2019 Opposition (Defendant’s Opposition to Plaintiff’s Ex Parte Application)
Filed by Massoud Gafouri (Defendant)

08/29/2019 Order on Court Fee Waiver (Superior Court)
Filed by Clerk

08/22/2019 Proof of Service by Substituted Service
Filed by Carin Memmer (Plaintiff)

08/19/2019 Notice of Ruling
Filed by Massoud Gafouri (Defendant)

08/19/2019 Minute Order ( (Hearing on Motion to be Relieved as Counsel As Counsel for Pl…))
Filed by Clerk

08/19/2019 Order (Order Granting Motion to be Relieved as Counsel)
Filed by Carin Memmer (Plaintiff)

08/13/2019 Minute Order ( (Hearing on Defendants’ Ex Parte Application To Continue Trial…))
Filed by Clerk

08/13/2019 Ex Parte Application (To Continue Trial, FSC and All Trial Sensitive Cutoff Dates)
Filed by Massoud Gafouri (Defendant)

08/01/2019 Motion to Compel Plaintiff’s Responses to Special Interrogatories, Set Two, and Supplemental Interrogatories, Set One; Request for Monetary Sanctions.
Filed by Massoud Gafouri (Defendant)

08/01/2019 Notice of Motion to Compel Plaintiff’s Responses to Demand for Production of Documents, Set Two; and Supplemental Demand for Production o Documents, Set One; Request for Monetary Sanctions
Filed by Massoud Gafouri (Defendant)

07/31/2019 Minute Order ( (Hearing on Motion to Compel Discovery (not “Further Discovery…))
Filed by Clerk

07/24/2019 Proof of Service (not Summons and Complaint)
Filed by Carin Memmer (Plaintiff)

07/24/2019 Motion to Be Relieved as Counsel (for Plaintiff)
Filed by Stefano Giuseppe Formica, Esq. (Attorney)

06/24/2019 Notice of Motion to Compel Plaintiff Carin Memmer’s Responses to Demand for Production of Documents, Set Two, and Supplemental Demand for Production of Documents, Set One, and Request for Monetary Sanctions
Filed by Massoud Gafouri (Defendant)

06/24/2019 Notice of Motion to Compel Plaintiff Carin Memmer’s Responses to Special Interrogatories, Set Two, and Supplemental Interrogatories, Set One, and Request for Monetary Sanctions
Filed by Massoud Gafouri (Defendant)

03/05/2019 Notice of Ruling
Filed by Massoud Gafouri (Defendant)

03/01/2019 Minute Order ( (Hearing on Ex Parte Application to continue trial, final stat…))
Filed by Clerk

03/01/2019 Ex Parte Application (to Continue Trial, final Status Conference, and All Trial Sensitive Dates)
Filed by Massoud Gafouri (Defendant)

01/25/2019 Minute Order ( (Hearing on Motion to Compel Discovery (not “Further Discovery…))
Filed by Clerk

01/24/2019 Reply (TO PLAINTIFF’S LATE SERVED OPPOSITION)
Filed by Massoud Gafouri (Defendant)

01/23/2019 Notice (Notice of Change of Time for Motion to Compel Deposition)
Filed by Massoud Gafouri (Defendant)

01/22/2019 Opposition (PLAINTIFF?S RESPONSE AND OPPOSITON TO MOTION TO COMPEL DEPOSITON OF PLAINTIFF; DECLARATION OF STEFANO G. FORMICA)
Filed by Carin Memmer (Plaintiff)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 12/14/2018

12/14/2018 Notice of Motion to Compel Plaintiff Carin Memmer’s Deposition and For Costs Including Reasonable Attorney’s Fees
Filed by Massoud Gafouri (Defendant)

08/20/2018 Notice of Ruling
Filed by Massoud Gafouri (Defendant)

08/20/2018 NOTICE OF RULING

08/15/2018 Minute order entered: 2018-08-15 00:00:00
Filed by Clerk

08/15/2018 EX PARTE APPLICATION TO CONTINUE TRIAL FINAL STATUS CONFERENCE DISCOVERY AND EXPERT CUTOFF DATES; AND ETC.

08/15/2018 Minute Order

08/15/2018 Ex-Parte Application
Filed by Massoud Gafouri (Defendant)

06/18/2018 ORDER AND STIPULATION TO CONTINUE TRIAL

06/18/2018 [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District)
Filed by Defendant/Respondent

03/22/2018 Minute order entered: 2018-03-22 00:00:00
Filed by Clerk

03/20/2018 ORDER AND STIPULATION TO CONTINUE TRIAL FSC AND RELATED MOTION/DISCOVERY DATES PERSONAL INJURY COURTS ONLY

03/20/2018 [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District)
Filed by Massoud Gafouri (Defendant); Qayum Gafouri (Defendant)

07/20/2017 Notice of Change of Address or Other Contact Information
Filed by Carin Memmer (Plaintiff)

07/20/2017 NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATION

06/02/2017 Receipt
Filed by Midtown Carpet Company (Defendant)

06/02/2017 CIVIL DEPOSIT

06/01/2017 Answer
Filed by Midtown Carpet Company (Defendant)

06/01/2017 DEFENDANT MIDTOWN CARPET COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL

03/06/2017 Miscellaneous-Other
Filed by Massoud Gafouri (Defendant); Qayum Gafouri (Defendant)

03/06/2017 Answer
Filed by Massoud Gafouri (Defendant); Qayum Gafouri (Defendant)

03/06/2017 CIVIL DEPOSIT

03/06/2017 ANSWER TO COMPLAINT FOR DAMAGES

01/19/2017 Proof-Service/Summons
Filed by Carin Memmer (Plaintiff)

