Filed 11/14/19 Marriage of Restaino CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re the Marriage of DEBORAH K. and JOHN M. RESTAINO, JR.

DEBORAH K. RESTAINO,

Appellant,

v.

JOHN M. RESTAINO, JR.,

Respondent.

G054778

(Super. Ct. No. 05D001004)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, James L. Waltz, Judge. Affirmed in part, reversed in part and remanded with directions.

Law Offices of Marjorie G. Fuller and Marjorie G. Fuller; Brandmeyer, Gilligan & Dockstader and John J. Gilligan for Appellant.

Law Offices of Steven E. Briggs, Steven E. Briggs and Luis A. McKissick for Respondent.

* * *

In this appeal, the fourth arising from the dissolution of Deborah and John Restaino’s marriage, Deborah contends the court erred in three ways: first, it erroneously interpreted one of our prior opinions in this matter, and as a result it undervalued her interest in a community business; second, it abused its discretion in eliminating her spousal support and reducing spousal support arrearages; and, third, it abused its discretion in denying her attorney fees. We agree the court erred in eliminating spousal support altogether. In all other respects we affirm.

FACTS

As this is the fourth appeal in this matter, we present a brief version of the facts.

The parties separated in November 2004, ending their 21-year marriage. In February 2005, Deborah filed a marital dissolution petition. Without objection, John obtained a judgment terminating the parties’ marital status in July 2006. John, an attorney, filed a response to the petition with a schedule of assets that listed his “[e]quity share” in the law firm of Lopez, Hodes, Restaino, Milman & Skikos (Lopez Hodes) as a community asset.

In December 2006, John filed a declaration in which he stated Lopez Hodes was “winding down” “under the supervision of” an arbitrator, and that he had “entered into a [confidential] agreement with Lopez Hodes with respect to the termination of my interest.”

Before trial, the parties entered into a stipulation whereby each received one-half of a $500,000 distribution from Lopez Hodes’s arbitrator “on account of monies due [John] under the terms of [a] ‘confidential agreement’” between the shareholders of Lopez Hodes. The stipulation described the funds received by each party “as a preliminary distribution of community property without prejudice.”

In May 2007, the parties executed a stipulation stating John was “entitled to the payment of certain specified monies” under the confidential agreement relating to the winding down of Lopez Hodes. The stipulation provided, “The character of the monies to be paid to [John] has not yet been determined,” and the parties agreed to have one-half of the funds distributed to each party’s attorney to be held in interest-bearing bank accounts.

In the same month, John filed a declaration responding to an order to show cause, stating the confidential agreement negotiated for the winding down of Lopez Hodes was not “a buy-out of shares,” because “all parties [agreed] it was nigh impossible to ‘value’ a pure contingency firm and, therefore, the money would be distributed as it . . . had been in the past; bonuses based upon partnership interest.” A later declaration claimed the agreement provided “individuals [would] receive[] various bonus payments as a result of work performed on litigation that had been settled and it was further agreed that these individuals . . . would receive future bonuses based on other matters not yet concluded. [¶] Portions of the funds payable as a result of the terms of this settlement were attributable to my work at the firm prior to . . . separation and portions of these funds were attributable to work performed after the date of separation.”

In November, John filed an order to show cause to reduce his spousal support obligation. The court began a hearing on it in February 2008. The hearing was continued to April 1, on which date the court took the matter under submission. Trial on the reserved issues began the next day. It was agreed the evidence presented on John’s order to show cause would be considered as part of the trial evidence.

Trial was held on numerous dates over a period of several months. The court issued a tentative decision on February 6, 2009. The court issued a final statement of decision and entered judgment on the reserved issues on December 3, 2009.

The judgment awarded Deborah monthly spousal support of $6,200 plus 19 percent of John’s “gross monthly earnings, bonuses, commissions, distributions or income over and above” base salary, retroactive to January 1, 2008.

The court also characterized the funds John received as a result of the winding down of Lopez Hodes as income. Its statement of decision noted the court did not admit any parol evidence “regarding the [confidential settlement a]greement” and “interpreted the document on its face . . . .” The court construed the agreement to mean “the sums due [John] on pending litigation matters . . . were bonuses or compensation due . . . by virtue of [John’s] efforts or work performed either before or after the parties’ separation.”

Deborah appealed, contending the court had undervalued the marital standard of living, and that the court erred in characterizing the Lopez Hodes payouts as income. We affirmed the court’s spousal support order, but we reversed the court’s characterization of the Lopez Hodes payouts. We determined those payouts represented John’s equity in the firm, not income, and the equity was a community asset. Accordingly, Deborah was entitled to a share of nearly all of the Lopez Hodes payouts, even the payouts designated as compensation for work performed post-separation. We gave the court “directions to equally divide between the parties all nonsalary proceeds received by [John] under the settlement agreement.” (In re Marriage of Restaino (Jan. 13, 2012, G043194) [nonpub. opn.] (Restaino I).)

While that appeal was pending, two events of note occurred. First, on June 15, 2011, John filed an order to show cause to modify spousal support. It would take almost five years before the court ruled on that request, and that ruling is before us now. Second, the court forged ahead with a hearing on spousal support arrearages. (In re Marriage of Restaino (May 16, 2013, G045429) [nonpub. opn.] (Restaino II).) John appealed the court’s order on arrearages, and we reversed on the ground that the issue of arrearages depended on the characterization of the Lopez Hodes payouts, which was an issue pending in Restaino I when the court issued its order, and thus the court lacked jurisdiction over arrearages. We also concluded the court had failed to consider all relevant factors in denying Deborah’s motion for attorney fees. We reversed for “a determination, in light of our prior reversal of the December 2009 judgment, of the amount of spousal support arrearages, if any, husband owes to wife and her motion for attorney fees.” (Restaino II, supra, G045429.)

Afterward, the court held a hearing on all of the issues on remand from the first two appeals, plus John’s June 15, 2011, request to modify spousal support. The court evenly divided the nonsalary distributions from Lopez Hodes and rejected “Deborah’s contention that a full and fair valuation of the community’s interest in the law firm has never been completely determined and or there remains outstanding (left-over) or un-adjudicated community property claims regarding the long ago dissolved law firm.” It found that John owed $72,525 in arrearages from the years 2005 through June 30, 2011 (the date John originally filed his request to modify spousal support. It completely eliminated John’s spousal support obligation as of June 15, 2011. And the court denied both parties’ requests for attorney fees. Deborah timely appealed.

DISCUSSION

Broadly speaking, Deborah raises three issues in this appeal. First, she contends the court misinterpreted Restaino I when it held its task on remand was simply to divide and distribute the nonsalary distributions from Lopez Hodes. Deborah contends the court’s mandate was much broader: to appraise and value John’s equity interest in Lopez Hodes. Second, Deborah contends the court erred in setting spousal support at zero, and also in reducing the arrearages John owed. Finally, she contends the court abused its discretion in denying her need-based attorney fees.

The Lopez Hodes Distributions

Deborah first contends the court misinterpreted Restaino I. The court interpreted our opinion to mean that it should simply add up the nonsalary distributions from the Lopez Hodes settlement, divide by two, and pay each party their share as community property. We agree with the court’s interpretation.

In the very first paragraph of Restaino I, we declared our intent to reverse “with directions to equally divide between the parties all nonsalary proceeds received by husband under the settlement agreement.” (Restaino I, supra, G043194, italics added.) Deborah had acknowledged that “‘[p]rofessional practices are difficult assets to value for purposes of property division and marital actions . . . .’” (Ibid.) In light of that difficulty, we stated, “In some circumstances an agreement between members of a law firm concerning the nature of their interest in the firm can affect a family law court’s characterization of a spouse’s interest upon dissolution of his or her marriage,” citing In re Marriage of Nichols (1994) 27 Cal.App.4th 661. (Restaino, supra, G043194.) We concluded: “[W]e construe the nonsalary and independent contractor payments as a quantification of [John’s] interest in the firm. Thus, except for the sums designated as husband’s postseparation salary and independent contractor compensation, the payments awarded to him under the confidential settlement and release constitute his equity interest in Lopez Hodes . . . .” (Ibid., italics added.) We then reversed the court’s ruling “on the extent of [John’s] interest in his former law firm and the matter is remanded to the superior court for further proceedings consistent with this opinion.”

Given our explicit directions to the court, coupled with our analysis of using a shareholder agreement to value equity in a firm, and our finding that the payments under the settlement agreement “constitute” John’s equity and represent “a quantification of [John’s] interest in the firm,” the court got it right. The nonsalary payments under the settlement agreement constituted John’s entire equity in Lopez Hodes. The court’s task was simple: divide by two. And that is exactly what it did.

At least initially, that seemed to be Deborah’s understanding as well. Shortly after the remand in Restaino I, Deborah told the court, “On remand, the only matter that must be determined is exactly how much John was awarded under the confidential settlement and release based on his equity interest in Lopez Hodes, so those amounts may be divided equally between the parties.”

She now contends otherwise, relying on language in the disposition of Restaino I reversing the judgment “on the extent of respondent’s interest in his former law firm . . . .” Since the judgment was reversed as to John’s interest in the law firm, Deborah reasons, the court’s task must have been to value that interest. That interpretation is fanciful and ignores the entire thrust of the opinion in Restaino I. We remanded for the court to calculate John’s interest in the equity of his former law firm because the court needed to do the arithmetic. But it did not need to value John’s equity interest. John’s equity interest had already been valued.

Deborah also relies on language in the opinion where we set forth general principles for valuing a law firm. Deborah infers that since we quoted principles for valuing a law firm, we must have meant for the court to appraise John’s interest in the law firm. But plainly, our citation to general valuation principles was simply to support the statement that came immediately after: “Merely because Lopez Hodes took cases on a contingency fee basis did not preclude valuation of husband’s interest in it.” (Restaino I, supra, G043194.) In treating all of the Lopez Hodes disbursements as income, the court had essentially assigned no value at all to John’s equity interest. We rejected that approach. We went on to conclude that the settlement agreement had, in fact, paid out John’s entire equity interest, which was to be divided as a community asset rather than as John’s income. In setting forth the general principles of valuing a law firm, at no point did we suggest the court was to engage in a free-ranging reappraisal of Lopez Hodes.

Spousal Support

Next, Deborah contends the court erred in eliminating her spousal support as of June 15, 2011, the date John filed his order to show cause re: spousal support. In granting John’s request and eliminating spousal support altogether, the court relied on two circumstances: a marked reduction in John’s income and Deborah’s failure to become gainfully employed. Deborah faults the court’s ruling on four fronts. She contends the court (1) failed to consider her needs, (2) arbitrarily assigned her an earning capacity of $45,000 per year, (3) abruptly cut off her support without a Gavron warning, and (4) miscalculated John’s ability to pay. We review a court’s decision to modify spousal support for abuse of discretion. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480.) We agree with her on the first two grounds, but not on the last two.

“Modification of spousal support . . . requires a material change of circumstances since the last order. [Citations.] Change of circumstances means a reduction or increase in the supporting spouse’s ability to pay and/or an increase or decrease in the supported spouse’s needs. [Citations.] It includes all factors affecting need and the ability to pay.” (In re Marriage of McCann (1996) 41 Cal.App.4th 978, 982.) If a court finds a material change of circumstances, the court must consider the criteria set forth in Family Code section 4320 in determining the amount, if any, of the modified spousal support. (In re Marriage of West (2007) 152 Cal.App.4th 240, 247.)

Here, the court found a material change in circumstances based on John’s reduced income. John’s original spousal support obligation was based on an average salary of over $17,000 per month. The court found that in 2012 John averaged $7,300 per month; in 2013, $8,000 per month; in 2014, $4,000 per month; and in 2015, $10,500 per month. John’s income dropped because he formed his own new law firm with his new spouse. The court determined that John’s “recurring and sustainable net disposable income” is $10,500 per month, and that his ability to pay spousal support fluctuates between zero and $1,000 per month.

There seems to be little dispute that John suffered a material change of circumstance. Deborah concedes in her brief that, “assuming all the financial facts as found by the trial court” were correct, “a reduction may have been appropriate.” And she does not truly contest the court’s basic findings of financial fact (with one exception discussed below). Instead, her contention is that it was error to eliminate support altogether. The issue, therefore, is not whether John suffered a material change of circumstance, but instead whether the court properly applied the section 4320 factors in eliminating spousal support altogether.

Section 4320 contains several mandatory considerations relevant here: the parties’ earning capacity, taking into account their skills, the current market, their need for retraining, and any disadvantage one party incurred by previously forgoing employment in lieu of domestic duties); the extent to which the supported party contributed to the career of the other (by, for example, putting the other through school); ability to pay; the needs of each party based on the marital standard of living); each parties’ assets and debts; the duration of the marriage; the ability of the supported party to engage in gainful employment; the parties’ age and health; the balance of hardships to each party; “[t]he goal that the supported party shall be self-supporting within a reasonable period of time” (id., subd. (l)); and any other factors the court determines are just and equitable.

Deborah’s Financial Need

Deborah identifies multiple factors that, she contends, the court failed adequately to consider. The first was her need. Indeed, while the court’s statement of decision did generically refer to the parties’ “reasonable needs,” the court did not specifically discuss or make any findings as to her needs. The court did not wholly ignore this factor—the actual factor is the parties’ needs “based on the [marital] standard of living.” (§ 4320, subd. (d).) It specifically found that, given John’s diminished earning capacity, and the passage of time, little weight was to be given to the prior marital standard of living. The court did not take the next step, however, and determine what Deborah’s reasonable needs are. (See In re Marriage of McTiernan & Dubrow (2005) 133 Cal.App.4th 1090, 1107 [describing as a “truism in most dissolved marriages” that the parties cannot both maintain the marital standard of living, but continuing, “It does not, however, excuse consideration of the supported party’s needs under the statute”].)

According to her income and expense declaration, she needed $14,246 per month. Plainly, the court was not compelled to accept that claim, but it was required to make some assessment of Deborah’s needs in determining the amount of spousal support, if any. (See In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304 [“the court does not have discretion to ignore any relevant circumstance enumerated in the statute. To the contrary, the trial judge must both recognize and apply each applicable statutory factor in setting spousal support”]; id. at p. 307 [“We further note that the trial court’s findings in this case, though admirably detailed as to other points, do not specify [wife’s] actual monthly need for support.” “On remand, the court should determine and articulate [wife’s] reasonable needs”]; In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1175 [“a supported spouse’s need is an essential element in determining whether he or she is entitled to an increase in spousal support . . . . Simply stated, the need of one spouse must be established independently of the other’s ability to pay”].) As the Family Law Rutter Guide recommends in a practice pointer, “always request findings on the ‘needs’ of the supported spouse (reflected by the parties’ general station in life during marriage) and whether the amount awarded is sufficient to meet those needs.” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2018) § 6:1087.) Those findings were not made here. That was error.

Deborah’s Earning Capacity

Deborah also contends there was no substantial evidence to support imputing $45,000 per year in income to her. Once again, we agree.

Section 4320 requires a court to consider “the earning capacity of each party” (id., subd. (a)), “[t]he ability of the supported party to engage in gainful employment” (id., subd. (g)), as well as “[t]he goal that the supported party shall be self-supporting within a reasonable period of time” (id., subd. (l)). Collectively, these provisions authorize a court to impute income to a supported spouse. As one court explained, “[A] supported spouse cannot make unwise decisions which have the effect of preventing him or her from becoming self-supporting and expect the supporting spouse to pick up the tab.” (In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 812.) To warrant imputation of income, the party seeking to modify spousal support must establish that the other had the ability to work and the opportunity to work at a given income. (In re Marriage of Simpson (1992) 4 Cal.4th 225, 234; In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1301-1302 (Bardzik).) These evidentiary requirements serve an important purpose: “Without evidence of ability or opportunity to earn the money, the power to impute income would easily devolve into a trial judge’s power to arbitrarily establish a support order at any given level, plucked from mid air, just as long as it is over the level otherwise required by the payor parent’s actual, taxable income.” (Bardzik, at p. 1301.)

Our standard of review is mixed. “A trial court’s decision to impute income to a parent for . . . support purposes based on the parent’s earning capacity is reviewed under the abuse of discretion standard.” (In re Marriage of Destein (2001) 91 Cal.App.4th 1385, 1393.) The actual amount of income, on the other hand, must be supported by substantial evidence. (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 931 (Cohn).)

We have little trouble concluding the court acted within its discretion in deciding to impute income to Deborah. In setting spousal support in 2009, the court “allow[ed Deborah] additional time to complete her education which [was then] in progress.” “The Court expect[ed] that [Deborah would] be able to complete her educational goals within a period of three to four years and achieve earnings of $45,000.00 per year as she testified.” And it found “that it is reasonable that [Deborah] become self supporting within a reasonable amount of time.” In the trial from which this appeal lies, Deborah testified she stopped eight credits shy of a degree in interior design. She has been prevented from completing that degree, she said, because she owes the school between $5,000 and $7,000, and the school would not let her continue her education until she paid it. At the same time, however, she admitted she has approximately $350,000 in liquid assets. She has not dipped into that fund, she said, because she owes money to her father and attorneys. But that makes little sense. Her school debt is a tiny fraction of her liquid assets, and a degree would obviously enhance her earning capacity for purposes of paying back her remaining debts. Instead, she was spending 35 hours per week volunteering for a nonprofit. “To the extent Deborah claimed that despite her best efforts she was unable to find employment commensurate with her age, education and work history,” the court found, “she was not credible.” Her failure to make a serious effort at becoming self-supporting warranted imputing income to her.

Where the court stumbled, however, is in determining the amount of income to impute. “[F]igures for earning capacity cannot be drawn from thin air; they must have some tangible evidentiary foundation.” (Cohn, supra, 65 Cal.App.4th at p. 931.) As the court explained in In re Marriage of Berger (2009) 170 Cal.App.4th 1070 (Berger), it is not enough to merely suspect that a party could, in light of her skills and experience, make a certain income—“that probability must be evidenced.” (Id. at p. 1079.) And the evidence must show the party could currently make that amount. (State of Oregon v. Vargas (1999) 70 Cal.App.4th 1123, 1127.)

Here, the principal evidence the court relied on was Deborah’s testimony, from a prior trial, that she hoped to be earning $45,000 per year upon completing her education in interior design. But there was not, so far as the record reveals, an offer on the table, nor any other evidence to ground Deborah’s expectation into the reality of her current circumstances. Stale hopes and expectations are not evidence of an actual, current opportunity.

The other evidence the court may have relied on was Deborah’s testimony that, in 2006, when she was laid off from her job in the title industry, she earned approximately $45,000 per year. But the concept of earning capacity is based on current circumstances. Her prior salary, though relevant, was inadequate by itself to establish her earning capacity 10 years later. (See Berger, supra, 170 Cal.App.4th at pp. 1079-1080 [the court properly refused to impute income based on “evidence merely establishing that the spouse had once earned a certain salary, and thus presumably could again”]; In re Marriage of Eggers (2005) 131 Cal.App.4th 695 [error to impute income in the amount of former salary where there was no evidence of a current ability and opportunity to earn that much].)

The husband in Bardzik, supra, 165 Cal.App.4th 1291, made a similar mistake: his proof was limited to the wife’s former income. In explaining where he went wrong, the court provided a helpful list of the sorts of proof capable of establishing the opportunity requirement, but which was lacking both there and here: “want ads for persons with the credentials of the potential imputee, opinion testimony (e.g., from a professional job counselor) that a person with the imputee’s credentials could readily secure a job with a given employer (or set of employers), or pay scales correlating ability and opportunity with the income to be imputed. Nor was there any vocational examination. [§ 4331, subd. (a).] What there was—merely the fact of retirement and previous income—was not sufficient . . . .” (Id. at p. 1309.) Because the evidence here failed to establish that Deborah had the opportunity to work at $45,000 per year, the court erred.

Gavron Warning

Next, Deborah contends it was error to eliminate her spousal support based on her failure to become self-supporting because she did not receive adequate Gavron warnings. (Gavron, supra, 203 Cal.App.3d 705.) Gavron stands for the simple proposition that before spousal support may be drastically reduced or terminated based on the failure to become self-supporting, the supported party must be made aware of the expectation to become self-supporting. The reason for the rule is simple fairness—“onerous legal and financial consequences” should not be sprung on a supported party out of the blue. (Id. at p. 712.) Because the goal is simply to eliminate surprise, any warning that reasonably apprises the supported party of the need to become self-supporting will do; there is no Gavron formula. It can even be implied in appropriate circumstances. (Ibid.)

Here, Deborah was adequately apprised of the court’s expectation that she become self-supporting. In the 2009 judgment on reserved issues, the court stated as much: “The Court finds that it is reasonable that [Deborah] become self supporting within a reasonable amount of time.” It further explained it was “allow[ing] [Deborah] additional time to complete her education which is now in progress.” “The Court expects that [Deborah] will be able to complete her educational goals within a period of three to four years and achieve earnings of $45,000.00 per year as she testified. The Court orders that the matter be reviewed in the year 2011 as to the amount and reasonableness of the support she is receiving.”

Deborah’s only response is that the judgment did not make her aware that she needed to become self-supporting “at any specific time.” But nothing in Gavron requires a specific timetable. It simply requires that the supported spouse be made aware of “the judicial expectation of future self-sufficiency.” (Gavron, supra, 203 Cal.App.3d at p. 712.) Of course, the decision to cut off support completely still requires the proper exercise of the court’s discretion, accounting for all of the factors under section 4320. Our holding is simply that Gavron presents no obstacle to cutting off support under the circumstances.

John’s Income

Deborah contends the court’s support order was further flawed by undervaluing John’s income. In particular, the court chose to average John’s income over the four-year lifespan of the firm he created with his new wife. Deborah contends this undervalued his income, particularly in light of the large income his firm produced in the six months immediately prior to the hearing—averaging over $50,000 per month. We review the court’s selection of a representative timeframe for abuse of discretion, and we find no abuse here.

The court set John’s monthly income at $10,500 per month. In prior years, John’s income varied, but averaged, according to the court’s findings, as follows: in 2012, $7,300 per month; in 2013, $8,000 per month; in 2014, $4,000 per month; in 2015, $10,500 per month. An expert retained jointly by the parties, Drew Hunt, testified that for the first six months of 2015, John’s share of the net income from his law firm was over $51,000 per month. John testified this was due to two relatively large payouts from cases that had recently concluded. That full amount was not necessarily available to John as income, however, as much of it was being used to pay down debts John’s law practice had incurred due to cash flow issues in prior years. Hunt opined that John’s prospective, recurring income would be $13,800 per month, but the court concluded Hunt had failed to adequately account for the law firm’s debts and thus chose a lower number.

In assessing the court’s ruling, both parties rely extensively on In re Marriage of Riddle (2005) 125 Cal.App.4th 1075 (Riddle). There, as here, husband’s income was volatile. (Id. at p. 1078.) The court calculated his income by averaging just two months of income (the year to date), arriving at the figure $21,950 per month. (Ibid.) It then imposed child and spousal support totaling approximately $8,000 per month. (Ibid.) The choice of timeframe truly mattered. Had the court utilized a 12-month timeframe, his total income would have been approximately $8,000 per month, leaving him with nothing after paying child and spousal support. (Id. at p. 1079.)

The Court of Appeal held this was an abuse of discretion. (Riddle, supra, 125 Cal.App.4th. at p. 1081.) In setting a fixed amount of support in the face of fluctuating income, the court must, do the best of its ability, “predict likely income for the immediate future, as distinct from extraordinarily high or low income in the past.” (Id. at p. 1082.) To that end, “the time period on which income is calculated must be long enough to be representative, as distinct from extraordinary.” (Ibid.) This being a discretionary call, the court refused to articulate a bright-line rule. Nonetheless, it found in the child support statutes “a presumption that the most recent 12 months is certainly an appropriate period in most cases.” (Id. at p. 1083.) But that presumption must always be applied with an eye towards representativeness. If the bulk of a person’s income arrives only once every two or three years, then a 12-month sample will be inappropriate. And, as in Riddle, an overly short sample tends to exaggerate fluctuations. (Id. at p. 1084.)

Predicting the future is a notoriously fraught task. In many cases, such as this, there will be no clear right answer on the question of the most representative timeframe. A range of options may be supportable given the facts. We will intervene to correct a court’s determination only where the court truly colors outside the lines. Deborah has not shown that to be the case here. She exclusively relies on the first six months of 2015, in which Hunt calculated John’s share of the firm’s income to be $51,000 per month. But she makes no effort to meaningfully address the loans that his firm needed to pay back, nor the fact that the first part of 2015 was skewed by two large payouts, nor the fact that John’s income is consistently volatile. These were eminently reasonable considerations in selecting a representative timeframe. Indeed, Hunt testified that it would be important to have a long look back as a representative timeframe to “smooth out some of the anomalies” in John’s income. The court did just that. The court’s ruling, supported by evidence, was well within its discretion.

Arrearages

In Restaino I, we held that the Lopez Hodes distributions constituted a payout on John’s equity interest, not income. As such, Deborah was entitled to half the distributions. Above, we concluded the court correctly applied our ruling by engaging in the simple task of calculating the total nonsalary payments from Lopez Hodes and dividing by two. A collateral effect of shifting those large payments from the income category to the assets category was, naturally, to reduce the income category. Reduced income meant that John owed less in support, and thus less in arrearages. Quite a bit less. With the Lopez Hodes distributions included as income, John owed $905,822 in support arrearages between 2006 and 2010. After removing the distributions from John’s income, the arrearages shrank to $72,525. This would all seem to be a very natural consequence of recategorizing the Lopez Hodes distributions from income to equity. And it was very much to Deborah’s benefit: she received a full half of the distributions, including distributions that otherwise might have been deemed post-separation income, for which she would have received nothing.

Nonetheless, Deborah contends it was error to reduce the amount of arrearages John owed. In particular, she claims that it amounted to an amendment of the 2009 judgment on reserved issues, which, because it was final, was beyond the court’s jurisdiction. (See In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 639 [retroactive modification of a final support order exceeds the court’s jurisdiction].)

The flaw in that logic is patent. In recalculating John’s arrearages, the court was not modifying the prior support order in any way. It was simply applying the correct amounts of income to that order. The court was admirably detailed in the manner of its calculations, including that it was applying the Smith/Ostler formula, and its calculations are entirely consistent with the amount and percentages of support ordered in the 2009 judgment on reserved issues. Moreover, to the extent the 2009 judgment improperly categorized the Lopez Hodes distributions as income, it was not final: she appealed it. There was no error.

Attorney Fees

Finally, Deborah argues the court erred in denying her motion for need-based attorney fees under sections 2030 and 2032. She contends the court, once again, failed to consider her needs. This time, we disagree.

Section 2030, subdivision (a)(1) declares, “the court shall ensure that each party has access to legal representation . . . by ordering, if necessary based on the income and needs assessments, one party . . . to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding . . . .” (Ibid.) “The purpose of section 2030 is to ensure parity.” (In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1056.)

Section 2032, subdivision (b), requires a “court [to] take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately,” including “to the extent relevant, the circumstances of the respective parties described in Section 4320.” Thus “section 2032, . . . not only requires that the court consider the financial resources of each party, but also requires a broader analysis of the parties’ relative circumstances.” (In re Marriage of Cryer, supra, 198 Cal.App.4th at p. 1056.)

“In making this determination, the trial court has broad discretion” and “we will not reverse absent a showing that no judge could reasonably have made the order, considering all of the evidence viewed most favorably in support of the order.” (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 975.) But “‘the record must reflect that the trial court actually exercised that discretion, and considered the statutory factors in exercising that discretion.’” (Ibid.) Thus, a court’s affirmative failure or refusal “to exercise that discretion” constitutes “sufficient grounds, by itself, to reverse [its] decision.” (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1314.)

Here, the record reflects that the court considered Deborah’s needs. For example, the court stated, “Today, Deborah has more assets and wealth than John.” The court further noted that the substantial Lopez Hodes payouts to both parties left them “with substantial assets and an ability to pay their own litigation expenses.” It went on to observe that, during the litigation, “both sides were in financial parity, more or less as and for ability and need for attorney fees and costs.” These statements plainly demonstrate the court considered Deborah’s ability to pay her attorney fees.

Deborah’s only real response to this is to note that John still owes her $650,000 under the trial court’s recent orders. But that does not help Deborah here: John has to pay that amount, and when he does, she can use the money to pay her attorneys. The court’s findings were adequate, and Deborah has not shown they lacked evidentiary support. Accordingly, the court did not err in denying Deborah’s attorney fee request.

DISPOSITION

The court’s order reducing Deborah’s spousal support to zero as of June 15, 2011, is reversed. The court is instructed to conduct a new hearing on spousal support consistent with this opinion. In all other respects, the postjudgment orders are affirmed. The parties shall bear their own costs incurred on appeal.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

THOMPSON, J.

Filed 11/15/19 Clare v. White CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

SIMONE CLARE,

Plaintiff and Appellant,

v.

ADAM J. WHITE et al.,

Defendants and Respondents.

A153228

(Solano County

Super. Ct. No. FCS047333)

Plaintiff Simone Clare (Clare) appeals from the trial court’s order granting defendant Bank of New York Mellon’s (the Bank) motion to set aside a default judgment. Clare contends the order must be reversed because she properly served the Bank’s agent for service, the Bank received actual notice of her lawsuit, and the Bank’s motion was untimely. We reject her contentions and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

On January 7, 2016, Clare, then in propria persona, filed a complaint against the Bank and an individual named Adam J. White seeking to quiet title her real property on the grounds that the Bank lacked the authority to accept an assignment of the deed of trust and that a quitclaim deed granting White an interest in the property was recorded in error. On September 2, 2016, Clare filed a proof of service stating that, on July 13, she had the complaint and summons mailed to the Bank’s agent of service, Corporation Trust Company in Delaware (CTC-Delaware) at “CORPORATION TRUST CENTER 1209 ORANGE ST, WILMINGTON, DE 19081.” Clare submitted a return receipt signed by an Amy McLaren on July 18. As detailed below, the Bank claims Clare was promptly notified she had served the wrong agent and that the complaint and summons could not be forwarded to the Bank.

On September 14, 2016, Clare obtained a default against the Bank and served the entry of default on the Bank by first-class mail, addressed to the Bank at its location at “225 Liberty Street New York, NY, 10281” (the New York address). At a November 18 default prove-up hearing, the trial court entered judgment in favor of Clare, canceled the assignment of the deed of trust, and deemed title quieted to Clare as to the Bank. The same day, Clare served the default judgment by first-class mail addressed to the Bank at the New York address. On December 9, the judgment was amended to correct an error, and Clare served the amended judgment by priority mail to the Bank at the New York address on April 11, 2017.

On November 15, 2017, the Bank filed a motion to set aside the default and default judgment. The Bank accused Clare of “concoct[ing] a devious plan to obtain a default judgment” after failing to pay her mortgage for years, “accumulating a loan balance of almost $1,000,000,” and filing a “baseless” lawsuit in an attempt to “keep the loan proceeds and have a home free and clear of any liens.” The Bank’s Vice President and Legal Case Manager Cheryl Santucci declared the Bank did not receive any documents or information notifying it of the lawsuit until Clare’s attorney sent a fax to the Bank on June 22, 2017 stating Clare had obtained a default judgment. Santucci declared that “[a]s reflected in the records of the California Secretary of State,” the proper agent for service for the Bank is Corporation Trust Company in Los Angeles (CTC-Los Angeles) at 818 W. 7th Street, Suite 930, Los Angeles, CA 90017. She attached a printout from the California Secretary of State listing CTC-Los Angeles as the designated agent for service for the Bank.

Santucci further declared that she searched for but found no evidence that CTC-Los Angeles or CTC-Delaware ever notified the Bank of Clare’s lawsuit. She searched the database into which her paralegals scan all legal materials received at the Bank’s principal place of business in New York, but did not find anything relating to Clare’s lawsuit. If she had any notice of the lawsuit, she and her team would have ensured the correct servicer received the documents so the Bank’s interests could be properly represented, and to avoid adverse consequences such as a default judgment. “In no event, would I or my team members discard or otherwise ignore legal papers sent to [the Bank] at 225 Liberty Street, New York, New York.” “[I]t is my firm belief that no mail pertaining to this case, this property address or this borrower was received at [the Bank’s] address of 225 Liberty Street, New York, New York from the date the complaint was filed on July 6, 2016 to June 22, 2017 when the above-mentioned fax was received.” In addition, the Bank notes that the address to which Clare purportedly mailed the entry of default, default judgment, and amended judgment is incorrect; the zip code Clare used is 10281, while the correct zip code is 10286.

Brian Hickman, “Representation Services Advisor” for CTC-Los Angeles, declared that he searched an “enterprise wide database for recording and processing documents” to determine whether any CTC entity had received documents relating to Clare’s lawsuit. He discovered that CTC-Delaware rejected documents Clare mailed to CTC-Delaware as “ ‘CT Not Agent’ ” and notified Clare in a July 19 letter that it was not the proper agent for service for the Bank. The letter stated: “After checking our records and the records of the State of DE, it has been determined that The Corporation Trust Company is not the registered agent for an entity by the name of THE BANK OF NEW YORK MELLON. [¶] CT was unable to forward.”

Clare opposed the Bank’s motion to set aside the default and default judgment and argued she properly served the Bank or had substantially complied with service of process and the Bank received actual notice of the lawsuit. She explained that she first searched for the Bank’s agent for service on the New York Secretary of State website because the Bank’s principal place of business is in New York. There, she found an entity called “THE BANK OF NEW YORK MELLON CORPORATION,” which did not have a listed agent for service and whose jurisdiction was listed as Delaware. Clare therefore went to the Delaware Secretary of State website and found that the agent for service for “THE BANK OF NEW YORK MELLON CORPORATION” was CTC-Delaware. Clare “called the Delaware Secretary of State office and confirmed the accuracy of [her] search results.” She denied receiving the July 19 letter from CTC-Delaware rejecting service of process. Clare also argued the Bank’s motion was untimely because it was filed on November 15, 2017, more than six months after “the very latest date of service” of April 11, 2017—the date she served the amended judgment directly to the Bank at the New York address.

In reply, the Bank asserted Clare attempted service on the wrong entity—“ ‘The Bank of New York Mellon Corporation,’ ” which is the parent corporation for the defendant “The Bank of New York.” The Bank requested judicial notice of The Bank of New York Mellon Corporation’s annual report to the Securities and Exchange Commission listing the Bank as one of its subsidiaries. “Accordingly, the two entities are completely separate legal entities from one another.” The Bank asserted Clare also failed to comply with California’s service statutes, which requires her to serve an authorized person on behalf of the corporation. Finally, the Bank argued its motion was timely.

Clare submitted a “sur-reply” asserting she served the correct entity because the New York Secretary of State website has information suggesting the Bank and the “Bank of New York Mellon Corporation” are the same entity. She argued in the alternative that it is immaterial that the two are separate entities because she provided actual notice of the lawsuit to the Bank by mailing the judgment and amended judgment to its principal place of business in New York.

The trial court granted the Bank’s motion on the grounds that service was deficient and there was no actual notice to the Bank until June 22, 2017 because Clare served CTC-Delaware instead of CTC-Los Angeles and did not address the mail to—or show actual receipt by—any authorized individual at the Bank. The court also found the Bank’s motion was timely, stating there was insufficient evidence from which it could find the Bank had notice of the action before June 2017.

DISCUSSION

Clare contends the trial court’s order setting aside the default judgment must be reversed because she properly served the Bank’s agent for service, the Bank received actual notice of her lawsuit, and the Bank’s motion was untimely. We reject her contention.

