Filed 10/25/19 Moore v. Bragg CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

IVAN RENE MOORE,

Plaintiff and Appellant,

v.

KIMBERLY MARTIN-BRAGG,

Defendant and

Respondent.

B272445

(Los Angeles County

Super. Ct. No. BC464111)

RONALD HILLS et al.,

Plaintiffs and Appellants,

v.

KIMBERLY MARTIN-BRAGG et al.,

Defendants and

Respondents.

B272445

(Los Angeles County

Super. Ct. No. BC475551)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michelle R. Rosenblatt and Michael M. Johnson, Judges. Affirmed.

Ivan Rene Moore, in pro. per.; for Plaintiff and Appellant Ivan Rene Moore.

Ronald Hills, in pro. per., for Plaintiff and Appellant Ronald Hills.

Glaser Weil Fink Howard Avchen & Shapiro and Felton T. Newell for Defendant and Respondent Kimberly Martin-Bragg.

____________________________

Ronald Hills and vexatious litigant Ivan Rene Moore appeal from a trial court judgment dismissing all of their causes of action against Kimberly Martin-Bragg and awarding Bragg declaratory and injunctive relief related to the parties’ dispute over real property located at 6150 Shenandoah Avenue in Los Angeles. Moore also appeals from the trial court’s order declaring him to be a vexatious litigant. Finding no error, we affirm.

BACKGROUND

Because the record in this case is deficient, the background is necessarily drawn entirely from the trial court’s statement of decision issued after a six-day bench trial.

“This action concerns conflicting claims for the title to real property located at 6150 Shenandoah Avenue in Los Angeles (‘6150 Shenandoah’). The property consists of a single family residence located in the Ladera Heights area of the city.

“The plaintiffs and cross-defendants are [Moore] and [Hills]. Moore is a singer, songwriter and music producer. He controls and operates music and radio corporations that include Rene Moore Music Inc., Rufftown Entertainment Inc. and Radio Multi-Media Inc. Hills is Moore’s close friend and business associate, who has served as the corporate secretary for Moore’s corporations since the late 1980s.

“The defendant and cross-complainant is [Bragg]. She is a licensed real estate agent and a former police officer. [Bragg] owns and occupies 6160 Shenandoah Avenue in Los Angeles, which is the property adjacent to 6150 Shenandoah. She and Moore lived together as domestic partners beginning in 2002 and ending several years later (the exact date was unclear in the evidence).

“[A.] PROCEDURE

“This action involves a number of consolidated and related cases, and together they have a long and tortured procedural history. [¶] . . . [¶]

“The legal proceedings started on April 13, 2011 when [Bragg] filed [Los Angeles Super. Ct. No.] BC459449. That case was an unlawful detainer action against Moore regarding 6150 Shenandoah, the same property involved in this trial. The case was assigned to Judge Richard Fruin.

“On June 20, 2011, Moore filed BC464111, an action for quiet title and related claims against [Bragg] regarding 6150 Shenandoah. The case was assigned to Judge Michelle Rosenblatt.

“During the course of the unlawful detainer proceedings in BC459449, Moore repeatedly asked for his quiet title action in BC464111 to be related and transferred to Judge Fruin for a consolidated trial with [Bragg’s] unlawful detainer claim. Judge Fruin denied his requests.

“The unlawful detainer claim in BC459449 was tried in late 2011. On January 23, 2012 Judge Fruin issued a statement of decision in favor of [Bragg], and entered judgment for her possession of 6150 Shenandoah. A writ of execution was issued, and [Bragg] obtained possession of the property. Moore appealed the judgment, but he has remained out of possession.

“On December 20, 2011 Moore and Hills filed BC475551, another action for quiet title and related claims against [Bragg] and various banking defendants regarding 6150 Shenandoah. Although BC475551 was somewhat broader than BC464111, the two cases raised very similar claims. BC475551 was ultimately related to BC464111, assigned to Judge Rosenblatt, and consolidated with BC464111.

“On March 2, 2012 Moore filed BC480013, an action against [Bragg] for trespass and conversion of personal property located within the 6150 Shenandoah property. Moore alleged that [Bragg] retained his personal property after he vacated the premises in response to the unlawful detainer judgment. The case was ultimately related to BC464111 and assigned to Judge Rosenblatt. [¶] . . . [¶]

“By mid-2012 there were two groups of consolidated cases before Judge Rosenblatt: the quiet title and real property claims between Moore, Hills and [Bragg] in BC464111 (c/w BC475551), and the personal property claims between Moore and [Bragg] in BC480013 (c/w BC483652). At that time, [Bragg’s] unlawful detainer action in BC459449 was pending on appeal and inactive in the trial court.

“On October 9, 2012 in BC464111 Judge Rosenblatt entered an order declaring Moore to be a vexatious litigant under Code [of Civil Procedure section] 391. Judge Rosenblatt stayed all proceedings in BC464111 and ordered Moore to post a security bond in the amount of $100,000. When Moore failed to post a bond, Judge Rosenblatt dismissed BC464111 by order entered on February 26, 2013. On July 3 and July 11, 2013 Judge Rosenblatt entered orders requiring Moore to post a vexatious litigant bond in BC475551 and BC480013. On October 23, 2013 Judge Rosenblatt entered an order rescinding the dismissal of BC464111 but adhering to the requirement that Moore post a bond in all of his cases.

“In July 2013 a jury trial was conducted before Judge Rosenblatt on some of Moore’s personal property claims against [Bragg] in BC480013 (c/w BC483652). The claims related to trespass to chattels, conversion and similar claims concerning personal property located within the 6150 Shenandoah property that [Bragg] had retained after Moore vacated the premises following the unlawful detainer judgment. On July 29, 2013 the jury returned a verdict in favor of Moore. An interlocutory judgment was entered on the verdict on November 8, 2013, awarding Moore damages against [Bragg] in the amount of $3,150,000, reduced to $650,000 if [Bragg] returned specified personal property to Moore.

“On August 1, 2013 [we] issued a decision that reversed [Bragg’s] unlawful detainer judgment in BC459449. [(Moore I, supra, 219 Cal.App.4th 367.) We] held that Judge Fruin erred by failing to consolidate Moore’s claims for quiet title in BC464111 with [Bragg’s] unlawful detainer action in BC459449, and that Moore was prejudiced because his quiet title issues were too complex for the summary procedures followed in the unlawful detainer trial. [(Id. at p. 395.)] Judge Fruin recused himself following [our] decision, and on November 20, 2013 [Bragg] dismissed the BC459449 unlawful detainer action.

“Judge Rosenblatt granted summary judgment in favor of the banking defendants on August 13, 2013 and judgment on the pleadings in favor of [Bragg] on November 8, 2013 for Moore and Hills’[s] operative Second Amended Complaint in BC464111 (c/w BC475551). These rulings left only the 5th cause of action for quiet title and 4th cause of action for slander of title against [Bragg], as well as [Bragg’s] cross-complaint against Moore and Hills.

“On February 21, 2014 Judge Rosenblatt recused herself from all of the consolidated cases assigned to her: the quiet title and real property claims in BC464111 (c/w BC475551), and the personal property claims in BC480013 (c/w BC483652). All of the cases were reassigned to Judge Frederick Shaller.

“Judge Shaller presided over all of the cases from March 24, 2014 through March 23, 2015. Among the more significant rulings: on October 15, 2014 Judge Shaller denied Moore’s motion for a preliminary injunction removing [Bragg] from the 6150 Shenandoah property, because the ownership and quiet title issues were pending in BC464111 (c/w BC475551); and on January 5, 2015 Judge Shaller ruled that the November 8, 2013 money judgment in BC480013 (c/w BC483652) could not be enforced because it was an interlocutory determination.

“Moore challenged his status as a vexatious litigant before Judge Daniel Buckley, [then-]Supervising Judge of the Civil Division. On November 20, 2014 Judge Buckley denied Moore’s motion to rescind Judge Rosenblatt’s vexatious litigant and bond posting orders.

“On January 8, 2015 Moore and Hills filed a statement of disqualification against Judge Shaller in all of the cases. Judge Shaller failed to respond to the statement, and on March 23, 2015 Judge Shaller ruled that he was disqualified as a matter of law for failing to respond in a timely manner. All of the cases were reassigned to Judge Michael Johnson on May 27, 2015. [¶] . . . [¶]

“[After the cases were reassigned to Judge Johnson, both] parties filed motions that challenged prior rulings by other [j]udges, and all the motions were denied. [Bragg] moved for a preliminary injunction preventing Moore and Hills from filing an unlawful detainer action for possession of 6150 Shenandoah; it was denied on June 26, 2015. Moore and Hills moved to modify a protective order issued by Judge Rosenblatt on July 25, 2012; it was denied on August 24, 2015. Moore and Hills moved for an order permitting them to enforce the November 8, 2013 interlocutory judgment in BC480013 (c/w BC483652) and to inspect the 6150 Shenandoah property, which had been previously denied by other [j]udges on September 18, 2013, June 26, 2014, September 23, 2014 and January 5, 2015; the motion was denied again on September 2, 2015. On September 2, 2015 [the trial court] expressly ordered both parties not to file motions to reconsider prior rulings without complying with Code [of Civil Procedure section] 1008, and threatened sanctions for any violation of the order.

“On July 15, 2015 [Bragg] moved to dismiss all claims by Moore in the related and consolidated cases on the ground that he had failed to file a bond in compliance with the vexatious litigant orders. The [trial court] denied the motion, ruling that Moore’s interlocutory judgment of $3,150,000 against [Bragg] in BC480013 served the same purpose as a security bond and could be used to satisfy any expenses incurred by [Bragg] in the defense of Moore’s actions.

“On July 15, 2015 the [trial court] set a trial date for the remaining quiet title and real property claims between Moore, Hills and [Bragg] in BC464111 (c/w BC475551). The equitable claims were bifurcated pursuant to Code [of Civil Procedure sections] 598 and [1048, subdivision (b)], and the matters were set for a bench trial on October 5, 2015.

“The trial commenced on October 5, 2015. Trial was on the equitable claims in the operative pleadings, specifically: Moore and Hills’[s] 5th cause of action for quiet title based on a purchase money resulting trust, stated in the [Second] Amended Complaint filed April 11, 2012 in BC475551 (c/w BC464111); and [Bragg’s] 1st cause of action for declaratory relief, 2nd cause of action for cancellation of instruments, 3rd cause of action for injunction, and 4th cause of action for quiet title, stated in the [cross-complaint] filed February 21, 2013 in BC464111 (c/w BC475551). These equitable claims were bifurcated for a bench trial, with the remaining legal claim (Moore and Hills’[s] 4th cause of action for slander of title) reserved for later determination.

“On the first day of trial Moore and Hills moved to vacate the order for a bench trial and to instead conduct a jury trial of all claims. The motion was denied, and the matter proceeded as a bench trial. Trial was conducted on October 5, 6, 7, 8, 13 and 14, 2015, with a court reporter present each day.

“During the trial Moore and Hills filed statements of disqualification against Judge Johnson. . . . The first statement against Judge Johnson was filed on October 9, 2015; on the same date it was stricken and the trial proceeded. On October 13, 2015 Moore and Hills orally objected to Judge Johnson’s participation in the trial, announcing that Moore had filed a federal lawsuit against Judges Rosenblatt, Fruin, Shaller, Buckley, Johnson and other [superior court judges]; the objection was overruled and the trial proceeded. On October 14, 2015 Moore filed a second statement of disqualification against Judge Johnson; on the same date it was stricken and the trial proceeded.

“ . . . Moore filed three pleadings seeking to disqualify Judge Johnson on October 20, October 21 and November 3, 2015. None of these pleadings were served in compliance with Code [of Civil Procedure section 170.3, subdivision (c)(1)]; the [trial court] learned of the unserved pleadings on November 6, 2015, and issued an order striking them on the same date. On November 30, 2015 Moore filed and served two additional pleadings seeking to disqualify Judge Johnson, and they were stricken by order entered on December 1, 2015. On December 18, 2015 Moore and Hills filed and served two additional pleadings seeking to disqualify Judge Johnson, and they were stricken by order entered on December 21, 2015. On January 4, 2016 Moore and Hills filed and served another pleading seeking to disqualify Judge Johnson, and it was stricken by order entered on January 12, 2016. On February 10, 2016 Moore filed yet another pleading seeking disqualification, and it was stricken on February 11, 2016.”

The trial court entered judgment for Bragg on March 29, 2016. Moore and Hills timely appealed.

DISCUSSION

A. Vexatious Litigant Order & Disqualification of Judge Johnson
B.
Moore contends that the trial court abused its discretion when it entered an order declaring him a vexatious litigant because, he explains, two of the six actions upon which the trial court relied for its determination of his vexatious litigant status were summary denials of writ petitions. (See Code Civ. Proc., § 391, subd. (b)(1).)

“A court exercises its discretion in determining whether a person is a vexatious litigant. [Citation.] We uphold the court’s ruling if it is supported by substantial evidence. [Citations.] On appeal, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment.” (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219.)

Moore argues that Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1172 (Fink) “is clear” that a summary denial of a writ petition does not qualify as litigation that has been “finally determined adversely,” and that the trial court therefore erred when it relied on summary denials of two writ petitions to find that Moore is a vexatious litigant. We disagree.

What Fink says is that a summary denial of a writ petition “does not necessarily constitute a litigation that has been ‘finally determined adversely to the person’ . . . .” (Fink, supra, 180 Cal.App.4th at p. 1172, italics added.) Fink distinguished between summary denials of writ petitions that can and cannot support a vexatious litigant finding. Where appellate review may be obtained only through a writ petition, a summary denial will suffice to support a vexatious litigant finding; where appellate review may be obtained through a later appeal, a summary denial of a writ petition might not support a vexatious litigant finding. (Id. at pp. 1172-1173.)

The distinction is academic here; Moore has not provided us with information from which we may discern the nature of either of the two writ proceedings relied upon by the trial court (or any other information from which we might meaningfully review the trial court’s order). “It is the burden of appellant to provide an accurate record on appeal to demonstrate error. Failure to do so precludes an adequate review and results in affirmance of the trial court’s determination.” (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1.) Because Moore has not provided us a record that demonstrates the trial court’s error, we affirm the trial court’s order declaring Moore a vexatious litigant.

Based on the record before us, we would affirm the trial court’s order declaring Moore a vexatious litigant even if both of the unsuccessful writ petitions the trial court cited were insufficient to support the finding. Between October 9, 2015 and February 10, 2016, Moore filed at least nine pleadings seeking to disqualify Judge Johnson under Code of Civil Procedure section 170.3. Those pleadings alone support a vexatious litigant finding under Code of Civil Procedure section 391, subdivision (b)(3), which provides that “[i]n any litigation while acting in propria persona, [a person who] repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay” is a vexatious litigant.

C. Jury Trial
D.
One of the primary categories of error Moore and Hills assert on appeal is that they were entitled to a jury trial below rather than the bench trial the trial court conducted. The appellants’ jury trial arguments are threefold. First, the appellants contend that they were entitled to a jury trial because their action was a quiet title action involving possession of the 6150 Shenandoah real property (citing Thomson v. Thomson (1936) 7 Cal.2d 671 (Thomson)). Second, the appellants contend that court orders by a variety of judges they sought to have disqualified (and that did eventually recuse or otherwise disqualify themselves from the matter) guaranteed them a jury trial on all of their claims. Third, Moore and Hills argue that the trial court’s denial of a jury trial contradicted our decision in Moore I.

Thomson is inapposite by its own terms. “In a simple action to quiet title when the possession of the property is not involved, it is an equitable action.” (Thomson, supra, 7 Cal.2d at p. 681.) The trial court tried the appellant’s quiet title action based on the fifth cause of action in their second amended complaint. As Bragg points out in her brief, the appellants did not seek possession of the property by that cause of action. “A quiet title action is equitable in nature except when it takes on the character of an ejectment proceeding to recover possession of real property. [Citation.] In this case, neither party sought possession of the property under an ejectment theory. The trial court therefore adjudicated the matter as a chancellor in equity.” (Aguayo v. Amaro (2013) 213 Cal.App.4th 1102, 1109-1110.)

Moreover, regardless of statements in prior judges’ orders referring to a jury trial based on the appellants’ posting of jury fees, Moore and Hill were not entitled to have equitable claims heard by a jury. “As a general proposition, ‘[t]he jury trial is a matter of right in a civil action at law, but not in equity.’ ” (C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 8.)

Finally, our opinion in Moore I reversed the trial court’s judgment in BC459449 and remanded that case to the trial court for further proceedings. Moore and Hills argue that our statement that the trial court’s error in that case “require[ed] the judgment’s reversal and remand to the trial court for determination of the parties’ rights to legal and beneficial title to the property, and their respective rights to possession based on that determination” required a jury trial on remand. (See Moore I, supra, 219 Cal.App.4th at p. 395.) It did not. The parties’ respective rights to legal and beneficial title to 6150 Shenandoah have now been determined. And nothing in the record leads us to conclude that there was any question left requiring a jury after the trial court conducted its bench trial on the equitable issues it bifurcated.

E. Discovery Rulings
F.
The appellants also challenge the trial court’s judgment based on what they characterize as discovery rulings.

Moore argues, for example, that “Judge Johnson erred in not allowing [him] discovery on critical issues.” That argument, however, is based on a disagreement with a factual finding the trial court made, and contains no citations to law or any aspect of the record that explain the issue, much less demonstrate error.

Moore also argues that the trial court’s entry of a protective order Bragg sought to prevent discovery of various financial records was unfair and deprived him and Hills of due process. The protective order alludes to the California Right to Financial Privacy Act. (Gov. Code, § 7460 et seq.) We can only surmise (the record does not contain supporting documents) that Bragg’s motion for the protective order and the reporter’s transcript from the hearing on the motion would explain why the trial court invoked the “financial privacy act.” Regardless, the appellants’ arguments contain no information from which we could conclude the trial court abused its discretion by denying Moore and Hills access to Bragg’s sensitive financial information.

“To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) We can discern no error from the appellants’ arguments regarding evidentiary rulings.

Likewise, Moore contends that Judge Johnson was asked to enforce Judge Rosenblatt’s order for Bragg to return Moore’s personal property, including files he needed for litigation. But again, the record contains no such request or denial.

G. Sufficiency of the Evidence
H.
Citing inferences from evidence favorable only to their conclusions, the appellants allege in conclusory fashion that the evidence at trial was insufficient to support the trial court’s judgment. On appeal for sufficiency of the evidence, however, “we consider the evidence in the light most favorable to the prevailing party, accept as true all the evidence and reasonable inferences tending to establish the correctness of the jury’s finding, and resolve every conflict in favor of the judgment.” (Grassilli v. Barr (2006) 142 Cal.App.4th 1260, 1277.)

We “start with the presumption that the record contains evidence sufficient to support the judgment; it is the appellant’s burden to demonstrate otherwise. [Citation.] The appellant’s brief must set forth all of the material evidence bearing on the issue, not merely the evidence favorable to the appellant, and it also must show how the evidence does not sustain the challenged finding. [Citations.] And the appellant must support all of its factual assertions with citations to evidence in the appellate record. [Citations.] If the appellant fails to set forth all of the material evidence, its claim of insufficiency of the evidence is waived.” (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 368.)

Neither Moore nor Hills, nor their submissions taken together, have provided an adequate basis to challenge the sufficiency of the evidence here. (Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447-448.) Even if we were able to determine what the asserted error is from the record and briefs they have provided us, we would then be faced with very specific findings by the trial court that the appellants cannot overcome here. “The parties have raised a number of claims,” the trial court said, “but cutting through all of the issues is the question of credibility. The [trial court] has evaluated the credibility of both sides, and specific credibility determinations are explained in the [trial court’s] factual summary. In general, the [trial court] has concluded that [Bragg] was credible and truthful, while Moore and Hills were not. [¶] The testimony by Moore and Hills was unconvincing, frequently misleading, and often appeared to be deliberately untruthful. The [trial court] has no confidence in their testimony or version of the facts. Moore and Hills represented themselves during trial, and their lack of personal credibility has infected all of their evidence.”

The appellants’ arguments regarding sufficiency of the evidence rely largely on their assertions about evidence they contend the trial court should not have believed. “[I]t is the province of the trial court and not this court to pass on the credibility of the witnesses and to determine the weight and sufficiency of the evidence.” (Saunders v. Saunders (1959) 173 Cal.App.2d 557, 558.)

I. JPMorgan Chase Bank Summary Judgment
J.
In addition to the arguments Moore raised in his opening brief, Hills also argued that the trial court erred by granting summary judgment to JPMorgan Chase Bank. The record contains no summary judgment briefing regarding JPMorgan Chase Bank, no evidence regarding that motion for summary judgment, no reporter’s transcript from any hearing on a motion for summary judgment, and no ruling on the motion for summary judgment. Nor does the record contain the trial court’s register of actions from which we would be able to discern if there were a motion for summary judgment ruled on in this particular action.

While the trial court’s statement of decision after trial alludes to “summary judgment in favor of the banking defendants on August 13, 2013,” we have no information regarding that order that would even allow us to determine if the order is appealable or if a notice of appeal filed in 2016 was timely. And we are aware of no appearance here or service of any of the documents in this matter on any counsel for JPMorgan Chase Bank, including the notice of appeal, which was served on counsel for Bragg.

Hills’s argument regarding a JPMorgan Chase Bank summary judgment suffers from the same flaws as the other arguments appellants have made here; the appellants have not provided us information sufficient for us to review their challenge.

DISPOSITION

The trial court’s order declaring Moore a vexatious litigant and the judgment are affirmed. Respondent is entitled to costs on appeal.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

WEINGART, J.*

Filed 10/25/19 Marriage of Royal CA5

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

FIFTH APPELLATE DISTRICT

In re the Marriage of DANIEL and IRENE ROYAL.

DANIEL ROYAL,

Appellant,

v.

IRENE ROYAL,

Respondent.

F076793

(Super. Ct. No. 03CEFL05162)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. D. Tyler Tharpe, Judge.

Mugridge Moran, Amanda K. Moran and Janay D. Kinder, for Appellant.

No appearance for Respondent.

-ooOoo-

Appellant Daniel Royal challenges an order renewing a protective and stay-away order under Family Code section 6345. Daniel contends the trial court did not apply the “reasonable apprehension of future abuse” standard in accordance with the principles adopted in Ritchie v. Konrad (2004) 115 Cal.App.4th 1275 (Ritchie). He contends the trial court failed to consider the factors relevant to renewing a contested, nonviolent protective order, including the significant changes in circumstances since the initial restraining order was issued and the burdens the restraining order imposed on him. Daniel also contends the trial court abused its discretion by allowing him only a one-day continuance to prepare for the renewal hearing.

On the procedural issue, we conclude the trial court did not abuse its discretion when it granted a one-day continuance after Daniel stated, “I’d rather just get this over with sooner rather than later, if that’s possible.” Also, the trial court’s statements at the end of the hearing establish the court applied the appropriate standard of reasonableness to respondent Irene Royal’s fear of future “abuse”—a term that includes harassment and sending annoying text messages and photographs. The record contains substantial evidence supporting the court’s finding that Irene experienced a reasonable apprehension of this type of future abuse. Furthermore, the record does not show the court failed to consider relevant factors, such as the changes in circumstances and the burdens placed on Daniel, when it decided to renew the restraining order.

We therefore affirm the order renewing the restraining order.

FACTS AND PROCEEDINGS

Daniel and Irene were married in the 1990’s and had three children. In September 2003, Daniel filed a petition for dissolution of marriage. In July 2007, a judgment of dissolution of marriage was filed.

In May 2014, Daniel requested a domestic violence restraining order against Irene. In June 2014, the court issued a temporary restraining order. At the first hearing on the matter, Irene requested and obtained a continuance and the temporary restraining order remained in effect. At the July 2014 hearing, criminal charges were pending against Irene and she requested another continuance. After further continuances and Irene filing her own request for a restraining order against Daniel, the parties appeared at a hearing on October 29, 2014. They informed the court they had reached an agreement and withdrew their requests for restraining orders. As a result, the trial court terminated the temporary restraining order against Irene.

In 2016, Irene initiated a separate lawsuit and sought a restraining order against Daniel. The lawsuit was assigned case No. 16CEFL03606 by the Fresno County Superior Court. The restraining order was issued on November 17, 2016, and had a duration of one year. The court consolidated case No. 16CEFL03606 with the present family court matter.

Prior to the expiration date of the restraining order, Irene filed an application for its renewal. Based on the register of action, it appears the request to renew the restraining order was filed on October 18, 2017. At the time, Daniel’s order to show cause relating to the modification of child support and visitations was pending and he was represented by an attorney in that matter.

On November 7, 2017, a hearing was held on Irene’s application to renew the restraining order. Irene and Daniel were present at the hearing and neither was represented by an attorney. A copy of Irene’s application and supporting papers were handed to Daniel at the hearing and the matter was continued for one day. Further details about the hearing are set forth in part II.A of this opinion.

On November 8, 2017, the trial court heard evidence relating to Irene’s application to renew the restraining order. Both Daniel and Irene testified at the hearing. In addition, a friend of Irene, Melia Jackson, testified on Irene’s behalf. Irene testified about how she felt Daniel was abusing court processes and had sent her a text stating “I will stall it as long as I can, and I believe that your work will not like that.” She referred to court proceedings on an issue lasting over a year and stated, “It was just done on 9/8/2017.”

Irene also testified about attending two water polo matches to watch her sons and how Daniel was present and did not comply with the stay-away distance in their custody agreement. Irene also described text messages and photographs Daniel has sent to her. In response to a question by the court about the texts and photograph she had described, Irene confirmed she had received them since the restraining order was in place. Irene acknowledged that Daniel had stopped calling her work after the restraining order was issued. In a summary of her testimony, Irene stated: “He will stalk me. He will manipulate. He will do anything he can to belittle me, to keep me down, just to harass and stalk and hurt me.” Irene’s witness, Jackson, testified about a variety things Daniel had done, including some of the text messages and photographs she had seen when Irene forwarded them to her.

At the close of the hearing, the trial court informed the parties of its decision by stating: “The Court finds that [Irene] has carried her burden of proving that she still suffers reasonable fear. The Court grants the application, renews the restraining order that issued on November 17, 2016, making it a permanent order of the Court. Same terms and conditions. You’ll get paperwork shortly and then off you go. Thank you.”

The trial court then completed and filed the one-page, mandatory Judicial Council form DV-730, Order to Renew Domestic Violence Restraining Order. The order named Irene as the protected person and Daniel as the restrained person. It stated Irene’s request to renew the restraining order issued on November 17, 2016, was granted and the order would remain in effect permanently.

The trial court also completed and filed mandatory Judicial Council form DV-130, Restraining Order After Hearing, setting forth the terms of the personal conduct orders and the stay-away order. The court checked all three boxes in item 6.a of the form, requiring Daniel (1) not to harass, threaten, assault, stalk, keep under surveillance, impersonate, or block the movements of Irene; (2) not to contact Irene, either directly or indirectly, by any means, including by telephone, email or other electronic means; and (3) not to take any action to obtain her location. The order required Daniel to stay at least 100 yards away from Irene. The form’s standard firearms limitation also was imposed. Daniel timely appealed.

DISCUSSION

I. GENERAL LEGAL PRINCIPLES

A. Overview of the Statute

The Domestic Violence Prevention Act is set forth in Division 10 of the Family Code. (§§ 6200–6460; see § 6200 [short title].) Its purpose “is to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.” (§ 6220.) Part 3 of the Domestic Violence Prevention Act (§§ 6240–6275) authorizes emergency protective orders, which may be issued ex parte. (See § 6250 [grounds for issuance].) Part 4 (§§ 6300–6390) provides for the issuance of domestic violence restraining orders (which is the subject of this appeal) and other types of protective and prevention orders.

The Domestic Violence Prevention Act defines “abuse” to include any behavior that could be enjoined pursuant to section 6320. (§ 6203, subd. (a)(4).) Section 6320, subdivision (a) authorizes the issuance of orders enjoining, among other things, harassing, telephoning, contacting (either directly or indirectly) by mail or otherwise, or disturbing the peace of the other party. This definition of abuse is not limited to acts of physical abuse or threats of physical abuse. (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 398.) “Annoying and harassing an individual is protected the same way as physical abuse.” (Ibid.) Section 6320’s reference to “disturbing the peace of the other party” has been interpreted to mean “conduct that destroys the mental or emotional calm of the other party.” (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497.)

The duration and renewal of a domestic violence restraining order is addressed by section 6345. When initially issued, the order “may have a duration of not more than five years” and is subject to termination or modification by order of the court based on the parties’ stipulation or a motion of a party. (§ 6345, subd. (a).) The domestic violence restraining order “may be renewed upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party.” (Ibid., italics added.)

The practical effect of making a restraining order “permanent” is the shifting of the burden from the protected party to the restrained party. A protected party is not required to seek additional renewals and present evidence to justify renewal. Instead, the restrained party must obtain a written stipulation from the protected party or file a motion. (§ 6345, subd. (a).) A restrained party who files a motion has the burden of showing “by a preponderance of the evidence that one of the circumstances set forth in Code of Civil Procedure section 533 is present and justifies a termination of the restraining order.” (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1505 (Loeffler) [the three independent grounds are a material change in facts, change in the law, or the ends of justice].)

B. Judicial Interpretation of Renewal Provision

In Ritchie, supra, 115 Cal.App.4th 1275, the Second District resolved an issue of first impression by interpreting section 6345 to mean the renewal of a domestic violence restraining order requires a finding that there is a reasonable apprehension of future abuse if the initial order expires. (Ritchie, supra, at p. 1283.) In explaining the “reasonable apprehension of future abuse” test, the court concluded it was not enough that the protected party requested a renewal and desired the protective order to continue. (Id. at p. 1284.) The court also concluded it was not enough for the protected party to “entertain a subjective fear the party to be restrained will commit abusive acts in the future.” (Id. at p. 1288.) Instead, the court adopted an objective reasonableness standard and concluded the trial “court must find the probability of future abuse is sufficient that a reasonable woman (or man, if the protected party is a male) in the same circumstances would have a ‘reasonable apprehension’ such abuse will occur unless the court [renews the] protective order.” (Id. at p. 1288.)

Under this standard, a renewal of a domestic violence restraining order is appropriate “if, and only if, [the trial court] finds by a preponderance of the evidence that the protected party entertains a ‘reasonable apprehension’ of future abuse.” (Ritchie, supra, 115 Cal.App.4th at p. 1290.) Thus, the trial court must determine whether “the evidence demonstrates it is more probable than not there is a sufficient risk of future abuse to find the protected party’s apprehension is genuine and reasonable.” (Ibid.) In assessing the risk of future abuse, the trial court “ordinarily should consider the evidence and findings on which [the] initial order was based.” (Ibid.; see fn. 2, ante.) In addition, the trial court should consider any significant change in circumstances such as whether the parties have moved on with their lives. (Ibid.) The trial court should also consider whether the circumstances have enhanced the opportunity and possibility of future abuse. (Ibid.) The burdens imposed on the restrained party “may or may not be a relevant factor in the trial court’s consideration of a contested request for renewal of a protective order.” (Id. at p. 1291.) Those social and economic burdens do not “justify denial of a renewed protective order where the ‘reasonable apprehension’ is of future acts of physical violence.” (Ibid.) However, where the existing order focuses on the threat of lesser forms of abuse, such as unwanted phone calls and mail, “the court may have to weigh the seriousness as well as the degree of risk against the significance of the burdens the restrained party will experience if subjected to a continuing protective order.” (Id. at p. 1292.)

C. Standard of Review

Appellate courts review a trial court’s ruling on a request to renew a domestic violence restraining order for an abuse of discretion. (Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1463 (Eneaji).) “The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711.) For example, a trial court’s findings of fact are reviewed under the substantial evidence standard. (Ibid.; Loeffler, supra, (2009) 174 Cal.App.4th at p. 1505 [findings relating to protective order].) The trial court’s determinations of legal questions are reviewed de novo. (Haraguchi, supra, at p. 711.) “[W]hen the challenged determination involves the trial court’s weighing of the interrelated factors, the result of that weighing process generally will be upheld on appeal so long as the trial court did not exceed the bounds of reason or contravene the uncontradicted evidence.” (County of Kern v. T.C.E.F., Inc. (2016) 246 Cal.App.4th 301, 316 [abuse of discretion standard applied to ruling on application for preliminary injunction].)

“ ‘All exercises of discretion must be guided by applicable legal principles, however, which are derived from the statute under which discretion is conferred. [Citations.] If the court’s decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law. [Citation.] Therefore, a discretionary order based on an application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal. [Citation.]’ ” (Eneaji, supra, 229 Cal.App.4th at p. 1463.) Whether a trial court applied the correct legal standard “in exercising its discretion is a question of law” subject to de novo review. (Ibid.)

D. Scope of the Appellate Record

1. Facts

Daniel’s opening appellant’s brief includes attachments designated as Exhibits A through H. The first two exhibits are copies of the reporter’s transcript from the two hearings in November 2017. Exhibit C is pages 1, 3 and 5 from a declaration of Daniel dated March 6, 2018. Exhibit D is a declaration from the parties’ oldest son dated February 27, 2018. Exhibit E is a Clovis Police Department arrest record from May 2014. Exhibits F and G contain correspondence to Daniel relating to jobs as a police officer. Exhibit H is a Clovis Police Department incident report of events from January 18, 2016.

2. Applicable Law

The attachment of exhibits to appellate briefs is addressed by California Rules of Court, rule 8.204(d), which provides in part: “A party filing a brief may attach copies of exhibits or other materials in the appellate record or copies of relevant local, state, or federal regulations or rules, out-of-state statutes, or other similar citable materials that are not readily accessible.” (Italics added.) Thus, it is improper to include new evidence that was not presented during the trial court proceedings as an attachment to an appellate brief.

Appellate courts review the correctness of a trial court’s order or judgment and usually consider only matters that were part of the trial court’s record when the order or judgment was entered. (In re Marriage of Eustice (2015) 242 Cal.App.4th 1291, 1300, fn. 3.) For example, in Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, the appellate court refused to consider parts of the appellant’s opening brief supported solely by citations to exhibits outside the appellate record and not judicially noticed. (Id. at pp. 193–195.) We reach the same conclusion as to Exhibits C through H to Daniel’s opening appellant’s brief and the parts of his brief that rely on those documents. This court has not considered those arguments and documents in this appeal.

Similarly, we have not considered the changes in circumstance described in Daniel’s October 16, 2019, letter to this court. Accordingly, this opinion should not be interpreted as expressing a view, one way or the other, on whether those changes are sufficient to justify a modification or termination of the restraining order under section 6345, subdivision (a) and Code of Civil Procedure section 533.

II. ONE-DAY CONTINUANCE OF HEARING

A. Background

Daniel was told of the November 7, 2017, hearing on Irene’s application to renew the restraining order by his attorney. Daniel attended the hearing and was asked by the trial court if he had gotten Irene’s papers at least five days earlier. Daniel responded that he had not received anything. A copy of the application and supporting papers were handed to Daniel by the courtroom deputy and the court stated on the record that Daniel had been served.

The court informed Daniel of Irene’s request to make the domestic violence restraining order permanent and said, “I’m happy with setting this hearing out to a different day if that’s your preference.” Daniel stated he needed time to review the papers and suggested approximately 30 days. The restraining order was scheduled to expire on November 17th and Daniel asked what would happen if a 30-day extension of the hearing was granted. The court informed him that the restraining order would be extended to the new hearing date. Daniel then stated: “Okay. How soon—I’d rather just get this over with sooner rather than later, if that’s possible. I’m getting married Saturday and I’m going to be out of the country for a while on honeymoon.” The court asked: “How much time do you think you need? I can set it over just a day or two.” Daniel replied: “If we could do tomorrow, if the Court has any availability tomorrow.” Daniel also suggested the possibility of Thursday morning—a two-day extension. The court asked whether the following morning at 9:00 a.m. would work for the parties. Irene also agreed. As a result, the court continued the hearing to the next day.

B. Claim of Error

On appeal, Daniel contends the trial court abused its discretion by allowing him only one day to prepare for the continued hearing. Daniel contends he “was confused as to the nature of the continuance and as to what would be required of him the following day.” Daniel asserts he “did not prepare a defense because he believed he was merely responding to [Irene’s] paperwork which was delivered to him that very day.” Daniel further asserts he did not understand the court actually was asking “how much time [he] believed he needed to prepare for a trial determination of the request.”

As an alternative to imposing a longer continuance, Daniel argues the trial court “should have further inquired as to whether [he] fully understood the nature of the proceedings moving forward.” Daniel asserts “[i]t became evident that [he] did not understand the instructions being told to him because a person in the legal community would take more time to prepare a defense against a permanent restraining order request.”

Daniel supports his claim the trial court abused its discretion by quoting statements from Gamet v. Blanchard (2001) 91 Cal.App.4th 1276 (Gamet) about the treatment of litigants proceeding without an attorney. “Judges should recognize that an in propria persona litigant may be prone to misunderstanding court requirements or orders—that happens enough with lawyers—and take at least some care to assure their orders are plain and understandable. Unfortunately, the careless use of jargon may have the effect, as in the case before us, of misleading an in propria persona litigant. The ultimate result is not only a miscarriage of justice, but the undermining of confidence in the judicial system.” (Id. at p. 1285.) The court in Gamet also stated: “Trial judges must acknowledge that in propria persona litigants often do not have an attorney’s level of knowledge about the legal system and are more prone to misunderstanding the court’s requirements.… [W]hen an in propria persona litigant is involved, special care should be used to make sure that verbal instructions given in court and written notices are clear and understandable by a layperson. This is the essence of equal and fair treatment, and it is not only important to serve the ends of justice, but to maintain public confidence in the judicial system.” (Id. at p. 1284.)

C. Analysis

1. Need for Further Inquiry by Court

We first consider Daniel’s claim it was evident he did not understand what the trial court told him about the proceedings and, therefore, the trial court abused its discretion by failing to conduct a further inquiry into his understanding. Daniel argues his lack of understanding was evident “because a person in the legal community would take more time to prepare a defense.” We reject this argument because it presumes the trial court knew or should have anticipated that Daniel’s response to the application would be to contest the renewal of the restraining order and, moreover, his opposition would involve the presentation of evidence from witnesses other than himself. Based on our review of the reporter’s transcript of the November 7, 2017, hearing and the other information in the record designated for appeal that was available to the trial court when it ordered the continuance, it was reasonable for the trial court to conclude Daniel understood what was being requested by Irene and the purpose of the hearing. The transcript does not show Daniel was confused or, like the plaintiff in Gamet, he “received information that was plainly inaccurate.” (Gamet, supra, 91 Cal.App.4th at p. 1283.) Instead, Daniel stated he would “rather just get this over with sooner rather than later, if that’s possible.” He explained his preference by stating he was “getting married Saturday and [was] going to be out of the country for a while on honeymoon.” Daniel’s use of the phrase “just get this over with” implies he understood the continued hearing would result in a final decision on Irene’s application and did not view it as an intermediate step.

Therefore, the trial court’s decision to provide Daniel with no further explanation of the proceedings did not exceed the bounds of reason and constitute an abuse of discretion. (Eneaji, supra, 229 Cal.App.4th at p. 1463 [abuse of discretion occurs when ruling exceeds the bounds of reason].) Rather, the court impliedly weighed various factors and the result of that weighing process falls within the permissible range of options available under applicable law. (See County of Kern v. T.C.E.F., Inc., supra, 246 Cal.App.4th at p. 316.)

2. Longer Continuance

Daniel’s contention that the trial court abused its discretion in granting a one-day continuance correctly identifies the applicable legal standard. Generally, a decision to grant or deny a continuance is committed to the trial court’s discretion. (E.g., Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716 [hearing on motion for summary judgment may be continued for good cause—a determination within the trial court’s discretion]; Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1249 [refusal to continue trial date].) We conclude the abuse of discretion standard also applies to a trial court’s decision relating to the continuance of a hearing on the renewal of a domestic violence restraining order under section 6345.

In the circumstances of this case, there is no suggestion the trial court chose the wrong legal standard when deciding how long to continue the hearing. Therefore, the trial court did not abuse its discretion by choosing the wrong legal standard. Instead, the trial court made its determination by weighing the evidence along with the statements and requests of the parties. This weighing process will be overturned on appeal only when the result exceeds the bounds of reason. (See County of Kern v. T.C.E.F., Inc., supra, 246 Cal.App.4th at p. 316.)

Here, Daniel argues the trial court should have granted a longer continuance. That argument asserts, in effect, that the only reasonable outcome was for the court to override Daniel’s express desire to “just get this over with sooner rather than later” and continue the hearing until after Daniel returned from his honeymoon. We conclude the trial court’s weighing of the circumstances did not exceed the bounds of reason because it was reasonable for the court to infer Daniel (1) understood the proceedings, (2) was capable of evaluating his own interests, and (3) actually had balanced those interests when he stated he wanted the matter resolved sooner rather than later.

Furthermore, the principles set forth in Gamet about the treatment of self-representing litigants primarily address a trial court’s responsibility in framing its orders and instructions in language a layperson can understand, rather than relying on technical legal terms and legal jargon. (See Gamet, supra, 91 Cal.App.4th at pp. 1284–1285 [judgment dismissing complaint was confusing because it failed to address the cross-complaint, was inconsistent with the prior minute order, and continued to list a law firm as counsel even though it had been relieved of that role].) Those principles do not require a trial court to reject an explicit request by a self-representing litigant and impose an order that the trial court believes better serves that litigant’s interests.

III. MERITS OF THE PERMANENT RENEWAL

A. Failures to Consider Relevant Evidence

Daniel’s opening appellant’s brief contends the trial court erred because it (1) did not consider the burdens he would suffer as a result of a renewed, permanent restraining order and (2) did not consider the significant changes in circumstances since the issuance of the initial protective order.

First, we address what it means to “consider” evidence. In Gonzales v. Interinsurance Exchange (1978) 84 Cal.App.3d 58, an insured driver filed a petition to vacate an arbitration award of $9,000 under his uninsured motorist coverage by alleging the arbitrator substantially prejudiced his right by failing to consider the medical evidence presented. (Id. at p. 61.) The court distinguished between a failure to consider evidence and a refusal to hear evidence. Based on a dictionary definition, the court stated: “Consider is ‘to view attentively … to fix the mind on, with a view to careful examination; to think on with care; to ponder; to study; to meditate on; …’ ” (Id. at p. 63.) The court further explained, “Legally speaking the admission of evidence is to hear it, and the weighing of it is to give it consideration.” (Ibid.) We adopt this definition of “consider” and conclude it means the weighing of evidence. Therefore, we interpret Daniel’s contentions as asserting the trial court did not weigh the evidence about (1) the burdens the restraining order would cause him to suffer or (2) the significant changes in circumstances.

Second, the failure to consider (i.e., weigh) relevant evidence has been held to be an abuse of discretion. For example, the “[f]ailure to consider and apply the statutory factors [relating to spousal support] constitutes an abuse of discretion.” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 305, superseded by statute on another ground, as stated in In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1049.) In Ritchie, the court reversed the order renewing the restraining order and remanded for further review. (Ritchie, supra, 115 Cal.App.4th at p. 1282.) The court determined “the trial court erred when it issued the renewal order based solely on Ritchie’s subjective desire the protective order be extended.” (Ibid.) The court stated the trial court “should have considered evidence tendered by both sides and determined whether Ritchie’s expressed fear of future abuse was genuine and also reasonable.” (Ibid.) Consequently, we conclude the failure to consider the factors identified in Ritchie as being relevant to whether to renew a restraining order constitutes an abuse of discretion.

Third, we address how an appellant can establish the trial court failed to weigh specific evidence in reaching its decision on whether to renew a restraining order. “[I]t is a fundamental principle of appellate procedure that a trial court [order or] judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.) In other words, all presumptions are indulged to support the trial court order or judgment “on matters as to which the record is silent, and error must be affirmatively shown.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) The presumption of correctness and the allocation of the burden to the appellant is part of the constitutional doctrine of reversible error. (Ibid.; see Cal. Const., art. VI, § 13.)

In Ritchie, the appellant was able to affirmatively demonstrate the trial court did not consider the relevant evidence because of statements made by the trial court during the hearing. The trial court stated it read the statute to mean the requesting party was entitled to a renewal unless there was some reason blocking the renewal. (Ritchie, supra, 115 Cal.App.4th at p. 1281.) When counsel asked for a clarification about the sole basis for the extension, the trial court stated “ ‘I think they’re entitled to it just upon request.’ ” (Ibid.) To summarize, in Ritchie, the appellant carried his burden of demonstrating a failure to consider relevant evidence based on explicit statements from the trial court.

In contrast to the appellant in Ritchie, Daniel has cited no explicit statements from the trial court as to what evidence it considered and did not consider. Accordingly, Daniel has not affirmatively demonstrated that the trial court did not consider relevant evidence. The record appears silent on what evidence the court weighed and did not weigh and, therefore, the presumption that the trial court followed the law has not been rebutted in this case.

Daniel argues and has established the trial court did not consider statements from his children. The children did not testify at the hearing. Also, the declaration of the oldest child was not presented to the trial court. That declaration was not prepared and signed until after the hearing and the trial court had issued its orders. However, Daniel has failed to establish the trial court erred because he has cited no authority explaining how a trial court can err by failing to weigh evidence never presented to it. (See pt. I.D., ante.)

B. Legal Standard Applied

Daniel argues the trial court committed reversible error because “the Court did not satisfy the appropriate objective test to renew a contested protective order.” This argument could be interpreted as asserting the trial court applied the wrong legal standard when it decided to renew the restraining order. If such an argument is being made, we reject it. The trial court explicitly found Irene “carried her burden of proving that she still suffers reasonable fear.” This statement demonstrates the court was aware of the applicable legal principles. In Ritchie, the court remanded for the trial court to determine “whether Ritchie’s expressed fear of future abuse was genuine and also reasonable.” (Ritchie, supra, 115 Cal.App.4th at p. 1282.) Here, the trial court’s finding that Irene “suffers reasonable fear” adequately demonstrates the court required her fear to be genuine and objectively reasonable. Thus, Daniel has not demonstrated the trial court applied the wrong legal standard.

C. Substantial Evidence

Daniel contends the trial court abused its discretion in awarding the permanent restraining order because Irene did not meet her burden of proving she had a reasonable apprehension of future abuse. Daniel restated this argument by asserting Irene “offered no substantial evidence to indicate a reasonable apprehension of fear of future abuse.”

When an appellant contends a trial court’s finding of fact is not supported by the evidence, the appellant has the burden of demonstrating the record does not contain substantial evidence that supports the finding. (Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1658.) This burden is a heavy one. (In re Marriage of Marshall (2018) 23 Cal.App.5th 477, 487.) To carry it, an appellant must provide the appellate court with an adequate record of the lower court’s proceedings (Ballard v. Uribe (1986) 41 Cal.3d 564, 574) and must “fairly summarize all of the facts in the light most favorable to the judgment” and show how and why it is insufficient. (Boeken, supra, at p. 1658; Marshall, supra, at p. 487.) A summary is “fair” when it describes both the favorable and unfavorable evidence. (Marshall, supra, at p. 487.)

Here, the appellate record does not contain Irene’s application for renewal of the restraining order or the supporting documents. As a result, this court cannot determine whether those documents include declarations or documentary evidence that supports the trial court’s findings. In addition, Daniel’s opening appellant’s brief does not present a summary of the facts that views the testimony presented at the November 8, 2017, hearing in the light most favorable to the trial court’s order.

We conclude the testimony of Irene and the witness who testified on Irene’s behalf, Melia Jackson, is sufficient to support a finding that Daniel sent Irene text messages and photographs after the initial restraining order was issued. (See Evid. Code, § 411; In re Marriage of Mix (1975) 14 Cal.3d 601, 614 [testimony of single witness, even a party, may constitute substantial evidence].) This behavior satisfied the definition of “abuse” adopted in the Domestic Violence Prevention Act. (§§ 6203, subd. (a)(4), 6320.) Section 6320, subdivision (a) authorizes the issuance of orders enjoining, among other things, harassing, telephoning, contacting (either directly or indirectly) by mail or otherwise, or disturbing the peace of the other party. (See Perez v. Torres-Hernandez, supra, 1 Cal.App.5th at p. 398 [little doubt restrained party’s telephone calls and text messages constituted continuing abuse under the statute].) The evidence about the text messages and photographs and Daniel’s other actions provided a sufficient basis for the trial court to infer Irene’s apprehension of future “abuse” was objectively reasonable.

Accordingly, we reject Daniel’s argument that the trial court findings are not supported by substantial evidence.

DISPOSITION

The November 2017 order renewing the restraining order judgment is affirmed.

Filed 10/25/19 Contreras v. United Airlines 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)

—-

SANTIAGO CONTRERAS,

Plaintiff and Appellant,

v.

UNITED AIRLINES, INC.,

Defendant and Respondent.

C081747

(Super. Ct. No. 34201500174953)

Following his discharge from United Airlines, Inc. (United), Santiago Contreras filed suit against United claiming he was unlawfully terminated because of his disability. United afterward filed a motion for summary judgment, contending that Contreras was instead fired for a legitimate, nondiscriminatory reason—namely, because Contreras had been dishonest and had violated company policy. To support its motion, United offered evidence showing Contreras had called in sick each day he was scheduled to work in September of 2014, and then to justify his absences, offered two conflicting doctor’s notes. One of those notes claimed Contreras was under a doctor’s care in Mexico from September 1 to 28, and was unable to return to the United States until September 28. But because Contreras had used his United flight benefits while out, United knew he had in fact returned to California on September 8, and had afterward flown to Florida and back to California—all during times he was allegedly in Mexico. After giving Contreras an opportunity to explain this discrepancy—during which time Contreras varied as to when he returned from Mexico—United terminated Contreras on the stated ground that he had violated United’s policies relating to honesty, sick leave, and travel.

The trial court granted summary judgment in favor of United. On appeal, Contreras raises three general arguments.

First, he argues the trial court failed to apply the appropriate standard of review for summary judgment. But he supports this argument with little reasoning, and we find the claim unfounded.

Second, he contends his offered evidence raised a reasonable inference that United’s stated reason for firing him was actually a pretext for discrimination. But his offered evidence only shows that United never contacted his doctor in Mexico to learn more about his medical condition. Although United’s failure to contact Contreras’s doctor may assist a circumstantial showing of discrimination, it was not sufficient in itself to support a rational inference that intentional discrimination occurred.