01/19/2017 Proof-Service/Summons
Filed by Carin Memmer (Plaintiff)

01/19/2017 PROOF OF SERVICE SUMMONS

01/19/2017 PROOF OF SERVICE SUMMONS

01/19/2017 Proof-Service/Summons
Filed by Carin Memmer (Plaintiff)

01/19/2017 PROOF OF SERVICE OF SUMMONS

10/06/2016 SUMMONS

10/06/2016 COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

10/06/2016 Complaint
Filed by Carin Memmer (Plaintiff)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 12/14/2018

Proceedings Held
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

Proceedings Held (Proceeding dates listed in descending order)

10/07/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Order to Show Cause Re: Dismissal – Not Held – Vacated by Court

09/26/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Hearing on Ex Parte Application (Take Judicial Notice Requests For Reasonable Accomodations Are Confidential For Ex-Parte Relief Notice Of Motion) – Held

09/23/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Jury Trial – Not Held – Continued – Party’s Motion

09/09/2019 at 10:00 AM in Department 2, Kristin S. Escalante, Presiding
Final Status Conference – Not Held – Continued – Party’s Motion

09/04/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Hearing on Ex Parte Application (For Relief to (A) Request That Plaintiff’s Application For Ex-Parte Relief Dated August 30, 2019, Be Filed Under Seal, (B) Request That Subsequent Requests For Reasonable Accomodations Be Filed Under Seal, And (C) Request For A Reasonable Accomodation…) – Held – Motion Granted

09/03/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) (To Compel Plaintiff’s Responses to Special Interrogatories, Set Two, and Supplemental Interrogatories, Set One; Request for Monetary Sanctions (Continued from 08/30/2019)) – Held – Motion Granted

09/03/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) (To Compel Plaintiff’s Responses to Demand for Production of Documents, Set Two, and Supplemental Demand for Production of Documents, Set One; Request for Monetary Sanctions; (Continued from 08/30/2019)) – Held – Motion Granted

08/30/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Hearing on Ex Parte Application (for Relief of Notice of Motion to (A) Request Reinstatement of the Personal Injury Case, (B) Request That The Settlement Agreement Be Vacated, (C) Request That the Trial Be Rescheduled; (D) Request To Continue Discovery; (E) Request For Accomodations .etc) – Held – Motion Denied

08/30/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) (To Compel Plaintiff’s Responses to Demand for Production of Documents, Set Two, and Supplemental Demand for Production of Documents, Set One; Request for Monetary Sanctions;) – Not Held – Continued – Court’s Motion

08/30/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) (To Compel Plaintiff’s Responses to Special Interrogatories, Set Two, and Supplemental Interrogatories, Set One; Request for Monetary Sanctions) – Not Held – Continued – Court’s Motion

08/19/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to be Relieved as Counsel (As Counsel for Plaintiff Filed by Attorney Stefano G. Formica / Vaziri Law Group) – Held – Motion Granted

08/13/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Hearing on Ex Parte Application (To Continue Trial, FSC and All Trial Sensitive Cutoff Dates) – Held – Motion Granted

07/31/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) (Responses to Special Interrogatories, Set Two, and Supplemental Interrogatories, Set One; Request for Sanctions) – Not Held – Taken Off Calendar by Court

07/31/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) (Responses to Demand for Production of Documents, Set Two, and Supplemental Demand for Production of Documents, Set One; Request for Sanctions) – Not Held – Taken Off Calendar by Court

04/30/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Jury Trial – Not Held – Continued – Party’s Motion

04/15/2019 at 10:00 AM in Department 2, Kristin S. Escalante, Presiding
Final Status Conference – Not Held – Continued – Party’s Motion

03/01/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Hearing on Ex Parte Application (to continue trial, final status conference, and all trial sensitive cutoff dates) – Held – Motion Granted

01/25/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) (Deposition and Costs for Attorney’s Fees) – Held – Motion Granted

10/04/2018 at 08:30 AM in Department 2
Jury Trial (Jury Trial; Advanced to a Previous Date) –

09/19/2018 at 10:00 AM in Department 2
Final Status Conference (Final Status Conference; Advanced to a Previous Date) –

08/15/2018 at 08:30 AM in Department 2
Ex-Parte Proceedings – Held – Motion Granted

03/22/2018 at 10:00 AM in Department 91
Final Status Conference

Register Of Actions
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

Register of Actions (Listed in descending order)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
03/01/2019

10/07/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Order to Show Cause Re: Dismissal – Not Held – Vacated by Court

09/26/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Hearing on Ex Parte Application (Take Judicial Notice Requests For Reasonable Accomodations Are Confidential For Ex-Parte Relief Notice Of Motion) – Held

09/26/2019 Minute Order ( (Hearing on Self-Represented Plaintiff’s Ex Parte Application:…))
Filed by Clerk

09/26/2019 Opposition (Opposition to Plaintiff’s Ex Parte Application)
Filed by Massoud Gafouri (Defendant)

09/23/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Jury Trial – Not Held – Continued – Party’s Motion

09/11/2019 Notice of Ruling
Filed by Massoud Gafouri (Defendant)

09/09/2019 at 10:00 AM in Department 2, Kristin S. Escalante, Presiding
Final Status Conference – Not Held – Continued – Party’s Motion

09/06/2019 Notice of Ruling
Filed by Massoud Gafouri (Defendant)