There are a number of ways to serve process on an out-of-state corporation doing business in California. One method is by service on the corporation’s designated agent for service of process. (Code of Civ. Proc. §416.10, subd. (a); see also Corp. Code, § 2105, subd. (a)(5) [a foreign corporation must designate an agent for service of process with the California Secretary of State in order to conduct business in California].) Another is to serve one of a number of designated individuals, such as the president or chief executive officer of a corporation, who are authorized by statute to receive service on behalf of a corporation. (§ 416.10, subd. (b).) Section 415.40 allows a plaintiff to serve an out-of-state defendant by mailing the complaint and summons by first-class mail, return receipt requested.

“Substantial compliance,” as opposed to “strict compliance,” with the statutes relating to service of process “is sufficient” where a defendant has received actual notice of the complaint and summons. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1436–1437.) For example, if a person authorized by statute to accept service actually receives the complaint and summons, service can be deemed adequate even if the plaintiff failed to address the mail to an authorized person. (Ibid.)

A party who “has not actually been served with summons” has several avenues of relief from a default judgment that a plaintiff obtains against it. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.) Under section 473.5 subdivision (a), “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered,” the party may move to “set aside the default or default judgment and for leave to defend the action.” “The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” (§ 473.5, subd. (a).) “Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that [the moving party’s] lack of actual notice in time to defend the action was not caused by [the party’s] avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.” (§ 473.5, subd. (c).)

“A motion to set aside a default judgment is addressed to the sound discretion of the trial court, and, in the absence of a clear showing of abuse of discretion where the trial court grants the motion, the appellate court will not disturb the order. It is the policy of the law to favor, wherever possible, a hearing on the merits. . . .” (Weitz v. Yankosky (1966) 63 Cal.2d 849, 854.)

Here, the Bank provided ample evidence in support of its motion to set aside the default judgment. Its legal case manager declared under penalty of perjury that the Bank did not receive any documents or information notifying it of the action until June 22, 2017. Both she and a CTC-Los Angeles representative declared—and presented evidence to show—that the proper agent for service for the Bank is CTC-Los Angeles, not CTC-Delaware. The Bank explained that the entity Clare found on the New York and Delaware Secretary of State websites—“Bank of New York Mellon Corporation”—is the Bank’s parent corporation, and that the two entities are therefore “completely separate legal entities from one another.” Further, the record contained a letter CTC-Delaware sent to Clare immediately upon receiving her complaint and summons explaining to her that she had attempted service on the wrong entity. Although Clare claimed she never received this letter, the trial court could have reasonably found that the letter, along with other evidence presented by the Bank, supported the Bank’s position that CTC-Delaware was not the proper agent for service for the Bank.

Clare asserts that even if CTC-Delaware was not authorized to accept service on behalf of the Bank, the Bank had sufficient notice of the action because she mailed the entry of default, default judgment, and amended judgment to the Bank’s principal place of business in New York. The trial court, however, could have reasonably found these documents did not provide actual notice to the Bank because they were mailed to an address containing the wrong zip code and/or because the court found credible the Bank’s legal case manager’s declaration that the Bank never received these documents. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1319 [“We may not reweigh the trial court’s implicit credibility determination”].)

Finally, Clare argues the Bank’s motion was untimely. As noted, party may file a motion to set aside a default judgment under section 473.5 subdivision (a) “within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” (§ 473.5, subd. (a).) Here, the Bank filed its motion on November 15, 2017—less than two years after the default judgment was entered, and less than 180 days after it received notice of the default judgment on June 22, 2017. The trial court properly found the Bank’s motion was timely on the basis that there was insufficient evidence from which it could find the Bank had notice of the action before June 22, 2017.

DISPOSITION

The order setting aside the default judgment is affirmed. Respondent Bank of New York Mellon shall recover its costs on appeal.

_________________________

Petrou, J.

WE CONCUR:

_________________________

Siggins, P.J.

_________________________

Fujisaki, J.

A153228/Clare v. The Bank of New York Mellon et al.

Filed 11/15/19 Fudge v. City of Laguna Beach CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

MARK FUDGE,

Plaintiff, Respondent and Cross-

Appellant,

v.

CITY OF LAGUNA BEACH et al.,

Defendants, Appellants and Cross-

Respondents,

LAGUNA BEACH GOLF AND

BUNGALOW VILLAGE, LLC,

Real Party in Interest, Appellant

and Cross-Respondent.

G056403

(Super. Ct. No. 30-2016-00884488)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, William D. Claster, Judge. Affirmed in part, and reversed in part.

Rutan & Tucker, and Philip D. Kohn for Appellants and Cross-Respondents the City of Laguna Beach, the Laguna Beach City Council, the Laguna Beach Planning Commission and Sue Kempf.

Nossaman, Steven H. Kaufmann, and Elizabeth Klebaner for Appellant and Cross-Respondent Laguna Beach Golf and Bungalow Village, LLC.

King & Spaulding, Peter Hsiao, and Matthew L. Hofer for Respondent and Cross-Appellant Mark Fudge.

* * *

This case involves a challenge to the redevelopment of an 84-acre portion of Aliso Canyon, known as The Ranch at Laguna Beach (the Ranch), and a separate, adjacent two-acre parcel formerly used as a Girl Scout campground (the Scout Camp). Laguna Beach Golf and Bungalow Village, LLC (the Village) owns both properties. In 2014, the City of Laguna Beach, the Laguna Beach City Council, the Laguna Beach Planning Commission and Sue Kempf, former chair of the Planning Commission (collectively the City), approved land use and coastal development permits for a project to renovate and expand the Ranch (the Ranch project). The Ranch project did not include redevelopment of the Scout Camp. After Mark Fudge administratively appealed the approval of the coastal development permit to the Coastal Commission, the Coastal Commission approved a coastal permit conditioned on redevelopment of the Scout Camp (the Scout Camp project). The Village then sought land use permits from the City for the Scout Camp project. The City approved the Scout Camp permits in reliance on the Coastal Commission’s environmental review and approval of the Scout Camp project. Separately, the City approved a site lighting plan for the Ranch project, which was a condition of a prior permit. In both cases, the City did not prepare or certify an Environmental Impact Review (EIR).

Fudge challenged the City’s approval of the site lighting plan and the Scout Camp permits under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.; all further statutory references are to the Public Resources Code unless otherwise stated). The trial court found the Ranch project consisted of redevelopment of the two properties in four phases, with the Scout Camp project being part of Phase 3. It concluded Fudge was barred from challenging the approval of the site lighting plan because he previously had lost on his challenge to the related conditional use permit. It granted his petition contesting the redevelopment of the Scout Camp, finding insufficient evidence supported the City’s determination the Scout Camp project was categorically exempted from CEQA review. The court also determined the City improperly segmented or piecemealed the Scout Camp project by failing to consider Phase 4 – the future construction of a new entry road and remodeling of a hotel building – and that the City’s approval of the Scout Camp permits violated various provisions of the City’s Municipal Code.

The City and the Village appeal from the trial court’s findings and conclusions on the Scout Camp project. After independently reviewing the record, we conclude the City properly applied the existing facilities categorical exemption to the Scout Camp project. In addition, the City’s approval of the Scout Camp permits did not violate its Municipal Code. We reverse the judgement as it relates to the Scout Camp project. Mark Fudge appeals from the trial court’s findings and conclusions on the site lighting plan. We conclude Fudge cannot challenge the City’s approval of the site lighting plan under CEQA and, in any event, the City properly determined the lighting plan was categorically exempt. We therefore affirm the judgment on the site lighting plan.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. The Ranch Project

In May 2014, the City approved a conditional use permit (CUP No. 14-574) and a coastal development permit (CDP No. 14-573) on the Village’s proposal to renovate, remodel, and expand the Ranch. The City also determined the Ranch project was categorically exempt from CEQA review. Fudge administratively appealed the City’s approval of the coastal development permit to the Coastal Commission.

In January 2015, the Coastal Commission approved a coastal development permit (CDP A-5-LGB-14-0034) for the Ranch project, and in October 2015, it issued the permit with Standard and Special Conditions, including several conditions relating to the Scout Camp. According to the Coastal Commission staff’s report, the Scout Camp is a two-acre landlocked parcel located at the northeast corner of the Ranch’s golf course. After being granted the property in 1935, the Laguna Beach Girl Scouts used the property as a camp and event space into the 1960’s. The property changed owners several times before it “fell into disrepair in the 1970[’]s and for decades was used as a dumping ground and as a maintenance yard for the adjacent golf course. The Athens Group acquired the Scout Camp parcel in 2007, but it continued to be used as a dump and maintenance yard until acquired by [the Village] in 2013.” The Village then developed the parcel without a permit. “The unpermitted development included [the] removal of debris and trash, Eucalyptus tree trimming and removal, removal of other vegetation, and installation of a 7,000 square foot concrete pad, walkways, a vegetable garden, and fruit orchard. The [Village] also removed an existing chain link fence and replaced it with a wooden fence. After this unpermitted development, the [Village] used the space for events including weddings and fundraisers.” The Coastal Commission noted a member of the public had complained the Village had hosted “weddings [with] up to 1500” guests and had added “event lighting . . . to the grove.”

To remediate the Ranch project’s adverse impact on affordable or lower cost overnight accommodations and recreational facilities, the Village proposed – and the Coastal Commission incorporated as Special Conditions – several remediation measures, including that the Village (1) remove unpermitted development and revegetate the Scout Camp; (2) host a minimum of 12 overnight, small group (40-person maximum) camping experiences annually at the Scout Camp, especially for under-privileged youths and scouting organizations; and (3) host limited special events, such as banquets.

According to the Coastal Commission staff’s finding, the Village “propose[d] to continue to use the Scout Camp parcel for events including wedding ceremonies, group banquets, team building activities, primitive overnight camping, educational tours, yoga and other fitness activities, and organic gardening instruction.” (Italics added.) The coastal development permit imposed restrictions on camping and special events, including limiting special events to daytime, with no more than 150 people, no more than 12 events per month (including overnight camping), sound levels at 65 decibel levels or lower and no glare or light intrusion into surrounding native areas. The event restrictions included some, but not all, of the recommendations Coastal Commission staff ecologist Dr. John Dixon had proposed “to avoid impacts to [the] surrounding native habitats.” The Coastal Commission found that as conditioned, the proposed overnight camping and daytime events “will not result in significant degradation of [the] adjacent habitat, recreation areas, or parks and is compatible with the continuance of those habitat, recreation, and park areas.” It required the Village to submit to the Coastal Commission Executive Director for review and approval the related noise management plan, lighting plan, landscaping plan, and group camping management plan and to obtain approval from the City for the proposed uses.

In March 2015, Fudge filed an action in Los Angeles County Superior Court challenging the City’s approval of the Ranch project permits and the Coastal Commission’s approval of the coastal development permit. The trial court found the claims against the City were time-barred, and its ruling was affirmed on appeal. (Fudge v. California Coastal Commission (Dec. 7, 2016, B268824) [nonpub. opn.].) The trial court also dismissed all claims against the Coastal Commission, finding some claims time-barred and the remaining claims without merit. These rulings also were affirmed on appeal. (Fudge v. California Coastal Commission (Oct. 3, 2018, B281700) [nonpub. opn.].)

In November 2015, to satisfy the Coastal Commission’s Special Conditions, the Village applied to the City for a land use permit to allow overnight camping and special event use on the Scout Camp. The Planning Commission approved the Scout Camp permit application after its staff concluded that “the proposed events and development of the Scout Camp have been extensively reviewed and approved by the Coastal Commission, are similar to and no more obnoxious or detrimental to the welfare of the neighborhood than other uses that are permitted in the Recreation Zone . . . , and will not result in an environmental impact pursuant to CEQA.”

Per CUP No. 14-574, the Village also submitted for approval a revised outdoor lighting plan for the Ranch. The Planning Commission approved the site lighting plan after its staff found the plan constituted “a minor facility alteration, without any environmental impact and would not result in any expansion of use” because the “revised lighting plan would result in an overall reduction in site lighting and . . . [in] remov[al of] many of the existing facility outdoor lighting fixtures that are not in compliance with the Good Neighbor Outdoor Lighting Ordinance.”

Fudge appealed the Planning Commission’s decisions to the City Council. Fudge argued the City was the lead agency on the Scout Camp project and therefore could not rely on the Coastal Commission’s environmental review and approval. He also argued no substantial evidence supported the application of the existing facilities categorical exemption because the proposed permits would result in an “expansion of use.” Fudge also claimed the City could not approve the land use permits because the Scout Camp is not a “legal building site,” based on its Real Property Report (RPR), and the City’s approval was inconsistent with the City’s Municipal Code and its general plan.

In October 2016, the City Council unanimously voted to deny Fudge’s appeal, and adopted a resolution memorializing its findings and determinations. The City Council’s resolution stated that the Coastal Commission had reviewed and approved a coastal development permit for the Scout Camp project, including the uses of the Scout Camp area, and its review and approval is a substitute for and functionally equivalent to CEQA review. The resolution declared the proposed uses of the Scout Camp are categorically exempt under section 15301 of the CEQA Guidelines because they “would result in only a negligible expansion of use.” (Cal. Code Regs., tit. 14, § 15301.) The City Council also approved the site lighting plan for the Ranch project.

Fudge filed a petition for writ of mandate challenging the City’s approval of the Scout Camp permits and the site lighting plan for the Ranch. In his opening brief, Fudge claimed the Ranch project consisted of four phases: “Phase 1 included remodeling and demolition of existing structures and removal of vegetation and habitat to facilitate further work.” “Phases 2 and 3 (later combined into one application) included expansion and remodeling of the hotel, restaurant, banquet and golf course facility, outdoor dining space, assembly space, retail space, and the pro shop.” “Phase 4 will include remodel of a hotel building and alterations to the entry road.” After describing his prior litigation, Fudge stated that the Coastal Commission’s Coastal development permit “authorized the illegal Scout Camp development and use of the parcel ‘after the fact,’ even though the [Village] had not sought a City permit. [Citation] The CDP also required the [Village] to submit a lighting plan for the Scout Camp, but it did not address lighting for the Project as a whole.”

Fudge argued the City improperly segmented the Ranch project when it granted separate permits for the different phases “to avoid environmental review for the Project as a whole.” Fudge claimed “the City separately considered and issued permits for the Project on four occasions: building permits for Phase 1 in December 2013; coastal development, conditional use and design review permits for Phases 2 and 3 in May 2014; the lighting plan in October 2016; and the conditional use and design review permits for the Scout Camp in October 2016. The fifth will come if and when the [Village] applies for permits covering Phase 4.” (Italics added.)

Fudge challenged the City’s approval of the site lighting plan without CEQA review, arguing that the City’s finding of CEQA exemption illegally relied on mitigation measures.

As to the City’s approval of the Scout Camp permits, Fudge challenged it on several grounds. First, he argued the City was the lead agency on the Scout Camp project and therefore could not rely on another agency’s purported CEQA-equivalent determination. Second, he argued substantial evidence supported a fair argument that the approved Scout Camp uses will have a significant environmental impact. Third, he asserted the City’s finding of a CEQA exemption illegally relied on mitigation measures, which were the restrictions imposed by the Coastal Commission. Fourth, the City’s application of an existing facilities exemption was not supported by substantial evidence because the Coastal Commission’s development permit authorized new vegetation and new uses, not existing facilities and uses.

Finally, Fudge argued the approval of the Scout Camp permits violated the City’s Municipal Code. Specifically, he claimed the City could not approve the permits because the Scout Camp is not a legal building site, as stated in the parcel’s RPR. He also argued that because the Scout Camp is in a floodplain, the Village was required to obtain a floodplain development building permit before any construction or other development could proceed. Because the Village never sought a floodplain building permit, Fudge asserted the City could not issue the use permits.

The City opposed the petition. It argued it properly applied the categorical exemptions. On the Village’s site lighting plan, its staff had determined the “plan would result in an overall reduction in site lighting” and include removing “many of the existing facility outdoor lighting fixtures that are not in compliance.” Thus, the site lighting plan involved “negligible or no expansion of use beyond that existing at the time of the lead agency’s determination.” As to the Scout Camp, the Coastal Commission had found the parcel was “an already-disturbed area used as a dump and maintenance yard . . . as well as for camping purposes” and determined “the proposed overnight camping and special event uses would not have any impact on surrounding native habitats.”

The City also argued its approval of categorical exemptions was not based on mitigation measures because the Coastal Commission’s special conditions are not mitigation measures, but rather, features that are “incorporated into the design or operation of a proposed project.”

As to the purported violations of the City Municipal Code, the City argued the “legal building site” status of the parcel is “inconsequential because the overnight camping and special events uses previously approved by the Coastal Commission are directly related to the other uses approved for the Real Party’s property.” In any event, its staff had found the property is “a building site and has been used for many years prior to the current ownership by both the previous owner . . . and many years prior to that as a camping area for scouting activities. . . . The language in the June 11, 2013 Real Property Report (RPR) cited by the appellant was intended simply to reflect that portions of the property cannot be developed ‘individually’ (that is separate from common joint use with other portions of the property).”

Finally, the City argued Fudge forfeited his argument the City could not approve the Scout Camp permits in the absence of a floodplain building permit because he failed to raise this issue when he appealed the Planning Commission’s decision to the City Council. It also noted that its 2014 Ranch project approval recognized the property was in a designated “special flood hazard area” and required new structures to comply with the floodplain design standard. The City urged the trial court to reject Fudge’s floodplain permit argument because it recently approved a floodplain building permit for the Ranch project.

In separately opposing Fudge’s petition, the Village argued that Fudge’s piecemealing or segmentation claim was time-barred. As to the City’s application of the existing facilities exemption to the Scout Camp, the Village argued the City could rely on the Coastal Commission’s review because the Coastal Commission was the first agency to address the Scout Camp uses. It also argued the City could apply the existing facilities exemption even if the existing facilities or use consisted of unpermitted development.

The trial court granted in part and denied in part Fudge’s petition. It concluded the approval of uses of the Scout Camp was not exempt from further CEQA review either (1) on the basis of the categorical exemptions in section 15301 of the CEQA Guidelines or (2) on the basis of the environmental review supporting the Coastal Commission’s decision to approve a coastal development permit. In rejecting the City’s determination of a categorical exemption, the court explained that “[a]lthough there is evidence that events were occurring at the Scout Camp, albeit unpermitted, neither the City nor [the Village] point to any evidence in the administrative record that sets forth the number or size of events that were being held at the Scout Camp before the application process. Without this information, there is not substantial evidence to support the City’s determination that the proposed use will result in negligible expansion of the existing use.” As to reliance on the Coastal Commission’s findings as an EIR substitute, the court determined the City was the lead agency on the project and noted that section 15253, subdivision (c), of the CEQA Guidelines provide the “substitute document prepared by the [certified] agency [here, the Coastal Commission,] shall not be used by other permitting agencies in place of an EIR or negative declaration.”

The court also determined the City improperly segmented its environmental review of the Scout Camp by ignoring Phase 4 of the Ranch project, the Scout Camp area was not a legal building site under the City’s Municipal Code, and the City did not comply with its floodplain building permit requirements. The court found Fudge’s challenge to the site lighting plan barred under the doctrine of res judicata because the related conditional use permit was the subject of the prior March 2015 Los Angeles litigation.

II

DISCUSSION

“The basic purposes of CEQA are to: [¶] (1) Inform governmental decision makers and the public about the potential, significant environmental effects of proposed activities. [¶] (2) Identify ways that environmental damage can be avoided or significantly reduced. [¶] (3) Prevent significant, avoidable damage to the environment by requiring changes in projects through the use of alternatives or mitigation measures when the governmental agency finds the changes to be feasible. [¶] (4) Disclose to the public the reasons why a governmental agency approved the project in the manner the agency chose if significant environmental effects are involved.” (CEQA Guidelines, Cal. Code Regs., tit. 14 (“Guidelines”), § 15002.)

“To achieve these goals, CEQA and the implementing regulations provide for a three-step process. In the first step, the public agency must determine whether the proposed development is a ‘project,’ that is, ‘an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment’ undertaken, supported, or approved by a public agency.” (Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, 286 (Tomlinson), quoting § 21065.) If the proposed activity is a project, the public agency must decide “whether it is exempt from compliance with CEQA under either a statutory exemption (§ 21080) or a categorical exemption set forth in the regulations (§ 21084, subd. (a); [Guidelines], § 15300). A categorically exempt project is not subject to CEQA, and no further environmental review is required. [Citations.] If the project is not exempt, the agency must determine whether the project may have a significant effect on the environment. If the agency decides the project will not have such an effect, it must ‘adopt a negative declaration to that effect.’ (§ 21080, subd. (c); see [Guidelines], § 15070; [citations].) Otherwise, the agency must proceed to the third step, which entails preparation of an environmental impact report before approval of the project. (§§ 21100, subd. (a), 21151, subd. (a).)” (Tomlinson, supra, 54 Cal.4th at p. 286.)

“Under CEQA, a ‘lead agency’ is responsible for determining whether an EIR is required for a project and, if so, for preparing the EIR and including it in any report on the project.” (Planning & Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892, 903 (Planning).) CEQA defines a “‘[l]ead agency’” as “the public agency which has the principal responsibility for carrying out or approving a project which may have a significant effect upon the environment,” whereas a “‘[r]esponsible agency’ means a public agency, other than the lead agency, which has responsibility for carrying out or approving a project.” (§§ 21067, 21069.) “The lead agency’s function in the environmental review process is so important that it cannot be delegated to another body.” (Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677, 712-713.)

A. The Scout Camp Project

The parties dispute whether the Scout Camp project is part of the Ranch project and whether the City is the lead agency for the Scout Camp project. Fudge argues the Scout Camp is not a separate project and the City is the lead agency. He further claims – and the trial court determined – the City improperly piecemealed CEQA review of the whole project when it approved the Scout Camp project without considering Phase 4 of the Ranch project. (See Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283-284 [CEQA mandates that “environmental considerations do not become submerged by chopping a large project into many little ones—each with a minimal potential impact on the environment—which cumulatively may have disastrous consequences”].) The City and the Village assert the Scout Camp project is a separate project and the Coastal Commission is the lead agency for the project because it acted first in approving the Scout Camp uses. Under their interpretation, no basis exists for a piecemealing claim. (See Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209, 1223 (Banning Ranch) [“project definition is the starting point of a piecemealing challenge”].)

“‘Project’ is a term of art.” (Banning Ranch, supra, 211 Cal.App.4th at p. 1220.) “CEQA broadly defines a ‘project’ as ‘an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and . . . [¶] . . . [¶] . . . that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.’ [Citation.] [¶] The statutory definition is augmented by the Guidelines [Cal. Code Regs., tit. 14, § 15000 et seq.], which define a ‘project’ as ‘the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. . . .’” (Tuolumne County Citizens for Responsible Growth, Inc. v. City of Sonora (2007) 155 Cal.App.4th 1214, 1222.) “[W]hen the purpose of the reviewed project is to be the first step toward future development” or “when the reviewed project legally compels or practically presumes completion of another action,” the lead agency generally must review the project in conjunction with the other project. (Banning Ranch, supra, 211 Cal.App.4th at p. 1223, citing cases.)

“On the other hand, two projects may properly undergo separate environmental review (i.e., no piecemealing) when the projects have different proponents, serve different purposes, or can be implemented independently.” (Banning Ranch, supra, 211 Cal.App.4th at p. 1223.) As the Supreme Court has explained, “an EIR must include an analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 396 (Laurel Heights).) “[T]he facts of each case will determine whether and to what extent an EIR must analyze future expansion or other action.” (Ibid.) We review de novo whether two purported projects constitute, in essence, one project for the purposes of CEQA. (Banning Ranch, supra, 211 Cal.App.4th at p. 1224.)

As the foregoing indicates, a piecemealing challenge cannot be premised on the public agency’s failure to consider a project in conjunction with a previously approved project. The reason is that a previously approved project is not a “future expansion or action” or “a reasonably foreseeable consequence” of a currently reviewed project. (Laurel Heights, supra, 47 Cal.3d at p. 396, italics added.) Thus, the City’s failure to consider the previously approved phases of the Ranch project when approving the Scout Camp project cannot sustain a piecemealing challenge.

To the extent Fudge is claiming the City should have considered the Scout Camp project when it approved the Ranch project, Fudge is seeking to relitigate the City’s approval of the Ranch project permits. As detailed above, Fudge lost his challenge to those permits. In any event, when the City approved the Ranch project, nothing suggested the Ranch project was “the first step toward” the Scout Camp project or that the Ranch project “legally compels or practically presumes completion of” the Scout Camp project. (Banning Ranch, supra, 211 Cal.App.4th at p. 1223, citing cases.) Nor does the record support a finding that the Scout Camp project was “a reasonably foreseeable consequence” of the Ranch project. (Laurel Heights, supra, 47 Cal.3d at p. 396.) There is no evidence the Village was contemplating the Scout Camp project when it applied to the City for approval of the Ranch project. Rather, the Scout Camp project was proposed to remedy problems the Coastal Commission had identified with the Ranch project. The proposal was “a positive effort” between the Village and the Coastal Commission “to improve the project for the benefit of the community and address existing . . . concerns,” not an attempted “evasion of CEQA.” (Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329, 1352 (Wollmer).) In short, the Scout Camp project is separate from the Ranch project.

The trial court concluded the City improperly piecemealed environmental review of the Scout Camp project when it failed to consider the Scout Camp project in conjunction with Phase 4 of the Ranch project. We conclude Fudge failed to exhaust his administrative remedies on this piecemealing claim. (See Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 536 [“‘The petitioner bears the burden of demonstrating that the issues raised in the judicial proceeding were first raised at the administrative level. [Citation.]’ [Citation.] An appellate court employs a de novo standard of review when determining whether the exhaustion of administrative remedies doctrine applies.”].) An action may not be brought to challenge an agency’s decision “unless the alleged grounds for noncompliance with [CEQA] were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing.” (§ 21177, subdivision (a); accord, Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 282 [rejecting piecemealing claim because petitioner “failed to object to the City about the alleged piecemeal treatment of the Project and thus failed to exhaust its administrative remedies”].) Here, Fudge’s appeal of the Planning Commission’s approval of the Scout Camp permits did not assert a piecemealing claim. Although Fudge raised piecemealing in his prior challenge to the City’s approval of the Ranch project, there was no proposed development of the Scout Camp when the City approved the Ranch project. Thus, the prior piecemealing claim did not fairly raise the specific piecemealing argument at issue here.

Even if not forfeited, we would reject the instant piecemealing claim.

The record does not support a finding that Phase 4 is necessary for the completion of either the Ranch project, as approved, or the Scout Camp project. Stated differently, nothing indicates the Scout Camp project “legally compels or practically presumes completion of” Phase 4 (Banning Ranch, supra, 211 Cal.App.4th at p. 1223), or that Phase 4 is “a reasonably foreseeable consequence” of the Scout Camp project (Laurel Heights, supra, 47 Cal.3d at p. 396). In short, the Scout Camp project is a separate project from Phase 4.

Having concluded the Scout Camp project is a separate project from the Ranch project, we nevertheless conclude the lead agency for the Scout Camp project is the City, not the Coastal Commission. Section 15051 of the Guidelines provides the criteria for identifying the lead agency on a project. It provides in pertinent part:

“(b) If the project is to be carried out by a nongovernmental person or entity, the lead agency shall be the public agency with the greatest responsibility for supervising or approving the project as a whole.

“(1) The lead agency will normally be the agency with general governmental powers, such as a city or county, rather than an agency with a single or limited purpose such as an air pollution control district or a district which will provide a public service or public utility to the project.

. . .

“(c) Where more than one public agency equally meet the criteria in subdivision (b), the agency which will act first on the project in question will normally be the lead agency.”

Thus, under section 15051, subdivision (c), of the Guidelines, the public agency that acts first will be the lead agency only if two or more public agencies equally satisfy section 15051, subdivision (b). But under section 15051, subdivision (b)(1), of the Guidelines, a city or county has precedence over the Coastal Commission, which has the single or limited purpose of protecting and developing coastal areas under the Coastal Act. Therefore, the City is the lead agency for the Scout Camp project even though it was not the first party to act on the project.

The City, however, argues “the lead agency concept is one that has relevance only when a project is not exempt from CEQA and will necessitate the preparation of an environmental report or negative declaration.” We disagree, as the lead agency also determines whether a project is categorically exempt from CEQA review. (See Planning, supra, 83 Cal.App.4th at p. 903 [“‘lead agency’ is responsible for determining whether an EIR is required for a project”].)

B. Substantial Evidence Supported the City’s Application of a Categorical Exemption to the Scout Camp Project

As the lead agency, the City determined the proposed Scout Camp uses were categorically exempt under the “Class 1” exemption for existing facilities under section 15301 of the Guidelines, which provides an exemption from CEQA review for “minor alteration of existing public or private structures, facilities, . . . or topographical features, involving negligible or no expansion of existing or former use.” We review de novo whether substantial evidence supports the City’s factual determination that a project falls within a categorical exemption. (California Unions for Reliable Energy v. Mojave Desert Air Quality Management Dist. (2009) 178 Cal.App.4th 1225, 1239-1240; see also Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 113-114 [“The trial court’s conclusions are not binding on us. We review the administrative record independently.”].) Similarly, “[t]o the extent the question presented turns on an interpretation of CEQA, the Guidelines, or the scope of a particular exemption, it is one of law that we review de novo. [Citation.]” (World Business Academy v. California State Lands Com. (2018) 24 Cal.App.5th 476, 492 (World Business Academy).)

“Applying the substantial evidence test in the context of a court reviewing an agency’s . . . [exemption] decision . . . means determining whether the record contains relevant information that a reasonable mind might accept as sufficient to support the conclusion reached. Although the agency bears the burden to demonstrate with substantial evidence that its action fell within the exemption, all conflicts in the evidence are resolved in its favor and all legitimate and reasonable inferences are indulged in to uphold findings, if possible. [Citations.]” (Great Oaks Water Co. v. Santa Clara Valley Water Dist. (2009) 170 Cal.App.4th 956, 968.)

Here, in determining that the existing facilities exemption applied, the City relied on its Planning Commission staff’s findings, and its staff, in turn, relied on the findings of the Coastal Commission staff. (See Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 901 [“An agency may rely on the expertise of its planning staff in determining whether a project will not have a significant impact on the environment.”].)

As noted, the Coastal Commission staff found the Scout Camp had been used for camping purposes and later as “a dump and maintenance yard” before the Village acquired it in 2013. The Village then developed the property without a permit, and used the space for events such as weddings with up to 1500 guests. The Coastal Commission approved the overnight camping and special event uses of the Scout Camp with restrictions, concluding the approved uses “will not result in significant degradation of the adjacent habitat, recreation areas, or parks and is compatible with the continuance of those habitat, recreation, and park areas.” (Italics added.)

The trial court concluded that although the Coastal Commission staff’s finding would support the City’s factual determination the Scout Camp was being used for social events, no evidence showed the intensity of the prior and existing usage. The court noted that “neither the City nor [the Village] point to any evidence in the administrative record that sets forth the number or size of events that were being held at the Scout Camp before the application process.” But when the Village proposed the overnight camping and special events uses, including the frequency and amount of participants, the Village claimed those events merely continued the prior usage of the Scout Camp. The Coastal Commission referenced a complaint that weddings with up to 1500 guests were being held on the Scout Camp and event lighting had been added. It imposed additional restrictions on the intensity of the usage – including site lighting requirements and approval of management plans – to maintain the “continuance” of the habitat, recreation and park areas.

In addition, the existing facilities exemption is based on the Resources Agency’s finding that the “classes of projects listed . . . do not have a significant effect on the environment,” (Guidelines, § 15300), and the Coastal Commission determined the approved Scout Camp uses “will not result in significant degradation of [the] adjacent habitat, recreation areas, or parks.” Given that the Coastal Commission’s environmental review is functionally equivalent to the CEQA EIR process, it can reasonably be inferred that the approved Scout Camp uses constitute “negligible or no expansion of existing or former use.” (See Santa Barbara County Flower & Nursery Growers Assn. v. County of Santa Barbara (2004) 121 Cal.App.4th 864, 872 [“CEQA authorizes state agencies with environmental responsibilities, including the [Coastal] Commission, to operate under their own regulatory programs that replace the EIR process with a comparable form of environmental review. [Citations.]” ].) Thus, substantial evidence supports the City’s determination that the existing facilities exemption applied.

Categorical exemptions, such as the existing facilities exemption, are subject to exceptions enumerated in the relevant regulation. (World Business Academy, supra, 24 Cal.App.5th at p. 492.) As the party challenging the applicability of a categorical exemption, Fudge had the burden to produce evidence supporting an exception to the exemption. (Berkeley Hillside Preservation v. City of Berkeley (2015) 241 Cal.App.4th 943, 955-956 (Berkeley Hillside).)

The most commonly raised exception is the “unusual circumstances” exception. (Fairbank v. City of Mill Valley (1999) 75 Cal.App.4th 1243, 1259.) Fudge contends the whole project presents unusual circumstances because the Ranch project involves extensive remodeling and expansion and the “Scout Camp permit authorizes the use of a new 7,000 square foot concrete pad and allows up to 1,800 persons to use the Scout camp each month and 21,600 per year for special events.” He further contends unusual circumstances exist because of the project’s location in an environmentally sensitive area. Although couched as “unusual circumstances,” Fudge’s arguments involve the first three exceptions enumerated in section 15300.2 of the Guidelines, specifically, the location exception, the cumulative impact exception, and the significant effect exception.

Under the location exception, “Classes 3, 4, 5, 6, and 11 are qualified by consideration of where the project is to be located -a project that is ordinarily insignificant in its impact on the environment may in a particularly sensitive environment be significant.” (Guidelines, § 15300.2, subd. (a).) However, the existing facilities categorical exemption is a Class 1 exemption. Thus, the location exception does not apply. In addition, although the Scout Camp is located in an environmentally sensitive area, the Scout Camp itself is not a particularly environmentally sensitive area. It has been used as a dump for decades before being redeveloped and used for special events.

The cumulative impact exception applies to all categorical exemptions “when the cumulative impact of successive projects of the same type in the same place, over time is significant.” (Guidelines, § 15300.2, subd. (b).) The record does not show the Ranch project and the Scout Camp project are “successive projects of the same type in the same place.” The Ranch project renovates and expands the hotel and associated hospitality amenities on the Ranch parcel. The Scout Camp project clean ups the Scout Camp, a separate adjacent land parcel, and provides limited special events onsite. In addition, the City concluded both the Ranch project and the Scout Camp project are categorically exempt under the existing facilities exemption. As noted, the categorical exemption is a conclusion that the project did not have a significant effect on the environment. “Just as zero when added to any other sum results in no change to the final amount, so, too, when no environmental impacts cognizable under CEQA are added to the alleged environmental impacts of past projects, there is no cumulative increased impact” (Santa Monica Chamber of Commerce v. City of Santa Monica (2002) 101 Cal.App.4th 786, 799.) Fudge has not shown otherwise.

Finally, under the significant effect exception, “[a] categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” (Guidelines, § 15300.2, subd. (c).) Fudge has not shown that permitting “up to 1,800 persons to use the Scout camp each month and 21,600 per year for special events” is unusual for similarly exempted projects. Nor has he shown “a reasonable possibility that the [Scout Camp project] will have a significant effect on the environment.” (Guidelines, § 15300.2, subd. (c).) “Where a project involves ongoing operations or a continuation of past activity, the established levels of a particular use and the physical impacts thereof are considered to be part of the existing environmental baseline.” (North Coast Rivers Alliance v. Westlands Water Dist. (2014) 227 Cal.App.4th 832, 872.) “This baseline principle means that a proposal to continue existing operations without change would generally have no cognizable impact under CEQA.” (Id. at pp. 872-873.) We note the record suggests up to 1500 people were attending single events at the Scout Camp, but the permitted use reduced the number of persons onsite. As to the 7,000 square foot concrete pad, it already existed on the Scout Camp before the City approved the permits. How present conditions came to exist may interest enforcement agencies, but “that is irrelevant to CEQA baseline determinations—even if it means preexisting development will escape environmental review under CEQA.” (Citizens for East Shore Parks v. State Lands Com. (2011) 202 Cal.App.4th 549, 559.) In sum, Fudge has not shown an exception to the existing facilities exemption applies.