Finally, Contreras claims the trial court wrongly opined that United had a nondiscriminatory intent. In Contreras’s view, courts cannot assess evidence concerning an employer’s intent or motive on summary judgment. Courts, however, routinely do so in summary judgment proceedings concerning alleged employment discrimination. It is true that many of these cases involve material disputes about an employer’s motive, and summary judgment would be inappropriate in that event. But when, as here, an employer has made a sufficient showing of innocent motive, and the employee has not placed that showing in material dispute, a court may grant summary judgment in the employer’s favor.

We affirm the judgment.

BACKGROUND

Contreras is a former employee of United who worked as a ramp service employee at Sacramento International Airport. His job entailed, among other things, loading and unloading luggage from aircraft.

Beginning on September 3, 2014, Contreras called United’s automated sick line to report that he was sick and unable to show for work. He did the same for all 16 days he was scheduled to work in September of 2014. United paid Contreras for these absences.

When Contreras returned to work in early October of 2014, United asked him to produce a medical note to explain his absences. A month later, Contreras provided a note from a doctor in Mexico. The note, which was dated October 4, stated: “I hereby certify that Mr. Santiago Contreras was under my care from 9/1/14 to 9/28/14. He has been presenting gastric problems for the last 12 years. During his stay here in Mexico he had an acute flare up of his c[h]ronic gastritis. I kept him with oral treatment. Nevertheless, during the last week of the month he presented acute symptoms and was kept in rest and I.V. fluids and was able to go back to the U.S.A. the 28th/Sept./2014.” Contreras reviewed the note before submitting it to United.

Shortly after Contreras provided this note, however, United realized that the timeline of Contreras’s doctor’s note conflicted with Contreras’s flight records. As a United employee, Contreras was able to fly free using his United-provided travel benefits; but when he used these benefits, United had a record of his doing so. According to these records United found Contreras had flown from Mexico to California on September 8, from California to Florida on September 8, and from Florida to California on September 23.

After noticing these discrepancies, Contreras’s supervisor scheduled a meeting with Contreras to discuss his doctor’s note. A representative from Contreras’s union also joined the meeting. At the meeting, Contreras’s supervisor showed him the discrepancy between his flight records and the doctor’s note. He then asked both about the discrepancy in the dates and about Contreras’s delay in providing a doctor’s note. In response, and with the help of his union representative, Contreras prepared and signed a statement stating he was in Mexico until the “latter part of September”—an assertion that was consistent with his doctor’s note. He also explained in the statement that he initially had difficulty getting the doctor to send the note, but his sister in Mexico was ultimately able to pick up the note from the doctor. Contreras told his union representative what to write in the statement, and after the representative read the statement back to him, Contreras signed it. Following the meeting, United suspended Contreras.

Shortly after, United scheduled a hearing for December of 2014 to consider whether Contreras should be terminated for failing to “meet job expectations and the guidelines of Company pass travel, honesty, and sick leave.” The referenced guidelines were United’s Working Together Guidelines, and they provided the policies governing Contreras’s employment. Among other things, the guidelines directed employees to “[b]e truthful in all communications,” and warned that “abuse of sick leave. . . may result in discipline.” In discussing sick leave, the guidelines added that “in most instances a co-worker who is too sick to work is also too sick to travel using his or her company travel privileges,” and explained that employees with questions about the appropriateness of traveling while on sick leave “can clear travel with [their] supervisor or HR Partner prior to travel.”

Contreras attended the hearing on his proposed termination with three representatives from his union. United management from Sacramento International Airport presented the case for Contreras’s termination, and the union representatives argued on Contreras’s behalf. United’s general manager for San Jose International Airport, Urban Grass, presided over the hearing.

At some point in the hearing, Contreras shared a second doctor’s note (from the same doctor in Mexico) that was dated October 2, 2014—two days before the date listed on the first note. Like the first note, this note said Contreras was under a doctor’s care from September 1 to 28. But unlike the first note, it added that Contreras was kept in rest and treated with intravenous fluids “during the first week” of the month, not the last, and made no mention as to when Contreras returned to the United States. The second note also flipped the sequence of Contreras’s treatment. In the first note, Contreras was initially given “oral treatment,” but when that proved inadequate, he was “kept in rest and I.V. fluids.” But in the second note, Contreras was first treated “with bed rest and I.V. fluids and medication,” and then afterward “continued with oral treatment and diet measures.” The note’s author did not explain the reason for the changes.

Following the hearing, Grass issued a decision finding that Contreras’s termination was warranted, explaining that Contreras “fell short of meeting the Working Together Guidelines in the areas of Honesty, Pass Travel, and Sick Leave.” Grass wrote that Contreras, by submitting the first doctor’s note about his absences, was “alleging he was under Dr. Agustin de Jesus Oceguera H.[’s] care in Mexico” at a time when he was flying from California to Florida and back. This and United’s other evidence, Grass wrote, showed that “Contreras was not open and honest in his communication with the company.” A United human resources manager from Denver later affirmed the decision after Contreras filed a grievance.

In February of 2015, Contreras filed an administrative complaint with the Department of Fair Employment and Housing (DFEH), in which he alleged that United took adverse actions against him because of his “Disability, Medical Condition – including Cancer.” Contreras contended these actions violated the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.)—an act that, as relevant here, makes it unlawful “[f]or an employer, because of the . . . physical disability. . . of any person, . . . to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).) Although Contreras sought to file a civil complaint against United, he was first required to obtain a “right-to-sue” letter from DFEH because he was alleging claims under the FEHA. (See Gov. Code, § 12965, subd. (b); Rojo v. Kliger (1990) 52 Cal.3d 65, 72.) To that end, Contreras filed his complaint with DFEH, and asked DFEH to immediately grant him a right to sue United. DFEH issued a “right-to-sue” letter the same day of his request.

Two days after DFEH issued its “right-to-sue” letter, Contreras filed this action. His complaint, as later amended, alleged two causes of action against United: (1) disability discrimination in violation of the FEHA, and (2) retaliation and wrongful termination in violation of public policy.

Following discovery in the case, United moved for summary judgment. After briefing and a hearing, the trial court granted the motion. Considering first Contreras’s FEHA claim, the court found that United had presented sufficient evidence to show that Contreras was terminated “due to United’s belief that he had been dishonest and had violated the Free Pass and Sick Leave programs” described in United’s employee guidelines. And because, it added, Contreras had not rebutted this showing with “evidence that [United’s] proffered reason for termination was a pretext for unlawful discrimination,” Contreras’s FEHA claim failed as a matter of law. The court then found Contreras’s second cause of action failed for similar reasons, as it was based on the same allegations of discrimination as the FEHA claim.

Contreras timely filed this appeal.

STANDARD OF REVIEW

A trial court may grant a motion for summary judgment “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) The parties’ pleadings determine the scope of relevant legal issues on summary judgment, and the legal issues in turn determine the types of facts that are material to the case. (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 172 & fn. 21.)

To meet its burden on summary judgment, a moving defendant must show either that one or more elements of the plaintiff’s causes of action fail or that there is a complete defense to the plaintiff’s case. (Code Civ. Proc., § 437c, subd. (p)(2).) If the defendant meets this initial burden, the burden then shifts to the plaintiff to show that a triable issue of one or more material facts exists. (Ibid.)

Courts have expanded on the application of these principles in employment discrimination cases. In those cases, when a moving defendant contends it has a complete defense to the plaintiff’s claims, it may satisfy its initial burden by showing that the adverse employment action against the plaintiff was based on legitimate, nondiscriminatory factors. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861.) If the defendant meets this burden, the burden then shifts to the plaintiff to “ ‘demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.’ [Citation.]” (Ibid.)

We review an order granting summary judgment de novo, and “ ‘liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’ [Citation.]” (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286.)

DISCUSSION

I

The Trial Court’s Application of Summary Judgment Standards

Contreras first argues the trial court failed to apply the appropriate standard of review for summary judgment. He claims the court’s decision was based in part on an impermissible judgment of credibility, and further contends the court wrongly granted summary judgment even though it had doubts about material facts.

A. The Trial Court’s Consideration of Credibility
B.
We consider first Contreras’s claim that the trial court issued its summary judgment order in part based on its evaluation of Contreras’s credibility. To support the claim, he notes the court “ ‘rejected any implication’ that [Contreras’s] suspension and termination was due to a disability,” “was ‘puzzled’ and ‘perplexed’ by [Contreras’s] medical condition and medical notes,” and “gave a disproportional weight” to the inconsistency between his signed statement—which claimed he returned to the United States in the “latter part” of September—and his travel records—which showed he returned to the United States on September 8. The court’s doing so, Contreras claims, shows it found Contreras not credible.

We agree that a court generally cannot resolve questions of credibility in a summary judgment proceeding. (See Miller v. Department of Corrections (2005) 36 Cal.4th 446, 476.) But Contreras has failed to provide a reasoned argument to support his claim that the court below made such an error. He contends the court did so, for example, by “reject[ing] any implication” that his suspension and termination was due to a disability. But we do not see how the court’s saying so demonstrates that it passed judgment on Contreras’s credibility. The court rejected Contreras’s legal conclusion, true; but that is not the same as judging Contreras’s credibility. Contreras never attempts to explain why we should find otherwise. Nor does he cite to anything in the record to support his point. The same is true for each of his contentions—they are neither explained nor supported by any record citations. We find his arguments here forfeited as a result. (See Cal. Rules of Court, rule 8.204(a)(1)(B)-(C); Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [“When an appellant . . . asserts [a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].)

C. The Trial Court’s Characterization of the Facts
D.
Contreras further claims the trial court erred in granting summary judgment when it had “unresolved doubts” about material facts. He bases the argument on the court’s exclaiming that it was perplexed and puzzled by some of the evidence—statements he suggests show the court had doubts about United’s basis for terminating him. According to Contreras, if the court had “unresolved doubts” about United’s reason for terminating him, it should not have resolved the matter in United’s favor, because “[o]ne plausible view of the evidence is that [United] terminated [Contreras] . . . because of his disability.”

But Contreras misconstrues the court’s ruling. The court never expressed doubt or confusion about United’s reason for terminating him. It instead expressed puzzlement over certain perceived inconsistencies in the evidence. The court, for example, noted that Contreras provided a doctor’s note saying he was treated in Mexico until he returned to the United States on September 28, even though Contreras actually returned to the United States on September 8. It also noted that Contreras later provided a second doctor’s note that conflicted with (and purportedly predated) the first doctor’s note. In stating it was perplexed by these inconsistencies, the court was not suggesting it held doubts about any material fact in the case. Rather, the court was expressing its understanding that United itself could have been perplexed by these inconsistencies, and as a result, reasonably could have harbored doubts about Contreras’s veracity. Contreras’s contrary claim that the court had “unresolved doubts” about materials facts simply does not follow from his cited facts.

II

Contreras’s Showing of Pretext

Contreras next claims his offered evidence raised a reasonable inference that United’s stated reason for firing him was actually a pretext for discrimination. Contreras contends three sets of facts support his argument: (1) United never tried to interview his doctor to learn more about his condition; (2) United’s firing of Contreras conflicted with its own policies and its previous treatment of other employees; and (3) United was inconsistent about whether it believed Contreras was dishonest about his medical condition.

Before evaluating Contreras’s claims, we first consider the strength of United’s initial showing, for “[t]he stronger the employer’s showing of a legitimate, nondiscriminatory reason, the stronger the plaintiff’s evidence must be in order to create a reasonable inference of a discriminatory motive.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1159, citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 362 & fn. 25 (Guz).)

A. United’s Evidence
B.
United provided competent, admissible evidence that satisfied its initial burden to show that it terminated Contreras based on reasons unrelated to Contreras’s alleged disability.

United explained that its policy directed employees to “[b]e truthful in all communications,” and warned that “abuse of sick leave. . . may result in discipline.” In discussing sick leave, the policy added that “in most instances a co-worker who is too sick to work is also too sick to travel using his or her company travel privileges”; employees with questions about the appropriateness of traveling while on sick leave “can clear travel with [their] supervisor or HR Partner prior to travel.”

United then provided undisputed evidence sufficient to show it terminated Contreras based on its belief that Contreras had violated these policy requirements. This evidence showed Contreras had called in sick for every one of his scheduled workdays in September of 2014. After he returned to work, Contreras provided a doctor’s note saying he had been under a doctor’s care from September 1 to 28. The note added that “during the last week of the month he presented acute symptoms and was kept in rest and I.V. fluids and was able to go back to the U.S.A. the 28th/Sept./2014.” But Contreras’s flight records showed he had in fact returned to California from Mexico on September 8, and then afterward had flown to Florida and back to California—all at times when he was allegedly in Mexico. After United confronted Contreras about this discrepancy between his flight records and the doctor’s note, Contreras signed a statement stating he was in Mexico until the “latter part of September”—backing up the timeline of the doctor’s note. United suspended Contreras at this time and afterward initiated termination proceedings.

At the later hearing on Contreras’s potential termination, the evidence showed, Contreras provided a second doctor’s note that purportedly predated the first. This second note, like the first, said Contreras was under a doctor’s care from September 1 to 28. But departing from the first note, it said Contreras was kept in rest and treated with intravenous fluids “during the first week” of September, not the last, and made no mention as to when Contreras returned to the United States. The author of the two notes, purportedly Doctor Agustín de Jesús Oceguera H., neither acknowledged the changes nor explained the reason for the changes.

Considering these facts, a United hearing officer issued a written decision terminating Contreras, explaining that Contreras “fell short of meeting the Working Together Guidelines in the areas of Honesty, Pass Travel, and Sick Leave.”

In providing this evidence, United satisfied its initial burden to show it terminated Contreras based on a legitimate, nondiscriminatory reason. This then placed the burden on Contreras to “rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred.” (Guz, supra, 24 Cal.4th at p. 357.)

C. Contreras’s Evidence
D.
We now turn to Contreras’s rebuttal evidence. We begin with Contreras’s claim that United was “inconsistent” about whether it believed Contreras was being honest. Contreras argues United was inconsistent because although it suggested it did not believe Contreras’s claim that he was sick, it never alleged Contreras’s medical notes were fake or forged.

But those positions are not necessarily inconsistent. United could certainly harbor doubts about the legitimacy of the claims made in Contreras’s medical notes without believing the notes were faked or forged. And the evidence presented in the trial court showed this was in fact the case. The United employee who issued the decision terminating Contreras, for example, found the doctor’s note made claims that were plainly false—since they were contradicted by Contreras’s travel records—though that same employee later testified he had “no idea” who wrote the note and so could not speak to whether it was faked or forged. We do not find those statements to be in any way inconsistent, even applying lenient summary judgment standards. Although Contreras, here and below, suggests United would have found the medical notes fake or forged if it really mistrusted Contreras’s claim that he was sick, we find the claim unfounded and unsupported by Contreras’s offered evidence.

Contreras next claims United’s firing of him conflicted with its past treatment of other employees and its own policy requiring lesser discipline before termination. But neither claim is supported by the record.

First, Contreras contends that United’s firing of him conflicted with its previous treatment of employees, but in support, he only provides indirect evidence based on his own attorney’s testimony at the summary judgment hearing. His attorney there claimed that Urban Grass—the United employee who issued the decision terminating Contreras—testified in his deposition that two other United employees, who apparently made mistakes in baggage handling, were punished less harshly than Contreras. But Contreras failed to provide the underlying evidence supporting these claims in the appellate record. Although he provided parts of Grass’s deposition transcript, he does not appear to have included those portions discussing United’s disciplining of other United employees. We thus find the argument forfeited. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [parties must “[s]upport any reference to a matter in the record by a citation . . . where the matter appears”]; Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364 [“if it is not in the record, it did not happen”].)

Contreras’s claim that United’s policy required progressive disciplinary action before termination suffers from a similar defect. Although United’s policy discusses various types of disciplinary actions short of termination, Contreras has failed to cite creditable evidence showing United was required to impose lesser discipline before resorting to termination. United’s policy, in fact, appears to reject Contreras’s characterization. United’s Working Together Guidelines provide that termination may be appropriate when a prior “performance improvement process is unsuccessful,” but it adds that termination may also occur “when the severity of an incident warrants immediate termination.” United’s policy, in other words, appears to contemplate that some employees will be terminated after progressive discipline (e.g., following an unsuccessful “performance improvement process”) and other employees will be terminated without it. Contreras has offered no evidence to support his contrary claim that United’s policy required intermediate discipline before termination.

Lastly, Contreras contends United’s failure to contact his doctor further evidences pretext. It is true that United did not appear to contact Contreras’s doctor to learn more about Contreras’s medical condition. Its reason for not contacting the doctor, however, is not entirely clear. According to Contreras, United once told him that Mexico was a “corrupt country” and so it believed it would not be able to get through to the doctor. Whatever United’s reason, we acknowledge that an employer’s failure to interview witnesses with potentially exculpatory information can evidence that an employer’s stated reason for terminating an employee was in fact pretextual. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 280.)

But that United failed to contact Contreras’s doctor, even if tending to evidence pretext, is not sufficient in itself to support reversal. To rebut United’s evidence and raise a rational inference that intentional discrimination occurred, Contreras discussed United’s failure to contact his doctor, along with two other allegations he claimed showed that United’s stated reason was actually a pretext for discrimination. But in the end, Contreras offered evidence sufficient to support only his claim that United never contacted his doctor.

That failure alone, however, is insufficient to support a rational inference that intentional discrimination occurred. To begin, we question the premise that Contreras’s doctor had potentially exculpatory information. The doctor might have been able to explain the inconsistencies in his own notes, but he could not have explained Contreras’s own offered explanation for his absence. United presented evidence showing it fired Contreras not because his doctor’s explanations varied, but rather because Contreras knowingly used the doctor’s notes to represent that he was sick in Mexico at a time when he was in fact flying from California to Florida and back. In other words, United’s inquiry focused on Contreras’s dishonest state of mind—something the doctor could not speak to.

In any event, assuming United should have contacted the doctor, courts have found that an employer’s single shortcoming generally cannot be grounds for finding intentional discrimination. Even evidence, for example, that an employer lied about its reasons for terminating an employee does not alone suffice to raise an inference of intentional discrimination. (Guz, supra, 24 Cal.4th at pp. 360-362.) “Proof that the employer’s proffered reasons are unworthy of credence may ‘considerably assist’ a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. [Citation.]” (Id. at p. 361.) But without more, evidence an employer lied about its reasons is insufficient to support a rational inference that intentional discrimination was the true cause of the employer’s actions. (Id. at pp. 361-362.) Similar logic defeats Contreras’s claim here. Although proof that an employer failed to contact a witness with potentially exculpatory information may “considerably assist” a circumstantial showing of discrimination, without more, it is not enough to overcome an employer’s showing.

III

The Trial Court’s Consideration of Intent

Finally, Contreras claims the trial court wrongly opined that United had a nondiscriminatory intent. According to Contreras, a court cannot assess intent or motive in summary judgment proceedings. Contreras then contends the court below wrongly did so by finding United “established that it harbored serious doubts regarding the veracity of [Contreras’s] actions in being off work and a related violation of its own policies, not because [Contreras] had a disability of any sort.” We disagree.

In a summary judgment proceeding, it is true a court may not weigh the admitted evidence as though it were sitting as a trier of fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.) And it follows that a court may not decide for itself that a party had a certain intent in the face of conflicting evidence. But although it may “not decide on any finding of its own,” a court may decide “what finding . . . a trier of fact could make for itself” (ibid.); and in doing so, the court may conclude that reasonable triers of fact would have to find that a party had a particular intent or motive.

Courts in fact often make such findings in summary judgment proceedings involving alleged employment discrimination. The court’s decision in Guz, supra, 24 Cal.4th 317, is a notable example. The plaintiff there alleged, among other things, that his employer terminated him because of his age in violation of the FEHA. (Id. at p. 353.) His employer countered the termination was instead based on a legitimate, nondiscriminatory reason, and successfully moved for summary judgment on this basis. (Ibid.) On appeal, the court affirmed the trial court’s judgment, finding the employer had made a “sufficient showing of innocent motive,” and the plaintiff had not placed this showing in material dispute by raising a triable issue. (Id. at p. 362.) The court, in other words, affirmed the judgment against the employee based on an assessment of the employer’s showing of motive—precisely what Contreras claims courts cannot do. Other courts have similarly found summary judgment appropriate after assessing the employer’s motive for firing an employee. (See, e.g., Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 799 [“Defendant had a legitimate, nondiscriminatory reason [i.e., motive] for terminating plaintiff’s employment”]; id. at p. 800 [the defendant discharged plaintiff because of his “inability to [perform satisfactorily]”]; Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1059 [the “facts establish [employer’s] legitimate, nondiscriminatory reason for its actions”].)

The court’s decision below continued in this line. Like the Guz court, it found that United had made a sufficient showing of innocent motive, explaining that United sufficiently “established that it harbored serious doubts regarding” Contreras’s veracity. It also found Contreras failed to place this showing in material dispute by raising a triable issue. Both of these findings, as we discussed in part II above, were supported by the record.

That said, we acknowledge these types of cases often concern material disputes about an employer’s intent and motive. When such material disputes arise, it is certainly true that summary judgment is inappropriate. But when, as here, an employer has made a “sufficient showing of innocent motive,” and the employee has not placed that showing “in material dispute by raising a triable issue,” a court may grant summary judgment in the employer’s favor. (See Guz, supra, 24 Cal.4th at p. 362.)

DISPOSITION

The judgment is affirmed. United is entitled to recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/s/

BLEASE, Acting P. J.

We concur:

/s/

MURRAY, J.

/s/

HOCH, J.

Case Number: BD391395
BONNIE STEINBERG VS NORMAN L STEINBERG
Filing Courthouse: Stanley Mosk Courthouse

Filing Date: 06/27/2003
Case Type: Legal Separation w/ Minor Children (General Jurisdiction)
Status: Statistical Disposition 04/01/2004

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

01/09/2020 at 8:30 AM in Department 65 at 111 North Hill Street, Los Angeles, CA 90012
Request for Order Hearing

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

LINK K. SCHWARTZ ALC – Depositor

STEINBERG BONNIE – Petitioner

STEINBERG BONNIE – Respondent (to Appeal)

STEINBERG NORMAN L. – Appellant

STEINBERG NORMAN L. – Respondent

TREUSCH BRADFORD LEE – Attorney for Petitioner for Respondent (to Appeal)

TREUSCH BRADFORD LEE – Attorney for Petitioner for Petitioner

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

Documents Filed (Filing dates listed in descending order)

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12/14/2018 04/18/2018 03/14/2007 09/04/2003

10/24/2019 Memorandum – Points and Authorities
Filed by Petitioner

10/24/2019 Declaration
Filed by Petitioner

10/24/2019 Declaration – Income and Expense
Filed by Petitioner

10/24/2019 Court Order for Post-Judgment Requests for Orders FAM 120

10/24/2019 RFO/MTN – Attorney Fees
Filed by Petitioner

09/30/2019 Appeal – Remittitur – Appeal Dismissed (B295094 )
Filed by Respondent

09/23/2019 Substitution of Attorney
Filed by Respondent

09/10/2019 Minute Order

07/31/2019 Appellate Order Dismissing Appeal (Full Dismissal of All Appeal Issues )

04/12/2019 Appeal Record Delivered

04/10/2019 Appeal – Reporter Appeal Transcripts

04/02/2019 Appeal – Notice Court Reporter to Prepare Appeal Transcript (Initial; )

03/29/2019 Appeal – Ntc Designating Record of Appeal APP-003/010/103 (Filed With Proof of Service; AMENDED RESPONDENT’S NOTICE DESIGNATING RECORD ON EPPEAL )
Filed by Petitioner

03/26/2019 Appeal – Ntc Designating Record of Appeal APP-003/010/103 (Filed With Proof of Service; AMENDED DESIGNATING RECORD ON APPEAL )
Filed by Respondent

03/22/2019 Minute Order

03/22/2019 Supplemental (RE Supplemental Declaration of Bradford L. Treusch In Support of Petitioner’s Request for Attorney’s Fees )
Filed by Petitioner

03/13/2019 Supplemental
Filed by Petitioner

03/13/2019 Supplemental
Filed by Petitioner

03/13/2019 Memorandum – Points and Authorities
Filed by Petitioner

03/07/2019 Notice (OF ERRATA )
Filed by Respondent

03/06/2019 Responsive Declaration
Filed by Respondent

03/01/2019 Post-Judgment Request for Order Case Mgmt Statement FAM 119

03/01/2019 Declaration – Income and Expense
Filed by Petitioner

02/25/2019 Request (for production of an income and expense declaration after Judgment. )
Filed by Petitioner

02/22/2019 Appeal – Reporter Appeal Transcripts Deposit Paid (TRNSCRB Fund )
Filed by Petitioner

02/22/2019 Appeal – Reporter Appeal Transcript Process Fee Paid
Filed by Petitioner

02/22/2019 Appeal – Ntc Designating Record of Appeal APP-003/010/103 (Filed With Proof of Service; RESPONDENT )
Filed by Petitioner

02/13/2019 Declaration – Income and Expense
Filed by Petitioner

02/13/2019 Declaration
Filed by Petitioner

02/13/2019 Court Order for Post-Judgment Requests for Orders FAM 120

02/13/2019 RFO/MTN – Attorney Fees
Filed by Petitioner

02/13/2019 Appeal – Reporter Appeal Transcript Process Fee Paid
Filed by Respondent

02/13/2019 Appeal – Ntc Designating Record of Appeal APP-003/010/103 (Filed With Proof of Service )
Filed by Respondent

01/16/2019 Appeal – Notice of Filing of Notice of Appeal
Filed by Respondent

01/11/2019 Appeal – Court of Appeal Filing Fee
Filed by Respondent

01/11/2019 Appeal – Superior Court Appeal Filing Fee Paid (on behalf of Norman Steinberg )
Filed by Attorney for Respondent

01/11/2019 Appeal – Notice of Appeal/Cross Appeal Filed (with Proof of Service; filed by attorney, Link K. Schwartz )
Filed by Respondent

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12/14/2018 Minute Order

12/14/2018 Minute Order

12/14/2018 Stipulation (Receipt and Order re Release of Civil Exhibits )
Filed by Petitioner

12/14/2018 Minute Order

12/06/2018 Reply
Filed by Petitioner

11/30/2018 Reply
Filed by Respondent

11/30/2018 Opposition
Filed by Respondent

11/14/2018 Post-Judgment Request for Order Case Mgmt Statement FAM 119 (by Resp. )

11/14/2018 Post-Judgment Request for Order Case Mgmt Statement FAM 119 (by Pet. )

11/08/2018 Declaration
Filed by Petitioner

11/08/2018 Court Order for Post-Judgment Requests for Orders FAM 120

11/08/2018 RFO/MTN – Attorney Fees
Filed by Petitioner

10/31/2018 Minute Order

10/26/2018 Responsive Declaration
Filed by Petitioner

10/19/2018 Proof of Service
Filed by Attorney for Respondent

10/10/2018 Court Order for Post-Judgment Requests for Orders FAM 120

10/10/2018 RFO/MTN – Family Law (Motion for Reconsideration of Court Order of 10/01/18 )
Filed by Respondent

10/02/2018 Ruling on Submitted Matter
Filed by Respondent

10/01/2018 Ruling on Submitted Matter
Filed by Petitioner

10/01/2018 Minute Order

09/21/2018 Case Under Submission for Decision
Filed by Petitioner

09/21/2018 Minute Order

09/21/2018 Case Under Submission for Decision
Filed by Respondent

09/21/2018 Minute Order

09/19/2018 Declaration – Income and Expense
Filed by Attorney for Respondent

09/19/2018 Supplemental (Declaration of Alfred Warsavsky )
Filed by Attorney for Respondent

09/13/2018 Reply (decl )
Filed by Petitioner

09/13/2018 Reply (memorandum of pts & authorities )
Filed by Petitioner

08/29/2018 Opposition
Filed by Respondent

08/29/2018 Witness List
Filed by Respondent

08/29/2018 Responsive Declaration
Filed by Respondent

08/29/2018 Objection
Filed by Respondent

08/29/2018 Objection
Filed by Respondent

08/17/2018 Responsive Declaration
Filed by Petitioner

08/17/2018 Declaration (of Petitioner, Bonnie Strock )
Filed by Petitioner

08/17/2018 Memorandum – Points and Authorities (in Support of Petitioner’s Opposition to Respondent’s RFO )
Filed by Petitioner

08/02/2018 Declaration – Income and Expense
Filed by Petitioner

08/02/2018 Notice (of Intention to Present Live Testimony and Witness List )
Filed by Petitioner

08/02/2018 RFO/MTN – Attorney Fees (RE Other: Accountant’s Fees and Costs )
Filed by Petitioner

06/27/2018 Minute Order

05/03/2018 Proof of Service
Filed by Respondent

04/20/2018 Notice – Order of Case Reassignment

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04/18/2018 RFO/MTN – Mod – Spousal Support (Health Insurance )
Filed by Respondent

03/05/2018 Substitution of Attorney (- Link K. Schwartz )
Filed by Respondent

09/26/2013 Order – Findings and Order After Hearing (for Aug. 21, 2013 hring – On Behalf of: Petitioner: Steinberg, Bonnie – Filed and Entered on 2013-09-26 )
Filed by Petitioner

08/21/2013 Minute Order

08/13/2013 Reply (DECLARATION per pet )

08/08/2013 Responsive Declaration (per res )

07/18/2013 Declaration (per petitioner )

07/17/2013 Declaration (per petitioner )

07/10/2013 Declaration (per petitioner )

07/10/2013 RFO/MTN – Family Law (ATTORNEY FEES AND COSTS AND CLARIFICATION OF JUDGMENT per petitioner )

11/17/2011 Order – Findings and Order After Hearing (hearing date 09/26/201 res – Signed on 2011-09-26 )

09/26/2011 Minute Order

09/26/2011 Dissomaster Printout

09/21/2011 Memorandum – Points and Authorities (PER P )

09/21/2011 Supplemental (DECLARATION PER P )

09/19/2011 Responsive Declaration (PER R )

09/19/2011 Memorandum – Points and Authorities (PER R )

07/29/2011 Declaration – Income and Expense (- On Behalf of: Petitioner: Steinberg, Bonnie )
Filed by Petitioner

07/29/2011 Declaration (- On Behalf of: Petitioner: Steinberg, Bonnie )
Filed by Petitioner

07/29/2011 Declaration (- On Behalf of: Petitioner: Steinberg, Bonnie )
Filed by Petitioner

07/29/2011 RFO/MTN – Mod (ssupport, atty fees – On Behalf of: Petitioner: Steinberg, Bonnie – Hearing Set on 2011-09-26 )
Filed by Petitioner

08/27/2007 Minute Order

08/23/2007 Stipulation and Order (- On Behalf of: Respondent: Steinberg, Norman )
Filed by Respondent

07/27/2007 Substitution of Attorney (- On Behalf of: Petitioner: Steinberg, Bonnie )
Filed by Petitioner

05/17/2007 Notice – Continuance (- On Behalf of: Respondent: Steinberg, Norman )
Filed by Respondent

03/26/2007 Stipulation and Order (- On Behalf of: Respondent: Steinberg, Norman )
Filed by Respondent

03/22/2007 Notice – Unavailability of Counsel (3-28-07/4-9-07 – On Behalf of: Petitioner: Steinberg, Bonnie )
Filed by Petitioner

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 12/14/2018 04/18/2018 03/14/2007 09/04/2003

03/14/2007 Substitution of Attorney (- On Behalf of: Respondent: Steinberg, Norman )
Filed by Respondent

03/14/2007 Memorandum – Points and Authorities (- On Behalf of: Respondent: Steinberg, Norman )
Filed by Respondent

03/14/2007 Declaration – Income and Expense (- On Behalf of: Respondent: Steinberg, Norman )
Filed by Respondent

03/14/2007 RFO/MTN – Mod (04/17/2007 – On Behalf of: Respondent: Steinberg, Norman )
Filed by Respondent

07/13/2004 Joinder – Notice – Appear and Respond Employee Benefit Plan

07/09/2004 Notice – Acknowledgment of Receipt

06/22/2004 Joinder – Request for Joinder – Employee Benefit Plan

06/10/2004 Notice – Acknowledgment of Receipt

05/26/2004 Order – Qualified Domestic Relations Order (re: division of Producer-writers guild of America )

05/25/2004 Notice – Unavailability of Counsel

04/26/2004 Notice – Acknowledgment of Receipt

04/08/2004 Order – Qualified Domestic Relations Order (for Pet )

04/01/2004 Declaration – Default FL170 (or uncontested dissolution – Filed and Entered on 2004-04-01 )

04/01/2004 Stipulation – Waiver of Final Declaration of Disclosure (- Filed and Entered on 2004-04-01 )

04/01/2004 Appearance, Stipulations and Waivers

04/01/2004 Judgment (- Signed on 2004-04-01 )

04/01/2004 Notice – Entry of Judgment (- Filed and Entered on 2004-04-01 )

03/24/2004 Notice – Unavailability of Counsel

03/23/2004 Minute Order

02/10/2004 Minute Order

02/10/2004 Miscellaneous (Partial Settlement Agreement at time of trial – Signed on 2004-02-10 )

02/05/2004 Declaration (of Resp in Response to 3rd reply dec, etc – Filed and Entered on 2004-02-05 )

02/03/2004 Declaration (3rd reply of Pet atyy in support of Pet’s OSC – Filed and Entered on 2004-02-03 )

12/31/2003 Order – Withhold Income for Child Support FL195 (& spousal support – Signed on 2003-12-31 )

12/31/2003 Order – Findings and Order After Hearing (on OSC held 12-10-03 – Signed on 2003-12-31 )

12/29/2003 Substitution of Attorney

12/10/2003 Minute Order

12/10/2003 Declaration – Service of Preliminary Dec. of Disclosure (and Final by Respondent )

12/10/2003 Stipulation and Order (re: distribution of house proceeds – Signed on 2003-12-10 )

12/10/2003 Affidavit of Prejudice – Peremptory Challenge (by Pet. re: OUDERKIRK )

11/12/2003 Declaration – Service of Preliminary Dec. of Disclosure

10/28/2003 Minute Order

10/28/2003 Declaration – UCCJEA (- On Behalf of: Respondent: Steinberg, Norman )
Filed by Respondent

10/28/2003 Response (- On Behalf of: Respondent: Steinberg, Norman )
Filed by Respondent

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 12/14/2018 04/18/2018 03/14/2007 09/04/2003

09/04/2003 OSC – Order to Show Cause (- On Behalf of: Petitioner: Steinberg, Bonnie )
Filed by Petitioner

08/21/2003 Notice – Unavailability of Counsel

08/01/2003 Notice – Acknowledgment of Receipt

06/27/2003 Declaration – UCCJEA

06/27/2003 Summons

06/27/2003 Petition

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 12/14/2018 04/18/2018 03/14/2007 09/04/2003

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

Proceedings Held (Proceeding dates listed in descending order)

09/10/2019 at 8:30 AM in Department 65, Spear, Emily T., Presiding
Trial Setting Conference – Off Calendar – Court’s Own Motion

03/22/2019 at 8:30 AM in Department 65, Spear, Emily T., Presiding
Request for Order Hearing – Granted

12/14/2018 at 8:30 AM in Department 65, Weingart, Gregory J, Presiding
Request for Order Hearing – Denied

12/14/2018 at 8:30 AM in Department 65, Weingart, Gregory J, Presiding
Request for Order – Other – Denied

12/14/2018 at 8:30 AM in Department 65, Weingart, Gregory J, Presiding
Non-Appearance Case Review – Off Calendar – Court’s Own Motion

10/31/2018 at 8:30 AM in Department 65, Weingart, Gregory J, Presiding
Non-Appearance Case Review – Held – Continued

10/01/2018 at 8:30 AM in Department 65, Weingart, Gregory J, Presiding
Ruling on Submitted Matter – Ruling on Submitted Matter Entered

09/21/2018 at 8:30 AM in Department 65, Weingart, Gregory J, Presiding
Request for Order – Other – Submitted

09/21/2018 at 8:30 AM in Department 65, Weingart, Gregory J, Presiding
Request for Order re: Modification Hearing – Submitted

06/27/2018 at 8:30 AM in Department 65, Weingart, Gregory J, Presiding
Request for Order re: Modification Hearing – Not Held – Continued by Stipulation

08/21/2013 at 8:30 AM in Stanley Mosk Dept. – 60, Nelson, Maren, Presiding
Order to Show Cause Hearing – Held – Order Made

09/26/2011 at 8:30 AM in Stanley Mosk Dept. – 60, Nelson, Maren, Presiding
Order to Show Cause Hearing – Held – Order Made

08/27/2007 at 8:30 AM in Stanley Mosk Dept. – 60, Nelson, Maren, Presiding
Order to Show Cause Hearing – Off Calendar – Moving Party

07/11/2007 at 8:30 AM in Stanley Mosk Dept. – 60, Nelson, Maren, Presiding
Order to Show Cause Hearing – Not Held – Continued by Stipulation

06/04/2007 at 8:30 AM in Stanley Mosk Dept. – 60, Nelson, Maren, Presiding
Order to Show Cause Hearing – Not Held – Continued by Stipulation

04/17/2007 at 8:30 AM in Stanley Mosk Dept. – 60, Nelson, Maren, Presiding
Order to Show Cause Hearing – Not Held – Continued by Stipulation

03/23/2004 at 8:30 AM in Stanley Mosk Dept. – 9, Paul, Roy L., Presiding
Trial on Reserved Issues – Off Calendar – Case Settled

02/10/2004 at 8:30 AM in Stanley Mosk Dept. – 9, Paul, Roy L., Presiding
Conference – Held – Trial Date Set

12/10/2003 at 10:25 AM in Stanley Mosk Dept. – 2, Sandoz, John H., Presiding
Hearing – Transfer to Another Court – Reassigned – Case Reassigned for all Purposes (Dept. 2)

12/10/2003 at 8:30 AM in Stanley Mosk Dept. – 9, Paul, Roy L., Presiding
Order to Show Cause Hearing – Held – Order Made

12/10/2003 at 8:30 AM in Stanley Mosk Dept. – 87, Dobbs, Ann, Presiding
Order to Show Cause Hearing – Reassigned – Other Department

10/28/2003 at 8:30 AM in Stanley Mosk Dept. – 87, Dobbs, Ann, Presiding
Order to Show Cause Hearing – Held – Order Made

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:
12/14/2018 04/18/2018 04/17/2007 12/10/2003

10/24/2019 Declaration
Filed by Petitioner

10/24/2019 Declaration – Income and Expense
Filed by Petitioner

10/24/2019 RFO/MTN – Attorney Fees
Filed by Petitioner

10/24/2019 Court Order for Post-Judgment Requests for Orders FAM 120

10/24/2019 Memorandum – Points and Authorities
Filed by Petitioner

09/30/2019 Appeal – Remittitur – Appeal Dismissed (B295094 )
Filed by Respondent

09/23/2019 Substitution of Attorney
Filed by Respondent

09/10/2019 at 8:30 AM in Department 65, Spear, Emily T., Presiding
Trial Setting Conference – Off Calendar – Court’s Own Motion

09/10/2019 Minute Order

07/31/2019 Appellate Order Dismissing Appeal (Full Dismissal of All Appeal Issues )

04/12/2019 Appeal Record Delivered

04/10/2019 Appeal – Reporter Appeal Transcripts

04/02/2019 Appeal – Notice Court Reporter to Prepare Appeal Transcript (Initial; )

03/29/2019 Appeal – Ntc Designating Record of Appeal APP-003/010/103 (Filed With Proof of Service; AMENDED RESPONDENT’S NOTICE DESIGNATING RECORD ON EPPEAL )
Filed by Petitioner

03/26/2019 Appeal – Ntc Designating Record of Appeal APP-003/010/103 (Filed With Proof of Service; AMENDED DESIGNATING RECORD ON APPEAL )
Filed by Respondent

03/22/2019 at 8:30 AM in Department 65, Spear, Emily T., Presiding
Request for Order Hearing – Granted

03/22/2019 Minute Order

03/22/2019 Supplemental (RE Supplemental Declaration of Bradford L. Treusch In Support of Petitioner’s Request for Attorney’s Fees )
Filed by Petitioner

03/13/2019 Memorandum – Points and Authorities
Filed by Petitioner

03/13/2019 Supplemental
Filed by Petitioner

03/13/2019 Supplemental
Filed by Petitioner

03/07/2019 Notice (OF ERRATA )
Filed by Respondent

03/06/2019 Responsive Declaration
Filed by Respondent

03/01/2019 Declaration – Income and Expense
Filed by Petitioner

03/01/2019 Post-Judgment Request for Order Case Mgmt Statement FAM 119

02/25/2019 Request (for production of an income and expense declaration after Judgment. )
Filed by Petitioner

02/22/2019 Appeal – Reporter Appeal Transcripts Deposit Paid (TRNSCRB Fund )
Filed by Petitioner

02/22/2019 Appeal – Reporter Appeal Transcript Process Fee Paid
Filed by Petitioner

02/22/2019 Appeal – Ntc Designating Record of Appeal APP-003/010/103 (Filed With Proof of Service; RESPONDENT )
Filed by Petitioner

02/13/2019 Court Order for Post-Judgment Requests for Orders FAM 120

02/13/2019 Declaration – Income and Expense
Filed by Petitioner

02/13/2019 RFO/MTN – Attorney Fees
Filed by Petitioner

02/13/2019 Declaration
Filed by Petitioner

02/13/2019 Appeal – Reporter Appeal Transcript Process Fee Paid
Filed by Respondent

02/13/2019 Appeal – Ntc Designating Record of Appeal APP-003/010/103 (Filed With Proof of Service )
Filed by Respondent

01/16/2019 Appeal – Notice of Filing of Notice of Appeal
Filed by Respondent

01/11/2019 Appeal – Superior Court Appeal Filing Fee Paid (on behalf of Norman Steinberg )
Filed by Attorney for Respondent

01/11/2019 Appeal – Court of Appeal Filing Fee
Filed by Respondent

01/11/2019 Appeal – Notice of Appeal/Cross Appeal Filed (with Proof of Service; filed by attorney, Link K. Schwartz )
Filed by Respondent

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 12/14/2018 04/18/2018 04/17/2007 12/10/2003

12/14/2018 at 8:30 AM in Department 65, Weingart, Gregory J, Presiding
Request for Order – Other – Denied

12/14/2018 at 8:30 AM in Department 65, Weingart, Gregory J, Presiding
Request for Order Hearing – Denied

12/14/2018 at 8:30 AM in Department 65, Weingart, Gregory J, Presiding
Non-Appearance Case Review – Off Calendar – Court’s Own Motion

12/14/2018 Minute Order

12/14/2018 Minute Order

12/14/2018 Stipulation (Receipt and Order re Release of Civil Exhibits )
Filed by Petitioner

12/14/2018 Minute Order

12/06/2018 Reply
Filed by Petitioner

11/30/2018 Reply
Filed by Respondent

11/30/2018 Opposition
Filed by Respondent

11/14/2018 Post-Judgment Request for Order Case Mgmt Statement FAM 119 (by Resp. )

11/14/2018 Post-Judgment Request for Order Case Mgmt Statement FAM 119 (by Pet. )

11/08/2018 Court Order for Post-Judgment Requests for Orders FAM 120

11/08/2018 Declaration
Filed by Petitioner

11/08/2018 RFO/MTN – Attorney Fees
Filed by Petitioner

10/31/2018 at 8:30 AM in Department 65, Weingart, Gregory J, Presiding
Non-Appearance Case Review – Held – Continued

10/31/2018 Minute Order

10/26/2018 Responsive Declaration
Filed by Petitioner

10/19/2018 Proof of Service
Filed by Attorney for Respondent

10/10/2018 RFO/MTN – Family Law (Motion for Reconsideration of Court Order of 10/01/18 )
Filed by Respondent

10/10/2018 Court Order for Post-Judgment Requests for Orders FAM 120

10/02/2018 Ruling on Submitted Matter
Filed by Respondent

10/01/2018 at 8:30 AM in Department 65, Weingart, Gregory J, Presiding
Ruling on Submitted Matter – Ruling on Submitted Matter Entered

10/01/2018 Ruling on Submitted Matter
Filed by Petitioner

10/01/2018 Minute Order

09/21/2018 at 8:30 AM in Department 65, Weingart, Gregory J, Presiding
Request for Order re: Modification Hearing – Submitted

09/21/2018 at 8:30 AM in Department 65, Weingart, Gregory J, Presiding
Request for Order – Other – Submitted

09/21/2018 Minute Order

09/21/2018 Case Under Submission for Decision
Filed by Respondent

09/21/2018 Minute Order

09/21/2018 Case Under Submission for Decision
Filed by Petitioner

09/19/2018 Declaration – Income and Expense
Filed by Attorney for Respondent

09/19/2018 Supplemental (Declaration of Alfred Warsavsky )
Filed by Attorney for Respondent

09/13/2018 Reply (memorandum of pts & authorities )
Filed by Petitioner

09/13/2018 Reply (decl )
Filed by Petitioner

08/29/2018 Opposition
Filed by Respondent

08/29/2018 Objection
Filed by Respondent

08/29/2018 Objection
Filed by Respondent

08/29/2018 Responsive Declaration
Filed by Respondent

08/29/2018 Witness List
Filed by Respondent

08/17/2018 Responsive Declaration
Filed by Petitioner

08/17/2018 Declaration (of Petitioner, Bonnie Strock )
Filed by Petitioner

08/17/2018 Memorandum – Points and Authorities (in Support of Petitioner’s Opposition to Respondent’s RFO )
Filed by Petitioner

08/02/2018 RFO/MTN – Attorney Fees (RE Other: Accountant’s Fees and Costs )
Filed by Petitioner

08/02/2018 Notice (of Intention to Present Live Testimony and Witness List )
Filed by Petitioner

08/02/2018 Declaration – Income and Expense
Filed by Petitioner

06/27/2018 at 8:30 AM in Department 65, Weingart, Gregory J, Presiding
Request for Order re: Modification Hearing – Not Held – Continued by Stipulation

06/27/2018 Minute Order

05/03/2018 Proof of Service
Filed by Respondent

04/20/2018 Notice – Order of Case Reassignment

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 12/14/2018 04/18/2018 04/17/2007 12/10/2003

04/18/2018 RFO/MTN – Mod – Spousal Support (Health Insurance )
Filed by Respondent

03/05/2018 Substitution of Attorney (- Link K. Schwartz )
Filed by Respondent

09/26/2013 Order – Findings and Order After Hearing (for Aug. 21, 2013 hring – On Behalf of: Petitioner: Steinberg, Bonnie – Filed and Entered on 2013-09-26 )
Filed by Petitioner

08/21/2013 at 8:30 AM in Stanley Mosk Dept. – 60, Nelson, Maren, Presiding
Order to Show Cause Hearing – Held – Order Made

08/21/2013 Minute Order

08/13/2013 Reply (DECLARATION per pet )

08/08/2013 Responsive Declaration (per res )

07/18/2013 Declaration (per petitioner )

07/17/2013 Declaration (per petitioner )

07/10/2013 Declaration (per petitioner )

07/10/2013 RFO/MTN – Family Law (ATTORNEY FEES AND COSTS AND CLARIFICATION OF JUDGMENT per petitioner )

11/17/2011 Order – Findings and Order After Hearing (hearing date 09/26/201 res – Signed on 2011-09-26 )

09/26/2011 at 8:30 AM in Stanley Mosk Dept. – 60, Nelson, Maren, Presiding
Order to Show Cause Hearing – Held – Order Made

09/26/2011 Dissomaster Printout

09/26/2011 Minute Order

09/21/2011 Memorandum – Points and Authorities (PER P )

09/21/2011 Supplemental (DECLARATION PER P )

09/19/2011 Responsive Declaration (PER R )

09/19/2011 Memorandum – Points and Authorities (PER R )

07/29/2011 Declaration (- On Behalf of: Petitioner: Steinberg, Bonnie )
Filed by Petitioner

07/29/2011 Declaration (- On Behalf of: Petitioner: Steinberg, Bonnie )
Filed by Petitioner

07/29/2011 RFO/MTN – Mod (ssupport, atty fees – On Behalf of: Petitioner: Steinberg, Bonnie – Hearing Set on 2011-09-26 )
Filed by Petitioner

07/29/2011 Declaration – Income and Expense (- On Behalf of: Petitioner: Steinberg, Bonnie )
Filed by Petitioner

08/27/2007 at 8:30 AM in Stanley Mosk Dept. – 60, Nelson, Maren, Presiding
Order to Show Cause Hearing – Off Calendar – Moving Party

08/27/2007 Minute Order

08/23/2007 Stipulation and Order (- On Behalf of: Respondent: Steinberg, Norman )
Filed by Respondent

07/27/2007 Substitution of Attorney (- On Behalf of: Petitioner: Steinberg, Bonnie )
Filed by Petitioner

07/11/2007 at 8:30 AM in Stanley Mosk Dept. – 60, Nelson, Maren, Presiding
Order to Show Cause Hearing – Not Held – Continued by Stipulation

06/04/2007 at 8:30 AM in Stanley Mosk Dept. – 60, Nelson, Maren, Presiding
Order to Show Cause Hearing – Not Held – Continued by Stipulation

05/17/2007 Notice – Continuance (- On Behalf of: Respondent: Steinberg, Norman )
Filed by Respondent

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 12/14/2018 04/18/2018 04/17/2007 12/10/2003

04/17/2007 at 8:30 AM in Stanley Mosk Dept. – 60, Nelson, Maren, Presiding
Order to Show Cause Hearing – Not Held – Continued by Stipulation

03/26/2007 Stipulation and Order (- On Behalf of: Respondent: Steinberg, Norman )
Filed by Respondent

03/22/2007 Notice – Unavailability of Counsel (3-28-07/4-9-07 – On Behalf of: Petitioner: Steinberg, Bonnie )
Filed by Petitioner

03/14/2007 Substitution of Attorney (- On Behalf of: Respondent: Steinberg, Norman )
Filed by Respondent

03/14/2007 Declaration – Income and Expense (- On Behalf of: Respondent: Steinberg, Norman )
Filed by Respondent

03/14/2007 RFO/MTN – Mod (04/17/2007 – On Behalf of: Respondent: Steinberg, Norman )
Filed by Respondent

03/14/2007 Memorandum – Points and Authorities (- On Behalf of: Respondent: Steinberg, Norman )
Filed by Respondent

07/13/2004 Joinder – Notice – Appear and Respond Employee Benefit Plan

07/09/2004 Notice – Acknowledgment of Receipt

06/22/2004 Joinder – Request for Joinder – Employee Benefit Plan

06/10/2004 Notice – Acknowledgment of Receipt

05/26/2004 Order – Qualified Domestic Relations Order (re: division of Producer-writers guild of America )

05/25/2004 Notice – Unavailability of Counsel

04/26/2004 Notice – Acknowledgment of Receipt

04/08/2004 Order – Qualified Domestic Relations Order (for Pet )

04/01/2004 Declaration – Default FL170 (or uncontested dissolution – Filed and Entered on 2004-04-01 )

04/01/2004 Stipulation – Waiver of Final Declaration of Disclosure (- Filed and Entered on 2004-04-01 )

04/01/2004 Appearance, Stipulations and Waivers

04/01/2004 Judgment (- Signed on 2004-04-01 )

04/01/2004 Notice – Entry of Judgment (- Filed and Entered on 2004-04-01 )

03/24/2004 Notice – Unavailability of Counsel

03/23/2004 at 8:30 AM in Stanley Mosk Dept. – 9, Paul, Roy L., Presiding
Trial on Reserved Issues – Off Calendar – Case Settled

03/23/2004 Minute Order

02/10/2004 at 8:30 AM in Stanley Mosk Dept. – 9, Paul, Roy L., Presiding
Conference – Held – Trial Date Set

02/10/2004 Minute Order

02/10/2004 Miscellaneous (Partial Settlement Agreement at time of trial – Signed on 2004-02-10 )

02/05/2004 Declaration (of Resp in Response to 3rd reply dec, etc – Filed and Entered on 2004-02-05 )

02/03/2004 Declaration (3rd reply of Pet atyy in support of Pet’s OSC – Filed and Entered on 2004-02-03 )

12/31/2003 Order – Findings and Order After Hearing (on OSC held 12-10-03 – Signed on 2003-12-31 )

12/31/2003 Order – Withhold Income for Child Support FL195 (& spousal support – Signed on 2003-12-31 )

12/29/2003 Substitution of Attorney

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 12/14/2018 04/18/2018 04/17/2007 12/10/2003

12/10/2003 at 10:25 AM in Stanley Mosk Dept. – 2, Sandoz, John H., Presiding
Hearing – Transfer to Another Court – Reassigned – Case Reassigned for all Purposes (Dept. 2)

12/10/2003 at 8:30 AM in Stanley Mosk Dept. – 9, Paul, Roy L., Presiding
Order to Show Cause Hearing – Held – Order Made

12/10/2003 at 8:30 AM in Stanley Mosk Dept. – 87, Dobbs, Ann, Presiding
Order to Show Cause Hearing – Reassigned – Other Department

12/10/2003 Affidavit of Prejudice – Peremptory Challenge (by Pet. re: OUDERKIRK )

12/10/2003 Stipulation and Order (re: distribution of house proceeds – Signed on 2003-12-10 )

12/10/2003 Declaration – Service of Preliminary Dec. of Disclosure (and Final by Respondent )

12/10/2003 Minute Order

11/12/2003 Declaration – Service of Preliminary Dec. of Disclosure

10/28/2003 at 8:30 AM in Stanley Mosk Dept. – 87, Dobbs, Ann, Presiding
Order to Show Cause Hearing – Held – Order Made

10/28/2003 Minute Order

10/28/2003 Declaration – UCCJEA (- On Behalf of: Respondent: Steinberg, Norman )
Filed by Respondent

10/28/2003 Response (- On Behalf of: Respondent: Steinberg, Norman )
Filed by Respondent

09/04/2003 OSC – Order to Show Cause (- On Behalf of: Petitioner: Steinberg, Bonnie )
Filed by Petitioner

08/21/2003 Notice – Unavailability of Counsel

08/01/2003 Notice – Acknowledgment of Receipt

06/27/2003 Petition

06/27/2003 Declaration – UCCJEA

06/27/2003 Summons

Case Information

19-CIV-01274 | ROBERT BRANZUELA vs. FREDERICK P. KOO, et al

Case Number
19-CIV-01274

Court
Civil Unlimited

File Date
03/08/2019

Case Type
(26) Unlimited Other Real Property

Case Status
Active

Party
Plaintiff
BRANZUELA, ROBERT

Active Attorneys

Lead Attorney
SHAPERO, SARAH
Retained

Defendant
KOO, FREDERICK P.