09/04/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Hearing on Ex Parte Application (For Relief to (A) Request That Plaintiff’s Application For Ex-Parte Relief Dated August 30, 2019, Be Filed Under Seal, (B) Request That Subsequent Requests For Reasonable Accomodations Be Filed Under Seal, And (C) Request For A Reasonable Accomodation…) – Held – Motion Granted

09/04/2019 Opposition (To Plaintiff’s Ex-Parte Application Filed 09/04/2019)
Filed by Massoud Gafouri (Defendant)

09/04/2019 Minute Order ( (Hearing on Self-Represented Plaintiff’s Ex Parte Application …))
Filed by Clerk

09/03/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) (To Compel Plaintiff’s Responses to Special Interrogatories, Set Two, and Supplemental Interrogatories, Set One; Request for Monetary Sanctions (Continued from 08/30/2019)) – Held – Motion Granted

09/03/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) (To Compel Plaintiff’s Responses to Demand for Production of Documents, Set Two, and Supplemental Demand for Production of Documents, Set One; Request for Monetary Sanctions; (Continued from 08/30/2019)) – Held – Motion Granted

09/03/2019 Minute Order ( (- Hearing on Defendant Massoud Gafouri’s Motion to Compel Dis…))
Filed by Clerk

08/30/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Hearing on Ex Parte Application (for Relief of Notice of Motion to (A) Request Reinstatement of the Personal Injury Case, (B) Request That The Settlement Agreement Be Vacated, (C) Request That the Trial Be Rescheduled; (D) Request To Continue Discovery; (E) Request For Accomodations .etc) – Held – Motion Denied

08/30/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) (To Compel Plaintiff’s Responses to Special Interrogatories, Set Two, and Supplemental Interrogatories, Set One; Request for Monetary Sanctions) – Not Held – Continued – Court’s Motion

08/30/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) (To Compel Plaintiff’s Responses to Demand for Production of Documents, Set Two, and Supplemental Demand for Production of Documents, Set One; Request for Monetary Sanctions;) – Not Held – Continued – Court’s Motion

08/30/2019 Notice of Ruling
Filed by Massoud Gafouri (Defendant)

08/30/2019 Minute Order ( (1- Hearing on Self-Represented Plaintiff’s Ex Parte Applicati…))
Filed by Clerk

08/29/2019 Order on Court Fee Waiver (Superior Court)
Filed by Clerk

08/29/2019 Opposition (Defendant’s Opposition to Plaintiff’s Ex Parte Application)
Filed by Massoud Gafouri (Defendant)

08/22/2019 Proof of Service by Substituted Service
Filed by Carin Memmer (Plaintiff)

08/19/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to be Relieved as Counsel (As Counsel for Plaintiff Filed by Attorney Stefano G. Formica / Vaziri Law Group) – Held – Motion Granted

08/19/2019 Order (Order Granting Motion to be Relieved as Counsel)
Filed by Carin Memmer (Plaintiff)

08/19/2019 Minute Order ( (Hearing on Motion to be Relieved as Counsel As Counsel for Pl…))
Filed by Clerk

08/19/2019 Notice of Ruling
Filed by Massoud Gafouri (Defendant)

08/13/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Hearing on Ex Parte Application (To Continue Trial, FSC and All Trial Sensitive Cutoff Dates) – Held – Motion Granted

08/13/2019 Ex Parte Application (To Continue Trial, FSC and All Trial Sensitive Cutoff Dates)
Filed by Massoud Gafouri (Defendant)

08/13/2019 Minute Order ( (Hearing on Defendants’ Ex Parte Application To Continue Trial…))
Filed by Clerk

08/01/2019 Notice of Motion to Compel Plaintiff’s Responses to Demand for Production of Documents, Set Two; and Supplemental Demand for Production o Documents, Set One; Request for Monetary Sanctions
Filed by Massoud Gafouri (Defendant)

08/01/2019 Motion to Compel Plaintiff’s Responses to Special Interrogatories, Set Two, and Supplemental Interrogatories, Set One; Request for Monetary Sanctions.
Filed by Massoud Gafouri (Defendant)

07/31/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) (Responses to Special Interrogatories, Set Two, and Supplemental Interrogatories, Set One; Request for Sanctions) – Not Held – Taken Off Calendar by Court

07/31/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) (Responses to Demand for Production of Documents, Set Two, and Supplemental Demand for Production of Documents, Set One; Request for Sanctions) – Not Held – Taken Off Calendar by Court

07/31/2019 Minute Order ( (Hearing on Motion to Compel Discovery (not “Further Discovery…))
Filed by Clerk

07/24/2019 Proof of Service (not Summons and Complaint)
Filed by Carin Memmer (Plaintiff)

07/24/2019 Motion to Be Relieved as Counsel (for Plaintiff)
Filed by Stefano Giuseppe Formica, Esq. (Attorney)

06/24/2019 Notice of Motion to Compel Plaintiff Carin Memmer’s Responses to Special Interrogatories, Set Two, and Supplemental Interrogatories, Set One, and Request for Monetary Sanctions
Filed by Massoud Gafouri (Defendant)

06/24/2019 Notice of Motion to Compel Plaintiff Carin Memmer’s Responses to Demand for Production of Documents, Set Two, and Supplemental Demand for Production of Documents, Set One, and Request for Monetary Sanctions
Filed by Massoud Gafouri (Defendant)

04/30/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Jury Trial – Not Held – Continued – Party’s Motion

04/15/2019 at 10:00 AM in Department 2, Kristin S. Escalante, Presiding
Final Status Conference – Not Held – Continued – Party’s Motion

03/05/2019 Notice of Ruling
Filed by Massoud Gafouri (Defendant)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 03/01/2019