Finally, Fudge argues the City’s approval of the Scout Camp permits impermissibly relied on mitigation measures, such as the timing, occupancy, sound and lighting restrictions. Fudge, however, conflates project conditions or features with mitigation measures. Berkeley Hillside, supra, 241 Cal.App.4th 943, is instructive. There, two individuals sought to build a large house on a lot they owned. (Id. at p. 947.) The City approved the related use permit and found the project categorically exempt under the single-family residence and the in-fill development exemptions. (Ibid.) In approving the permit, the City imposed various conditions, including a “construction traffic management plan.” (Id. at p. 959.) The trial court rejected a writ of mandate challenging the City’s decision. (Id. at p. 951.)

On appeal, the petitioners argued “imposition of traffic mitigation measures was ‘fatal’ to the categorical exemptions, because the fact the project ‘requires mitigation’ means it cannot be subject to such an exemption.” (Berkeley Hillside, supra, 241 Cal.App.4th at p. 958.) The appellate court rejected the argument, concluding that the traffic plan “is not proposed subsequent action taken to mitigate any significant effect of the project, and therefore is not a mitigation measure that precludes the application of a categorical exemption.” (Id. at p. 961.) Here, the Coastal Commission imposed various conditions on the Scout Camp camping and special event use, including timing and occupancy restrictions. Those conditions were part of the approved Scout Camp project and not subsequent mitigation measures. (See Wollmer, supra, 193 Cal.App.4th at p.1352 [developer’s agreement during permitting process to dedicate “a five-foot right-of-way, enabling the City to improve the San Pablo and Ashby Avenues intersection, was not a CEQA mitigation measure for project impacts, but a component of the project that assisted the City with an existing traffic issue”].)

C. The City’s Approval of the Scout Camp Permits Did Not Violate Its Municipal Code

Fudge contends the City’s approval of the Scout Camp permits violated various zoning provisions of the Laguna Beach Municipal Code (LMBC). We disagree based on our independent construction of the pertinent municipal ordinances. (Welshans v. City of Santa Barbara (1962) 205 Cal.App.2d 304, 308 [“The construction to be given a statute or a municipal ordinance generally is a question of law.”].)

1. Legal Building Site

Section 25.08.004 of the LBMC provides: “No building permit and no certificate of use and occupancy shall be issued for a building or use of land until the director of community development has verified that the parcel of land upon which such building or use of land is to be established is a building site which may be used for the uses permitted in the zone in which it is located.” Relying on a statement in the property’s Real Property Report (RPR), Fudge contends the Scout Camp parcel is not a legal building site. However, he has not shown that the City is bound by the RPR’s statement that the Scout Camp is not a legal building site. As the City notes, its staff found the Scout Camp is “a building site and has been used for many years prior to the current ownership by both the previous owner . . . and many years prior to that as a camping area for scouting activities. The language in the June 11, 2013 Real Property Report (RPR) cited by the appellant was intended simply to reflect that portions of the property cannot be developed ‘individually’ (that is separate from common joint use with other portions of the property).”

Fudge contends the City staff’s finding is inconsistent with the LMBC’s requirements for a legal building site. Specifically, he contends the Scout Camp is not a legal building site because it is landlocked and does not abut a street or access road. However, the Municipal Code also provides that “[a] parcel of land that does not meet the foregoing requirements is not a building site unless otherwise validated in accordance with Section 25.56.020 of this code.” (LMBC, § 25.08.004.) Section 25.56.020 provides that “any parcel of land or lot which has been lawfully created and has received a building permit for the establishment and use of any building or structure, but which does not comply with the current access standards of this code, shall nevertheless be conclusively presumed to be a building site to the extent that any nonconformity arises solely out of a lack of compliance with current access standards.” (LMBC, § 25.56.020.) Thus, the mere fact that the Scout Camp parcel is landlocked does not preclude it from being a legal building site. Moreover, when the Scout Camp and the Ranch properties are viewed as a single property, the Scout Camp would meet the access requirements. Accordingly, the City could issue the use permits for the Scout Camp.

2. Floodplain Building Permit

Section 25.38.042 of LBMC provides: “A floodplain development building permit shall be obtained before any construction or other development, including manufactured homes, within any area of special flood hazard established in Section 25.38.031. Application for a floodplain development building permit shall be made on forms furnished by the city of Laguna Beach. The floodplain development building permit is additional to any other required permit, including a coastal development permit.” Fudge contends the City could not approve the Scout Camp permits because the Village never obtained a floodplain building permit. Fudge cannot raise this claim on appeal because he failed to exhaust his administrative remedies. His administrative appeal to the City never raised the claim that the City could not approve the Scout Camp permits because the Village never obtained a floodplain building permit. The generic references to the fact that Scout Camp is prone to flooding, and references to floodplain building permits in prior litigation, including the proceeding before the Coastal Commission, did not fairly notify the City of the floodplain permit claim as it relates to the Scout Camp project.

In any event, the Village’s failure to obtain a floodplain building permit did not deprive the City of its authority to approve the Scout Camp permits. Although a flood plain building permit must be obtained before “any construction or other development,” section 25.38.042 does not provide that a floodplain building permit must be obtained before applying for another permit. Rather, it provides that the “floodplain development building permit is additional to any other required permit, including a coastal development permit.” (LMBC, § 25.38.042, italics added.) Thus, the floodplain building permit is not a prerequisite for application or approval of other permits, such as the permits at issue here.

D. The City Was Not Required to Prepare and Certify an EIR Before Approving the Site Lighting Plan

Fudge challenged the City’s approval of the site lighting plan and its related determination that the lighting plan was categorically exempt from CEQA under the existing facilities exemption. The trial court concluded he was precluded from making this claim because he previously challenged the related conditional use permit and lost. Fudge contends the trial court erred in concluding he was barred from raising the claim under the doctrine of res judicata, as his prior claims were not resolved on the merits. We conclude his challenge to the City’s approval of the site lighting plan lacks merit.

The City’s approval of the site lighting plan was a condition of a prior conditional use permit. As this court has observed, once a conditional use permit has been approved under CEQA, subsequent approvals were not separate projects subject to CEQA review but “separate steps in the completion of the [project].” (Madrigal v. City of Huntington Beach (2007) 147 Cal.App.4th 1375, 1382.)

In any event, substantial evidence supported the City’s determination that the existing facilities categorical exemption applied. As noted, the Planning Commission staff found the “revised lighting plan would result in an overall reduction in site lighting and . . . [in] remov[al of] many of the existing facility outdoor lighting fixtures that are not in compliance with the Good Neighbor Outdoor Lighting Ordinance.” Fudge contends the site lighting plan presented unusual circumstances because the project as a whole is unusual in size and scope. However, both the Coastal Commission and the City determined that the Ranch project, which was proposed with a site lighting plan, did not have a significant impact on the environment. The Ranch already had preexisting outdoor lights and the revised site lighting plan would reduce the existing impact of the outdoor lights. On this record, Fudge failed to show an exception to the categorical exemption.

Fudge also contends the revised lighting plan included mitigation measures, such as additional shielding on pole lights. For the same reasons discussed above, the purported “mitigation measures” were part of the proposed lighting project and not subsequent actions to mitigate the impact of the lights. (Wollmer, supra, 193 Cal.App.4th at p. 1352.) Thus, the City did not impermissibly rely on mitigation measures to find a categorical exemption.

III

DISPOSITION

The denial of Fudge’s petition challenging the City’s approval of the site lighting plan is affirmed, and the grant of Fudge’s challenge to the City’s approval of the Scout Camp permits is reversed. Appellants are entitled to recover their costs on appeal.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.

Filed 11/15/19 Arellano v. First Avenue Real Estate Group, Inc. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ROGELIO ARELLANO,

Plaintiff and Appellant,

v.

FIRST AVENUE REAL ESTATE GROUP, INC., et al.,

Defendants and Respondents.

G056513

(Super. Ct. No. 30-2016-00838998)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Randall J. Sherman, Judge. Affirmed in part, reversed in part, and remanded with directions.

William M. Crosby for Plaintiff and Appellant.

Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet, Landon R. Schwob, Marc Joseph Zimet; Fitzgerald Yap Kreditor and Michael J. Fitzgerald for Defendants and Respondents.

* * *

On behalf of his employer, plaintiff Rogelio Arellano unknowingly delivered a forged document. When he found out the document was forged, he sent an e-mail to his employer stating, “I refuse to participate in any fraudulent activity with this company.” A few days later, his employment was terminated, or so he claimed.

The jury agreed plaintiff was wrongfully terminated, but the court did not. The jury returned a verdict against plaintiff on his defamation claim, but in favor of plaintiff on his claims for wrongful termination in violation of public policy (for which it awarded punitive damages) and failure to pay commissions due upon termination in violation of Labor Code section 201. The court granted defendants First Avenue Real Estate Group, Inc.’s (Diversified) and Ahmad Azizi’s motion for partial judgment notwithstanding the verdict (JNOV motion) and conditionally granted the motion for a partial new trial. Plaintiff appeals from the ensuing judgment.

In granting the JNOV motion, the court found there was no substantial evidence to support the verdict in plaintiff’s favor on his wrongful termination claim. According to the court, there was no substantial evidence that plaintiff’s “refusal to engage in fraudulent activity [was] a substantial motivating reason for Diversified’s decision to terminate” plaintiff’s employment. The court also found there was no clear and convincing evidence of malice to justify the punitive damages award in plaintiff’s favor. In conditionally granting the motion for new trial, the court repeated there was insufficient evidence to support the wrongful termination verdict.

Plaintiff raises several issues on appeal. First, plaintiff contends the court erred by granting the JNOV motion because substantial evidence supports the jury’s finding that Diversified terminated plaintiff’s employment because he refused to engage in fraudulent activity. Second, plaintiff claims the court erred because substantial evidence supports the punitive damages award. Third, plaintiff argues the court failed to specify the reasons for conditionally granting the motion for new trial as required by Code of Civil Procedure section 657. Fourth, plaintiff alternatively argues the court erred by conditionally granting the motion for new trial because substantial evidence supports the wrongful termination verdict.

We reverse the portion of the order granting the JNOV motion because substantial evidence supported the wrongful termination verdict. But we affirm the order conditionally granting the motion for new trial because the evidence also would have supported a verdict in defendants’ favor, and in this circumstance the court is permitted to weigh the evidence. Given the new trial on the wrongful termination claim, we do not address the punitive damages award.

Finally, plaintiff contends the court should have ordered the jury to redeliberate on his defamation claim. According to plaintiff, the verdict form mistakenly included a question that applies in cases involving public figures or matters of public concern. Because plaintiff would have prevailed on his defamation claim if this erroneous question had been excluded, plaintiff argues the court should have ordered the jury to deliberate on damages. We agree. The jury had not been discharged when plaintiff’s counsel notified the court about the defective verdict, and the issue could easily have been remedied by ordering the jury to deliberate on damages. On remand, the court is instructed to grant a new trial on damages on the defamation claim.

FACTS

The Incident

Plaintiff was an employee of Diversified, a company engaged in the business of property management and real estate sales. As a property manager, plaintiff maintained his real estate license and negotiated leases, advertised properties, and took legal action against tenants.

Plaintiff had a difficult history with Diversified’s principal, Azizi. In June 2015, Azizi told plaintiff he wanted to suspend him from work due to an allegedly inappropriate “business alignment” plaintiff had with a general contractor. The following month, Azizi told plaintiff he was “not being a team player” because he was looking for work at other companies. At another meeting, Azizi told plaintiff no one at Diversified liked him and that other employees did not want plaintiff to work for the company.

Plaintiff later told Azizi that a handyman who did work for a homeowners association on behalf of Diversified was illegally padding his work hours. In response, Azizi said the handyman was making him money and told plaintiff to leave him alone. Plaintiff said he would continue working for Diversified if the handyman did not do any work for the rental division.

The incident at the heart of this case occurred in October 2015 when a customer terminated Diversified’s services and requested certain documentation regarding a $10,000 payment advanced by Azizi to a company called Avaland Contractors. Azizi told plaintiff he had the requested documents, and plaintiff saw Azizi write “Sims” on the “memo” line of a $10,000 check. The customer’s property was located on Sims Street. The check was dated February 2015 and was drawn from an “A&D Entertainment Inc.” checking account. Azizi then gave a second document to plaintiff. The document was titled “Conditional Waiver of Lien for Loss Drafts” (Waiver Document) and was purportedly signed in March 2015 by Andres Sanchez, the owner of Avaland Contractors. Plaintiff delivered the Waiver Document and the check to the customer.

Plaintiff later suspected Azizi had forged Sanchez’s signature on the Waiver Document so he contacted Sanchez. Sanchez told plaintiff he had never seen the Waiver Document and did not sign it. He also said he had received the $10,000 check for work that was unrelated to the customer’s property on Sims Street. Plaintiff then met with an attorney because he was concerned about his own liability regarding the forgery. The attorney told plaintiff he needed to consult an attorney with criminal experience and advised him to disclose the incident to his supervisor.

On December 17, 2015, plaintiff sent an e-mail to Paul Kotas, Diversified’s broker of record, and attached copies of the Waiver Document and check. The e-mail, which is central to this appeal, stated: “Dear Paul, [¶] I wanted to inform you as my broker of record that I have been asked to participate in what I now realize is fraud. Upon close examination of the document that [Azizi] gave me to provide to a client as proof of payment, the document which is attached to this email, was not actually written by Andres Sanchez and the signature shown in the document is not his. [¶] I refuse to participate in any fraudulent activity with this company. Please advise. [¶] Sincerely Rogie Arellano.”

Plaintiff met with Kotas and discussed the matter the next day. Kotas then talked to Azizi about plaintiff’s concerns and told him that plaintiff was accusing him of fraud. After meeting with Azizi, Kotas again spoke with plaintiff. According to plaintiff, Kotas told him there was a decision to terminate plaintiff’s employment. According to Kotas, who had a slightly different take, he told plaintiff there had been some discussions about terminating plaintiff’s employment. But there is no dispute Kotas told plaintiff he had to remove plaintiff’s name from the list of agents recorded with the California Bureau of Real Estate.

On December 21, 2015, plaintiff sent an e-mail to Azizi stating: “This is to confirm that you have terminated me today after the discussions about the contract waiver. I will not be coming in tomorrow.” Azizi replied to the e-mail stating: “That is incorrect[.] I have had no discussions with you. Mr. Kotas has been in contact with yourself and I’ve merely heard your requests to be terminated. I have no issues if you are choosing to quit from your position.” Azizi also said he had left a voicemail for plaintiff and had sent him text messages that plaintiff never answered.

Plaintiff testified he did not want to quit his job and had never asked anyone to terminate his employment. He also testified he could not perform his real estate activities without his real estate license being affiliated with a broker. Azizi testified he thought he could reassign plaintiff to a different job that did not require a real estate license, instead of terminating plaintiff’s employment.

The Complaint, Jury Verdict, and Plaintiff’s Request to Have the Jury Redeliberate

In March 2016, plaintiff filed a complaint asserting claims for wrongful termination in violation of public policy and violation of Labor Code section 201 against Diversified and a claim for defamation against Diversified and Azizi.

In December 2017, the jury returned a verdict in favor of plaintiff on his claims for wrongful termination and violation of Labor Code section 201. As to the wrongful termination claim, the jury awarded: (1) $91,000 for past economic loss; (2) $35,000 for future economic loss; (3) $75,000 for past non-economic loss, including mental and emotional distress; and (4) $25,000 for future non-economic loss, including mental and emotional distress. The jury found plaintiff’s “refusal to engage in fraudulent activity [was] a substantial motivating reason for Diversified’s decision to terminate” plaintiff’s employment. The jury also awarded $180,000 in punitive damages and found plaintiff “prove[d] by clear and convincing evidence that . . . Azizi acted with malice, fraud or oppression . . . .”

As to the defamation claim, the jury found in favor of plaintiff on all relevant questions except the following: “Did [plaintiff] prove by clear and convincing evidence that . . . Azizi knew that the statement was false or had serious doubts about the truth of the statement?” After the jury returned its verdict on the merits, but prior to the punitive damages phase of the trial, plaintiff’s counsel realized he made a mistake: This question should not have been included on the special verdict form. He informed the court that this “question only applies in a public figure case,” acknowledged he overlooked the issue, and requested the court order the jury to redeliberate. Because the jury found in favor of plaintiff on all other elements, plaintiff’s counsel argued the jury would only need to deliberate on the issue of damages.

The court rejected plaintiff’s request and found the issue was waived because the parties had agreed to the special verdict form. The court also noted the jury had awarded $100,000 to plaintiff for emotional distress in connection with the wrongful termination claim, “which may or may not have overlap issues with respect to any defamation/emotional distress.”

Defendants’ JNOV Motion and Motion for New Trial

After judgment was entered, defendants filed a JNOV motion and a motion for partial new trial. They argued there was insufficient evidence to support the jury’s finding that plaintiff’s employment was terminated, or even if it was, that the evidence was insufficient to support a finding that a substantial motivating reason for the termination was plaintiff’s refusal to engage in fraudulent activity. They also argued there was insufficient evidence of malice, oppression, or fraud to support the jury’s punitive damages award.

The court granted the JNOV motion and conditionally granted the motion for new trial. The court found there was no substantial evidence to support the jury’s verdict in plaintiff’s favor on the wrongful termination claim. In reaching this conclusion, the court focused on the jury’s finding that plaintiff’s “refusal to engage in fraudulent activity [was] a substantial motivating reason for Diversified’s decision to terminate” plaintiff’s employment.

First, the court found there was insufficient evidence “as to any refusal by plaintiff to engage in fraudulent activity . . . .” With respect to plaintiff’s e-mail to Kotas stating he refused to engage in fraudulent activity, the court held “plaintiff admitted having just met with an attorney [so] it [was] no surprise that his email used that conclusory magic language to support a wrongful termination claim . . . .” The court found there was no evidence of “exactly what the fraudulent activity was in which plaintiff was asked to engage, or in which he refused to engage.”

The court also found there was no substantial evidence that plaintiff refused to engage in fraudulent conduct with respect to the forged Waiver Document. According to the court, “it is unclear how plaintiff, in December 2015, could have refused to ‘participate’ in the forgery of a document that Azizi allegedly forged without plaintiff’s involvement two months earlier, in October 2015.” The court also noted plaintiff had discussed the document with Azizi in October 2015, which was two months before his termination.

Second, the court found there was “a lack of evidence as to any decision by [defendants] to terminate plaintiff” because he refused to participate in fraudulent activity. According to the court, “[p]laintiff testified . . . Kotas told him that Azizi had to terminate plaintiff because he accused Azizi of [forgery,]” but “[n]o one else provided testimony that would support the jury’s conclusion . . . that plaintiff’s alleged refusal to engage in fraudulent activity was a substantial motivating reason for Diversified’s decision to terminate plaintiff’s employment.”

Finally, the court held “there was no clear and convincing evidence of malice . . . to justify the punitive damages award.” In the same order granting the JNOV motion, the court conditionally granted the motion for new trial because “there [was] an insufficiency of the evidence to support the verdict as to plaintiff’s wrongful termination cause of action.” The court noted the order would be effective if the JNOV is reversed on appeal and the order granting a new trial is not appealed from or is affirmed.

In June 2018, the court entered an amended judgment in favor of plaintiff on his claim for violation of Labor Code section 201. Plaintiff appealed from the amended judgment.

DISCUSSION

Plaintiff contends the court erred by granting the JNOV motion because substantial evidence supports the jury’s finding that plaintiff was terminated for refusing to engage in fraudulent conduct. According to plaintiff, his “unambiguous email [to Kotas] describing the fraudulent activity and stating his refusal to engage in any such activity . . . may well have been a substantial motivating reason for Azizi to terminate [plaintiff’s] employment.” Plaintiff also claims the court erred by granting the JNOV motion because substantial evidence supports the jury’s award of punitive damages. With respect to the order granting a new trial, plaintiff argues the court failed to state the specific reasons for granting the motion. And in any event, plaintiff contends the court erred because substantial evidence supports the wrongful termination verdict. Finally, plaintiff claims the court erred by refusing to order the jury to redeliberate on the defamation claim.

For the reasons explained below, substantial evidence supported the wrongful termination verdict, and the court improperly weighed the evidence when it granted the JNOV motion. But it was well within the court’s discretion to weigh the evidence and question plaintiff’s credibility in granting the motion for new trial. The court’s order also sufficiently identified the court’s reasons for granting the motion for new trial. We accordingly reverse the order granting the JNOV motion but affirm the order granting the motion for new trial. Given the new trial, we need not address the parties’ arguments regarding the punitive damages award. We also agree the court erred by refusing to order the jury to redeliberate on plaintiff’s defamation claim.

The Court Erred by Granting Defendants’ JNOV Motion

Section 629, subdivision (a) provides: “The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion . . . or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.”

“‘“The trial court’s discretion in granting a motion for judgment notwithstanding the verdict is severely limited.” [Citation.] “‘The trial judge’s power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict [citations]. The trial judge cannot reweigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] “A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.” [Citation.]’” [Citation.]’ [Citation.] ‘On review of an order granting JNOV, we “‘must resolve any conflict in the evidence and draw all reasonable inferences therefrom in favor of the jury’s verdict.’”’” (Simmons v. Ware (2013) 213 Cal.App.4th 1035, 1047-1048 (Simmons).)

Here, the record contained sufficient evidence to support the jury’s finding that plaintiff’s refusal to engage in fraudulent activity was a substantial motivating reason for Diversified’s decision to terminate his employment. After learning about the forged Waiver Document, plaintiff reported the incident to Kotas. He also sent an e-mail to Kotas stating, “I refuse to participate in any fraudulent activity with this company.” A few days later, Kotas told plaintiff he was going to remove plaintiff’s name from the agents’ roster recorded with the California Bureau of Real Estate, which prevented plaintiff from doing his job. Kotas also told plaintiff that he and Azizi had discussed terminating plaintiff’s employment. A reasonable inference drawn from plaintiff’s e-mail and defendants’ conduct in the following days is that defendants terminated plaintiff’s employment because he refused to engage in fraudulent activity. While the court found plaintiff used “conclusory magic language” in his e-mail because he had met with an attorney, it was not the court’s role to judge plaintiff’s credibility. (Simmons, supra, 213 Cal.App.4th at pp. 1047-1048.)

Defendants contend “[a]ll of the events concerning the Waiver Document occurred months before [plaintiff’s] purported termination.” They note the document was from March 2015 and plaintiff learned about “the claimed forged signature . . . in October 2015, two months before his alleged termination, and discussed it in a meeting with Azizi at that time.” Given this timing, they claim plaintiff’s email in December 2015 could not have caused his termination. Although the forgery occurred months before plaintiff was terminated and plaintiff learned about the Waiver Document in October 2015, defendants point to no evidence that plaintiff exposed the fraud or refused to engage in fraud before his e-mail. Even if the evidence supporting the verdict was less persuasive to the court than the contrary evidence, the court could not reweigh the evidence. (Simmons, supra, 213 Cal.App.4th at pp. 1047-1048.) Where, as in this case, several reasonable inferences may be drawn from the evidence, the JNOV motion should be denied. (Ibid.)

We also reject defendants’ suggestion that plaintiff had to prove he “was asked to do something fraudulent, refused, and then was fired for that refusal.” Based on plaintiff’s e-mail, the jury could reasonably infer plaintiff refused to engage in any fraudulent activity associated with the Waiver Document (e.g., refused to participate by keeping the forgery a secret), and also refused to engage in any future fraudulent activity, and was terminated as a result. (See CACI No. 2507 [A substantial motivating reason “must be more than a remote or trivial reason,” but it “does not have to be the only reason motivating the [termination].”)

Plaintiff points to evidence suggesting his general refusal to engage in fraudulent activity encompassed more than just the forged Waiver Document. According to plaintiff, his “objections to working with [a handyman] after telling Azizi that this new handyman was being allowed to pad his work hours that were being billed to clients of homeowners associations [citation], and agreeing to stay with Diversified on the condition that [the handyman] would not do any work for the rental division in which [plaintiff] worked [citation], should also be construed as a ‘refusal to engage in fraudulent activities.’” He also points to Diversified’s “unscrupulous business practices, including stiffing [certain general contractors] of earned commissions; firing and then rehiring [plaintiff] after falsely accusing [him] of ‘not being a team player’ in July of 2015 [citation]; and despite [plaintiff’s] objections to [a handyman] ‘padding’ customer invoices, telling [plaintiff] to leave [the handyman] alone because ‘he’s making me money.’” Based on this evidence, the jury could reasonably infer Diversified was engaged in fraudulent business practices and that plaintiff’s e-mail put defendants on notice that he would not participate in these activities in the future.

Drawing all reasonable inferences in favor of the jury’s verdict, the court erred by granting the JNOV motion.

The Court Did Not Abuse Its Discretion by Granting Defendants’ Motion for New Trial

As noted, the court granted defendants’ motion for a new trial conditioned on the JNOV being reversed on appeal and the new trial order not being appealed or, if appealed, affirmed on appeal. Plaintiff asserts the court erred by failing to specify its reasons for granting the new trial and further that the court erred because substantial evidence supported the verdict. We disagree with plaintiff’s first claim of error and also conclude that plaintiff’s second claim of error is meritless because it applies the wrong standard of review. Accordingly, we affirm the order granting a new trial.

Specification of Reasons Supporting the Order

Plaintiff argues we should reverse the court’s order granting the motion for new trial because the court failed to specify the reasons for granting the motion as required by section 657. We reject plaintiff’s contention because the court adopted the same grounds and rationale relied upon in granting the JNOV motion.

Section 657 requires a court to “specify the ground or grounds upon which [a new trial] is granted and the court’s reason or reasons for granting the new trial upon each ground stated.” “If an order granting such motion [for new trial] does not contain such specification of reasons, the court must, within 10 days after filing such order, prepare, sign and file such specification of reasons in writing with the clerk.” (Ibid.)

Here, the court granted the JNOV motion and motion for new trial in the same order. After detailing the specific reasons for granting the JNOV motion, the court granted a new trial because “there [was] an insufficiency of the evidence to support the verdict as to plaintiff’s wrongful termination cause of action.” The specific reasons for granting of the JNOV were in support of the court’s conclusion that “[t]here is no substantial evidence to support the jury’s verdict in plaintiff’s favor as to plaintiff’s cause of action for wrongful termination.” The finding there was “no substantial evidence” is simply the far extreme of a finding of “insufficiency of the evidence to support the verdict as to plaintiff’s wrongful termination cause of action.” It is obvious that the court granted the motion for new trial for the same reason it granted the JNOV motion. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 413 (Lane)) [“A court need not unnecessarily burden a new trial order by reiterating what it has already said at length with respect to another issue before it [citation], so long as it makes clear to a reviewing court the basis for its decision].)

Insufficient Evidence to Support the Wrongful Termination Verdict

Plaintiff contends the court erred by conditionally granting the motion for new trial because substantial evidence supports the wrongful termination verdict. Plaintiff misunderstands the standard of review. Because the evidence would have supported a verdict in defendants’ favor, and the court had the authority to reweigh the evidence, the court did not abuse its discretion by granting the motion for new trial.

A trial court may vacate the verdict and order a new trial when the evidence is insufficient to support the verdict. (§ 657, subd. (6).) “On appeal from an order granting a new trial upon the ground of the insufficiency of the evidence . . . such order shall be reversed as to such ground only if there is no substantial basis in the record for” that reason. (§ 657.) “[A]n order granting a new trial . . . ‘must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial court’s] theory.’ [Citation.] Moreover, ‘[a]n abuse of discretion cannot be found in cases in which the evidence is in conflict and a verdict for the moving party could have been reached . . . .’ [Citation.] In other words, ‘the presumption of correctness normally accorded on appeal to the jury’s verdict is replaced by a presumption in favor of the [new trial] order.’” (Lane, supra, 22 Cal.4th at p. 412.)

As our Supreme Court has explained, “The reason for this deference ‘is that the trial court, in ruling on [a new trial] motion, sits . . . as an independent trier of fact.’” (Lane, supra, 22 Cal.4th at p. 412.) “[T]he trial court’s factual determinations, reflected in its decision to grant the new trial, are entitled to the same deference that an appellate court would ordinarily accord a jury’s factual determinations.” (Ibid.) Because “[t]he trial court sits much closer to the evidence than an appellate court,” “[t]he trial court . . . is in the best position to assess the reliability of a jury’s verdict and, to this end, the Legislature has granted trial courts broad discretion to order new trials.” (Ibid.)

Applying these standards, we affirm the court’s order conditionally granting the motion for new trial. The court found there was no substantial evidence that plaintiff’s “refusal to engage in fraudulent activity [was] a substantial motivating reason for Diversified’s decision to terminate” plaintiff’s employment. While the timing of plaintiff’s termination following his December 2015 e-mail supports the jury’s verdict, that evidence is highly circumstantial and a contrary inference is also reasonable. The court could draw different inferences from this same evidence sitting as an independent trier of fact. (Licudine v. Cedars-Sinai Medical Center (2016) 3 Cal.App.5th 881, 900.)

As the court noted, there was no evidence of “exactly what the fraudulent activity was in which plaintiff was asked to engage . . . .” The December 2015 e-mail generally stated plaintiff refused to engage in fraudulent activity, but plaintiff never refused to engage in fraud with respect to the Waiver Document. Plaintiff argues he “had been asked to deliver [the Waiver Document,] a forged legal document[,] to a client of Diversified in October of 2015.” But the fraud at issue was the forgery of Sanchez’s signature, which did not involve plaintiff and occurred two months before plaintiff’s employment ended. Even assuming defendants asked plaintiff to engage in fraudulent activity by having him deliver the Waiver Document in October 2015, defendants correctly note that exposing the forgery two months later “is not a ‘refusal to engage in fraudulent activity . . . .”

Finally, we agree with the court’s suggestion that “the evidence supports the conclusion that plaintiff quit, rather than was terminated . . . .” Although the court ultimately found there was substantial evidence to support the jury’s verdict that plaintiff’s employment was terminated, there was also strong evidence that defendants did not terminate his employment. After plaintiff sent an e-mail to Azizi to “confirm” his employment was terminated, Azizi responded and said plaintiff was wrong to make that assumption. He also told plaintiff he had left a voicemail and sent text messages that plaintiff never answered. Consistent with his e-mail, Azizi testified he wanted to reassign plaintiff to a different job rather than terminate plaintiff’s employment. Defendants also point to evidence that plaintiff sent letters to other employers seeking a new job before his alleged termination, which further supports a finding that plaintiff quit rather than was terminated.

Plaintiff suggests Azizi’s e-mail claiming he did not terminate plaintiff’s employment was insincere. But plaintiff also points to evidence suggesting Azizi often changed his mind about terminating plaintiff’s employment. Approximately six months before the December 2015 e-mail, Azizi told plaintiff he wanted to suspend him because of an allegedly improper “business alignment” plaintiff had with a general contractor. According to plaintiff, “Azizi retracted [plaintiff’s] suspension.” In July 2015, Azizi suggested plaintiff was not a team player because he was looking for other work. He also told plaintiff that other employees did not want plaintiff to work for the company. According to plaintiff, “Azizi then changed his mind,” and plaintiff continued to work for Diversified. Ultimately, it was the court’s task to evaluate Azizi’s credibility. Considering this history along with Azizi’s statement that plaintiff was wrong to assume he was terminated, it could reasonably be inferred that defendants did not terminate plaintiff’s employment in December 2015.

Because the evidence would have supported a verdict in defendants’ favor on the wrongful termination claim, the court did not abuse its discretion by granting the motion for new trial. (Lane, supra, 22 Cal.4th at p. 414 [“so long as the evidence can support a verdict in favor of either party[,] a properly constructed new trial order is not subject to reversal on appeal”].) We accordingly affirm the court’s order conditionally granting a new trial on the wrongful termination claim and need not address whether there was clear and convincing evidence of malice to justify the punitive damages award.

The Court Erred by Refusing to Order the Jury to Redeliberate on the Defamation Claim

Plaintiff next contends the court should have ordered the jury to redeliberate on his defamation claim pursuant to section 619. Section 619 provides: “When the verdict is announced, if it is informal or insufficient, in not covering the issue submitted, it may be corrected by the jury under the advice of the Court, or the jury may be again sent out.” “‘“Informal” is defined as “defective in form; not in the usual form or manner; contrary to custom or prescribed rule.”’ [Citation.] ‘“Insufficient” is defined as “inadequate for some need, purpose or use.”’” (Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 302.) Section 619 also applies to inconsistent or ambiguous verdicts. (Ibid.)

The parties dispute whether the verdict falls within the scope of section 619. Plaintiff argues the verdict was “defective” and “insufficient” because it included an erroneous question. We agree. The parties included the following question on the special verdict form: “Did [plaintiff] prove by clear and convincing evidence that . . . Azizi knew that the statement was false or had serious doubts about the truth of the statement?” Defendants do not dispute this question applies in cases involving a public figure. (See New York Times Company v. Sullivan (1964) 376 U.S. 254, 279-280.) But plaintiff is a private figure involved in a matter of private concern. The verdict accordingly was defective because it included this inapt question.

If the erroneous question had been excluded, plaintiff would have prevailed on his defamation claim. To prevail, plaintiff had to prove that: (1) Azizi made a statement to a person, other than plaintiff, that plaintiff committed a crime or engaged in conduct that would injure plaintiff in his profession, trade, or business; (2) the person reasonably understood the statement was about plaintiff; (3) the person reasonably understood the statement to mean that plaintiff had committed a crime or engaged in conduct that would injure him in respect to his office, profession, trade, or business by imputing to him general disqualification in those respects which the office or other occupation requires; and (4) Azizi failed to use reasonable care to determine the truth or falsity of the statement. (See CACI No. 1704 [elements for defamation per se involving a private figure and matter of private concern].) The jury found in favor of plaintiff on all of these elements. For this reason, the verdict was insufficient because it supported a finding of liability in plaintiff’s favor but the inapt question diverted the jury from making any findings on damages.

Relying on Sherwood v. Rossini (1968) 264 Cal.App.2d 926, defendants argue the verdict was “complete” because “the verdict form had been prepared and revised multiple times by Arellano’s counsel, had been approved, closing arguments based thereon had been prepared and presented to the jury, the jury had been sent out for deliberation based upon same, and the jury had returned a verdict.” (Italics omitted.) But this ignores section 619. As the court explained in Sherwood, “while the trial court does not have the power to order the jury to deliberate further if it has returned a complete verdict, the court has the power to return the jury to the jury room for further deliberation if its verdict is ‘informal or insufficient, in not covering the issue submitted.’” (Sherwood, at p. 929.)

We also disagree with the court’s conclusion that plaintiff waived the issue because his counsel agreed to use the special verdict form and assisted in preparing it. “Where the discrepancy [in a verdict] is identified before the jury is discharged, the court retains control of the jury and may, pursuant to section 619, use its power to correct the verdict before it becomes final.” (Mendoza v. Club Car, Inc., supra, 81 Cal.App.4th at p. 303.) “In fact, it is the court’s duty in such a case to attempt to remedy the situation.” (Ibid.)