Active Attorneys

Lead Attorney
MCSWEENEY, BRIAN J
Retained

Defendant
KOO, SHERRY W.

Active Attorneys

Lead Attorney
MCSWEENEY, BRIAN J
Retained

Defendant
DOES 1-50, INCLUSIVE

Cause of Action

File Date
Cause of Action
Type
Filed By
Filed Against
03/08/2019 Complaint Action BRANZUELA, ROBERT
KOO, FREDERICK P.
KOO, SHERRY W.
DOES 1-50, INCLUSIVE
Events and Hearings

03/08/2019 New Filed Case

03/08/2019 Civil Case Cover Sheet

Civil Case Cover Sheet

03/08/2019 Complaint

Complaint

03/08/2019 Summons Issued / Filed

Summons Issued / Filed

03/08/2019 Notice of Case Management Conference

Notice of Case Management Conference

03/08/2019 Cause Of Action

Action
ComplaintFile Date
03/08/2019
04/08/2019 Proof of Service by PERSONAL SERVICE of

Proof of Service by PERSONAL SERVICE of SUMMONS, COMPLAINT, CIVIL CASE COVER SHEET, NOTICE OF CMC, A

Comment
SUMMONS, COMPLAINT, CIVIL CASE COVER SHEET, NOTICE OF CMC, ADR IN CIVIL CASES, NONREFUNDABLE JURY FEE FAQ
04/08/2019 Proof of Service by SUBSTITUTED SERVICE of

Proof of Service by SUBSTITUTED SERVICE of SUMMONS, COMPLAINT, CIVIL CASE COVER SHEET, NOTICE OF CMC

Comment
SUMMONS, COMPLAINT, CIVIL CASE COVER SHEET, NOTICE OF CMC, ADR IN CIVIL CASES, NONREFUNDABLE JURY FEE FAQ SERVED ON FREDERICK KOO, CO-OCCUPANT
05/03/2019 Demurrer and First Appearance Fee to

Demurrer and First Appearance Fee to DEMURRER BY FREDERICK P KOO AND SHERRY W KOO TO COMPLAINT FILED

Comment
DEMURRER BY FREDERICK P KOO AND SHERRY W KOO TO COMPLAINT FILED BY ROBERT BRANZUELA
05/03/2019 First Paper Fee Paid (Unlimited)

05/03/2019 Request for Judicial Notice

Request for Judicial Notice IN SUPPORT OF DEMURRER BY FREDERICK P KOO AND SHERRY W KOO TO COMPLAINT

Comment
IN SUPPORT OF DEMURRER BY FREDERICK P KOO AND SHERRY W KOO TO COMPLAINT FILED BY ROBERT BRANZUELA
05/03/2019 Declaration in Support

Declaration in Support OF BRIAN J MCSWEENEY IN SUPPORT OF DEMURRER BY FREDERICK P KOO AND SHERRY W K

Comment
OF BRIAN J MCSWEENEY IN SUPPORT OF DEMURRER BY FREDERICK P KOO AND SHERRY W KOO TO COMPLAINT FILED BY ROBERT BRANZUELA
05/03/2019 Memorandum of Points and Authorities in Support

Memorandum of Points and Authorities in Support IN SUPPORT OF DEMURRER BY FREDERICK P KOO AND SHERRY

Comment
IN SUPPORT OF DEMURRER BY FREDERICK P KOO AND SHERRY W KOO TO COMPLAINT FILED BY ROBERT BRANZUELA
05/03/2019 Notice of Hearing re

Notice of Hearing re NOTICE OF HEARING ON DEMURRER BY FREDERICK P KOO AND SHERRY W KOO TO COMPLAINT

Comment
NOTICE OF HEARING ON DEMURRER BY FREDERICK P KOO AND SHERRY W KOO TO COMPLAINT FILED BY ROBERT BRANZUELA
05/09/2019 Stipulation and Proposed Order received & forwarded to Dept

Stipulation and Proposed Order received & forwarded to Dept #3 TO CONTINUE HEARING REGARDING DEMURRE

Comment
#3 TO CONTINUE HEARING REGARDING DEMURRER DATE AND RESET PREHEARING DEADLINES
05/13/2019 Stipulation & Order

Stipulation & Order Type: TO CONTINUE HEARING REGARDING DEMURRER DATE AND RESET PREHEARING DEADLINE

Comment
Type: TO CONTINUE HEARING REGARDING DEMURRER DATE AND RESET PREHEARING DEADLINE Signed by: JUDGE GRANDSAERT Date Signed: 5/10/19
05/15/2019 Notice of Motion and Motion to Quash

Notice of Motion and Motion to Quash PLAINTIFF’S NOTICE OF MOTION AND MOTION TO QUASH/MODIFY DEPOSIT

Comment
PLAINTIFF’S NOTICE OF MOTION AND MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS
05/15/2019 Memorandum of Points and Authorities in Support

Memorandum of Points and Authorities in Support OF PLAINTIFF’S MOTION TO QUASH/MODIFY DEPOSITION SUB

Comment
OF PLAINTIFF’S MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS
05/15/2019 Declaration in Support

Declaration in Support OD SARAH SHAPERO IN SUPPORT OF PLAINTIFF’S MOTION TO QUASH/MODIFY DEPOSITION

Comment
OD SARAH SHAPERO IN SUPPORT OF PLAINTIFF’S MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS
05/15/2019 Separate Statement

Separate Statement UNDER CRC 3.1345 IN SUPPORT OF PLAINTIFF’S MOTION TO QUASH/MODIFY

Comment
UNDER CRC 3.1345 IN SUPPORT OF PLAINTIFF’S MOTION TO QUASH/MODIFY
05/15/2019 Proposed Order Received

Proposed Order Received GRANTING PLAINTIFF’S MOTION

Comment
GRANTING PLAINTIFF’S MOTION
05/15/2019 Proof of Service by MAIL of

Proof of Service by MAIL of PLAINTIFF’S NOTICE OF MOTION AND MOTION TO QUASH/MODIFY DEPOSITION SUBPO

Comment
PLAINTIFF’S NOTICE OF MOTION AND MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS; ETC served on SEE SERVICE LIST
05/21/2019 Amended Notice of Motion and Motion to

Amended Notice of Motion and Motion to QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS R

Comment
QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS.
05/21/2019 Proof of Service by MAIL of

Proof of Service by MAIL of PLAINTIFFS’ AMENDED NOTICE OF MOTION AND MOTION TO QUASH/MODIFY DEPOSITI

Comment
PLAINTIFFS’ AMENDED NOTICE OF MOTION AND MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS served on SEE SERVICE LIST
06/13/2019 First Amended Complaint

First Amended Complaint

06/13/2019 Proof of Service by MAIL of

Proof of Service by MAIL of FIRST AMENDED COMPLAINT SERVED ON BRIAN MCSWEENEY

Comment
FIRST AMENDED COMPLAINT SERVED ON BRIAN MCSWEENEY
06/18/2019 Declaration in Opposition

Declaration in Opposition TO MOTION TO QUASH SUBPOENA; ETC…

Comment
TO MOTION TO QUASH SUBPOENA; ETC…
06/18/2019 Memorandum of Points and Authorities in Opposition

Memorandum of Points and Authorities in Opposition TO MOTION TO QUASH SUBPOENA

Comment
TO MOTION TO QUASH SUBPOENA
06/18/2019 Proof of Service – ELECTRONIC of

Proof of Service – ELECTRONIC of DECLARATION OF BRIAN J. MCSWEENEY IN SUPPORT OF OPPOSITION BY FEDER

Comment
DECLARATION OF BRIAN J. MCSWEENEY IN SUPPORT OF OPPOSITION BY FEDERICK P. KOO AND SHERRY W. KOO TO MOTION TO QUASH ETC… served on SARAH SHAPERO
06/24/2019 Case Management Statement

Case Management Statement

06/24/2019 Proof of Service by MAIL of

Proof of Service by MAIL of CASE MANAGEMENT STATEMENT

Comment
CASE MANAGEMENT STATEMENT
06/25/2019 Memorandum of Points and Authorities in Reply

Memorandum of Points and Authorities in Reply IN SUPPORT OF PLAINTIFFS’ MOTION TO QUASH/MODIFY DEPOS

Comment
IN SUPPORT OF PLAINTIFFS’ MOTION TO QUASH/MODIFY DEPOSITION FOR PRODUCTION OF BUSINESS RECORDS
06/25/2019 Declaration in Support

Declaration in Support OF REPLY TO PLAINTIFFS’ MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUC

Comment
OF REPLY TO PLAINTIFFS’ MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS
06/25/2019 Proof of Service by OVERNIGHT DELIVERY of

Proof of Service by OVERNIGHT DELIVERY of DECLARATION OF SARAH SHAPERO IN SUPPORT OF REPLY TO PLAINT

Comment
DECLARATION OF SARAH SHAPERO IN SUPPORT OF REPLY TO PLAINTIFFS’ MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS; ETC… served on SEE SERVICE LIST

06/26/2019 Hearing on Demurrer

~CIV Minute Order – Hearing on Demurrer 06/26/2019

Judicial Officer
Greenberg, Susan

Hearing Time
9:00 AM

Result
Held

Comment
DEMURRER BY FREDERICK P KOO AND SHERRY W KOO TO COMPLAINT FILED BY ROBERT BRANZUELA

06/26/2019 Tentative ruling adopted and becomes order:

Comment
DEMURRER This motion is dropped from calendar as moot. A First Amended Complaint was filed 6-13-19. If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.
06/26/2019 Case Management Statement

Case Management Statement


07/01/2019 Motion to Quash

~CIV Minute Order – Motion to Quash 07/01/2019

Judicial Officer
Davis, III, Leland

Hearing Time
9:00 AM

Result
Held

Comment
PLAINTIFF’S NOTICE OF MOTION AND MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS

07/01/2019 Tentative ruling adopted and becomes order:

07/02/2019 Order

Order Type: ON MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDSSigned

Comment
Type: ON MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS Signed by: JUDGE DAVIS Date Signed: 7-2-19
07/02/2019 Notice of Entry of Order

Notice of Entry of Order Notice of Entry of Order on Motion to Quash-Modify Deposition Subpoena for

Comment
Notice of Entry of Order on Motion to Quash-Modify Deposition Subpoena for Production of Business Records

07/11/2019 Case Management Conference

~CIV Minute Order – Case Management Conference 07/11/2019

Judicial Officer
Grandsaert, John L.

Hearing Time
9:00 AM

Result
Held

07/11/2019 Demurrer to

Demurrer to FIRST AMENDED COMPLAINT FILED BY ROBERT BRANZUELA

Comment
FIRST AMENDED COMPLAINT FILED BY ROBERT BRANZUELA
07/11/2019 Notice

Notice OF HEARING ON DEMURRER BY FREDERICK P. KOO AND SHERRY W. KOO TO FIRST AMENDED COMPLAINT FILLE

Comment
OF HEARING ON DEMURRER BY FREDERICK P. KOO AND SHERRY W. KOO TO FIRST AMENDED COMPLAINT FILLED BY ROBERT BRANZUELA
07/11/2019 Memorandum of Points and Authorities in Support

Memorandum of Points and Authorities in Support OF DEMURRER BY FREDERICK P. KOO AND SHERRY W. KOO TO

Comment
OF DEMURRER BY FREDERICK P. KOO AND SHERRY W. KOO TO FIRST AMENDED COMPLAINT FILED BY ROBERT BRANZUELA
07/11/2019 Declaration in Support

Declaration in Support OF DEMURRER BY FREDERICK P. KOO AND SHERRY W. KOO TO FIRST AMENDED COMPLAINT

Comment
OF DEMURRER BY FREDERICK P. KOO AND SHERRY W. KOO TO FIRST AMENDED COMPLAINT FILED BY ROBERT BRANZUELA
07/11/2019 Request for Judicial Notice

Request for Judicial Notice IN SUPPORT OF DEMURRER BY DEFENDANTS’ TO FIRST AMENDED COMPLAINT

Comment
IN SUPPORT OF DEMURRER BY DEFENDANTS’ TO FIRST AMENDED COMPLAINT
07/22/2019 Notice of Case Management Conference

Notice of Case Management Conference CMC 10/31/19

Comment
CMC 10/31/19
07/22/2019 Notice of Motion and Motion to Compel Further Responses

Notice of Motion and Motion to Compel Further Responses DEFENDANTS’ NOTICE OF MOTION AND MOTION TO C

Comment
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE
07/22/2019 Declaration in Support

Declaration in Support DECLARATION OF ZACHARY R. SCRIBNER IN SUPPORT OF DEFENDANTS’ OF MOTION TO COM

Comment
DECLARATION OF ZACHARY R. SCRIBNER IN SUPPORT OF DEFENDANTS’ OF MOTION TO COMPEL ROBERT BRANZUELA
07/22/2019 Memorandum of Points and Authorities in Support

Memorandum of Points and Authorities in Support OF MOTION TO COMPEL

Comment
OF MOTION TO COMPEL
07/22/2019 Separate Statement

Separate Statement DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL ROBERT BRANZUELA TO

Comment
DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE
07/22/2019 Proof of Service by MAIL of

Proof of Service by MAIL of DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL ROBERT BRA

Comment
DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE;ETC served on SEE SERVICE LIST
08/15/2019 Memorandum of Points and Authorities in Opposition

Memorandum of Points and Authorities in Opposition TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMEN

Comment
TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT
08/15/2019 Proof of Service by PERSONAL SERVICE of

Proof of Service by PERSONAL SERVICE of PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’

Comment
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT served on SEE SERVICE LIST
08/21/2019 Declaration in Support

Declaration in Support SUPPLEMENTAL DECLARATION OF ZACHARY SCRIBNER

Comment
SUPPLEMENTAL DECLARATION OF ZACHARY SCRIBNER
08/21/2019 Proof of Service by MAIL of

Proof of Service by MAIL of SUPPLEMENTAL DECLARATION OF ZACHARY SCRIBNER ;ETC served on SEE SERVICE

Comment
SUPPLEMENTAL DECLARATION OF ZACHARY SCRIBNER ;ETC served on SEE SERVICE LIST
08/21/2019 Proof of Service by OVERNIGHT DELIVERY of

Proof of Service by OVERNIGHT DELIVERY of SUPPLEMENTAL DECLARATION OF ZACHARY SCRIBNER ;ETC served o

Comment
SUPPLEMENTAL DECLARATION OF ZACHARY SCRIBNER ;ETC served on SEE SERVICE LIST
08/21/2019 Request for Judicial Notice

Request for Judicial Notice Supplemental Request for Judicial Notice in Support of Demurrer by Frede

Comment
Supplemental Request for Judicial Notice in Support of Demurrer by Frederick P. Koo and Sherry W. Koo to First Amendment Complaint
08/21/2019 Memorandum of Points and Authorities in Reply

Memorandum of Points and Authorities in Reply Reply Brief in Support of Demurrer by Frederick P. Koo

Comment
Reply Brief in Support of Demurrer by Frederick P. Koo and Sherry W. Koo to First Amended Complaint
08/21/2019 Proof of Service by PERSONAL SERVICE of

Proof of Service by PERSONAL SERVICE of PLAINTIFF’S OPPOSITION TO DEFENDANT’S DEMURRER;ETC served on

Comment
PLAINTIFF’S OPPOSITION TO DEFENDANT’S DEMURRER;ETC served on SEE SERVICE LIST
08/22/2019 Notice of Unavailability of Counsel

Notice of Unavailability of Counsel

08/22/2019 Proof of Service by MAIL of

Proof of Service by MAIL of NOTICE OF UNAVAILABILITY served on SEE SERVICE LIST

Comment
NOTICE OF UNAVAILABILITY served on SEE SERVICE LIST
08/27/2019 Memorandum of Points and Authorities in Support

Memorandum of Points and Authorities in Support OF MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMP

Comment
OF MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, NON-EVASIVE RESPONSES TO (1) REQUESTS FOR PRODUCTION OF DOCUMENTS; ETC…
08/27/2019 Declaration in Opposition

Declaration in Opposition TO MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, ETC…

Comment
TO MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, ETC…
08/27/2019 Memorandum of Points and Authorities in Reply

Memorandum of Points and Authorities in Reply TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION

Comment
TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, ETC…
08/27/2019 Proof of Service by PERSONAL SERVICE of

Proof of Service by PERSONAL SERVICE of MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION

Comment
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, ETC… served on BRIAN J. MCSWEENEY

08/28/2019 Hearing on Demurrer

~CIV Minute Order – Hearing on Demurrer 08/28/2019

Judicial Officer
Davis, III, Leland

Hearing Time
9:00 AM

Result
Held

Comment
TO FIRST AMENDED COMPLAINT FILED BY ROBERT BRANZUELA

08/28/2019 Tentative ruling adopted and becomes order:

Comment
THE DEMURRER OF DEFENDANTS FREDERICK KOO AND SHERRY W. KOO TO FIRST AMENDED COMPLAINT OF PLAINTIFF ROBERT BRANZUELA. The Demurrer of Defendants Frederick Koo and Sherry W. Koo (“Defendants”) to First Amended Complaint (“FAC”) of Plaintiff Robert Branzuela (“Plaintiff”), is ruled on as follows: (1) Defendants’ Request for Judicial Notice is DENIED as to the Notice of Rescission because it was not provided with the request. Defendants’ Request for Judicial Notice of the Complaint in this action is GRANTED. (2) Demurrer to the First Cause of Action for Rescission is OVERRULED. Defendants demur to the First Cause of Action based on failure to allege facts sufficient to constitute a cause of action on the following grounds: (a) Plaintiff accepted the benefits of the contract and therefore rescission is not available as a matter of law; (b) Plaintiff repeatedly ratified the agreement and therefore rescission is not available as a matter of law; (3) Plaintiff is in breach of the contract and therefore is not entitled to rescission as a matter of law; and (4) Plaintiff fails to allege that he returned all benefits under the contract. The first three grounds raised by Defendants raise factual issues that the court may not resolve on the face of the FAC or from matters of which the court may take judicial notice. Defendants claim that Plaintiff accepted the benefits of the contract and lost the right to rescind, and also that Plaintiff ratified the agreement and lost the right to rescind. Defendants cite to Eustace v. Lynch (1941) 43 Cal.App.2d 486 in support. Eustace involved a trial, not a demurrer, in which evidence was presented as to whether rescission applied. The Court of Appeal looked to Civil Code section 1691, which provided that the party rescinding must rescind promptly upon discovering the facts which entitled him to rescind, if he is free from duress, menace, undue influence, or disability, and is aware of his right to rescind. (Id. at 489-490.) The Court of Appeal found that the appellant waived the right to assert the invalidity of the release and his conduct constituted a ratification of its terms. (Id. at 491.) The court finds that it cannot determine these grounds raised by Defendants on demurrer. Similarly, Defendants contend that Plaintiff cannot seek rescission because Plaintiff is in breach of the contract. However, Plaintiff seeks rescission of the 2018 Forbearance Agreement and Amendments based on undue influence and duress. (See FAC 31-35.) Defendants have not provided any authority that Plaintiff must first comply with the agreement for which it is seeking rescission based on undue influence and duress. Moreover, Plaintiff alleges he complied with the agreements by paying Defendants $1,000,0000 and paying $4,500 per month since October 2018, yet Defendants caused a Notice of Trustee’s Sale to be recorded on the property on or about October 30, 2018. (FAC 25.) Thus, based on Plaintiff’s allegations, Plaintiff does not appear to have been in breach at the time Defendants recorded the Notice of Trustee’s Sale. Lastly, Defendants argue that Plaintiff must restore everything of value received under the contract in order to bring this claim for rescission. Defendants claim that this benefit was a yearlong forbearance of Defendant’s right to foreclose. It is unclear how such value may be alleged by Plaintiff. Moreover, Defendant has not established that failure to allege such value bars Plaintiff’s claim. (3) Demurrer to the Second Cause of Action for Declaratory Relief is OVERRULED. Defendants demur that the Second Cause of Action fails to state facts sufficient to constitute a cause of action because: (a) Plaintiff fails to allege any dispute requiring a determination of rights; (b) the Notice of Default has been rescinded and therefore the stated basis for a declaration of rights is moot; (c) the claims are precluded by the representations, warranties, agreements, and releases made by Plaintiff in the Forbearance Agreement; and (d) Plaintiff represented and warranted in the Forbearance Agreement that he would not file any further lawsuits and released Defendants from all claims in the FAC. All four of Defendants’ arguments fail. Plaintiff alleges facts sufficient to support a claim for declaratory relief. (See FAC 36-45.) Also, Defendants have not established that the declaration of rights sought is moot. Lastly, Defendants have not established that the representations in the Forbearance Agreement and Amendments that Plaintiff claims were entered into under undue influence and duress, bar Plaintiff from seeking declaratory relief. This argument regarding the representations seems to ignore the declaration that Plaintiff seeks regarding his rights and obligations under the Second Conditional Amendment. (4) Demurrer to the Third Cause of Action for Injunctive Relief is SUSTAINED WITHOUT LEAVE TO AMEND. Injunctive relief is a remedy, not a cause of action. (Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168.) Plaintiff also concedes that this claim may be dismissed. (5) Demurrer to the Fourth Cause of Action for Specific Performance is OVERRULED. Defendants demur that this claim fails to allege facts sufficient to state a cause of action because: (a) the FAC fails to establish any performance to compel from Defendants; and (b) Plaintiff failed to perform the agreement which he seeks to have specifically performed and therefore as a matter of law is not entitled to the relief sought. Both of these arguments are based on Defendants’ contention that the Forbearance Agreement expired as of March 1, 2019. First, Defendants contend that the term of the Forbearance Agreement expired March 1, 2019, and therefore Defendants cannot be compelled to perform under the expired contract. Second, Defendants assert that Plaintiff failed to make the payment due on March 1, 2019 and therefore Plaintiff failed to perform under the terms of the Forbearance Agreement that he seeks to have specifically performed. (See Defendants’ Memorandum of Points and Authorities, pp. 13-14.) In opposition, Plaintiff points out that he is not compelling terms of the agreement that expired, but rather that Defendants accept the $4,500 monthly payments contemplated under the Second Amendment in perpetuity. (See FAC 66-73.) In this claim, Plaintiff asks that if the court does not rescind the 2018 Forbearance Agreement and Amendments, that the court compel specific performance of the Second Conditional Amendment. The FAC alleges that Plaintiff paid Defendants $1,000,000 within the stated deadline and paid $4,500 per month since October 2018. (FAC 68.) Despite Plaintiff’s compliance, Defendants caused a Notice of Trustee’s Sale to be recorded on the property on or about October 30, 2018, in breach of the Forbearance Agreement and Amendments. (FAC 69.) Plaintiff’s property is scheduled for foreclosure on March 12, 2019. (FAC 70.) Plaintiff seeks specific performance of the Second Conditional Amendment to Forbearance Agreement. (FAC 71.) Plaintiff has no adequate remedy at law for the injury he will suffer otherwise because Defendants will foreclose on the property. (FAC 73.) The March 1, 2019 payment upon which Defendants rely for their arguments, appears to be the balloon payment pursuant to paragraph 4.3 of the Forbearance Agreement. (See Defendants’ Request for Judicial Notice, Original Complaint, Exh. B, Forbearance Agreement.) The balloon payment requires Plaintiff to pay Defendants the remaining principal balance by March 1, 2019. (Ibid.) Since this date has now passed, Defendants seem to be contending that specific performance may no longer be compelled and that Plaintiff is required to allege the balloon payment was made. However, the FAC alleges that Defendants recorded the Notice of Trustee’s Sale on or about October 30, 2018 in breach of the Forbearance Agreement and Second Conditional Amendment to Forbearance Agreement. (See FAC 69.) As of that date, Plaintiff claims he paid $1,000,000 as required by paragraph 4.2 of the Forbearance Agreement, and further that he paid $4,500 monthly payments since October 2018. (See FAC 53-55.) The balloon payment for March 1, 2019 was not due at the time of Defendants’ alleged breach for which Plaintiff seeks specific performance though. As such, Defendants fail to show that Plaintiff has not stated a claim for specific performance. Defendants cite to Bekins Moving & Storage Co. v. Prudential Ins. Co. (1985) 176 Cal.App.3d 245, to support that specific performance cannot be compelled with respect to an expired contract. Bekins however, involved the time for exercising an option under a contract, in which an option to renew a lease was not timely exercised. It also involved cross-motions for summary judgment. (Id. at 250.) (6) Defendants are to file and serve an Answer to the First, Second and Fourth Causes of Action within 20 days of the date of the court’s order. 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.
08/30/2019 Declaration in Opposition

Declaration in Opposition OF SARAH SHAPERO IN OPPOSITION TO MOTION TO COMPEL ROBERT BRANZUELA TO PRO

Comment
OF SARAH SHAPERO IN OPPOSITION TO MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, NON EVASIVE RESPONSES
08/30/2019 Memorandum of Points and Authorities in Opposition

Memorandum of Points and Authorities in Opposition TO MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE C

Comment
TO MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, NON EVASIVE RESPONSES
08/30/2019 Proof of Service by PERSONAL SERVICE of

Proof of Service by PERSONAL SERVICE of DECLARATION OF SARAH SHAPERO IN OPPOSITION TO MOTION TO COMP

Comment
DECLARATION OF SARAH SHAPERO IN OPPOSITION TO MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, NON EVASIVE RESPONSES;ETC served on SEE SERVICE LIST
08/30/2019 Memorandum of Points and Authorities in Reply

Memorandum of Points and Authorities in Reply TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION

Comment
TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, NON EVASIVE RESPONSES
09/03/2019 Memorandum of Points and Authorities in Reply

Memorandum of Points and Authorities in Reply BRIEF IN SUPPORT OF MOTION TO COMPEL ROBERT BRANZUELA

Comment
BRIEF IN SUPPORT OF MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, ETC…
09/03/2019 Proof of Service by MAIL of

Proof of Service by MAIL of DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION TO COMPEL; ETC… served on

Comment
DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION TO COMPEL; ETC… served on SEE SERVICE LIST

09/10/2019 Motion to Compel

~CIV Minute Order – Motion to Compel 09/10/2019

Judicial Officer
Davis, III, Leland

Hearing Time
9:00 AM

Result
Held

Comment
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE

09/10/2019 Tentative ruling modified and becomes order:

Comment
MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, NON-EVASIVE RESPONSES TO (1) REQUESTS FOR PRODUCTION OF DOCUMENTS; (2) REQUESTS FOR ADMISSIONS; (3) FORM INTERROGATORIES; AND (4) PRODUCE ADDITIONAL DOCUMENTS; AND REQUEST FOR SANCTIONS BY FREDERICK P. KOO AND SHERRY W. KOO. Defendants’ motion to compel responses to (1) requests for production of documents, (2) requests for admissions, (3) form interrogatories, and (4) to produce additional documents is DENIED. The court finds Defendants have failed to meet and confer in good faith as required by CCP 2016.040. On July 10, Defendants’ counsel sent a letter to Plaintiff’s counsel “to confirm our discussion of the various issues raised during our telephonic meet and confer meeting of July 8, 2019.” The letter stated, in pertinent part, as follows: Given that we have previously agreed to extend the deadline on a motion to compel your client’s discovery production and responses to July 19, 2019, please provide your client’s revised responses no later than July 19, 2019 with the understanding that your client grants my clients a new deadline on filing a motion to compel on Mr. Branzuela’s Supplemental Responses up to and including August 31, 2019. Please immediately advise if you do not agree. Shapero Decl., Ex. A (emphasis in original). Plaintiff sent supplemental responses via email on July 19. Plaintiff served the responses by mail on the following Monday, July 22. Defendants’ counsel acknowledges he received the supplemental responses at 3;35 p.m. on Friday, July 19. Scribner Decl. 6. Notwithstanding counsel’s receipt of the supplemental responses on July 19, and notwithstanding the parties’ agreement to an August 31 deadline for filing a motion to compel, Defendants filed the present motion to compel on July 22. In light of these facts, the court finds that Defendants did not meet and confer in good faith. Defendants assert the deadline for filing their motion to compel was July 19. Scribner Supp. Decl., 6. This assertion, however, is contrary to defense counsel’s July 10 letter, in which counsel stated that the new deadline for filing a motion to compel supplemental responses was August 31, 2019. The letter instructed Plaintiff’s counsel to “Please immediately advise if you do not agree.” Plaintiff’s counsel did not indicate any disagreement with the new deadlines. Defendants also contend they did not agree to electronic service of the supplemental responses and that service was therefore untimely. Notably, however, in an email sent on May 16, Defendants’ counsel demanded electronic service of prior supplemental discovery responses as follows: “Your client sued my clients and have made outrageous and unsustainable allegations, thus I expect your client to have responsive Discovery documents within the 2 week period you requested, ie no later than May 24, 2019, you will deliver to me electronically code compliant responses.” Scribner Decl., Exhibit B, 5. Notwithstanding this correspondence demanding electronic service of discovery responses, Defendants now contend that Plaintiff’s supplemental responses were not timely served because the parties had no agreement to accept electronic service pursuant to CRC 2.251. Further, notwithstanding the fact that the May 16 email correspondence was sent from Brian McSweeney to Sarah Shapero, and that no other parties were copied on that correspondence, and notwithstanding the fact that both Mr. McSweeney and Mr. Scribner received the supplemental responses on July 19, Defendants assert that Plaintiff’s paralegal “attempted to ‘hide the ball’ by only including Mr. McSweeney in the email attempting to serve the Second Supplemental Responses[.]” Scribner Supp. Decl., 9. Considering Defendants’ prior demand for electronic service and counsel’s actual notice of the supplemental responses, Defendant’s claim that the supplemental responses were not timely served has dubious merit. In any event, however, the court need not reach the issue, because the court finds that Defendants have not met and conferred in good faith. Plaintiff’s request for sanctions is GRANTED in the amount of $2,180, pursuant to CCP 2023.020. Defendants shall pay this amount within 21 days of this order. Counsel ordered to meet and confer within 2 weeks. 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.
09/12/2019 Order

Order Type: ON DEMURRER OF DEFENDANTS AMENDED COMPLAINT OF PLAINTIFF Signed by: JUDGE DAVIS Date Sig

Comment
Type: ON DEMURRER OF DEFENDANTS AMENDED COMPLAINT OF PLAINTIFF Signed by: JUDGE DAVIS Date Signed: 9-11-19
09/16/2019 Answer

Answer TO UNVERIFIED FIRST AMENDED COMPLAINT

Comment
TO UNVERIFIED FIRST AMENDED COMPLAINT
09/24/2019 Proposed Order Received

Proposed Order Received AFTER 09/10/19 HEARING. FWD TO DEPT. #1

Comment
AFTER 09/10/19 HEARING. FWD TO DEPT. #1
09/30/2019 Order

Order Type: AFTER 9/10/19 HEARING Signed by: JUDGE DAVIS Date Signed: 9/27/19

Comment
Type: AFTER 9/10/19 HEARING Signed by: JUDGE DAVIS Date Signed: 9/27/19
10/09/2019 Case Management Statement

Case Management Statement

10/09/2019 Proof of Service by MAIL of

Proof of Service by MAIL of CASE MANAGEMENT STATEMENT

Comment
CASE MANAGEMENT STATEMENT
10/09/2019 Case Management Statement

Case Management Statement


10/31/2019 Case Management Conference

Judicial Officer
Grandsaert, John L.

Hearing Time
9:00 AM

Case Number: BC597293
LORENA CABRERA VS POPCHIPS INC ET AL
Filing Courthouse: Stanley Mosk Courthouse

Filing Date: 10/08/2015
Case Type: Wrongful Termination (General Jurisdiction)
Status: Jury Verdict 03/10/2017

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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

CABRERA LORENA – Plaintiff

JANINE-PAGE MARISA ESQ. – Attorney for Defendant

POPCHIPS INC. – Defendant

SONORA MILLS FOODS INC. – Defendant

TAFOYA & GARCIA LLP – 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:
06/12/2017 02/21/2017 07/06/2016

01/09/2019 Notice of Change of Address or Other Contact Information
Filed by Marisa, Janine-Page, Esq. (Attorney)

12/14/2017 NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL

11/20/2017 APPELLANT’S NOTICE DESIGNATING RECORD ON APPEAL (UNLIMITED CIVIL CASE)

11/20/2017 Notice of Designation of Record
Filed by Lorena Cabrera (Plaintiff)

11/09/2017 NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)

11/09/2017 Ntc to Attorney re Notice of Appeal
Filed by Clerk

11/08/2017 NOTICE OF APPEAL (UNLIMITED JURISDICTION)

11/08/2017 Notice of Appeal
Filed by Lorena Cabrera (Plaintiff)

10/03/2017 Minute order entered: 2017-10-03 00:00:00
Filed by Clerk

10/03/2017 Minute Order

10/02/2017 ORDER ON: I) AMOUNT OF SANCTIONS AWARDED PURSUANT TO COURT’S PARTIALLY GRANTING DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5;

10/02/2017 Order
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

09/12/2017 Minute order entered: 2017-09-12 00:00:00
Filed by Clerk

09/12/2017 Minute Order

08/28/2017 Minute order entered: 2017-08-28 00:00:00
Filed by Clerk

08/15/2017 NOTICE OF TAKING HEARING OFF CALENDAR RE PLAINTIFF’S MOTION FOR RECONSIDERATION

08/15/2017 Notice
Filed by Plaintiff/Petitioner

08/09/2017 SUMMARY OF RESPONSES TO [PROPOSED] ORDER ON: 1) AMOUNT OF SANCTIONS AWARDED PURSUANT TO COURT’S PARTIALLY GRANTING DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5; ETC

08/09/2017 Proof of Service

08/09/2017 Proof of Service

07/27/2017 Proof of Service

07/27/2017 NOTICE OF RULING RE: 1) AMOUNT OF SANCTIONS AWARDED PURSUANT TO COURT’S PARTIALLY GRANTING DEFENDANTS’ MOTION FOR SANCTIONS ETC

07/27/2017 Notice of Ruling
Filed by Defendant/Respondent

07/18/2017 Minute order entered: 2017-07-18 00:00:00
Filed by Clerk

07/18/2017 Minute Order

07/18/2017 ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

07/18/2017 Minute Order

07/18/2017 ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

07/18/2017 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Certified Shorthand Reporter

07/17/2017 EVIDENTIARY OBJECTIONS BY PLAINTIFF LORENA CABRERA TO DECLARATION OF MARIA JANINE-PAGE IN CONNECTION WITH EX PARTE APPLICATION

07/17/2017 NOTICE OF RULING ON PLAINTIFF’S EX PARTE APPLICATION FOR ORDER STAYING PROCEEDINGS AS TO AMOUNT OF SANCTIONS TO BE AWARDED UNTIL DECISION ON PLAINTIFF’S MOTION FOR RECONSIDERATION

07/17/2017 EVIDENTIARY OBJECTIONS BY PLAINTIFF LORENA CABRERA TO “SUPPLEMENT TO: SECOND SUPPLEMENTAL DECLARATION OF MARISA JANINE-PAGE” IN CONNECTION WITH SANCTIONS

07/17/2017 Objection
Filed by Plaintiff/Petitioner

07/17/2017 Notice of Ruling
Filed by Plaintiff/Petitioner

07/14/2017 Opposition Document
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

07/14/2017 Ex-Parte Application
Filed by Lorena Cabrera (Plaintiff)

07/14/2017 Proof of Service (not Summons and Complaint)
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

07/14/2017 Declaration
Filed by Defendant/Respondent

07/14/2017 Opposition Document
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

07/14/2017 Ex-Parte Application
Filed by Lorena Cabrera (Plaintiff)

07/14/2017 Minute order entered: 2017-07-14 00:00:00
Filed by Clerk

07/14/2017 PLAINTIFF CABRERA’S NOTICE OF EX P4RTE APPLICATION FOR ORDER STAYING PROCEEDINGS AS TO AMOUNT OF SANCTIONS TO BE AWARDED UNTIL DECISION ON PLAINTIFF’S MOTION FOR RECONSIDERATION OF COURT ORDER GRANTING SANCTIONS AND/OR FOR ORDER ADVANCING HEARING ON MOTIO

07/14/2017 Proof of Service

07/14/2017 DECLARARATION OF MARISA JANINE-PAGE IN SUPPORT OF OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION

07/14/2017 Minute Order

07/14/2017 DEFENDANTS OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION

07/14/2017 FACSIMILE TRANS MISSION COVER SHEET

07/14/2017 Miscellaneous-Other
Filed by Defendant/Respondent

07/11/2017 Miscellaneous-Other
Filed by Defendant/Respondent

07/11/2017 Reply/Response
Filed by Defendant/Respondent

07/11/2017 Supplement
Filed by Defendant/Respondent

07/11/2017 Reply to Opposition
Filed by Plaintiff/Petitioner

07/11/2017 Notice of Motion
Filed by Plaintiff/Petitioner

07/11/2017 Proof of Service

07/11/2017 SUPPLEMENT TO: SECOND SUPPLEMENTAL DECLARATION OF MARISA JANINE-PAGE PURSUANT TO COURT’S ORDER PARTIAL GRANTING OF MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

07/11/2017 SECOND SUPPLEMENTAL NOTICE OF LODGMENT IN SUPPORT OF DEFENDANTS’ REPLY PURSUANT TO COURT’S PARTIALLY GRANTING OF MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

07/11/2017 REPLY PURSUANT TO COURT’S PARTIALLY GRANTING OF MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

07/11/2017 REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO TAX COSTS; ETC

07/05/2017 Opposition Document
Filed by Defendant/Respondent

07/05/2017 Objection
Filed by Plaintiff/Petitioner

07/05/2017 Proof of Service (not Summons and Complaint)
Filed by Defendant/Respondent

07/05/2017 Opposition Document
Filed by Plaintiff/Petitioner

07/05/2017 Proof of Service

07/05/2017 PLAINTIFF LORENA CABRERA’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS

07/05/2017 PLAINTIFF’S SUPPLEMENTAL OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS

07/05/2017 SUPPLEMENTAL DECLARATION OF ASHTON WATKINS IN OPPOSITION TO THE DEFENDANTS’ MOTION FOR SANCTIONS

07/05/2017 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO TAX COSTS

07/05/2017 EVIDENTIARY OBJECTIONS BY PLAINTIFF LORENA CABRERA TO SECOND SUPPLEMENTAL DECLARATION OF MARISA JANINE-PAGE IN CONNECTION WITH DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

07/05/2017 DECLARATION OF MARISA JANINE-PAGE IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO TAX COSTS

06/29/2017 Notice of Ruling
Filed by Plaintiff/Petitioner

06/29/2017 NOTICE OF RULING ON DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

06/26/2017 Supplemental Declaration
Filed by Defendant/Respondent

06/26/2017 Proof of Service

06/26/2017 SECOND SUPPLEMENTAL DECLARATION OF MARISA JANINE-PAGE PURSUANT TO COURT’S ORDER PARTIAL GRANTING OF MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

06/16/2017 Minute order entered: 2017-06-16 00:00:00
Filed by Clerk

06/16/2017 Minute Order

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 06/12/2017 02/21/2017 07/06/2016

06/12/2017 Supplemental Declaration
Filed by Defendant/Respondent

06/12/2017 Notice
Filed by Defendant/Respondent

06/12/2017 PROOF OF SERVICE

06/12/2017 REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

06/12/2017 SUPPLEMENTAL NOTICE OF LODGMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5; DECLARATION OF MARISA JANINE-PAGE

06/12/2017 SUPPLEMENTAL DECLARATION OF MARISA JANINE-PAGE IN SUPPORT OF REPLY TO MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE ECTION 128.5

06/05/2017 Opposition Document
Filed by Plaintiff/Petitioner

06/05/2017 DECLARATION OF ROBERT N. TAFOYA IN OPPOSITION TO THE DEFENDANTS’ MOTION FOR SANCTIONS

06/05/2017 DECLARATION OF ASHTON WATKINS IN OPPOSITION TO THE DEFENDANTS’ MOTION FOR SANCTIONS

06/05/2017 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS

06/01/2017 Motion to Tax Costs
Filed by Lorena Cabrera (Plaintiff)

06/01/2017 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO TAX COSTS; ETC

05/24/2017 Motion for Sanctions
Filed by Defendant/Respondent

05/24/2017 DECLARATION OF DAVID H. LICHTENSTEIN IN SUPPORT OF DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

05/24/2017 DECLARATION OF MARISA JANINE-PAGE IN SUPPORT OF DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

05/24/2017 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

05/24/2017 NOTICE OF LODGMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5; DECLARATION OF MARISA JANINE-PAGE

05/11/2017 NOTICE OF ENTRY OF JUDGMENT

04/28/2017 Proof of Service (not Summons and Complaint)
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

04/28/2017 Judgment
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

04/28/2017 Minute order entered: 2017-04-28 00:00:00
Filed by Clerk

04/28/2017 JUDGMENT ON SPECIAL VERDICT

04/28/2017 Minute Order

04/28/2017 Proof of Service

04/28/2017 JUDGMENT ON SPECIAL VERDICT

04/20/2017 Receipt for Exhibits
Filed by Lorena Cabrera (Plaintiff)

04/20/2017 Receipt
Filed by Lorena Cabrera (Plaintiff)

04/20/2017 Receipt
Filed by Lorena Cabrera (Plaintiff)

04/20/2017 CIVIL DEPOSIT

04/20/2017 RECEIPT FOR EXHIBITS/RECORDS

04/20/2017 CIVIL DEPOSIT

04/14/2017 Minute order entered: 2017-04-14 00:00:00
Filed by Clerk

04/14/2017 Minute Order

04/07/2017 Receipt for Exhibits
Filed by Popchips, Inc. (Defendant)

04/07/2017 RECEIPT FOR EXHIBITS/RECORDS

03/10/2017 Jury Question
Filed by Clerk

03/10/2017 Jury Question
Filed by Clerk

03/10/2017 Jury Instructions
Filed by Court

03/10/2017 Receipt
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

03/10/2017 Receipt
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

03/10/2017 Special Verdict
Filed by Court

03/10/2017 Minute order entered: 2017-03-10 00:00:00
Filed by Clerk

03/10/2017 CIVIL DEPOSIT

03/10/2017 CIVIL DEPOSIT

03/10/2017 SPECIAL VERDICT

03/10/2017 Minute Order

03/09/2017 Receipt
Filed by Lorena Cabrera (Plaintiff)

03/09/2017 Receipt
Filed by Lorena Cabrera (Plaintiff)

03/09/2017 Minute order entered: 2017-03-09 00:00:00
Filed by Clerk

03/09/2017 CIVIL DEPOSIT

03/09/2017 Minute Order

03/09/2017 CIVIL DEPOSIT

03/08/2017 Receipt
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

03/08/2017 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Certified Shorthand Reporter

03/08/2017 Minute order entered: 2017-03-08 00:00:00
Filed by Clerk

03/08/2017 Minute Order

03/08/2017 CIVIL DEPOSIT

03/08/2017 ORDER APPOINTING COURT APPROVED REPORTER AS OFACIAL REPORTER PRO TEMPORE

03/07/2017 Receipt
Filed by Lorena Cabrera (Plaintiff)

03/07/2017 Receipt
Filed by Lorena Cabrera (Plaintiff)

03/07/2017 Minute order entered: 2017-03-07 00:00:00
Filed by Clerk

03/07/2017 Minute Order

03/07/2017 CIVIL DEPOSIT

03/07/2017 CIVIL DEPOSIT

03/06/2017 Receipt
Filed by Lorena Cabrera (Plaintiff)

03/06/2017 Receipt
Filed by Lorena Cabrera (Plaintiff)

03/06/2017 Receipt
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

03/06/2017 Minute order entered: 2017-03-06 00:00:00
Filed by Clerk

03/06/2017 CIVIL DEPOSIT

03/06/2017 CIVIL DEPOSIT

03/06/2017 Minute Order

03/06/2017 CIVIL DEPOSIT

03/03/2017 Receipt
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

03/03/2017 Minute order entered: 2017-03-03 00:00:00
Filed by Clerk

03/03/2017 Minute Order

03/03/2017 JURY’S REQUEST

03/03/2017 CIVIL DEPOSIT

03/03/2017 CIVIL DEPOSIT

03/02/2017 Receipt
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

03/02/2017 Receipt
Filed by Lorena Cabrera (Plaintiff)

03/02/2017 Minute order entered: 2017-03-02 00:00:00
Filed by Clerk

03/02/2017 CIVIL DEPOSIT

03/02/2017 CIVIL DEPOSIT

03/02/2017 Minute Order

03/02/2017 CIVIL DEPOSIT

03/01/2017 Minute order entered: 2017-03-01 00:00:00
Filed by Clerk

03/01/2017 Minute Order

02/28/2017 Minute order entered: 2017-02-28 00:00:00
Filed by Clerk

02/28/2017 Minute Order

02/27/2017 Minute order entered: 2017-02-27 00:00:00
Filed by Clerk

02/27/2017 Minute Order

02/24/2017 Jury Instructions
Filed by Plaintiff/Petitioner

02/24/2017 Witness List
Filed by Plaintiff/Petitioner

02/24/2017 Statement of the Case
Filed by Plaintiff/Petitioner

02/24/2017 Exhibit List
Filed by Plaintiff/Petitioner

02/24/2017 Minute order entered: 2017-02-24 00:00:00
Filed by Clerk

02/24/2017 JOINT WITNESS LIST

02/24/2017 Minute Order

02/24/2017 JOINT EXHIBIT LIST

02/24/2017 [PROPOSED] JOINT STATEMENT OF THE CASE

02/24/2017 JOINT JURY INSTRUCTIONS

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 06/12/2017 02/21/2017 07/06/2016

02/21/2017 Minute order entered: 2017-02-21 00:00:00
Filed by Clerk

02/21/2017 Minute Order

02/17/2017 Minute order entered: 2017-02-17 00:00:00
Filed by Clerk

02/15/2017 Motion in Limine
Filed by Plaintiff/Petitioner

02/15/2017 PLAINTIFF’S MOTION IN LIMINE NO.9 TO EXCLUDE EXHIBITS NOT PRODUCED DURING DISCOVERY

02/15/2017 PLAINTIFF’S MOTION IN LIMINE NO. 8 TO EXCLUDE DEFENDANTS’ EXPERT WITNESS JAMIE C. HOLMES FROM TESTIFYING AT TRIAL AND/OR STRIKE DEFENDANTS’ DESIGNATION OF EXPERT JAMIE HOLMES

02/14/2017 Opposition Document
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

02/14/2017 Ex-Parte Application
Filed by Lorena Cabrera (Plaintiff)

02/14/2017 Ex-Parte Application
Filed by Plaintiff/Petitioner

02/14/2017 Minute order entered: 2017-02-14 00:00:00
Filed by Clerk

02/14/2017 EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR HEARING ON PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ IMPROPER SUPPLEMENTAL EXPERT WITNESS DESIGNATION OF JAMIE C. HOLMES, CPA OR, ALTERNATIVELY, FOR AN ORDER STRIKING DEFENDANTS’ IMPROPER SUPPLEMENTAL E

02/14/2017 DEFENDANTS’ DECLARATION OF MARISA JANINE-PAGE IN OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION

02/14/2017 EX PARTE APPLICATION TO CONTINUE THE FSC AND TRIAL DATES

02/14/2017 Minute Order

02/10/2017 Reply/Response
Filed by Plaintiff/Petitioner

02/10/2017 Brief
Filed by Plaintiff/Petitioner

02/10/2017 Jury Instructions
Filed by Plaintiff/Petitioner

02/10/2017 Jury Instructions
Filed by Plaintiff/Petitioner

02/10/2017 Witness List
Filed by Plaintiff/Petitioner

02/10/2017 Statement of the Case
Filed by Plaintiff/Petitioner

02/10/2017 Exhibit List
Filed by Plaintiff/Petitioner

02/10/2017 Reply/Response
Filed by Plaintiff/Petitioner

02/10/2017 Miscellaneous-Other
Filed by Defendant/Respondent

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 4

02/10/2017 Proof of Service

02/10/2017 PLAINTIFF’S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 4 TO EXCLUDE EVIDENCE OF PLAINTIFF’S COLLATERAL SOURCE BENEFITS

02/10/2017 PLAINTIFF’S [PROPOSED] STATEMENT OF THE CASE

02/10/2017 DEFENDANTS’ SUBMISSION OF PRE-FINAL STATUS CONFERENCE TRIAL DOCUMENTS

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 5

02/10/2017 PLAINTIFF’S [PROPOSED] WITNESS LIST

02/10/2017 PLAINTIFF’S [PROPOSED] EXHIBIT LIST

02/10/2017 PLAINTIFF’S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 3 TO EXCLUDE EVIDENCE, ARGUMENT AND/OR REFERENCE THAT THE WORKER’S COMPENSATION COMPROMISE AND RELEASE SETTLED AND RELEASED ALL DISABILITY AND RELATED CLAIMS, INCLUDING FAILURE TO PREVENT AND HARASSMENT

02/10/2017 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION IN LIMINE NO.1 ETC.