03/01/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Hearing on Ex Parte Application (to continue trial, final status conference, and all trial sensitive cutoff dates) – Held – Motion Granted

03/01/2019 Ex Parte Application (to Continue Trial, final Status Conference, and All Trial Sensitive Dates)
Filed by Massoud Gafouri (Defendant)

03/01/2019 Minute Order ( (Hearing on Ex Parte Application to continue trial, final stat…))
Filed by Clerk

01/25/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) (Deposition and Costs for Attorney’s Fees) – Held – Motion Granted

01/25/2019 Minute Order ( (Hearing on Motion to Compel Discovery (not “Further Discovery…))
Filed by Clerk

01/24/2019 Reply (TO PLAINTIFF’S LATE SERVED OPPOSITION)
Filed by Massoud Gafouri (Defendant)

01/23/2019 Notice (Notice of Change of Time for Motion to Compel Deposition)
Filed by Massoud Gafouri (Defendant)

01/22/2019 Opposition (PLAINTIFF?S RESPONSE AND OPPOSITON TO MOTION TO COMPEL DEPOSITON OF PLAINTIFF; DECLARATION OF STEFANO G. FORMICA)
Filed by Carin Memmer (Plaintiff)

12/14/2018 Notice of Motion to Compel Plaintiff Carin Memmer’s Deposition and For Costs Including Reasonable Attorney’s Fees
Filed by Massoud Gafouri (Defendant)

10/04/2018 at 08:30 AM in Department 2
Jury Trial (Jury Trial; Advanced to a Previous Date) –

09/19/2018 at 10:00 AM in Department 2
Final Status Conference (Final Status Conference; Advanced to a Previous Date) –

08/20/2018 Notice of Ruling
Filed by Massoud Gafouri (Defendant)

08/20/2018 NOTICE OF RULING

08/15/2018 at 08:30 AM in Department 2
Ex-Parte Proceedings – Held – Motion Granted

08/15/2018 Ex-Parte Application
Filed by Massoud Gafouri (Defendant)

08/15/2018 EX PARTE APPLICATION TO CONTINUE TRIAL FINAL STATUS CONFERENCE DISCOVERY AND EXPERT CUTOFF DATES; AND ETC.

08/15/2018 Minute order entered: 2018-08-15 00:00:00
Filed by Clerk

08/15/2018 Minute Order

06/18/2018 ORDER AND STIPULATION TO CONTINUE TRIAL

06/18/2018 [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District)
Filed by Defendant/Respondent

03/22/2018 at 10:00 AM in Department 91
Final Status Conference

03/22/2018 Minute order entered: 2018-03-22 00:00:00
Filed by Clerk

03/20/2018 ORDER AND STIPULATION TO CONTINUE TRIAL FSC AND RELATED MOTION/DISCOVERY DATES PERSONAL INJURY COURTS ONLY

03/20/2018 [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District)
Filed by Massoud Gafouri (Defendant); Qayum Gafouri (Defendant)

07/20/2017 NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATION

07/20/2017 Notice of Change of Address or Other Contact Information
Filed by Carin Memmer (Plaintiff)

06/02/2017 Receipt
Filed by Midtown Carpet Company (Defendant)

06/02/2017 CIVIL DEPOSIT

06/01/2017 DEFENDANT MIDTOWN CARPET COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL

06/01/2017 Answer
Filed by Midtown Carpet Company (Defendant)

03/06/2017 Miscellaneous-Other
Filed by Massoud Gafouri (Defendant); Qayum Gafouri (Defendant)

03/06/2017 Answer
Filed by Massoud Gafouri (Defendant); Qayum Gafouri (Defendant)

03/06/2017 CIVIL DEPOSIT

03/06/2017 ANSWER TO COMPLAINT FOR DAMAGES

01/19/2017 PROOF OF SERVICE OF SUMMONS

01/19/2017 Proof-Service/Summons
Filed by Carin Memmer (Plaintiff)

01/19/2017 Proof-Service/Summons
Filed by Carin Memmer (Plaintiff)

01/19/2017 Proof-Service/Summons
Filed by Carin Memmer (Plaintiff)

01/19/2017 PROOF OF SERVICE SUMMONS

01/19/2017 PROOF OF SERVICE SUMMONS

10/06/2016 COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

10/06/2016 SUMMONS

10/06/2016 Complaint
Filed by Carin Memmer (Plaintiff)

Filed 10/9/19 Cal. Solar Systems, Inc. v. Omar CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CALIFORNIA SOLAR SYSTEMS, INC.,

Plaintiff and Appellant,

v.

WEISS OMAR et al.,

Defendants and Appellants.

G056150 consol. w/ G056162

(Super. Ct. No. 30-2016-00860168)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Randall J. Sherman, Judge. Affirmed.

ClintonBailey and Mark C. Bailey for Plaintiff and Appellant California Solar Systems, Inc.

ONE, Peter R. Afrasiabi, Oscar M. Orozco-Botello; Law Office of Kathryn M. Davis and Kathryn M. Davis for Defendants and Appellants CS Marketing and Weiss Omar.

Buchman Provine Brothers Smith and Dominic V. Signorotti for Plaintiff and Respondent California Solar Systems, Inc.

This litigation concerns ownership of California Solar Systems, Inc. (CSS) amid allegations of corporate malfeasance by CSS’s principals Weiss Omar (Weiss), his wife Mildred Omar (Mildred), and Weiss’s nephew, Bastel Wardak. After Wardak, in his capacity as president, retained Buchman Provine Brothers Smith, LLP (Buchman) to represent CSS, he directed it to file a lawsuit against Weiss and his company,

CS Marketing, Inc. (the Weiss action), and another against Mildred (the Mildred action). After Mildred filed a cross-complaint, she obtained an order disqualifying Buchman from representing CSS, and Mildred, Weiss, and a third party retained ClintonBailey, APC. Buchman did not appeal from that order on behalf of CSS.