Here, the jury returned its verdict on December 11, 2017, and plaintiff’s counsel raised the issue with the court on December 12 before the punitive damages phase of the trial. Because the jury had not been discharged and the issue could easily have been remedied by ordering the jury to redeliberate on damages, we conclude the court abused its discretion. On remand, the court is instructed to grant a new trial on damages on the defamation claim.

DISPOSITION

The order granting defendants’ JNOV motion on plaintiff’s wrongful termination cause of action is reversed. The order conditionally granting defendants’ motion for new trial on the wrongful termination cause of action is affirmed. On remand, the court also is instructed to grant a new trial on damages on plaintiff’s defamation cause of action. The parties shall bear their own costs incurred on appeal.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

THOMPSON, J.

Case Number: BC671146 Hearing Date: November 18, 2019 Dept: 78

Superior Court of California
County of Los Angeles
Department 78

KAMRAN KHALI, et al.,

Plaintiffs,

v.

JAMES LEE REYNOLDS, et al.,

Defendants.

AND RELATED CROSS-ACTION

Case No.: BC671146

Hearing Date: November 18, 2019

[TENTATIVE] RULING RE:

Defendant and Cross-complainant James Lee Reynolds’s Motion for leave to amend the cross-complaint

Defendant/Cross-Complainant James Lee Reynolds’s Motion for Leave to Amend the Cross-Complaint is DENIED.

FACTUAL BACKGROUND

This is a legal malpractice case. The Complaint alleges as follows. Before August 30, 2016, Plaintiffs David Khalil, Kamran Khalil, and Brenden Real Estate, LLC, were clients of Defendant James Lee Reynolds (“Reynolds”), an attorney. (Complaint ¶¶ 1, 6.) They had entered into a retainer agreement on April 20, 2015, to represent Plaintiffs in an underlying action. (Complaint ¶ 7.) Owing to a series of disputes between Reynolds and the discovery referee appointed in the underlying action, Plaintiffs fired Reynolds on August 10, 2016. (Complaint ¶¶ 10–14.) Following the termination of the relation, Plaintiffs and Reynolds continued to have disputes about fees, client files, and ongoing discovery. (Complaint ¶ 14–16.) Plaintiffs claim that Reynolds revealed privileged communications to the discovery referee and opposing parties, and advocated that sanctions be imposed against Plaintiffs, falsely blaming them for his own conduct. (Complaint ¶ 16.) Plaintiffs now face sanctions in the underlying action. (Complaint ¶ 17.)

Reynolds’s Cross-Complaint (or “XC”) alleges that Cross-Defendants David Khalil, Kamran Khalil, and Brenden Real Estate, LLC (“Cross-Defendants”) represented to Reynolds that additional documents were available to be discovered in the underlying case and offered to pay for several business subpoenas to allow for such discovery and to avoid the entry of terminating sanctions against them. (XC ¶ 19.) However, Cross-Defendants had no intention of paying for said subpoenas, and are in breach of their contract for failing to do so. (XC ¶ 21.)

PROCEDURAL HISTORY

Plaintiffs filed the present Complaint on August 3, 2017, alleging two causes of action:

Negligence

Breach of Fiduciary Duty

Plaintiffs filed a Proof of Service of Summons and Complaint on November 30, 2017. The Proof of Service indicated that Reynolds had been served by substitute service on November 21, 2017. The Declaration of Diligence indicates that service was made at Reynolds’s place of business after three previous attempts.

On March 16, 2018, this court granted Reynolds’s Motion to Quash Service of Summons.

On October 31, 2018, this court overruled Defendant Reynolds’s Demurrer to the Complaint, and denied his motion to strike.

On November 30, 2018, Reynolds filed a Cross-Complaint alleging four causes of action:

Intentional Misrepresentation

Breach of Written Contract

Common Count — For Service Provided

Common Count — Quantum Meruit

This Court on March 19, 2019, sustained David Khalil, Kamran Khalil, and Brenden Real Estate, LLC’s Demurrer with leave to amend as to the First and Fourth Causes of Action in the Cross-Complaint, and overruled the demurrer as to the Second and Third Causes of Action in the Cross-Complaint. The Court granted Cross-Defendants’ Motion to Strike the prayer for punitive damages, with leave to amend.

Reynolds filed an Amended Cross-Complaint on April 17, 2019, and by stipulation filed a Second Amended Cross-Complaint on May 20, 2019, omitting the Fourth Cause of Action for Quantum Meruit.

On July 16, 2019, Reynolds filed a Motion for Leave to Amend the Cross-Complaint.

On November 6, 2019, Reynolds filed a Notice of No Opposition, or, in the Alternative, If Opposition Filed, Request to Strike Opposition for Failure to Comply with the Law.

On November 8, 2019, Plaintiffs/Cross-Defendants Filed an Opposition to Reynolds’ Motion to Leave to Amend. While this opposition was filed late, the Court accepts counsel’s representation that this was the result of an inadvertent scheduling error and, finding no prejudice, has considered the opposition.

DISCUSSION

MOTION FOR LEAVE TO AMEND CROSS-COMPLAINT

Code Civ. Proc. section 473 subd. (a)(1) states that:

The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.

“The trial court has discretion to permit or deny the amendment of the complaint, but instances justifying the court’s denial of leave to amend are rare.” (Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642.)

“Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [Citations], this policy should be applied only ‘[w]here no prejudice is shown to the adverse party . . .’ [Citation.] A different result is indicated ‘[w]here inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation.]” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)

Pursuant to California Rule of Court Rule 3.1324, “[a] motion to amend a pleading before trial must: (1)Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3)State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.”

Such a motion must include a supporting declaration stating, “(1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier.” (CRC Rule 3.1324, subd. (b).)

Reynolds asks for leave to amend to add a new named defendant, Jeffrey A. Hacker (“Hacker”), and a new cause of action for declaratory relief alleged exclusively against Hacker. (Motion at pp. v, 1.) Reynolds argues that Hacker may be liable for the harm that Plaintiff’s allege in their Complaint and claims that he has a legitimate claim against Hacker for implied equitable indemnification. (Motion at ¶¶ 19-21.)

In Opposition, Plaintiffs, through their attorney, Hacker, argue that Reynolds has known of Hacker’s existence and role since 2016, and adding Hacker will significantly prejudice Plaintiffs because they will need to obtain new counsel due to conflict of interest issues involving Hacker, because it will delay trial, and because Plaintiff’s counsel would possibly need to testify in trial. (Opposition at pp. 2-3.) Plaintiffs further argue that there is no need to include counsel as a party because any purported indemnity claims can be presented in a separate action post-trial. (Opposition at p. 3.) The Court agrees although it may well be the case that such claims are barred as a matter of law.

Although liberality is generally used in permitting amendments, an unwarranted delay in presenting an amendment is a reason for denial. (Record v. Reason (1999) 73 Cal.App.4th 472, 486.) In Record v. Reason, the appellant had knowledge of the circumstances on which he based on the complaint three years before he sought leave to amend. (Id.) Accordingly, the appellate court found that the trial court did not abuse its discretion is denying leave to amend. (Id.)

The same is true in this case as in Record v. Reason. Reynolds’ Motion contains extensive facts regarding the involvement of Hacker to indicate why he should be joined as a defendant. However, all of the offered facts date to 2016, and Reynolds has not explained why he has waited three years from the initiation of the action and one year from the filing of the Cross-Complaint to choose to add Hacker as a Defendant at this point in time. Reynolds has not offered new circumstances or evidence to support the delay.

Plaintiffs have argued that they will suffer prejudice, in their Opposition, because Hacker is their representing counsel-of-record in this instant case. (Opposition at p 3.) Plaintiffs’ prejudice argument is compelling because they will need to obtain new counsel, due to conflicts of interest, with less than a year to trial after the case has been pending for three years.

Accordingly, because Reynolds has not explained why he seeking to add a new party three years after learning about Hacker’s role, and because such addition will cause prejudice to the Plaintiffs/Cross-Defendants, the Motion for Leave to Amend is DENIED.

Defendant/Cross-Complainant to give notice.

Dated: November 18, 2019

_____________________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: 18STLC14226 Hearing Date: November 18, 2019 Dept: 94

Crosby v. Innovate Pasadena, et al.

MOTION TO COMPEL RESPONSES TO INTERROGATORIES

AND REQUEST FOR SANCTIONS

(CCP § 2030.290)

TENTATIVE RULING:

Plaintiff Gerald Crosby’s Motion Compelling Defendant DB Coworking Holdings Corp. To Respond To Special Interrogatories, Set One, is PLACED OFF CALENDAR AS MOOT. Plaintiff’s request for sanctions is GRANTED JOINTLY AND SEVERALLY AGAINST DEFENDANT DB COWORKING HOLDINGS CORP. AND ITS COUNSEL OF RECORD IN THE AMOUNT OF $536.65. SANCTIONS TO BE PAID WITHIN 30 DAYS OF SERVICE OF NOTICE OF THIS ORDER.

ANALYSIS:

Only August 1, 2019, Plaintiff Gerald Crosby (“Plaintiff”) filed the instant Motion To Compel Responses To Special Interrogatories by Defendant DB Coworking Holdings Corp. (“Defendant DB Coworking”). Defendant DB Coworking filed its opposition on September 26, 2019.

Defendant DB Coworking having submitted evidence that it served verified responses, without objections, to the Special Interrogatories, the Motion to Compel Responses is placed off calendar as moot. (Opp., Osher Decl., ¶6 and Exh. 2.) However, Defendant DB Coworking’s failure to timely respond constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) Sanctions are appropriate under Code of Civil Procedure sections 2023.010 and 2023.030, and have been properly noticed. However, the amount sought is excessive given the simplicity of this motion. The request for sanctions is granted jointly and severally against Defendant DB Working and its counsel of record in the amount of $536.65 based on one hour of attorney time billed at $475.00 and the $61.65 filing fee. (Motion, Mehrban Decl., ¶¶6-7.)

Plaintiff Gerald Crosby’s Motion Compelling Defendant DB Coworking Holdings Corp. To Respond To Special Interrogatories, Set One, is PLACED OFF CALENDAR AS MOOT. Plaintiff’s request for sanctions is GRANTED JOINTLY AND SEVERALLY AGAINST DEFENDANT DB COWORKING HOLDINGS CORP. AND ITS COUNSEL OF RECORD IN THE AMOUNT OF $536.65. SANCTIONS TO BE PAID WITHIN 30 DAYS OF SERVICE OF NOTICE OF THIS ORDER.

Moving party to give notice.

Case Number: BC661596
NETPAY PAYROLL INC ET AL VS ZAK EINSTEIN
Filing Courthouse: Stanley Mosk Courthouse

Filing Date: 05/23/2017
Case Type: Claims Involving Mass Tort (General Jurisdiction)
Status: Pending

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

11/26/2019 at 08:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012
Hearing on Motion to Compel Further Discovery Responses

03/19/2020 at 08:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012
Final Status Conference

03/24/2020 at 09:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012
Non-Jury Trial

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

BOJIC PAUL D. – Attorney for Plaintiff

CHAPMAN NATHAN D. – Attorney for Defendant

EINSTEIN ZAK – Defendant

EINSTEIN ZAK – Cross-Complainant

GRAY MICHAEL – Cross-Complainant

GRAY MICHAEL – Defendant

HEARTLAND PAYROLL SOLUTIONS INC. – Defendant

NETPAY INSURANCE SERVICES INC. – Cross-Defendant

NETPAY INSURANCE SERVICES INC. – Plaintiff

NETPAY INSURANCE SERVICES INC. – Cross-Defendant

NETPAY PAYROLL INC. – Cross-Defendant

NETPAY PAYROLL INC. – Cross-Defendant

NETPAY PAYROLL INC. – Plaintiff

VARTANIAN KRISTAPOR – Attorney for Defendant

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

Documents Filed (Filing dates listed in descending order)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
06/28/2018 11/13/2017

11/12/2019 Declaration ( in Support of Opposition to Motion to Compel Further Discovery Responses)
Filed by Netpay Insurance Services, Inc. (Plaintiff); Netpay Payroll, Inc. (Plaintiff)

11/12/2019 Opposition (to Motion to Compel Further Discovery Responses)
Filed by Netpay Insurance Services, Inc. (Plaintiff); Netpay Payroll, Inc. (Plaintiff)

10/29/2019 Ruling: Motion to Compel Further Responses to Special Interrogatories; Request for Sanctions
Filed by Clerk

10/29/2019 Minute Order ( (Hearing on Motion to Compel Further Discovery Responses Inter…))
Filed by Clerk

10/22/2019 Reply (Memorandum in Support of Motion to Compel Further Interrogatory Responses (Set One) from Plaintiffs and Request for Monetary Sanctions (for $11,485.00) Against Plaintiffs and Their Counsel)
Filed by Heartland Payroll Solutions, Inc. (Defendant)

10/15/2019 Declaration ( in Support of Opposition to Motion to Compel Further Discovery Responses)
Filed by Netpay Insurance Services, Inc. (Plaintiff); Netpay Payroll, Inc. (Plaintiff)

10/15/2019 Opposition ( to Motion to Compel Further Discovery Responses)
Filed by Netpay Insurance Services, Inc. (Plaintiff); Netpay Payroll, Inc. (Plaintiff)

06/27/2019 Notice of Ruling
Filed by Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant); Michael Gray (Defendant)

06/27/2019 Notice of Ruling
Filed by Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant); Michael Gray (Defendant)

06/05/2019 Minute Order ( (Hearing on Defendants Heartland Payroll Solutions, Inc.’s, Za…))
Filed by Clerk

06/05/2019 Order (Granting Ex Parte Application)
Filed by Heartland Payroll Solutions, Inc. (Defendant)

06/04/2019 Ruling: Application for Admission Pro Hac Vice
Filed by Clerk

06/04/2019 Minute Order ( (Hearing on Verified Application of Nathan D. Chapman for Admi…))
Filed by Clerk

06/04/2019 Declaration (of Kristrapor Vartanian in Support of Ex Parte Application)
Filed by Heartland Payroll Solutions, Inc. (Defendant)

06/04/2019 Ex Parte Application (for Court to Continue Non-Jury Trial Date Due to Pending Discovery Motions and Inability to Obtain Essential Documents, Testimony, and Other Material Despite Diligent Efforts)
Filed by Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant); Michael Gray (Defendant)

06/04/2019 Order (Granting Application Pro Hac Vice)
Filed by Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant); Michael Gray (Defendant)

05/29/2019 Supplemental Declaration (of Nathan D. Chapman in Support of Application for Admission Pro Hac Vice)
Filed by Heartland Payroll Solutions, Inc. (Defendant)

05/29/2019 Notice of Ruling
Filed by Heartland Payroll Solutions, Inc. (Defendant)

05/29/2019 Separate Statement
Filed by Heartland Payroll Solutions, Inc. (Defendant)

05/29/2019 Declaration (of Kristapor Vartanian in Support of Motion to Compel Further Discovery Responses)
Filed by Heartland Payroll Solutions, Inc. (Defendant)

05/29/2019 Motion to Compel Further Discovery Responses
Filed by Heartland Payroll Solutions, Inc. (Defendant)

05/28/2019 Ruling: Application for Admission Pro Hac Vice
Filed by Clerk

05/28/2019 Minute Order ( (Hearing on Nathan D. Chapman’s Application for Admission Pro …))
Filed by Clerk

05/23/2019 Separate Statement
Filed by Heartland Payroll Solutions, Inc. (Defendant)

05/23/2019 Declaration (of Kristapor Vartanian in Support of Motion to Compel Further Discovery Responses)
Filed by Heartland Payroll Solutions, Inc. (Defendant)

05/23/2019 Motion to Compel Further Discovery Responses
Filed by Heartland Payroll Solutions, Inc. (Defendant)

04/26/2019 Application to be Admitted Pro Hac Vice
Filed by Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant); Michael Gray (Defendant)

04/18/2019 Notice of Change of Address or Other Contact Information
Filed by Kristapor Vartanian (Attorney)

02/06/2019 Notice of Ruling
Filed by Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant); Michael Gray (Defendant)

02/05/2019 Minute Order ( (Hearing on Defendant Heartland Payroll Solutions, Inc. and De…))
Filed by Clerk

02/05/2019 Order (Granting Ex Parte Application)
Filed by Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant); Michael Gray (Defendant)

02/05/2019 Ex Parte Application (for Court to Briefly Continue Non-Jury Trial Date)
Filed by Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant); Michael Gray (Defendant)

09/12/2018 SUBSTITUTION OF ATTORNEY

09/12/2018 SUBSTITUTION OF ATTORNEY

09/12/2018 SUBSTITUTION OF ATTORNEY

09/12/2018 Substitution of Attorney
Filed by Zak Einstein (Defendant)

09/12/2018 Substitution of Attorney
Filed by Heartland Payroll Solutions, Inc. (Defendant)

09/12/2018 Substitution of Attorney
Filed by Michael Gray (Cross-Complainant)

07/27/2018 ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANT MICHAEL GRAY TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

07/27/2018 ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANT ZAK EINSTEIN TO PLAINTIFFS’ SECOND AMENDE COMPLAINT

07/27/2018 ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANT HEARTLAND PAYROLL SOLUTIONS, INC. TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

07/27/2018 Answer to Second Amended Complaint
Filed by Michael Gray (Cross-Complainant)

07/27/2018 Answer to Second Amended Complaint
Filed by Zak Einstein (Defendant)

07/27/2018 Answer to Second Amended Complaint
Filed by Heartland Payroll Solutions, Inc. (Defendant)

07/18/2018 NOTICE OF ORDER, RE: ZAK EINSTEIN’S DEMURRER TO SECOND AMENDED COMPLAINT; ETC

07/18/2018 Notice
Filed by Zak Einstein (Defendant)

07/13/2018 Minute order entered: 2018-07-13 00:00:00
Filed by Clerk

07/12/2018 Minute Order

07/12/2018 RULING

07/12/2018 Order
Filed by Court

07/12/2018 Minute order entered: 2018-07-12 00:00:00
Filed by Clerk

07/05/2018 REPLY IN SUPPORT OF ZAK EINSTEIN S DEMURRER TO PLAINTIFFS SECOND AMENDED COMPLAINT

07/05/2018 REPLY IN SUPPORT OF MICHAEL GRAY S DEMURRER TO PLAINTIFFS SECOND AMENDED COMPLAINT

07/05/2018 REPLY IN SUPPORT OF HEARTLAND PAYROLL SOLUTIONS, INC. S DEMURRER TO PLAINTIFFS SECOND AMENDED COMPLAINT

07/05/2018 Reply/Response
Filed by Michael Gray (Cross-Complainant); Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant)

07/05/2018 Reply/Response
Filed by Michael Gray (Cross-Complainant); Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant)

07/05/2018 Reply/Response
Filed by Michael Gray (Cross-Complainant); Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 06/28/2018 11/13/2017

06/28/2018 PLAINTIFFS NETPAY PAYROLL, INC. AND NETPAY INSURANCE SERVICES, INC’S OPPOSITION TO DEFENDANT ZAK EINSTEIN’S DEMURRER TO SECOND AMENDED COMPLAINT

06/28/2018 Opposition Document
Filed by Netpay Payroll, Inc. (Plaintiff); Netpay Insurance Services, Inc. (Plaintiff)

06/28/2018 PLAINTIFFS NETPAY PAYROLL, INC AND NETPAY INSURANCE SERVICES, INC.’S OPPOSITION TO DEFENDANT MICHAEL GRAY’S DEMURRER TO SECOND AMENDED COMPLAINT

06/28/2018 PLAINTIFFS NETPAY PAYROLL, INC. AND NETPAY INSURANCE SERVICES, INC.’S OPPOSITION TO DEFENDANT HEARTLAND PAYROLL SOLUTIONS, INC.’S DEMURRER TO SECOND AMENDED COMPLAINT

06/27/2018 Case Management Statement
Filed by Zak Einstein (Defendant)

06/27/2018 CASE MANAGEMENT STATEMENT

05/10/2018 Minute order entered: 2018-05-10 00:00:00
Filed by Clerk

05/09/2018 Minute Order

05/09/2018 Minute order entered: 2018-05-09 00:00:00
Filed by Clerk

05/08/2018 Answer to Cross-Complaint
Filed by Netpay Payroll, Inc. (Plaintiff); Netpay Insurance Services, Inc. (Plaintiff)

05/08/2018 PLAINTIFF AND CROSS-DEFENDANTS NETPAY PAYROLL, INC. AND NETPAY INSURANCE SERVICES, INC.’S ANSWER TO DEFENDANT AND CROSS- COMPLAINANT MICHAEL GRAY’S CROSS-COMPLAINT

04/25/2018 CASE MANAGEMENT STATEMENT

04/25/2018 Case Management Statement
Filed by Zak Einstein (Defendant)

04/12/2018 NOTICE AND STATEMENT OF ZAK EINSTEIN’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

04/12/2018 NOTICE AND STATEMENT OF HEARTLAND PAYROLL SOLUTIONS, INC.’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

04/12/2018 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ZAK EINSTEIN’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

04/12/2018 DECLARATION OF DANIELLE S. KRAUTHAMER IN SUPPORT OF MICHAEL GRAY’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

04/12/2018 DECLARATION OF DANIELLE S. KRAUTHAMER IN SUPPORT OF ZAK EINSTEIN’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

04/12/2018 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MICHAEL GRAY’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

04/12/2018 NOTICE AND STATEMENT OF MICHAEL GRAY’S DEMURRER TO PLAINTIFFS’ SECOND AMLNDED COMPLAINT

04/12/2018 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HEARTLAND PAYROLL SOLUTIONS, INC.’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

04/12/2018 Declaration
Filed by Michael Gray (Cross-Complainant)

04/12/2018 Points and Authorities
Filed by Michael Gray (Cross-Complainant)

04/12/2018 Demurrer
Filed by Michael Gray (Cross-Complainant)

04/12/2018 Declaration
Filed by Zak Einstein (Defendant)

04/12/2018 Points and Authorities
Filed by Zak Einstein (Defendant)

04/12/2018 Demurrer
Filed by Zak Einstein (Defendant)

04/12/2018 Declaration
Filed by Heartland Payroll Solutions, Inc. (Defendant)

04/12/2018 Points and Authorities
Filed by Heartland Payroll Solutions, Inc. (Defendant)

04/12/2018 Demurrer
Filed by Heartland Payroll Solutions, Inc. (Defendant)

04/12/2018 Cross-Complaint
Filed by Michael Gray (Cross-Complainant)

04/12/2018 Cross-Complaint (for: 1. Unfair Competition in Violation of California Business and Preofessions Code Sections 17200 et seq.; and 2. Declaratory Relief (Civil Code 1060, et seq.))
Filed by Michael Gray (Cross-Complainant)

04/12/2018 DECLARATION OF DANIELLE S. KRAUTHAMER IN SUPPORT OF HEARTLAND PAYROLL SOLUTIONS, INC.’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

04/12/2018 CROSS-COMPAINT FOR: 1. UNFAIR COMPETITION IN VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTIONS 17200 ET SEQ.; AND 2. DECLARATORY RELIEF (CIVIL CODE, 1060, ET SEQ.).ETC

04/10/2018 NOTICE OF CONTINUED CASE MANAGEMENT CONFERENCE

04/10/2018 Minute Order

04/10/2018 Notice Re: Continuance of Hearing and Order
Filed by Netpay Payroll, Inc. (Plaintiff); Netpay Insurance Services, Inc. (Plaintiff)

04/10/2018 Minute order entered: 2018-04-10 00:00:00
Filed by Clerk

03/26/2018 PLAINTIFF AND CROSS-DEFENDANTS NETPAY PAYROLL, INC. AND NETPAY INSURANCE SERVICES, INC.’S ANSWER TO DEFENDANT AND CROSS COMPLAINANT ZAK EINSTEIN’S CR0SS-COMPLATNT

03/26/2018 Answer to Cross-Complaint
Filed by Netpay Payroll, Inc. (Plaintiff); Netpay Insurance Services, Inc. (Plaintiff)

02/23/2018 Minute order entered: 2018-02-23 00:00:00
Filed by Clerk

02/23/2018 Minute Order

02/21/2018 Second Amended Complaint
Filed by Netpay Payroll, Inc. (Plaintiff); Netpay Insurance Services, Inc. (Plaintiff)

02/21/2018 Second Amended Complaint for: 1. Breach of Contract (Count One) 2. Breach of Contract (Count Two) 3. Fraud/Deceit (Count One) 4. Fraud/Deceit (Count Two) 5. Intentional Interference with Contractual Relations 6. Intentional Interference with etc.
Filed by null

02/21/2018 SECOND AMENDED COMPLAINT FOR: 1. BREACH OF CONTRACT (COUNT ONE); ETC.

02/09/2018 NOTICE OF ORDER, RE: ZAK EINSTEIN’S DEMURRER TO FIRST AMENDED COMPLAINT

02/09/2018 Notice
Filed by Zak Einstein (Defendant)

02/06/2018 DEMURRER TO FIRST AMENDED COMPLAINT

02/06/2018 Minute Order

02/06/2018 Order
Filed by Court

02/06/2018 Minute order entered: 2018-02-06 00:00:00
Filed by Clerk

01/30/2018 REPLY IN SUPPORT OF ZAK EINSTEIN’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT

01/30/2018 Reply/Response
Filed by Zak Einstein (Defendant)

01/22/2018 PLAINTIFFS NETPAY PAYROLL, INC. AND NETPAY INSURANCE SERVICES, INC.’S OPPOSITION TO DEFENDANT ZAK EINSTEIN’S DEMURRER TO FIRST AMENDED COMPLAINT

01/22/2018 Opposition Document
Filed by Netpay Payroll, Inc. (Plaintiff); Netpay Insurance Services, Inc. (Plaintiff)

01/12/2018 NOTICE OF ERRATA RE: NOTICE OF DEMURRER

01/12/2018 Notice
Filed by Zak Einstein (Defendant)

01/08/2018 CROSS-COMPAINT FOR: 1. UNFAIR COMPETITION IN VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE – SECTIONS 17200 ET SEQ.; ETC

01/08/2018 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ZAK EINSTEIN’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT

01/08/2018 DECLARATION OF ANDREW J. HOAG IN SUPPORT OF ZAK EINSTEIN’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT

01/08/2018 NOTICE AND STATEMENT OF ZAK EINSTEIN’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT

01/08/2018 Demurrer
Filed by Zak Einstein (Defendant)

01/08/2018 Cross-Complaint
Filed by Zak Einstein (Defendant)

01/08/2018 Points and Authorities
Filed by Zak Einstein (Defendant)

01/08/2018 Declaration
Filed by Zak Einstein (Defendant)

01/08/2018 Cross-Complaint (for: 1. Unfair Competition in Violation of California Business and Professions Code Sections 17200 et seq.; 2. Intentional Interference with Prospective Economic Relations; 3. Negligent Intereference with Prospective Economic Relations; and 4. etc.)
Filed by Zak Einstein (Cross-Complainant)

12/29/2017 Minute order entered: 2017-12-29 00:00:00
Filed by Clerk

12/29/2017 Minute Order

12/18/2017 CASE MANAGEMENT STATEMENT

12/18/2017 Case Management Statement
Filed by Zak Einstein (Defendant)

11/20/2017 FIRST AMENDED COMPLAINT FOR: 1. BREACH OF CONTRACT (COUNT ONE); ETC.

11/20/2017 First Amended Complaint for: 1. Breach of Contract (Count One) 2. Breach of Contract (Count Two) 3. Fraud/Deceit (Count One) 4. Fraud/Deceit (Count Two) 5. Intentional Interference with Contractual Relations 6. Intentional Interference with etc.
Filed by null

11/20/2017 First Amended Complaint
Filed by Netpay Payroll, Inc. (Plaintiff)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 06/28/2018 11/13/2017

11/13/2017 NOTICE OF CONTINUED CASE MANAGEMENT CONFERENCE AND ORDER TO SHOW CAUSE RE: DISMISSAL FOR FAILURE TO FILE DEFAULT JUDGMENT

11/13/2017 Notice Re: Continuance of Hearing and Order
Filed by Netpay Payroll, Inc. (Plaintiff); Netpay Insurance Services, Inc. (Plaintiff)

10/30/2017 Minute Order

10/30/2017 Minute order entered: 2017-10-30 00:00:00
Filed by Clerk

09/20/2017 Minute order entered: 2017-09-20 00:00:00
Filed by Clerk

09/18/2017 NOTICE OF HEARING OFF CALENDAR

09/18/2017 Notice of Hearing
Filed by Zak Einstein (Defendant)

08/22/2017 PLAINTIFFS NETPAY PAYROLL, INC. AND NETPAY INSURANCE SERVICES, INC.’S OPPOSITION TO SPECIALLY APPEARING DEFENDANT ZAK EINSTEIN’S MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT; ETC.

08/22/2017 Declaration
Filed by Netpay Payroll, Inc. (Plaintiff); Netpay Insurance Services, Inc. (Plaintiff)

08/22/2017 Opposition Document
Filed by Netpay Payroll, Inc. (Plaintiff); Netpay Insurance Services, Inc. (Plaintiff)

08/22/2017 DECLARATION OF PAUL D. BOJIC IN SUPPORT OF PLAINTIFFS NETPAY PAYROLL, INC. AND NETPAY INSURANCE SERVICES, INC.’S OPPOSITION TO SPECIALLY APPEARING DEFENDANT ZAK EINSTEIN’S MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

08/09/2017 Request for Entry of Default / Judgment
Filed by Plaintiff/Petitioner

08/09/2017 REQUEST FOR ENTRY OF DEFAULT

08/01/2017 SPECIALLY-APPEARING DEFENDANT ZAK EINSTEIN’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

08/01/2017 Declaration
Filed by Zak Einstein (Defendant)

08/01/2017 SPECIALLY-APPEARING DEFENDANT ZAK EINSTEIN’S NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

08/01/2017 Points and Authorities
Filed by Zak Einstein (Defendant)

08/01/2017 Motion to Quash
Filed by Zak Einstein (Defendant)

08/01/2017 ZAK EINSTEIN’S DECLARATION IN SUPPORT OF SPECIALLY-APPEARING DEFENDANT ZAK EINSTEIN’S MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

07/18/2017 Request for Entry of Default / Judgment
Filed by Plaintiff/Petitioner

07/18/2017 REQUEST FOR ENTRY OF DEFAULT

06/09/2017 NOTICE OF CASE MANAGEMENT CONFERENCE

06/09/2017 Notice of Case Management Conference
Filed by Clerk

05/23/2017 Complaint
Filed by null

05/22/2017 COMPLAINT FOR: 1. BREACH OF CONTRACT ;ETC

05/22/2017 SUMMONS

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 06/28/2018 11/13/2017

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:
02/06/2018

10/29/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion to Compel Further Discovery Responses (Interrogatory Responses (Set One) from Plaintiffs, and Request for Monetary Sanctions) – Held

10/21/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion for Summary Judgment – Not Held – Rescheduled by Party

10/07/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion for Summary Judgment – Not Held – Rescheduled by Party

09/30/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion for Summary Judgment – Not Held – Rescheduled by Party

08/26/2019 at 09:30 AM in Department 48, Elizabeth Allen White, Presiding
Non-Jury Trial – Not Held – Continued – Party’s Motion

08/21/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Final Status Conference – Not Held – Continued – Party’s Motion

06/26/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion for Summary Judgment – Not Held – Rescheduled by Party

06/24/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion for Summary Judgment – Not Held – Rescheduled by Party

06/12/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion for Summary Judgment – Not Held – Rescheduled by Party

06/05/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Ex Parte Application (for Court to Continue Non-Jury Trial Date) – Held – Motion Granted

06/04/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion to be Admitted Pro Hac Vice – Held – Motion Granted

05/28/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion to be Admitted Pro Hac Vice – Held – Continued

05/13/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion to be Admitted Pro Hac Vice – Not Held – Rescheduled by Party

02/05/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Ex Parte Application ( for Court to Briefley Continue Non-Jury Trial Date) – Held – Motion Granted

07/13/2018 at 08:30 AM in Department 48
Hearing on Demurrer – without Motion to Strike (Hearing on Demurrer; Advanced to a Previous Date) –

07/12/2018 at 08:30 AM in Department 48
Hearing on Demurrer – without Motion to Strike (Hearing on Demurrer; Demurrer overruled) –

05/10/2018 at 08:31 AM in Department 48
Case Management Conference (Conference-Case Management; Continued by Court) –

05/09/2018 at 00:00 AM in Department 48
Court Order (Court Order; Court makes order) –

04/10/2018 at 08:30 AM in Department 48
Case Management Conference (Conference-Case Management; Matter continued) –

02/23/2018 at 08:30 AM in Department 48
Case Management Conference (Conference-Case Management; Continued by Court) –

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 02/06/2018

02/06/2018 at 08:30 AM in Department 48
Hearing on Demurrer – without Motion to Strike (Hearing on Demurrer; Demurrer sustained with leave) –

12/29/2017 at 08:30 AM in Department 48
Case Management Conference (Conference-Case Management; OSC Discharged) –

10/30/2017 at 08:30 AM in Department 48
Case Management Conference (Conference-Case Management; Matter continued) –

09/20/2017 at 08:30 AM in Department 48
Hearing on Motion to Quash ((Off Calendar)) –

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 02/06/2018

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:
04/18/2019 02/09/2018

11/12/2019 Opposition (to Motion to Compel Further Discovery Responses)
Filed by Netpay Insurance Services, Inc. (Plaintiff); Netpay Payroll, Inc. (Plaintiff)

11/12/2019 Declaration ( in Support of Opposition to Motion to Compel Further Discovery Responses)
Filed by Netpay Insurance Services, Inc. (Plaintiff); Netpay Payroll, Inc. (Plaintiff)

10/29/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion to Compel Further Discovery Responses (Interrogatory Responses (Set One) from Plaintiffs, and Request for Monetary Sanctions) – Held

10/29/2019 Ruling: Motion to Compel Further Responses to Special Interrogatories; Request for Sanctions
Filed by Clerk

10/29/2019 Minute Order ( (Hearing on Motion to Compel Further Discovery Responses Inter…))
Filed by Clerk

10/22/2019 Reply (Memorandum in Support of Motion to Compel Further Interrogatory Responses (Set One) from Plaintiffs and Request for Monetary Sanctions (for $11,485.00) Against Plaintiffs and Their Counsel)
Filed by Heartland Payroll Solutions, Inc. (Defendant)

10/21/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion for Summary Judgment – Not Held – Rescheduled by Party

10/15/2019 Opposition ( to Motion to Compel Further Discovery Responses)
Filed by Netpay Insurance Services, Inc. (Plaintiff); Netpay Payroll, Inc. (Plaintiff)

10/15/2019 Declaration ( in Support of Opposition to Motion to Compel Further Discovery Responses)
Filed by Netpay Insurance Services, Inc. (Plaintiff); Netpay Payroll, Inc. (Plaintiff)

10/07/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion for Summary Judgment – Not Held – Rescheduled by Party

09/30/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion for Summary Judgment – Not Held – Rescheduled by Party

08/26/2019 at 09:30 AM in Department 48, Elizabeth Allen White, Presiding
Non-Jury Trial – Not Held – Continued – Party’s Motion

08/21/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Final Status Conference – Not Held – Continued – Party’s Motion

06/27/2019 Notice of Ruling
Filed by Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant); Michael Gray (Defendant)

06/27/2019 Notice of Ruling
Filed by Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant); Michael Gray (Defendant)

06/26/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion for Summary Judgment – Not Held – Rescheduled by Party

06/24/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion for Summary Judgment – Not Held – Rescheduled by Party

06/12/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion for Summary Judgment – Not Held – Rescheduled by Party