02/10/2017 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION IN LIMINE NO.2 ETC.

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 7

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 8

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 2

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 1

02/10/2017 PLAINTIFF’S TRIAL BRIEF

02/10/2017 PLAINTIFF’S [PROPOSED] JURY INSTRUCTIONS AND SPECIAL JURY INSTRUCTIONS

02/10/2017 PLAINTIFF’S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 7 TO EXCLUDE EVIDENCE, ARGUMENT AND ASSERTION OF UNPLED AFFIRMATIVE DEFENSE OF AFTER-ACQUIRED EVIDENCE BASED ON PLAINTIFF’S ALLEGED USE OF FALSE DOCUMENTS TO GAIN EMPLOYMENT WITH DEFENDANTS

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 9

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 6

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 10

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 3

02/10/2017 PLAINTIFF’S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 6 TO EXCLUDE WITNESSES NOT IDENTIFIED DURING DISCOVERY AND TO REQUIRE AN OFFER OF PROOF FOR WITNESSES AT TRIAL WHO WERE NOT IDENTIFIED

02/03/2017 Declaration
Filed by Defendant/Respondent

02/03/2017 Opposition Document
Filed by Plaintiff/Petitioner

02/03/2017 Opposition Document
Filed by Defendant/Respondent

02/03/2017 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO.6

02/03/2017 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTON IN LIMINE NO.4

02/03/2017 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTON IN LIMINE NO.2

02/03/2017 Proof of Service

02/03/2017 PLAINTIFF LORENA CABRERA’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO.1 ETC.

02/03/2017 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTON IN LIMINE NO.1

02/03/2017 DECLARATION OF MARISA JANINE-PAGE IN SUPPORT OF DEFENDANTS’ OPPOSITIONS TO MOTIONS IN LIMINE NOS. 1-7

02/03/2017 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTON IN LIMINE NO.3

02/03/2017 Proof of Service

02/03/2017 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO.5

02/03/2017 PLAINTIFF LORENA CABRERA’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO.3 ETC.

02/03/2017 PLAINTIFF LORENA CABRERA’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO.2 ETC.

02/03/2017 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTON IN LIMINE NO.7

02/01/2017 Minute order entered: 2017-02-01 00:00:00
Filed by Clerk

02/01/2017 Minute Order

01/26/2017 Proof of Service (not Summons and Complaint)
Filed by Defendant/Respondent

01/26/2017 Proof of Service

01/25/2017 Motion in Limine
Filed by Defendant/Respondent

01/25/2017 DECLARATION OF MARISA JANINE-PAGE IN SUPPORT OF DEFENDANTS’ MOTIONS IN LIMINE

01/25/2017 DEFENDANTS’ MOTION IN LIMINE FOR ORDER EXCLUDING ARGUMENT AND EVIDENCE THAT CONTRADICTS PLAINTIFF’S SWORN VOLUNTARY RESIGNATION DECLARATION

01/25/2017 DEFENDANTS’ MOTION IN LIMINE NO. 2 FOR ORDER EXCLUDING ARGUMENT AND EVIDENCE THAT PLAINTIFF SUFFERED ANY EMOTIONAL DISTRESS INJURY

01/25/2017 Notice
Filed by Defendant/Respondent

01/25/2017 DEFENDANTS’ NOTICE OF MOTION AND MOTION IN LIMINE FOR ORDER EXCLUDING ARGUMENT AND EVIDENCE THAT PLAINTIFF SUFFERED ANY EMOTIONAL DISTRESS INJURY

01/25/2017 DEFENDANTS’ NOTICE OF MOTION AND MOTION IN LIMINE FOR ORDER EXCLUDING ARGUMENT AND EVIDENCE THAT PLAINTIFF HAVING ANY QUALIFYING DISABILITY

01/25/2017 DEFENDANTS NOTICE OF TAKING DEPOSITION OF PLAINTIFF’S NON-RETAINED EXPERT AND REQUEST FOR PRODUCTION OF DOCUMENTS (BY SUBPOENA)

01/25/2017 DEFENDANTS’ NOTICE OF MOTION AND MOTION IN LIMINE FOR ORDER EXCLUDING ARGUMENT AND EVIDENCE THAT CONTRADICTS PLAINTIFF’S SWORN VOLUNTARY RESIGNATION DECLARATION

01/25/2017 DEFENDANTS’ MOTION IN LIMINE FOR ORDER EXCLUDING ARGUMENT AND EVIDENCE THAT PLAINTIFF SUFFERED ANY QUALIFYING DISABILITY WHILE EMPLOYED

01/23/2017 PLAINTIFF’S MOTION IN LIMINE NO. 1 TO EXCLUDE ALL EVIDENCE AND ARGUMENT THAT PLAINTIFF FAILED TO MITIGATE DAMAGES OR WAS DEFICIENT IN HER JOB-SEARCH EFFORTS

01/23/2017 Motion in Limine
Filed by Plaintiff/Petitioner

01/23/2017 PLAINTIFF’S MOTION IN LIMINE NO. 6 TO EXCLUDE WITNESSES NOT IDENTIFIED DURING DISCOVERY AND TO REQUIRE AN OFFER OF PROOF FOR WITNESSES AT TRIAL WHO WERE NOT IDENTIFIED

01/23/2017 PLAINTIFF’S MOTION IN LIMINE NO. 7 TO EXCLUDE EVIDENCE, ARGUMENT AND ASSERTION OF UNPLED AFFIRMATIVE DEFENSE OF AFTER ACQUIRED EVIDENCE BASED ON PLAINITFF’S ALLEGED USE OF FALSE DOCUMENTS TO GAIN EMPLOYMENT WITH DEFENDANTS

01/23/2017 PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION IN LIMINE NO. 7 TO EXCLUDE EVIDENCE, ARGUMENT AND ASSERTION OF UNPLED AFFIRMATIVE DEFENSE OF AFTER-ACQUIRED EVIDENCE BASED ON PLAINITFF’S ALLEGED USE OF FALSE DOCUMENTS TO GAIN EMPLOYMENT WITH D

01/23/2017 PLAINTIFF’S MOTION IN LIMINE NO. 4 TO EXCLUDE EVIDENCE OF PLAINTIFF’S COLLATERAL SOURCE BENEFITS

01/23/2017 PLAINTIFF’S MOTION IN LIMINE NO. 3 TO EXCLUDE EVIDENCE, ARGUMENT AND/OR REFERENCE THAT THE WORKER’S COMPENSATION COMPROMISE AND RELEASE SETTLED AND RELEASED ALL DISABILITY AND RELATED CLAIMS, INCLUDING FAILURE TO PREVENT AND HARASSMENT CLAIMS

01/23/2017 PLAINTIFF’S MOTION IN LIMINE NO. 5 TO EXCLUDE UNPLED AFFIRMATIVE DEFENSES

01/23/2017 PLAINTIFF’S MOTION IN LIMINE NO. 2 TO EXCLUDE TESTIMONY THAT OTHERS DID NOT EXPERIENCE DISCRIMINATION AS A RESULT OF GENDER, DISABILITY OR MEDICAL LEAVE

10/17/2016 Minute order entered: 2016-10-17 00:00:00
Filed by Clerk

10/17/2016 Order
Filed by Lorena Cabrera (Plaintiff)

10/17/2016 Minute Order

10/17/2016 ORDER RE MOTION TO COMPEL FURTHER RESPONSES OF DEFENDANT POPCHTPS, INC. TO PLAINTIFF’S REQUEST FOR ADMISSIONS (SET ONE), ETC

10/11/2016 Response
Filed by Lorena Cabrera (Plaintiff)

10/11/2016 PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES OF DEFENDANT POPCHIPS, INC. TO PLAINTIFF’S REQUEST FOR ADMISSIONS (SET ONE) AND FORM INTERROGATORIES 17.1 (SET TWO)

10/07/2016 Minute order entered: 2016-10-07 00:00:00
Filed by Clerk

10/06/2016 Case Management Statement
Filed by Plaintiff/Petitioner

10/06/2016 CASE MANAGEMENT STATEMENT

10/04/2016 DECLARATION OF MARISA JANINE PAGE IN SUPPORT OF OPPOSITION TO MOTION TO COMPEL

10/04/2016 Opposition Document
Filed by Defendant/Respondent

10/04/2016 Proof of Service

10/04/2016 OPPOSITION TO MOTION TO COMPEL

10/03/2016 PROOF OF SERVICE

10/03/2016 Notice
Filed by Defendant/Respondent

10/03/2016 NOTICE OF INTENT TO APPEAR BY TELEPHONE

09/30/2016 Case Management Statement
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

09/30/2016 Proof of Service (not Summons and Complaint)
Filed by Defendant/Respondent

09/30/2016 PROOF OF SERVICE

09/30/2016 AMENDED CASE MANAGEMENT STATEMENT

08/15/2016 Notice Re: Continuance of Hearing and Order
Filed by Plaintiff/Petitioner

08/15/2016 NOTICE OF CONTINUANCE OF HEARING

07/26/2016 NOTICE RE: CONTINUANCE OF HEARING

07/26/2016 NOTICE RE: CONTINUANCE OF HEARING

07/26/2016 Notice Re: Continuance of Hearing and Order
Filed by Clerk

07/21/2016 NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES OF DEFENDANT POPCHIPS, INC. TO PLAINTIFF S REQUEST FOR ADMISSIONS (SET ONE) AND FORM INTERROGATORIES 17.1 (SET TWO) AND FOR SANCTIONS AGAINST DEFENDANT AND ITS COUNSEL, JOINTLY AND SEVERALLY, IN THE

07/21/2016 Motion to Compel
Filed by Plaintiff/Petitioner

07/21/2016 PLAINTIFF S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES OF DEFENDANT POPCHIPS, INC. TO PLAINTTIFF S REQUEST FOR ADMISSIONS (SET ONE) AND FORM INTERROGATORIES 17.1 (SET TWO)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 06/12/2017 02/21/2017 07/06/2016

07/06/2016 NOTICE OF RULING RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION

07/06/2016 Notice of Ruling
Filed by Plaintiff/Petitioner

06/30/2016 Minute order entered: 2016-06-30 00:00:00
Filed by Clerk

06/30/2016 Minute Order

06/27/2016 PLAINTIFF’S SECOND SET OF EVIDENTIARY OBJECTIONS TO DEFENDANTS’ REPLY PAPERS UNDER 437C(B)5, C.R.C. 3.1352, AND C.R.C. 3.1354 IN OPPOSITION DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF CAUSES OF ACTION

06/27/2016 Objection Document
Filed by Plaintiff/Petitioner

06/23/2016 Reply/Response
Filed by Defendant/Respondent

06/23/2016 DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION

06/23/2016 Proof of Service

06/23/2016 DEFENDANTS’ SUPPLEMENTAL NOTICE OF LODGMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUIMCATION

06/23/2016 DEFENDANTS’ RESPONSE TO PLAINTIFF’S EVIDENTIARY OBJECTIONS IN SUPPORT OF HER OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATON OF CAUSES OF ACTION

06/16/2016 Proof of Service

06/16/2016 PLAINTIFF’S NOTICE OF FILING EXCERPTS OF CITED DEPOSITION TRANSCRIPTS IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF CAUSES OF ACTION

06/16/2016 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION

06/16/2016 PLAINTIFF’S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SARA ORTIZ AND EVIDENCE FILED IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF CAUSES OF ACTION

06/16/2016 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION

06/16/2016 Notice of Filing
Filed by Plaintiff/Petitioner

06/16/2016 PLAINTIFF’S APPENDIX OF EVIDENCE IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION

04/14/2016 Proof of Service

04/14/2016 Motion for Summary Judgment
Filed by Defendant/Respondent

04/14/2016 DEFENDANTS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNTIAVE FOR SUMMARY ADJUDICATION

04/14/2016 DECLARATION OF SARA ORTIZ IN SUPPORT QF DEFENIANTS MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION

04/14/2016 DEFENDANTS SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION

04/14/2016 DEFENDANTS MEMORANDUM , IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION

03/10/2016 Notice
Filed by Plaintiff/Petitioner

03/10/2016 NOTICE OF POSTING JURY FEES

03/09/2016 CIVIL DEPOSIT

02/26/2016 Proof of Service

02/26/2016 NOTICE OF RULING AT CASE MANAGEMENT CONFERENCE

02/26/2016 Notice of Ruling
Filed by Defendant/Respondent

02/26/2016 Proof of Service (not Summons and Complaint)
Filed by Defendant/Respondent

02/24/2016 Minute order entered: 2016-02-24 00:00:00
Filed by Clerk

02/24/2016 CASE MANAGEMENT ORDER

02/24/2016 Minute Order

02/24/2016 Order
Filed by Court

02/23/2016 CIVIL DEPOSIT

02/16/2016 CASE MANAGEMENT STATEMENT

02/16/2016 Case Management Statement
Filed by Plaintiff/Petitioner

02/09/2016 Proof of Service (not Summons and Complaint)
Filed by Defendant/Respondent

02/09/2016 Case Management Statement
Filed by Defendant/Respondent

02/09/2016 Proof of Service

02/09/2016 CASE MANAGEMENT STATEMENT

01/12/2016 Proof of Service (not Summons and Complaint)
Filed by Plaintiff/Petitioner

01/12/2016 PROOF OF SERCICE RE NOTICE OF CASE MANAGEMENT CONFERENCE

12/10/2015 Notice
Filed by Defendant/Respondent

12/10/2015 NOTICE OF UNAVAILABILITY

12/10/2015 PROOF OF SERVICE

11/12/2015 Answer
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

11/12/2015 Proof of Service

11/12/2015 DEFENDANTS” ANSWER TO COMPLAINT AND AFFIRMATIVE DEFENSES

10/16/2015 Proof-Service/Summons

10/16/2015 PROOF OF SERVICE SUMMONS

10/16/2015 PROOF OF SERVICE SUMMONS

10/14/2015 OSC-Failure to File Proof of Serv
Filed by Clerk

10/14/2015 ORDER TO SHOW CAUSE HEARING

10/14/2015 Notice of Case Management Conference
Filed by Clerk

10/14/2015 NOTICE OF CASE MANAGEMENT CONFERENCE

10/08/2015 SUMMONS

10/08/2015 COMPLAINT FOR DAMAGES BASED ON: 1. DISCRIMINATION BASED ON DISABILITY; ETC

10/08/2015 Complaint
Filed by Lorena Cabrera (Plaintiff)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 06/12/2017 02/21/2017 07/06/2016

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

Proceedings Held (Proceeding 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:
02/17/2017

10/03/2017 at 08:30 AM in Department 39
Court Order (Court Order; Court makes order) –

09/12/2017 at 08:30 AM in Department 39
Nunc Pro Tunc Order (Nunc Pro Tunc Order; Court makes order) –

08/28/2017 at 09:00 AM in Department 39
(Motion Hearing; Off Calendar) –

07/18/2017 at 09:00 AM in Department 39
Hearing on Motion to Tax Costs (Motion to Tax Costs; Granted in Part) –

07/14/2017 at 08:30 AM in Department 39
Ex-Parte Proceedings (Exparte proceeding; Denied) –

06/16/2017 at 09:00 AM in Department 39
Hearing on Motion for Sanctions (MOTION-SANCTIONS; Granted in Part) –

04/28/2017 at 08:45 AM in Department 39
(Order to Show Cause; Court makes order pursuant to OSC) –

04/28/2017 at 08:45 AM in Department 39
Non-Appearance Case Review (Non-Appearance (Case Review); Advanced to a Previous Date) –

04/14/2017 at 08:30 AM in Department 39
Court Order (Court Order; Court makes order) –

03/10/2017 at 09:01 AM in Department 39
Jury Trial (Jury Trial; End of Trial) –

03/09/2017 at 10:00 AM in Department 39
Jury Trial (Jury Trial; Full Day of Trial Held) –

03/08/2017 at 09:30 AM in Department 39
Jury Trial (Jury Trial; Full Day of Trial Held) –

03/07/2017 at 08:30 AM in Department 39
Jury Trial (Jury Trial; Full Day of Trial Held) –

03/06/2017 at 10:30 AM in Department 39
Jury Trial (Jury Trial; Full Day of Trial Held) –

03/03/2017 at 10:00 AM in Department 39
Jury Trial (Jury Trial; Full Day of Trial Held) –

03/02/2017 at 10:00 AM in Department 39
Jury Trial (Jury Trial; Full Day of Trial Held) –

03/01/2017 at 10:00 AM in Department 39
Jury Trial (Jury Trial; Full Day of Trial Held) –

02/28/2017 at 09:30 AM in Department 39
Jury Trial (Jury Trial; Start of Trial) –

02/27/2017 at 10:00 AM in Department 39
Final Status Conference – Held

02/24/2017 at 10:30 AM in Department 39
Final Status Conference – Held – Continued

02/21/2017 at 09:00 AM in Department 39
Final Status Conference (Final Status Conference; Matter continued) –

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 02/17/2017

02/17/2017 at 09:00 AM in Department 39
Final Status Conference (Final Status Conference; Off Calendar) –

02/14/2017 at 08:30 AM in Department 39
Ex-Parte Proceedings (Exparte proceeding; Denied) –

02/01/2017 at 08:30 AM in Department 39
Court Order (Court Order; Court makes order) –

10/17/2016 at 09:02 AM in Department 39
Post-Mediation Status Conference – Held

10/07/2016 at 08:45 AM in Department 39
Post-Mediation Status Conference (Conference-Post Mediation Status; Continued by Court) –

06/30/2016 at 09:00 AM in Department 39
Hearing on Motion for Summary Judgment (Motion for Summary Judgment; Motion Denied) –

02/24/2016 at 08:45 AM in Department 39
Case Management Conference – Held

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 02/17/2017

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:
06/12/2017 02/21/2017 07/06/2016

01/09/2019 Notice of Change of Address or Other Contact Information
Filed by Marisa, Janine-Page, Esq. (Attorney)

12/14/2017 NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL

11/20/2017 Notice of Designation of Record
Filed by Lorena Cabrera (Plaintiff)

11/20/2017 APPELLANT’S NOTICE DESIGNATING RECORD ON APPEAL (UNLIMITED CIVIL CASE)

11/09/2017 NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)

11/09/2017 Ntc to Attorney re Notice of Appeal
Filed by Clerk

11/08/2017 NOTICE OF APPEAL (UNLIMITED JURISDICTION)

11/08/2017 Notice of Appeal
Filed by Lorena Cabrera (Plaintiff)

10/03/2017 at 08:30 AM in Department 39
Court Order (Court Order; Court makes order) –

10/03/2017 Minute order entered: 2017-10-03 00:00:00
Filed by Clerk

10/03/2017 Minute Order

10/02/2017 ORDER ON: I) AMOUNT OF SANCTIONS AWARDED PURSUANT TO COURT’S PARTIALLY GRANTING DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5;

10/02/2017 Order
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

09/12/2017 at 08:30 AM in Department 39
Nunc Pro Tunc Order (Nunc Pro Tunc Order; Court makes order) –

09/12/2017 Minute order entered: 2017-09-12 00:00:00
Filed by Clerk

09/12/2017 Minute Order

08/28/2017 at 09:00 AM in Department 39
(Motion Hearing; Off Calendar) –

08/28/2017 Minute order entered: 2017-08-28 00:00:00
Filed by Clerk

08/15/2017 Notice
Filed by Plaintiff/Petitioner

08/15/2017 NOTICE OF TAKING HEARING OFF CALENDAR RE PLAINTIFF’S MOTION FOR RECONSIDERATION

08/09/2017 Proof of Service

08/09/2017 Proof of Service

08/09/2017 SUMMARY OF RESPONSES TO [PROPOSED] ORDER ON: 1) AMOUNT OF SANCTIONS AWARDED PURSUANT TO COURT’S PARTIALLY GRANTING DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5; ETC

07/27/2017 NOTICE OF RULING RE: 1) AMOUNT OF SANCTIONS AWARDED PURSUANT TO COURT’S PARTIALLY GRANTING DEFENDANTS’ MOTION FOR SANCTIONS ETC

07/27/2017 Notice of Ruling
Filed by Defendant/Respondent

07/27/2017 Proof of Service

07/18/2017 at 09:00 AM in Department 39
Hearing on Motion to Tax Costs (Motion to Tax Costs; Granted in Part) –

07/18/2017 Minute Order

07/18/2017 Minute Order

07/18/2017 ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

07/18/2017 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Certified Shorthand Reporter

07/18/2017 ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

07/18/2017 Minute order entered: 2017-07-18 00:00:00
Filed by Clerk

07/17/2017 Objection
Filed by Plaintiff/Petitioner

07/17/2017 NOTICE OF RULING ON PLAINTIFF’S EX PARTE APPLICATION FOR ORDER STAYING PROCEEDINGS AS TO AMOUNT OF SANCTIONS TO BE AWARDED UNTIL DECISION ON PLAINTIFF’S MOTION FOR RECONSIDERATION

07/17/2017 EVIDENTIARY OBJECTIONS BY PLAINTIFF LORENA CABRERA TO “SUPPLEMENT TO: SECOND SUPPLEMENTAL DECLARATION OF MARISA JANINE-PAGE” IN CONNECTION WITH SANCTIONS

07/17/2017 Notice of Ruling
Filed by Plaintiff/Petitioner

07/17/2017 EVIDENTIARY OBJECTIONS BY PLAINTIFF LORENA CABRERA TO DECLARATION OF MARIA JANINE-PAGE IN CONNECTION WITH EX PARTE APPLICATION

07/14/2017 at 08:30 AM in Department 39
Ex-Parte Proceedings (Exparte proceeding; Denied) –

07/14/2017 Ex-Parte Application
Filed by Lorena Cabrera (Plaintiff)

07/14/2017 Miscellaneous-Other
Filed by Defendant/Respondent

07/14/2017 DECLARARATION OF MARISA JANINE-PAGE IN SUPPORT OF OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION

07/14/2017 Minute order entered: 2017-07-14 00:00:00
Filed by Clerk

07/14/2017 Opposition Document
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

07/14/2017 Proof of Service

07/14/2017 DEFENDANTS OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION

07/14/2017 FACSIMILE TRANS MISSION COVER SHEET

07/14/2017 Ex-Parte Application
Filed by Lorena Cabrera (Plaintiff)

07/14/2017 Opposition Document
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

07/14/2017 Declaration
Filed by Defendant/Respondent

07/14/2017 Proof of Service (not Summons and Complaint)
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

07/14/2017 PLAINTIFF CABRERA’S NOTICE OF EX P4RTE APPLICATION FOR ORDER STAYING PROCEEDINGS AS TO AMOUNT OF SANCTIONS TO BE AWARDED UNTIL DECISION ON PLAINTIFF’S MOTION FOR RECONSIDERATION OF COURT ORDER GRANTING SANCTIONS AND/OR FOR ORDER ADVANCING HEARING ON MOTIO

07/14/2017 Minute Order

07/11/2017 Miscellaneous-Other
Filed by Defendant/Respondent

07/11/2017 Reply/Response
Filed by Defendant/Respondent

07/11/2017 REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO TAX COSTS; ETC

07/11/2017 Supplement
Filed by Defendant/Respondent

07/11/2017 Reply to Opposition
Filed by Plaintiff/Petitioner

07/11/2017 Notice of Motion
Filed by Plaintiff/Petitioner

07/11/2017 SECOND SUPPLEMENTAL NOTICE OF LODGMENT IN SUPPORT OF DEFENDANTS’ REPLY PURSUANT TO COURT’S PARTIALLY GRANTING OF MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

07/11/2017 SUPPLEMENT TO: SECOND SUPPLEMENTAL DECLARATION OF MARISA JANINE-PAGE PURSUANT TO COURT’S ORDER PARTIAL GRANTING OF MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

07/11/2017 REPLY PURSUANT TO COURT’S PARTIALLY GRANTING OF MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

07/11/2017 Proof of Service

07/05/2017 DECLARATION OF MARISA JANINE-PAGE IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO TAX COSTS

07/05/2017 PLAINTIFF’S SUPPLEMENTAL OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS

07/05/2017 Opposition Document
Filed by Plaintiff/Petitioner

07/05/2017 Proof of Service (not Summons and Complaint)
Filed by Defendant/Respondent

07/05/2017 Objection
Filed by Plaintiff/Petitioner

07/05/2017 Proof of Service

07/05/2017 Opposition Document
Filed by Defendant/Respondent

07/05/2017 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO TAX COSTS

07/05/2017 PLAINTIFF LORENA CABRERA’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS

07/05/2017 EVIDENTIARY OBJECTIONS BY PLAINTIFF LORENA CABRERA TO SECOND SUPPLEMENTAL DECLARATION OF MARISA JANINE-PAGE IN CONNECTION WITH DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

07/05/2017 SUPPLEMENTAL DECLARATION OF ASHTON WATKINS IN OPPOSITION TO THE DEFENDANTS’ MOTION FOR SANCTIONS

06/29/2017 Notice of Ruling
Filed by Plaintiff/Petitioner

06/29/2017 NOTICE OF RULING ON DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

06/26/2017 SECOND SUPPLEMENTAL DECLARATION OF MARISA JANINE-PAGE PURSUANT TO COURT’S ORDER PARTIAL GRANTING OF MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

06/26/2017 Supplemental Declaration
Filed by Defendant/Respondent

06/26/2017 Proof of Service

06/16/2017 at 09:00 AM in Department 39
Hearing on Motion for Sanctions (MOTION-SANCTIONS; Granted in Part) –

06/16/2017 Minute Order

06/16/2017 Minute order entered: 2017-06-16 00:00:00
Filed by Clerk

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 06/12/2017 02/21/2017 07/06/2016

06/12/2017 Supplemental Declaration
Filed by Defendant/Respondent

06/12/2017 PROOF OF SERVICE

06/12/2017 SUPPLEMENTAL NOTICE OF LODGMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5; DECLARATION OF MARISA JANINE-PAGE

06/12/2017 SUPPLEMENTAL DECLARATION OF MARISA JANINE-PAGE IN SUPPORT OF REPLY TO MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE ECTION 128.5

06/12/2017 REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

06/12/2017 Notice
Filed by Defendant/Respondent

06/05/2017 Opposition Document
Filed by Plaintiff/Petitioner

06/05/2017 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SANCTIONS

06/05/2017 DECLARATION OF ROBERT N. TAFOYA IN OPPOSITION TO THE DEFENDANTS’ MOTION FOR SANCTIONS

06/05/2017 DECLARATION OF ASHTON WATKINS IN OPPOSITION TO THE DEFENDANTS’ MOTION FOR SANCTIONS

06/01/2017 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO TAX COSTS; ETC

06/01/2017 Motion to Tax Costs
Filed by Lorena Cabrera (Plaintiff)

05/24/2017 NOTICE OF LODGMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5; DECLARATION OF MARISA JANINE-PAGE

05/24/2017 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

05/24/2017 Motion for Sanctions
Filed by Defendant/Respondent

05/24/2017 DECLARATION OF DAVID H. LICHTENSTEIN IN SUPPORT OF DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

05/24/2017 DECLARATION OF MARISA JANINE-PAGE IN SUPPORT OF DEFENDANTS’ MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5

05/11/2017 NOTICE OF ENTRY OF JUDGMENT

04/28/2017 at 08:45 AM in Department 39
Non-Appearance Case Review (Non-Appearance (Case Review); Advanced to a Previous Date) –

04/28/2017 at 08:45 AM in Department 39
(Order to Show Cause; Court makes order pursuant to OSC) –

04/28/2017 Minute order entered: 2017-04-28 00:00:00
Filed by Clerk

04/28/2017 JUDGMENT ON SPECIAL VERDICT

04/28/2017 Proof of Service

04/28/2017 Judgment
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

04/28/2017 Minute Order

04/28/2017 Proof of Service (not Summons and Complaint)
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

04/28/2017 JUDGMENT ON SPECIAL VERDICT

04/20/2017 Receipt for Exhibits
Filed by Lorena Cabrera (Plaintiff)

04/20/2017 Receipt
Filed by Lorena Cabrera (Plaintiff)

04/20/2017 CIVIL DEPOSIT

04/20/2017 Receipt
Filed by Lorena Cabrera (Plaintiff)

04/20/2017 CIVIL DEPOSIT

04/20/2017 RECEIPT FOR EXHIBITS/RECORDS

04/14/2017 at 08:30 AM in Department 39
Court Order (Court Order; Court makes order) –

04/14/2017 Minute order entered: 2017-04-14 00:00:00
Filed by Clerk

04/14/2017 Minute Order

04/07/2017 RECEIPT FOR EXHIBITS/RECORDS

04/07/2017 Receipt for Exhibits
Filed by Popchips, Inc. (Defendant)

03/10/2017 at 09:01 AM in Department 39
Jury Trial (Jury Trial; End of Trial) –

03/10/2017 Receipt
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

03/10/2017 Minute Order

03/10/2017 Jury Question
Filed by Clerk

03/10/2017 CIVIL DEPOSIT

03/10/2017 Receipt
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

03/10/2017 CIVIL DEPOSIT

03/10/2017 Jury Question
Filed by Clerk

03/10/2017 Jury Instructions
Filed by Court

03/10/2017 Minute order entered: 2017-03-10 00:00:00
Filed by Clerk

03/10/2017 SPECIAL VERDICT

03/10/2017 Special Verdict
Filed by Court

03/09/2017 at 10:00 AM in Department 39
Jury Trial (Jury Trial; Full Day of Trial Held) –

03/09/2017 Receipt
Filed by Lorena Cabrera (Plaintiff)

03/09/2017 Receipt
Filed by Lorena Cabrera (Plaintiff)

03/09/2017 Minute order entered: 2017-03-09 00:00:00
Filed by Clerk

03/09/2017 CIVIL DEPOSIT

03/09/2017 Minute Order

03/09/2017 CIVIL DEPOSIT

03/08/2017 at 09:30 AM in Department 39
Jury Trial (Jury Trial; Full Day of Trial Held) –

03/08/2017 Minute Order

03/08/2017 Receipt
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

03/08/2017 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Certified Shorthand Reporter

03/08/2017 Minute order entered: 2017-03-08 00:00:00
Filed by Clerk

03/08/2017 CIVIL DEPOSIT

03/08/2017 ORDER APPOINTING COURT APPROVED REPORTER AS OFACIAL REPORTER PRO TEMPORE

03/07/2017 at 08:30 AM in Department 39
Jury Trial (Jury Trial; Full Day of Trial Held) –

03/07/2017 Receipt
Filed by Lorena Cabrera (Plaintiff)

03/07/2017 Receipt
Filed by Lorena Cabrera (Plaintiff)

03/07/2017 Minute order entered: 2017-03-07 00:00:00
Filed by Clerk

03/07/2017 Minute Order

03/07/2017 CIVIL DEPOSIT

03/07/2017 CIVIL DEPOSIT

03/06/2017 at 10:30 AM in Department 39
Jury Trial (Jury Trial; Full Day of Trial Held) –

03/06/2017 CIVIL DEPOSIT

03/06/2017 CIVIL DEPOSIT

03/06/2017 CIVIL DEPOSIT

03/06/2017 Minute Order

03/06/2017 Minute order entered: 2017-03-06 00:00:00
Filed by Clerk

03/06/2017 Receipt
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

03/06/2017 Receipt
Filed by Lorena Cabrera (Plaintiff)

03/06/2017 Receipt
Filed by Lorena Cabrera (Plaintiff)

03/03/2017 at 10:00 AM in Department 39
Jury Trial (Jury Trial; Full Day of Trial Held) –

03/03/2017 Receipt
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

03/03/2017 CIVIL DEPOSIT

03/03/2017 Minute Order

03/03/2017 JURY’S REQUEST

03/03/2017 CIVIL DEPOSIT

03/03/2017 Minute order entered: 2017-03-03 00:00:00
Filed by Clerk

03/02/2017 at 10:00 AM in Department 39
Jury Trial (Jury Trial; Full Day of Trial Held) –

03/02/2017 Receipt
Filed by Lorena Cabrera (Plaintiff)

03/02/2017 CIVIL DEPOSIT

03/02/2017 Minute Order

03/02/2017 CIVIL DEPOSIT

03/02/2017 Receipt
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

03/02/2017 Minute order entered: 2017-03-02 00:00:00
Filed by Clerk

03/02/2017 CIVIL DEPOSIT

03/01/2017 at 10:00 AM in Department 39
Jury Trial (Jury Trial; Full Day of Trial Held) –

03/01/2017 Minute Order

03/01/2017 Minute order entered: 2017-03-01 00:00:00
Filed by Clerk

02/28/2017 at 09:30 AM in Department 39
Jury Trial (Jury Trial; Start of Trial) –

02/28/2017 Minute Order

02/28/2017 Minute order entered: 2017-02-28 00:00:00
Filed by Clerk

02/27/2017 at 10:00 AM in Department 39
Final Status Conference – Held

02/27/2017 Minute Order

02/27/2017 Minute order entered: 2017-02-27 00:00:00
Filed by Clerk

02/24/2017 at 10:30 AM in Department 39
Final Status Conference – Held – Continued

02/24/2017 JOINT WITNESS LIST

02/24/2017 Minute Order

02/24/2017 [PROPOSED] JOINT STATEMENT OF THE CASE

02/24/2017 JOINT EXHIBIT LIST

02/24/2017 Jury Instructions
Filed by Plaintiff/Petitioner

02/24/2017 Witness List
Filed by Plaintiff/Petitioner

02/24/2017 Statement of the Case
Filed by Plaintiff/Petitioner

02/24/2017 Exhibit List
Filed by Plaintiff/Petitioner

02/24/2017 JOINT JURY INSTRUCTIONS

02/24/2017 Minute order entered: 2017-02-24 00:00:00
Filed by Clerk

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 06/12/2017 02/21/2017 07/06/2016

02/21/2017 at 09:00 AM in Department 39
Final Status Conference (Final Status Conference; Matter continued) –

02/21/2017 Minute order entered: 2017-02-21 00:00:00
Filed by Clerk

02/21/2017 Minute Order

02/17/2017 at 09:00 AM in Department 39
Final Status Conference (Final Status Conference; Off Calendar) –

02/17/2017 Minute order entered: 2017-02-17 00:00:00
Filed by Clerk

02/15/2017 PLAINTIFF’S MOTION IN LIMINE NO. 8 TO EXCLUDE DEFENDANTS’ EXPERT WITNESS JAMIE C. HOLMES FROM TESTIFYING AT TRIAL AND/OR STRIKE DEFENDANTS’ DESIGNATION OF EXPERT JAMIE HOLMES

02/15/2017 PLAINTIFF’S MOTION IN LIMINE NO.9 TO EXCLUDE EXHIBITS NOT PRODUCED DURING DISCOVERY

02/15/2017 Motion in Limine
Filed by Plaintiff/Petitioner

02/14/2017 at 08:30 AM in Department 39
Ex-Parte Proceedings (Exparte proceeding; Denied) –

02/14/2017 DEFENDANTS’ DECLARATION OF MARISA JANINE-PAGE IN OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION

02/14/2017 EX PARTE APPLICATION TO CONTINUE THE FSC AND TRIAL DATES

02/14/2017 Minute order entered: 2017-02-14 00:00:00
Filed by Clerk

02/14/2017 EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR HEARING ON PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ IMPROPER SUPPLEMENTAL EXPERT WITNESS DESIGNATION OF JAMIE C. HOLMES, CPA OR, ALTERNATIVELY, FOR AN ORDER STRIKING DEFENDANTS’ IMPROPER SUPPLEMENTAL E

02/14/2017 Opposition Document
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

02/14/2017 Ex-Parte Application
Filed by Plaintiff/Petitioner

02/14/2017 Ex-Parte Application
Filed by Lorena Cabrera (Plaintiff)

02/14/2017 Minute Order

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 3

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 10

02/10/2017 Miscellaneous-Other
Filed by Defendant/Respondent

02/10/2017 Reply/Response
Filed by Plaintiff/Petitioner

02/10/2017 Exhibit List
Filed by Plaintiff/Petitioner

02/10/2017 Statement of the Case
Filed by Plaintiff/Petitioner

02/10/2017 Witness List
Filed by Plaintiff/Petitioner

02/10/2017 Jury Instructions
Filed by Plaintiff/Petitioner

02/10/2017 Jury Instructions
Filed by Plaintiff/Petitioner

02/10/2017 Brief
Filed by Plaintiff/Petitioner

02/10/2017 Reply/Response
Filed by Plaintiff/Petitioner

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 9

02/10/2017 PLAINTIFF’S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 7 TO EXCLUDE EVIDENCE, ARGUMENT AND ASSERTION OF UNPLED AFFIRMATIVE DEFENSE OF AFTER-ACQUIRED EVIDENCE BASED ON PLAINTIFF’S ALLEGED USE OF FALSE DOCUMENTS TO GAIN EMPLOYMENT WITH DEFENDANTS

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 6

02/10/2017 PLAINTIFF’S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 6 TO EXCLUDE WITNESSES NOT IDENTIFIED DURING DISCOVERY AND TO REQUIRE AN OFFER OF PROOF FOR WITNESSES AT TRIAL WHO WERE NOT IDENTIFIED

02/10/2017 PLAINTIFF’S [PROPOSED] JURY INSTRUCTIONS AND SPECIAL JURY INSTRUCTIONS

02/10/2017 PLAINTIFF’S TRIAL BRIEF

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 1

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 2

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 8

02/10/2017 PLAINTIFF’S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 4 TO EXCLUDE EVIDENCE OF PLAINTIFF’S COLLATERAL SOURCE BENEFITS

02/10/2017 Proof of Service

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 7

02/10/2017 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION IN LIMINE NO.2 ETC.

02/10/2017 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION IN LIMINE NO.1 ETC.

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 4

02/10/2017 DEFENDANTS’ SUBMISSION OF PRE-FINAL STATUS CONFERENCE TRIAL DOCUMENTS

02/10/2017 PLAINTIFF’S [PROPOSED] STATEMENT OF THE CASE

02/10/2017 PLAINTIFF’S REPLY IN SUPPORT OF MOTION IN LIMINE NO. 3 TO EXCLUDE EVIDENCE, ARGUMENT AND/OR REFERENCE THAT THE WORKER’S COMPENSATION COMPROMISE AND RELEASE SETTLED AND RELEASED ALL DISABILITY AND RELATED CLAIMS, INCLUDING FAILURE TO PREVENT AND HARASSMENT

02/10/2017 PLAINTIFF’S [PROPOSED] EXHIBIT LIST

02/10/2017 PLAINTIFF’S [PROPOSED] WITNESS LIST

02/10/2017 PLAINTIFF”S SPECIAL JURY INSTRUCTION NO. 5

02/03/2017 Opposition Document
Filed by Plaintiff/Petitioner

02/03/2017 Proof of Service

02/03/2017 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO.6

02/03/2017 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTON IN LIMINE NO.4

02/03/2017 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTON IN LIMINE NO.1

02/03/2017 DECLARATION OF MARISA JANINE-PAGE IN SUPPORT OF DEFENDANTS’ OPPOSITIONS TO MOTIONS IN LIMINE NOS. 1-7

02/03/2017 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTON IN LIMINE NO.2

02/03/2017 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTON IN LIMINE NO.3

02/03/2017 Opposition Document
Filed by Defendant/Respondent

02/03/2017 Proof of Service

02/03/2017 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTON IN LIMINE NO.7

02/03/2017 PLAINTIFF LORENA CABRERA’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO.3 ETC.

02/03/2017 PLAINTIFF LORENA CABRERA’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO.2 ETC.

02/03/2017 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE NO.5

02/03/2017 Declaration
Filed by Defendant/Respondent

02/03/2017 PLAINTIFF LORENA CABRERA’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO.1 ETC.

02/01/2017 at 08:30 AM in Department 39
Court Order (Court Order; Court makes order) –

02/01/2017 Minute Order

02/01/2017 Minute order entered: 2017-02-01 00:00:00
Filed by Clerk

01/26/2017 Proof of Service

01/26/2017 Proof of Service (not Summons and Complaint)
Filed by Defendant/Respondent

01/25/2017 DECLARATION OF MARISA JANINE-PAGE IN SUPPORT OF DEFENDANTS’ MOTIONS IN LIMINE

01/25/2017 DEFENDANTS’ MOTION IN LIMINE FOR ORDER EXCLUDING ARGUMENT AND EVIDENCE THAT CONTRADICTS PLAINTIFF’S SWORN VOLUNTARY RESIGNATION DECLARATION

01/25/2017 Motion in Limine
Filed by Defendant/Respondent

01/25/2017 Notice
Filed by Defendant/Respondent

01/25/2017 DEFENDANTS NOTICE OF TAKING DEPOSITION OF PLAINTIFF’S NON-RETAINED EXPERT AND REQUEST FOR PRODUCTION OF DOCUMENTS (BY SUBPOENA)

01/25/2017 DEFENDANTS’ NOTICE OF MOTION AND MOTION IN LIMINE FOR ORDER EXCLUDING ARGUMENT AND EVIDENCE THAT PLAINTIFF SUFFERED ANY EMOTIONAL DISTRESS INJURY

01/25/2017 DEFENDANTS’ NOTICE OF MOTION AND MOTION IN LIMINE FOR ORDER EXCLUDING ARGUMENT AND EVIDENCE THAT PLAINTIFF HAVING ANY QUALIFYING DISABILITY

01/25/2017 DEFENDANTS’ NOTICE OF MOTION AND MOTION IN LIMINE FOR ORDER EXCLUDING ARGUMENT AND EVIDENCE THAT CONTRADICTS PLAINTIFF’S SWORN VOLUNTARY RESIGNATION DECLARATION

01/25/2017 DEFENDANTS’ MOTION IN LIMINE FOR ORDER EXCLUDING ARGUMENT AND EVIDENCE THAT PLAINTIFF SUFFERED ANY QUALIFYING DISABILITY WHILE EMPLOYED

01/25/2017 DEFENDANTS’ MOTION IN LIMINE NO. 2 FOR ORDER EXCLUDING ARGUMENT AND EVIDENCE THAT PLAINTIFF SUFFERED ANY EMOTIONAL DISTRESS INJURY

01/23/2017 PLAINTIFF’S MOTION IN LIMINE NO. 5 TO EXCLUDE UNPLED AFFIRMATIVE DEFENSES

01/23/2017 PLAINTIFF’S MOTION IN LIMINE NO. 2 TO EXCLUDE TESTIMONY THAT OTHERS DID NOT EXPERIENCE DISCRIMINATION AS A RESULT OF GENDER, DISABILITY OR MEDICAL LEAVE

01/23/2017 PLAINTIFF’S MOTION IN LIMINE NO. 6 TO EXCLUDE WITNESSES NOT IDENTIFIED DURING DISCOVERY AND TO REQUIRE AN OFFER OF PROOF FOR WITNESSES AT TRIAL WHO WERE NOT IDENTIFIED

01/23/2017 PLAINTIFF’S MOTION IN LIMINE NO. 7 TO EXCLUDE EVIDENCE, ARGUMENT AND ASSERTION OF UNPLED AFFIRMATIVE DEFENSE OF AFTER ACQUIRED EVIDENCE BASED ON PLAINITFF’S ALLEGED USE OF FALSE DOCUMENTS TO GAIN EMPLOYMENT WITH DEFENDANTS

01/23/2017 PLAINTIFF’S MOTION IN LIMINE NO. 4 TO EXCLUDE EVIDENCE OF PLAINTIFF’S COLLATERAL SOURCE BENEFITS

01/23/2017 PLAINTIFF’S MOTION IN LIMINE NO. 3 TO EXCLUDE EVIDENCE, ARGUMENT AND/OR REFERENCE THAT THE WORKER’S COMPENSATION COMPROMISE AND RELEASE SETTLED AND RELEASED ALL DISABILITY AND RELATED CLAIMS, INCLUDING FAILURE TO PREVENT AND HARASSMENT CLAIMS

01/23/2017 PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION IN LIMINE NO. 7 TO EXCLUDE EVIDENCE, ARGUMENT AND ASSERTION OF UNPLED AFFIRMATIVE DEFENSE OF AFTER-ACQUIRED EVIDENCE BASED ON PLAINITFF’S ALLEGED USE OF FALSE DOCUMENTS TO GAIN EMPLOYMENT WITH D

01/23/2017 Motion in Limine
Filed by Plaintiff/Petitioner

01/23/2017 PLAINTIFF’S MOTION IN LIMINE NO. 1 TO EXCLUDE ALL EVIDENCE AND ARGUMENT THAT PLAINTIFF FAILED TO MITIGATE DAMAGES OR WAS DEFICIENT IN HER JOB-SEARCH EFFORTS

10/17/2016 at 09:02 AM in Department 39
Post-Mediation Status Conference – Held

10/17/2016 Minute order entered: 2016-10-17 00:00:00
Filed by Clerk

10/17/2016 Minute Order

10/17/2016 ORDER RE MOTION TO COMPEL FURTHER RESPONSES OF DEFENDANT POPCHTPS, INC. TO PLAINTIFF’S REQUEST FOR ADMISSIONS (SET ONE), ETC

10/17/2016 Order
Filed by Lorena Cabrera (Plaintiff)

10/11/2016 Response
Filed by Lorena Cabrera (Plaintiff)

10/11/2016 PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES OF DEFENDANT POPCHIPS, INC. TO PLAINTIFF’S REQUEST FOR ADMISSIONS (SET ONE) AND FORM INTERROGATORIES 17.1 (SET TWO)

10/07/2016 at 08:45 AM in Department 39
Post-Mediation Status Conference (Conference-Post Mediation Status; Continued by Court) –

10/07/2016 Minute order entered: 2016-10-07 00:00:00
Filed by Clerk

10/06/2016 Case Management Statement
Filed by Plaintiff/Petitioner

10/06/2016 CASE MANAGEMENT STATEMENT

10/04/2016 DECLARATION OF MARISA JANINE PAGE IN SUPPORT OF OPPOSITION TO MOTION TO COMPEL

10/04/2016 Proof of Service

10/04/2016 OPPOSITION TO MOTION TO COMPEL

10/04/2016 Opposition Document
Filed by Defendant/Respondent

10/03/2016 NOTICE OF INTENT TO APPEAR BY TELEPHONE

10/03/2016 PROOF OF SERVICE

10/03/2016 Notice
Filed by Defendant/Respondent

09/30/2016 Case Management Statement
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

09/30/2016 PROOF OF SERVICE

09/30/2016 AMENDED CASE MANAGEMENT STATEMENT

09/30/2016 Proof of Service (not Summons and Complaint)
Filed by Defendant/Respondent

08/15/2016 Notice Re: Continuance of Hearing and Order
Filed by Plaintiff/Petitioner

08/15/2016 NOTICE OF CONTINUANCE OF HEARING

07/26/2016 NOTICE RE: CONTINUANCE OF HEARING

07/26/2016 Notice Re: Continuance of Hearing and Order
Filed by Clerk

07/26/2016 NOTICE RE: CONTINUANCE OF HEARING

07/21/2016 NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES OF DEFENDANT POPCHIPS, INC. TO PLAINTIFF S REQUEST FOR ADMISSIONS (SET ONE) AND FORM INTERROGATORIES 17.1 (SET TWO) AND FOR SANCTIONS AGAINST DEFENDANT AND ITS COUNSEL, JOINTLY AND SEVERALLY, IN THE

07/21/2016 Motion to Compel
Filed by Plaintiff/Petitioner

07/21/2016 PLAINTIFF S SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES OF DEFENDANT POPCHIPS, INC. TO PLAINTTIFF S REQUEST FOR ADMISSIONS (SET ONE) AND FORM INTERROGATORIES 17.1 (SET TWO)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 06/12/2017 02/21/2017 07/06/2016

07/06/2016 NOTICE OF RULING RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION

07/06/2016 Notice of Ruling
Filed by Plaintiff/Petitioner

06/30/2016 at 09:00 AM in Department 39
Hearing on Motion for Summary Judgment (Motion for Summary Judgment; Motion Denied) –

06/30/2016 Minute order entered: 2016-06-30 00:00:00
Filed by Clerk

06/30/2016 Minute Order

06/27/2016 Objection Document
Filed by Plaintiff/Petitioner

06/27/2016 PLAINTIFF’S SECOND SET OF EVIDENTIARY OBJECTIONS TO DEFENDANTS’ REPLY PAPERS UNDER 437C(B)5, C.R.C. 3.1352, AND C.R.C. 3.1354 IN OPPOSITION DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF CAUSES OF ACTION

06/23/2016 DEFENDANTS’ SUPPLEMENTAL NOTICE OF LODGMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUIMCATION

06/23/2016 Reply/Response
Filed by Defendant/Respondent

06/23/2016 DEFENDANTS’ RESPONSE TO PLAINTIFF’S EVIDENTIARY OBJECTIONS IN SUPPORT OF HER OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATON OF CAUSES OF ACTION

06/23/2016 DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION

06/23/2016 Proof of Service

06/16/2016 PLAINTIFF’S APPENDIX OF EVIDENCE IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION

06/16/2016 PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED MATERIAL FACTS IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION

06/16/2016 PLAINTIFF’S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SARA ORTIZ AND EVIDENCE FILED IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF CAUSES OF ACTION

06/16/2016 Proof of Service

06/16/2016 PLAINTIFF’S NOTICE OF FILING EXCERPTS OF CITED DEPOSITION TRANSCRIPTS IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF CAUSES OF ACTION

06/16/2016 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION

06/16/2016 Notice of Filing
Filed by Plaintiff/Petitioner

04/14/2016 Motion for Summary Judgment
Filed by Defendant/Respondent

04/14/2016 DEFENDANTS SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION

04/14/2016 Proof of Service

04/14/2016 DEFENDANTS MEMORANDUM , IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION

04/14/2016 DEFENDANTS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNTIAVE FOR SUMMARY ADJUDICATION

04/14/2016 DECLARATION OF SARA ORTIZ IN SUPPORT QF DEFENIANTS MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION

03/10/2016 Notice
Filed by Plaintiff/Petitioner

03/10/2016 NOTICE OF POSTING JURY FEES

03/09/2016 CIVIL DEPOSIT

02/26/2016 NOTICE OF RULING AT CASE MANAGEMENT CONFERENCE

02/26/2016 Notice of Ruling
Filed by Defendant/Respondent

02/26/2016 Proof of Service (not Summons and Complaint)
Filed by Defendant/Respondent

02/26/2016 Proof of Service

02/24/2016 at 08:45 AM in Department 39
Case Management Conference – Held

02/24/2016 Minute Order

02/24/2016 Order
Filed by Court

02/24/2016 CASE MANAGEMENT ORDER

02/24/2016 Minute order entered: 2016-02-24 00:00:00
Filed by Clerk

02/23/2016 CIVIL DEPOSIT

02/16/2016 CASE MANAGEMENT STATEMENT

02/16/2016 Case Management Statement
Filed by Plaintiff/Petitioner

02/09/2016 Proof of Service

02/09/2016 CASE MANAGEMENT STATEMENT

02/09/2016 Proof of Service (not Summons and Complaint)
Filed by Defendant/Respondent

02/09/2016 Case Management Statement
Filed by Defendant/Respondent

01/12/2016 PROOF OF SERCICE RE NOTICE OF CASE MANAGEMENT CONFERENCE

01/12/2016 Proof of Service (not Summons and Complaint)
Filed by Plaintiff/Petitioner

12/10/2015 Notice
Filed by Defendant/Respondent

12/10/2015 NOTICE OF UNAVAILABILITY

12/10/2015 PROOF OF SERVICE

11/12/2015 Answer
Filed by Popchips, Inc. (Defendant); Sonora Mills Foods, Inc. (Defendant)

11/12/2015 DEFENDANTS” ANSWER TO COMPLAINT AND AFFIRMATIVE DEFENSES

11/12/2015 Proof of Service

10/16/2015 PROOF OF SERVICE SUMMONS

10/16/2015 Proof-Service/Summons

10/16/2015 PROOF OF SERVICE SUMMONS

10/14/2015 NOTICE OF CASE MANAGEMENT CONFERENCE

10/14/2015 Notice of Case Management Conference
Filed by Clerk

10/14/2015 OSC-Failure to File Proof of Serv
Filed by Clerk

10/14/2015 ORDER TO SHOW CAUSE HEARING

10/08/2015 Complaint
Filed by Lorena Cabrera (Plaintiff)

10/08/2015 COMPLAINT FOR DAMAGES BASED ON: 1. DISCRIMINATION BASED ON DISABILITY; ETC

10/08/2015 SUMMONS

Michael J. Gaffney v. Kenneth Pratt
Case No: 19CV05440
Hearing Date: Tue Oct 29, 2019 10:30

Nature of Proceedings: Req. for Order: Harassment Restraining Order

Req. for Order: Harassment Restraining Order

Attorneys: Plaintiff in pro per

Ruling: Pratt has filed no Response. Grant the request. There is a CHO filled out in the computer for the Court to sign that provides for a 20 yard stay-away. [Change it to a 10 yard stay-away order.]