CS Marketing and Weiss then filed its own motion to disqualify Buchman. The trial court consolidated the two cases, and ClintonBailey, the firm representing CSS in the Mildred action, filed a motion to join the disqualification motion. Buchman, on behalf of CSS in the Weiss action, opposed the motions. The trial court transferred the consolidated cases to the complex civil department.

A different trial judge denied CS Marketing and Weiss’s motion to disqualify Buchman in the Weiss action and denied CSS’s motion to join that motion. CS Marketing and Weiss appeal from that order. Additionally, CSS, represented by ClintonBailey in the Mildred action, also appeal from that order. We granted the parties stipulated motion to consolidate the appeals. In other words, we have two appeals, both involving CSS, one as appellant and one as respondent, but represented by different counsel, ClintonBailey in the Mildred action and Buchman in the Weiss action.

CS Marketing, Weiss, and CSS, through ClintonBailey, argue the trial court erred by denying their motion to disqualify Buchman. We disagree and affirm the order.

FACTS

CSS is a solar energy equipment supplier. Weiss and Wardak founded CSS, and they were its directors and shareholders. A couple years later, Weiss transferred his 50 percent interest to Mildred. In 2016, CSS’s annual revenue was $17,000,000.

CSS, through Buchman, filed the Weiss action (Super. Ct. Orange County, 2016, No. 30-2016-00859082) seeking accounting, and alleging conversion, fraudulent inducement, and breach of oral agreement. The complaint alleged CS Marketing, a call center, and its sole shareholder Weiss, failed to provide call center operations after CSS paid them over $500,000.

The following week, CSS, through Buchman, filed the Mildred action (Super. Ct. Orange County, 2016, No. 30-2016-00860168) alleging fraud and conversion. The complaint alleged Mildred wrongfully withdrew and stole about $750,000 from CSS’s back account.

Mildred later filed a cross-complaint against Wardak and CSS alleging causes of action for breach of fiduciary duty, accounting/turnover of corporate records, removal of Wardak as CSS director, declaratory relief, and injunctive relief. The cross-complaint alleged Wardak paid himself a salary without board of directors’ approval, overpaid himself and his brother, failed to pay partner income or dividends, improperly retained Buchman, engaged in negotiations to sell or merge CSS, and wrongfully withdrew about $747,414 from CSS’s back account.

Buchman filed an answer to the cross-complaint—the signature block stated, “Attorneys for . . . [CSS] . . . and . . . Wardak.” (Capitalization omitted.)

Mildred filed a motion to disqualify Buchman supported by exhibits and declarations from Behrooz “Bruce” Kholooci and Mark C. Bailey of ClintonBailey. The motion specified six grounds supporting disqualification.

Buchman filed an opposition to the disqualification motion on behalf of CSS. The opposition was supported by declarations from Dominic V. Signorotti, a Buchman attorney, and Wardak.

Mildred filed a reply in support of the disqualification motion. The reply was supported by Weiss’s, Mildred’s, and Bailey’s declarations.

After a hearing on February 15, 2017, the trial court issued a minute order that stated the following: “None of the evidence submitted by anyone for this motion is credible; [t]he [c]ourt believes the best solution would be to have the corporation hire independent counsel, properly appointed by the [c]ourt; [c]ounsel to consider this solution; [¶] [c]ourt ordered the directors to meet and discuss hiring independent corporate counsel to handle this case. [¶] Court will not leave the corporation without representation. [¶] If the directors are unable to reach an agreement as to the hiring of corporate counsel, the [c]ourt will either appoint corporate counsel or a provisional director. [¶] [T]he only money spent should be to determine corporate counsel.” The court continued the hearing.

At a hearing the following month, Mildred’s counsel stated that pursuant to the court’s order she arranged a meeting but Wardak and his counsel did not attend. Those who attended, Weiss, Mildred, and Kholooci (who claimed to be CSS’s president and possess an ownership share), voted to terminate Buchman and replace it with ClintonBailey. The trial court heard argument from various counsel, including Wardak’s, who did not file written opposition, but argued against the motion.

A couple weeks later, the trial court, Judge Sheila Fell, granted Mildred’s motion to disqualify Buchman in a minute order without explanation. Buchman did not appeal the court’s order on behalf of CSS.

CS Marketing and Weiss filed a separate motion to disqualify Buchman supported by exhibits and declarations from Kholooci and Bailey. The motion specified the same six grounds for disqualification: (1) CSS’s bylaws required action must be authorized by majority vote; (2) CSS’s directors did not authorize retaining Buchman;

(3) Buchman did not inform CSS of potential conflicts of interests with Wardak or obtain a waiver of those conflicts; (4) actual conflicts of interest existed between CSS and Wardak; (5) an attorney cannot accept employment adverse to a client (Rules Prof. Conduct, rule 3-310(E)); and (6) Code of Civil Procedure section 128, subdivision (a)(5), required disqualification. The motion argued res judicata and collateral estoppel applied. Without citing to any authority or providing collateral estoppel’s elements, the motion summarily stated the issue was the same in both cases. The motion requested the court take judicial notice of CSS v. Mildred Dianne Omar and the March 22, 2017, minute order disqualifying Buchman.

A couple months later, the trial court consolidated the Weiss action with the Mildred action, making the latter the lead case. The court transferred the consolidated cases to the complex civil department.