06/05/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Ex Parte Application (for Court to Continue Non-Jury Trial Date) – Held – Motion Granted

06/05/2019 Minute Order ( (Hearing on Defendants Heartland Payroll Solutions, Inc.’s, Za…))
Filed by Clerk

06/05/2019 Order (Granting Ex Parte Application)
Filed by Heartland Payroll Solutions, Inc. (Defendant)

06/04/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion to be Admitted Pro Hac Vice – Held – Motion Granted

06/04/2019 Order (Granting Application Pro Hac Vice)
Filed by Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant); Michael Gray (Defendant)

06/04/2019 Ex Parte Application (for Court to Continue Non-Jury Trial Date Due to Pending Discovery Motions and Inability to Obtain Essential Documents, Testimony, and Other Material Despite Diligent Efforts)
Filed by Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant); Michael Gray (Defendant)

06/04/2019 Declaration (of Kristrapor Vartanian in Support of Ex Parte Application)
Filed by Heartland Payroll Solutions, Inc. (Defendant)

06/04/2019 Minute Order ( (Hearing on Verified Application of Nathan D. Chapman for Admi…))
Filed by Clerk

06/04/2019 Ruling: Application for Admission Pro Hac Vice
Filed by Clerk

05/29/2019 Motion to Compel Further Discovery Responses
Filed by Heartland Payroll Solutions, Inc. (Defendant)

05/29/2019 Notice of Ruling
Filed by Heartland Payroll Solutions, Inc. (Defendant)

05/29/2019 Supplemental Declaration (of Nathan D. Chapman in Support of Application for Admission Pro Hac Vice)
Filed by Heartland Payroll Solutions, Inc. (Defendant)

05/29/2019 Separate Statement
Filed by Heartland Payroll Solutions, Inc. (Defendant)

05/29/2019 Declaration (of Kristapor Vartanian in Support of Motion to Compel Further Discovery Responses)
Filed by Heartland Payroll Solutions, Inc. (Defendant)

05/28/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion to be Admitted Pro Hac Vice – Held – Continued

05/28/2019 Minute Order ( (Hearing on Nathan D. Chapman’s Application for Admission Pro …))
Filed by Clerk

05/28/2019 Ruling: Application for Admission Pro Hac Vice
Filed by Clerk

05/23/2019 Separate Statement
Filed by Heartland Payroll Solutions, Inc. (Defendant)

05/23/2019 Declaration (of Kristapor Vartanian in Support of Motion to Compel Further Discovery Responses)
Filed by Heartland Payroll Solutions, Inc. (Defendant)

05/23/2019 Motion to Compel Further Discovery Responses
Filed by Heartland Payroll Solutions, Inc. (Defendant)

05/13/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Motion to be Admitted Pro Hac Vice – Not Held – Rescheduled by Party

04/26/2019 Application to be Admitted Pro Hac Vice
Filed by Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant); Michael Gray (Defendant)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 04/18/2019 02/09/2018

04/18/2019 Notice of Change of Address or Other Contact Information
Filed by Kristapor Vartanian (Attorney)

02/06/2019 Notice of Ruling
Filed by Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant); Michael Gray (Defendant)

02/05/2019 at 08:30 AM in Department 48, Elizabeth Allen White, Presiding
Hearing on Ex Parte Application ( for Court to Briefley Continue Non-Jury Trial Date) – Held – Motion Granted

02/05/2019 Ex Parte Application (for Court to Briefly Continue Non-Jury Trial Date)
Filed by Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant); Michael Gray (Defendant)

02/05/2019 Minute Order ( (Hearing on Defendant Heartland Payroll Solutions, Inc. and De…))
Filed by Clerk

02/05/2019 Order (Granting Ex Parte Application)
Filed by Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant); Michael Gray (Defendant)

09/12/2018 Substitution of Attorney
Filed by Michael Gray (Cross-Complainant)

09/12/2018 Substitution of Attorney
Filed by Heartland Payroll Solutions, Inc. (Defendant)

09/12/2018 SUBSTITUTION OF ATTORNEY

09/12/2018 SUBSTITUTION OF ATTORNEY

09/12/2018 SUBSTITUTION OF ATTORNEY

09/12/2018 Substitution of Attorney
Filed by Zak Einstein (Defendant)

07/27/2018 ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANT MICHAEL GRAY TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

07/27/2018 ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANT ZAK EINSTEIN TO PLAINTIFFS’ SECOND AMENDE COMPLAINT

07/27/2018 ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANT HEARTLAND PAYROLL SOLUTIONS, INC. TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

07/27/2018 Answer to Second Amended Complaint
Filed by Heartland Payroll Solutions, Inc. (Defendant)

07/27/2018 Answer to Second Amended Complaint
Filed by Zak Einstein (Defendant)

07/27/2018 Answer to Second Amended Complaint
Filed by Michael Gray (Cross-Complainant)

07/18/2018 NOTICE OF ORDER, RE: ZAK EINSTEIN’S DEMURRER TO SECOND AMENDED COMPLAINT; ETC

07/18/2018 Notice
Filed by Zak Einstein (Defendant)

07/13/2018 at 08:30 AM in Department 48
Hearing on Demurrer – without Motion to Strike (Hearing on Demurrer; Advanced to a Previous Date) –

07/13/2018 Minute order entered: 2018-07-13 00:00:00
Filed by Clerk

07/12/2018 at 08:30 AM in Department 48
Hearing on Demurrer – without Motion to Strike (Hearing on Demurrer; Demurrer overruled) –

07/12/2018 Minute Order

07/12/2018 RULING

07/12/2018 Minute order entered: 2018-07-12 00:00:00
Filed by Clerk

07/12/2018 Order
Filed by Court

07/05/2018 Reply/Response
Filed by Michael Gray (Cross-Complainant); Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant)

07/05/2018 Reply/Response
Filed by Michael Gray (Cross-Complainant); Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant)

07/05/2018 REPLY IN SUPPORT OF MICHAEL GRAY S DEMURRER TO PLAINTIFFS SECOND AMENDED COMPLAINT

07/05/2018 REPLY IN SUPPORT OF HEARTLAND PAYROLL SOLUTIONS, INC. S DEMURRER TO PLAINTIFFS SECOND AMENDED COMPLAINT

07/05/2018 REPLY IN SUPPORT OF ZAK EINSTEIN S DEMURRER TO PLAINTIFFS SECOND AMENDED COMPLAINT

07/05/2018 Reply/Response
Filed by Michael Gray (Cross-Complainant); Zak Einstein (Defendant); Heartland Payroll Solutions, Inc. (Defendant)

06/28/2018 PLAINTIFFS NETPAY PAYROLL, INC AND NETPAY INSURANCE SERVICES, INC.’S OPPOSITION TO DEFENDANT MICHAEL GRAY’S DEMURRER TO SECOND AMENDED COMPLAINT

06/28/2018 PLAINTIFFS NETPAY PAYROLL, INC. AND NETPAY INSURANCE SERVICES, INC’S OPPOSITION TO DEFENDANT ZAK EINSTEIN’S DEMURRER TO SECOND AMENDED COMPLAINT

06/28/2018 Opposition Document
Filed by Netpay Payroll, Inc. (Plaintiff); Netpay Insurance Services, Inc. (Plaintiff)

06/28/2018 PLAINTIFFS NETPAY PAYROLL, INC. AND NETPAY INSURANCE SERVICES, INC.’S OPPOSITION TO DEFENDANT HEARTLAND PAYROLL SOLUTIONS, INC.’S DEMURRER TO SECOND AMENDED COMPLAINT

06/27/2018 CASE MANAGEMENT STATEMENT

06/27/2018 Case Management Statement
Filed by Zak Einstein (Defendant)

05/10/2018 at 08:31 AM in Department 48
Case Management Conference (Conference-Case Management; Continued by Court) –

05/10/2018 Minute order entered: 2018-05-10 00:00:00
Filed by Clerk

05/09/2018 at 00:00 AM in Department 48
Court Order (Court Order; Court makes order) –

05/09/2018 Minute order entered: 2018-05-09 00:00:00
Filed by Clerk

05/09/2018 Minute Order

05/08/2018 Answer to Cross-Complaint
Filed by Netpay Payroll, Inc. (Plaintiff); Netpay Insurance Services, Inc. (Plaintiff)

05/08/2018 PLAINTIFF AND CROSS-DEFENDANTS NETPAY PAYROLL, INC. AND NETPAY INSURANCE SERVICES, INC.’S ANSWER TO DEFENDANT AND CROSS- COMPLAINANT MICHAEL GRAY’S CROSS-COMPLAINT

04/25/2018 Case Management Statement
Filed by Zak Einstein (Defendant)

04/25/2018 CASE MANAGEMENT STATEMENT

04/12/2018 Points and Authorities
Filed by Heartland Payroll Solutions, Inc. (Defendant)

04/12/2018 Declaration
Filed by Heartland Payroll Solutions, Inc. (Defendant)

04/12/2018 Demurrer
Filed by Zak Einstein (Defendant)

04/12/2018 Points and Authorities
Filed by Zak Einstein (Defendant)

04/12/2018 Declaration
Filed by Zak Einstein (Defendant)

04/12/2018 Demurrer
Filed by Michael Gray (Cross-Complainant)

04/12/2018 Points and Authorities
Filed by Michael Gray (Cross-Complainant)

04/12/2018 Declaration
Filed by Michael Gray (Cross-Complainant)

04/12/2018 Demurrer
Filed by Heartland Payroll Solutions, Inc. (Defendant)

04/12/2018 NOTICE AND STATEMENT OF ZAK EINSTEIN’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

04/12/2018 Cross-Complaint
Filed by Michael Gray (Cross-Complainant)

04/12/2018 NOTICE AND STATEMENT OF HEARTLAND PAYROLL SOLUTIONS, INC.’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

04/12/2018 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ZAK EINSTEIN’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

04/12/2018 DECLARATION OF DANIELLE S. KRAUTHAMER IN SUPPORT OF MICHAEL GRAY’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

04/12/2018 Cross-Complaint (for: 1. Unfair Competition in Violation of California Business and Preofessions Code Sections 17200 et seq.; and 2. Declaratory Relief (Civil Code 1060, et seq.))
Filed by Michael Gray (Cross-Complainant)

04/12/2018 CROSS-COMPAINT FOR: 1. UNFAIR COMPETITION IN VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTIONS 17200 ET SEQ.; AND 2. DECLARATORY RELIEF (CIVIL CODE, 1060, ET SEQ.).ETC

04/12/2018 DECLARATION OF DANIELLE S. KRAUTHAMER IN SUPPORT OF HEARTLAND PAYROLL SOLUTIONS, INC.’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

04/12/2018 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HEARTLAND PAYROLL SOLUTIONS, INC.’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

04/12/2018 NOTICE AND STATEMENT OF MICHAEL GRAY’S DEMURRER TO PLAINTIFFS’ SECOND AMLNDED COMPLAINT

04/12/2018 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MICHAEL GRAY’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

04/12/2018 DECLARATION OF DANIELLE S. KRAUTHAMER IN SUPPORT OF ZAK EINSTEIN’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

04/10/2018 at 08:30 AM in Department 48
Case Management Conference (Conference-Case Management; Matter continued) –

04/10/2018 NOTICE OF CONTINUED CASE MANAGEMENT CONFERENCE

04/10/2018 Minute order entered: 2018-04-10 00:00:00
Filed by Clerk

04/10/2018 Notice Re: Continuance of Hearing and Order
Filed by Netpay Payroll, Inc. (Plaintiff); Netpay Insurance Services, Inc. (Plaintiff)

04/10/2018 Minute Order

03/26/2018 PLAINTIFF AND CROSS-DEFENDANTS NETPAY PAYROLL, INC. AND NETPAY INSURANCE SERVICES, INC.’S ANSWER TO DEFENDANT AND CROSS COMPLAINANT ZAK EINSTEIN’S CR0SS-COMPLATNT

03/26/2018 Answer to Cross-Complaint
Filed by Netpay Payroll, Inc. (Plaintiff); Netpay Insurance Services, Inc. (Plaintiff)

02/23/2018 at 08:30 AM in Department 48
Case Management Conference (Conference-Case Management; Continued by Court) –

02/23/2018 Minute order entered: 2018-02-23 00:00:00
Filed by Clerk

02/23/2018 Minute Order

02/21/2018 Second Amended Complaint
Filed by Netpay Payroll, Inc. (Plaintiff); Netpay Insurance Services, Inc. (Plaintiff)

02/21/2018 Second Amended Complaint for: 1. Breach of Contract (Count One) 2. Breach of Contract (Count Two) 3. Fraud/Deceit (Count One) 4. Fraud/Deceit (Count Two) 5. Intentional Interference with Contractual Relations 6. Intentional Interference with etc.
Filed by null

02/21/2018 SECOND AMENDED COMPLAINT FOR: 1. BREACH OF CONTRACT (COUNT ONE); ETC.

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 04/18/2019 02/09/2018

02/09/2018 NOTICE OF ORDER, RE: ZAK EINSTEIN’S DEMURRER TO FIRST AMENDED COMPLAINT

02/09/2018 Notice
Filed by Zak Einstein (Defendant)

02/06/2018 at 08:30 AM in Department 48
Hearing on Demurrer – without Motion to Strike (Hearing on Demurrer; Demurrer sustained with leave) –

02/06/2018 DEMURRER TO FIRST AMENDED COMPLAINT

02/06/2018 Minute Order

02/06/2018 Order
Filed by Court

02/06/2018 Minute order entered: 2018-02-06 00:00:00
Filed by Clerk

01/30/2018 REPLY IN SUPPORT OF ZAK EINSTEIN’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT

01/30/2018 Reply/Response
Filed by Zak Einstein (Defendant)

01/22/2018 Opposition Document
Filed by Netpay Payroll, Inc. (Plaintiff); Netpay Insurance Services, Inc. (Plaintiff)

01/22/2018 PLAINTIFFS NETPAY PAYROLL, INC. AND NETPAY INSURANCE SERVICES, INC.’S OPPOSITION TO DEFENDANT ZAK EINSTEIN’S DEMURRER TO FIRST AMENDED COMPLAINT

01/12/2018 Notice
Filed by Zak Einstein (Defendant)

01/12/2018 NOTICE OF ERRATA RE: NOTICE OF DEMURRER

01/08/2018 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ZAK EINSTEIN’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT

01/08/2018 Cross-Complaint (for: 1. Unfair Competition in Violation of California Business and Professions Code Sections 17200 et seq.; 2. Intentional Interference with Prospective Economic Relations; 3. Negligent Intereference with Prospective Economic Relations; and 4. etc.)
Filed by Zak Einstein (Cross-Complainant)

01/08/2018 Declaration
Filed by Zak Einstein (Defendant)

01/08/2018 Points and Authorities
Filed by Zak Einstein (Defendant)

01/08/2018 Cross-Complaint
Filed by Zak Einstein (Defendant)

01/08/2018 Demurrer
Filed by Zak Einstein (Defendant)

01/08/2018 DECLARATION OF ANDREW J. HOAG IN SUPPORT OF ZAK EINSTEIN’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT

01/08/2018 NOTICE AND STATEMENT OF ZAK EINSTEIN’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT

01/08/2018 CROSS-COMPAINT FOR: 1. UNFAIR COMPETITION IN VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE – SECTIONS 17200 ET SEQ.; ETC

12/29/2017 at 08:30 AM in Department 48
Case Management Conference (Conference-Case Management; OSC Discharged) –

12/29/2017 Minute Order

12/29/2017 Minute order entered: 2017-12-29 00:00:00
Filed by Clerk

12/18/2017 Case Management Statement
Filed by Zak Einstein (Defendant)

12/18/2017 CASE MANAGEMENT STATEMENT

11/20/2017 First Amended Complaint for: 1. Breach of Contract (Count One) 2. Breach of Contract (Count Two) 3. Fraud/Deceit (Count One) 4. Fraud/Deceit (Count Two) 5. Intentional Interference with Contractual Relations 6. Intentional Interference with etc.
Filed by null

11/20/2017 First Amended Complaint
Filed by Netpay Payroll, Inc. (Plaintiff)

11/20/2017 FIRST AMENDED COMPLAINT FOR: 1. BREACH OF CONTRACT (COUNT ONE); ETC.

11/13/2017 NOTICE OF CONTINUED CASE MANAGEMENT CONFERENCE AND ORDER TO SHOW CAUSE RE: DISMISSAL FOR FAILURE TO FILE DEFAULT JUDGMENT

11/13/2017 Notice Re: Continuance of Hearing and Order
Filed by Netpay Payroll, Inc. (Plaintiff); Netpay Insurance Services, Inc. (Plaintiff)

10/30/2017 at 08:30 AM in Department 48
Case Management Conference (Conference-Case Management; Matter continued) –

10/30/2017 Minute Order

10/30/2017 Minute order entered: 2017-10-30 00:00:00
Filed by Clerk

09/20/2017 at 08:30 AM in Department 48
Hearing on Motion to Quash ((Off Calendar)) –

09/20/2017 Minute order entered: 2017-09-20 00:00:00
Filed by Clerk

09/18/2017 Notice of Hearing
Filed by Zak Einstein (Defendant)

09/18/2017 NOTICE OF HEARING OFF CALENDAR

08/22/2017 DECLARATION OF PAUL D. BOJIC IN SUPPORT OF PLAINTIFFS NETPAY PAYROLL, INC. AND NETPAY INSURANCE SERVICES, INC.’S OPPOSITION TO SPECIALLY APPEARING DEFENDANT ZAK EINSTEIN’S MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

08/22/2017 PLAINTIFFS NETPAY PAYROLL, INC. AND NETPAY INSURANCE SERVICES, INC.’S OPPOSITION TO SPECIALLY APPEARING DEFENDANT ZAK EINSTEIN’S MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT; ETC.

08/22/2017 Declaration
Filed by Netpay Payroll, Inc. (Plaintiff); Netpay Insurance Services, Inc. (Plaintiff)

08/22/2017 Opposition Document
Filed by Netpay Payroll, Inc. (Plaintiff); Netpay Insurance Services, Inc. (Plaintiff)

08/09/2017 Request for Entry of Default / Judgment
Filed by Plaintiff/Petitioner

08/09/2017 REQUEST FOR ENTRY OF DEFAULT

08/01/2017 Declaration
Filed by Zak Einstein (Defendant)

08/01/2017 Points and Authorities
Filed by Zak Einstein (Defendant)

08/01/2017 Motion to Quash
Filed by Zak Einstein (Defendant)

08/01/2017 SPECIALLY-APPEARING DEFENDANT ZAK EINSTEIN’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

08/01/2017 SPECIALLY-APPEARING DEFENDANT ZAK EINSTEIN’S NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

08/01/2017 ZAK EINSTEIN’S DECLARATION IN SUPPORT OF SPECIALLY-APPEARING DEFENDANT ZAK EINSTEIN’S MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT

07/18/2017 REQUEST FOR ENTRY OF DEFAULT

07/18/2017 Request for Entry of Default / Judgment
Filed by Plaintiff/Petitioner

06/09/2017 NOTICE OF CASE MANAGEMENT CONFERENCE

06/09/2017 Notice of Case Management Conference
Filed by Clerk

05/23/2017 Complaint
Filed by null

05/22/2017 SUMMONS

05/22/2017 COMPLAINT FOR: 1. BREACH OF CONTRACT ;ETC

Filed 11/18/19 Groth v. Gilad CA1/5

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 FIVE

WILLIAM GROTH et al.,

Plaintiffs and Respondents,

v.

AMI GILAD et al.,

Defendants and Appellants.

A151497/A150493

(Contra Costa County

Super. Ct. No. MSC10-02872)

William Groth loaned money to fund a cigar club business that subsequently failed. When the loan was not repaid in full, Groth and Groth Holdings & Consulting, Inc. (collectively, plaintiffs) sued Ami Gilad, Roy Gilad, and K.A.D. Alliance, Inc. (collectively, defendants), alleging breach of a written promissory note. The trial court granted Groth’s motion for summary adjudication, concluding there was no triable issue regarding the Gilads’ obligation to repay the loan. In these consolidated appeals, the defendants challenge that order, the trial court’s damages calculation after a bench trial on another cause of action, and a post-judgment attorney fees order. We conclude triable issues of material fact preclude summary adjudication and reverse the judgment.

BACKGROUND

A.

In June 2008, Groth, Roy, Ami, and Frank Carozza signed a “Partnership Engagement Letter,” which states that an unnamed partnership, to which they would “contribute capital equally,” “shall generally engage in the business of a [cigar club].” A month later, Ami opened a bank account under the name “Ami Gilad DBA Ami Gilad Business Account,” which was used exclusively for business related to the cigar club. Groth, Carozza, and each of the Gilads deposited funds in the Ami Gilad Business Account that were used to pay cigar club business expenses in July and August 2008.

Towards the end of that period, Groth agreed to provide approximately $625,000 to finance the acquisition of real property for the club. On September 5, 2008, a limited liability company, entitled 65 Oak Court LLC, was formed to own the property. Five days later, Ami instructed Groth: “Funds to close escrow need to be in our partnership account (will be converted to the LLC account upon receiving final documents)” before closing.

On September 17, 2008, Groth deposited $735,000, which included the now disputed $610,001, in the Ami Gilad Business Account. A few hours later, Ami transferred the funds into the 65 Oak Court LLC account. At the last minute, a bank agreed to make an acquisition loan to 65 Oak Court LLC and Groth’s funds were not needed to close escrow. Roy and Ami assert the entire amount of Groth’s transfer was originally considered to be a capital contribution to 65 Oak Court LLC, not a loan, but that Groth later changed his mind. Legacy Cigar Club, Inc. was incorporated on October 15, 2008.

In January 2009, Groth told the Gilads he wanted a written note evidencing the $610,001 loan and that he wanted “Legacy” to be the borrower. That same month, Ami prepared a promissory note, using a form he found on the internet, which provides “the undersigned hereby jointly and severally promise to pay” Groth $610,001 plus five percent interest per year. (Italics added.) The original note was signed by Ami as “Legacy Cigar Club (A California Corporation)” and was backdated to October 9, 2008. Groth requested revisions and to be paid the principal amount of $10,001 from 65 Oak Court LLC. A revised promissory note provides “the undersigned hereby jointly and severally promise to pay” Groth $600,000 plus five percent interest per year. Roy signed the revised note as “Secretary, Legacy Cigar Club.” As specifically requested by Groth, Ami also signed the revised note as “CFO for Legacy Cigar Club (A California Corporation).” According to Roy and Ami, Groth requested these revisions to the signature block to show the note was a corporation obligation because, as Groth explained, “Legacy was going to have income in the form of memberships.”

With the exception of the $10,001 payment Groth received from 65 Oak Court LLC and credited towards principal, Groth has not been repaid. Both Roy and Ami have denied personal liability on the note, claiming that only 65 Oak Court LLC and/or the corporation are obligated.

B.

Plaintiffs sued the defendants, alleging numerous causes of action, including breach of contract, negligence, and breach of fiduciary duty. In particular, Groth alleges he loaned over $600,000 to the partnership, in September 2008, with the understanding that Roy and Ami would be personally obligated on the loan. Groth also alleges he and the Gilads signed a written promissory note documenting the loan agreement that provided Ami, Roy, and “Legacy Cigar Club” would repay the principal and interest at five percent per year. Groth then alleges he performed under “the loan agreement,” that “the note” became due in 2010, and that the defendants “breached said loan agreement . . . by refusing to pay back the loan principal and interest.”

Groth filed a motion for summary adjudication with respect to his breach of contract cause of action. He asserted he was entitled to judgment as a matter of law because it was undisputed he and the Gilads had formed a partnership that pre-existed the formation of the corporation and LLC and he had made the loan to the partnership. As a result, the Gilads are liable for the partnership’s debts.

The Gilads opposed the motion and attempted to create a triable issue in several different ways: (1) by disputing that the Ami Gilad Business Account was a partnership account; (2) by asserting they never intended to create a “general partnership”; and (3) by submitting evidence suggesting only the corporation or 65 Oak Court LLC was obligated on the note.

The trial court granted Groth’s motion for summary adjudication. The trial court explained, “The Gilads have not created a triable issue on the formation of a partnership. [¶] . . . [¶] On September 17, 2008, [Groth] deposited $735,000 in the Ami Gilad Business Account, which included the $610,001 loan. . . . That same day, Ami transferred the funds from the Ami Gilad Business Account to the 65 Oak Court LLC account. . . . These facts show that on September 17, 2008, [Groth] loaned $610,001 to the partnership. [¶] . . . [¶] . . . The language of the promissory note does not clearly show that a novation was intended. . . . In addition, the note states that the undersigned are jointly and severally liable for the note, and each individual signed the note. Thus, it appears from the language of the note that it expanded liability on the loan to include the Legacy Cigar Club, Inc., but did not release the individuals from liability.” (Italics added.)

The court denied a subsequent motion for reconsideration, and, after a court trial on Groth’s remaining causes of action and a cross-complaint, entered judgment against the Gilads for $400,000 plus interest in contract damages. The court also awarded Groth his costs and, under a clause in the note, contractual attorney’s fees.

DISCUSSION

A.

Defendants contend the trial court erred in granting Groth’s motion for summary adjudication because they established a triable issue of fact. They also contend the erroneous summary adjudication ruling prejudiced the subsequent bench trial. We agree.

1.

“[A] motion for summary judgment [or summary adjudication] 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 plaintiff who moves for summary adjudication “must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not–otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851; accord, § 437c, subd. (p)(1).) If the plaintiff meets that burden, the burden shifts to the defendant to show a triable issue of material fact. (§ 437c, subd. (p)(1).)

In reviewing an order granting summary adjudication, “we independently examine the record in order to determine whether triable issues of fact exist to reinstate the [cause of] action.” (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) We accept as true all facts and reasonable inferences shown by the losing parties’ evidence and resolve evidentiary ambiguities in their favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)

In order to recover for breach of contract, a plaintiff must prove: (1) a contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) damages. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.) Here, the element in dispute is the existence of a contract rendering the Gilads personally liable for a debt to Groth. This depends on whether the partnership was obligated on the promissory note. (See Corp. Code, § 16306, subd. (a) [“all partners are liable jointly and severally for all obligations of the partnership unless otherwise agreed”]; Northwest Energetic Services, LLC v. California Franchise Tax Bd. (2008) 159 Cal.App.4th 841, 852 [members and owners of corporations and limited liability companies “have limited liability for the entity’s debts and obligations”].)

“The fundamental rules of contract interpretation are based on the premise that the interpretation of a contract must give effect to the ‘mutual intention’ of the parties.” (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18.) “ ‘The mutual intention to which the courts give effect is determined by objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties.” (Wolf v. Superior Court (2004) 114 Cal.App.4th 1343, 1356.)

2.

In our view, the trial court erred. The question is whether the parties agreed the partnership—as opposed to solely the corporation or the LLC—would be obligated on the note. The evidence on this point supports competing inferences. When interpreting a contract, a question of fact is presented if objective manifestations of intent do not resolve a contractual ambiguity and the extrinsic evidence conflicts. (Wolf v. Superior Court, supra, 114 Cal.App.4th at pp. 1357, 1359.)

Here, the note itself is ambiguous. (See Palmer v. Truck Ins. Exchange (1999) 21 Cal.4th 1109, 1115 [contract is ambiguous “only if it is susceptible to two or more reasonable constructions,” a determination that is a question of law].) The original note was signed by Ami on behalf of “Legacy Cigar Club (A California Corporation).” In the revised version of the note, Ami signed as Chief Financial Officer of “Legacy Cigar Club (A California Corporation)”, and Groth and Roy signed as President and Secretary, respectively, of “Legacy Cigar Club.” These signatures reasonably suggest only the corporation is obligated. Yet, in conflict with that understanding, both versions also provide for joint and several liability on the “undersigned.” This inconsistent legal terminology appears attributable, at least in part, to the fact that an attorney did not draft the document—Ami used a form that he found on the Internet, which the parties modified. Precisely what they intended is unclear.

To resolve the ambiguity, the fact finder will need to consider the conflicting extrinsic evidence presented by the parties. For instance, the fact finder may consider that the corporation had not yet been formed in September 2008, that Roy notified Groth the partnership needed $735,000, and that Groth responded by transferring funds into the partnership account. On the other hand, the fact finder should also consider the Gilads’ evidence showing that the LLC existed at the time of the transfer, that the money was almost immediately transferred to the LLC account, and that both the LLC and Legacy Cigar Club, Inc. existed at the time the note was signed a few months later. The Gilads submitted evidence that the parties intended the partnership to be temporary and that it was Groth who requested changes in the signature blocks on the note, saying he wanted “Legacy” to be the borrower.

In short, we agree with the Gilads that there are competing reasonable inferences regarding their personal liability on the note. A triable issue of material fact precludes summary adjudication. Our conclusion moots the defendants’ appeal (A151497) from the post-judgment fees order and the parties’ remaining arguments.

DISPOSITION

The judgment and the post-judgment fees order are reversed. Plaintiffs shall bear the defendants’ costs on appeal.

_________________________

BURNS, J.

WE CONCUR:

_________________________

JONES, P. J.

_________________________

SIMONS, J.

A150493/A151497

Filed 11/18/19 Bryer v. J.P. Morgan Chase, N.A. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

LINDA BRYER,

Plaintiff and Appellant,

v.

J.P. MORGAN CHASE, N.A., et al.,

Defendants and Respondents.

H045407

(Santa Cruz County

Super. Ct. No. 17CV00458)

In this appeal, plaintiff Linda Bryer seeks review of an order sustaining the demurrers of defendants J.P. Morgan Chase, N.A. (Chase), U.S. Bank, N.A. (U.S. Bank), and Select Portfolio Servicing, Inc. (SPS) in plaintiff’s action to prevent foreclosure of her property. Plaintiff raises numerous issues related to the validity of the deed of trust, the assignment of the deed of trust, and the notice of default; she also suggests that amendment would enable her to allege voidness of the substitution of trustee, breach of contract, and negligence. Plaintiff further contests the superior court’s denial of her motion under Code of Civil Procedure section 473, subdivision (b), for relief from the court’s order adopting its tentative ruling, after her attorney failed to appear to contest the ruling. We will affirm the judgments.

Background

The property at issue was plaintiff’s primary residence in Capitola. The 2006 deed of trust on the property listed First Magnus Financial Corporation (FMFC) as the lender on the $596,000 note, First American Title as the trustee, and Mortgage Electronic Registration Systems, Inc. (MERS) as the beneficiary, “acting solely as a nominee for Lender and Lender’s successors and assigns.” In documents recorded June 2, 2011, MERS assigned the deed of trust to U.S. Bank as trustee, and on the same day U.S. Bank then substituted California Reconveyance Company (CRC) as trustee.

Also recorded on June 2, 2011 was CRC’s notice of default, stating that plaintiff owed $27,752.64. To determine the amount, plaintiff was directed to contact Chase. On September 6, 2011 CRC recorded a Notice of Trustee’s Sale, listing $623,910.20 as the estimated unpaid balance of plaintiff’s loan. Additional notices of trustee’s sale followed in November 2012 and September 2013.

Chase, which had acquired Washington Mutual Bank’s assets after that bank failed in 2008, had the servicing rights to plaintiff’s loan, but according to plaintiff, Chase transferred those rights to Select Portfolio Servicing (SPS) “prior to March 2014.” In March 2014 SPS substituted ALAW as trustee of the deed of trust, and on April 2, 2014 ALAW recorded another Notice of Trustee’s Sale, listing $713,517.94 as the estimated amount due. According to Chase (without citation to facts in the record), Quality Loan Service Corp. (Quality) eventually became the current trustee. Quality recorded its Notice of Trustee’s sale on January 27, 2017.

Plaintiff initiated her action on January 8, 2015, naming Chase, SPS, U.S. Bank, and ALAW, and stating claims for cancellation of instruments, violation of Business and Professions Code section 17200, declaratory relief, negligence, attempted wrongful foreclosure and wrongful foreclosure, breach of contract, and quiet title. U.S. Bank and SPS removed the case to the federal district court, which thereafter granted motions by SPS, U.S. Bank, Chase, and ALAW to dismiss the complaint with leave to amend. On May 13, 2015 plaintiff voluntarily dismissed Chase and filed a first amended complaint naming the remaining defendants. The district court dismissed that pleading and the next, plaintiff’s February 2016 second amended complaint against SPS, ALAW, and U.S. Bank. In July 2016, after SPS and U.S. Bank moved to dismiss plaintiff’s third amended complaint, she voluntarily dismissed the action.

Plaintiff returned to state court in February 2017 with a new complaint against multiple defendants, including Chase. In her first amended complaint, the operative pleading, she first sought a declaratory judgment to avoid defendant’s threatened foreclosure. In the second cause of action plaintiff alleged violations of the Homeowner Bill of Rights (HBOR)—specifically, Civil Code sections 2923.5 and 2923.55—by Chase and SPS. The third cause of action, directed at Chase, SPS, and U.S. Bank, alleged “emotional duress” caused by SPS, which had demanded that in order to avoid foreclosure plaintiff had to accept an adhesive contract in the form of a loan modification “with unduly burdensome terms.” Finally, plaintiff alleged that Chase, SPS, and U.S. Bank had engaged in “unfair and deceptive business practices” in violation of Business and Professions Code section 17200, by using the name of MERS to create “self to self assignments [sic]” and by continuing to “dual track borrowers who have completed modifications by resetting the trustee sale instead of suspending the trustee sale until the borrower has been fully reviewed.”

In August 2017, Chase filed its demurrer to plaintiff’s first amended complaint. U.S. Bank and SPS followed soon thereafter with their demurrer. Chase argued that (1) plaintiff had waived her claims against it by failing to name Chase in her amended complaint in the federal action; (2) it had “no alleged relationship” to plaintiff’s loan or the foreclosure proceedings; (3) declaratory relief and emotional duress were not recognized causes of action; and (4) no facts supported the allegation that Chase had violated the HOBR or engaged in unfair business practices. U.S. Bank and SPS asserted the bar of the statute of limitations as applied to the note and deed of trust; they further claimed that the disposition of the federal action precluded the challenges to the assignment of the deed of trust and substitution of trustee, based on the doctrines of res judicata and collateral estoppel. Finally, U.S. Bank and SPS contended that all of plaintiff’s claims contesting the validity of the documents at issue were “substantively untenable.”

Plaintiff filed opposition. However, after the superior court issued a tentative ruling sustaining the demurrers without leave to amend, the court held a hearing at which no party appeared, and the court sustained the demurrers. Following plaintiff’s unsuccessful motion for relief from the tentative ruling, the court entered judgments dismissing the action with prejudice. This timely appeal followed.

Discussion

1. Standard of Review

On appeal from a judgment after an order sustaining a demurrer without leave to amend, we review the ruling de novo, independently examining the complaint to determine whether it alleges facts sufficient to state a cause of action. (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1335; McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412, 415.) “We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citations.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]” City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865 (Dinuba); Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 (Yvanova).) “And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The burden is on the plaintiff to show a reasonable possibility of curing a defect. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

2. Dismissal of Chase

In its demurrer Chase contended, as it continues to argue on appeal, that by failing to name Chase in her amended federal complaint plaintiff waived any further claims against it. Chase also argued that the claims against it were time-barred, as it had transferred its servicing obligations to SPS in March 2014 and had no further involvement with plaintiff’s loan thereafter.