This case was filed 10/10/19; Michael Gaffney [“Gaffney”] seeks to restrain Kenneth Pratt [“Pratt”]; temporary restraining orders were issued by the Commissioner; provides for personal conduct orders and 10-yard stay away order from Gaffney and his home; was based upon unlawful violence, a credible threat of violence, or stalking; there is proof of personal service filed on 10/22 that reflects the Sheriff’s Civil Bureau via Deputy Vasquez served Pratt on 10/18/19.

Gaffney declared that Pratt lives in his building on the same floor; that Pratt came into his room and assaulted him and made criminal threats on 10/5 and 10/9; also confronted him twice “on video.”

Pratt has filed no Response.

The Court’s Conclusion

Pratt has filed no Response. Grant the request. There is a CHO filled out in the computer for the Court to sign that provides for a 20 yard stay-away.

Amalie Lopez v. Jose Angel Lopez Gastelum
Case No: 19FL00425
Hearing Date: Tue Oct 29, 2019 10:30

Nature of Proceedings: Req. for Order: Modification Visit/Peaceful Exchange of Minor Children/Emergency Contact Method

Req. for Order: Modification Visit/Peaceful Exchange of Minor Children/ Emergency Contact Method

Attorneys: Petitioner in pro per

Ruling: There is no proof of service and the Court anticipates that father will ask for another continuance. Continued on the Court’s own motion to December 17, 2019.

Analysis

This matter was filed on 9/4; father seeks to modify a visitation order and provide for peaceful contact for purpose of exchange of the minor children; he tells the Court that the Court granted a 3-year restraining order to protect Mother Amalie Lopez. Respondent Father Jose Angel Lopez Gastelum was granted the reasonable right of visitation. He cannot contact the Mother in order to coordinate this. He wants to have contact with his children as he is a loving father.

The case was continued on 9/6 and again on 10/1 because the moving party could not get the moving papers served.

There is no proof of service; indeed nothing has been filed in the case since the 10/1 Minute Order; the Court anticipates that father will ask for another continuance.

Tentative Ruling

Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

FAMILY LAW
Scott Cyr and Laura Ann Cyr
Case No: 1403371
Hearing Date: Tue Oct 29, 2019 10:30

Nature of Proceedings: Req. for Order: Orders on Reserved Issues re Sale

Req. for Order: re Orders on Reserved Issues re Sale

Attorneys:

Matthew Long for Petitioner [“Scott”]; Joanne S. Sumalpong for Respondent [“Laura”]

Ruling:

1. As set out below, any and all interest from the date of the judgment on the equalizing note must be suspended, retroactively, until Scott removes Laura from his Ravenscroft mortgage; Laura’s motion to strike is denied.

2. The Court has very recently received a “Stipulation and Proposed Order” from Referee Timothy W. O’Hara that suggests that it has been signed by everyone and is only awaiting the Court’s signature. The Stipulation emailed to the Court does not reflect any signatures. The Court requests counsel to meet and confer and bring to the courtroom the stipulation that is completed and ready for the Court to sign.

Analysis

On 9/23 counsel for Laura filed a RFO seeking “Orders on Reserved Issues re Sale of Lots.”

She attaches the declaration of Laura who testifies that she has attached a copy of the Marriage of Cyr Property Division Spreadsheet which is attached to the Judgment in this case; attaches a copy of the $55,132.78 debt which she had to pay to Mr. Pulous created by Scott and his prior counsel after separation, and which was secured by her residence; attaches a copy of the rejection she received from the bank when she attempted to refinance her Pedernal residence and access its equity; she is still on the loan to Scott’s Ravenscroft residence, and therefore unable to qualify for a refinance until her name is removed from his mortgage loans; Judgment provides that Scott is to receive an equalizing payment from the sale of The Lots; there was no other means by which Scott could have received this sum earlier than the close of escrow on The Lots; she did nothing to hinder or delay the sale of The Lots; had no access to the rents or equity in The Lots pending their sale.

Laura testifies that the trial in this matter was long and complicated, and she required the legal services of Sumalpong & Sumalpong; she and Scott required access to legal counsel; both gave their respective attorneys liens (“FLARPL’s”) expecting that each attorney would be paid when The Lots sold; Scott will easily be able to pay Attorney Long’s lien from the sums he receives; if Scott also receives an illegal award of interest on his equalizing payment, she will be unable to pay Attorney Sumalpong’s lien; she is asking the Court to order that Scott receive his equalizing payment of $480,290.80, without interest; testifies that this is the legal and equitable result.

Scott’s Response

He filed a Hearing Brief; he point out that On August 13, 2018, the Judgment of Dissolution was entered ordering Respondent to make an equalizing payment of $480,000 + from the sale of “The Lots” in Arroyo Grande. The Court appointed a referee and ordered that he sell the lots, pay debts owed, collect rents, and pay necessary expenses. The Lots are agricultural land. Neither party has had any beneficial use of the property while awaiting its sale. The Court also said that the equalizing payment would bear interest at the legal rate from the date of Judgment to the date of payment. Now, over 13 months later, as the first lot is being sold, Laura refuses to acknowledge the underlying judgment and contends that In re Marriage of Teichmann (1984) 157 Cal.App.3d 302, is controlling; Laura claims that the ordering of interest is illegal; Scott says that the case is distinguishable. Scott also claims that Laura fails to acknowledge that the reason she doesn’t have liquid assets available to make the equalizing payment is that she violated the Family Law Automatic Restraining Orders during the pendency of this action. She would have had liquid assets available to make the equalizing payment and she could have avoided interest all together had she not violated the ATROs. Respondent’s unclean hands prevents her from seeking “equitable” relief.

Laura’s Reply

Filed 10/22; she points out that Scott failed to file a Responsive Declaration, or any competent evidence, in opposition to her RFO; asks the Court to strike Scott’s Hearing Brief filed on October 15, 2019; she argues that the case law supports her position that the accrual of interest on an equalizing payment owed from the community net sales proceeds legally cannot accrue interest, particularly when the sale is delayed through no fault of either party. The focus is on whether the payor should be sanctioned and penalized under these circumstances.

Laura also points out it has been over one year from the entry of Judgment in this case and Scott unaccountably has failed to remove Laura from his Ravenscrofi mortgage. As a result, Laura has been unable to access any of the equity in her real property holdings. After trial Mr. Long asked the Court to order both parties to remove the other from any mortgages and execute Interspousal Transfer Deeds. The Court stated in its denial of that request that it retained “jurisdiction” and that if cooperation was not forthcoming within a “reasonable time,” either party could make a motion under the “jurisdiction umbrella.”

Court’s Conclusions

1. As to the legal interest argument, this Court will not do an analysis of Teichmann or decide the issue on a clean hands analysis. The Judgment clearly spells out that the equalizing payment would “bear interest at the legal rate from the date of judgment to the date of payment.” [See page 20 of the Judgment of Dissolution). No timely appeal was taken from the judgment. Thus the Court has no legal authority to modify the judgment. That request must be denied.

2. On the other hand, as to the equitable argument, i.e., the refusal of Scott to remove Laura from the mortgage on his property, the Court finds that issue is not satisfactorily answered in Scott’s response. The Court also finds that Laura has made a valid and legitimate argument. Laura contends that Scott has Laura’s equity completely tied up, thereby preventing her from obtaining funds to pay any portion of the equalizing payment in advance of the sale of The Lots; at the same time Scott insists on collecting up to ten percent interest on the equalizing note [approximately $4,100.00 per month]. The Court concludes that equity prevents Scott from taking the position that he can insist on the interest but not get Laura off his mortgage promptly. His position is indefensible under the circumstances. Thus any and all interest on the equalizing note must be suspended, retroactively, until Scott removes Laura from his Ravenscroft mortgage.

3. Laura’s motion to strike must be denied. It is customary for the Court to get a Response accompanied by declarations, but there are rare cases when counsel for a party has concluded that there are no additional facts necessary to be presented via a declaration and the issue is solely a legal one. That was obviously the conclusion reached by Mr. Long. Thus the documents in response will not be struck.

Filed 10/29/19 Shi v. Wolfsdorf Rosenthal LLP CA2/5

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 FIVE

ZHAO HUI SHI et al.,

Plaintiffs and Appellants,

v.

WOLFSDORF ROSENTHAL, LLP et al.

Defendants and Respondents.

B290792

(Los Angeles County

Super. Ct. No. BC662775)

APPEAL from a judgment of the Superior Court of Los Angeles County, David S. Cunningham III, Judge. Affirmed, in part, and reversed, in part.

Law Offices of Steven P. Scandura and Steven P. Scandura; Howard Posner, for Plaintiffs and Appellants.

Haight Brown & Bonesteel, Valerie A. Moore, Jennifer K. Saunders, for Defendant and Repondent Wolfsdorf Rosenthal, LLP.

Kaufman Dolowich Voluck, Andrew J. Waxler, Jennifer E. Newcomb, for Defendant and Respondent Miller Mayer LLP.

__________________________

Named plaintiffs and appellants, Zhao Hui Shi and Jun Lu, are members of a class of 54 investors (plaintiffs) who each lost $500,000, after investing in Pacific Proton Therapy Center, LLC (Pacific Proton) and its proposed Beverly Proton Center, LLC (Beverly Proton), as part of the EB-5 Immigrant Investor Program. Plaintiffs sued two law firms allegedly involved in the investment scam, defendants and appellants Wolfsdorf Rosenthal, LLP (Wolfsdorf) and Miller Mayer, LLP (Miller), claiming fraud, negligent misrepresentation, and entitlement to treble damages and attorney fees for violation of Penal Code section 496 (Pen. Code, § 496, subd. (c)). Plaintiffs appeal the trial court’s order granting defendants’ special motions to strike under Code of Civil Procedure section 425.16, commonly known as anti-SLAPP motions, as to all three causes of action.

Plaintiffs argue that their claims (1) were not based on, and do not arise from, activity protected under section 425.16; and (2) have the requisite minimal merit necessary to survive a special motion to strike.

We conclude plaintiffs’ causes of action against Miller were not based on, and do not arise from, an exercise of the constitutional rights of petition or free speech protected under section 425.16, subdivision (e). With respect to Wolfsdorf, however, the allegations arise from the firm’s prosecution of plaintiffs’ visa applications, and Wolfsdorf has made a prima facie showing that prosecution of visa petitions with the USCIS is protected activity. We further conclude that plaintiffs cannot meet their burden of establishing their claims have the requisite minimal merit, as there is nothing in plaintiffs’ pleadings or accompanying documents that ties Wolfsdorf to the wrongdoing alleged in the first amended complaint or demonstrates that the firm was aware of the scam. We therefore reverse the trial court’s judgment with respect to the allegations against Miller, but affirm as to the allegations against Wolfsdorf.

FACTS AND PROCEDURAL HISTORY

The First Amended Complaint

The operative first amended complaint alleged as follows: Plaintiffs wished to invest in the EB-5 Immigrant Investor Program administered by U.S. Citizenship and Immigration Services (USCIS), which promotes economic growth in the United States by granting visas to foreign investors. Immigrants who have invested or are in the process of investing $500,000 in a targeted employment area in a new commercial enterprise that will benefit the U.S. economy and create at least 10 full-time positions for qualifying employees may be eligible for conditional permanent residency status under the program. The commercial enterprise must either be, or be affiliated with, an entity designated as a “regional center” to administer EB-5 investment projects by the USCIS.

Charles C. Liu founded Pacific Proton, which would purportedly develop Beverly Proton, a proton therapy cancer treatment center in Southern California. Beverly Proton would be funded by eligible EB-5 immigrant investors. Liu also formed the Pacific Proton EB-5 Fund, LLC (EB-5 Fund), into which foreign investors would make EB-5 eligible investments. On June 28, 2012, the USCIS approved Liu’s Form I-924, the form application to designate Pacific Proton as an EB-5 regional center.

Between October 2014 and April 2016, plaintiffs each invested $500,000 in limited liability company funds in the EB-5 Fund. The total investment from all investors was at least $26,967,918. Each investor was provided a May 2013 Private Offering Memorandum (POM), which set forth the terms of the investment and emphasized the crucial roles of both Liu and Dr. John Thropay, a radiation oncologist, to the project. The POM and other marketing materials were materially misleading. The POM represented that capital contributions would only be used to fund development and operation of Beverly Proton; administrative fees would be utilized to pay commissions and offering expenses.

Liu, his wife Lisa Wang, and Dr. Thropay conspired to create the appearance that Beverly Proton was a legitimate project. Liu had a 75 percent ownership interest in Beverly Proton; Dr. Thropay had a 25 percent ownership interest. Liu was paid a salary of $350,000 by Pacific Proton, and $200,000 by the EB-5 Fund. Liu gave Dr. Thropay $680,000, and spent $300,000 improving a parcel of land that Dr. Thropay owned, although Dr. Thropay did not perform any work for Beverly Proton. They never intended that the cancer center be built, but instead used it as a pretext to defraud plaintiffs of their investments. Liu and Wang were aided and abetted in their fraudulent venture by many professionals, including defendants, whose participation gave the project a veneer of legitimacy.

Miller was “retained by the perpetrators of the fraud to prepare the documents used to lure in . . . [p]laintiffs and to create the appearance of a legitimate EB-5 program. . . . [Miller] knew of the fraudulent scheme to steal money by false pretenses from potential immigrants, or should have known of said scheme but for their willful ignorance, and nonetheless assisted the perpetrators knowing that plaintiffs’ money would be stolen.” It prepared the POM knowing that it would be presented to potential investors like plaintiffs as marketing material.

Wolfsdorf was retained by approximately 35 of the plaintiffs to prosecute immigration petitions on their behalf. Wolfsdorf either knew of the scheme to defraud potential immigrants or should have known but for their willful ignorance, or negligently and recklessly ignored the high probability that its clients’ money would be stolen, yet allowed and encouraged plaintiffs to invest in the scheme. “[E]ach . . . [p]laintiff was referred to [Wolfsdorf] by the perpetrators of the fraud. . . . [N]one (or nearly none) of the . . . [p]laintiffs ever met [with Wolfsdorf attorneys], and . . . each . . . [p]laintiff was assigned a lawyer by the perpetrators of the fraud. [Wolfsdorf] knew that [it was] receiving clients en masse by the opposing party in the transactions, and therefore [was] aware of [its] heightened ethical duty to investigate the circumstances of the retention and the ethical duty to conduct due diligence to insure that the representation was not being obtained for an improper purpose (which in fact is was). In short, [Wolfsdorf] [was] paid hundreds of thousands of dollars . . . for taking . . . clients in bulk by the perpetrators of a scam which should have been obvious to [Wolfsdorf], without meeting the clients and without doing any basic due diligence, and all the while purposely limiting [its] own duties to [its] clients to exclude any responsibility to investigate the legitimacy of the underlying transaction. In so doing, [Wolfsdorf] violated ethical standards and improperly limited the scope of [its] representation so as to allow [it] to keep making money off the scheme without having to report anything negative to [its] clients which might scare them off.”

“The documents drafted by [Wolfsdorf] contained no real safeguards to protect investors, and basically left the door wide open to allow the thieves to steal the money. . . . [Wolfsdorf] allowed [its] clients’ money to be released directly to the perpetrators’ enterprise without restrictions such as escrow accounts or rudimentary controls. . . . [Wolfsdorf did not] communicate[] to any of [its] clients the fact that the enterprise lacked basic capital controls and that no mechanisms were in place to protect their money.”

Little, if any, work was performed on the project. In 2015, invested funds were used to demolish a building Dr. Thropay owned, which inured solely to his benefit. Liu and Wang diverted almost $21.1 million from the EB-5 Fund for personal use and to pay overseas marketers. By June 3, 2016, only $234,899.19 of the original $26.9 million contributed by foreign investors remained, despite this total lack of progress.

As relevant here, plaintiffs alleged causes of action in fraud, negligent misrepresentation, and entitlement to treble damages and attorney fees for violation of Penal Code section 496 (Pen. Code, § 496, subd. (c)) against defendants.

With respect to Miller, plaintiffs claimed that Miller conspired with Liu and the other defendants to give an air of legitimacy to the project and drafted documents that it knew would be used to take plaintiffs’ money. Miller did so although it knew or should have known that the investment was not real and “all of the representations in the POM were essentially fraudulent.” Miller was “fully aware that their representations would be conveyed to persons such as [p]laintiffs through the POM.” Plaintiffs reasonably relied on the POM. As a direct and proximate result of the representations in the POM and Miller’s failure to alert plaintiffs to the fraud, plaintiffs each lost over $500,000. Miller acted with a conscious disregard for plaintiffs rights, entitling plaintiffs to punitive damages. Miller received money for its involvement.

Plaintiffs claimed that Wolfsdorf conspired in the fraud. Plaintiffs were referred to Wolfsdorf specifically because it had experience with the Beverly Proton project and could vouch for its viability and legitimacy. Wolfsdorf knew that these representations would be conveyed through their representation, but did not express any doubts to plaintiffs. Plaintiffs relied on these representations and Wolfsdorf’s credibility when deciding to invest. Wolfsdorf failed to place certain protections in the relevant documents, did not conduct even rudimentary investigations on plaintiffs’ behalf, did not advise plaintiffs of potential concerns, and purposefully limited its own liability. As a direct and proximate result of these actions, plaintiffs each lost over $500,000. Wolfsdorf acted with a conscious disregard for plaintiffs rights, entitling plaintiffs to punitive damages. Wolfsdorf received money for its involvement.

Special Motions to Strike

Miller

Miller moved to strike as to all three causes of action. It argued that the first amended complaint was based on constitutional protected activity it took on its client’s behalf—submitting an application to the USCIS for the right to operate as a regional center under the EB-5 immigration program. Miller argued that the filing of the application was protected under section 425.16, subdivisions (e)(2) and (e)(4). It asserted that the lawsuit lacked minimal merit, because it made no representations to plaintiffs, had no duty to make representations, and had no knowledge of the alleged wrongdoing until after its work was completed. Moreover, plaintiffs were attempting to hold it liable for conspiracy with its client Liu, but failed to comply with Civil Code section 1714.10. Failure to comply required complete dismissal of their claims. Miller filed a request for judicial notice of documents in SEC v. Charles C. Liu et al., United States District Court, Central District of California, Case No. 8:16-cv-00974-CJC-AGR, in support of its motion.

Wolfsdorf

Wolfsdorf also moved to strike as to all three causes of action. It argued that the first amended complaint was designed to deter it from engaging in constitutionally protected activities of its clients in the form of preparing and filing their immigration visa petitions. This activity was protected under section 425.16, subdivisions (e)(1), (e)(2), and (e)(4). It argued that plaintiffs could not demonstrate minimal merit. The named plaintiffs lacked standing—they were not clients of Wolfsdorf and had no connection to the firm whatsoever. Plaintiffs did not discover Wolfsdorf’s involvement until August 2017, well after their decisions to invest, and thus could not have relied on its participation in determining the investment was legitimate. As another bar to the action, the attorney-client privilege between Wolfsdorf and its non-party clients would prevent Wolfsdorf from presenting a meaningful defense. Finally, plaintiffs’ first amended complaint failed to state facts to support any of the causes of action against it. Wolfsdorf filed a request for judicial notice of documents in SEC v. Charles C. Liu et al., United States District Court, Central District of California, Case No. 8:16-cv-00974-CJC-AGR, in support of its motion.

Oppositions to Special Motions to Strike

Miller

Plaintiffs opposed Miller’s motion to strike, arguing that, although the acts of advising Liu and submitting applications to the USCIS might be conditionally privileged, creating documents that an attorney believes will be used to commit a fraud and turning a blind eye to that fraud are not protected. The cause of action for entitlement to treble damages and attorney fees for violation of Penal Code section 496 cannot be the subject of an anti-SLAPP because the receipt of money is not a protected act. The causes of action have the requisite merit.

Wolfsdorf

Plaintiffs opposed Wolfsdorf’s motion to strike, arguing that the anti-SLAPP statute did not apply because the conduct alleged in the first amended complaint was not presentation of their visa petitions, but rather aiding and abetting fraud, malpractice, negligent ratification of the project, and retention of funds procured by fraud—none of which fall under the statute. Plaintiffs argued they were injured by Wolfsdorf’s actions even if they were not direct clients, and therefore have standing. The anti-SLAPP statute does not protect conduct that is not communicative. Plaintiffs’ claims did not concern anything that Wolfsdorf said in the petitions it filed, but rather Wolfsdorf’s willful ignorance of the fraud and its representation of clients en masse, which assisted in keeping the fraud hidden. Wolfsdorf neglected to advise plaintiffs of obvious risks. Retention of funds obtained by fraud is not a form of communication. With respect to the merits, there was evidence that Wolfsdorf’s willful blindness amounted to aiding and abetting. Plaintiffs alleged that documents from SEC v. Charles C. Liu et al., United States District Court, Central District of California, Case No. 8:16-cv-00974-CJC-AGR, attached to its concurrently-filed request for judicial notice provided ample evidence to support plaintiffs’ causes of action.

Trial Court’s Rulings

The trial court granted Miller’s and Wolfsdorf’s anti-SLAPP motions as to all three causes of action.

It also granted the parties’ requests for judicial notice of the existence and effect of SEC v. Charles C. Liu et al., United States District Court, Central District of California, Case No. 8:16-cv-00974-CJC-AGR, but emphasized that disputable assertions of fact are not judicially noticeable.

DISCUSSION

“‘Code of Civil Procedure section 425.16 sets out a procedure for striking complaints in harassing lawsuits that are commonly known as SLAPP suits . . . , which are brought to challenge the exercise of constitutionally protected free speech rights.’ [Citation.] A cause of action arising from a person’s act in furtherance of the ‘right of petition or free speech under the [federal or state] Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability’ that the claim will prevail. (§ 425.16, subd. (b)(1).)” (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940 (Sweetwater).) An “‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e).)

Arguments

With respect to the first prong of the analysis, plaintiffs contend that their claims against Miller arise from its action of “draft[ing] the fraudulent private investment documents used to bait [them],” and that their claims against Wolfsdorf arise from its “process[ing] the majority of [plaintiffs’] matters without asking questions, reviewing key documents, or alerting their clients to the repeated thefts of money,” neither of which is protected conduct under the anti-SLAPP statute.

Defendants view the first amended complaint differently, and argue that plaintiffs’ claims arise from protected conduct. Miller contends that the claims against it arise from its drafting and presentation of Pacific Proton’s application materials to the USCIS. Wolfsdorf argues that the claims against it arise from its prosecution of immigration petitions on its clients’ behalf.

We share plaintiffs’ view of the allegations contained in the first amended complaint as to Miller, and agree that the activity from which their claims against it arise is not protected under section 425.16. We therefore conclude that the trial court erred in granting Miller’s anti-SLAPP motion, and reverse the judgment as to those claims. We affirm with respect to Wolfsdorf, however, as plaintiffs’ claims against it arise from prosecution of its clients’ Form I-526 petitions for permanent residency, which is petitioning activity protected by the anti-SLAPP statute, and plaintiffs have failed to show that their claims possess the requisite minimal merit.

Legal Principles

“Section 425.16 posits . . . a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)’ (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043). If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1); see generally Equilon [Enterprises v. Consumer Cause, Inc. (2002)] 29 Cal.4th [53,] 67.)” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Id. at p. 89.) “‘We review de novo the grant or denial of an anti-SLAPP motion.’ [Citation.]” (Sweetwater, supra, 6 Cal.5th 931 at p. 940.)

The act underlying a claim for purposes of an anti-SLAPP statute is determined from the plaintiffs’ allegations (Baral v. Schnitt (2016) 1 Cal.5th 376, 396), which, at this stage, “we accept as true” (Central Valley Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203, 217 (CVH); Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 54). We will not “‘insert into a pleading claims for relief based on allegations of activities that plaintiffs simply have not identified, even if the parties suggest on appeal how plaintiffs might have intended to frame those claims or attempt to identify the specific conduct or assertions of statements alleged to be false on which plaintiffs intended to base such claims for relief. It is not our role to engage in what would amount to a redrafting of the first amended complaint in order to read that document as alleging conduct that supports a claim that has not in fact been specifically alleged, and then assess whether the pleading that we have essentially drafted could survive the anti-SLAPP motion directed at it.’” (CVH, supra, 19 Cal.App.5th at p. 218, quoting Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 621, fn. omitted.)

“‘“[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] . . . In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.”’ [Citation.]” (Turnbull v. Lucerne Valley Unified School Dist. (2018) 24 Cal.App.5th 522, 529 (Turnbull).) “[Courts] focus upon the ‘activity that gives rise to [the defendant’s] asserted liability.’ [Citations.]” (Freeman v. Schack (2007) 154 Cal.App.4th 719, 733 (Freeman).)

“[M]erits based arguments have no place in our threshold analysis of whether plaintiffs’ causes of action arise from protected activity. Where [the defendant] cannot meet his threshold showing, the fact he ‘might be able to otherwise prevail on the merits under the “probability” step is irrelevant.’ [Citation.]” (Freeman, supra, 154 Cal.App.4th at p. 733.) However, “‘[a] defendant need not prove that the challenged conduct is protected by the First Amendment as a matter of law; only a prima facie showing is required.’ [Citation.]” (People ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809, 822.)

With the second prong of the anti-SLAPP analysis, “the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral v. Schnitt, supra, 1 Cal.5th at p. 384.) At this stage, we consider “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) The plaintiff may rely on affidavits and transcripts of testimony in court proceedings made under penalty of perjury in California. (Sweetwater, supra, 6 Cal.5th at pp. 942, 945). Plaintiffs are required to have “‘“‘stated and substantiated a legally sufficient claim.’” [Citation.]’ . . . [Citation.]” (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120).

Analysis

Miller

Miller contends that the harm underlying plaintiffs’ claims is its protected activity of preparing and filing Pacific Proton’s Form I-924 application. It argues that if the drafted documents had not first been submitted to USCIS, plaintiffs would not have suffered harm. It asserts that its “sole purpose of the drafting was to obtain approval and designation of the regional center by USCIS. If there was no such designation by USCIS there would not have been—years later—a solicitation of investors (done by third-parties), and a decision to invest (where they were represented by separate counsel), or any other activity for [plaintiffs] to complain about.”

Miller’s contention mischaracterizes the allegations in the first amended complaint. The gravamen of plaintiffs’ claims with respect to Miller is not that Miller included the POM in the application that it filed with the USCIS, but that Miller drafted the POM either knowing or turning a blind eye to the fact that Beverly Proton was a scam, and knowing that the POM would be presented to plaintiffs as marketing material. The protected activity is merely incidental. In fact, the harm to plaintiffs occurred years after the application was filed, when plaintiffs were presented with the POM as a means of inducing them to invest. (See Turnbull, supra, 24 Cal.App.5th at p. 529 [fact that an action was filed after protected activity took place is not dispositive].) Plaintiffs alleged that they relied on the fraudulent representations in the POM in making the decision to invest, and suffered the loss of $500,000 each as a result of their reliance.

We do not consider Miller’s arguments with respect to the merits of the allegations at this stage in the analysis. However, in arguing that the POM Miller drafted was materially altered without Miller’s approval after being submitted as part of Pacific Proton’s form application to the USCIS, Miller implicitly acknowledges that the harm alleged is that the plaintiffs were given the POM and relied upon it, not that the POM or some iteration of it had been previously filed with the USCIS. It is entirely possible that Miller will be able to demonstrate that the POM complained of was materially different from the POM it drafted, and that it is therefore not liable for damages to plaintiffs. But the merits of a claim are irrelevant when evaluating whether the harm alleged was protected activity. We therefore reverse the trial court’s judgment with respect to Miller.

Wolfsdorf

Wolfsdorf first contends that the harm underlying plaintiffs’ claims is its prosecution of its clients’ Form I-526 petitions for permanent residency, which is protected activity under section 425.16, subdivision (e). We agree.

The first amended complaint identifies Wolfsdorf as having been “retained by about 35 Class Plaintiffs to prosecute immigration petitions on their behalf.” It does not allege that the firm was retained for any other purpose. The allegations against the various defendants are not well-differentiated, but it appears that the wrong Wolfsdorf is alleged to have committed in each cause of action is being referred to clients by the opposing party for the limited role of “drafting the documents and petitions needed to consummate the fraud.” The gravamen of the claims is therefore the prosecution of I-526 visa petitions with the USCIS, a government agency, for its consideration. We conclude that Wolfsdorf has made a prima facie showing of petitioning activity under section 425.16, subdivisions (e)(1) and (2), which protect “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, [and] (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,” respectively.

Accordingly, the burden shifts to plaintiffs to demonstrate that their claims have minimal merit. Although the parties have devoted significant time to arguing whether documents that plaintiffs sought to have judicially noticed in an SEC case against Liu and Wang were properly judicially noticed, and whether the facts contained in the affidavits and transcripts were judicially noticeable, it is not necessary for us to decide those questions, as we conclude that, even if we were to consider the documents at issue, plaintiffs have not demonstrated minimal merit.

To sustain their burden on the second prong on their fraud claims, plaintiffs must show “‘(1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity . . . ; (3) intent to defraud . . . ; (4) justifiable reliance; and (5) resulting damage.’ [Citations.]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Negligent misrepresentation is a “species of fraud” and, like fraud, requires a showing of misrepresentation, justifiable reliance, and damage. (Wilson v. Century 21 Great Western Realty (1993) 15 Cal.App.4th 298, 306.) Penal Code section 496 provides for recovery of treble damages (Pen. Code, § 496, subd. (c)) against any person “who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained.” (Pen. Code, § 496, subd. (a).)

Our review of the pleadings and the relevant documents, including documents excerpted from the SEC case, discloses nothing to connect Wolfsdorf to the alleged wrongdoing. There is simply no evidence that Wolfsdorf’s actions went beyond the bare act of prosecuting visa petitions, that Wolfsdorf agreed to provide services beyond the prosecution of visas, that Wolfsdorf made any false representations to plaintiffs, or that Wolfsdorf either had, or should have had, knowledge of a scam. Because the pleadings and accompanying documents do not contain facts tending to show that Wolfsdorf was involved in, or in any way aware of, the Beverly Proton scam, we affirm the trial court’s judgment with respect to plaintiffs’ claims against it.

DISPOSITION

The judgment is reversed as to the claims against Miller, and the trial court is directed to enter an order denying Miller’s section 425.16 special motion to strike. We affirm the judgment with respect Wolfsdorf. Plaintiffs are to recover their costs on appeal relating to the claims against Miller. Wolfsdorf is to recover its costs relating to plaintiffs’ claims against it.

MOOR, J.

WE CONCUR:

RUBIN, P. J.

KIM, J.

Filed 10/29/19 Ortiz-Fernandez v. Clinica CA1/2

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

FIRST APPELLATE DISTRICT

DIVISION TWO

NORMA ORTIZ-FERNANDEZ,

Plaintiff and Appellant,

v.

LA CLINICA,

Defendant and Respondent.

A151141

(Solano County

Super. Ct. No. FCS039298)

At a pretrial conference 10 days before trial, the trial court acting sua sponte dismissed this personal injury lawsuit with prejudice as a sanction, because the self-represented plaintiff had neglected to file a written pre-trial memorandum that was required by local rule to have been submitted five days earlier. We hold that terminating this case was a disproportionately onerous sanction for the plaintiff’s local rule violation that improperly deprived her of her day in court, and as such it was an abuse of discretion. We therefore reverse.

BACKGROUND

Norma Ortiz-Fernandez filed this personal injury suit in February 2012 against La Clinica, a medical facility in Vallejo, California, alleging she had been severely injured when she fell out of a chair that gave out beneath her. She claims that ever since, she has experienced chronic neck and back pain as well as dizziness and migraine headaches, which have impaired her life, interfered with her ability to pursue her career goals in the criminal justice field and impaired her ability to parent her young daughter.

About seven months into the case, her initial counsel withdrew with court permission, in September 2012 (the record does not reflect the circumstances).

Three years later, in February 2015, and just a month before the scheduled trial date, her second attorney filed an unopposed, ex parte request to continue the trial in order to be relieved as counsel (citing “irreconcilable differences”). With no objection by the defense, the court vacated the March 2015 trial date, and then on March 3, 2015, granted counsel’s request to withdraw. The court continued the case for three months, until June 3, 2015, to enable Ortiz-Fernandez to retain new counsel. Over the next five and a half months, it continued the case three more times (on June 3, August 12 and October 14) as she tried to find a new lawyer. Then on November 24, 2015, approximately eight months after the initial March 2015 trial date, the court set a new trial management conference for September 29, 2016, and a new trial date ten days later in October 2016.

When Ortiz-Fernandez appeared pro per at the September 29, 2016 trial management conference, the court on its own motion ordered her case dismissed with prejudice, without any prior notice or warning. The dismissal resulted from the court’s frustration that she had not complied with a Solano County local rule that required her to submit a trial management conference report five days before the conference. The local rules also warn that “the testimony of witnesses who are not listed in the Trial Management Conference Report, or documents, or other exhibits, portions of depositions, answers to interrogatories or responses to requests for admissions, which are not listed in the Trial Management Conference Report, shall not be admitted at trial.”

The court opened the trial management conference by admonishing Ortiz-Fernandez for not having filed the report and asked for an explanation. She said she couldn’t afford to pay her expert witnesses, whom she had already subpoenaed for trial, and was trying to negotiate with them to get them to attend trial. This led to a colloquy in which the court pressed her repeatedly to explain how she could prove her case without expert witnesses, and frequently interrupted her as she pleaded for some leniency. We quote portions of that hearing at length:

“THE COURT: Where is your trial management conference report, ma’am? [¶] I don’t have it in my file. Have you filed it?

“PLAINTIFF ORTIZ: No, there is a bit of circumstance that I want to let you know.

“THE COURT: Okay. Go ahead.

“PLAINTIFF ORTIZ: So my witnesses, my expert witnesses, have been subpoenaed properly and —

“THE COURT: Well, if they are expert witnesses, it begs the question about why you haven’t provided the Court with the required trial management conference report.

“PLAINTIFF ORTIZ: Yeah, I have been a little bit—with the situation trying to get them to negotiate to see if they could come to court.

“THE COURT: That is a separate issue from complying with the Rules of Court. I’ve been explaining to you the difficulty of representing yourself and also the requirement that you have to be held to the same standard as the attorneys are. [¶] And here we are at trial management conference and you haven’t complied, once again, with the rules.

“PLAINTIFF ORTIZ: But I have good cause.

“THE COURT: Well, tell me your good cause then.

“PLAINTIFF ORTIZ: Yes. Like I said, they are charging me all this money that it’s really hard for me to bring up, especially so close to possibly trial and that puts me in a great disadvantage—

“THE COURT: Well, ma’am, that is part of the problem with litigation. It’s expensive. Expert witnesses cost money. Perhaps that is why, I don’t know, but maybe that’s why you are in pro per because of the cost of the litigation versus the potential for recovering your costs in a judgment are such that no one will stand up for you. [¶] But the fact that expert witnesses cost money, that is no surprise to anybody. People don’t work for free.

“PLAINTIFF ORTIZ: No, I totally understand that.

“THE COURT: But, again, you are not responding to why you haven’t complied with the court rules and provided me with a case management conference report. It is right on the paperwork. It tells you what to do and you haven’t done any of it.

“PLAINTIFF ORTIZ: Can I do it orally?

“THE COURT: No. I wouldn’t let a lawyer do it orally. Here we are, ten days from trial, and you haven’t complied with the most basic requirements. And that is the trial management report.

“PLAINTIFF ORTIZ: I haven’t been feeling well, your Honor.

“THE COURT: Okay. So your excuse is you just haven’t been feeling well and you don’t have the money. [¶] Let me just be blunt. How do you expect to prove your case when you don’t have expert witnesses?

“PLAINTIFF ORTIZ: That is exactly my point. How?

“THE COURT: You can’t.

“PLAINTIFF ORTIZ: And if I go up to trial pretty much my word is not going to stand alone.—

“THE COURT: Well, here is the problem, and you can correct me if I am wrong, it’s almost at trial so you should know what you have to prove, but to prove a case like this you need expert witnesses. And if you don’t have expert witnesses, you simply can’t prove it.

“PLAINTIFF ORTIZ: That is one thing and then that—

“THE COURT: Do you want me to dismiss the case?

“PLAINTIFF ORTIZ: No, no, your Honor. Please don’t.

“THE COURT: Well, how can I possibly have a trial in ten days when you are telling me you don’t have witnesses who can prove your case?

“PLAINTIFF ORTIZ: That doesn’t mean I can’t have—

“THE COURT: Yes, it does mean that. I am not going to call in 60 jurors to give up a day of their life and their business and everything else in a situation where I know you can’t prove your case because you have just told me you don’t have the money to hire experts.

“PLAINTIFF ORTIZ: But there is something. I spoke with this attorney named Christopher Dolan and I am going to meet with him. There is a possibility still for me.

“THE COURT: Well, the only way we can do that is if the other guy agrees to some kind of a continuance. [¶] Let’s hear from the other side. Counsel?

“[DEFENSE COUNSEL]: Your Honor, I think you know we have heard about meetings with attorneys for a long time. Your Honor set this trial date I believe a year ago so this isn’t—this is the first I have heard of a desire for a trial continuance or anything [sic] to that matter. [¶] This case was filed in 2012. It needs to be resolved one way or the other.

“PLAINTIFF ORTIZ: Yes, your Honor—

“THE COURT: Here is the problem, ma’am. You received the same paperwork that everybody else receives and—

“PLAINTIFF ORTIZ: What paperwork?

“THE COURT: It lists 1 through 13, what you are supposed to do for [a] trial management conference report.

“PLAINTIFF ORTIZ: But I wasn’t served properly, your Honor.

“THE COURT: I don’t know anything about not being served properly. Served with what properly?

“PLAINTIFF ORTIZ: I don’t know, the last documents you are referring to.

“THE COURT: Well, okay. The law allows me to sanction people and lawyers and parties who don’t comply with the Rules of Court. And local Rules of Court require at the trial management conference that you submit 5 days prior to that a trial management conference report. [¶] . . . ‘Each party must complete, file and serve a copy of this report on all other parties at least 5 court days before the date set for trial management conference.’ This is in bold print. ‘Failure to timely file or serve this report may result in sanctions.’

“PLAINTIFF ORTIZ: I object to that because I said I wasn’t properly served, your Honor.

“THE COURT: Okay. Well, I am going to sanction you, ma’am. I am going to terminate this litigation.

“PLAINTIFF ORTIZ: Please don’t, your Honor. I object to that.

“THE COURT: I understand today that you are not prepared. You can’t be prepared. They are objecting to the continuance. Your request for [a] continuance is denied.

“PLAINTIFF ORTIZ: Can I object for the record?

“THE COURT: Yes, it’s on the record. But the case is dismissed.

“PLAINTIFF ORTIZ: Like I said—can I finish my argument, please?

“THE COURT: Sure. You go ahead.

“PLAINTIFF ORTIZ: Yes, to me this is like—this case means a lot to me, your Honor. By . . . dismissing it that is going to bring a lot of damages to my life and to my family’s life. [¶] I am asking for a continuance based on the fact that I don’t have the money right now. It doesn’t mean I can’t come forward with it. I will try to see how. To get my witnesses on trial without them and my testimony alone at court, that’s going to be pretty much something called hearsay. And I am not going to be able to prove any of my damages, injuries, which I have a number of documents proving that. [¶] The only situation here is all my doctors, it is not like there is one, there is several doctors, my pain management, my neurologist, my physical therapist, my orthopedic, I even have a document here in writing where he is stating that my injuries are a direct result of that [incident], your Honor. [¶] I just need a last breath of hope from you, please. [¶] Not only that, I am still stuck with bills that I have to pay. And again, I want to have the last opportunity to put my case to trial. I want to be heard, your Honor.

“THE COURT: Okay. Anything else, ma’am?

“PLAINTIFF ORTIZ: Yes.

“THE COURT: You want to tell me something else?

“PLAINTIFF ORTIZ: Yes.

“THE COURT: Go ahead.

“PLAINTIFF ORTIZ: This other attorney early in September, he told me ‘Come with the document that’s pretty much indicating your injuries, orthopedic injuries, and I will give you’—I asked him, ‘Okay. So if I bring that—you saw my papers. So if I bring that what difference is that going to make? I don’t want to waste your time or my time.’ [¶] And he told me ‘I will take your case.’ And I told him ‘Would you give me your word?’ And he said yes. So I left, you know, hoping that that was the case. [¶] So I came back to him and I have his name, his business care, and he said, you know—I said ‘Okay. You remember me? I am here with my paperwork.’ [¶] And he said ‘Remind me of your case.’ [¶] I said remember, this, this, and that, and explained the circumstances of the case. And he told me—and I told him—I told him ‘Remember, you said you would take my case.’ [¶] And he said ‘I go back on my word. I am not taking your case.’ [¶] I am like ‘What? You told me one thing. How is it that you can go back?’ [¶] Really, where is the institution of ethics of attorneys? They just all do that? [¶] He didn’t take my case. I walked out of there with still some hope. Because to me justice is not giving up. [¶] And that is what I have not done since day one, your Honor.” (Italics added.)

She then began an impassioned, emotional plea until the court interrupted, telling her, “I am going to go ahead and explain now why I am going to terminate this litigation in detail.” The court then recited the procedural history of the case, and concluded: “And here we are almost four years later, over four years later, from when you started having problems with the case. I am under an obligation to resolve these cases. And you still don’t have the ability to proceed. You don’t have expert witnesses by your own admission but—don’t interrupt me, don’t interrupt me. [¶] And so therefore you cannot prove your case and so for failing to comply, and you failed to comply with the Court’s rules as relates to trial management conference reports, I am going to sanction you. And the sanction, given the totality of the circumstances, is the litigation is now at an end. The case is dismissed.” The court clarified that the dismissal was with prejudice and directed defense counsel to prepare a written order.

After the hearing, but before entry of an order dismissing the case, Ortiz-Fernandez filed numerous pleadings urging the court to change its ruling and revealing additional facts under penalty of perjury. In a written “objection” supported by a sworn declaration, she elaborated on her claimed good cause for having failed to file the trial management conference report and, citing extensive legal authority, asked the court to impose a less harsh sanction than dismissal. In a motion for “reconsideration” supported by another sworn declaration, noticed for a hearing in early December, she asked for similar relief, invoking Code of Civil Procedure section 1008, the court’s inherent authority to reconsider its own rulings, and the “excusable neglect” prong of Code of Civil Procedure section 473, subdivision (b). Her motion asked for a continuance of the trial management conference and another trial date. It also disclosed that two attorneys had declined her case after the court had ordered it dismissed. In her declaration supporting the motion, she said she had acted in good faith and had tried to learn as much as she could but “wasn’t fully aware” of the trial management conference statement requirement for which the court had sanctioned her.

Her declaration also provided additional details and updated information about her expert witnesses. She said that, for example, at the time of the September 29 hearing, one of her experts was charging $3,000 for a one-day court appearance and another more than $4,000. “As also stated in open court, I needed to have a little more time to come up with the money to pay my experts” and “was undergoing possible negotiations” with some of her experts. But, according to her declaration, after that hearing, six of her witnesses confirmed for her that they would be available for trial. She said that three of her physical therapists “would be available for any future court date if necessary and would only charge me travel expenses”; her rheumatology expert agreed to waive the $3,000 fee and appear in court if required to do so; another physical therapist was “willing to . . . appear in court upon need,” and another provider from Kaiser Permanente indicated the same thing. In addition, her “key” expert witness, a doctor (Santi Rao) who had prepared a lengthy report concluding with the opinion that her injuries were attributed to the accident, had communicated that he would not be available for the scheduled October 11, 2016 trial date due to other commitments (surgeries and other court appearances) but may be available for a future court date. “With the above new information,” she wrote, “the medical experts referenced are willing to support this legal action with their expertise if a new trial date is set, unless otherwise indicated.” (Italics added.)

Thereafter, on October 24, 2016, 13 days after she filed the motion and without ruling on it, the court entered a written order dismissing the case “sua sponte” with prejudice pursuant to Code of Civil Procedure section 575.2, “on the grounds set forth on the record” at the prior hearing. The court found there was no good cause for Ortiz-Fernandez’s failure to submit a trial management conference report pursuant to its local rules.

The record does not contain any notice of entry of this order, and Ortiz-Fernandez thereafter appealed it within 180 days, on April 20, 2017, making this appeal timely. (See Cal. Rules of Court, rule 8.104, subds. (a)(1) & (c)(2).)

DISCUSSION

Although Ortiz-Fernandez’s opening brief is not a model of clarity, we understand her quite clearly to challenge the propriety of the order dismissing her case. In addition, her reply brief brings her arguments into sharper focus where she contends, among other things, that dismissing her case was too harsh a sanction under the circumstances and therefore was an abuse of discretion. Respondent La Clinica contends that dismissal was appropriate under Vernon v. Great Western Bank (1996) 51 Cal.App.4th 1012, 1007 (Vernon).

We agree with Ortiz-Fernandez. The trial court abused its discretion when it dismissed the case with prejudice as a sanction for her violation of the trial court’s local rules’ requirement that she file a trial case management report prior to the trial management conference.