ClintonBailey, on behalf of CSS in the Mildred action, filed a notice of joinder in CS Marketing and Weiss’s motion to disqualify Buchman and motion to disqualify Buchman supported Bailey’s declaration. The motion specified five grounds for disqualification, including a comprehensive discussion of collateral estoppel.

Buchman filed opposition on behalf of CSS in the Weiss action. The opposition was supported by declarations from Wardak and Signorotti. The opposition argued disqualification would place ClintonBailey in control of the litigation and it had already taken a motion for summary judgment off calendar. CS Marketing and Weiss filed a reply.

The trial court, Judge Randall J. Sherman, issued a tentative ruling, inter alia, denying without prejudice CS Marketing and Weiss’s motion to disqualify and CSS’s joinder motion. The court reasoned as follows: “The parties present diametrically opposed versions of the facts, but the court is scheduled to resolve the CSS ownership issue at the [t]rial . . . . In the meantime, the court is not convinced that the moving parties have established legal and factual grounds to disqualify counsel, especially since the disqualification of counsel in the [CSS v. Mildred Dianne Omar] case led to CSS’s new counsel dropping summary judgment and discovery motions, favoring the defendants.”

At a hearing, CSS, through ClintonBailey, explained it took the motion for summary judgment off calendar because Judge Fell encouraged it. CS Marketing and Weiss argued that with respect to the motion to disqualify, the cases were consolidated, the facts were the same, Judge Fell previously ruled Buchman was disqualified, and Wardak should have proceeded through a shareholder derivative suit. CS Marketing and Weiss also referenced Judge Fell’s February 15, 2017, minute order, in which she ordered counsel not to incur any expenses other than to determine corporate counsel.

The trial court stated, “I honestly know nothing about that ruling you just mentioned, so since no one has raised it as part of a motion or as an agenda item for this court to act on, there is nothing for me to address with respect to that . . . .” CSS, through Buchman, argued opposing counsel did not properly characterize Judge Fell’s minute order, stating the court ordered the parties to meet and confer to select independent counsel and the court did not approve the engagement of ClintonBailey. The court adopted its tentative ruling and it became the court’s ruling.

CS Marketing and Weiss filed a petition for writ relief with this Court and request for stay, which we denied. (CS Marketing, Inc. v. Superior Court (Apr. 26, 2018, G056163) [nonpub. ord.].) CSS, through ClintonBailey, and CS Marketing and Weiss (collectively referred to as Appellants, unless the context requires otherwise) filed timely notices of appeal from the trial court’s order denying their motions to disqualify Buchman.

DISCUSSION

I. Attorney Disqualification

“‘The trial court’s power to disqualify counsel is derived from the court’s inherent power “[t]o control in furtherance of justice, the conduct of its ministerial officers.” [Citations.] Disqualification motions implicate several important interests, among them are the clients’ right to counsel of their choice, the attorney’s interest in representing a client, the financial burden of replacing a disqualified attorney, and tactical abuse that may underlie the motion. [Citation.] The “paramount” concern in determining whether counsel should be disqualified is “the preservation of public trust in the scrupulous administration of justice and the integrity of the bar.” [Citations.] It must be remembered, however, that disqualification is a drastic course of action that should not be taken simply out of hypersensitivity to ethical nuances or the appearance of impropriety.’ [Citation.]” (DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 685-686.)

“A trial court’s decision to grant or deny a motion to disqualify counsel is generally reviewed for abuse of discretion. [Citations.] ‘As to disputed factual issues, a reviewing court’s role is simply to determine whether substantial evidence supports the trial court’s findings of fact . . . . As to the trial court’s conclusions of law, however, review is de novo; a disposition that rests on an error of law constitutes an abuse of discretion.’ [Citations.] While the trial court’s ‘“application of the law to the facts is reversible only if arbitrary and capricious”’ [citation], ‘where there are no material disputed factual issues, the appellate court reviews the trial court’s determination as a question of law.’ [Citations.]” (O’Gara Coach Co., LLC v. Ra (2019) 30 Cal.App.5th 1115, 1123-1124.) “[A] disqualification motion involves concerns that justify careful review of the trial court’s exercise of discretion. [Citation.]” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144 (SpeeDee).)

Here, Appellants assert we must review the trial court’s ruling de novo because there were no disputed facts concerning disqualification. Like the trial court, who said, “The parties present diametrically opposed versions of the facts,” we conclude there are disputed factual issues as to Wardak’s authority to retain Buchman, and we review the court’s ruling for abuse of discretion.

II. Actual Authority

The issue is whether Wardak had actual authority to retain Buchman to sue Weiss and his company CS Marketing. CSS’s bylaws, Article II, section 1, provided in relevant part as follows: “Except as any provision of law may otherwise require, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of its Board of Directors. The Board of Directors may delegate the management of the day-to-day operation of the business of the corporation to a management company or other person, provided that the business and affairs of the corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the Board of Directors.”

““Actual authority is such as a principal intentionally confers upon an agent, or intentionally or by want of ordinary care allows the agent to believe himself to possess. (Civ. Code, § 2316.)’” (van’t Rood v. County of Santa Clara (2003)

113 Cal.App.4th 549, 572.) Actual authority may be implied based on the facts of the case. (Ripani v. Liberty Loan Corp. (1979) 95 Cal.App.3d 603, 611 (Ripani).)

Here, there was substantial evidence Wardak was responsible for CSS’s day-to-day operations. In his declaration, Wardak stated he was CSS’s president, director, and 50 percent shareholder, Mildred was a 50 percent shareholder, and Weiss was a director. Wardak stated that since CSS was founded in 2007, he was responsible for CSS’s day-to-day management, including paying vendors, negotiating contracts, and filing tax returns. Although we may not conclude retaining counsel, particularly to sue a corporate director, falls within the ambit of day-to-day operations, actual authority includes authority the principal either intentionally or by lack of ordinary care allows the agent to believe he possesses.