We agree that none of the claims asserted in the first amended complaint properly implicate conduct by Chase. In her first cause of action plaintiff alleged that “the loan is illegal, the contracts are void, and even if the loan legal [sic] and contracts valid [sic], Defendants are strangers without rights to collect on the loan or enforce collection through the deed of trust; the modification is unconscionable and Defendants are estopped from taking the steps they have taken as they have not fulfilled the condition precedent of the deed of trust.” Asserting that the “loan is void,” plaintiff sought a determination of the “validity” of the loan, the note, and the deed of trust, and thus “the legal rights, if any, of the defendants to seek to enforce the deed of trust, and the legal obligation of defendants to offer a modification in good faith that is not a contract of adhesion or unconscionable.” To the extent that these allegations pertain to conduct that has already occurred—the initiation of the loan and execution of the deed of trust—declaratory relief is unavailable to plaintiff. “There is unanimity of authority to the effect that the declaratory procedure operates prospectively, and not merely for the redress of past wrongs. It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs; in short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them.” (Travers v. Louden (1967) 254 Cal.App.2d 926, 931; accord, Babb v. Superior Court (1971) 3 Cal.3d 841, 848.) As in Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, plaintiff’s declaratory relief cause of action “lacks any factual allegations indicating that an actual, present controversy exists” between her and Chase. (Id. at p. 1014, italics added.)

Chase was accused in the second cause of action of violating Civil Code section 2923.5, by making no attempt “to contact Plaintiff prior to recording of [sic] the Notice of Default.” This allegation, as the superior court recognized, was untimely as beyond the limitations period of section 338. Even if considered timely, the claim is accompanied by no allegation of prejudice. The second cause of action contained no other allegations regarding violations of the HBOR by Chase.

The third cause of action claimed “emotional duress” against Chase, SPS, and U.S. Bank, who allegedly “caused to be recorded instruments in the public land records in order to make demands upon Plaintiff for payments SPS and US Bank are not entitled to collect.” Chase is not mentioned beyond this vague allegation. Instead, plaintiff focused on SPS’s attempt “to intimidate Plaintiff into accepting the terms of a contract of adhesion” through a modification that would inhere to SPS’s “own personal financial benefit.” On appeal, plaintiff does not direct any of her contentions at the allegation of “emotional duress”; Chase’s extensive attention to that subject will therefore be disregarded.

The fourth cause of action for violating Business and Professions Code section 17200 is not based on any specific conduct by Chase beyond the “unfair and deceptive business practice of Defendants” (1) to “use the name of ‘MERS’ to create self to self-assignments [sic], assigning interest to themselves”; (2) to “identify MERS on a deed of trust, in violation of 10 [California Code of Regulations] § 1460(b) and to use deceptive and unfair descriptions of MERS [sic] role in the deed of trust”; and (3) to “identify” MERS because MERS was not legally operating in this state. Although on appeal plaintiff attributes this self-to-self assignment as one in which Chase participated by acting for U.S. Bank, it is the latter entity that is alleged to be at fault. And in discussing the statute of limitations, plaintiff claims that the improper assignment consisted in MERS’s acting for U.S. Bank. Plaintiff otherwise does not mention Chase in connection with the fourth cause of action except to list, under the heading “Deceptive and Unfair Acts,” “Chase alleging it is MERS, when really it was an agent of US Bank when executing the assignment.” Plaintiff has not stated her position in a comprehensible way that permits a reasoned analysis by this court. We therefore regard the contention as waived or abandoned. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [appellant’s “conclusory presentation, without pertinent argument or an attempt to apply the law to the circumstances of this case, is inadequate” and therefore treated as abandoned]; see also Vargas v. City of Salinas (2011) 200 Cal.App.4th 1331, 1350 [given absence of comprehensible reasoning, appellate argument treated as waived].) To the extent that plaintiff would reaffirm the allegations of the fourth cause of action pertaining to the identification of MERS on the 2006 deed of trust, that act cannot be attributed to Chase, which was not a participating entity when the deed of trust was executed in 2006.

None of the four causes of action was stated as the basis for plaintiff’s background allegation that the recording of the notice of default was by “CRC at the direction of Chase,” “on behalf of” and “as an agent of” U.S. Bank, which she alleged was “not the true beneficial holder of the debt.” But Chase, as the servicing agent, was not represented to be the beneficiary in the notice of default. On appeal, plaintiff continues to argue that the notice of default was “statutorily deficient” by inaccurately showing the beneficiary as Chase, which “was never the beneficiary.” Plaintiff’s assertion, however, is not supported by the document itself; moreover, the cited provision, Civil Code section 2924, subdivision (a)(1)(D)(6), was not in effect when the notice of default was recorded. No ground is stated, therefore, for maintaining Chase as a defendant in this action.

3. Denial of Declaratory Judgment against U.S. Bank and SPS

It is apparent that the substance of plaintiff’s position on appeal is based primarily on her allegations against U.S. Bank and SPS. In her first “cause of action,” she sought a declaration of the invalidity of the note and deed of trust, which rendered the loan void. She further asserted the invalidity of the June 2011 assignment of the deed of trust, the invalidity of the substitution of Quality as trustee, and the inadequacy of SPS’s offer to modify the loan terms. As to the assignment, she asserted that it “fails to subscribe the principal as required by California law.” It allegedly purported to be from MERS to U.S. Bank but in fact was a “self to self-assignment” [sic] by U.S. Bank.

To the extent that these allegations pertain to past wrongful conduct, they are beyond the scope of declaratory relief, as noted above; and those assertions pertaining to the loan origination documents exceeded the applicable limitations periods defined by statute. It is therefore unnecessary to address plaintiff’s new contention on appeal relating to her characterization of the loan transaction as procured by illegal table funding.

Plaintiff maintains, however, that the statute of limitations did not apply to the deed of trust or its assignment, because the harm was ongoing and those instruments were void. We disagree. Plaintiff has alleged no facts connecting the loan origination to the alleged harm thereafter created by either the identification of MERS in the subsequent assignment or the failure of SPS to offer her a workable modification on reasonable terms. As for the assignment itself, plaintiff did not raise the argument she now offers on appeal, that MERS was falsely identified as the assigning party. In her opposition to respondents’ demurrer she protested the identification of MERS by FMFC: MERS, she argued, “never should have been on this deed of trust in the first place.” That argument was consistent with the allegations of the first “cause of action” in her pleading, which were directed at the voidness of the note and deed of trust, except for the allegation of a void “self to self-assignment [sic].”

In any event, plaintiff has not cited pertinent authority for the assumption that MERS lacked authority to represent itself as the party assigning the interest in the property to U.S. Bank. MERS was identified in the deed of trust as the beneficiary, “solely as nominee for Lender and Lender’s successors and assigns,” and the document stated that “Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including . . . the right to foreclose and sell the Property; and to take any action required of Lender including . . . releasing and canceling this Security Instrument.” Plaintiff’s agreement to these terms cannot support any inference of misinformation regarding the role of MERS in either the loan initiation or the subsequent assignment. (Cf. Cervantes v. Countrywide Home Loans, Inc. (9th Cir. 2011) 656 F.3d 1034, 1042 [By signing the deed of trust, plaintiffs were on notice of the contents and were not “misinformed about MERS’s role” in their home loans].) Nor can plaintiff establish voidness of the assignment based on the failure of Colleen Irby to disclose that she was an employee of CRC, as alleged in the complaint—or, as plaintiff later asserted, an employee of Chase. “MERS relies on its members to have someone on their own staff become a MERS officer with the authority to sign documents on behalf of MERS.” (Id. at p. 1040.)

In addition, plaintiff did not allege how the improper assignment caused prejudice to her; she did not plead that she was not in default or that defendants prevented her from paying the Note or curing her default. “Prejudice is not presumed from “mere irregularities” in the process . . . Because a promissory note is a negotiable instrument, a borrower must anticipate [that] it can and might be transferred to another creditor. As to plaintiff, an assignment merely substituted one creditor for another, without changing her obligations under the note. Plaintiff effectively concedes [that] she was in default, and she [has] not allege[d or argued on appeal] that the transfer to [U.S. Bank] interfered in any manner with her payment of the note.” (Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4th 1495, 1507-1508 [finding it “difficult to conceive how plaintiff was prejudiced by MERS’s purported assignment”], disapproved on another ground by Yvanova, supra, 62 Cal.4th at p. 939, fn. 13.; see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 272, disapproved on another ground in Yvanova, supra, at p. 939, fn. 13].) Any damages plaintiff suffered were due to her default, not the imperfection in the assignment. Without prejudice, her claim based on defects in the assignment must fail.

4. HBOR Allegations against U.S. Bank and SPS

In her second cause of action plaintiff renewed her claims that the June 2011 assignment was void, that she was not contacted before the notice of default was recorded, and that SPS recorded a substitution of trustee unsupported by “competent or reliable evidence of the right to collect.” She insists that her attack on the notice of default should not have subjected her complaint to dismissal, because “there is no statute of limitations for challenging that which is void.” In her view, the harm in this “arguably” void notice of default is ongoing in that SPS continues to threaten foreclosure.

The foundation of the voidness argument, however, is that the wrong beneficiary was identified, and the supporting declaration “held false statements.” Plaintiff alleged that SPS, “in material violation of the [HBOR], has failed to notify Plaintiff of her right to seek a copy of the Note, evidence of the debt and alleged arrears, and evidence of Defendants [sic] right to enforce the Note and Deed of Trust,” in violation of Civil Code section 2923.55. The cited statute, however, was not in effect at the time the notice of default was executed and recorded; consequently, the lower court properly rejected this challenge. Moreover, plaintiff did not show how the allegedly defective notice of default prevented her from bringing her debt payments current. (See Debrunner v. Deutsche Bank National Trust Co. (2012) 204 Cal.App.4th 433, 443-444 [technical defects in notice of default not shown to be prejudicial].)

Plaintiff further alleged, and contends on appeal, that during “modification discussions” between SPS and her, SPS engaged in “dual tracking,” in violation of Civil Code section 2923.6: It encouraged her to renegotiate her loan, but then, in January 2017, it wrongfully instructed Quality to record the Notice of Trustee’s Sale and demanded that she “accept the onerous and unduly burdensome terms” of the proposed modification or else lose her home.

On January 27, 2017,when the Notice of Trustee’s Sale was recorded , Civil Code section 2923.6, subdivision (c), provided, in pertinent part: “If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower’s mortgage servicer, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale, or conduct a trustee’s sale, while the complete first lien loan modification application is pending.” (Stats. 2012, ch. 87, § 7, p. 2303].) In her first amended complaint, plaintiff alleged that her loan modification application was denied on November 19, 2016. Plaintiff wrote to SPS to appeal the decision on December 7, 2016, but the appeal was denied two days later. On December 5, 2016, SPS offered her a Trial Period Plan (TPP), subject to her making the first payment (of approximately $3,499.62 per month) by January 31, 2017.

The TPP offer, however, was not a loan modification application. The application and its appeal having been denied more than a month before the January 27, 2017 Notice of Trustee’s Sale, SPS was not subject to the restrictions of former Civil Code section 2923.6, subdivision (c).

Likewise unavailing is plaintiff’s reliance on Civil Code section 2924.17 to support her challenge to the assignment and notice of default “as being fatally deficient and void.” That provision, like Civil Code section 2923.55, was not in effect in 2011, when those documents were executed. As there is no indication that the legislation was intended to be applied retroactively, defendants cannot be held liable for violating it. (Cf. Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 818 [no standing to challenge alleged defects in pre-HBOR assignment of deed of trust based on Civil Code sections 2924.17 and 2924.12, as no provision indicates legislative intention to make those statutes retroactive].)

5. Allegations of Deceptive, Unfair, and Unlawful Acts

Plaintiff’s arguments that defendants violated Business and Professions Code section 17200 et seq. are directed at the initiation of the 2006 loan, the identity of the party making the 2011 assignment, and the recording of the 2017 Notice of Trustee’s Sale “while a completed application and offer for a TPP is pending.” All of these contentions have already been discussed and found to be without merit.

6. Leave to Amend the Complaint

Plaintiff does not attempt to resurrect the allegations of her third cause of action for emotional duress, in which she asserted that SPS was “seeking to intimidate” her into accepting the terms of their modification offer, for which she was entitled to damages for the “emotional duress caused by SPS and its acts.” Instead, she recasts those allegations as causes of action for negligence and breach of contract. Recognizing that these theories were not raised below, she further suggests that we remand this case to permit her to amend her pleading to add claims for breach of contract and negligence.

In her opposition to the demurrers, plaintiff asked the court to give her the opportunity to amend her complaint if it found “any claim deficient,” but without suggesting how any amendment would cure such defect. Although her pleading does not contain causes of action for negligence or breach of contract— and she insists that she did not allege breach of contract in her first cause of action—plaintiff nonetheless suggests that her “undue influence and economic factual allegations show breach of contract and negligence claims.” (Capitalization omitted.)

Plaintiff did not allege anything relating her third cause of action—which, again, was for “emotional duress”—to either breach of contract or negligence. If viewed as a suggestion that plaintiff should be allowed to amend her complaint to add these claims, then we agree with U.S. Bank that such a disposition would be unwarranted. Plaintiff offers the vague assertion that defendants’ “breached the contract [presumably the deed of trust] by failing to provide her with . . . notice [of her right to bring a legal challenge to the foreclosure] and violating both federal and state laws.” But such an allegation would again be rejected as untimely, as any violation would be said to have occurred at the latest on the day the recorded notice of default was issued. Furthermore, the only paragraphs specifically identified as having been breached were paragraph Nos. 16 and 22 of the deed of trust. But as U.S. Bank and SPS point out, plaintiff failed to allege facts constituted damages proximately caused by defendants’ conduct following execution of the deed of trust. Clearly, plaintiff was aware of—and, in fact, availed herself of—the opportunity to bring a legal action challenging the foreclosure attempts on her residence. As for negligence, even assuming SPS had a duty of care in processing plaintiff’s loan modification, plaintiff alleged no facts indicating a failure to adhere to that duty in processing her application.

Plaintiff further suggests that she could amend her complaint to challenge, for the first time, the substitution of trustee, which was recorded together with the assignment on June 2, 2011. However, plaintiff did include allegations regarding the substitution of trustee in her first amended complaint; she alleged that it was illegal because (1) U.S. Bank “was not the true beneficial holder or beneficiary of the [deed of trust] and therefore, held no legal authority to execute or record the [substitution of trustee]”; (2) Chase had no legal authority to execute or record the [substitution of trustee] because it was acting on behalf of U.S. Bank; and (3) “only the Lender, or it’s [sic] agent, may substitute the trustee of the [deed of trust].” Even if these allegations were not time barred, they are based on the same arguments as those unsuccessfully proffered in plaintiff’s challenge to the assignment made the same day. Plaintiff has therefore failed to supply a legal basis for finding the substitution of trustee to be void. The trial court therefore did not abuse its discretion in sustaining the demurrer to plaintiff’s amended complaint without leave to amend. (Dinuba, supra, 41 Cal.4th at p. 865.)

7. Denial of Oral Argument

Plaintiff next argues that “[b]oth [sic] defendants were required to notice the Plaintiff of the court’s local rule requiring that any party wishing to orally argue a tentative, must call and provide notice to all parties and the court, the day before.” Plaintiff’s counsel concedes that the call “was inadvertently left off of Appellants counsel’s calendar” and that he thus “erred in not calling in.” But he also asserts that defendants themselves “erred in not noticing Appellants [sic] attorney of the requirements.” Plaintiff therefore argues on appeal that the court should have granted her petition under section 473 and permitted her to make the argument that the court had erred in its tentative ruling by “misapprehending the TPP was not for the first lien modification.”

Plaintiff’s argument must be rejected. First, she fails to acknowledge that an application for relief under section 473, subdivision (b), is a matter within the sound discretion of the superior court, which may grant relief if the moving party demonstrates the requisite “mistake, inadvertence, surprise, or excusable neglect.” (§ 473, subd. (b).) On appeal, our review is “highly deferential,” allowing reversal only for a clear showing of abuse of that discretion. (McClain v. Kissler (2019) 39 Cal.App.5th 399.)

Applying that standard, we see no abuse of discretion in the lower court’s adoption of its tentative ruling without oral argument. Plaintiff cites no authority, by rule or statute, that required defendants to inform her counsel of the rule that a party must notify the court the day before the hearing that he or she wished to contest the tentative ruling by oral argument. Indeed, counsel’s declaration in support of the motion for relief made no mention of his unawareness of the local court rule (or even the basis of the intended objection); instead, he apologized for the inadvertent failure of his office calendaring system. At the hearing on the motion the court commented that plaintiff was not prejudiced by counsel’s nonappearance to contest the tentative ruling, because nothing counsel might have said about the ruling would have changed the outcome of the demurrers. As plaintiff offers no viable basis for finding an abuse of discretion on the facts presented, reversal is not warranted on this ground.

8. Expungement of Lis Pendens and Attorney Fees Order

Plaintiff’s final argument is that the court “erred in allowing expunge [sic] of the lis pendens and award of attorney fees.” This ruling is not properly before us, however. Plaintiff filed her notice of appeal on January 8, 2018, seeking review of the November 21 and December 5, 2017 judgments of dismissal. The motion by U.S. Bank and SPS to expunge plaintiff’s notice of pending action was argued long thereafter, and only on May 14, 2018 did the court grant the motion to expunge the lis pendens and award SPS $2,952 for the motion. “Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from.” (Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427, 436.) “If an appeal is from the judgment, the general rule is that the appeal will review the correctness of a judgment at the time it is rendered and matters occurring later are irrelevant.” (Soldate v. Fidelity Nat. Financial, Inc. (1998) 62 Cal.App.4th 1069, 1073.) Because the expungement order is beyond the scope of review in this appeal, we express no opinion regarding the merits of plaintiff’s challenge.

Disposition

The judgments are affirmed.

_________________________________

ELIA, ACTING P. J.

WE CONCUR:

_______________________________

BAMATTRE-MANOUKIAN, J.

_______________________________

MIHARA, J.

Bryer v. Morgan Chase, N.A. et al.

H045407

Case Number: KC070570
JESUS A. LIZARRAGA VS MAZDA MOTOR OF AMERICA, INC
Filing Courthouse: Pomona Courthouse South

Filing Date: 08/29/2018
Case Type: Other Breach of Contract/Warranty (not fraud or negligence) (General Jurisdiction)
Status: Pending

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

11/19/2019 at 08:30 AM in Department O at 400 Civic Center Plaza, Pomona, CA 91766
Hearing on Motion to Compel Production

07/02/2020 at 08:30 AM in Department O at 400 Civic Center Plaza, Pomona, CA 91766
Final Status Conference

07/14/2020 at 08:30 AM in Department O at 400 Civic Center Plaza, Pomona, CA 91766
Jury Trial

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

ANVAR JESSICA – Attorney for Plaintiff

ANVAR JESSICA – Attorney for Plaintiff

BEATTY SEAN DAVID – Attorney for Defendant

LIZARRAGA JESUS A. – Plaintiff

LIZARRAGA JESUS A. – Plaintiff

MAZDA MOTOR OF AMERICA INC – Defendant

MAZDA MOTOR OF AMERICA INC – Defendant

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

Documents Filed (Filing dates listed in descending order)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
08/29/2018

11/12/2019 Reply (MNAO’s Reply to Plaintiff’s Opposition to Defendant’s Motion to Compel Production of Documents)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

11/05/2019 Declaration (DECLARATION OF VANESSA J. OLIVA IN SUPPORT OF PLAINTIFF?S OPPOSITION TO DEFENDANT?S MOTION TO COMPEL PRODUCTION OF DOCUMENTS)
Filed by JESUS A. LIZARRAGA (Plaintiff)

11/05/2019 Proof of Service (not Summons and Complaint)
Filed by JESUS A. LIZARRAGA (Plaintiff)

11/05/2019 Opposition (PLAINTIFF?S OPPOSITION TO DEFENDANT?S MOTION TO COMPEL PRODUCTION OF DOCUMENTS)
Filed by JESUS A. LIZARRAGA (Plaintiff)

11/01/2019 Order (on the Court’s Modified Tentative Ruling)
Filed by Clerk

11/01/2019 Certificate of Mailing for ((Ruling on Submitted Matter;) of 11/01/2019, Court’s Modified Tentative Ruling)
Filed by Clerk

11/01/2019 Minute Order ( (Ruling on Submitted Matter;))
Filed by Clerk

10/30/2019 Minute Order ( (Hearing on Motion to Compel Further Discovery Responses For P…))
Filed by Clerk

10/30/2019 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/30/2019 Stipulation and Order (Joint Stipulation to Continue Final Status Conference and Trial; Proposed Order)
Filed by JESUS A. LIZARRAGA (Plaintiff)

10/23/2019 Proof of Service (not Summons and Complaint)
Filed by JESUS A. LIZARRAGA (Plaintiff)

10/23/2019 Objection (Plaintiff’s Evidentiary Objections to Declaration of Erik J. Ekblad Submitted in Support of Defendant Mazda Motor of America, Inc.’s Opposition to Motion to Compel Further Responses to Plaintiff’s Request for Production of Documents, Set One)
Filed by JESUS A. LIZARRAGA (Plaintiff)

10/23/2019 Reply (Reply in Support of Plaintiff’s Motion to Compel Further Responses to Plaintiff’s Request for Production of Documents, Set One)
Filed by JESUS A. LIZARRAGA (Plaintiff)

10/17/2019 Opposition (MNAO’s Opposition to Plf’s Motion to Compel Further Responses to RFP)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/16/2019 Declaration (Declaration Of Erik J. Ek.Blad In Support Of Defendant’s Motions In Limine)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/16/2019 Motion in Limine (Defendant’s Motion In Limine No. 7, Precluding Testimony From Plaintiff’s Duplicative Experts; Declaration Of Erik J. Ekblad)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/16/2019 Motion in Limine (Defendant’s Motion In Limine No. 6, To Preclude Plaintiff From Offering Evidence And Information Of Other Claims And Complaints)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/16/2019 Motion in Limine (Defendant’s Motion In Limine No. 5, To Preclude Plaintiff And His Attorneys And Witnesses From Referring To Reports In The Media Regarding Automobile Manufacturers that have Nothing To Do With Plaintiff’s Complaints Or Vehicle; Declaration Erik J. Ek)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/16/2019 Motion in Limine (Defendant’s Motion In Limine No. 4, To Preclude Plaintiff From Offering Hearsay Statements Or Opinions From Unidentified And Undisclosed Mechanics And Dealership Personnel)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/16/2019 Motion in Limine (Defendant’s Motion In Limine No. 3, To Preclude Plaintiff’s Attorney From Questioning Defendant’s Employees About The Song Beverly Consumer Warranty Act;)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/16/2019 Motion in Limine ( Defendant’s Motion In Limine No. 2, To Limit Evidence Relating To Service Visits; Declaration Of Erik J. Ekblad;)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/16/2019 Motion in Limine (Defendant’s Motion In Limine No. 1, To Preclude Plaintiff From Testifying Regarding Substantial Impairment;)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/08/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

09/27/2019 Declaration (DECLARATION OF VANESSA J. OLIVA IN SUPPORT OF PLAINTIFF?S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF?S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE)
Filed by JESUS A. LIZARRAGA (Plaintiff)

09/27/2019 Separate Statement
Filed by JESUS A. LIZARRAGA (Plaintiff)

09/27/2019 Motion to Compel Further Discovery Responses
Filed by JESUS A. LIZARRAGA (Plaintiff)

01/30/2019 Minute Order ( (Case Management Conference;))
Filed by Clerk

01/22/2019 Notice of Deposit – Jury
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

01/15/2019 Case Management Statement
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

12/27/2018 Notice (Notice of Case Management Conference)
Filed by JESUS A. LIZARRAGA (Plaintiff)

12/27/2018 Notice of Deposit – Jury
Filed by JESUS A. LIZARRAGA (Plaintiff)

12/27/2018 Case Management Statement
Filed by JESUS A. LIZARRAGA (Plaintiff)

10/19/2018 Notice (reassignment)

10/17/2018 Notice (Re: Reassignment)
Filed by JESUS A. LIZARRAGA (Plaintiff)

10/09/2018 Answer
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/03/2018 Notice of Case Reassignment and Order for Plaintiff to Give Notice
Filed by Clerk

10/03/2018 Notice of Case Reassignment and Order for Plaintiff to Give Notice
Filed by Clerk

10/03/2018 Notice of Case Reassignment and Order for Plaintiff to Give Notice

10/03/2018 Notice of Case Reassignment & Ord
Filed by Clerk

09/18/2018 Notice of Case Reassignment and Order for Plaintiff to Give Notice
Filed by Clerk

09/18/2018 Notice of Case Reassignment & Ord
Filed by Clerk

09/11/2018 Rtn of Service of Summons & Compl
Filed by JESUS A. LIZARRAGA (Plaintiff)

09/11/2018 Proof of Service of Summons and Complaint

09/11/2018 Rtn of Service of Summons & Compl
Filed by Attorney for Plaintiff

09/04/2018 Notice of Case Management Conference
Filed by Clerk

09/04/2018 Notice of Case Management Conference

09/04/2018 Notice-Case Management Conference
Filed by Clerk

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 08/29/2018

08/29/2018 Summons

08/29/2018 Notice of Case Assignment
Filed by Plaintiff

08/29/2018 Summons
Filed by Plaintiff

08/29/2018 Civil Case Cover Sheet

08/29/2018 Complaint

08/29/2018 Complaint
Filed by JESUS A. LIZARRAGA (Plaintiff)

08/29/2018 Notice of Case Assignment
Filed by Plaintiff

08/29/2018 Summons Filed
Filed by Plaintiff

08/29/2018 Complaint Filed

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 08/29/2018

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

Proceedings Held (Proceeding dates listed in descending order)

11/07/2019 at 08:30 AM in Department O, Peter A. Hernandez, Presiding
Final Status Conference – Not Held – Continued – Stipulation

11/01/2019 at 1:30 PM in Department O, Peter A. Hernandez, Presiding
Ruling on Submitted Matter

10/30/2019 at 08:30 AM in Department O, Peter A. Hernandez, Presiding
Hearing on Motion to Compel Further Discovery Responses (For Production of Documents, (Set One)) – Held – Taken under Submission

01/30/2019 at 08:30 AM in Department O, Peter A. Hernandez, Presiding
Case Management Conference – Held

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:
09/04/2018

11/12/2019 Reply (MNAO’s Reply to Plaintiff’s Opposition to Defendant’s Motion to Compel Production of Documents)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

11/07/2019 at 08:30 AM in Department O, Peter A. Hernandez, Presiding
Final Status Conference – Not Held – Continued – Stipulation

11/05/2019 Declaration (DECLARATION OF VANESSA J. OLIVA IN SUPPORT OF PLAINTIFF?S OPPOSITION TO DEFENDANT?S MOTION TO COMPEL PRODUCTION OF DOCUMENTS)
Filed by JESUS A. LIZARRAGA (Plaintiff)

11/05/2019 Opposition (PLAINTIFF?S OPPOSITION TO DEFENDANT?S MOTION TO COMPEL PRODUCTION OF DOCUMENTS)
Filed by JESUS A. LIZARRAGA (Plaintiff)

11/05/2019 Proof of Service (not Summons and Complaint)
Filed by JESUS A. LIZARRAGA (Plaintiff)

11/01/2019 at 1:30 PM in Department O, Peter A. Hernandez, Presiding
Ruling on Submitted Matter

11/01/2019 Order (on the Court’s Modified Tentative Ruling)
Filed by Clerk

11/01/2019 Certificate of Mailing for ((Ruling on Submitted Matter;) of 11/01/2019, Court’s Modified Tentative Ruling)
Filed by Clerk

11/01/2019 Minute Order ( (Ruling on Submitted Matter;))
Filed by Clerk

10/30/2019 at 08:30 AM in Department O, Peter A. Hernandez, Presiding
Hearing on Motion to Compel Further Discovery Responses (For Production of Documents, (Set One)) – Held – Taken under Submission

10/30/2019 Stipulation and Order (Joint Stipulation to Continue Final Status Conference and Trial; Proposed Order)
Filed by JESUS A. LIZARRAGA (Plaintiff)

10/30/2019 Minute Order ( (Hearing on Motion to Compel Further Discovery Responses For P…))
Filed by Clerk

10/30/2019 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/23/2019 Reply (Reply in Support of Plaintiff’s Motion to Compel Further Responses to Plaintiff’s Request for Production of Documents, Set One)
Filed by JESUS A. LIZARRAGA (Plaintiff)

10/23/2019 Objection (Plaintiff’s Evidentiary Objections to Declaration of Erik J. Ekblad Submitted in Support of Defendant Mazda Motor of America, Inc.’s Opposition to Motion to Compel Further Responses to Plaintiff’s Request for Production of Documents, Set One)
Filed by JESUS A. LIZARRAGA (Plaintiff)

10/23/2019 Proof of Service (not Summons and Complaint)
Filed by JESUS A. LIZARRAGA (Plaintiff)

10/17/2019 Opposition (MNAO’s Opposition to Plf’s Motion to Compel Further Responses to RFP)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/16/2019 Motion in Limine ( Defendant’s Motion In Limine No. 2, To Limit Evidence Relating To Service Visits; Declaration Of Erik J. Ekblad;)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/16/2019 Motion in Limine (Defendant’s Motion In Limine No. 1, To Preclude Plaintiff From Testifying Regarding Substantial Impairment;)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/16/2019 Motion in Limine (Defendant’s Motion In Limine No. 4, To Preclude Plaintiff From Offering Hearsay Statements Or Opinions From Unidentified And Undisclosed Mechanics And Dealership Personnel)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/16/2019 Motion in Limine (Defendant’s Motion In Limine No. 5, To Preclude Plaintiff And His Attorneys And Witnesses From Referring To Reports In The Media Regarding Automobile Manufacturers that have Nothing To Do With Plaintiff’s Complaints Or Vehicle; Declaration Erik J. Ek)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/16/2019 Motion in Limine (Defendant’s Motion In Limine No. 6, To Preclude Plaintiff From Offering Evidence And Information Of Other Claims And Complaints)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/16/2019 Motion in Limine (Defendant’s Motion In Limine No. 7, Precluding Testimony From Plaintiff’s Duplicative Experts; Declaration Of Erik J. Ekblad)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/16/2019 Declaration (Declaration Of Erik J. Ek.Blad In Support Of Defendant’s Motions In Limine)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/16/2019 Motion in Limine (Defendant’s Motion In Limine No. 3, To Preclude Plaintiff’s Attorney From Questioning Defendant’s Employees About The Song Beverly Consumer Warranty Act;)
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/08/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

09/27/2019 Declaration (DECLARATION OF VANESSA J. OLIVA IN SUPPORT OF PLAINTIFF?S MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF?S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE)
Filed by JESUS A. LIZARRAGA (Plaintiff)

09/27/2019 Separate Statement
Filed by JESUS A. LIZARRAGA (Plaintiff)

09/27/2019 Motion to Compel Further Discovery Responses
Filed by JESUS A. LIZARRAGA (Plaintiff)

01/30/2019 at 08:30 AM in Department O, Peter A. Hernandez, Presiding
Case Management Conference – Held

01/30/2019 Minute Order ( (Case Management Conference;))
Filed by Clerk

01/22/2019 Notice of Deposit – Jury
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

01/15/2019 Case Management Statement
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

12/27/2018 Notice (Notice of Case Management Conference)
Filed by JESUS A. LIZARRAGA (Plaintiff)

12/27/2018 Case Management Statement
Filed by JESUS A. LIZARRAGA (Plaintiff)

12/27/2018 Notice of Deposit – Jury
Filed by JESUS A. LIZARRAGA (Plaintiff)

10/19/2018 Notice (reassignment)

10/17/2018 Notice (Re: Reassignment)
Filed by JESUS A. LIZARRAGA (Plaintiff)

10/09/2018 Answer
Filed by MAZDA MOTOR OF AMERICA, INC. (Defendant)

10/03/2018 Notice of Case Reassignment and Order for Plaintiff to Give Notice

10/03/2018 Notice of Case Reassignment & Ord
Filed by Clerk

10/03/2018 Notice of Case Reassignment and Order for Plaintiff to Give Notice
Filed by Clerk

10/03/2018 Notice of Case Reassignment and Order for Plaintiff to Give Notice
Filed by Clerk

09/18/2018 Notice of Case Reassignment and Order for Plaintiff to Give Notice
Filed by Clerk

09/18/2018 Notice of Case Reassignment & Ord
Filed by Clerk

09/11/2018 Rtn of Service of Summons & Compl
Filed by JESUS A. LIZARRAGA (Plaintiff)

09/11/2018 Rtn of Service of Summons & Compl
Filed by Attorney for Plaintiff

09/11/2018 Proof of Service of Summons and Complaint

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

09/04/2018 Notice-Case Management Conference
Filed by Clerk

09/04/2018 Notice of Case Management Conference

09/04/2018 Notice of Case Management Conference
Filed by Clerk

08/29/2018 Summons Filed
Filed by Plaintiff

08/29/2018 Summons
Filed by Plaintiff

08/29/2018 Notice of Case Assignment
Filed by Plaintiff

08/29/2018 Civil Case Cover Sheet

08/29/2018 Notice of Case Assignment
Filed by Plaintiff

08/29/2018 Summons

08/29/2018 Complaint
Filed by JESUS A. LIZARRAGA (Plaintiff)

08/29/2018 Complaint Filed

08/29/2018 Complaint

Case Number: 19STCV02064
DEAN ROGAN, AN INDIVIDUAL VS JAIME LOPEZ, AN INDIVIDUAL
Filing Courthouse: Spring Street Courthouse

Filing Date: 01/22/2019
Case Type: Motor Vehicle – Personal Injury/Property Damage/Wrongful Death (General Jurisdiction)
Status: Pending

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

07/07/2020 at 10:00 AM in Department 2 at 312 North Spring Street, Los Angeles, CA 90012
Final Status Conference

07/21/2020 at 08:30 AM in Department 2 at 312 North Spring Street, Los Angeles, CA 90012
Non-Jury Trial

01/18/2022 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

ASH PAUL VAUGHN ESQ. – Attorney for Defendant

GARCIA AN INDIVIDUAL DOE 1 MARIA – Defendant

LOPEZ AN INDIVIDUAL JAIME – Defendant

MAZZA STEVEN L. ESQ. – Attorney for Plaintiff

ROGAN AN INDIVIDUAL DEAN – Plaintiff

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

Documents Filed (Filing dates listed in descending order)

10/31/2019 Notice of Posting of Jury Fees
Filed by Dean Rogan, an individual (Plaintiff)

10/31/2019 Demand for Jury Trial
Filed by Dean Rogan, an individual (Plaintiff)

10/30/2019 Certificate of Mailing for ((Hearing on Motion to Compel Deposition Of Plaintiff and Reque…) of 10/30/2019)
Filed by Clerk

10/30/2019 Minute Order ( (Hearing on Motion to Compel Deposition Of Plaintiff and Reque…))
Filed by Clerk

10/24/2019 DEFENDANT?S REPLY BRIEF TO DEFENDANT?S NOTICE AND NOTICE OF MOTION TO COMPEL DEPOSITION OF PLAINTIFF AND REQUEST FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS AS AGAINST PLAINTIFF AND/OR HIS ATTORNEY OF RECORD, STEVEN L. MAZZA, ESQ. FOR $1,890.00
Filed by Jaime Lopez, an individual (Defendant); Maria Garcia, an individual DOE 1 (Defendant)

10/17/2019 Opposition (to Defendants Motion to Compel)
Filed by Dean Rogan, an individual (Plaintiff)

09/25/2019 Motion to Compel (Deposition of Plaintiff and Request for Production of Documents; Request for Monetary Sanctions Against Plaintiff and/Or His Attorney of Record)
Filed by Jaime Lopez, an individual (Defendant)

09/10/2019 Answer
Filed by Maria Garcia, an individual DOE 1 (Defendant)

09/04/2019 Proof of Personal Service
Filed by Dean Rogan, an individual (Plaintiff)