The most recent opinion to address the propriety of sanctions imposed for local rules violations (decided after the respondent’s brief was filed), while not precisely on all fours, bears a striking similarity to this one. In re Harley C. (2019) 37 Cal.App.5th 494 (Harley C.) held that a trial court had gone too far, and erred, by punishing a party who had failed to file a joint pretrial statement that was required by the court’s local rules with the ultimate sanction of excluding all of that party’s evidence at the dispositive, contested hearing. (Id. at pp. 510–511.) Harley C. explained its rationale this way, quoting at length from our Supreme Court:

“The sanction imposed here was disproportionate to the conduct it punished. ‘Although authorized to impose sanctions for violation of local rules (Code Civ. Proc., § 575.2, subd. (a)), courts ordinarily should avoid treating a curable violation of local procedural rules as the basis for crippling a litigant’s ability to present his or her case. As the court declared in Kalivas [v. Barry Controls Corp. (1996)] 49 Cal.App.4th 1152, in the absence of a demonstrated history of litigation abuse, “[a]n order based upon a curable procedural defect [including failure to file a statement required by local rule], which effectively results in a judgment against a party, is an abuse of discretion.” (Id. at p. 1161.)’ (Elkins [v. Superior Court (2007)] 41 Cal.4th [1337,] 1364 [Elkins].) The California Supreme Court found in Elkins that the ‘trial court abused its discretion in sanctioning petitioner by excluding the bulk of his evidence simply because he failed, prior to trial, to file a declaration establishing the admissibility of his trial evidence. The sanction was disproportionate and inconsistent with the policy favoring determination of cases on their merits.’ (Id. at pp. 1363-1364.) The Court concluded, ‘In applying the local rule and order mechanically to exclude nearly all of petitioner’s evidence—and proceeding, in the words of the trial court, “quasi by default”—the trial court improperly impaired petitioner’s ability to present his case, thereby prejudicing him and requiring reversal of the judgment.’ (Id. at p. 1365, fn. omitted.)

“The same is true here, where the juvenile court excluded all of Mother’s evidence because her counsel had not filed a joint pretrial statement. The court had options to punish counsel for her error short of denying Mother the ability to present any witnesses at the dispositional hearing. If the joint trial statement was necessary, the court could have resolved the issue by briefly continuing the hearing, permitting Mother to file a joint trial statement, and, if appropriate, scheduling a new hearing directing Mother’s counsel to show cause why sanctions should not be imposed against her. As in Elkins, supra, 41 Cal.4th 1337, the court’s application of its local rule improperly impaired Mother’s ability to present her case, thereby prejudicing her and requiring reversal of the judgment. [¶] ‘Court procedures, however well-intentioned, should not be imposed at the expense of the parties’ basic rights to have their matters fairly adjudicated . . . .’ ” (Harley C., supra, 37 Cal.App.5th at pp. 510–511.)

And the same is true here too. No matter how well-intentioned the trial court was in trying to manage its docket, less drastic and prejudicial sanctions were available short of dismissing Ortiz-Fernandez’s case. She herself offered at the hearing to present her pretrial management information orally, and yet the court refused to allow this. As in Harley C., the court at a minimum might have briefly continued the hearing to allow her to file something in writing and, if appropriate, set a new hearing to consider imposing sanctions against her. But dismissing her case—without even providing the required notice (see footnote 3, ante)—was disproportionate to the infraction. “ ‘ “Rigid rule following is not always consistent with a court’s function to see that justice is done. Cognizant of the strong policy favoring the disposition of cases on their merits [citations], judges usually consider whether to exercise their discretion in applying local court rules and frequently consider documents which have been untimely filed.” ’ ” (Elkins, supra, 41 Cal.4th at p. 1364.) Ortiz-Fernandez did not concede at the hearing that she would be unable to present any expert witnesses at trial, she indicated she was merely in the process of trying to negotiate with them. What is more, by the time the court entered a dismissal Ortiz-Fernandez had made clear that she would have witnesses to present at trial. Imposing a sanction under local rules “in a mechanical fashion without considering alternative measures or a lesser sanction” improperly eviscerated her ability to present her case, which is prejudicial and mandates reversal. (Id. at p. 1365; see also, e.g., Link v. Cater (1998) 60 Cal.App.4th 1315, 1326 [abuse of discretion to dismiss case when plaintiff, who was abroad receiving medical treatment, failed to appear at trial after several prior continuances; “[b]ecause plaintiff had no history of noncompliance and had been prosecuting his case diligently, there is no reason to believe a less severe sanction than termination, such as the imposition of a monetary sanction, would not be effective”]; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795 [abuse of discretion to strike plaintiff’s pleadings and impose terminating sanctions for failure to appear at status conference].)

Vernon v. Great Western Bank, supra, 51 Cal.App.4th 1007, relied on by respondent, is not on point. That decision affirmed a trial court’s dismissal of an employment discrimination case for delay in prosecution pursuant to Code of Civil Procedure section 483.410 when the plaintiff failed to appear on the day of trial. (See Vernon, at pp. 1009–1013.) It does not involve a sanction imposed under Code of Civil Procedure section 575.2 for a local rule violation, which is the issue here.

Nor could we affirm the dismissal of this lawsuit even if delay in prosecution had been the trial court’s stated rationale, as it was in Vernon. To start with, discretionary dismissals on the court’s own motion for delay in prosecution must be properly noticed and set for hearing; unlike in Vernon (see Vernon, supra, 51 Cal.App.5th at p. 1010), this one wasn’t. (See Sakhai v. Zipora (2009) 180 Cal.App.4th 593, 598; Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 213–214 (Franklin); Cal. Rules of Court, rule 3.1340(b) [“If the court intends to dismiss an action on its own motion, the clerk must set a hearing on the dismissal and send notice to all parties at least 20 days before the hearing date”].) Second, “the Legislature has made it clear, and Supreme Court case law has recognized” that such dismissals must be without prejudice (Franklin, at p. 214); thus, even had Ortiz-Fernandez been given proper notice, the trial court would have had no authority to enter a dismissal “with prejudice” for delay in prosecution. Third and finally, the facts of Vernon, which we refrain from restating, are quite different from what went on here. “[T]he delay-reduction rules and the policy of expeditious processing of civil cases do not override, in all situations, the trial court’s obligation to hear cases on the merits. [Citations.] Preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective.” (Wantuch v. Davis, supra, 32 Cal.App.4th at p. 795, italics added.) In Vernon, it was obvious that a less severe sanction would not suffice when the plaintiff’s counsel failed to appear on the day of (continued) trial and then offered yet more excuses as to why the case could not go forward as scheduled. The appellate court said that it “agree[d] with the trial court that this record reflects a pattern and history of delay that ‘hits you in the face when you go through it.’ ” (Vernon, at p. 1011, italics added.) Here, by contrast, requests for continuances were duly granted (not denied, as in Vernon), usually without opposition, presumably because they were warranted. And, unlike in Vernon, Ortiz-Fernandez never failed to appear at any court hearing, much less at trial. Nor is there any indication in this record that the court doubted her credibility or believed she was fabricating excuses, as was true in Vernon. Simply put, La Clinica cites no authority permitting a court to dismiss a case sua sponte for delay in prosecution when the plaintiff merely said at a pretrial conference she was having some trouble paying for her experts to attend trial, and then a short time later updates the court in writing that she has worked things out and that her witnesses would be available.

We are not insensitive to the pressures on our trial courts to manage their dockets efficiently. But what has been said many times before, many ways, bears repeating: “That a procedure is efficient and moves cases through the system is admirable, but even more important is for the courts to provide fair and accessible justice.” (Elkins, supra, 41 Cal.4th at p. 1366.)

DISPOSITION

The judgment of dismissal is vacated and the matter is remanded for further proceedings consistent with this opinion.

STEWART, J.

We concur.

KLINE, P.J.

MILLER, J.

Ortiz-Fernandez v. La Clinica (A151141)

Filed 10/29/19 Talley v. Lizardo CA1/2

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

FIRST APPELLATE DISTRICT

DIVISION TWO

COURTNEY TERRELL TALLEY,

Cross-complainant and Appellant,

v.

RANETTE LIZARDO,

Cross-defendant and Respondent.

A155221

(Alameda County

Super. Ct. No. RG17852106)

Cross-complainant and appellant Courtney Terrell Talley appeals after the trial court granted the motion for summary judgment filed by cross-defendant and respondent Ranette Lizardo in this action arising from two physical altercations between Talley and a third person, Alfred Hardwick. On appeal, Talley contends the court erred when it granted Lizardo’s summary judgment motion because it improperly ignored or weighed the evidence and because there are triable issues of material fact regarding whether Lizardo was negligent during Hardwick’s alleged battery against Talley, whether Talley suffered serious or severe emotional distress as a result of Lizardo’s negligence, and whether Lizardo aided and abetted Hardwick in an assault and/or battery on Talley. He also asserts that the court should not have considered Lizardo’s motion because the parties did not first stipulate to the court hearing it. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The undisputed evidence submitted in the trial court includes the following. Lizardo and Talley were married in 2014. On April 1, 2016, Talley went to Hardwick’s home in Vacaville after receiving a text message stating that Lizardo would be at that address. Talley parked near the house and, after seeing Lizardo’s BMW automobile parked in the driveway, went to the front door and rang the doorbell. When no one answered the door, he went back to his car and waited there. Eventually, Lizardo and Hardwick exited Hardwick’s house and went to the BMW. Talley approached, bear-hugged Hardwick from behind, and threw him onto the ground. Hardwick picked up a rock and approached Talley.

Lizardo got in between the two men, grabbed Talley’s hand, and pleaded, “let’s go.” Talley interpreted this to mean, “ ‘let’s get out of here.’ ” She continued to say “let’s go” to him throughout the incident. Talley and Hardwick backed away from each other, and then ended up in the street, while Lizardo remained in the driveway, “screaming and yelling” at them to “[s]top it.” She did not provoke Hardwick to fight with Talley.

Hardwick hit Talley in the mouth after which Talley said, “I have something for your ass.” Hardwick then started running toward his house, and Lizardo, who had come into the street after Hardwick hit Talley, said, “ ‘He’s got a gun.’ ” Talley understood this to mean that she believed that Hardwick was going to retrieve a gun and was warning Talley about it. Talley instructed Lizardo to get into her car and said, “let’s go.” He then got into his car, and they both drove home. Lizardo moved out of the home she shared with Talley about one month after this incident.

Approximately 11 months later, on March 4, 2017, another incident took place at a nightclub in San Jose during a birthday celebration for a man named Andrew. Talley, who learned about the party on Instagram, arrived at the nightclub and greeted Andrew. Talley then saw Hardwick and Lizardo on the dance floor. He approached Lizardo, but never made contact with her because she walked out a door onto a back patio. Instead, he came into contact with Hardwick. He put his right hand on Hardwick’s neck after which Hardwick swung and hit Talley in the face and arm with his left hand. Both men fell to the ground. Talley then got up and walked to the exit with Andrew. Talley never spoke with Lizardo that evening and she did not provoke or encourage either Hardwick or Talley to fight.

On March 8, 2017, Hardwick filed a complaint for damages against Talley, alleging personal injuries based on three causes of action for intentional tort, which resulted in wage loss and general damages.

On January 19, 2018, Talley filed a first amended cross-complaint (the complaint) against Hardwick and Lizardo, with causes of action against Lizardo for negligence (first cause of action) and aiding and abetting (fourth cause of action). In support of the negligence cause of action, Talley alleged, as to Lizardo, that she “was negligent in exercising the duty of care . . . by placing [Talley] in imminent fear of physical harm by the threat of use of lethal force with respect to the incident at the Vacaville address when [Lizardo] yells ‘he’s got a gun,’ ” and that this negligence “was a substantial factor in causing injuries suffered by [Talley].” In support of the aiding and abetting cause of action, Talley alleged that Lizardo “aided and abetted [Hardwick] in committing the intentional infliction of emotional distress because [she] knew that intentional infliction of emotional distress [was] being committed by . . . Hardwick against [Talley],” that she “gave substantial assistance or encouragement to . . . Hardwick,” and that her “conduct was a substantial factor in causing harm to [Talley].”

On April 10, 2018, Lizardo filed a motion for summary judgment or, alternatively, summary adjudication of issues.

On June 28, 2018, following a hearing, the court entered an order granting Lizardo’s motion for summary judgment. Regarding the first cause of action for negligence, based on Lizardo’s conduct during the April 1, 2016 incident, the court summarized the evidence, including that “Talley initiated a physical altercation with Hardwick” and that “[t]he testimony from all witnesses indicates that Hardwick and Talley fought, and that Lizardo implored them to stop fighting. [Talley] testified that Hardwick struck him in the mouth and caused him to start bleeding. [Talley] then told Hardwick that he was going to ‘whoop’ Hardwick’s ass and Hardwick went inside his house. At this point, Lizardo told Talley that, ‘He’s got a gun!’ ” Based on this undisputed evidence, the court determined “that no reasonable jury could find that [Lizardo] is liable to [Talley] for negligently causing him to suffer severe emotional distress by uttering the words, ‘He’s got a gun!’ [Citations.] In addition, [Talley] has not presented sufficient admissible evidence to support a reasonable inference that he suffered serious or severe emotional distress as a result of [Lizardo’s] uttering of the words, ‘He’s got a gun!’ at the scene of his physical confrontation with Hardwick. [Citation.] [Talley] testified that Lizardo repeatedly implored him and Hardwick to stop fighting by yelling at them from the driveway, and that after Hardwick hit him in the mouth, she said, ‘Let’s go!’ [Talley] did not see Hardwick emerge from his house after he and Lizardo got in their cars to drive away. [Talley] did not know whether Hardwick actually owned a gun.”

In addition, regarding the alleged based on Lizardo’s conduct during the March 4, 2017 incident, the court found that Talley “did not present sufficient admissible evidence to support a reasonable inference that . . . Lizardo breached her duty of care to him . . . . [Talley] testified that Lizardo was not in the vicinity when he and Hardwick started fighting. [Talley] testified that he wanted to talk to Lizardo, but she had already walked out the door to the patio behind the bar when the confrontation occurred. . . .”

With respect to the fourth cause of action for aiding and abetting, the court determined that the evidence presented by Talley was “insufficient to support an inference by a hypothetical reasonable jury that [Lizardo] intentionally provided substantial assistance to . . . Hardwick in his two physical altercations with [Talley]. [Citation.] [Talley] testified that . . . Lizardo was not in the vicinity during the fight that he had with . . . Hardwick on March 4, 2017. [Talley] testified that Hardwick cut him off when he was trying to follow Lizardo to the patio behind the bar, at which time he put his right hand on Hardwick’s neck and Hardwick took a swing at him with his left hand. [Talley] testified unequivocally that Lizardo had already walked out the back door when the fight commenced. In addition, [Talley] did not identify any admissible evidence in his opposition to support a reasonable inference that Lizardo intended to provide substantial assistance to Hardwick during the first altercation . . . on April 1, 2016.”

On July 5, 2018, the notice of entry of order granting summary judgment was filed.

On August 29, 2018, Talley filed a notice of appeal.

DISCUSSION

I. Summary Judgment Rules and Standard of Review

A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment has the initial burden of showing either that one or more elements of the cause of action cannot be established or that there is a complete defense. (§ 437c, subd. (p)(2).) If that initial burden is met, the burden shifts to the plaintiff to show the existence of a triable issue of fact with respect to that cause of action or defense. (Ibid; see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-853 (Aguilar).) “ ‘The plaintiff . . . may not rely upon the mere allegations or denials’ of his ‘pleadings to show that a triable issue of material fact exists but, instead,’ must ‘set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.’ ([§] 437c, subd. ([p])(2).)” (Aguilar, at p. 849.)

“ ‘ “[W]e take the facts from the record that was before the trial court when it ruled on that motion,” ’ and ‘ “ ‘ “review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.” ’ ” ’ [Citations.] In addition, we ‘ “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.)

II. Negligence Cause of Action

Talley contends the court erred in granting summary adjudication of the negligence cause of action because triable issues of material fact exist as to whether Lizardo breached her duty of care to Talley during the April 1, 2016 incident at Hardwick’s home and whether Talley suffered serious or severe emotional distress as a result of her negligence on that date. He also asserts that the court improperly weighed the evidence, rather than simply determining whether any triable issues of material fact existed.

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages. [Citation.]” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892–893.)

First, we reject Talley’s claim that there is a triable issue of material fact as to whether Lizardo breached her duty of care when she purportedly distracted him during the incident at Hardwick’s home, resulting in his being punched by Hardwick, and when she shouted, “He’s got a gun.” No reasonable jury could find that the undisputed facts regarding what took place at Hardwick’s home, i.e., Lizardo shouting for the men to stop fighting during the incident, trying to get Talley to leave the scene with her, and warning Talley that Hardwick had a gun when Hardwick ran into his house following Talley’s threat, provide evidence that Lizardo breached her duty of care.

Second, because there was no triable issue of material fact regarding whether Lizardo was negligent during the April 1, 2016 incident, Talley clearly cannot show that she is responsible for damages for the serious or severe emotional distress he allegedly suffered as a result of her negligence. Moreover, to prove severe emotional distress, a plaintiff must show “ ‘ “ ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’ ” ’ [Citations.]” (Hughes v. Pair, supra, 46 Cal.4th at pp. 1050–1051; see also Wong v. Jing (2010) 189 Cal.App.4th 1354, 1377–1378 [to show negligent infliction of emotional distress, a plaintiff must prove “serious emotional distress,” which “is functionally the same as the articulation of ‘severe emotional distress’ ”].) Here, the minimal evidence presented on this point shows that Talley had met with a therapist to discuss his divorce and other issues, including the incidents involving Lizardo and Hardwick. In his deposition, he merely affirmed that he had “suffered emotional distress” during the March 4, 2017 San Jose incident, and the April 1, 2016 Vacaville incident without any description of what the supposed emotional distress involved. Talley’s bare statement that he suffered emotional distress plainly does not demonstrate the existence of a triable issue of fact regarding whether he suffered serious or severe emotional distress as a result of Lizardo’s purported negligence. (See ibid.)

In conclusion, the trial court did not improperly ignore or weigh the evidence. Rather, it found, as we do, that Talley failed to set forth evidence showing that a triable issue of material fact exists as to the cause of action for negligence. (See Aguilar, supra, 25 Cal.4th at p. 849; § 437c, subd. (p)(2).) The court properly granted summary adjudication in favor of Lizardo on the first cause of action for negligence.

III. Aiding and Abetting Cause of Action

Talley contends the court erred in granting summary adjudication of the aiding and abetting cause of action because a triable issue of material fact exists as to whether Lizardo aided and abetted Hardwick in committing the intentional tort of assault and/or battery on Talley, in both the April 1, 2016 and the March 4, 2017 incidents.

CACI No. 3610 defines the tort of aiding and abetting as follows.

“[Name of plaintiff] claims that [he/she] was harmed by [name of actor]’s [insert tort theory, e.g., assault and battery] and that [name of defendant] is responsible for the harm because [he/she] aided and abetted [name of actor] in committing the [e.g., assault and battery].

“If you find that [name of actor] committed [a/an] [e.g., assault and battery] that harmed [name of plaintiff], then you must determine whether [name of defendant] is also responsible for the harm. [Name of defendant] is responsible as an aider and abetter if [name of plaintiff] proves all of the following:

“1. That [name of defendant] knew that [a/an] [e.g., assault and battery] was [being/going to be] committed by [name of actor] against [name of plaintiff];

“2. That [name of defendant] gave substantial assistance or encouragement to [name of actor]; and

“3. That [name of defendant]’s conduct was a substantial factor in causing harm to [name of plaintiff].

“Mere knowledge that [a/an] [e.g., assault and battery] was [being/going to be] committed and the failure to prevent it do not constitute aiding and abetting.”

“The fact that [CACI No. 3610] does not use the word ‘intent’ is not determinative. ‘California courts have long held that liability for aiding and abetting depends on proof the defendant had actual knowledge of the specific primary wrong the defendant substantially assisted in. . . . “The words ‘aid and abet’ as thus used have a well understood meaning, and may fairly be construed to imply an intentional participation with knowledge of the object to be attained.” [Citation.]’ [Citation.] A defendant who acts with actual knowledge of the intentional wrong to be committed and provides substantial assistance to the primary wrongdoer is not an accidental participant in the enterprise.” (Upasani v. State Farm General Ins. Co. (2014) 227 Cal.App.4th 509, 519.)

Here, it is undisputed that Lizardo did nothing to encourage or provoke Hardwick to commit a battery against Talley during the April 1, 2016 altercation, and there is no evidence in the record from which it could be inferred that she provided such assistance or encouragement to Hardwick “with knowledge of the object to be attained.” (Upasani v. State Farm General Insurance Co., supra, 227 Cal.App.4th at p. 519.) The undisputed evidence shows, to the contrary, that Lizardo told the men to stop fighting, attempted to get Talley to leave with her, and warned Talley about Hardwick’s possession of a gun, with absolutely no evidence that she “was other than an accidental participant in the enterprise.” (Ibid.)

As with the negligence cause of action, the trial court did not improperly ignore or weigh the evidence, and we find that Talley has failed to set forth evidence showing that a triable issue of material fact exists as to the cause of action for aiding and abetting. (See Aguilar, supra, 25 Cal.4th at p. 849; § 437c, subd. (p)(2).) Summary adjudication was properly granted in favor of Lizardo on the fourth cause of action for aiding and abetting.

IV. The Need for a Stipulation Pursuant to Section 473c, Subdivision (t)

Talley’s final claim in his opening brief reads as follows: “Summary adjudication must dispense with an entire cause of action; otherwise it must be denied, unless stipulated between the parties pursuant to . . . section 437c(f) [sic]. Presently there has been no stipulation between the parties pursuant to [section] 437c(t). [Citation.]” Talley cites to his attorney’s June 12, 2018 declaration in opposition to Lizardo’s summary judgment motion, in which his attorney stated, “Neither Courtney Talley nor his attorney . . . have stipulated to summary adjudication of issues pursuant to . . . section 437c(t).”

Subdivision (t) of section 437c provides in relevant part: “Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision.

“(1)(A) Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the following:

“(i) A joint stipulation stating the issue or issues to be adjudicated.

“(ii) A declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.”

In her motion for summary judgment, Lizardo did not attempt to dispose of a legal issue or claim for damages that did not completely dispose of a cause of action. (See § 437c, subd. (t).) Rather, the motion successfully sought to dispose of all causes of action alleged against Lizardo in Talley’s complaint. Hence, the joint stipulation requirement of section 437c, subdivision (t)(1)(A)(i) is inapplicable here.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to cross-defendant and respondent Ranette Lizardo.

_________________________

Kline, P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

Talley v. Lizardo (A155221)

Lawzilla Additional Information: The court’s 9/24/19 order refers to attorney James Vititoe as being respondent’s lawyer.

Case Number: 19STCV27898
NATIONWIDE MUTUAL INSURANCE COMPANY VS ADAM FISH
Filing Courthouse: Spring Street Courthouse

Filing Date: 08/09/2019
Case Type: Personal Injury/Property Damage/Wrongful Death – Uninsured Motorist (General Jurisdiction)
Status: Pending

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

01/22/2021 at 10:00 AM in Department 2 at 312 North Spring Street, Los Angeles, CA 90012
Final Status Conference

02/05/2021 at 08:30 AM in Department 2 at 312 North Spring Street, Los Angeles, CA 90012
Non-Jury Trial

08/05/2022 at 08:30 AM in Department 2 at 312 North Spring Street, Los Angeles, CA 90012
Order to Show Cause Re: Dismissal

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

FISH ADAM – Respondent

HOLTZ CRAIG ALAN ESQ. – Attorney for Petitioner

NATIONWIDE MUTUAL INSURANCE COMPANY – Petitioner

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

Documents Filed (Filing dates listed in descending order)

09/24/2019 Minute Order ( (- Hearing on Petitoner’s Motion to Compel Discovery (not “Fur…))
Filed by Clerk

09/06/2019 Notice of Motion and Motion to Compel Responses to Special Interrogatories, Set Two and Request for Monetary Sanctions
Filed by Nationwide Mutual Insurance Company (Petitioner)

08/22/2019 Notice of Motion and Motion to Compel Responses to Demand of Production of Documents, Set Two and Request for Monetary Sanctions
Filed by Nationwide Mutual Insurance Company (Petitioner)

08/16/2019 Certificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Dates)
Filed by Clerk

08/16/2019 PI General Order
Filed by Clerk

08/09/2019 Notice of Case Assignment – Unlimited Civil Case
Filed by Clerk

08/09/2019 Civil Case Cover Sheet
Filed by Nationwide Mutual Insurance Company (Petitioner)

08/09/2019 Petition (Petition for Order Setting Hearing Dates for Motions to Compel Discovery Responses)
Filed by Nationwide Mutual Insurance Company (Petitioner)

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

Proceedings Held (Proceeding dates listed in descending order)

09/24/2019 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 Request for Monetary Sanctions) – Held – Motion Granted

09/24/2019 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; Request for Monetary 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)

09/24/2019 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; Request for Monetary Sanctions) – Held – Motion Granted

09/24/2019 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 Request for Monetary Sanctions) – Held – Motion Granted

09/24/2019 Minute Order ( (- Hearing on Petitoner’s Motion to Compel Discovery (not “Fur…))
Filed by Clerk

09/06/2019 Notice of Motion and Motion to Compel Responses to Special Interrogatories, Set Two and Request for Monetary Sanctions
Filed by Nationwide Mutual Insurance Company (Petitioner)

08/22/2019 Notice of Motion and Motion to Compel Responses to Demand of Production of Documents, Set Two and Request for Monetary Sanctions
Filed by Nationwide Mutual Insurance Company (Petitioner)

08/16/2019 PI General Order
Filed by Clerk

08/16/2019 Certificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Dates)
Filed by Clerk

08/09/2019 Civil Case Cover Sheet
Filed by Nationwide Mutual Insurance Company (Petitioner)

08/09/2019 Petition (Petition for Order Setting Hearing Dates for Motions to Compel Discovery Responses)
Filed by Nationwide Mutual Insurance Company (Petitioner)

08/09/2019 Notice of Case Assignment – Unlimited Civil Case
Filed by Clerk

Case Number: BC709526 Hearing Date: October 31, 2019 Dept: 2

Akamtalu v. Los Angeles County Metropolitan Transportation Authority

Defendant’s Two Motions to Compel Plaintiff to Respond to Form Interrogatories, Set One, and Demand to Produce Certain Documents and Items, Set One; Request for Sanctions, filed on 09/17/2019, are GRANTED.

Defendant’s Reply brief does not dispute that Plaintiff has since served verified responses. Accordingly, an order compelling Plaintiff to respond to discovery is no longer necessary. However, the Court imposes sanctions against Plaintiff and counsel for the failure to timely respond to authorized methods of discovery, which is discovery abuse. Cal. Code Civil Procedure § 2023.010(a)(4). The amount of sanctions is set forth below.

Defendant’s Motion to Compel Plaintiff to Appear for her Deposition; Request for Sanctions, is GRANTED. Plaintiff is ordered to appear for deposition at a date and place duly noticed by Defendant within 75 miles of Plaintiff’s residence. Cal. Code Civil Procedure § 2025.250.

On July 11, 2019, Defendant’s attorneys served a deposition notice to take Plaintiff’s deposition on August 20, 2019. No written objections were served to the deposition notice. On August 19, 2019, Plaintiff’s counsel conducted the MTA attorney stating that he could not appear for the deposition and that Plaintiff would not appear. On August 20, 2019, Defendant’s counsel sent a letter requesting new dates, but Plaintiff’s counsel failed to respond. On September 17, 2019, this motion was filed.

After the motion was filed, Plaintiff’s counsel informed Defendant’s counsel that Plaintiff had moved to San Jose and would be available on various dates in San Jose. Plaintiff’s counsel also agreed to make Plaintiff available on Thanksgiving and the day after Thanksgiving, a Court holiday, which is unreasonable.

A party can move to compel a party’s deposition where the deponent fails to proceed with the examination or to produce for inspection any document described in the deposition notice. Cal. Code Civil Procedure § 2025.450. The deposition was duly noticed. The deposition was noticed for Los Angeles, but there was no objection to the location of the deposition and there has been no showing that Plaintiff did not live in Los Angeles at the time the deposition was noticed. Plaintiff does not argue that the notice was improper. Defendant attempted to meet and confer regarding dates, but Plaintiff’s counsel did not respond prior to the filing of the motion.

Thus, Defendant is entitled to an order compelling Plaintiff to appear for her deposition. Now that the Plaintiff lives in San Jose, the Court compels her to appear for a deposition at a location of Defendant’s choosing within 75 miles from Plaintiff’s current residence. The parties are ordered to meet and confer regarding the date for the deposition, but in the event agreement cannot be reached, the Plaintiff is ordered to appear for the deposition at a date of Defendant’s choosing within the next 30 days.

Defendant is entitled to an award of sanctions against Plaintiff and counsel for the failure to appear for deposition without substantial justification. Cal. Code Civil Procedure § 2025.450(g)(1).

Accordingly, the Court awards total sanctions of $1,500 for all three motions against Plaintiff Ifunanyachukwu Akametalu and counsel Samuel Ogbogu.

The Moving Party is ordered to give notice.

Case Number: 19STCV06540 Hearing Date: October 31, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

STATE FARM MUTUAL AUTOMOBILE INS. CO.,

Plaintiff(s),

vs.

LARRY WASHINGTON, JR., ET AL.,

Defendant(s).

CASE NO: 19STCV06540

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION TO SET ASIDE ADMISSIONS; IMPOSING SANCTIONS

Dept. 3

1:30 p.m.

October 31, 2019

1. Background Facts

Plaintiff, State Farm Mutual Automobile Ins. Co. filed this action against Defendant, Larry Washington, Jr. for subrogation arising out of an automobile accident between Plaintiff’s insured and Defendant.

Plaintiff filed the complaint on 2/26/19. Defendant, in pro per, filed an answer on 3/22/19. Defendant filed a substitution of attorney on 6/26/19.

2. Motion to Deem RFAs Admitted

Plaintiff propounded RFAs, set one, on Defendant on 4/22/19. On 6/05/19, Defendant filed and served a motion to deem RFAs admitted. On 7/29/19, because Defendant had not served responses to the RFAs and had not opposed the motion, the Court granted Plaintiff’s motion to deem the RFAs admitted. The Court also imposed sanctions in the amount of $460.

3. Motion to Set Aside Order Deeming RFAs Admitted

a. Relief Sought

At this time, Defendant moves to set aside the order deeming the RFAs admitted.

b. Authority Governing Motion

The motion for relief is governed by CCP §2033.300, which provides:

(a) A party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties.

(b) The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party’s action or defense on the merits.

(c) The court may impose conditions on the granting of the motion that are just, including, but not limited to, the following:

(1) An order that the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission.

(2) An order that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission.

New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 14187 makes clear that the law favors relief, and that relief must be granted unless it is clear that the mistake, inadvertence, or neglect was inexcusable as a matter of law.

c. Analysis

Defendant declares that he never received the RFAs or the motion to deem the RFAs admitted. Defense Counsel substituted into the action AFTER Plaintiff filed the motion, but Defense Counsel had already been engaged to represent Defendant PRIOR to Plaintiff filing the motion, and did not check the online system between the time of engagement and the time of formal substitution.

Plaintiff correctly notes that both of the foregoing is suspect, as the RFAs and motion were served on Defendant at the same address where he received the summons and complaint. Additionally, Defense Counsel should have checked the online system upon substituting into the action. Notably, the attorneys for each side disagree concerning whether there were attempts to communicate and check the status of the case between formal substitution and the hearing on the motion.

Regardless of the foregoing, in light of the standard governing motions to vacate admissions, and because Plaintiff rushed to serve Defendant, in pro per, with RFAs prior to Defendant engaging an attorney, the Court finds it is in the interest to set aside the order deeming the RFAs admitted. The order is extremely prejudicial to Defendant, and there is no prejudice to Plaintiff if the RFAs are set aside.

Plaintiff asks for sanctions in the amount of $400 in the event the motion is granted. The request for sanctions is granted. Defendant and his attorney of record, jointly and severally, are ordered to pay sanctions to Plaintiff, by and through its attorney of record, in the amount of $400, within twenty days. This is in addition to the previously imposed sanctions, which are NOT vacated by way of this ruling.

To the extent Defendant has not done so, Defendant is ordered to serve responses to the RFAs within ten days.

Defendant is ordered to give notice.

Filed 10/31/19 Chahal v. Bd. of Registered Nursing 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)

—-

RAJWANT KAUR CHAHAL,

Plaintiff and Appellant,

v.

BOARD OF REGISTERED NURSING,

Defendant and Respondent.

C084573

(Super. Ct. No. 34201680002379CUWMGDS)

The Board of Registered Nursing revoked plaintiff Rajwant Kaur Chahal’s license to practice as a registered nurse. It found plaintiff had committed gross negligence, incompetence, and professional misconduct.

Plaintiff petitioned the superior court for writ of administrative mandate, and now appeals the denial of her petition.

She contends the Board did not inform her of the grounds of her discipline, its decision is not supported by substantial evidence, and it wrongfully denied her petition for reconsideration. She also claims the trial court exceeded its authority by relying on grounds for discipline that had not been alleged by the Board to uphold the Board’s decision.

We affirm the judgment.

FACTS AND PROCEEDINGS

The accusation against plaintiff was based on two incidents of malfeasance. The first involved her treatment of a patient who fell and was rendered unconscious for a time, and the second involved her failure to administer scheduled medications to three patients. We summarize the evidence that was presented at the administrative hearing.

First Incident

Shokoufeh Azima worked as an intake nurse at the Valley Medical Center’s clinic in the Santa Clara County main jail. The intake nurses screen patients brought to the jail by arresting officers to determine whether they are medically stable for custody. If a patient is not stable, the intake nurse calls a “Code 3,” stabilizes the patient, and arranges to have the patient transported to a hospital. A Code 3 is a medical emergency, like a Code Blue in a hospital.

No physicians work with the intake nurses. A physician is on call during regular hours. During off hours, the nurses rely on their clinical judgment to exercise their discretion. They follow standardized procedures, which are guidelines developed by the medical director to aid the nurse in making their decisions.

On September 9, 2012, Azima was working as the intake nurse. Peggy London and plaintiff, both registered nurses, were also working in the same area of the clinic, referred to as booking. That day, Azima and London were doing intake and plaintiff was doing TB screening.

Around 10:00 p.m., an arresting officer brought a patient, J.J., to Azima. J.J. had been medically cleared at a hospital to be taken into custody after being treated for a head injury. He injured his head by hitting it against a car window. He told Azima he had no medical problems and was on no medications. However, he had been masturbating excessively and his penis was bleeding.

Azima went back to ask for a sergeant to help her take J.J. into a room where she could examine him privately. But as she got up to go back to J.J., she heard a loud sound, like a bowling ball hitting the ground, and then screams. She went to see what had happened and found J.J. lying flat on his back on the concrete floor, unconscious. His eyes were closed, and foam was coming out of his mouth. Azima asked the officers to call a Code 3.

London saw J.J. fall. He fell flat backwards. She heard a thump hit the floor, screamed for Azima to come, and ran straight to J.J. London called the code.

Video from surveillance cameras recorded the incident. J.J. fell backward with his body completely straight. He did not bend at his knees. His head and back hit the floor.

Video also showed where plaintiff was when J.J. fell. Before he fell, plaintiff walked over to a wall where officers do fingerprinting. She was at the wall with her back toward J.J. when he fell. There was no possible way plaintiff could have seen J.J. fall.

With London helping, Azima assessed J.J. He had a pulse and was breathing. She could not open his eyes to check his pupils because his eyeballs were rolled back up. He was unresponsive. Azima rubbed his sternum with her knuckles, a procedure that is painful to the patient, to arouse him. After the sternal rub, J.J. opened his eyes and started talking incoherently.

Plaintiff came over and knelt by J.J. She said the patient was okay and they could get him up to a chair. Azima disagreed. She said to plaintiff, “He’s not fine, and we’re waiting for the Code 3 ambulance to arrive.” London said, “This patient should not be moved. He hit his head. He’s not supposed to be moved.” But the officers quickly got J.J. up and into a chair. Plaintiff gave her directive to move J.J. even though J.J. was not her patient; he was Azima’s patient. The nurses worked as a team, but Azima took the leadership role because J.J. was her patient.

Plaintiff announced she was going to call the on-call physician, Dr. Nguyen. She informed Dr. Nguyen that she witnessed the fall and that the patient was fine and did not need to go to the hospital. London heard plaintiff. She went up to plaintiff and yelled loud enough for Dr. Nguyen to hear, “No . . . [t]he patient is not okay. And [plaintiff] was not present when the patient fell. And the patient had a head injury, and he needs to go out Code 3.” Then plaintiff said, “Per Dr. Nguyen, Code 3 has been cancelled.” The officers cancelled the Code 3.

London said, “Raj [plaintiff], you did not see this patient fall. You were not there.” Dr. Nguyen apparently heard London’s yelling. Plaintiff acknowledged to the doctor on the phone that she had not seen J.J. fall. Dr. Nguyen then reinstated the Code. The correctional officers were told to call the Code 3 again and send the patient out.

The cancellation and reinstatement of the Code 3 delayed J.J. receiving treatment from 30 to 45 minutes. London reported the incident immediately to management.

Marian Anderson is the nurse manager at the main jail. She investigated the incident involving J.J. At a nursing leadership inquiry meeting with Anderson on February 14, 2013, plaintiff described what happened. She said she saw J.J. start to go down and then heard his head hit the floor. Asked if she saw J.J. fall, plaintiff said she saw him going down. She assessed him, and after seeing there was no bump on his head or other signs or symptoms of a head injury, she told the other nurses she would call Dr. Nguyen. On the phone, she told Dr. Nguyen that J.J. had no numbness and was moving all his extremities. She asked the doctor if J.J. could be accepted into the booking department and be monitored. Dr. Nguyen said it was okay.

The doctor heard the other nurses protesting and asked what they were saying. After she explained, Dr. Nguyen said J.J. needed to go out. Asked by Anderson why she contacted the doctor when the other two nurses had declared a Code 3, plaintiff said she was not aware a Code 3 had been ordered. Asked why she would call the doctor when the other two nurses told her the patient should go out, plaintiff said she just wanted a second opinion. She had not asked the other nurses about calling Dr. Nguyen; she initiated the call on her own. She said her not knowing what the other nurses were deciding to do with J.J. and her interfering with them was a miscommunication.

Anderson asked plaintiff what her plan of care was for J.J. if he had been accepted at the jail. She said she would do “neuro checks.” Anderson asked what the signs and symptoms of a head injury were. Plaintiff said J.J. was confused at times and incoherent because he was a schizophrenic. Anderson said a head injury could also cause those symptoms. Plaintiff said she had looked at the electronic record and felt she had enough information to determine J.J. could be accepted.

Anderson asked plaintiff what signs and symptoms she would be looking for if J.J. had been accepted. Plaintiff was not able to give Anderson a complete picture of what she would be assessing. She again mentioned that J.J. had anxiety. Anderson asked if she was aware that a change in mentation or anxiety or confusion can be an initial sign of a head injury, and that there is no way to tell. Plaintiff said she had palpated J.J.’s head and did not feel a bump, so she believed he did not have a head injury.

Anderson testified that palpation is not how to rule out a head injury. She said, “The only way to rule out a head injury is to do an X-ray, CT scan.”

Reviewing J.J.’s chart, Anderson saw that the arresting agency had stated J.J. had experienced a Total Appendage Restraint Procedure (TARP). Plaintiff said she was not aware of that. Anderson said had plaintiff read all the reports, she would have seen the TARP notation. Anderson testified that the jail automatically rejects patients who have experienced TARP until they have been medically cleared because of that procedure.

Anderson was concerned about plaintiff’s level of knowledge about head injuries. She asked plaintiff if she knew the first signs of increasing cranial pressure, meaning there is bleeding or swelling in the brain. Plaintiff said it was dizziness or a headache and an unsteady change of pulse pressures. Anderson told her the earliest indicator of deteriorating neurological status is a change in the level of consciousness. To truly establish the patient’s symptoms, the nurse must know the patient’s baseline mentation. Plaintiff did not know J.J.’s baseline. Plaintiff’s reliance on J.J.’s psychiatric history in his electronic record did not establish a baseline mentation. Without additional testing at the hospital, one could not establish whether J.J. was confused because of a psychiatric illness or an injury.

As part of her investigation, Anderson interviewed Azima and London and reviewed the applicable policies and procedures. Standardized procedures give the jail nurses the autonomy and authority to initiate certain types of medical care in the absence of a physician which otherwise only a physician could initiate. The nurses begin learning the standardized procedures as soon as they are hired and are trained on them regularly.

The standardized procedures for head injuries address the need for spine mobilization and the effect of the patient’s losing consciousness. They direct the nurse to “[p]erform manual C-spine immobilization.” They continue, “If the patient has no signs or symptoms listed above and has full head and neck range of motion, discontinue manual C-spine precautions.”

J.J. was not immobilized after he fell. When he was on the ground, the nurses could not determine if he had full head or neck range of motion. Anderson stated that because J.J. had a scalp laceration, suffered a period of unconsciousness, was disoriented, and had fallen backward onto a cement floor, C-spine immobilization should have been initiated.

Regarding the effect of loss of consciousness when treating head injuries, the standardized procedures authorized the nurse to call the physician if the patient lost consciousness for less than five seconds. However, the procedures stated that if the patient lost consciousness for more than five seconds or it was after hours, “the patient needs to go out to Valley Medical Center Emergency Department, Code 3.”

J.J. had been unconscious for about 30 seconds. Anderson testified that because J.J. lost consciousness for more than five seconds, he should have “gone out Code 3.” Anderson could not think of anything that would have excused a nurse from sending J.J. out Code 3.

Anderson testified there was no rationale for plaintiff taking over J.J.’s care. It was not appropriate to do that in this circumstance. Plaintiff offered no explanation for why she took over J.J.’s care. Her doing so delayed his care in an emergency. Anderson found no reasonable explanation for why plaintiff delayed J.J.’s care or departed from the standardized procedures.

From her investigation, Anderson concluded that plaintiff’s actions “were unprofessional.” Anderson continued, “I believed that she was not truthful about the situation, that she misrepresented to the physician the patient’s presentation. She minimized the patient or deliberately downplayed the potential for an injury there. And I found her actions to be unacceptable.” Plaintiff misrepresented that she saw J.J. fall, and she was not able to reasonably explain her actions. Anderson recommended that plaintiff be suspended for one week. The suspension was not carried out because of a hearing officer “snafu.”

Second Incident

Plaintiff conceded that she failed to give certain patients their required medication. On August 24, 2014, she was working at the jail as the day shift charge nurse. One of her duties was to distribute medications to inmates housed in a particular unit at 1:00 p.m. On this day, she forgot. She left the jail when her shift ended at 3:00 p.m. without informing the oncoming shift that she had not given the medications.

Three patients did not receive their medications. One was not given methadone, which was prescribed for chronic pain; another was not given Neurontin, which was prescribed as an anti-convulsant to treat a seizure disorder; and the third was not given Pentasa, which was prescribed to treat ulcerative colitis. The patients complained later that day, and they were given their medications. They suffered some discomfort but no significant harm.

The shift supervisor informed Anderson that medications had not been administered. Anderson learned it had been plaintiff’s assignment. She investigated the incident, which included a meeting with plaintiff in an investigative interview on September 27, 2014. Plaintiff said she was relatively new to the charge nurse position and she forgot to give the medications. She said she forgot because there was “a man down.” A man down is the term used to describe a medical emergency of some sort within the jail, like a Code Blue in a hospital. Anderson reviewed the officer logs for that day and determined there had not been a man down incident.

Anderson also learned that plaintiff had not completed a report about the failure to provide medication. A patient’s safety network report is a self-reporting mechanism for nurses to notify the administration and the medical community in charge that medications had been missed or omitted. Plaintiff did not complete this report. Plaintiff remembered before her shift ended that she had forgotten to give the medications, but she did not do anything about it.

From her investigation, Anderson concluded that plaintiff had omitted the prescribed medications, had not been truthful about the man down incident, and did not self-report. Plaintiff also did not ask for help to distribute the medications, nor did she tell the incoming charge nurse about the omission.

Expert Opinion

Jeanette Kirschner testified at the administrative hearing as an expert witness for the prosecution. Kirschner had been a registered nurse for approximately 24 years, and she retired after working 10 years as a nurse in different correctional facilities for the Los Angeles County Sheriff’s Department.

To reach her conclusions, Kirschner reviewed the various reports prepared about the two incidents, the standardized policies and procedures, and plaintiff’s written statement, and she observed the testimony of the prosecution’s other witnesses during the administrative hearing. She did not personally interview any of the witnesses, as the Board had instructed her not to. Instead, she relied on documented witness interviews performed by an investigator.

In Kirschner’s opinion, plaintiff committed acts of gross negligence, incompetence, and unprofessional misconduct when she interfered with the treatment of J.J. It was gross negligence, incompetence, and unprofessional conduct not to recognize J.J.’s emergent situation that required him to be transferred to the emergency department. Plaintiff should have known that not transferring J.J. to the hospital after he suffered a head injury risked his life. Every RN should know that “[i]f someone receives a head injury, you have to have it cleared, at the very minimum, by having a CAT scan. And the only way to do that is to send the patient out to the Emergency Department.”

It was gross negligence, incompetence, and unprofessional conduct not to immobilize J.J. When someone falls and hits his head, no one at that point can determine whether he incurred a neck injury or fracture. Moving the person could aggravate the situation, possibly injuring the patient’s nerves and causing paralysis. Every RN should know that if a person falls, hits his head, and is rendered unconscious, the person should not be moved.

It was gross negligence, incompetence, and unprofessional conduct not to describe J.J.’s condition accurately to the on-call physician. Because plaintiff did not see J.J. fall, she could not give the doctor complete information about what happened. As a result, he based his initial decision to cancel the Code 3 on her incomplete description. Kirschner said cancelling the Code 3 in this case “was the wrong call.” A nurse must be very objective when describing things to a physician, and the nurse can do that only if he or she witnessed the event. Plaintiff gave misinformation to Dr. Nguyen.

It was also unprofessional conduct for plaintiff, when she met with Anderson in the first investigative interview, not to report the incident involving J.J. accurately. Plaintiff was dishonest with nursing management, which is unprofessional. Nurses must be completely honest because they are dealing with people’s lives.

In Kirschner’s opinion, it was gross negligence, incompetence, and unprofessional conduct for plaintiff not to administer the medications to the three patients. The omission could have resulted in injury to the patients.

It was gross negligence, incompetence, and unprofessional conduct for plaintiff not to have alerted the oncoming shift or a physician that she did not administer the medications. By failing to report, she excluded vital information the oncoming staff could have used to give the patients relief.

Kirschner also stated it was incompetence and unprofessional conduct when plaintiff did not initiate an incident report on the missed medications and when she did not explain the incident honestly to Anderson in the second investigative interview.

Defense

English is plaintiff’s third language. At the administrative hearing, plaintiff admitted she did not see J.J. fall, but she said she did not ever tell anyone that she saw him going down. She heard something fall, turned, saw London was by J.J., grabbed her gloves, and went to him. She never stated she saw J.J. sliding backwards towards the right. She asked the arresting officers how he fell, and that is what they told her. It was her practice to ask the first witness what happened. The officers told her how J.J. fell, and she put that in her report. She did so because the way it was explained, J.J. did not hit the ground directly on the back of his head. She told Anderson she saw J.J. standing there. She did not see him fall and hit the ground.

When she got to J.J.’s side, she watched Azima assess J.J. She held his neck with both hands to keep it straight. She saw Azima give J.J. a sternal rub. In her opinion, J.J. was Azima’s patient. She was just there to help. In emergent situations, the nurses work as a team. She continued holding his neck to maintain a C-spine. When J.J. started moving and getting up on his own, the officers took over and she stepped back. The officers took J.J. to a chair. She did not instruct them to do that. She did not say a word at that time.

Plaintiff began talking with J.J. after he was seated in the chair. He said he had been hearing voices which told him to kill it, referring to his private area. She asked if he had any mental health issues. He said he had schizophrenia and schizoaffective disorder. She asked if he was in pain. He said he had no headache or numbness. He was alert and oriented at the time. Plaintiff noticed the laceration on J.J.’s forehead and asked the officers about it. They explained to her how he got it.

According to plaintiff, Azima told the officers she was not going to accept J.J. because he had the laceration. The officers said they had struggled with J.J. for the last four to six hours. They appeared upset with him. They did nothing to stop or break his fall.

Plaintiff called Dr. Nguyen because she was concerned about the officers and J.J. being upset with each other. She did not know if it was safe to send J.J. back to the hospital with these officers, so she asked Dr. Nguyen if they could accept J.J. and send him out later if something came up. She told him J.J. fell and that she did not see any serious injury, but he might have one. She asked if they could keep him in the lobby and monitor him. The doctor said it was okay to accept him.

When plaintiff announced the doctor’s decision, London screamed at her and used swear words. Azima said they were not going to accept the patient. If plaintiff wanted to, she would be the one to accept him. Plaintiff agreed she would. London threatened to write plaintiff up and complain about her and said this was not right. Still on the phone, plaintiff asked Dr. Nguyen if he heard that. He had. She told him the other nurses thought that J.J. should go out now. He replied, “Okay. Be on the safe side, send him out then.” By then, the other nurses had left J.J., so plaintiff took charge, informed the officers J.J. would go out with them, and completed the paperwork.

Plaintiff was not aware the other nurses had called a Code 3 when she spoke with Dr. Nguyen. She did not cancel a Code 3, and Dr. Nguyen did not ask to cancel or reset the code. A Code 3 was never cancelled because nobody called it. Plaintiff stated that Anderson’s notes from her discussions with Dr. Nguyen and the Control while investigating this matter showed that Control said there was not a record of a cancellation or restart of any code. The ambulance that eventually came was called only one time.

Regarding the second incident, plaintiff testified that on that day, she was the charge nurse. Usually, she would have two support nurses to help her with the charge nurse work, but on that day, she was by herself. After her break around 12:00 or 1:00, as she planned the rest of her shift, she remembered she had to do pill call (give medication to patients). It was too early then, so she went back to her other duties. She got busy and forgot to do the pill call. She could not recall what made her busy. When patients don’t receive their medication, they often ask the officer to call the nurse. That did not happen while she was there. The patients received their medications about one hour later than they would have had she not forgotten.

When plaintiff met with Anderson about the incident, she gave her a list of possibilities that could have happened that made her forget to give the medications. She said, “ ‘ It might have been there’s assessments, somebody has called me to assess the patient or something else or a man down.’ ” She said she initially remembered but afterward forgot.

On cross-examination, plaintiff admitted that after the J.J. incident, she sent an e mail to the manager explaining what happened. She wrote, “I saw on my way out to the lobby this gentleman was standing then all a sudden, slowly, slide down on the floor on this right side then on back.” She testified this was the explanation the officers gave her of what happened; she did not see J.J. fall.

Plaintiff prepared a declaration under penalty of perjury for the Board’s investigator. She wrote, “I step in when I saw him going backwards and falling on the floor to help my coworkers.” She testified that she meant to say his going back and falling on the floor was explained to her by the officers, but she didn’t say that.

Asked why she called Dr. Nguyen if she did not know a Code had been called, and thus J.J. would have been staying there, plaintiff said she called in case she needed to send him out within 15 or 30 minutes. She denied telling the officers to move J.J.