In his declaration, Wardak stated that since CSS’s founding in 2007, he retained general counsel to advise CSS on corporate matters and represent it in litigation against adverse parties. Wardak provided a list of counsel he retained on behalf of CSS. We note neither Weiss nor Mildred filed a declaration in support of the disqualification motion. Wardak’s history of hiring corporate counsel was evidence CSS through its lack of ordinary care allowed him to believe he possessed the authority to hire corporate counsel without board of director approval.

Appellants rely on Goldstein v. Lees (1975) 46 Cal.App.3d 614, 623 (Goldstein), to support their claim only the CSS board of directors could authorize Wardak to retain Buchman. Citing to Corporations Code section 800, the Goldstein court stated, “The board of directors, not corporate counsel, has the right to control the affairs of the corporation. [Citation.]” (Goldstein, supra, 46 Cal.App.3d at p. 623.) We agree, but as we explain above, a principal may intentionally or by lack of ordinary care allow the agent to believe he has actual authority.

Appellants also rely on Olincy v. Merle Norman Cosmetics, Inc. (1962)

200 Cal.App.2d 260, 273, to support their claim any corporate action without a quorum of directors is void. Olincy is inapposite because CSS did not retain Buchman via corporate action but instead pursuant to Wardak’s actual and apparent authority as president.

Finally, relying on Corporations Code section 800, subdivision (b)(2), Appellants claim Buchman did not satisfy that subdivision’s pleading requirements. That section applies only to shareholder derivative suits, which this is not. Therefore, sufficient evidence supported the trial court’s implied finding Wardak had actual authority to hire Buchman as CSS’s counsel.

III. Apparent Authority

The issue is whether Wardak had ostensible, i.e., authority to retain Buchman to sue Weiss and CS Marketing. “‘Ostensible authority . . . is the authority of the agent which the principal causes or allows a third person to believe that the agent possesses. (Civ. Code, § 2317.)’ [Citation.] [¶] Before recovery can be had against the principal for the acts of an ostensible agent, three requirements must be met: The person dealing with an agent must do so with a reasonable belief in the agent’s authority, such belief must be generated by some act or neglect by the principal sought to be charged[,] and the person relying on the agent’s apparent authority must not be negligent in holding that belief. [Citations.] Ostensible agency cannot be established by the representations or conduct of the purported agent; the statements or acts of the principal must be such as to cause the belief the agency exists. [Citations.]” (J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 403-404.) Ostensible, i.e., apparent, authority may be implied based on the facts of the case. (Ripani, supra, 95 Cal.App.3d at p. 611.)

Here, even if Wardak did not have actual authority, there was sufficient evidence he had apparent authority to retain Buchman because it reasonably and justifiably believed Wardak had the authority to retain it. In his declaration, Signorotti, a Buchman lawyer, stated Buchman believed Wardak as CSS’s president had the authority to retain it as corporate counsel. Signorotti stated Wardak represented he had this authority and had retained corporate counsel on previous occasions. Buchman was justified in relying on Wardak’s authority and representations because it reasonably believed he had the authority and had done so in the past. (Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 779 [apparent authority to enter into agreement on behalf of corporation if he “‘assumed and exercised the power in the past’” with corporation’s apparent consent and acquiescence]; Corp. Code, § 208, subd. (b).)

Appellants rely on Corporations Code section 313 to argue CSS’s contract was invalid because it was not signed by an “operational” officer and a “recordkeeping” officer. Whether Wardak had the authority to hire Buchman, and whether the retainer agreement was properly executed are different issues. Therefore, substantial evidence supported the trial court’s implied finding Wardak had ostensible authority to retain Buchman as CSS’s counsel.

IV. Duty of Loyalty

The issue is whether Buchman violated its duty of loyalty to CSS.

(Rules Prof. Conduct, rule 3-310 (rule 3-310), now rule 1.7; Rules Prof. Conduct,

rule 3-600, now rule 1.13.) “To protect the confidentiality of the attorney-client relationship, the State Bar Rules of Professional Conduct, rule 3-310 . . . prohibits attorneys from accepting, without the client’s informed written consent, ‘employment adverse to the client or former client where, by reason of the representation of the client or former client, the [attorney] has obtained confidential information material to the employment.’ [Citations.]” (SpeeDee, supra, 20 Cal.4th at p. 1146.)

“The identity of the ‘client’ in the context of the representation of corporations is directly addressed by rule 3-600 of the Rules of Professional Conduct. That section provides: ‘In representing an organization, a member shall conform his or her representation to the concept that the client is the organization itself, acting through its highest authorized officer, employee, body or constituent overseeing the particular engagement.’ [Citation.]” (Brooklyn Navy Yard Cogeneration Partners v. Superior Court (1997) 60 Cal.App.4th 248, 254.)