08/12/2019 Amendment to Complaint (Fictitious/Incorrect Name)
Filed by Dean Rogan, an individual (Plaintiff)

07/30/2019 Certificate of Mailing for ((Ruling on Submitted Matter Re: Sanctions on Plaintiff’s Motio…) of 07/30/2019)
Filed by Clerk

07/30/2019 Minute Order ( (Ruling on Submitted Matter Re: Sanctions on Plaintiff’s Motio…))
Filed by Clerk

07/15/2019 Minute Order ( (Hearing on Motion to Compel Discovery (not “Further Discovery…))
Filed by Clerk

07/05/2019 Reply (to Defendant’s Opposition to Plaintiff’s Motion to Compel Deposition of Defendant Jamie Lopez and Request for Production of Documents)
Filed by Dean Rogan, an individual (Plaintiff)

06/28/2019 DEFENDANT?S OPPOSITION TO PLAINTIFF?S MOTION TO COMPEL DEPOSITION OF DEFENDANT JAIME LOPEZ AND REQUEST FOR $3,736.65 IN ATTORNEYS FEES, COSTS, AND MONETARY SANCTIONS AGAINST DEFENDANT JAIME LOPEZ AND/OR HIS COUNSEL OF RECORD, PAUL ASH, AND/OR HANGER, STE
Filed by Jaime Lopez, an individual (Defendant)

05/28/2019 Motion to Compel (the Deposition of Defendant Jamie Lopez and Request for Production of Documents; Request for Attorneys Fees, Costs, and Monetary Sanctions Against Defendant Jamie Lopez and/or His Attorney)
Filed by Dean Rogan, an individual (Plaintiff)

03/20/2019 Notice of Deposit – Jury
Filed by Jaime Lopez, an individual (Defendant)

03/20/2019 Demand for Jury Trial
Filed by Jaime Lopez, an individual (Defendant)

03/20/2019 Answer (to Complaint)
Filed by Jaime Lopez, an individual (Defendant)

03/01/2019 Proof of Service by Substituted Service
Filed by Dean Rogan, an individual (Plaintiff)

01/25/2019 Certificate of Mailing for ([Standing Order re PI Procedures and Hearing Dates] and Standing Order re PI Procedures and Hearing Dates)
Filed by Clerk

01/25/2019 Standing Order re PI Procedures and Hearing Dates
Filed by Clerk

01/22/2019 Notice of Case Assignment – Unlimited Civil Case
Filed by Clerk

01/22/2019 Summons (on Complaint)
Filed by Dean Rogan, an individual (Plaintiff)

01/22/2019 Civil Case Cover Sheet
Filed by Dean Rogan, an individual (Plaintiff)

01/22/2019 Complaint
Filed by Dean Rogan, an individual (Plaintiff)

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

Proceedings Held (Proceeding dates listed in descending order)

10/30/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel Deposition (Of Plaintiff and Request for Production of Documents; Request for Monetary Sanctions; Filed By Defendants) – Held – Motion Granted

10/23/2019 at 11:00 AM in Department 2, Kristin S. Escalante, Presiding
Informal Discovery Conference (IDC) – Not Held – Taken Off Calendar by Party

07/30/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Ruling on Submitted Matter

07/15/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) (Deposition of Defendant and Request for Production of Documents; Request for $3,736.65 in Attorney’s Fees and Monetary Sanctions against Defendant and/or his Counsel of Record) – Held – Taken under Submission

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

Register of Actions (Listed in descending order)

10/31/2019 Demand for Jury Trial
Filed by Dean Rogan, an individual (Plaintiff)

10/31/2019 Notice of Posting of Jury Fees
Filed by Dean Rogan, an individual (Plaintiff)

10/30/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel Deposition (Of Plaintiff and Request for Production of Documents; Request for Monetary Sanctions; Filed By Defendants) – Held – Motion Granted

10/30/2019 Certificate of Mailing for ((Hearing on Motion to Compel Deposition Of Plaintiff and Reque…) of 10/30/2019)
Filed by Clerk

10/30/2019 Minute Order ( (Hearing on Motion to Compel Deposition Of Plaintiff and Reque…))
Filed by Clerk

10/24/2019 DEFENDANT?S REPLY BRIEF TO DEFENDANT?S NOTICE AND NOTICE OF MOTION TO COMPEL DEPOSITION OF PLAINTIFF AND REQUEST FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS AS AGAINST PLAINTIFF AND/OR HIS ATTORNEY OF RECORD, STEVEN L. MAZZA, ESQ. FOR $1,890.00
Filed by Jaime Lopez, an individual (Defendant); Maria Garcia, an individual DOE 1 (Defendant)

10/23/2019 at 11:00 AM in Department 2, Kristin S. Escalante, Presiding
Informal Discovery Conference (IDC) – Not Held – Taken Off Calendar by Party

10/17/2019 Opposition (to Defendants Motion to Compel)
Filed by Dean Rogan, an individual (Plaintiff)

09/25/2019 Motion to Compel (Deposition of Plaintiff and Request for Production of Documents; Request for Monetary Sanctions Against Plaintiff and/Or His Attorney of Record)
Filed by Jaime Lopez, an individual (Defendant)

09/10/2019 Answer
Filed by Maria Garcia, an individual DOE 1 (Defendant)

09/04/2019 Proof of Personal Service
Filed by Dean Rogan, an individual (Plaintiff)

08/12/2019 Amendment to Complaint (Fictitious/Incorrect Name)
Filed by Dean Rogan, an individual (Plaintiff)

07/30/2019 at 08:30 AM in Department 2, Kristin S. Escalante, Presiding
Ruling on Submitted Matter

07/30/2019 Minute Order ( (Ruling on Submitted Matter Re: Sanctions on Plaintiff’s Motio…))
Filed by Clerk

07/30/2019 Certificate of Mailing for ((Ruling on Submitted Matter Re: Sanctions on Plaintiff’s Motio…) of 07/30/2019)
Filed by Clerk

07/15/2019 at 1:30 PM in Department 2, Kristin S. Escalante, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) (Deposition of Defendant and Request for Production of Documents; Request for $3,736.65 in Attorney’s Fees and Monetary Sanctions against Defendant and/or his Counsel of Record) – Held – Taken under Submission

07/15/2019 Minute Order ( (Hearing on Motion to Compel Discovery (not “Further Discovery…))
Filed by Clerk

07/05/2019 Reply (to Defendant’s Opposition to Plaintiff’s Motion to Compel Deposition of Defendant Jamie Lopez and Request for Production of Documents)
Filed by Dean Rogan, an individual (Plaintiff)

06/28/2019 DEFENDANT?S OPPOSITION TO PLAINTIFF?S MOTION TO COMPEL DEPOSITION OF DEFENDANT JAIME LOPEZ AND REQUEST FOR $3,736.65 IN ATTORNEYS FEES, COSTS, AND MONETARY SANCTIONS AGAINST DEFENDANT JAIME LOPEZ AND/OR HIS COUNSEL OF RECORD, PAUL ASH, AND/OR HANGER, STE
Filed by Jaime Lopez, an individual (Defendant)

05/28/2019 Motion to Compel (the Deposition of Defendant Jamie Lopez and Request for Production of Documents; Request for Attorneys Fees, Costs, and Monetary Sanctions Against Defendant Jamie Lopez and/or His Attorney)
Filed by Dean Rogan, an individual (Plaintiff)

03/20/2019 Demand for Jury Trial
Filed by Jaime Lopez, an individual (Defendant)

03/20/2019 Answer (to Complaint)
Filed by Jaime Lopez, an individual (Defendant)

03/20/2019 Notice of Deposit – Jury
Filed by Jaime Lopez, an individual (Defendant)

03/01/2019 Proof of Service by Substituted Service
Filed by Dean Rogan, an individual (Plaintiff)

01/25/2019 Standing Order re PI Procedures and Hearing Dates
Filed by Clerk

01/25/2019 Certificate of Mailing for ([Standing Order re PI Procedures and Hearing Dates] and Standing Order re PI Procedures and Hearing Dates)
Filed by Clerk

01/22/2019 Notice of Case Assignment – Unlimited Civil Case
Filed by Clerk

01/22/2019 Summons (on Complaint)
Filed by Dean Rogan, an individual (Plaintiff)

01/22/2019 Civil Case Cover Sheet
Filed by Dean Rogan, an individual (Plaintiff)

01/22/2019 Complaint
Filed by Dean Rogan, an individual (Plaintiff)

Case Number: BC698561
MARK CRAWFORD VS EVAN ARTHUR GORDON ET AL
Filing Courthouse: Stanley Mosk Courthouse

Filing Date: 03/19/2018
Case Type: Motor Vehicle – Personal Injury/Property Damage/Wrongful Death (General Jurisdiction)
Status: Pending

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

03/03/2020 at 10:00 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012
Final Status Conference

03/19/2020 at 08:30 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012
Jury Trial

03/19/2021 at 08:30 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012
: OSC RE Dismissal

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

CRAWFORD MARK – Plaintiff

GORDON EVAN ARTHUR – Defendant

RIVERA VIVIAN ISABEL – Attorney for Defendant

Lawzilla Additional Information: Eddie Harris is the plaintiff attorney

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

Documents Filed (Filing dates listed in descending order)

11/07/2019 Notice of Ruling
Filed by Mark Crawford (Plaintiff)

10/30/2019 Certificate of Mailing for ((Hearing on Motion to Compel Discovery (not “Further Discovery…) of 10/30/2019)
Filed by Clerk

10/30/2019 Minute Order ( (Hearing on Motion to Compel Discovery (not “Further Discovery…))
Filed by Clerk

10/04/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by Evan Arthur Gordon (Defendant)

10/04/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by Evan Arthur Gordon (Defendant)

10/04/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by Evan Arthur Gordon (Defendant)

08/06/2019 [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District)
Filed by Evan Arthur Gordon (Defendant)

05/17/2019 Demand for Jury Trial
Filed by Evan Arthur Gordon (Defendant)

05/17/2019 Notice of Posting of Jury Fees
Filed by Evan Arthur Gordon (Defendant)

05/17/2019 Answer
Filed by Evan Arthur Gordon (Defendant)

03/19/2018 SUMMONS

03/19/2018 COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

03/19/2018 Complaint
Filed by Mark Crawford (Plaintiff)

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

Proceedings Held (Proceeding dates listed in descending order)

10/30/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

10/30/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

10/30/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

09/19/2019 at 08:30 AM in Department 3, Jon R. Takasugi, Presiding
Jury Trial – Not Held – Continued – Stipulation

09/03/2019 at 10:00 AM in Department 3, Jon R. Takasugi, Presiding
Final Status Conference – Not Held – Continued – Stipulation

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

Register of Actions (Listed in descending order)

11/07/2019 Notice of Ruling
Filed by Mark Crawford (Plaintiff)

10/30/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

10/30/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

10/30/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

10/30/2019 Minute Order ( (Hearing on Motion to Compel Discovery (not “Further Discovery…))
Filed by Clerk

10/30/2019 Certificate of Mailing for ((Hearing on Motion to Compel Discovery (not “Further Discovery…) of 10/30/2019)
Filed by Clerk

10/04/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by Evan Arthur Gordon (Defendant)

10/04/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by Evan Arthur Gordon (Defendant)

10/04/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by Evan Arthur Gordon (Defendant)

09/19/2019 at 08:30 AM in Department 3, Jon R. Takasugi, Presiding
Jury Trial – Not Held – Continued – Stipulation

09/03/2019 at 10:00 AM in Department 3, Jon R. Takasugi, Presiding
Final Status Conference – Not Held – Continued – Stipulation

08/06/2019 [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District)
Filed by Evan Arthur Gordon (Defendant)

05/17/2019 Notice of Posting of Jury Fees
Filed by Evan Arthur Gordon (Defendant)

05/17/2019 Demand for Jury Trial
Filed by Evan Arthur Gordon (Defendant)

05/17/2019 Answer
Filed by Evan Arthur Gordon (Defendant)

03/19/2018 SUMMONS

03/19/2018 COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

03/19/2018 Complaint
Filed by Mark Crawford (Plaintiff)

Case Number: BC710026
DESMOND BEATTY ET AL VS RAFAEL VALENZUELA MENJIVAR

Filing Courthouse: Stanley Mosk Courthouse

Filing Date: 06/13/2018
Case Type: Motor Vehicle – Personal Injury/Property Damage/Wrongful Death (General Jurisdiction)
Status: Pending

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

11/27/2019 at 10:00 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012
Final Status Conference

12/13/2019 at 08:30 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012
Jury Trial

06/14/2021 at 08:30 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012
: OSC RE Dismissal

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

BEATTY DESMOND – Plaintiff

BEATTY DESMOND – Cross-Defendant

BORROMEO IRENE G – Attorney for Defendant

CRESPIN HAROLD – Plaintiff

MENJIVAR RAFAEL VALENZUESA – Defendant

MENJIVAR RAFAEL VALENZUESA – Cross-Complainant

MICHAEL A. WASKUL & ASSOCIATES – Attorney for Plaintiff

MOORE MARLENE – Plaintiff

WASKUL MICHAEL ALEXANDER – Attorney for Cross-Defendant

WINBORN CASDASE – Plaintiff

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

Documents Filed (Filing dates listed in descending order)

11/19/2019 Request for Dismissal ((Not entered))
Filed by Desmond Beatty (Plaintiff)

11/07/2019 Request for Dismissal ((not entered))
Filed by Desmond Beatty (Plaintiff)

11/01/2019 Notice of Ruling
Filed by Rafael Valenzuesa Menjivar (Defendant)

10/30/2019 Minute Order ( (Hearing on Motion to Compel Plaintiff’s attendance at deposit…))
Filed by Clerk

10/02/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by Rafael Valenzuesa Menjivar (Defendant)

10/02/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by Rafael Valenzuesa Menjivar (Defendant)

10/02/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by Rafael Valenzuesa Menjivar (Defendant)

10/02/2019 Motion to Compel (defendant’s motion to compel plaintiff Candace Winborn’s attendance at deposition)
Filed by Rafael Valenzuesa Menjivar (Defendant)

11/14/2018 Answer
Filed by Desmond Beatty (Cross-Defendant)

10/16/2018 Summons (on Cross Complaint)
Filed by Clerk

10/16/2018 Cross-Complaint
Filed by Rafael Valenzuesa Menjivar (Cross-Complainant)

10/16/2018 Answer
Filed by Rafael Valenzuesa Menjivar (Defendant)

08/29/2018 PROOF OF SERVICE SUMMONS

08/29/2018 Proof-Service/Summons
Filed by Desmond Beatty (Plaintiff)

06/13/2018 SUMMONS

06/13/2018 COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

06/13/2018 Complaint
Filed by Desmond Beatty (Plaintiff); Harold Crespin (Plaintiff); Marlene Moore (Plaintiff) et al.

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

Proceedings Held (Proceeding dates listed in descending order)

10/30/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel (Plaintiff’s attendance at deposition) – Held

10/30/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held

10/30/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held

10/30/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held

09/27/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Not Held – Rescheduled by Party

09/27/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Not Held – Rescheduled by Party

09/27/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Not Held – Rescheduled by Party

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

Register of Actions (Listed in descending order)

11/19/2019 Request for Dismissal ((Not entered))
Filed by Desmond Beatty (Plaintiff)

11/07/2019 Request for Dismissal ((not entered))
Filed by Desmond Beatty (Plaintiff)

11/01/2019 Notice of Ruling
Filed by Rafael Valenzuesa Menjivar (Defendant)

10/30/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held

10/30/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel (Plaintiff’s attendance at deposition) – Held

10/30/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held

10/30/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held

10/30/2019 Minute Order ( (Hearing on Motion to Compel Plaintiff’s attendance at deposit…))
Filed by Clerk

10/02/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by Rafael Valenzuesa Menjivar (Defendant)

10/02/2019 Motion to Compel (defendant’s motion to compel plaintiff Candace Winborn’s attendance at deposition)
Filed by Rafael Valenzuesa Menjivar (Defendant)

10/02/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by Rafael Valenzuesa Menjivar (Defendant)

10/02/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by Rafael Valenzuesa Menjivar (Defendant)

09/27/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Not Held – Rescheduled by Party

09/27/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Not Held – Rescheduled by Party

09/27/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Not Held – Rescheduled by Party

11/14/2018 Answer
Filed by Desmond Beatty (Cross-Defendant)

10/16/2018 Cross-Complaint
Filed by Rafael Valenzuesa Menjivar (Cross-Complainant)

10/16/2018 Summons (on Cross Complaint)
Filed by Clerk

10/16/2018 Answer
Filed by Rafael Valenzuesa Menjivar (Defendant)

08/29/2018 Proof-Service/Summons
Filed by Desmond Beatty (Plaintiff)

08/29/2018 PROOF OF SERVICE SUMMONS

06/13/2018 Complaint
Filed by Desmond Beatty (Plaintiff); Harold Crespin (Plaintiff); Marlene Moore (Plaintiff) et al.

06/13/2018 SUMMONS

06/13/2018 COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

Filed 11/19/19 State of South Carolina v. Iandiorio CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

STATE OF SOUTH CAROLINA,

Plaintiff,

v.

THOMAS IANDIORIO,

Defendant and Respondent,

AMBER WESSON,

Real Party in Interest and Appellant.

G056624

(Super. Ct. No. 12FL103991)

O P I N I O N

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

No appearance for Plaintiff.

No appearance for Respondent.

Amber Wesson, in pro. per., for Real Party in Interest and Appellant.

This is an appeal by a custodial parent in California from a $162 a month child support order against an out-of-state unemployed noncustodial parent. The custodial parent believes the order is too low, but has not furnished us a sufficient record of the hearing at which the order was made to arrive at that conclusion. Nor has she made any legal argument as to how the order might be the result of legal error or abuse of discretion by the trial judge. We are forced to affirm for these procedural deficiencies.

Specifically, there is no reporter’s transcript of the proceedings below, nor a settled statement of the relevant testimony. Nor is there a clerk’s transcript or appellant’s appendix. Indeed, because of the paucity of the record on appeal, we do not even know exactly how the State of South Carolina became involved in the case. It appears that because this litigation began in California between two California residents, the litigation stayed here after one of the litigants moved to another state. Not having been given any information otherwise, we proceed on the assumption California courts continue to have jurisdiction over this matter.

Because of the absence of anything resembling an adequate appellate record, we must affirm the order. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)

But we must also stress what we do not decide. The very nature of child support envisions the possibility of modification if there has been a material change of circumstances. (In re Marriage of Williams (2007) 150 Cal.App.4th 1221, 1234.) If Wesson can show a material change in future, she is free to try again.

Thus, our opinion today is without prejudice to Wesson if she brings (say, represented by an attorney or legal clinic doing pro bono work), another motion for modification based on a showing that Iandiorio has had increased income since the last child support order made. Of course, our opinion is also without prejudice to Iandorio to show no such increase should Wesson bring such a motion for modification.

Because Iandiorio has not filed a respondent’s brief, there are no costs on appeal to award, so Wesson will simply bear her own.

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

GOETHALS, J.

Filed 11/19/19 Marriage of Gilbert CA4/2

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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of MAURICE AND ISABEL GILBERT.

MAURICE GILBERT,

Appellant,

v.

ISABEL BARRIOS-GILBERT,

Respondent.

E071428

(Super.Ct.No. RID211542)

OPINION

APPEAL from the Superior Court of Riverside County. H. Ronald Domnitz, Judge (retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const) and Belinda A. Handy, Temporary Judge (pursuant to Cal. Const., art. VI, § 21). Affirmed.

Maurice Gilbert, in pro. per., for Appellant.

No appearance for Respondent.

This opinion constitutes this court’s second time addressing this matter. (In re Marriage of Gilbert (July 9, 2019, E070292) [nonpub. opn.] [2019 Cal. App. Unpub. LEXIS 4565].) Appellant Maurice Gilbert (Father) and respondent Isabel Barrios-Gilbert (Mother) share a son, who was born in August 2004. In August 2005, Father petitioned for dissolution of his marriage to Mother. The family court’s termination of Father and Mother’s marital status became effective on November 29, 2006. In July 2014, per the parties’ stipulation, the family court ordered Father to pay $338 per month for child support.

In November 2016, in a single request for an order, Mother (1) requested to modify the child support order, and (2) requested an order for a forensic accounting of Father’s business. In January 2017, the family court ordered a forensic accounting of Father’s business. (Evid. Code, § 730.) In May 2017, the family court ordered Father to pay $1,233 per month in child support. Father contends the family court erred by modifying the child support order. Father raises 16 issues on appeal. We affirm the order.

FACTUAL AND PROCEDURAL HISTORY

A. BACKGROUND INFORMATION

In August 2005, Father petitioned for dissolution of his marriage to Mother. On August 22, 2006, Mr. Isles filed a motion to be relieved as Father’s counsel. On October 19, 2006, the family court held a hearing on Mr. Isles’s motion to be relieved, and the family court granted the motion.

On June 20, 2009, a qualified domestic relations order was filed in the case by Father’s attorney, Mr. Scott. In that document, Father’s address is listed as “P.O. Box 542 San Bernardino, CA 92402.” In June 2014, Father, who was self-represented, filed an income and expense declaration listing the same address. On July 7, 2014, per the parties’ stipulation, a child support order was entered requiring Father to pay $338 per month. The July 2014 child support order was based upon Father having a monthly gross income of $1,950.

B. MODIFICATION OF CHILD SUPPORT

On November 28, 2016, in a single request for an order, Mother (1) requested the court modify the child support order, and (2) requested the court order a forensic accounting of Father’s business. Mother estimated Father’s monthly gross income was $10,000. Mother sought a forensic accounting of Father’s “business for both value and cash flow to determine [Father’s] true income.” Mother’s notice for her request reflected a hearing would be held on January 31, 2017 in Department F501. A proof of personal service reflects a registered California process server personally served Father on January 13, 2017, with Mother’s November 2016 request for a child support modification and request for a forensic accounting.

On January 31, in Department F402, the family court, in particular Judge Harmon, held a hearing in the case. Father did not appear at the hearing. The family court ordered a forensic accounting of Father’s business. (Evid. Code, § 730.) The court continued the matter to March 28 in Department F402 for Mother’s request to modify child support. Mother’s attorney drafted a combined notice of (1) the continued hearing date, and (2) the order for a forensic accounting. Connie Billings mailed the notice to Father at P.O. Box 542 San Bernardino, CA 92401.

On March 28, the family court, in particular Judge Harmon, held a hearing in the case in Department F402. Father was not present at the hearing. Mother’s attorney discussed issues with the court. The court ordered Father “to file and serve an Income and Expense Declaration 10 days prior to the next court date.” The court continued the matter to May 16 in Department F402. Mother’s attorney drafted a combined notice of (1) the continued hearing date, and (2) the order for Father to file and serve an income and expense declaration. Connie Billings mailed the notice to Father at P.O. Box 542 San Bernardino, CA 92401.

On May 16, the family court, in particular Judge Domnitz, held a hearing in the matter. Father was not present at the hearing. The family court asked how Mother arrived at the estimate that Father had a gross monthly income of $10,000. Mother’s attorney responded, “That was based on [Mother’s] knowledge from being married to him. We also hired a private investigator who has determined he’s making close to $200 an hour . . . .” The private investigator’s report reflected Father performed heating and air conditioning repair work and charged approximately $200 per hour for labor. The private investigator was O & O Investigations.

Mother explained to the family court that Judge Harmon ordered a forensic accounting of Father’s business. The family court responded, “Yeah, but [Father is] not participating.” The family court said, “Child support is based upon the printout, Xspouse, based upon the information and evidence that is in the record, and [Father’s] total lack of cooperation. The Court finds that he is earning at least $10,000 a month.” The family court ordered Father to pay $1,233 per month in child support.

On May 16, 2017, the family court directed Mother’s attorney to prepare the order for the court. Mother’s attorney responded, “Yes, I will.” Mother’s attorney filed the order approximately one year later, on May 14, 2018.

DISCUSSION

A. STANDARD OF REVIEW

“A decision modifying a child support order will be affirmed unless the trial court abused its discretion, and it will be reversed only if prejudicial error is found upon examination of the record. [Citation.] . . . In reviewing the exercise of that discretion for abuse, we consider whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citation.] When two or more inferences can reasonably be deduced from the facts, we will not substitute our deductions for those of the trial court. [Citation.] The burden is on the complaining party to establish abuse of discretion. [Citation.] The showing on appeal is insufficient if it presents a state of facts that affords only an opportunity for a difference of opinion.” (In re Marriage of Rothrock (2008) 159 Cal.App.4th 223, 229-230.)

B. ISSUE SANCTION

Father asserts the family court modified child support as an issue sanction due to Father not participating in hearings at the family court and then appealing the family court’s rulings.

The record reflects the family court modified child support based upon the changed circumstance that Father’s income increased. (Fam. Code, § 3651; In re Marriage of Bodo (2011) 198 Cal.App.4th 373, 390 [changed circumstances].) The July 2014 child support order was based upon Father’s monthly gross income being $1,950. In May 2017, the family court found Father’s monthly gross income increased to $10,000. Thus, the modification of child support was based upon the finding that Father’s income increased, which constituted a change in circumstances; the child support modification was not an issue sanction. Accordingly, we conclude the family court did not err.

C. COLLATERAL ATTACK

Father contends the modification of child support constitutes an impermissible collateral attack because there is no declaration reflecting a change in circumstances. Mother’s declaration is included in her request for order. In the declaration, Mother wrote, “[Father] is self-employed and I believe that he is now making more money.” (All caps. omitted.) Mother also submitted a private investigator’s report. The report reflected Father earned approximately $200 per hour. If Father worked 15 hours per week at a rate of $200 per hour, then he would be earning $3,000 per week or approximately $12,000 per month. Accordingly, there is evidence supporting the family court’s finding that Father earned $10,000 per month.

D. FAILURE TO REQUEST MODIFICATION OF CHILD SUPPORT

Father contends the family court erred by modifying child support because Mother only requested a forensic accounting of Father’s business—Mother did not request a modification of child support.

Mother’s made two requests on a single judicial council form (FL-300). Mother requested (1) a modification of child support, and (2) a forensic accounting of Father’s business. On the first page of the form Mother marked the boxes for (A) “Change,” (B) “Child Support,” and (C) “Other.” Next to the “Other” box, Mother wrote “forensic accounting of [Father’s] business.” On the third page of the form, Mother checked the box next to the line reading: “I want to change a current order for child support filed on (date): July 7, 2014[.] The court ordered child support as follows (specify): $338 per month payable by [Father] to [Mother].”

The form has a line that reads, “The court should make or change the support orders because (specify).” Under that line, Mother wrote, “It is believed that [Father’s] income has went up.” On the fourth page of the form, in Mother’s declaration, she wrote, “I am requesting that the court modify child support. [Father] is self-employed and I believe that he is now making more money and child support should be adjusted accordingly.” Mother repeated her request for a modification of child support throughout the judicial council form. Therefore, we conclude Mother requested a modification of child support in her request for an order.

E. DUE PROCESS

Father contends he was denied due process because Mother did not request an order modifying child support. As set forth ante, Mother’s request for an order explicitly and repeatedly sought an order modifying child support. As a result, we are not persuaded that Father was denied due process.

F. ATTORNEY OF RECORD

Father contends the family court erred by modifying child support because Father’s attorney, Mr. Isles, was not given notice of the hearing.

“[A]fter entry of a judgment of dissolution of marriage . . . or after a permanent order in any other proceeding in which there was at issue the visitation, custody, or support of a child, no modification of the judgment or order, and no subsequent order in the proceedings, is valid unless any prior notice otherwise required to be given to a party to the proceeding is served . . . upon the party. For the purposes of this section, service upon the attorney of record is not sufficient.” (Fam. Code, § 215, subd. (a).)

On August 22, 2006, Mr. Isles filed a motion to be relieved as Father’s counsel. On October 19, 2006, the family court held a hearing on Mr. Isles’s motion to be relieved, and the family court granted the motion. Father was present when the family court granted Mr. Isles’s motion to be relieved as Father’s counsel. Father contends the family court’s granting of the motion was ineffective because (1) Mother was not given notice of the order; and (2) there is not a signed order from the family court.

Father does not indicate where, within the record, he raised these issues in opposition to Mother’s request to modify child support. (Cal. Rules of Court, rule 8.204(a)(1)(C).) Because Father did not oppose Mother’s request in the family court on the basis of Mr. Isles not receiving notice, we will not address that theory in this court. (City of Scotts Valley v. County of Santa Cruz (2011) 201 Cal.App.4th 1, 28 [“As a general rule, theories not raised in the trial court cannot be raised for the first time on appeal”].)

G. FACIALLY VOID ORDER

Father contends the order for a forensic accounting is facially void because the family court lacked jurisdiction to order a forensic accounting after entry of the judgment. Father’s notice of appeal reflects he is appealing from the order modifying child support. We will review the forensic accounting order to the extent it is a discovery order and the order modifying child support is an appealable order. (See Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169 [review of discovery orders “must be relegated to a review of the order on appeal from the final judgment”].)

Evidence Code section 730 provides, in relevant part, “When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required.” It has been held that the phrase “at any time before or during the trial of an action” (Evid. Code, § 730), does not include posttrial hearings. (People v. Stuckey (2009) 175 Cal.App.4th 898, 913.) A judgment is void on its face if the court lacked personal or subject matter jurisdiction. (Svetina v. Burelli (1948) 87 Cal.App.2d 707, 709.)

Father fails to explain how an alleged error concerning the family court’s application of Evidence Code section 730 deprived the family court of jurisdiction, such that the order for a forensic accounting would be facially void. The family court had personal jurisdiction over Father in the dissolution action. Father submitted himself to the family court’s jurisdiction by petitioning for dissolution of his and Mother’s marriage. (Mikulski v. Mikulski (1969) 2 Cal.App.3d 1047, 1051.) The family court has continuing personal jurisdiction over Father for matters of child support. (Code Civ. Proc., § 410.50, subd. (b); Bergan v. Bergan (1981) 114 Cal.App.3d 567, 570-571; Leverett v. Superior Court (1963) 222 Cal.App.2d 126, 132.) The family court has subject matter jurisdiction because the order concerned support of a child following the dissolution of marriage. (Fam. Code, § 2010, subd. (c).)

Father’s assertion that the family court cannot order a forensic accounting postjudgment set forth an alleged error, but it does not explain how the family court was suddenly deprived of jurisdiction. Accordingly, we find Father’s argument to be unpersuasive.

H. NOTICE

Father asserts the hearing on the forensic accounting was continued to May 16, 2017, but not the hearing on Mother’s request to modify child support. Because the child support hearing was not continued, Father asserts he did not have notice that Mother’s request to modify child support would be heard on May 16.

On January 13, 2017, Father was personally served with notice of the hearing on Mother’s request to modify child support. The hearing was scheduled for January 31. On January 31, the family court “continue[d] out the RFO” to March 28, so the forensic accounting could be completed before the family court ruled on Mother’s request to modify support. In other words, the forensic accounting was ordered on January 31, and it was meant to provide evidence that the family court could use in deciding Mother’s request to modify child support.

On March 28, the family court ordered Father to file an income and expense declaration and continued the hearing to May 16. Because the family court ordered the forensic accounting on January 31, the only issue remaining in Mother’s request for an order was the request to modify child support. Therefore, we conclude that, on March 28, the family court continued the hearing on Mother’s request to modify child support.

I. EXPIRATION

Father contends Mother’s request for an order expired “leaving the court without any personal or subject matter jurisdiction.” Father asserts, “[California Rules of Court rule] 5.94(e) making an RFO Expire is a ‘direct’ restriction and limitation on the power of the court and the parties and is ‘Jurisdictional.’ ”

California Rules of Court, rule 5.94(e) provides that a request for order will expire at the time of the scheduled hearing if the requesting party fails to (1) serve the opposing party prior to the hearing; or (2) “[o]btain a court order to continue the hearing.” We have explained ante that the family court granted continuances for the hearing on Mother’s request to modify child support. Additionally, a proof of personal service reflects a registered California process server personally served Father on January 13, 2017, with Mother’s request for an order modifying child support. Because (1) Father was served prior to the hearing; and (2) the family court continued the hearing, Mother’s request for an order did not expire. Accordingly, the family court did not rule upon an expired order.

J. MOTHER’S ATTORNEY

1. PROCEDURAL HISTORY

On May 16, 2017, the family court announced its ruling on Mother’s request for an order modifying child support. The family court directed Mother’s attorney, Ms. Fritz, to prepare the order for the court. Ms. Fritz responded, “Yes, I will.” On October 18, 2017, Ms. Fritz filed a notice of withdrawal as attorney of record. After Ms. Fritz’s withdrawal, Mother was self-represented. On May 14, 2018, the family court filed “Findings and Order After Hearing” for the May 16, 2017, hearing. The “Findings and Order After Hearing” was prepared by Ms. Fritz.

2. ANALYSIS

Father asserts the family court lacked jurisdiction to enter the order modifying child support because “the order was filed by Ann Marie Fritz of whom is not an attorney of record nor does she have any standing.”

Father cites Code of Civil Procedure section 284 to support his argument. That statute provides, in part, “The attorney in an action . . . may be changed at any time before or after judgment . . . [¶] [u]pon the consent of both client and attorney, filed with the clerk, or entered upon the minutes.” (Code Civ. Proc., § 284, subd. (1).)

Father’s argument fails to address the fact that the family court directed Ms. Fritz to file the order pertaining to the May 16, 2017, ruling. Father does not explain why, after withdrawing as counsel, an attorney cannot comply with a court directive that was made while the attorney was the attorney of record. Father also fails to explain why, if an attorney does comply with a court directive after withdrawing as counsel, the family court would lack jurisdiction. In other words, Father appears to be asserting that because Ms. Fritz withdrew as counsel she could take no action in the case, but he fails to address the fact that the court had directed Ms. Fritz to file the order, and he fails to address the law of jurisdiction. Because Father fails to explain these matters, we find his contention to be unpersuasive.

K. FINDINGS

Father contends “findings were required.” The family court’s findings are set forth in the “Findings and Order After Hearing.” In the “Findings and Order After Hearing,” the family court found Father’s gross monthly income was $10,000; Mother’s gross monthly income was $1,733; Mother and Father shared one child; Father had the child 20 percent of the time; and Mother had the child 80 percent of the time. Accordingly, we conclude the family court made findings.

Father contends the family court’s findings are deficient because the finding of changed circumstances was not made in the “Findings and Order After Hearing.” Father cites Family Code section 4005 to support his contention. That statute provides, “At the request of either party, the court shall make appropriate findings with respect to the circumstances on which the order for support of a child is based.” (Fam. Code, § 4005.) Father does not provide a citation to where, in the record, he requested findings. (Cal. Rules of Court, rule 8.204(a)(1)(C) [record citations].) As a result, we find Father’s assertion to be unpersuasive.

Moreover, the family court found Father was earning $10,000 per month. The prior child support order was based upon Father having a monthly gross income of $1,950. Given the finding that Father’s monthly income increased by $8,050, we conclude a finding of changed circumstances is implied.

L. SIGNATURE

Father contends “Judge Domnitz was a regular judge of the court even on assignment, [citation] and once leaving office under GC1770(g) the court was without any jurisdiction to sign or enter the order.” We understand Father’s argument as asserting Judge Harmon lacked authority to sign the May 14, 2018, “Findings and Order After Hearing” that pertained to the May 16, 2017, ruling made by Judge Domnitz.