Plaintiff testified that J.J. got up on his own; the nurses and the officers did not make him get up. In her e-mail to the manager, she wrote, “We made him to get up and sit on the chair.”

Board’s Action

The Board filed an accusation against plaintiff. It accused plaintiff of gross negligence, incompetence, and unprofessional conduct for failing to (1) recognize the emergency situation with J.J. that required him to be transported back to the emergency department; (2) immobilize J.J. after he fell and hit his head on the floor; (3) accurately describe J.J.’s condition to the attending physician; and (4) accurately report what she observed of the incident with J.J. when she met with Anderson.

The Board also accused plaintiff of gross negligence, incompetence, and unprofessional conduct for failing to (1) administer the medication to the three inmates; (2) be honest in her explanations of the events during the ensuing investigation; (3) initiate an incident report; and (4) alert the oncoming shift and/or physician that she had not administered the medications.

After hearing the evidence summarized above, the administrative law judge (ALJ) in its proposed decision revoked plaintiff’s nursing license. The ALJ found Azima’s and London’s testimony more credible than plaintiff’s and found the expert’s opinion credible in every respect. Clear and convincing evidence established that plaintiff’s conduct relating to J.J. and forgetting the pill call constituted gross negligence, incompetence, and unprofessional conduct. The ALJ wrote: “Under these circumstances, revocation of [plaintiff’s] license is necessary for the protection of the public. [Plaintiff] cannot be trusted to serve the best interests of her patients and cannot be trusted to be honest with her employers or the Board. It would be against the public interest to allow her to retain her registered nursing license, even on a probationary basis.”

The Board adopted the ALJ’s decision as its own.

Plaintiff petitioned the Board for reconsideration. She sought to present character evidence in the form of numerous letters written by others and her job evaluations to show her genuine remorse and her rehabilitation, and to reassure the Board she was a safe and competent nurse. About one week after serving her petition, she received a letter from the Board’s decisions and appeals analyst informing her that “no evidence outside of the administrative record [would] be permitted at this time.” The Board also heavily redacted plaintiff’s petition for reconsideration to remove all references to the character evidence she had sought to introduce. A few days later, the Board denied the petition.

Petition for Writ of Administrative Mandate

Plaintiff filed a petition for writ of administrative mandate in the Sacramento County Superior Court to set aside the Board’s decision. She contended that revoking her license based on her alleged false statements was unlawful. The Board was legally required to inform her in its accusation of the acts or omissions with which she was charged, and the accusation did not inform her that she was being charged with making false statements.

Plaintiff also contended the Board denied her a fair hearing by denying her petition for reconsideration. Specifically, the Board violated the separation of powers principal when it had a staff analyst, instead of itself, determine that no evidence outside of the administrative record would be accepted for reconsideration. The analyst’s actions also were an unlawful ex parte contact between the decision-maker and the Board’s employees.

Further, plaintiff contended that the Board’s decision to revoke her license was not supported by credible evidence, as the Board ignored evidence of her rehabilitation, relied on an expert witness who had not conducted an independent investigation or interviewed her, and relied on the testimony of witnesses who were biased against her.

The trial court denied the petition for writ of mandate. The court ruled that plaintiff received adequate notice of the charges against her. The Board did not rely on dishonesty as a separate ground for revoking her license. It referenced her dishonest conduct in discussing the factual circumstances in the two incidents that led it to conclude she committed gross negligence, incompetence, and unprofessional conduct.

The court also concluded that plaintiff was not denied a fair hearing when the Board refused to allow her to augment the administrative record with her petition for reconsideration and redacted portions of her petition. Plaintiff introduced no evidence showing a prosecutor, advocate, or investigator communicated ex parte with an agency decision-maker. Plaintiff also did not show the Board was required to consider her supplemental evidence on reconsideration, abused its discretion in not considering the material, or arbitrarily redacted portions of her petition for reconsideration.

Finally, the court rejected plaintiff’s contention that the Board’s decision was not supported by credible evidence. Exercising its independent judgment, the court determined the weight of the evidence supported the Board’s determinations that Azima, London, Anderson, and the expert witness were more credible than plaintiff. The Board also did not abuse its discretion by revoking plaintiff’s license as the discipline for her misconduct.

Plaintiff raises the same arguments before us as she raised in the trial court. She also contends the trial court exceeded its jurisdiction by relying on grounds for discipline not alleged in the Board’s accusation for upholding the Board’s decision.

DISCUSSION

I

Standard of Review

“When a trial court rules on a petition for writ of mandate following a license revocation, it must exercise its independent judgment to determine whether the weight of the evidence supported the administrative decision. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143-144 & fn. 10; Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 69, (Yakov); Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1567-1568.) After the trial court has exercised its independent judgment upon the weight of the evidence, an appellate court’s function ‘is solely to decide whether credible, competent evidence supports [the trial] court’s judgment.’ (Yakov, supra, 68 Cal.2d at pp. 69, 72 [‘the question before this court turns upon whether the evidence reveals substantial support, contradicted or uncontradicted, for the trial court’s conclusion . . . ’].)” (Finnerty v. Board of Registered Nursing (2008) 168 Cal.App.4th 219, 227.)

“ ‘ “On questions of law arising in mandate proceedings, we exercise independent judgment.” ’ (Santa Clara Valley Transportation Authority v. Rea (2006) 140 Cal.App.4th 1303, 1313.) Because ‘the trial and appellate courts perform the same function’ in addressing such questions, ‘we apply our independent review without reference to the trial court’s actions.’ (Ibid.) Thus, ‘it is a settled appellate principle that if a judgment is correct on any theory, [we] will affirm it regardless of the trial court’s reasoning.’ (Young v. Fish & Game Com. (2018) 24 Cal.App.5th 1178, 1192-1193.)” (Moustafa v. Board of Registered Nursing (2018) 29 Cal.App.5th 1119, 1129.)

II

Adequate Notice of the Charges

Plaintiff contends the Board violated her due process rights, as codified in Government Code section 11503, by not fully informing her of the acts she committed and the statutes or rules she violated that justified discipline. Specifically, she claims the Board did not notify her it would impose discipline based on her dishonesty to her employer, nor did it inform her of the statute her dishonesty violated. We disagree.

A. The Accusation

The accusation against plaintiff charged her with violating Business and Professions Code section 2761, subdivision (a) and subdivision (a)(1), and sections 1442, 1443, and 1443.5 of title 16 of the California Code of Regulations. (Statutory section references that follow are to the Business and Professions Code, unless otherwise stated.) We recite section 2761 and the regulations as the accusation stated them.

Section 2761, subdivision (a), authorizes the Board to take disciplinary action against a licensed nurse for, among other things, “[u]nprofessional conduct, which includes, but is not limited to, the following: [¶] (1) Incompetence, or gross negligence in carrying out usual certified or licensed nursing functions.”

As used in section 2761, “ ‘gross negligence’ includes an extreme departure from the standard of care which, under similar circumstances, would have ordinarily been exercised by a competent registered nurse. Such an extreme departure means the repeated failure to provide nursing care as required or failure to provide care or to exercise ordinary precaution in a single situation which the nurse knew, or should have known, could have jeopardized the client’s health or life.” (See 16 Cal. Code Regs., § 1442.)

Also as used in section 2761, “ ‘incompetence’ means the lack of possession of or the failure to exercise that degree of learning, skill, care and experience ordinarily possessed and exercised by a competent registered nurse as described in [California Code of Regulations, title 16,] Section 1443.5.” (See 16 Cal. Code Regs., § 1443.)

Section 1443.5 reads: “A registered nurse shall be considered to be competent when he/she consistently demonstrates the ability to transfer scientific knowledge from social, biological and physical sciences in applying the nursing process . . .,” and lists a number actions the nurse must be capable of doing when caring for a patient. (See 16 Cal. Code Regs., § 1443.5.)

In its accusation, the Board alleged the primary facts regarding the incident with J.J. As part of those allegations, the Board alleged that “[d]uring a nursing leadership inquiry on February 14, 2013, [plaintiff] falsely reported that she had seen the arrestee/patient fall, when in fact, video surveillance depicts [plaintiff] with her back to the arrestee/patient as he fell.”

The Board contended plaintiff committed gross negligence and incompetence under section 2761(a)(1), and unprofessional conduct under section 2761(a), in part because she “[f]ailed to accurately report what she observed during the February 14, 2013 nursing leadership inquiry.”

The Board also alleged the primary facts regarding the incident where plaintiff forgot to give three patients their medication. It further alleged that plaintiff, during an investigative interview on September 27, 2014, said she forgot to administer the medications in part because “there was a ‘man down’ (the functional equivalent of a code blue in a correctional institution) situation and that she got busy. However, further investigation determined that there was no man down situation on August 24, 2014 and that [plaintiff] was dishonest with the facility’s investigators.”

The Board contended that plaintiff committed gross negligence and incompetence under section 2761(a)(1), and unprofessional conduct under section 2761(a), in part when she “[w]as dishonest in her explanation of events during investigation, as alleged . . . .”

B. Analysis

Government Code section 11503 required the Board in its accusation to allege the wrongful act and the statute or rule the act violated. The accusation must “set forth in ordinary and concise language the acts or omissions with which [plaintiff] is charged, to the end that [she] will be able to prepare . . . her defense. [The accusation] shall specify the statutes and rules that the [plaintiff] is alleged to have violated . . . .” (Gov. Code, § 11503, subd. (a).)

The accusation must include factual information supporting the alleged violation, not just a list of statutes or regulations that can be interpreted to encompass any activity the agency finds to be inappropriate. (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 242-244 [charge of sexual assault did not give student notice he would be disciplined for other students’ conduct with the victim or his leaving the room afterward].) “Disciplinary action cannot be founded upon a charge not made.” (Wheeler v. State Bd. of Forestry (1983) 144 Cal.App.3d 522, 527-528 [charge of deceit, misrepresentation, or fraud for forester’s estimation error did not inform him he would be disciplined for gross incompetence].)

However, administrative proceedings “ ‘are not bound by strict rules of pleading. . . . So long as the respondent is informed of the substance of the charge and afforded the basic, appropriate elements of procedural due process, he cannot complain of a variance between administrative pleadings and proof. [Citations.]’ (Stearns v. Fair Employment Practice Com. (1971) 6 Cal.3d 205, 213.)” (Margarito v. State Athletic Com. (2010) 189 Cal.App.4th 159, 170 [no due process violation where agency accused licensed boxer of using adulterated material to wrap his hands but changed its theory to strict liability based on his trainer’s actions where the boxer argued against strict liability at the administrative hearing]; cf. Smith v. State Bd. of Pharmacy (1995) 37 Cal.App.4th 229, 243-244 [accusation alleging pharmacist personally dispensed drugs unlawfully was inadequate to discipline pharmacist on theory of negligence for not supervising dispensing done by others where pharmacist had no opportunity to defend against a negligence charge].)

The Board’s accusation against plaintiff sufficiently alleged both the acts of dishonesty for which she would be disciplined and the statute and rules which those acts violated. There can be no dispute that the accusation alleged the acts of dishonesty with which she was charged sufficiently for her to defend against them. It alleged she was dishonest when she told Anderson in their 2013 meeting that she saw J.J. fall. It also alleged she was dishonest when she told Anderson in their 2014 meeting that she forgot to administer the medications because there was a man down.

These factual allegations were pleaded with enough specificity that plaintiff was able to defend against them. And she did. At the administrative hearing, she admitted she did not see J.J. fall, but she said she did not tell anyone that she saw him going down or that she saw him slide backwards toward his right. She also testified that when she met with Anderson in 2014 to explain why she forgot to administer the medication, she gave Anderson a list of possibilities that could have explained why she forgot to give the patients their pills. A “man down” was only one of those possibilities; it was not a dispositive answer.

Where the accusation informs the person of the specific violation of which she is accused, and she is able to defend against that violation, no due process violation occurs. (Margarito v. State Athletic Com., supra, 189 Cal.App.4th at p. 171.)

Plaintiff, however, argues the accusation did not state what statute or rule her actions violated. She asserts dishonesty is not a stated ground for discipline under either subdivisions (a) or (a)(1) of section 2761. She states, “While . . . section 2761(a) lists a litany of possible actions that can be considered unprofessional conduct, neither the remaining criteria, nor the one specifically singled out in the Accusation, subsection (a)(1), incompetence or gross negligence . . . refer to dishonesty as an element for discipline.” Plaintiff also accuses the Board of claiming at the trial court for the first time that dishonesty was a cause for discipline under a regulation not referenced in the accusation, section 1444 of title 16 of the Code of Regulations.

While dishonesty arguably does not fall within the regulatory definitions of gross negligence and incompetence, it stretches credulity to argue that an employee’s dishonesty to her current employer who is investigating her alleged malfeasance on the job does not constitute unprofessional conduct—particularly in a trusted field such as nursing.

Section 2761 lists types of actions that constitute unprofessional conduct, but the list is not exclusive because subdivision (a) provides that unprofessional conduct “is not limited to” the examples given. (Moustafa v. Board of Registered Nursing, supra, 29 Cal.App.5th at pp. 1136-1137.) Thus, conduct may qualify as unprofessional conduct under subdivision (a), even if not listed elsewhere in section 2761. However, the unlisted conduct cannot by itself establish unprofessional conduct. The conduct is unprofessional conduct only if it sufficiently establishes that the person is unfit to be a nurse. (Id. at p. 1139.) The conduct must affect the person’s “present or potential unfitness to practice nursing in a manner consistent with the public health, safety, or welfare.” (Ibid.)

“ ‘[A] statute constitutionally can prohibit an individual from practicing a lawful profession only for reasons related to his or her fitness or competence to practice that profession.’ (Hughes v. Board of Architectural Examiners [(1998) 17 Cal.4th 763,] 788.) Thus the state can impose discipline on a professional license only if the conduct upon which the discipline is based relates to the practice of the particular profession and thereby demonstrates an unfitness to practice such profession. ‘There must be a logical connection of licensees’ conduct to their fitness or competence to practice the profession or to the qualifications, functions, or duties of the profession in question.’ (Clare v. State Bd. of Accountancy (1992) 10 Cal.App.4th 294, 302.) [¶] . . . Where a licensing statute does not require a showing of a nexus between the licensee’s conduct and the licensee’s fitness or competence to practice, the statute must be read to include this ‘nexus’ requirement to ensure its constitutionality. (Marek v. Board of Podiatric Medicine [(1993) 16 Cal.App.4th 1089,] 1096.)” (Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, 769-770.)

The dishonest conduct alleged in the accusation demonstrates plaintiff’s unfitness to practice nursing, and thus qualifies as unprofessional conduct on which discipline can be based under section 2761, subdivision (a). “[N]urses hold positions of extreme trust . . . .” (Moustafa v. Board of Registered Nursing, supra, 29 Cal.App.5th at p. 1140.) Expert witness Kirschner testified that nurses “have to be honest because we’re dealing with people’s lives here. And we have to be completely honest with what goes on.” Supervisor Anderson testified it was critical for nurses to self-report their errors, especially in the jail setting where they have so much autonomy. She said nurses “have to have professionalism and the training and the integrity to self-report because there’s so much at risk. If you give the wrong medication or you give – make a medication error, you have to report that, because it may require treatment. [¶] . . . [W]e have to self-report, we have to self-govern ourselves in our practice. And I have to trust that nurses do that.” If a hospital cannot trust a nurse, it is putting itself and its patients at risk.

Plaintiff’s dishonesty to her employer under these circumstances, dishonesty that was clearly alleged in the accusation, was conduct that demonstrated her unfitness to practice nursing consistent with public safety and welfare, and it was sufficient evidence on which the Board could discipline her for unprofessional conduct. Because plaintiff received notice of her actions that were the basis of the accusation and the statute they violated, she received adequate notice under Government Code section 11503 and due process protections.

Plaintiff contends the Board erred when it relied on a regulation not stated in the complaint, section 1444 of title 16 of the Code of Federal Regulations, to find her dishonesty constituted unprofessional conduct. She also contends the trial court erred by relying on additional statutes to uphold the Board’s decision. Because we have upheld the Board’s action based solely on section 2716, the statute on which the accusation is expressly based, we need not address these arguments.

III

Sufficiency of the Evidence

Plaintiff contends the Board’s decision to revoke her license is not supported by substantial evidence because the expert witness based her opinion on an incomplete review of the evidence, and Azima and London were biased against her. She claims the Board erred “by not accurately characterizing these witnesses or according their testimony proper weight.”

How the Board characterized the witnesses or weighed their testimony is not our concern. Our function is to decide whether substantial evidence supports the trial court’s judgment. On that question, our power “begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination . . . .” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, original italics.) So long as there is substantial evidence, we must affirm. (Id. at p. 874.)

Substantial evidence is evidence that is “ ‘of ponderable legal significance. . . . It must be reasonable . . ., credible, and of sold value. . . .’ (Estate of Teed (1952) 112 Cal.App.2d 638, 644.)” (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.)

When reviewing a record for substantial evidence, we do not evaluate the credibility or motives of witnesses except in the rarest of cases. “ ‘ “ ‘Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ ” (People v. Thornton (1974) 11 Cal.3d 738, 754.)’ (People v. Maciel (2013) 57 Cal.4th 482, 519.) These appellate rules of review apply to the testimony of expert witnesses as well as that of lay witnesses. (Daly v. Wallace (1965) 234 Cal.App.2d 689, 693.)

“As the reviewing court, ‘[w]e resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ (People v. Maury (2003) 30 Cal.4th 342, 403.)” (Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 750.)

This is not a case where we may weigh a witness’s credibility. There is nothing in the record before us that indicates it is physically impossible for the testimony of the Board’s witnesses to be true. Nor is the falsity of their testimony apparent without resorting to inferences or deductions.

We thus apply our traditional substantial evidence review, and in doing so, we conclude substantial evidence supports the trial court’s judgment. We have recited above the evidence that supports the court’s judgment and need not repeat it here.

IV

Petition for Reconsideration

Plaintiff contends the Board violated her right to a fair process by the way it handled her petition for reconsideration. She asserts she had a right to have the Board consider and review additional evidence she submitted with her petition before the Board ruled on the petition. She argues the decision by an agent of the Board not to consider additional evidence and to redact portions of the reconsideration petition violated Government Code section 11430.30, subdivision (a), which prohibits a Board adviser from diminishing or modifying evidence in the record. She also claims the agent’s action violated the separation of powers doctrine, was an unlawful ex parte communication under Government Code section 11430.10, and arbitrarily denied the Board access to arguments and evidence she submitted in support of her petition. We do not agree.

A. Background

The Board issued its decision revoking plaintiff’s license on May 24, 2016. It was set to become effective on June 23, 2016. Plaintiff timely filed a petition for reconsideration on June 15, 2016. The petition contained more than 100 pages of mitigation evidence she had not introduced before. Twenty-five pages consisted of letters vouching for plaintiff’s character and ability and nine pages were continuing education certificates of completion. Except for plaintiff’s resume, the remaining documents were copies of her job evaluations. On June 17, 2016, the Board stayed the effective date of its decision for seven days, to July 1, 2016, to allow it time to consider plaintiff’s petition.

By letter dated June 22, 2016, Christyl Cobb, a decisions and appeals analyst for the Board, informed plaintiff that regarding her petition, “no evidence outside of the administrative record will be permitted at this time.” At the same time, someone at the Board redacted all references to the new evidence from plaintiff’s petition.

On June 28, 2016, the Board denied plaintiff’s petition.

B. Analysis

Government Code section 11521, subdivision (b), grants the Board discretion to reconsider its decision “on all the pertinent parts of the record and such additional evidence and argument as may be permitted.” Plaintiff reads this statute to grant the Board discretion to ignore the evidence she attached to her petition and to rule against the petition, but she asserts she is entitled to have the petition and its exhibits reviewed by the Board, and not an agent of the Board, before the Board makes either of those decisions. She is incorrect. The Board has the discretion not to accept or review any additional evidence attached to her petition for reconsideration that was not part of the record when the Board made its decision. (Gov. Code, § 11521, subd. (b).)

Plaintiff counters that an agent of the Board was not authorized to redact portions of her petition, and doing so violated Government Code sections 11430.10 and 11430.30, subdivision (a). Government Code section 11430.10 prohibits ex parte communications between agency employees and those who will adjudicate the accusation. Government Code section 11430.30 provides an exception to the rule prohibiting ex parte contacts. Under Government Code section 11430.30, an otherwise prohibited communication is allowed where the communication “is for the purpose of assistance and advice to the presiding officer from a person who has not served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage. An assistant or advisor may evaluate the evidence in the record but shall not furnish, augment, diminish, or modify the evidence in the record.” (Gov. Code, § 11430.30, subd. (a).)

Plaintiff argues the redacted petition demonstrates there was an unlawful ex parte contact. She also claims her petition for reconsideration was part of the “evidence in the record,” and thus the Board employee who redacted the petition and removed the exhibits violated Government Code section 11430.30, subdivision (a), violated the separation of powers doctrine, and acted arbitrarily. First, there is no evidence in the record that the Board employee who redacted the petition unlawfully communicated ex parte with the Board to make the redactions. No evidence shows that employee was an investigator, prosecutor, or advocated in the proceeding or it preadjudicative stage.

Second, although the petition was not part of the record that was before the Board when it ruled on the accusation, and no reported case discusses the situation before us, we agree the Board’s striking of portions of the petition on its own motion without first notifying plaintiff appears contrary to principles of due process. However, without affirmatively deciding that issue, we hold any such error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.705].) All of the redacted portions of the petition referred to or quoted from the additional evidence which the Board had lawfully determined it would not accept. The redactions thus were not unjustified, arbitrary, or prejudicial. Had they not occurred, there is no reasonable doubt the Board would have denied the petition, as the redacted material referred to evidence that was not before it. Any error was harmless.

Finally, during oral argument, plaintiff suggested the Board erred when it failed to set forth in a written order its decision not to consider evidence outside the existing administrative record. We do not find that argument in appellant’s briefing and, thus, may consider it forfeited. But in any event, plaintiff cites no authority for her argument and we are not aware of any requirement that the Board issue an order on its decision to disallow new evidence.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to the Board. (Cal. Rules of Court, rule 8.278(a).)

HULL, Acting P. J.

We concur:

MURRAY, J.

DUARTE, J.

Filed 10/31/19 Scher v. Burke CA2/3

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 THREE

JAIME SCHER et al.,

Plaintiffs and Appellants,

v.

JOHN BURKE et al.,

Defendants and Respondents.

B290011

(Los Angeles County

Super. Ct. No. BC415646)

APPEAL from a judgment of the Superior Court of Los Angeles County, Malcolm H. Mackey, Judge. Reversed with directions.

Cunningham, Treadwell & Bartelstone, James H. Treadwell, G. Richard Gregory III; Aleshire & Wynder and June S. Ailin for Plaintiffs and Appellants.

Garrett & Tully, Ryan C. Squire, Zi C. Lin, Motunrayo D. Akinmurele; Levinson Arshonsky & Kurtz, Richard I. Arshonsky and Jason J. Jarvis for Defendants and Respondents Richard Erickson, Wendie Malick, Richard B. Schroder, and Andrea D. Schroder.

Law Offices of Robert S. Gerstein, Robert S. Gerstein; Law Office of Bennett Kerns and Bennet Kerns for Defendants and Respondents John Burke, Germaine Burke, and Bennett Kerns, Trustee of the A.S.A. Trust.

Ferguson Case Orr Paterson, Wendy C. Lascher and Joshua S. Hopstone for Defendant and Respondent Gemma Marshall.

——————————

Plaintiffs Jaime Scher and Jane McAllister appeal from the declaratory judgment entered by the trial court upon remand from both this court and the Supreme Court. Plaintiffs contend that the judgment materially deviates from the remand instructions and exceeds the scope of the issues framed by the pleadings because it allegedly grants affirmative relief to defendants, quiets title, and adjudicates access by property not at issue in the underlying lawsuit and by people who were purportedly not parties to the lawsuit. As written, the judgment is inadequate. Accordingly, we reverse.

BACKGROUND

I. This lawsuit

Plaintiffs own two parcels of real property in the unincorporated Topanga Canyon area of Los Angeles County. They sued each of the landowners south of them along Henry Ridge Motorway and Gold Stone Road. The complaint alleged that defendants’ properties were burdened and plaintiffs’ properties were benefitted by express, equitable, prescriptive, and implied easements for “access to” and “ingress and egress over and across” the two roads, and that those two roads had been dedicated as public streets. The complaint sought (1) to quiet title to the easements, (2) to enjoin defendants from interfering with plaintiffs’ use and enjoyment of the two roads, and (3) a declaration and “judicial determination of [plaintiffs’] rights and interests in and to [the subject easements]” and of their right to use the easements for ingress and egress, and to use the two roads as public streets. Plaintiffs alleged that a judicial declaration was “necessary and appropriate” so that “plaintiffs may ascertain their rights and interests in and to their easement[s] over and across the defendants’ properties and in order to remove any cloud upon the Scher Property.”

II. The original judgment of the trial court

After a bench trial, the court entered judgment partly in favor of defendants and partly in favor of plaintiffs (the original judgment). The trial court (1) declared that Henry Ridge Motorway and Gold Stone Road had been impliedly dedicated as public streets, (2) quieted title to easements over the two roads in favor of plaintiffs, and (3) enjoined and restrained defendants from obstructing the roads. The original judgment ruled against plaintiffs on their theories of express, prescriptive, and equitable easements. (Scher v. Burke (Sept. 11, 2015, B235892) 1, 17 (Scher I) [see Scher v. Burke (2017) 3 Cal.5th 136 affirmed].)

III. The appeal and cross appeal

Plaintiffs appealed and defendants cross-appealed. This court affirmed that portion of the judgment in favor of defendants and reversed the part in plaintiffs’ favor, meaning that we held entirely in favor of defendants.

In particular, we held that plaintiffs had no express, prescriptive, equitable, or implied easement for access along Henry Ridge Motorway and Gold Stone Road and through defendants’ properties. We further held that the two roads had not been and were not dedicated to public use. Toward that end, we explained that “Civil Code section 1009 bars all use of non-coastal private real property . . . from ever ripening into an implied dedication to the public after the effective date of that statute,” i.e., March 4, 1972. (Scher I, supra, B235892 at p. 2.) Our disposition directed the trial court to “enter a declaratory judgment in favor of defendants consistent with the principles set forth in this opinion.” (Id. at p. 46.)

IV. The Supreme Court’s opinion

Plaintiffs petitioned the California Supreme Court for review of the question whether Henry Ridge Motorway and Gold Stone Road had been dedicated as public streets. This question required analysis of whether Civil Code section 1009 banned all use of non-coastal private property, or simply recreational use of such property, from ripening into an implied dedication to public use.

The Supreme Court affirmed our construction of Civil Code section 1009 and disapproved cases holding to the contrary. After describing our opinion as having “directed the trial court to enter a declaratory judgment in favor of defendants” (Scher v. Burke, supra, 3 Cal.5th at p. 140), the Supreme Court “affirm[ed] the Court of Appeal’s judgment remanding the case to the trial court with directions to enter judgment in favor of defendants.” (Id. at p. 150.)

V. Postremand from the Supreme Court

Defendants lodged their proposed judgment for the trial court’s review (the December 5, 2017 judgment). Of relevance here, the December 5, 2017 judgment recites as to the legal descriptions of each of the defendants’ properties, with the challenged portions in italics, that “[n]either Plaintiffs, nor Plaintiffs’ Henry Ridge Property, nor Plaintiffs’ Vacant Property, nor any other property owned by Plaintiffs, nor any of Plaintiffs’ tenants, guests, or invitees, nor any member of the general public, has any right, title, interest, or easement (whether in gross, appurtenant, by implied dedication, or otherwise) in, over, across, or to that real property owned by defendants.” (Italics added.)

Shortly thereafter, the trial court allowed plaintiffs to file objections to the December 5, 2017 judgment. The court explained that the December 5, 2017 judgment “will be stricken if the Court determines that the plaintiffs’ objections are valid.” (Italics added.) After hearing on plaintiffs’ objections, the court ordered plaintiffs “to prepare and submit a [proposed] Judgment for the Court’s consideration . . . . The court will make a determination regarding the appropriate Judgment after comparing the Judgments.”

Plaintiffs’ ensuing proposed judgment read in relevant part: “1. Plaintiffs shall take nothing by their Complaint. [¶] 2. Judgment is entered in favor of Defendants, and against Plaintiffs, on” each of the enumerated causes of action.

The trial court compared the two versions and on March 1, 2018, ruled that plaintiffs’ proposed judgment “is not substantively different from the [version] filed on December 5, 2017” and ordered that the December 5, 2017 judgment would stand. The trial court denied plaintiffs’ second motion to vacate the December 5, 2017 judgment. Plaintiffs’ timely appeal ensued.

DISCUSSION

I. Plaintiffs’ proposed judgment is inadequate

By way of their complaint, plaintiffs sought to quiet title, a declaration, and an injunction.

Section 1060 of the Code of Civil Procedure provides in pertinent part that a party may bring an action for “declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property.” It also provides that “the court may make a binding declaration of these rights or duties” (ibid.) and that the “declaration may be either affirmative or negative in form and effect.” (Ibid., italics added.) “ ‘In an action for declaratory relief, the proper function of the court is to make a full and complete declaration, disposing of all questions of rights, status or other legal relations encountered in construing the instrument before it.’ ” (Amerson v. Christman (1968) 261 Cal.App.2d 811, 823, italics added.)

Likewise, “[a] quiet title action seeks to declare the rights of the parties in realty. A trial court should ordinarily resolve such dispute. This accords with the rule that a trial court should not dismiss a regular declaratory relief action when the plaintiff loses, but instead should issue a judgment setting forth the declaration of rights and thus ending the controversy. [Citations.] . . . ‘ “The object of the action is to finally settle and determine, as between the parties, all conflicting claims to the property in controversy, and to decree to each such interest or estate therein as he may be entitled to.” ’ ” (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 305, italics added; City of Santa Maria v. Adam (2016) 248 Cal.App.4th 504, 513.)

Plaintiffs sought to quiet title and repeatedly requested “a judicial determination of their rights and interests in and to” the alleged easements and of their right to use the two roads as public streets. Plaintiffs asked for a judicial declaration so that “plaintiffs may ascertain their rights and interests in and to their easement[s] over and across the defendants’ properties” and “to remove any cloud upon the Scher Property.”

Accordingly, the judgment proposed by plaintiffs is wholly inadequate. A statement merely that plaintiffs take nothing by their complaint and that judgment is entered in defendants’ favor and against plaintiffs does not (1) meet the directives in our disposition, (2) set forth a declaration of the parties’ rights, (3) “ ‘ “determine, as between the parties, all conflicting claims to the property in controversy,” ’ ” nor (4) “ ‘ “decree to each such interest or estate therein as he may be entitled to.” ’ ” (Western Aggregates, Inc. v. County of Yuba, supra, 101 Cal.App.4th at p. 305.) Plaintiffs’ proposed judgment does not begin to address the question of whether Henry Ridge Motorway and Gold Stone Road were dedicated to the public, an issue important enough to plaintiffs that they sought Supreme Court review.

We disagree with plaintiffs that the December 5, 2017 judgment granted defendants affirmative relief. The pleadings define the issues to be tried. (Simons v. Ware (2013) 213 Cal.App.4th 1035, 1048.) Plaintiffs sought to quiet title and declaratory and injunctive relief. Code of Civil Procedure section 1060 authorizes the trial court to determine the rights of the parties and make a declaration that is “either affirmative or negative in form and effect.” The judgment here is negative in effect in that it declares that plaintiffs have no right or interest by easement or dedication to the public of any use across any of defendants’ properties and along Henry Ridge Motorway and Gold Stone Road.

II. The December 5, 2017 judgment requires modification

Plaintiffs also contend that the December 5, 2017 judgment is unlawful because it is overbroad and adjudicates real property that was not subject to the lawsuit, e.g., “any other property owned by Plaintiffs,” and established rights of people who were not parties to this lawsuit, e.g., plaintiffs’ “tenants, guests, [or] invitees,” and any other “member of the general public.”

“In actions for declaratory relief, the court should attempt to do complete equity, resolving all questions actually involved in the case as between all of the respective parties.” (Amerson v. Christman, supra, 261 Cal.App.2d at p. 823.) However, “[a] judgment outside the issues is not a mere irregularity; it is extrajudicial and invalid.” (Orange County Water Dist. v. City of Colton (1964) 226 Cal.App.2d 642, 649 (City of Colton); C.J.A. Corp. v. Trans-Action Financial Corp. (2001) 86 Cal.App.4th 664, 673.) Trial courts have no “jurisdiction to pass upon new and different issues based upon after-acquired rights.” (City of Colton, at p. 649.) Moreover, “[a] court has no jurisdiction over an absent party and its judgment cannot bind him. [Citation.] This is true even though an adjudication between the parties before the court may on occasion adversely affect the absent person as a practical matter, or leave a party exposed to a later inconsistent recovery by the absent person.” (Wright v. Goleta Water Dist. (1985) 174 Cal.App.3d 74, 88.)

The December 5, 2017 judgment, insofar as it purports to adjudicate the rights of any other property owned by Plaintiffs that was not subject of the lawsuit, is invalid.

As for the language, plaintiffs’ tenants, guests, or invitees, such people were not parties to this action and were not mentioned in the complaint. We are unpersuaded by defendants’ suggestion that plaintiffs cannot be heard to object to the language “[p]laintiffs’ family, guests, and tenants” in the December 5, 2017 judgment because the original judgment, drafted by plaintiffs, included those words. The original judgment, which is now void, purported to grant easement rights to plaintiffs, their family, guests, and tenants. However, the obverse of that language is not accurate. That is, once the trial court declares pursuant to our disposition that plaintiffs have no easement rights in Henry Ridge Motorway and Gold Stone Road, logically, no one claiming under plaintiffs, such as their guests, tenants, and family, has any such rights either. Moreover, as we and the Supreme Court have made clear, the two roads at issue were not dedicated to the public. As plaintiffs, their family, tenants, and guests are all members of the public, naming “family, tenants, and guests” in the final judgment is surplusage.

There is another reason that the judgment is overbroad. It declares in relevant part, “nor any member of the general public, has any right title, interest, or easement (whether in gross, appurtenant, by implied dedication, or otherwise), in, over across, or to that real property owned by defendants.” (Italics added.) However, our opinion recognized irrevocable easements for pedestrian, hiking, and equestrian purposes across certain of defendants’ properties. (Scher I, supra, B235892 at pp. 11–12.) As written, the judgment appears to improperly eliminate those recreational easements.

III. The judgment must be modified.

Necessarily, any judgment resulting from plaintiffs’ complaint must include (1) the metes and bounds descriptions of the properties at issue, (2) a recognition of any existing easement for recreational pedestrian, hiking, or equestrian purposes, (3) a statement declaring that neither plaintiffs nor their two properties at issue in this action has any easement (whether equitable, express, implied, or by prescription) for access over or across, or for ingress or egress to and from, defendants’ properties along Henry Ridge Motorway and Gold Stone Road, and (4) a statement declaring that Henry Ridge Motorway and Gold Stone Road were not dedicated to the public.

DISPOSITION

The judgment is reversed and the cause is remanded to the trial court with directions to enter a new declaratory judgment in accordance with section III. of the Discussion. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED.

DHANIDINA, J.

We concur:

EDMON, P. J.

HANASONO, J.*

Filed 10/31/19 Molloy v. Vu 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

SCOTT MOLLOY,

Plaintiff and Appellant,

v.

MICHAEL VU, as Registrar of Voters, etc., et al.,

Defendants and Respondents;

FRANCIS J. EASON et al.,

Real Parties in Interest and Respondents.

D075593

(Super. Ct. No. 37-2018-00056442-CU-WM-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Kenneth J. Medel, Judge. Affirmed.

Gatzke Dillon & Ballance, Mark J. Dillon, David P. Hubbard, Kurt G. Whitman; The Sutton Law Firm, Bradley W. Hertz, James R. Sutton, Matthew C. Alvarez; Sheppard, Mullin, Richter & Hampton and John Ponder for Plaintiff and Appellant.

Thomas E. Montgomery, County Counsel, and Stephanie Karnavas, Deputy County Counsel, for Defendants and Respondents, Michael Vu and San Diego County Board of Supervisors.

Latham & Watkins, Christopher Garrett, Taiga Takahashi, Samantha K. Seikkula; Nielsen Merksamer Parrinello Gross & Leoni, Sean P. Welch and Hilary J. Gibson for Real Parties in Interest and Respondents, Francis J. Eason, Tricia Trupiano, Committee Against Newland Sierra and Bad Development, Committee Major Funding from Golden Door Properties, and Golden Door Properties, LLC.

Shute, Mihaly & Weinberger, Robert S. Perlmutter for Elfin Forest Harmony Grove Town Council, Endangered Habitats League; Cleveland National Forest Foundation, Sierra Club; Center for Biological Diversity, and Mark Jackson as Amici Curiae on behalf of Real Parties in Interest.

The San Diego County (County) Board of Supervisors approved an amendment to the County’s general land use plan, which would allow for the development of over 2,100 homes in a previously designated rural area of the County. Residents opposed to the change in land use circulated a referendum petition and gathered enough signatures to have the matter placed on an election ballot. To prevent an election, the land developer filed a petition for writ of mandate in superior court, contending the referendum petition was illegal and void as a matter of law. The court denied the writ petition.

The issues presented in this appeal are (1) whether the referendum petition complied with the full text requirement under Elections Code section 9147 and (2) the referendum petition’s legality in challenging a single legislative act even though the Board of Supervisors executed several concurrent, associated legislative acts. For reasons we explain, we affirm the trial court’s decision denying the petition for writ of mandate.

FACTUAL AND PROCEDURAL BACKGROUND

Land use in the County is governed by a general plan. (Gov. Code, § 65300 et seq. [“the legislative body of each county . . . shall adopt a comprehensive, long-term general plan for the physical development of the county”].) In 2011, the County thoroughly updated its general plan, and in that process, designated certain land north of San Marcos as “rural.” As part of this general plan update in 2011, the County also adopted the North County Metropolitan Subregional Plan (subregional plan). The subregional plan adopted the same land use designations as used in the general plan for implementation purposes, as follows:

“A. the North County Metropolitan Subregional Plan, as part of the County General Plan, must conform to the County General Plan; and

“B. the Land Use Element contains a full description of the Land Use Designations that will be used to implement each of the County’s Community and Subregional plans.

“THE LAND USE DESIGNATIONS CONTAINED IN THE LAND USE ELEMENT ARE HEREBY ADOPTED BY REFERENCE AND WILL BE USED TO IMPLEMENT THIS SUBREGIONAL PLAN.”

Examples of residential land use designations include “semi-rural” and “rural.” Permissible housing densities under these land use designations are generically described in a chapter of the general plan entitled “Land Use Element.” For instance, the land use element instructs as to rural lands, “[t]he densities provided by these designations are the lowest in the unincorporated County—ranging from one dwelling unit per 20 gross acres, to one dwelling unit per 80 gross acres—and are intended to reflect and preserve the rural agricultural, environmentally constrained, and natural ‘backcountry’ areas of the County (see Table LU-1).” Under the land use element, semi-rural housing densities range from one dwelling unit per half acre to one dwelling unit per ten gross acres.

Newland Sierra Development Project

In 2015, Newland Sierra sought to develop a mixed-use community located on a 1,985-acre site that, once constructed, would consist of 2,135 homes, 81,000 square feet of commercial uses, a six-acre school site, 35.87 acres of public and private parks, 19.2 miles of trails, an equestrian staging area, and 1,209 acres of permanently dedicated and managed open space. The proposed development site was on unincorporated County land, west of Interstate 15, north of San Marcos, and within “the North County Metropolitan Subregional Plan Area.” The proposed development would require, at minimum, a modification to the County’s 2011 general plan. Newland Sierra took steps to implement its project, including applying to the County for a general plan amendment, specific plan, and zone reclassification.

On September 26, 2018, in connection with the Newland Sierra project, the County Board of Supervisors performed three legislative acts. The Board (1) adopted Resolution No. 18-141, approving a general plan amendment (GPA resolution); (2) adopted Resolution No. 18-142, approving a specific plan (specific plan resolution); and (3) approved Ordinance No. 10565, changing the zoning classification of the proposed development site (rezoning ordinance).

The challenged legislative act in this case is the GPA resolution. The narrative portion of the GPA resolution is two pages long, followed by a certification page and five attached exhibits lettered A through E, all of which totals about 66 pages. The GPA resolution adopts a general plan amendment, “PDS2015-GPA-15-001, which consists of amendments to the Land Use Element Map, Mobility Element, North County Metropolitan Subregional Plan, Bonsall Land Use Map, and the I-15 Corridor Subregional Plan as identified in the exhibits below:

Exhibit A: Land Use Element – Regional Category Maps

Exhibit B: Land Use Element – Land Use Designations Maps

Exhibit C: Mobility Element – North County Metropolitan Mobility Element Network Figure M-A-12

Exhibit D: North County Metropolitan [Subregional] Plan

Exhibit E: I-15 Corridor Subregional Plan[.]”

(Italics added.)

Of relevance here, exhibits A and B consist of maps showing land areas and their corresponding land use designations; compared to previous maps, exhibits A and B show less rural land (shaded green) and more semi-rural land (shaded yellow). Exhibit D is the 2011 subregional plan with amendments identified in redline, namely, a new “chapter 7” entitled “Newland Sierra Specific Plan.” Within exhibit D is the unamended language from 2011 that adopted by reference the generic land use designations from the land use element of the general plan.

There was substantial public opposition to the Board of Supervisor’s approval of the GPA resolution, both preceding and following the Board’s action. Real parties in interest (referred to herein as Golden Door for simplicity), obtained a certified copy of the 66-page GPA resolution from the clerk of the County Board of Supervisors and, within two days of the Board’s action, began circulating a referendum petition to prevent the GPA resolution from taking effect. Within 30 days of the Board’s action, Golden Door submitted the referendum petition to the County Registrar of Voters with about 95,000 “projected valid” voter signatures, well exceeding the number of required signatures to have the GPA resolution placed on a ballot.

Petition for Writ of Mandate

In November 2018, Scott Molloy filed a petition for writ of mandate in superior court against Michael Vu, in his capacity as Registrar, and the County Board of Supervisors, alleging six causes of action relating to Golden Door’s referendum petition: (1) violation of the full text rule under section 9147, subdivision (b); (2) violation of form requirements under section 9147, subdivision (a); (3) violation of section 9147, subdivision (b) and Government Code sections 65454, 65860, and 65862 for seeking to repeal only the GPA resolution but not any associated legislative actions; (4) false and misleading tactics to deceive voters into signing the referendum petition; (5) injunctive relief; and (6) declaratory relief. Through his writ petition, Molloy sought to enjoin placement of the referendum matter on any ballot and have the referendum petition declared invalid.

Following full briefing, the trial court held a hearing on Molloy’s petition for writ of mandate in December 2018. On January 9, 2019, the court entered an order denying Molloy’s petition in its entirety. This appeal followed.

DISCUSSION

I. Standard of Review

The parties agree that our review is de novo because this case presents only questions of law based on undisputed facts. (Lin v. City of Pleasanton (2009) 176 Cal.App.4th 408, 416 (Lin).)

II. The Full Text Requirement

Molloy claims the referendum petition violated the full text requirement under section 9147, subdivision (b) because it did not include the land use designation descriptions from the land use element of the general plan in addition to the challenged 66-page GPA resolution, which was included.

Section 9147, subdivision (b) states: “Each section of the referendum petition shall contain the title and text of the ordinance or the portion of the ordinance which is the subject of the referendum.” Interpretive case law has held that a valid referendum petition must contain the full, complete text of the challenged legislation, including documents and exhibits physically attached to the challenged law. (E.g., Nelson, supra, 17 Cal.App.4th at p. 740 [analyzing similarly worded provision of Elections Code in the context of a city council resolution]; accord, Billig v. Voges (1990) 223 Cal.App.3d 962, 967 [petition must contain “the [challenged] measure’s actual words”].)

In addition, a valid referendum petition must contain documents expressly incorporated by reference into the challenged legislation when the incorporated document is the subject of the referendum. (Nelson, supra, 17 Cal.App.4th at p. 735 [resolution adopting general plan stated that the ” ‘Plan is detailed in Exhibit “B” attached hereto and incorporated herein by this reference’ “]; id. at p. 740 [concluding plaintiffs were required to attach the voluminous Exhibit B to referendum petition].) “[W]hen a central purpose of the [challenged] ordinance is to adopt and enact into law the contents of an incorporated or attached document, a referendum petition on the ordinance does not satisfy [the] Elections Code . . . unless it includes a copy of that document.” (Defend Bayview Hunters Point Com. v. City & County of San Francisco (2008) 167 Cal.App.4th 846, 858 (Defend Bayview); see also Wilson v. County of Napa (2017) 9 Cal.App.5th 178 [because proposed measure required compliance with new best management practices “set forth in Appendix D,” the management practices were required to be included with petition].)

However, the “text” of a challenged law does not include documents referenced within the law but not physically attached or specifically incorporated by reference. (Lin, supra, 176 Cal.App.4th at p. 417.) The Elections Code requires “the ‘text’ of the ordinance being challenged, not the inclusion of additional information a conscientious voter might want to know before signing the petition.” (Ibid.; We Care-Santa Paula v. Herrera (2006) 139 Cal.App.4th 387, 390-391 (We Care) [initiative to amend general plan land use element was not required to attach any portion of the general plan].)

Lin is instructive on the parameters of the full text requirement. (Lin, supra, 176 Cal.App.4th at p. 417.) There, the challenged ordinance (Ordinance No. 1961) approved a development plan in the city of Pleasanton. (Id. at p. 414.) “[F]or whatever reason, Ordinance No. 1961 did not include the Development Plan it approved, nor did it incorporate that plan by reference or attach it as an exhibit.” (Id. at p. 419.) The Lin court concluded the subsequent referendum petition was not required to attach the development plan. (Id. at pp. 417-418.) Finding that the text of the ordinance itself was not misleading, the Court of Appeal was persuaded that a clear, objective rule protected a citizen’s right of referendum and guided clerks in the performance of their ministerial duties. (Id. at pp. 419-421.)

Applying the foregoing principles, we conclude the referendum petition in this case satisfied the full text requirement and was not required to include the land use designations from the land use element of the general plan.

It is undisputed the referendum petition contained the complete 66-page GPA resolution, including exhibits A through E. The GPA resolution amended portions of the general plan as identified in the exhibits. As we have noted, the exhibits were included in the referendum petition. There is nothing ostensibly misleading about the text of the GPA resolution itself, which informed voters of the amendments being made to the general plan in connection with the Newland Sierra project. Subdivision (b) of section 9147 did not require the inclusion of any additional documents in the referendum petition.

To support his argument that the land use designations were required to be included in the referendum petition, Molloy relies on language contained in the subregional plan—in exhibit D—stating that the subregional plan “adopted by reference” the land use designations from the general plan. However, the specified language was approved by the Board of Supervisors in 2011 when the County updated its general plan and is contained in an entirely different, earlier chapter (entitled policies) than the newly added chapter 7 relating to the Newland Sierra specific plan. The language of the 2018 GPA resolution does not expressly incorporate by reference the land use designations nor was a “central purpose” of the GPA resolution to adopt, amend, or enact into law the generic land use designations, which had long been in force and would continue to be in force regardless of the outcome of any referendum petition. (Cf. Defend Bayview, supra, 167 Cal.App.4th at p. 858.)

Molloy argues that the amended land use element maps (exhibits A and B) cannot be properly understood without reference to the land use designations, i.e., voters should be informed on what it means for land to be designated “rural” or “semi-rural” before signing a referendum petition on the matter. It may well be the case that a voter should review the land use designations. We can easily hypothesize an argument wherein voters should be provided with an array of additional land use planning documents prior to signing the petition. However, for all the reasons discussed in Lin, the “text” requirement does not compel “the inclusion of additional information a conscientious voter might want to know before signing the petition.” (Lin, supra, 176 Cal.App.4th at p. 417; see also We Care, supra, 139 Cal.App.4th at p. 391 [Elections Code “does not require an initiative petition to contain all the information an informed voter would want. It requires only the text of the measure proposed to be enacted”].)

Notably, decisional law has repeatedly held that requiring the complete text of the protested legislation in a referendum petition—and nothing more—reasonably balances the goal of adequately apprising voters of the protested law with a citizen’s right of referendum. (Creighton v. Reviczky (1985) 171 Cal.App.3d 1225, 1231-1232; Lin, supra, 176 Cal.App.4th at p. 420.) “If a voter requires additional information about the effects of the [law] at issue, he or she can seek it out before deciding whether to sign a referendum petition.” (Lin, at p. 420.) An objective rule ensures that referenda proponents have fair notice of a petition’s required contents so that they may exercise their constitutional right of referendum. (Ibid.; see also Cal. Const. art. II, § 11 [“referendum powers may be exercised by the electors of each city or county under procedures that the Legislature shall provide”].)

In summary, the purpose of the full text requirement is “to make sure that prospective signers have adequate information about the substance of a proposed [law] to make an informed decision about whether to sign the referendum petition.” (Defend Bayview, supra, 167 Cal.App.4th at p. 858.) “In all but the most extreme situations, this purpose is fulfilled by construing the ‘text’ to include the language of the ordinance itself, plus any documents attached as exhibits or expressly incorporated by reference.” (Lin, supra, 176 Cal.App.4th at p. 419.) The referendum petition in this case complied with the full text requirement.

III. Legality of Challenging One Legislative Act

The parties agree the County Board of Supervisors completed at least three concurrent associated legislative acts in connection with the Newland Sierra project: (1) it adopted the GPA resolution, which would have taken effect 30 days after its adoption except for the referendum petition; (2) the Board adopted the specific plan resolution, which states that its effectiveness occurs 30 days after its adoption provided that on that date, the GPA resolution, rezoning ordinance, and certain other documents are approved; and (3) the Board passed the rezoning ordinance to provide for zoning to support the development project, but the ordinance is not conditioned on the effectiveness of any other legislation and states that it “shall take effect and be in force thirty (30) days after the date of its passage . . . .”

Molloy claims the referendum petition is legally invalid because it only challenged the GPA resolution and not the two other associated legislative acts. He argues that, if the subject referendum petition is successful, it will “create inconsistencies” between the general plan, on the one hand, and the specific plan and rezoning ordinance, on the other.