Here, there was sufficient evidence Buchman did not violate its duty of loyalty to CSS. Contrary to Appellants’ claim otherwise, Buchman did not represent both CSS and Wardak as an individual. In his declaration, Wardak stated that as CSS’s president, he retained Buchman to represent CSS. In his declaration, Signorotti, a Buchman attorney, confirmed Wardak, in his capacity as CSS’s president, retained Buchman to be CSS’s corporate counsel. He added his duty of loyalty was to CSS. Wardak added he had his own personal counsel, John Gardner of Donahue Fitzgerald LLP. Signorotti confirmed Buchman did not represent Wardak individually. As to the answer Buchman filed on behalf of CSS, where it stated Buchman was counsel to CSS and Wardak, Signorotti stated it was “a typographical error, nothing more.” Because Buchman did not represent Wardak individually, there was no risk Signorotti was unable to give his opinion to CSS free of bias or prejudice. (Metro-Goldwyn-Mayer, Inc. v. Tracinda Corp. (1995) 36 Cal.App.4th 1832, 1842; Flatt v. Superior Court (1994)

9 Cal.4th 275, 284 [attorney duty of loyalty to client and cannot be divided].)

Based on these declarations, substantial evidence supported a finding there was not simultaneous representation. Rule 3-310, and its informed written consent requirement for representation of clients with adverse interests, is inapplicable here. Thus, Appellants’ reliance on Gong v. RFG Oil, Inc. (2008) 166 Cal.App.4th 209,

216-217 [simultaneous promotion of two clients’ interests], and Woods v. Superior Court (1983) 149 Cal.App.3d 931, 936 [attorney represented both husband’s and wife’s interest in family business], is misplaced.

Equally meritless is Appellants’ claim Buchman’s failure to investigate Wardak or file a lawsuit against him establishes a violation of the duty of loyalty. In his declaration, Signorotti stated he was unaware of any meritorious claims CSS could bring against Wardak. He added, “No request has been made to CSS to pursue or investigate any meritorious claims against . . . Wardak.” And neither Weiss nor Mildred submitted declarations supporting the disqualification motion citing to their efforts to convince Buchman to investigate or prosecute Wardak. Appellants’ claim Buchman tried to prevent an accounting was unsupported by any evidence. Therefore, sufficient evidence supported the trial court’s implied finding Buchman did not violate its duty of loyalty to CSS.

V. Collateral Estoppel

The issue is whether Judge Fell’s disqualification of Buchman in CSS’s lawsuit against Mildred required Judge Sherman to disqualify Buchman in CSS’s lawsuit against CS Marketing and Weiss. “Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings. [Citation.] Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.] The party asserting collateral estoppel bears the burden of establishing these requirements. [Citation.]” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341, fn. omitted (Lucido).)

Here, collateral estoppel did not require Judge Sherman to disqualify Buchman. Contrary to Buchman’s claim otherwise, the issue did not concern the status of Mildred (CSS shareholder) and CS Marketing (third party) and Weiss (CSS director). The issue was the relationship between Wardak and Buchman and whether there was a disqualifying conflict of interest, which was the same in both cases. Indeed, both disqualification motions alleged the same conflicts of interest. There was no issue as to the second, third, or fourth elements. The issue was litigated and decided, and the decision was final. (A.I. Credit Corp., Inc. v. Aguilar & Sebastinelli (2003)

113 Cal.App.4th 1072, 1077 [attorney disqualification order appealable and failure to appeal establishes ethical violation occurred].) However, the parties were not the same in the two proceedings.

In the disqualification motion before Judge Fell, the parties were CSS and Mildred. In the disqualification before Judge Sherman, the parties were CSS, CS Marketing, and Weiss. CS Marketing and Weiss were not on opposite sides in the former case. (Code Civ. Proc., § 1910.) ClintonBailey, on behalf of Mildred, filed a motion to join in CS Marketing and Weiss’s disqualification motion. Appellants cite to no authority, and we found none, that stands for the proposition these facts satisfy collateral estoppel’s same party requirement. Thus, Appellants failed their burden.

Finally, in their reply brief, Appellants rely on Judge Sherman’s comment at the hearing on the disqualification motion that he was unaware of a ruling

CS Marketing and Weiss’s counsel mentioned. Appellants rely on this comment to assert Judge Sherman was unaware of Judge Fell’s March 22, 2016, disqualification ruling, and thus he did not exercise his discretion and consider whether collateral estoppel applied.

It could not be clearer Judge Sherman was aware of Judge Fell’s order and considered whether collateral estoppel applied. In his tentative ruling he wrote, “[T]he court is not convinced that the moving parties have established legal and factual grounds to disqualify counsel, especially since the disqualification of counsel in the [CSS v. Mildred Dianne Omar] case . . . .” Based on our reading of the hearing transcript, we conclude Judge Sherman was referring to Judge Fell’s February 15, 2016, ruling where it ordered the parties not to spend any corporate funds other than to hire independent corporate counsel. Judge Sherman exercised his discretion and concluded collateral estoppel did not apply.

Additionally, Judge Sherman did not apply the wrong legal standard. Appellants rely on his tentative ruling, where he stated, “the disqualification of counsel in the [CSS v. Mildred Dianne Omar] case led to CSS’s new counsel dropping summary judgment and discovery motions[.]” In addition to collateral estoppel’s threshold elements, courts have looked to the public policies underlying the doctrine, including “preservation of the integrity of the judicial system.” (Lucido, supra, 51 Cal.3d at

pp. 342-343.) Judge Sherman was concerned ClintonBailey, who Mildred and Weiss retained to represent CSS, was controlling litigation against the people who decided to retain it. Needless to say, this could potentially undermine the integrity of the judicial system. Judge Sherman did not apply the incorrect legal standard, and his implied finding collateral estoppel did not apply was supported by sufficient evidence. Therefore, Judge Sherman did not abuse his discretion by denying CS Marketing and Weiss’s motion to disqualify Buchman. Even if we were persuaded there were no disputed facts and our review was de novo, we would reach the same conclusion.

DISPOSITION

The order is affirmed. The parties shall bear their own costs on appeal.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

THOMPSON, J.