In response, Golden Door argues that a general plan amendment can be challenged on its own even if it results in a temporary inconsistency with subordinate land use approvals, and in any event, there is no inconsistency due to the conditional language of the subordinate approvals and/or the operation of relevant law, which renders the subordinate approvals void ab initio.

Molloy cites no authority, statutory or otherwise, to support the proposition that a referendum petition must challenge three associated but distinct legislative acts together. We have not located any such requirement in the Elections Code. His reliance on City of Morgan Hill v. Bushey (2018) 5 Cal.5th 1068 (Bushey), is unavailing. In Bushey, the city amended its general plan to change the land use designation of a vacant parcel from “Industrial” to “Commercial.” The parcel’s zoning designation of “ML-Light Industrial” was not concurrently changed. Later, the city council amended the zoning ordinance to change the parcel’s designation to be “CG-General Commercial,” which conformed the zoning to the amended general plan and allowed for construction of a hotel. A referendum petition challenged only the ordinance change. (Id. at pp. 1076-1077.) The California Supreme Court upheld the referendum petition even though a successful referendum would make the zoning temporarily inconsistent with the city’s general plan. (Id. at p. 1080.)

Critically, our high court rejected the notion that the right of referendum should be restricted in some way to prevent an inconsistency between the general plan and zoning ordinance. (Bushey, supra, 5 Cal.5th at p. 1084.) Electors were not required to “challenge[] the prior alterations to the general plan by referendum, or change[] the general plan or the zoning ordinance by initiative . . . .” (Ibid.) The court discussed how “electors may agree with a general plan modification, but not the particular zoning amendment used to conform to the general plan. So the ability to bring a referendum to challenge a general plan amendment may not always make up for the lack of availability of a referendum challenging a later, more specific zoning ordinance amendment.” (Ibid.)

Bushey also reinforces the principle that “[w]hile a given general plan is in effect, neither local governments nor electors can enact a zoning ordinance inconsistent with it. [Government Code] [s]ection 65860, subdivision (a) provides that ‘[c]ounty or city zoning ordinances shall be consistent with the general plan of the county or city. . . .’ (§ 65860, subd. (a).)” (Bushey, supra, 5 Cal.5th at p. 1079.) Operationally, a referendum “rejects a statutory alteration before it becomes law” (id. at p. 1082) and “suspends the effective date of the challenged . . . amendment until a majority of voters approve the amendment” (id. at p. 1084; § 9145).

In this case, for whatever reason proponents of the referendum petition chose to challenge only the GPA resolution. Adopting or amending a general plan is a quintessential legislative act, subject to referendum. (Yost v. Thomas (1984) 36 Cal.3d 561, 570-571 (Yost) [adopting or amending general plan, rezoning land, and adopting specific plan, is each a legislative act subject to referendum].) As alluded to in Bushey, there are reasons why electors may wish to protest one legislative act and not some other associated legislative act or acts that may or may not produce the same result. Adhering to our policy of liberally construing referendum petitions in favor of their sufficiency, we conclude it was an acceptable course of action for proponents to challenge only the GPA resolution through referendum. (See Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591 [” ‘(I)t has long been our judicial policy to apply a liberal construction to [initiative and referendum] power wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it.’ “].)

We need not definitively resolve, at this juncture, the legal status of the rezoning ordinance and specific plan, which is the subject of litigation in another pending lawsuit. If the subordinate approvals conflict with the general plan, “some way out of the impasse will have to be found.” (Yost, supra, 36 Cal.3d at p. 574.) Suffice to say, “[b]ecause of its broad scope, long-range perspective, and primacy over subsidiary land use decisions, the ‘general plan has been aptly described as the “constitution for all future developments” within the city or county.’ ” (Orange Citizens for Parks & Recreation v. Superior Court (2016) 2 Cal.5th 141, 152.) ” ‘[T]he propriety of virtually any local decision affecting land use and development depends upon consistency with the applicable general plan and its elements.’ ” (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 570.)

The answer may be, as Golden Door contends, that the specific plan resolution and rezoning ordinance were void ab initio because their adoption was neither conditioned on the effectiveness of the GPA resolution nor consistent with the general plan in effect at the time. (See, e.g., Gov. Code, §§ 65454, 65860; Bushey, supra, 5 Cal.5th at p. 1082; Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 541 [“A zoning ordinance that is inconsistent with the general plan is invalid when passed”]; Midway Orchards, supra, 220 Cal.App.3d at p. 783 [board was without authority to approve a development agreement that was never consistent with effective general plan].) Regardless, the referendum petition is not invalid for challenging only the GPA resolution.

DISPOSITION

The judgment is affirmed. Respondents are awarded costs on appeal.

O’ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

DATO, J.

Filed 10/31/19 Weshler v. Rosensweig CA2/3

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 THREE

WINNIE WESHLER, as Trustee, etc.,

Plaintiff and Appellant,

v.

LINDA ROSENSWEIG, as Executor, etc., et al.,

Defendants and Appellants.

B287099

(Los Angeles County

Super. Ct. Nos. BP138677,

BP039256)

APPEALS from an order of the Superior Court of Los Angeles County, Lesley C. Green, Judge. Affirmed in part and reversed in part with directions.

Pettler & Miller and Mark A. Miller; Randall S. Rothschild for Plaintiff and Appellant.

Oldman, Cooley, Sallus, Birnberg, Coleman & Gold and David Coleman for Defendants and Appellants.

Lewis Brisbois Bisgaard & Smith, Kenneth C. Feldman, David D. Samani, and Allison A. Arabian for Defendant and Appellant Linda Rosensweig.

________________________

Winnie Weshler, as successor trustee of family trusts established by Robert and Betty Lee, brought a motion to disqualify two law firms—Oldman, Cooley, Sallus, Birnberg & Coleman, LLP (Oldman Cooley) and Lewis Brisbois Bisgaard & Smith LLP (Lewis Brisbois)—from representing interests adverse to the trusts. The trial court granted the motion to disqualify Oldman Cooley, but denied the motion to disqualify Lewis Brisbois.

As we discuss more fully below, we affirm the order as to Oldman Cooley, reverse it as to Lewis Brisbois, and order the trial court on remand to disqualify Lewis Brisbois from continued participation in this matter.

FACTUAL AND PROCEDURAL BACKGROUND

I.

Background

A. The Lee Trusts

The Lee Family Trust. Robert and Betty Lee established the Lee Family Trust (Family Trust) in 1976. Betty Lee died in 1979, and Robert Lee died in 1991. Upon Robert’s death, the Family Trust was divided into two separate trusts for the benefit of Robert and Betty’s sons, Ronald Lee and Steven Lee.

When Ronald died in 2006, the assets of his one-half share were divided among his surviving children, Diana Rothschild, Michele Lee, and Robinne Zeliznat. Steven’s share remained in trust until his death in 2014.

The 1977 Trust. Separately, Betty and Robert created the Robert and Betty Lee 1977 Trust (the 1977 Trust). The 1977 Trust was an irrevocable trust held for the benefit of Steven.

B. William Rosensweig’s Appointment and Alleged Breaches of Fiduciary Duty

Until his death, William Rosensweig (William), an attorney, was the trustee of the Family Trust and the 1977 Trust (collectively, the trusts or the Lee trusts).

In 2013, William entered into an agreement to sell an interest in real property owned by the Family Trust. The sale price was $11 million, as memorialized in a promissory note. Under the terms of the note, the buyer was required to make interest-only payments to the Family Trust for 10 years. Interest for the first year was to be prepaid immediately in the amount of $660,000; thereafter, interest was to be paid in monthly installments of $55,000.

Steven Lee died in October 2014. Thereafter, between December 2014 and August 2015, William paid himself approximately $550,000 from the Family Trust, ostensibly as a trustee’s fee for negotiating the sale of the real property.

C. The Oldman Cooley Firm’s Representation of William

For many years, William was represented, both individually and in his capacity as trustee, by James Birnberg and David Coleman of Oldman Cooley. As relevant to this appeal, between November 2014 and August 2015, Oldman Cooley assisted William with various legal issues relating to distribution of the trust assets after Steven Lee’s death. In this capacity, Oldman Cooley had privileged communications with William regarding the administration of the Lee trusts. During approximately the same period of time, Oldman Cooley helped William and his wife draft their own estate plan, including by creating a family trust, and drafted a durable power of management for William’s law practice.

D. The Breach of Trust Action

William died in August 2015. After his death, Weshler was appointed successor trustee of the Lee trusts.

In July 2016, Weshler filed petitions against Marilyn Rosensweig (Marilyn), trustee of William’s family trust, and Linda Rosensweig (Linda), personal representative of William’s estate (collectively, the Rosensweigs), alleging breach of trust by William in his management of the Lee trusts. Among other things, Weshler sought to recover from the Rosensweigs the $550,000 William paid himself from the Family Trust. Oldman Cooley appeared as counsel for Marilyn and Linda in their representative capacities, and Lewis Brisbois appeared for Linda with respect to the defense of claims that implicated William’s law firm, Mathon & Rosensweig, P.C.

It appears undisputed that Oldman Cooley has turned over a copy of its “trust files” to Weshler, but has refused to turn over notes of meetings and telephone conferences between William and Oldman Cooley attorneys.

II.

Motion to Disqualify Counsel

In June 2017, Weshler moved to disqualify Oldman Cooley and Lewis Brisbois from representing the Rosensweigs in the breach of trust action. Weshler asserted that a party may seek to disqualify a former attorney from representing an adverse party if there is a “substantial relationship” between the former and current representations. Here, Weshler said, Oldman Cooley had initially represented the former trustee, and then “switched sides and began representing clients directly adverse to the trustee of the exact same trusts on matters arising from their previous representation.” Further, as the attorney for William individually and as trustee, Oldman Cooley had access to confidential information, including William’s state of mind when he made the distributions at issue, and to confidential communications “regarding various legal maneuvers it directly participated in on behalf of the former trustee.” Finally, Oldman Cooley attorneys might be material witnesses at trial. Thus, Weshler urged, the Oldman Cooley firm should be disqualified. Lewis Brisbois should also be disqualified because “[t]hey represent the same parties as [Oldman Cooley], jointly making court filings and propounding discovery on behalf of the same parties, and can be presumed to be ‘working together’ and sharing ‘each other’s, and their clients’, confidential information.’ ”

The Rosensweigs opposed the motion to disqualify Oldman Cooley. They urged that Oldman Cooley had never represented Weshler, and thus Weshler lacked standing to seek the firm’s disqualification. On the merits, the Rosensweigs urged that where an attorney’s representation of opposing parties is successive, not simultaneous, disqualification is warranted only if the attorney learned something from the prior client that could be used against him in the subsequent litigation. In the present case, Oldman Cooley’s and William’s knowledge of private information was coextensive, and all privileged documents in Oldman Cooley’s possession had already been turned over to Weshler. Thus, Oldman Cooley’s continued participation in the litigation did not threaten the attorney-client privilege. Finally, the Rosensweigs urged Weshler had waived any conflict by failing to raise it in a timely fashion.

Linda also opposed the motion to disqualify Lewis Brisbois. She urged that Lewis Brisbois never represented William; any confidentiality or privilege associated with the information in question had been waived by placing confidential information at issue through litigation; and Weshler waived the issue by failing to timely raise it.

The trial court granted the motion to disqualify Oldman Cooley, but denied the motion to disqualify Lewis Brisbois. It explained as follows.

First, the court concluded that Weshler had standing to bring the disqualification motion. Although it was undisputed that Weshler, individually, was not a former client of Oldman Cooley, pursuant to Moeller v. Superior Court (1997) 16 Cal.4th 1124, 1131 (Moeller), the powers of a trustee are not personal to any particular trustee, but rather are inherent in the office of trustee. Accordingly, Weshler had standing as the successor trustee of the Lee trusts to disqualify Oldman Cooley and Lewis Brisbois.

Next, on the merits, the court concluded that Oldman Cooley had conflicts of interest that required its disqualification. The court explained: “Oldman Cooley admit[s] that [it] represented William concurrently in his role as trustee and as an individual. Particularly where, as here, William was purportedly double dealing and breaching his fiduciary duties to the trust, the dual representation is untenable and places Oldman Cooley in a conflict situation which requires [its] disqualification. Indeed, Weshler contends that Oldman Cooley assisted William by delaying providing information to beneficiaries which could have alerted them to his malfeasance.”

Finally, the court said there was insufficient evidence of a basis to disqualify Lewis Brisbois. It said: “Lewis Brisbois never represented William as trustee. Indeed it never represented him in any capacity. Rather, it was hired by Linda as a representative of William’s estate. . . . Weshler seeks to disqualify Lewis Brisbois solely on the ground that it has acted as co-counsel with Oldman Cooley and thus may have access to confidential information known to that firm. While this argument has some merit, in view of the policy considerations cited above in favor of allowing a party to choose its own counsel, the Court does not find this sufficient to disqualify Lewis Brisbois.”

The Rosensweigs timely appealed from the order granting the motion to disqualify Oldman Cooley, and Weshler timely appealed from the order denying the motion to disqualify Lewis Brisbois.

STANDARD OF REVIEW

“A trial court’s decision to grant or deny a motion to disqualify counsel is generally reviewed for abuse of discretion. (People v. Suff (2014) 58 Cal.4th 1013, 1038; In re Charlisse C. (2008) 45 Cal.4th 145, 159 (Charlisse C.); People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143 (SpeeDee Oil).) ‘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.’ (Charlisse C., at p. 159; see Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712.) While the trial court’s ‘ “application of the law to the facts is reversible only if arbitrary and capricious” ’ (Charlisse C., at p. 159), ‘where there are no material disputed factual issues, the appellate court reviews the trial court’s determination as a question of law.’ (SpeeDee Oil, at p. 1144; accord, California Self-Insurers’ Security Fund v. Superior Court (2018) 19 Cal.App.5th 1065, 1071; Castaneda v. Superior Court (2015) 237 Cal.App.4th 1434, 1443.)” (O’Gara Coach Co., LLC v. Ra (2019) 30 Cal.App.5th 1115, 1123–1124 (O’Gara Coach).)

APPEAL OF LINDA AND

MARILYN ROSENSWEIG

In their appeal from the order disqualifying Oldman Cooley, the Rosensweigs urge there was never an attorney-client relationship between Weshler and Oldman Cooley, and thus Weshler had neither standing nor a substantive basis on which to seek Oldman Cooley’s disqualification. Further, the Rosensweigs urge that disqualifying Oldman Cooley would not protect client confidences, and that Weshler sought Oldman Cooley’s disqualification for an improper purpose.

Weshler contends she has standing to seek Oldman Cooley’s disqualification because she stands in the shoes of the predecessor trustee. On the merits, she urges Oldman Cooley must be disqualified because it successively represented adverse interests; its representation of the Rosensweigs makes likely a breach of the duty of confidentiality; Oldman Cooley’s attorneys likely will be witnesses at trial; and substantial evidence supported the trial court’s conclusion that the disqualification motion was not brought for an improper purpose.

As we discuss, we conclude that Weshler, in her capacity as successor trustee, stands in the shoes of the predecessor trustee. Thus, Oldman Cooley owes Weshler the duties owed a former client—namely, duties of confidentiality and loyalty. Because those duties are imperiled by Oldman Cooley’s representation of the Rosensweigs in this action, the trial court did not abuse its discretion by concluding that Weshler had standing to bring the motion and by ordering Oldman Cooley’s disqualification.

A. Legal Principles Governing Disqualification of Former Counsel

A trial court’s authority to disqualify an attorney derives from the power inherent in every court “ ‘[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.’ [Citations.] Ultimately, disqualification motions involve a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility. [Citation.] The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar. The important right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process.” (SpeeDee Oil, supra, 20 Cal.4th at p. 1145; Lynn v. George, supra, 15 Cal.App.5th at p. 637, quoting SpeeDee Oil.)

An attorney’s fiduciary obligations to current and former clients include twin duties of loyalty and confidentiality. “ ‘ “[T]he effective functioning of the fiduciary relationship between attorney and client depends on the client’s trust and confidence in counsel. [Citation.] The courts will protect clients’ legitimate expectations of loyalty to preserve this essential basis for trust and security in the attorney-client relationship.” ’ ” (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1174.) Accordingly, even after severing a relationship with a client, an attorney “ ‘may not do anything which will injuriously affect his former client in any manner in which he formerly represented him nor may he at any time use against his former client knowledge or information acquired by virtue of the previous relationship.’ ” (O’Gara Coach, supra, 30 Cal.App.5th at p. 1124; see also Fremont Reorganizing Corp., at p. 1174.)

The prohibitions against taking actions adverse to, and disclosing confidences of, former clients are set out in governing case law and rule 1.9(a) of the California Rules of Professional Conduct (formerly, rule 3-310(E)). Rule 1.9(a) provides: “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed written consent.”

Rule 1.9(a) thus requires disqualification if four things are true: (1) the lawyer “formerly represented” an individual in a matter; (2) the former matter is the same or “substantially related” to a current matter; (3) the interests of the former and current clients are “materially adverse”; and (4) the former client did not give “informed written consent” to the current representation.

There is no dispute in the present case that the interests of Weshler and the Rosensweigs are materially adverse in this litigation, or that Weshler has not consented to Oldman Cooley’s representation of the Rosensweigs. What is disputed is whether Oldman Cooley “formerly represented” Weshler within the meaning of this rule, and, if so, whether the former representation is “substantially related” to Oldman Cooley’s current representation of the Rosensweigs. We turn now to these issues.

B. In Her Capacity as Trustee, Weshler Has a Former-Client Relationship with Oldman Cooley; Thus, Weshler Has Standing to Seek Oldman Cooley’s Disqualification

The Rosensweigs urge that Oldman Cooley owes no duties to Weshler because Weshler was never Oldman Cooley’s client. They urge that Oldman Cooley’s attorney-client relationship was with William, not with the “office of trustee,” and thus although Weshler succeeded William as trustee of the Lee trusts, she did not succeed to William’s attorney-client relationship with Oldman Cooley.

As we discuss, the Rosensweigs fundamentally misunderstand our Supreme Court’s decisions concerning the duties owed by attorneys representing trustees. In two separate decisions, our Supreme Court has held that a new trustee succeeds to the rights and duties of her predecessors, including to the attorney-client relationships the predecessor, in his or her capacity as trustee, had with counsel. As applied to the present case, therefore, these cases compel the conclusion that Weshler has a former-client relationship with Oldman Cooley and, as such, can seek the firm’s disqualification in this case.

1. Moeller v. Superior Court

In Moeller, supra, 16 Cal.4th 1124, our Supreme Court considered whether a successor trustee could obtain documents reflecting attorney-client privileged communications between the predecessor trustee and the predecessor’s attorney on matters of trust administration. There, after resigning as trustee, the predecessor trustee sought to recover various of its expenses from the trust. The successor trustee objected and demanded production of documents related to the predecessor’s administration of the trust, including documents reflecting legal services provided to the predecessor by its attorney. The predecessor refused to produce the documents, asserting they were protected by the attorney-client privilege and therefore were not discoverable. (Id. at pp. 1127–1128.)

The Supreme Court held that the power to assert the attorney-client privilege with respect to communications between the predecessor and its attorney on matters of trust administration belonged to the successor trustee—not to the predecessor trustee—and thus the successor was entitled to discovery of the attorney-client privileged documents. The court explained that the powers of a trustee are not personal to any particular trustee but, rather, are inherent in the office of trustee. (Moeller, supra, 16 Cal.App.4th at p. 1131.) The power to assert the attorney-client privilege follows from the trustee’s power to hire an attorney in order to obtain advice regarding trust property. (Ibid.) Therefore, “when a successor trustee takes office it assumes all of the powers of trustee, including the power to assert the privilege with respect to confidential communications between a predecessor trustee and an attorney on matters of trust administration.” (Ibid.)

The court explained that in performing their day-to-day duties, trustees regularly have confidential communications with their attorneys about trust business, such as potential acquisitions and dispositions of property, and lawsuits involving trust property. At any given time, therefore, many privileged communications concerning pending trust transactions may exist. To allow for effective continuous administration of a trust, “the right of access to these communications and the privilege to prevent their disclosure must belong to the person presently acting as trustee, because that person has the duty to conduct all pending trust business. Therefore, for a trust to continue to operate smoothly when a change in trustee occurs, the power to assert the attorney-client privilege must pass from the predecessor trustee to the successor.” (Moeller, supra, 16 Cal.4th at p. 1133, italics added.)

The court acknowledged that under the rule it adopted, a trustee would have to consider the possibility that its confidential communications with an attorney about trust administration might someday be disclosed to a successor trustee. In light of the nature of a trust and a trustee’s duties, the court said, this was not unfair: “A trust is a fiduciary relationship with respect to property in which the person holding legal title to the property—the trustee—has an equitable obligation to manage the property for the benefit of another—the beneficiary. [Citations.] A trustee must always act solely in the beneficiaries’ interest. [Citations.] If the trustee violates any duty owed to the beneficiaries, the trustee is liable for breach of trust. ([Prob. Code,] § 16400.) . . . The office of trustee is thus by nature an onerous one, and the proper discharge of its duties necessitates great circumspection. Liability to beneficiaries for mismanagement of trust assets is merely one of the burdens . . . trustees take on—for, presumably, an appropriate fee.” (Moeller, supra, 16 Cal.4th at pp. 1133–1134, italics in original.)

The court noted, finally, that the successor trustee inherits the power to assert the privilege “only as to those confidential communications that occurred when the predecessor, in its fiduciary capacity, sought the attorney’s advice for guidance in administering the trust. If a predecessor trustee seeks legal advice in its personal capacity out of a genuine concern for possible future charges of breach of fiduciary duty, the predecessor may be able to avoid disclosing the advice to a successor trustee by hiring a separate lawyer and paying for the advice out of its personal funds. [Citations.] . . . [¶] . . . [T]o require a trustee to distinguish, scrupulously and painstakingly, his or her own interests from those of the beneficiaries is entirely consistent with the purpose of a trust.” (Moeller, supra, 16 Cal.4th at pp. 1134–1135, italics in original.)

2. Borissoff v. Taylor & Faust

The Supreme Court considered a related question in Borissoff v. Taylor & Faust (2004) 33 Cal.4th 523 (Borissoff)—namely, whether an estate’s successor fiduciary had standing to bring a malpractice action against attorneys retained by the predecessor fiduciary to provide legal advice for the estate’s benefit. The attorneys contended they had a duty, answerable in malpractice, only to the person who retained them and with whom they stood in privity of contract. They thus urged that when a fiduciary hires an attorney for guidance in administering a trust, the fiduciary alone, in his or her capacity as fiduciary, is the attorney’s client. (Id. at p. 529.)

The Supreme Court held that the attorneys had a duty not only to the predecessor fiduciary, but to the successor fiduciary as well. The court explained that the Probate Code “provides that a ‘successor personal representative has the powers and duties in respect to the continued administration that the former personal representative would have had’ (§ 8524, subd. (c)), including the power to ‘[c]ommence and maintain actions and proceedings for the benefit of the estate’ (§ 9820, subd. (a)).” (Borissoff, supra, 33 Cal.4th at p. 530.) Reading these provisions together, the court said, “the following two conclusions seem inescapable: First, a fiduciary who hires an attorney with estate funds to provide tax assistance to the estate (§ 10801, subd. (b)) may, if the attorney commits malpractice harming the estate, commence an action for the benefit of the estate to recover the loss (§ 9820, subd. (a)). Second, if the fiduciary who hired the attorney is replaced, the successor acquires the same powers the predecessor had in respect to trust administration (§ 8524, subd. (c)), including the power to sue for malpractice.” (Ibid.)

In so concluding, the court rejected the attorneys’ contention that a rule permitting a successor fiduciary to sue the predecessor’s attorney for malpractice was unworkable because it created a potential conflict of interest if the attorney had advised the predecessor in both fiduciary and personal capacities. The court explained: “The problem defendants identify is not the result of the proposed rule, which would only permit a successor fiduciary to sue an attorney whose malpractice has harmed the estate. Instead, the problem arises when, and because, an attorney undertakes to represent a fiduciary in the latter’s personal and fiduciary capacities simultaneously, when that entails a conflict of interest. The situation is analogous to that presented when a corporation’s officer seeks personal advice from corporate counsel. ‘The attorney for a corporation represents it, its stockholders and its officers in their representative capacity. He in nowise represents the officers personally.’ [Citation.] Thus, for example, corporate counsel may not advise an embezzling officer how to avoid personal liability to the corporation without thereby acquiring a conflict of interest with the corporation. Similarly, an attorney retained to advise a fiduciary in his or her official capacity, who is asked by the fiduciary for assistance in avoiding detection of and liability for misappropriation, faces a potential conflict of interest and may have no choice but to withdraw . . . .” (Borissoff, supra, 33 Cal.4th pp. 533–534, italics in original.)

3. Moeller and Borissoff Compel the Conclusion that Weshler Has Standing to Seek Oldman Cooley’s Disqualification

As we have discussed, both Moeller and Borissoff stand for the proposition that when a successor trustee assumes office, he or she steps into the attorney-client relationship between the prior trustee, in his or her capacity as trustee, and the prior trustee’s former counsel. Inherent in the attorney-client relationship is the client’s right to seek to disqualify current or former counsel from representing an adverse party in a related matter. (E.g., Lynn v. George, supra, 15 Cal.App.5th at p. 636 [standing to seek disqualification arises out of present or former attorney-client relationship]; Conservatorship of Lee C. (2017) 18 Cal.App.5th 1072, 1083 [same].) Accordingly, the power granted a successor trustee necessarily includes the power to seek to disqualify an attorney retained by the predecessor trustee to advise him or her on matters of trust administration.

It is undisputed in the present case that William, in his capacity as trustee, retained Oldman Cooley to advise him on administering the Lee trusts. As a matter of law, therefore, when Weshler succeeded to the office of trustee of the Lee trusts, she inherited, among other things, an attorney-client relationship with Oldman Cooley. She therefore has standing to disqualify Oldman Cooley from representing parties whose interests are materially adverse to hers.

In urging that Weshler lacks standing to seek Oldman Cooley’s disqualification, the Rosensweigs cite to a passage in the Moeller opinion that they urge stands for the proposition that Oldman Cooley represented William, not the “office of trustee.” That passage says: “[The successor trustee] . . . argues the attorney-client privilege ‘vest[s] in the office [of the trustee] and not in any particular individual or entity who at one time was the trustee . . . .’ [The former trustee] interprets [the successor trustee’s] argument to be that ‘the “office of trustee” is the client when a trustee consults legal counsel about trust administration.’ If this were [the successor trustee’s] argument, it would fail simply as a matter of linguistics, for only a ‘person’ can be a ‘client’ (Evid. Code, § 951), and the definition of ‘person’ does not include ‘office of trustee.’ (See Evid. Code, § 175.) [¶] We do not, however, interpret [the successor trustee’s] argument as [the predecessor trustee] does. Rather, we understand [the successor trustee] to argue that the power to control the privilege belongs to the current occupant of the office of trustee, not to the office itself, so that the ‘client’ for purposes of the attorney-client privilege is the current trustee.” (Moeller, supra, 16 Cal.4th at p. 1131 & fn. 2, italics in original.)

The Rosensweigs rely repeatedly on this passage to urge that Oldman Cooley did not represent the “office of trustee” and, therefore, could not have succeeded to an attorney-client relationship with Weshler. Their contention is based on a fundamental misunderstanding of the Moeller decision. While Moeller said that counsel could not represent the “office of trustee” (a nonperson), it held that counsel could represent the trustee “qua trustee” (16 Cal.4th at p. 1129), such that if a new individual succeeded to the office of trustee, the power to control the attorney-client privilege belonged to the current occupant of the office, not to the former occupant. Stated differently, although the attorney represented the trustee, not the office of trustee, the right to control the attorney-client relationship was “not personal to any particular trustee but, rather, [was] inherent in the office of trustee.” (Moeller, supra, 16 Cal.4th at p. 1131.) As relevant to the present case, therefore, because Oldman Cooley had an attorney-client relationship with William in his capacity as trustee, Weshler, as a matter of law, succeeded to the rights inherent in that relationship when she assumed the office of trustee—including the rights of a former client to insist that counsel honor its duties of loyalty and confidentiality. Accordingly, Weshler unquestionably had standing to bring the present motion to disqualify.

C. The Prior and Current Representations Are “Substantially Related”

As we have said, a client seeking to disqualify former counsel must demonstrate that the former matter in which the attorney represented the client is “substantially related” to the current matter. A substantial relationship exists between prior and current representations “ ‘ “whenever the ‘subjects’ of the prior and the current representations are linked in some rational manner. [Citation.]” [Citation.]’ [Citation.] ‘Thus, successive representations will be “substantially related” when the evidence before the trial court supports a rational conclusion that information material to the evaluation, prosecution, settlement or accomplishment of the former representation given its factual and legal issues is also material to the evaluation, prosecution, settlement or accomplishment of the current representation given its factual and legal issues.’ [Citation.]” (Fiduciary Trust Internat. of California v. Superior Court (2013) 218 Cal.App.4th 465, 480 (Fiduciary Trust).)

The evidence produced in the trial court demonstrates that Oldman Cooley represented William, in his capacity as trustee, at the time William transferred $550,000 from the trust to himself. The propriety of that transfer, among other things, is at issue in this litigation. Thus, the subject of Oldman Cooley’s representation of William, and the subject of the firm’s current representation of the Rosensweigs, are not only substantially related, but involve the identical subject.

The Rosensweigs do not dispute that Oldman Cooley’s prior representation of William was substantially related to the current dispute. They urge, however, that their communications with their own client relating to the administration of the trust are not “confidential” for purposes of this action, and thus disqualifying Oldman Cooley will not accomplish the goal of the successive representation prohibition, which they characterize as protecting client confidences.

The Rosensweigs’s contention has at least two fundamental flaws. First, our Supreme Court has held that “[w]here the requisite substantial relationship between the subjects of the prior and the current representations can be demonstrated, access to confidential information by the attorney in the course of the first representation (relevant, by definition, to the second representation) is presumed. (Flatt v. Superior Court (1994) 9 Cal.4th 275, 283; Kim v. The True Church Members of Holy Hill Community Church (2015) 236 Cal.App.4th 1435, 1454 (Kim).) Thus, “if the substantial relationship test is satisfied by the former client, ‘ “. . . the discussion should ordinarily end. The rights and interests of the former client will prevail. Conflict would be presumed; disqualification will be ordered. . . .” ’ ” (In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 563, italics added; see also Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 114 [“In order to seek disqualification, the former client need not establish that the attorney actually possesses confidential information. It is enough to show that there was a ‘substantial relationship’ between the former and the current representation. If the former client establishes the existence of a substantial relationship between the two representations the court will conclusively presume that the attorney possesses confidential information adverse to the former client and order disqualification.” (Italics added.])

As applied here, these cases suggest that to prevail, Weshler need not demonstrate that Oldman Cooley actually possessed confidential information—rather, Oldman Cooley’s possession of confidential information is presumed if its prior representation of the trustee and current representation of the Rosensweigs are substantially related. Here, they unquestionably are, and thus we are required to presume that Oldman Cooley possesses confidential information.

Second, even if Oldman Cooley’s representation of the Rosensweigs did not put client confidences at risk, its disqualification nonetheless would be required because its representation of an interest contrary to a former client runs afoul of the duty of loyalty. “Although the California Supreme Court has emphasized the duty of maintaining client confidences in successive representation cases (see, e.g., Flatt, supra, 9 Cal.4th at p. 283), the duty of loyalty also plays a role, as recognized in the long-standing rule that ‘ “an attorney is forbidden to do either of two things after severing his relationship with a former client. He may not do anything which will injuriously affect his former client in any manner in which he formerly represented him nor may he at any time use against his former client knowledge or information acquired by virtue of the previous relationship.” ’ (People ex rel. Deukmejian v. Brown (1981) 29 Cal.3d 150, 155–156, quoting Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 573–574.)” (Kim, supra, 236 Cal.App.4th at p. 1456, second italics added.) In short, the ethical bar against acting in a manner adverse to a former client’s interests implicates “not just the duty to maintain client confidences, but the duty of loyalty,” as well. (Ibid., italics added.)

The Court of Appeal relied on the duty of loyalty owed a former client to order attorney disqualification in Fiduciary Trust, supra, 218 Cal.App.4th 465, concluding that even if a lawyer’s representation of an interest adverse to a former client did not endanger client confidences (and thus did not violate the lawyer’s duty of confidentiality), it nonetheless was an impermissible violation of the lawyer’s duty of loyalty. There, a law firm drafted wills and trusts for a husband and wife. After the death of both spouses, a dispute arose between the wife’s personal representative and the trustees of the marital trust (represented by the law firm that previously represented husband and wife) regarding whether the terms of the husband’s will required the marital trust to pay estate and inheritance taxes due on the wife’s assets. The wife’s personal representative moved to disqualify the law firm, urging that the firm’s prior representation of the wife precluded it from representing the trustees. The trial court denied the request to disqualify, and the wife’s representative filed a petition for writ of mandate. (Id. at p. 470.)

The Court of Appeal granted the petition and ordered the trial court to disqualify the law firm, concluding that although any attorney-client communications would not have been privileged as between the husband and wife, who were joint clients of the firm, the firm’s duty of loyalty to the wife as a former client precluded its representation of an interest adverse to hers. The court relied heavily on Western Continental Operating Co. v. Natural Gas Corp. (1989) 212 Cal.App.3d 752, in which the court had noted that the rule against representing conflicting interests was broader than the attorney-client privilege because “ ‘ “ ‘ “[t]he duty not to represent conflicting interests . . . is an outgrowth of the attorney-client relationship itself, which is confidential, or fiduciary, in a broader sense. Not only do clients at times disclose confidential information to their attorneys; they also repose confidence in them. The privilege is bottomed only on the first of these attributes, the conflicting-interests rule, on both.” ’ ” ’ ” (Fiduciary Trust, supra, 218 Cal.App.4th 465, 485.)

The Fiduciary Trust court agreed: “In explaining the standard for evaluating whether representation adverse to the interests of a former client is prohibited, the California Supreme Court has ‘broadly . . . explained “an attorney is forbidden to do either of two things after severing his relationship with a former client. He may not do anything which will injuriously affect his former client in any matter in which he formerly represented him nor may he at any time use against his former client knowledge or information acquired by virtue of the previous relationship.” [Citation.] The prohibition is in the disjunctive. An attorney “may not use information or ‘do anything which will injuriously affect his [or her] former client.’ ” [Citation.]’ [Citations.] In this case, [the attorney’s] conduct falls squarely within the prohibition. Although the firm previously represented both [wife] and [husband] in the estate planning matters, it is now asserting (on behalf of [husband’s] representatives) that the documents it prepared during the joint representation should be interpreted in a manner that would substantially reduce the value of [wife’s] estate (or her trust), thereby harming her interests.

“The California Supreme Court has . . . repeatedly held that the disqualification rules are not merely intended to protect client confidences or other ‘interests of the parties’; rather, ‘[t]he paramount concern . . . [is] to preserve public trust in the scrupulous administration of justice and the integrity of the bar.’ [Citation.] In light of these significant public interests, we do not agree that matters of disqualification should be determined solely by reference to [rules governing joint representation].” (Fiduciary Trust, supra, 218 Cal.App.4th at pp. 485–486.)

The present case is analogous. As counsel for the Rosensweigs, Oldman Cooley will necessarily take the position in this action that William’s transfer of $550,000 from the trust to himself was not a breach of duty. That position is directly contrary to that of the trustee and, if successful, will substantially reduce the value of the trust. Because Oldman Cooley’s representation of the Rosensweigs therefore requires it to advocate a position injurious to the trustee, it necessarily violates the duty of loyalty the firm owes a former client and, as such, requires the firm’s disqualification in this action.

D. The Rosensweigs’s Remaining Contentions Are Without Merit

Notwithstanding the foregoing, the Rosensweigs contend that requiring Oldman Cooley’s disqualification is unjust because it “presumes [William’s] guilt.” According to the Rosensweigs, “[t]he former trustee is not betraying the ‘office of trustee’ if the charges are false. Likewise, there is no conflict of interest between the personal and fiduciary interests of the trustee if the fiduciary is wrongly accused.” We do not agree. There is no dispute that William transferred $550,000 from the trust to his own accounts; what is at issue is whether he did so lawfully. If he did, his estate is entitled to keep the $550,000; if not, his estate will be compelled to return it. The interests of the trust and the interests of the Rosensweigs, therefore, are fundamentally at odds. Under these circumstances, disqualification does not “presume the guilt or liability of the accused”—it merely ensures that the parties’ competing interests are fairly represented by counsel whose loyalties are not divided.

The Rosensweigs next contend that disqualifying Oldman Cooley will do nothing to protect client confidences because, as the client, William “ ‘ still has the information and may pass it on to new counsel, leaving the adversary in the same position.’ ” Not so. As a factual matter, because William is deceased, he cannot pass on confidential information to new counsel. Under these circumstances, disqualifying Oldman Cooley will have real teeth—namely, it will protect the attorney-client privilege by preventing the sharing of confidential information with the trustee’s litigation adversaries.

Next, the Rosensweigs cite Ontiveros v. Constable (2016) 245 Cal.App.4th 686, 700, for the proposition that only the duty of confidentiality, not the duty of loyalty, is implicated in a successive representation context. Whatever the merits of this conclusion in the context of a dispute between shareholders of a closely held corporation, we decline to apply it in the present dispute between a predecessor and successor trustee. As we have said, under Supreme Court precedent, an attorney “ ‘ “is forbidden to do either of two things after severing his relationship with a former client. He may not do anything which will injuriously affect his former client in any matter in which he formerly represented him nor may he at any time use against his former client knowledge or information acquired by virtue of the previous relationship.” [Citation.] The prohibition is in the disjunctive. An attorney “may not use information or ‘do anything which will injuriously affect his [or her] former client.’ ” [Citation.]’ (City National Bank v. Adams (2002) 96 Cal.App.4th 315, 323–324, fn. omitted, quoting & citing Wutchumna Water Co. v. Bailey[, supra,] 216 Cal. 564, 573–574 and People ex rel. Deukmejian v. Brown[, supra,] 29 Cal.3d 150, 156.)” (Fiduciary Trust, supra, 218 Cal.App.4th at p. 485, first and second italics added.) This dual prohibition is consistent with the current version of the Rules of Professional Conduct, which prohibit an attorney from representing a person with interests materially adverse to the interests of a former client in a substantially related matter, without regard to the attorney’s acquisition of confidential information. (See Rules Prof. Conduct, rule 1.9(a).) Accordingly, because Oldman Cooley previously represented the trustee as trustee, and because the Rosensweigs are now adverse to the trustee in this litigation, Oldman Cooley’s representation of the Rosensweigs is inconsistent with its duty to Weshler as a former client.

The Rosensweigs urge, finally, that the disqualification motion should not have been granted because “[t]he record in this matter shows that Weshler’s motions to disqualify were brought only for an improper purpose.” In support, the Rosensweigs do not cite any authority for the proposition that a motion may be denied if the moving party seeks disqualification for an improper reason, nor do they cite any evidence suggesting Weshler’s motives were suspect. We therefore do not address the merits of this contention. (E.g., Consumer Advocacy Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th 675, 694 [if appellate brief does not cite legal authority on each point made, the court may “ ‘ “ ‘pass it without consideration’ ” ’ ”].)

For all of the foregoing reasons, we conclude that the trial court did not abuse its discretion in granting Weshler’s motion to disqualify Oldman Cooley as counsel for the Rosensweigs, and we thus affirm this aspect of the court’s disqualification order.

APPEAL OF WINNIE WESHLER,

AS TRUSTEE OF THE LEE TRUSTS

Weshler appeals from the trial court’s order allowing Lewis Brisbois to remain counsel of record for Linda, as personal representative of William’s estate. Weshler contends that the trial court erred as a matter of law because “[t]he Oldman Cooley lawyers’ conflicts (including their breaches of their duties of confidentiality and loyalty, the attorney-client privilege, and their violation of the prohibition against representing conflicting interests), also taint co-counsel Lewis Brisbois under the imputed knowledge doctrine.” For the reasons that follow, we agree.

It is undisputed that Lewis Brisbois never represented William or Weshler, and thus the duties of loyalty and confidentiality owed former clients are not directly implicated. Under principles of vicarious disqualification, however, a conflict of interest may be imputed to other attorneys with whom the disqualified attorney associated if confidential information was, or is likely to have been, shared. (Pound v. DeMera DeMera Cameron (2005) 135 Cal.App.4th 70 (Pound); Beltran v. Avon Products, Inc. (C.D. Cal. 2012) 867 F.Supp.2d 1068, 1083; Advanced Messaging Technologies, Inc. v. Easylink Services Intl. Corp. (C.D. Cal. 2012) 913 F.Supp.2d 900, 910.)

The court discussed vicarious disqualification in Pound. There, the plaintiffs were represented by Attorney Jones, and the defendants were represented by Attorney Smith. On behalf of the defendants, Smith met with a third attorney, Bradley, for about an hour, during which time Smith “discussed the case in specific terms, including issues, personalities, vulnerabilities, and other topics properly described as attorney work product.” (Id. at p. 74.) Ultimately, however, Smith did not retain Bradley. Three years later, plaintiff’s attorney, Jones, consulted with Bradley on a couple of occasions. Bradley asserted that he could not recall any information he might have received from Smith, and therefore he could not, and had not, shared any such information with Jones. (Ibid.)

The Court of Appeal characterized the case as one of “successive” representation, in which Bradley entered an attorney-client relationship with the defendants when he met with Smith, and subsequently with the plaintiffs when he met with Jones. (Pound, supra, 135 Cal.App.4th at p. 76.) Because the two actions were substantially related, Bradley’s disqualification was mandatory. Further, Bradley was presumed to have shared the defendants’ confidential information with Jones during their cocounsel relationship, and thus Jones’s disqualification was also required. (Id. at p. 78.) The court explained: “The need to maintain client confidences, as well as our obligation to maintain public confidence in the legal profession and the judiciary, would be defeated if we permitted Jones’s continued representation of plaintiffs after his having hired Bradley to assist in a case where Bradley previously represented defendants and, in the course of this representation, obtained confidential information. The distinction between hiring Bradley as an associate or partner, on the one hand, and associating him as counsel, on the other hand, does not change the need to protect defendants’ confidences. The only effective method to protect defendants’ confidences from the possibility of inadvertent disclosure is also to disqualify Jones.” (Ibid.)

Weshler urges that the present case is analogous to Pound, and thus Lewis Brisbois must be disqualified because of its association with Oldman Cooley. We agree. Oldman Cooley is presumed to possess confidential information as to which Weshler holds the attorney-client privilege. Oldman Cooley and Lewis Brisbois represent the same party (Linda), and by Oldman Cooley’s own admission, the two firms have “been working closely” together to defend this action. Thus, under the principles articulated in Pound, Lewis Brisbois is presumed to have confidential information from Oldman Cooley—a presumption that Lewis Brisbois conceded at oral argument it had not rebutted. As in Pound, therefore, Lewis Brisbois must be disqualified as a result of its association with Oldman Cooley.

Linda contends that Lewis Brisbois’s possession of confidential information is not disqualifying because, as William’s personal representative, she “stands in the shoes of her father as a matter of law.” This is true only in part. While Linda, as William’s personal representative, properly holds the attorney-client privilege as to William’s confidential information, she can have no claim through William to the trust’s confidential information. That privilege, as we have said, is held by Weshler. Accordingly, since William cannot claim the attorney-client privilege as to the trust’s confidential information, Linda, as his personal representative, can have no right to do so.

DISPOSITION

We affirm the attorney disqualification order as to Oldman Cooley and reverse it as to Lewis Brisbois. On remand, we direct the trial court to enter a new and different order disqualifying Lewis Brisbois. Weshler is awarded her appellate costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

EGERTON, J.

HANASONO, J.*

Filed 10/31/19 Marriage of Alvizo CA2/3

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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE
In re the Marriage of FRANK and NINA ALVIZO. B287476
FRANK ALVIZO,

Plaintiff and Appellant,

v.

NINA ALVIZO,

Defendant and Respondent. Los Angeles County

Super. Ct. No. BD602649
APPEAL from an order of the Superior Court of Los Angeles County, Lynn H. Scaduto, Judge. Affirmed.

Law Offices of Richard A. Marcus and Richard A. Marcus for Plaintiff and Appellant.

Law Office of Aaron Leetch and Aaron J. Leetch for Defendant and Respondent.

INTRODUCTION

Frank Alvizo appeals from a family court order permanently renewing a Domestic Violence Restraining Order (DVRO) protecting his ex-wife Nina Alvizo. He argues he was denied due process of law because the court would not consider evidence from a custody hearing held several years earlier. But Frank neither requested judicial notice of the documents at issue nor attempted to admit them as exhibits below. Accordingly, we conclude Frank has forfeited the issue, and we affirm.

BACKGROUND

Nina and Frank married in 2003. They have three minor children.

In October 2012, Nina and Frank got into a physical altercation in front of their oldest two children. As a result, Frank moved out of the house, and Nina obtained a criminal protective order against him. In December 2012, Frank and Nina reconciled. They resumed their marital relationship and had a third child the next year.

In May 2014, Frank and Nina got into an argument while driving home from a couples’ retreat, and Frank threatened to kill Nina if she took the children away from him.

The couple separated on May 24, 2014, and on May 29, 2014, Nina filed an application for a DVRO. She was granted a temporary DVRO pending a hearing on the matter.

On June 2, 2014, Frank filed a petition to dissolve the marriage. On October 21, 2014, after a contested evidentiary hearing before Judge Marc D. Gross, the court issued a three-year DVRO protecting Nina from Frank. The DVRO would expire on October 21, 2017 at 5:00 p.m.

Nina subsequently filed a request to relocate with the children to her home state of Illinois. The court appointed an expert to conduct a child custody evaluation. On June 18, 2015, based on the evaluator’s written report and testimony at a contested hearing, Judge Gross concluded Frank had overcome the Family Code section 3044 presumption, and, if Nina moved to Illinois, it would be in the children’s best interests to remain with Frank in California.

On August 6, 2015, the court entered a stipulated judgment on the bifurcated issue of custody and visitation, effectively denying Nina’s request to relocate with the children. The court found Nina’s “motivations for the proposed move [were] mixed. While the court [did] believe there [was] an element of good faith to the move, the court also believe[d] there [was] an element motivating the move of an attempt to avoid father.”

A judgment of dissolution of marriage was entered on October 21, 2016.

On October 20, 2017, Nina filed a timely request to renew the DVRO permanently. Frank was personally served with the renewal request on October 22, 2017.

On November 17, 2017, Judge Lynn H. Scaduto held a three-hour contested hearing on the renewal request. Both Nina and Frank testified. The court heard argument, then granted Nina’s request for permanent renewal of the DVRO.

Frank filed a timely notice of appeal. (See Molinaro v. Molinaro (2019) 33 Cal.App.5th 824, 831, fn. 6 [issuance of a DVRO is an appealable order under Fam. Code, § 904.1, subd. (a)(6)].)

DISCUSSION

Frank insists he “was deprived of the right to a fair trial when the family law court refused to consider critical evidence consisting of the custody evaluation report and addendum, the evaluator’s testimony, and the Court’s own files.” We disagree.

1. Legal Principles
2.
A court may take judicial notice of the records of any court of this state—including materials contained in its own files. (Evid. Code, § 452, subd. (d)(1).) The court must judicially notice such records if “a party requests it” and the requesting party “furnishes the court with sufficient information to enable it to take judicial notice of the matter.” (§ 453.) But the rules of evidence are not self-executing; the court is not required to take judicial notice absent a request. (People v. Amaya (2015) 239 Cal.App.4th 379, 386.)

Rule 5.115 requires any party requesting judicial notice in a family law proceeding to “provide the court and each party with a copy of the material [he wants the court to judicially notice]. If the material is part of a file in the court in which the matter is being heard, the party must specify in writing the part of the court file sought to be judicially noticed and make arrangements with the clerk to have the file in the courtroom at the time of the hearing.” The rule affords the court time to comply with section 453, which requires it to give the “adverse party sufficient notice of the request … to enable such adverse party to prepare to meet the request.” (§ 453, subd. (a).)

3. Frank did not seek admission of the documents.
4.
Despite his claims to the contrary, Frank not only failed to comply with rule 5.115 in this case but also failed to even ask the court to judicially notice the reports and transcripts he now claims were critical to the court’s decision on the renewal request.

To be sure, counsel sometimes obliquely alluded to such a wish. For example, shortly after Nina began testifying, Frank’s attorney interjected, “This was actually testimony that was rejected by Judge Gross.” Once counsel explained the move-away hearing, the court asked, “Are you suggesting that I have to reread the entire transcript of the last hearing?” Counsel answered, “No. What I would like to be able to do, though, is to get the relevant portions of that transcript because this is, like, a second adjudication of something that’s already happened.”

After Nina’s attorney objected that he had not received notice of such a request and disputed Frank’s characterization of Judge Gross’s rulings, the court asked Frank’s lawyer, “What is it you’re asking the court to do, [counsel]?” But counsel still did not request judicial notice. Instead, counsel replied, “I’m just objecting because this is now—there’s already been findings made by the court, this court, regarding the testimony that [Nina] is providing that has been rejected by the court.”

Other times, counsel barely mentioned the assertedly-critical evidence. For example, Frank claims on appeal that he “specifically requested that the Court review the custody evaluator’s report and her testimony because Nina was attempting to re-litigate a number of issues that had already been determined adversely to her by Judge Gross.” But Frank provides no record cite to support this claim, and our review of the reporter’s transcript has not revealed any. To the contrary, the transcript reveals Frank was primarily concerned with Judge Gross’s findings; he referred to the custody evaluator—and her report—only in passing.

Nor did Frank attempt to bring the materials before the court by entering them into evidence. For example, Frank claims that “[d]uring the proceedings, Judge Scaduto declined to consider the findings made by Judge Gross” that Nina’s “motivations for the proposed move were mixed.” Unlike the other documents at issue here, however, the court had the judgment in which that finding appears; Frank had marked it as an exhibit and attached it to his opposition papers. Yet counsel never attempted to move that exhibit into evidence.

Fundamentally, Frank argues in this appeal that during a three-hour hearing in which he testified at length, he was denied due process of law because the court failed to consider evidence he did not present. We conclude he has forfeited that claim by failing to meet any of the requirements for such a request. (§ 453; rule 5.115; see CREED-21 v. City of San Diego (2015) 234 Cal.App.4th 488, 519–521 [court did not abuse its discretion by denying a request for judicial notice where requesting party did not meet statutory requirements].)

DISPOSITION

The order granting a permanent restraining order is affirmed. Respondent Nina Alvizo shall recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

DHANIDINA, J.