“[P]arties [have] the right to have ‘the judge who hears the evidence . . . decide the case.’ ” (Armstrong v. Picquelle (1984) 157 Cal.App.3d 122, 128.) Father does not explain in what manner the order signed by Judge Harmon does not match the ruling made by Judge Domnitz. Therefore, we conclude the Findings and Order After Hearing reflects Judge Domnitz’s ruling. As a result, the judge who reviewed the evidence decided the case.

M. PREJUDICE

Father asserts, “There is no greater prejudice than allowing one party to ask for an order verbally, the court has no jurisdiction to do so and the party could ask for any order it desired without notice to the other party, custody, sanctions and so on.” Father, citing California Rules of Court, rule 5.94(e), asserts, “This jurisdictional right is a substantive right of the Petitioner and an absolute prejudice to not follow the rules, thus, depriving the Petitioner of his right to not have to respond.”

Father’s argument lacks clarity, but we infer Father is asserting he suffered prejudice due to the errors he alleges the family court made. (Code Civ. Proc., § 475 [reversals are only permitted upon showing of prejudice].) We have concluded ante that Father failed to demonstrate any error; therefore, we do not address the issue of prejudice.

N. 2017 MOTIONS

1. PROCEDURAL HISTORY

The hearing on Mother’s request to modify child support occurred on May 16, 2017. The family court announced its ruling at that hearing. On July 17, 2017, Father filed a request for order with various motions attached to it, such as motions to quash and motions to vacate. The family court ruled on Father’s request for order on October 12, 2017. Father appealed from the ruling on his request for order. This court issued an opinion affirming the order. (In re Marriage of Gilbert, supra, 2019 Cal. App. Unpub. LEXIS 4565.) Approximately one year after the ruling, on May 14, 2018, Mother’s attorney filed the order modifying child support. Father filed the instant appeal from that order modifying support.

2. ANALYSIS

Father raises several issues pertaining to the family court’s ruling on his request for an order. First, Father contends the family court erred by denying his motions to quash, which were attached to his request for an order. Second, Father contends there were various errors in Mother’s opposition to Father’s request for an order. For example, Father asserts Mother made “no arguments as to the motions to vacate, Quash or strike, only as to the motion to Quash Personal Service.” Third, Father contends that it appears the family court denied his various motions based upon the statements of counsel “and statements of counsel is not evidence [sic].”

This court reviewed the family court’s ruling on Father’s request for an order in a separate appeal. (In re Marriage of Gilbert, supra, 2019 Cal.App.Unpub.LEXIS 4565, *12-*14.) We cannot review the family court’s ruling a second time. (In re Marriage of Garcia (2017) 13 Cal.App.5th 1334, 1345 [issue preclusion “ ‘prohibits the relitigation of issues argued and decided in a previous case’ ”].) Therefore, we do not address the merits of the issues pertaining to the family court’s ruling on Father’s request for an order.

O. 2018 MOTION TO VACATE

1. PROCEDURAL HISTORY

On June 11, 2018, Father filed a request for order seeking an order vacating the modification of child support. Father asserted, “[T]he order was filed by Ann Marie Fritz of whom is not an attorney of record nor does she have any standing.” On June 29, Mother submitted a declaration. Mother’s declaration concerned accusations that Father physically abused their son, and that the child welfare agency failed to adequately investigate the allegations of abuse.

On July 5, Ms. Fritz again became Mother’s attorney of record. On July 23, Ms. Fritz submitted a responsive declaration on behalf of Mother. Ms. Fritz signed the declaration on behalf of Mother, who approved of the declaration over the telephone. In the declaration, Mother asserted Father’s motion to vacate was untimely because he was seeking to vacate the ruling made on May 16, 2017, rather than the “Findings and Order After Hearing” filed on May 14, 2018.

On September 17, Father filed a reply. Father asserted the July 23rd declaration “does not set forth any facts as a basis, factual or legal, against the motion.” Further, Father asserted the July 23rd declaration was inadmissible because (1) it was signed by Ms. Fritz, rather than Mother; (2) there was no affidavit explaining why Mother could not sign the declaration; and (3) there was no affidavit reflecting Mother reviewed the declaration and believed the contents to be true.

On September 27, the family court, in particular Commissioner Handy, held a hearing on Father’s request for an order vacating the order modifying child support. The family court said Judge Harmon already denied Father’s motion to vacate. The family court asked Father what order he was seeking to have vacated via his June 11, 2018, request for order. Father said he was seeking to have the May 14, 2018, order vacated. The family court responded, “So it’s already been heard is what I’m trying to say to you.” Father replied, “No.”

The family court explained that Judge Harmon already ruled on Father’s motion to vacate the May 16, 2017, ruling to modify child support. Father asserted the family court lacked jurisdiction to enter the May 14, 2018, Findings and Order After Hearing. The family court asked Father if the Findings and Order After Hearing matched the ruling made on May 16, 2017. Specifically, the family court said, “So tell me what part of that is incorrect. Not jurisdiction, you tell me what part is not an order that was made on May 16, 2017.” Father replied, “I wouldn’t be able to dispute that.”

The family court explained that Judge Harmon already ruled on Father’s motion to vacate the May 16, 2017, ruling. The family court explained that the May 14, 2018, Findings and Order After Hearing matched the May 16, 2017, ruling. The family court told Father, “You don’t get another bite at the apple by filing a new request for order.”

Father asserted Ms. Fritz lacked standing to file the Findings and Order After Hearing because she was not Mother’s attorney of record on May 14, 2018. The family court responded, “Right. Afterwards, but on May 16, 2017, she was the attorney of record, right?” Father replied, “Yes.” The court said, “So she has every authority to finish out whatever she needs to do on that case.”

The family court explained, “In this case, you then in the interim before a findings and orders was filed, you filed to vacate that May 16, 2017. Judge Harmon heard from you, and he denied your request. That was only some months later. In June then of 2018, you have now filed a new request for order to vacate the findings and orders that you just told me adequately characterized the orders that were made on May 16, 2017. Therefore, your request is denied. . . . [¶] . . . You’ve had two shots now at the apple to vacate that May 16, 2017 order. It probably should not have even been entertained today, because Judge Harmon has already heard that. That was res judicata.”

2. ANALYSIS

Father contends the family court erred by denying his June 2018 motion to vacate because (1) Mother did not sign the responsive declaration; (2) there is no affidavit explaining why Mother failed to sign the declaration; (3) there is no affidavit setting forth Mother’s belief that the contents of the declaration are true; and (4) the declaration “does not set forth any facts as a basis, factual or legal, against the motion.”

The family court denied Father’s request for an order vacating the order modifying child support because the request was res judicata. In other words, the family court did not rely on the responsive declaration when ruling on Father’s request. Father fails to explain how he was prejudiced by alleged errors in the responsive declaration when the family court did not utilize the declaration in reaching its ruling. Because Father does not demonstrate prejudice and does not address the issue of res judicata, we will not reverse the order. (Code Civ. Proc., § 475 [prejudice is required for reversal].)

P. NEW EVIDENCE

Father contends there are “two new pieces of evidence,” and therefore “[Father] is allowed to put forward a motion to vacate the order upon the extrinsic fraud [sic].” This court cannot advise Father regarding motions he intends to file. (People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912 [“The rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court”].) Therefore, we do not reach the merits of Father’s contention.

DISPOSITION

The order is affirmed. Appellant, Maurice Gilbert, is to bear his own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

RAPHAEL

J.

Filed 11/19/19 Jones v. Southern Cal. Addiction Center, Inc. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

KRISTY JONES,

Plaintiff and Respondent,

v.

SOUTHERN CALIFORNIA ADDICTION CENTER, INC.,

Defendant and Appellant.

G056906

(Super. Ct. No. 30-2018-00972679)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Linda S. Marks, Judge. Reversed and remanded with directions. Motion to dismiss appeal denied. Motion for sanctions denied. Appellant’s request for judicial notice denied. Respondent’s request for judicial notice granted.

Law Offices of Michael Leight, Michael Leight, and Michelle Leight for Defendant and Appellant.

Atkinson, Andelson, Loya, Ruud & Romo, and Christopher S. Andre for Plaintiff and Respondent.

* * *

“Much Ado About Nothing” is a famous work of Shakespeare. It is also an accurate description of this appellate dispute—which ostensibly concerns the propriety of a court order allowing plaintiff Kristy Jones the right to inspect the books, records, and documents of Southern California Addiction Center (SCAC). We say “ostensibly” because the parties agree the trial court’s initial order allowing the inspection was overbroad since it failed to exclude documents that were protected by the attorney-client privilege. Thus, Jones did not oppose SCAC’s subsequent motions in the trial court to cure that overbreadth, which were heard while this appeal was pending. The parties then agreed to the trial court’s curative orders which rendered this appeal moot.

But Jones’s counsel refused to sign SCAC’s proposed stipulation to dismiss the appeal, arguing that SCAC was free to—and should—dismiss its own moot appeal. SCAC then concluded that Jones’s refusal to concede the merits of all its appellate arguments demonstrated the appeal was not moot.

In lieu of the stipulation to dismiss the appeal, we now have Jones’s motion to dismiss, accompanied by her motion for sanctions, both of which are opposed by SCAC. The parties have also fully briefed the case on the merits, with SCAC encouraging this court to address what it claims is “an issue of broad public interest.” Both sides have asked us to take judicial notice of documents which were not before the trial court at the time of the challenged ruling. All of this fuss regarding an order that both sides agree was overbroad as initially issued, and also agree has since been satisfactorily modified to correct that overbreadth. As we said, “much ado.”

We deny Jones’s motion to dismiss because—in a surprise twist worthy of the Bard himself—the appeal is not moot. Not for the reason suggested by SCAC, but because the trial court had no jurisdiction to stay or modify an order that was already pending on appeal. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189 [any proceeding “directly or indirectly seek[ing] to ‘enforce, vacate or modify [the] appealed judgment or order[ ]’” is subject to the automatic stay imposed by Code of Civil Procedure section 916]; Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629 [“The trial court’s power to enforce, vacate or modify an appealed judgment or order is suspended while the appeal is pending”].)

Consequently, the trial court’s subsequent orders staying and then granting relief from the portion of the order allowing inspection of privileged documents were void. Having concluded the appeal is not moot, we likewise deny Jones’s motion for sanctions, which is based entirely on the assertion that the appeal is moot.

Because both sides also agree the trial court’s void orders would have satisfactorily addressed the overbreadth of the initial order appealed from, we need not delve further into the merits of that order. Instead, we remand the case to the trial court with specific directions to modify its order.

DISPOSITION

The order is reversed, and the case is remanded to the trial court with directions to modify its order in terms identical to those it earlier attempted to impose during the pendency of this appeal. The parties are to bear their own costs on appeal.

GOETHALS, J.

WE CONCUR:

ARONSON, ACTING P. J.

IKOLA, J.

Filed 11/20/19 Hristopoulos v. Giannaris CA1/4

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 FOUR

MARIA HRISTOPOULOS,

Plaintiff and Respondent,

v.

NICK GIANNARIS,

Defendant and Appellant.

A154868

(San Mateo County

Super. Ct. No. FAM119610)

We are familiar with the background of this family law case through our review of four prior appeals. (Hristopoulos v. Giannaris, A152099 & A152239, filed Jan. 28, 2019; A154077 & A154773, filed June 17, 2019.) In the present appeal, Nick Giannaris (Father) challenges a prefiling order declaring him a vexatious litigant. (Code Civ. Proc., § 391.7.) We shall affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Father and respondent Maria Hristopoulos (Mother) are the parents of one child (Minor), who lives with Mother. They have been litigating issues of custody, visitation, and child support since 2012. Father has been representing himself in these proceedings.

On May 14, 2018, the trial court sought to declare Father a vexatious litigant, apparently on its own motion, and set a hearing on the matter. On July 6, the trial court declared Father a vexatious litigant and issued a prefiling order prohibiting him from filing any new litigation without approval of the presiding judge or justice.

In the accompanying findings, the trial court explained that Father had filed 13 requests for order (RFO) while in propria persona. It considered 11 of those unmeritorious or vexatious. They are as follows: (1) an RFO filed November 17, 2017 seeking appointment of counsel for Minor, which the court denied; (2) an RFO filed January 4, 2018 seeking conditional unsealing of court records to allow investigation of Mother’s counsel, which the court denied as unnecessary; (3) an RFO filed January 8, 2018 seeking judicial review of Father’s driver’s license suspension, which the court denied; (4) an RFO filed January 12, 2018 seeking designation of the action as complex and assigning a single judicial officer, which the presiding judge denied; (5) an RFO filed January 16, 2018 seeking sanctions against Mother for fraud, perjury, and malice, which was denied on the ground the relief sought was not authorized by law; (6) an RFO filed March 19, 2018, seeking modification of custody and visitation orders and an assessment, which was almost identical to requests the trial court had denied just three weeks earlier; (7) an RFO filed April 6, 2018 seeking to compel Mother to respond to third party subpoenas that Father had issued but never served on the third parties, which was denied; (8) an RFO filed April 19, 2018 seeking reconsideration of the denial of Father’s motion for complex designation, which the court found was stayed by Father’s appeal of the order; (9) Father’s refusal to stipulate to a commissioner hearing a child support modification motion filed April 30, 2018, although he had previously entered an all-purpose stipulation to a commissioner hearing such matters; (10) an RFO filed May 10, 2018 seeking sanctions, which was nearly identical to an RFO filed the following day; the court had not yet ruled on the May 10, 2018 request; and (11) an RFO filed May 11, 2018 (erroneously referred to in the order as May 10, 2018) seeking sanctions under section 128.7 and sanctions for fraud, perjury, and malice, which was denied as seeking relief not authorized by statute

Father has appealed from the prefiling order.

DISCUSSION

The vexatious litigant statutes (§§ 391–391.8) are “designed to curb misuse of the court system by those persistent and obsessive litigants who, repeatedly litigating the same issues through groundless actions, waste the time and resources of the court system and other litigants.” (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169–1170.) “ ‘Vexatious litigant’ ” is defined to include a person who, “[i]n any litigation while acting in propria persona, 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.” (§ 391, subd. (b)(3).) One of the remedies provided by the statutory scheme allows a court to enter a “prefiling order” prohibiting a vexatious litigant from filing any new litigation in propria persona—including a motion or application for an order under the Family Code—without first obtaining leave from the presiding judge or presiding justice of the court. (§ 391.7, subds. (a) & (d).)

We presume an order declaring a litigant vexatious is correct, and uphold it if supported by substantial evidence. (Holcomb v. U.S. Bank. Nat. Assn. (2005) 129 Cal.App.4th 1494, 1498–1499.) As appellant, Father has the burden to show error with an adequate record (Cypress Security, LLC v. City of County of San Francisco (2010) 184 Cal.App.4th 1003, 1014 (Cypress Security)), and we presume the evidence supports the judgment (Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003). The appellant must support his arguments by references to the record, including page citations: “ ‘An appellate court is not required to search the record to determine whether or not [it] supports appellants’ claim of error.’ ” (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140–1141.) A party acting in propria persona is subject to the same rules on appeal as one represented by counsel. (Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 628; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247.)

Father has not met his burden to show error. First, Father does not provide record citations for most of the RFO’s or other pleadings on which the trial court based its finding that he is a vexatious litigant and, as far as we can tell, the appellate record does not contain them. We have no basis to conclude the trial court erred in finding them unmeritorious. (See Cypress Security, supra, 184 Cal.App.4th at p. 1014 [appellant has burden to show error with adequate record].)

Moreover, the trial court relied on 11 RFO’s and other pleadings to find Father a vexatious litigant, but Father’s specific challenges are limited to two of them. Neither challenge is persuasive. One of the pleadings Father contends is meritorious is a motion to “ ‘quash’ ” service of an order. But the court explained that Father had received some of the relief he requested in that motion, and therefore the court did not find it unmeritorious or rely on it in finding Father a vexatious litigant. It does not assist Father.

The other pleading Father contends was meritorious is a motion seeking review of the suspension of his driver’s license by San Mateo County’s Department of Child Support Services (DCSS). He argues that he has a disability that requires him to use an automobile for his daily activities, and that he sought review of the suspension in good faith at the suggestion of DCSS. Even assuming this is true, Father has not demonstrated that his request, which the trial court denied, had legal merit. And, in any case, this request was only one of 11 that the court relied on to find Father a vexatious litigant. (See People v. JTH Tax, Inc. (2013) 212 Cal.App.4th 1219, 1237 [“ ‘one good reason is sufficient to sustain the order from which the appeal was taken’ ”].) We are not persuaded the court would have reached a different result if it had taken into account only ten, rather than 11, unmeritorious motions.

In affirming the trial court’s order declaring appellant a vexatious litigant, we emphasize that the order does not close the courthouse doors to him. Where he has a meritorious request for orders in his family law case, appellant may seek and obtain the permission from the presiding judge of the Superior Court of San Mateo County (or his/her designee) to litigate an issue. (§391.7, subd. (a).)

Father’s brief on appeal also purports to challenge a number of other orders of the trial court. Those matters are not before us in this appeal from the vexatious litigant order, and we do not consider them.

DISPOSITION

The July 6, 2018 prefiling order is affirmed. Maria Hristopoulos shall recover her costs on appeal.

_________________________

TUCHER, J.

WE CONCUR:

_________________________

POLLAK, P. J.

_________________________

STREETER, J.

Hristopouls v. Giannaris (A154868)

Filed 11/20/19 Sanchez v. Sanchez CA2/2

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 TWO

YESENIA SANCHEZ, as Trustee, etc.,

Plaintiff and Respondent,

v.

JOSE SANCHEZ et al.,

Defendants and Appellants.

B293128

(Los Angeles County

Super. Ct. No. 17STPB02854)

APPEAL from a judgment of the Superior Court of Los Angeles County. Lesley C. Green and Barbara R. Johnson, Judges. Affirmed.

Shaw Koepke & Satter and Jens B. Koepke for Defendants and Appellants.

Wright Kim Douglas, David M. Kim and Abigail J.R. McLaughlin; Benedon & Serlin, Gerald M. Serlin and Malinda W. Ebelhar for Plaintiff and Respondent.

Appellants Jose Sanchez (Jose) and Noemi Sanchez (collectively, appellants) appeal from the judgment entered against them and in favor of respondent Yesenia Sanchez (Yesenia, or respondent), as trustee of the Celia Sanchez Trust dated December 22, 2006 (the Trust). We affirm the judgment.

BACKGROUND

Celia Sanchez (Celia) created the Trust in December 2006, naming her daughter Yesenia as the trustee, her son Jose as the successor trustee, and each of her six children, including Yesenia and Jose, as beneficiaries. The principal Trust asset is the Pomona, California home in which Celia lived.

On July 16, 2016, Celia executed two grant deeds for the Pomona property. The first grant deed, signed by Celia as the trustee of the Trust, conveyed title to herself as an individual. The second grant deed, signed by Celia as an individual, conveyed the property to Jose.

Celia died on January 3, 2017. On February 7, 2017, the two grant deeds Celia executed in July 2016 were recorded.

Probate Code section 16061.7 notice

On March 20, 2017, attorneys for Yesenia, as trustee of the Trust, sent by certified mail a notice pursuant to Probate Code section 16061.7 to all the Trust beneficiaries. The notice included a copy of the Trust document and advised the recipients of the 120-day deadline for contesting the terms of the Trust:

“If you want to contest the terms of the Trust itself, then there are strict deadlines on a trust contest. Specifically, you may not bring an action to contest the trust more than 120 days from the date this Notification by the Trustee is served upon you or 60 days from the date on which a copy of the terms of the trust is mailed or personally delivered to you during that 120 day period, whichever is later.”

Probate Code section 850 petition

On April 3, 2017, Yesenia filed a petition under section 850, subdivision (a)(3)(B), alleging that appellants had exerted undue influence on Celia to obtain title to the Pomona property and seeking to quiet title in the Trust. A hearing on the petition was set for June 12, 2017.

On June 9, 2017, Yesenia’s attorney, Abigail McLaughlin, received a phone call from Torrence Howell, counsel for appellants. Howell advised McLaughlin that he had a conflict with the June 12, 2017 hearing date, and requested a continuance. McLaughlin agreed to a two-week continuance and advised the trial court of Howell’s request. The court continued the hearing to August 1, 2017, and set a July 10, 2017 deadline for appellants to file an objection and response to the section 850 petition. McLaughlin served written notice of the continued hearing date and the July 10, 2017 deadline for filing an objection.

Appellants did not file an objection until July 31, 2017. The objection was not verified as required by section 1021.

At the August 1, 2017 hearing on the petition, Howell explained the reason for the late filing was a family emergency that required him to be out of the state. The court ordered Howell to file a verification to the objection as well as a supplemental filing to “determine if there is good cause to allow the late filing.” Yesenia’s counsel advised the court that the 120-day deadline for contesting the Trust had already expired, and that the objection appellants had filed challenged the validity of the Trust and was therefore essentially a Trust contest. The court told counsel that if Yesenia wanted a ruling on that issue, she would have to file an appropriate motion. The court then continued the hearing to October 10, 2017.

Appellants did not file verifications to their original objection. Instead, they filed a supplemental objection that did not address the 120-day limitations period. Concurrently with their supplemental objection, appellants filed a declaration by Howell, stating that he was out of the office on a preplanned vacation from June 26 to July 9, 2017, his office had miscalendared the date for filing the original objections, and he did not know until July 31, 2017, that the objections had not been timely filed.

Motions to strike

In response, Yesenia filed motions to strike appellants’ original objection filed on July 31, 2017, and the supplemental objection filed on August 31, 2017. Yesenia argued that appellants’ original and supplemental objections challenged the validity of the Trust and were therefore trust contests barred by the 120-day limitations period in section 16061.8. Yesenia further argued that the July 31, 2017 objection was unverified and untimely, and that appellants had failed to show good cause for the late filing.

Appellants opposed the motions to strike, arguing that the trust document attached to the April 3, 2017 petition was invalid, rendering the Trust itself invalid. Appellants also argued that under Code of Civil Procedure section 473, they should not be prejudiced by the late filing of their objection to the petition, which was the fault of their attorney Howell.

Order granting motions to strike

At the November 2, 2017 hearing on the motions to strike, appellants’ attorney Howell requested relief under Code of Civil Procedure section 473. The trial court denied the request, noting that the statute did not apply because appellants had received notice of the 120-day limitations period for filing a trust contest and had failed to do so within that period. Howell responded that he was “unaware of” of the statute of limitations, as he had never been provided a copy of the March 20, 2017 notice served on appellants pursuant to section 16061.7.

The trial court granted the motions to strike, concluding that both the objection and response appellants filed on July 31, 2017, and the supplemental objection and response filed on August 31, 2017, were trust contests barred by the 120-day limitations period in section 16061.8. The trial court rejected appellants’ request for relief under Code of Civil Procedure section 473, finding that they had not complied with the statutory requirements for relief and that any amendment could not cure the failure to timely file their objection.

After entry of the order granting the motions to strike, Yesenia filed and served, on January 5, 2018, a request for entry of default.

Code of Civil Procedure section 473 motion to set aside

On January 25, 2018, appellants filed a motion under Code of Civil Procedure section 473 to set aside the order granting the motions to strike. In support of their motion, appellants submitted a second declaration by Howell explaining why he had missed the July 10, 2017 court-ordered deadline for filing an objection to the section 850 petition. Appellants denied that their initial or supplemental objections were the equivalent of a trust contest, and argued that the failure to file a timely objection by July 10, 2017, was solely the fault of Howell.

Yesenia opposed the motion, arguing that relief under Code of Civil Procedure section 473 was not warranted, as the order granting the motions to strike was based on appellants’ failure to timely contest the validity of the Trust within the 120-day statutory period, and that the motion for relief was an improper motion for reconsideration.

The trial court denied appellants’ motion, finding that it was “an improper motion for reconsideration under Code of Civil Procedure section 1008” that presented no new facts or law not considered at the November 2, 2017 hearing on the motions to strike. The trial court further found that the November 2, 2017 order granting the motions to strike “was a ruling on the merits and was not the result of mistake, inadvertence, surprise or excusable neglect.”

Yesenia and her attorney submitted declarations in support of default judgment. Appellants filed evidentiary objections to those declarations and appeared at the March 13, 2018 default prove-up hearing. After taking the matter under submission, the trial court ordered that the grant deeds purporting to transfer the Pomona property from the Trust to Jose were void ab initio because of Celia’s lack of capacity; that Jose has no title or right to possession of the Pomona property; and that title and right to possession of the Pomona property is vested in the trustee, on behalf of the Trust. Yesenia requested and was awarded attorney fees and costs under Welfare and Institutions Code section 15657.5.

Judgment was entered in Yesenia’s favor on June 1, 2018. This appeal followed.

DISCUSSION

Code of Civil Procedure section 473 accords a court discretion to relieve a party from “a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b).) The statute does not provide relief, however, from “errors that result in the running of the applicable statute of limitations. [Citations.]” (Life Savings Bank v. Wilhelm (2000) 84 Cal.App.4th 174, 177.)

Section 16061.7 requires the trustee of a revocable trust that becomes irrevocable upon the settlor’s death to serve a written notice on the trust beneficiaries advising them that they may not bring an action to contest the trust more than 120 days from the date of the notice. Section 16061.8 precludes a person on whom notice is served pursuant to section 16061.7 from bringing an action to contest the trust more than 120 days after the date of service. The statute provides in part: “No person upon whom the notification by the trustee is served pursuant to this chapter . . . may bring an action to contest the trust more than 120 days from the date the notification by the trustee is served upon him or her, or 60 days from the date on which a copy of the terms of the trust is delivered pursuant to Section 1215 to him or her during that 120-day period, whichever is later.” (§ 16061.8.)

The record shows that Yesenia served appellants by certified mail with a notice pursuant to section 16061.7 on March 20, 2017. Appellants had until July 18, 2017, in which to file a contest to the Trust. (§ 16061.8.) Their failure to do so was the basis for the trial court’s order granting the motions to strike the objection and response appellants filed on July 31, 2017, and their supplemental objection and response filed on August 31, 2017.

Appelllants fail to address the statute of limitations issue in their opening brief on appeal. Although appellants belatedly attempt to do so in their reply brief, we decline to consider arguments not raised in their opening brief. The rule is this: “‘A point not presented in a party’s opening brief is deemed to have been abandoned or waived. [Citations.]’ [Citation.]” (Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1754, fn. 1.) Appellants accordingly fail to establish any error in the trial court’s November 2, 2017 order granting the motions to strike.

Appellants also fail to establish any error in the order denying their motion, under Code of Civil Procedure section 473, to set aside the November 2, 2017 order granting the motions to strike. The record shows that the trial court considered and rejected appellants’ claim of a right to relief under Code of Civil Procedure section 473 when it granted the motions to strike. Motions for relief under Code of Civil Procedure section 473 are subject to the requirements of Code of Civil Procedure section 1008. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833.) Those requirements include submitting an affidavit in support of the motion, identifying “what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).) No such affidavit accompanied appellants’ moving papers. The trial court did not err by denying appellants’ motion under Code of Civil Procedure section 473 as an improper motion for reconsideration.

DISPOSITION

The judgment is affirmed. Respondent is awarded her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

__________________________, P. J.

LUI

__________________________, J.

ASHMANN-GERST

Filed 11/20/19 Spellman v. Chipotle Mexican Grill, Inc. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CHRISTINA SPELLMAN,

Plaintiff and Appellant,

v.

CHIPOTLE MEXICAN GRILL, INC.,

Defendant and Respondent.

G056221

(Super. Ct. No. 30-2015-00775878)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Glenn R. Salter, Judge. Reversed.

Dordick Law Corporation, Gary A. Dordick; California Lawyers Group, Michael S. Brown; and The Ehrlich Law Firm and Jeffrey I. Ehrlich for Plaintiff and Appellant.

Messner Reeves, Allan Clayborn, Kendra N. Beckwith; O’Melveny & Myers, Sabrina Strong, Dimitri D. Portnoi, Kyle Grossman; Kendra N. Beckwith and Michelle L. Harden pro hace vice for Defendant and Respondent.

* * *

Christina Spellman and two friends became ill shortly after eating chicken purchased at a Chipotle restaurant. While her two friends only suffered from a single bout of diarrhea, Spellman suffered from diarrhea, vomiting, chills and later developed serious physical ailments. Spellman sued Chipotle, alleging she suffered food poisoning after consuming the chicken bowl. Chipotle moved for summary judgment, arguing Spellman lacked evidence the chicken bowl caused her illness. The trial court agreed, concluding that no triable issue exists on the issue of causation because Spellman’s medical expert acknowledged he could not determine the specific pathogen that caused Spellman’s illness.

Spellman contends the trial court erred in granting summary judgment. She argues Chipotle failed to meet its burden to show she cannot establish causation at trial. Even had Chipotle met its burden, Spellman contends she produced evidence showing a triable issue exists on causation. We conclude a plaintiff in a food poisoning case need not determine the actual foodborne pathogen that caused the plaintiff’s illness to show a triable issue exists on causation. We further conclude a jury could infer causation from Spellman’s evidence. Accordingly, we reverse.

I

FACTUAL AND PROCEDURAL BACKGROUND

On March 9, 2015, Spellman filed a complaint against Chipotle, alleging causes of action for negligence, strict product liability, negligent product liability and breach of implied warranty. According to the complaint, on March 10, 2013, Spellman suffered food poisoning from eating at a Chipotle restaurant in Fullerton. Specifically, the complaint alleged that “[a]s a result of ingesting the unclean, tainted, dirty, adulterated, contaminated and diseased food stuffs at CHIPOTLE, Plaintiff suffered food poisoning and the ill-effects thereof, including, diarrhea, chills, pain and discomfort, vomiting, dehydration, colitis, and other serious physical ailments.”

Chipotle filed a motion for summary judgment, arguing Spellman’s claims lacked merit “since there is no triable issue of material fact both from a factual standpoint as well as a medical causation standpoint that the proximate cause of Plaintiff’s illness was the chicken bowl from Chipotle which she consumed on or about March 10, 2013.” Chipotle argued Spellman’s “theory of causation is fundamentally flawed” because her self-diagnosed theory that she suffered foodborne illness after contracting Clostridium difficile (C. diff) from eating a chicken bowl she purchased at Chipotle is biologically implausible. In addition, Chipotle argued Spellman could not prove she contracted a foodborne illness from her Chipotle meal because her symptoms occurred two hours later, which is too soon to suggest the illness was caused by the meal, and she tested negative for Salmonella, Campylobacter, or Shigella, which are common causes of foodborne illness.

In its Separate Statement of Undisputed Material Facts, Chipotle set forth the following facts. On March 10, 2013, Spellman and two friends purchased chicken bowls at a Chipotle restaurant in Fullerton. After eating the meal, Spellman’s two friends had a single episode of diarrhea. Neither friend sought medical treatment.

Within hours after eating her Chipotle meal, Spellman became ill. One friend testified Spellman complained her stomach was hurting within two hours of consuming her meal, and the other friend testified Spellman made her complaint one to four hours after eating the meal. Three days later, on March 13, 2013, Spellman went to an emergency room (ER), complaining of vomiting, diarrhea, vaginal bleeding and chills. Spellman self-diagnosed herself with a C. diff infection. Laboratory testing revealed Spellman had not contracted Salmonella, Campylobacter, or Shigella, which are common causes of foodborne illness. Spellman’s doctor diagnosed her with gastroenteritis (“stomach flu”) and discharged her.

On March 29, 2013, Spellman returned to the ER. Laboratory testing again revealed Spellman had not contracted Salmonella, Campylobacter, or Shigella. Spellman’s doctor diagnosed her with abdominal colic, nausea, irritable bowel syndrome, and hypertension.

On April 3, 2013, Spellman tested positive for C. diff. Subsequent notes in Spellman’s medical records indicate doubts about the C. diff diagnosis. For example, a note for Spellman’s August 21, 2013, admission questioned the diagnosis of C. diff and listed “a differential diagnosis of irritable bowel syndrome[,] inflammatory bowel disease, somatization disorder, Munchausen syndrome and malingering.”

In support, Chipotle submitted a declaration from Lee Harrison, M.D., a medical expert. Dr. Harrison stated that “[w]hile it is theoretically possible to become ill within a short period of time following a meal, in the vast majority of cases, the illness is actually related to food consumed 12 to 48 or more hours prior to the onset of symptoms. Particularly where the presenting symptom is diarrhea, the onset of symptoms is more than six hours and generally more than 12 hours after consuming the implicated food. With regards to the [C. diff] incubation period, it has not been well studied but is believed to be a median of 2-3 days after acquisition of the organism.” Dr. Harrison also noted”[t]here are no known cases in the United States in which C. difficile has been specifically linked to foodborne illness.” Based on the onset of Spellman’s symptoms and her negative test for Salmonella, Campylobacter and Shigella, Dr. Harrison opined “there is no evidence that [Spellman’s illness] was caused by food she consumed from Chipotle on March 10, 2013.” He also opined the Chipotle meal “did not, to a probability, cause the C. difficile detected in April 2013.”

Spellman opposed the motion for summary judgment, arguing Chipotle failed to meet its burden to show that Spellman could not establish she suffered a foodborne illness from eating the chicken bowl she purchased at Chipotle. Spellman noted that Chipotle’s expert Dr. Harrison acknowledged it was possible to become ill within hours following consumption of a tainted meal, and Harrison’s declaration failed to negate Spellman’s general allegations that Chipotle served her “contaminated diseased food.” Alternatively, Spellman argued that even if Dr. Harrison’s opinion satisfied Chipotle’s burden, Spellman could meet her burden to show a triable issue exists. Spellman asserted that a trier of fact reasonably could infer the Chipotle chicken bowl she consumed caused her illness because: (1) a cluster of three individuals became ill a few hours after consuming the chicken bowls; (2) none recalled eating anything else before becoming ill; (3) the onset of their illness is consistent with exposure to toxins produced by a number of foodborne bacteria; and (4) one individual found a strand of hair in one of the chicken bowls, indicating at least one meal was contaminated.

In a supporting declaration, Jeffrey Eliot Galpin, M.D., opined that “it was more probable than not that a cluster of three individuals, including . . . Spellman and her two companions, . . . contracted gastroenteritis as a direct and proximate result of their consumption of harmful food products purchased from the Chipotle restaurant . . . on or about March 10, 2013.” After noting “there is no way to determine now exactly which toxin or pathogen caused gastroenteritis in this cluster of three young women,” Dr. Galpin further opined that, “to a reasonable degree of medical probability,” that the quick onset of symptoms was consistent with a number of foodborne toxin-producing bacteria, including Staphylococcal aureus, Baccillus cereus and some strains of Campylobacter and E. Coli. Dr. Galpin opined that Spellman’s laboratory testing had “very limited relevance in determining the cause of Plaintiff’s gastroenteritis following the consumption of the Chipotle food product” because no information was provided about what bacterial strain was tested.

Dr. Galpin explained the disparity in illness between Spellman and her two companions likely resulted from the medication Spellman was taking for preexisting medical conditions which led to development of an “abnormal flora in her bowel” that made her “an ideal candidate for development of a superinfection from something like C. difficile.” He further explained that “the Chipotle-related gastroenteritis created a material imbalance in [Spellman’s] bowel flora, which made her more vulnerable to C.Diff-type infections and compromised her ability to absorb essential nutrients and vitamins from the foods she was eating.” The deficient absorption caused Spellman’s severe symptoms. Dr. Galpin acknowledged that “[t]here is no definitive way to say, one way or another, whether Plaintiff contracted C. diff from the Chipotle food product,” although “[i]t is certainly possible.”

In reply, Chipotle argued that Spellman cannot show causation because her only evidence is that the gastroenteritis occurred after consuming the Chipotle meal, which is insufficient as a matter of law. Chipotle noted that because Spellman’s friends only had a single bowel movement following consumption of the Chipotle meals, they did not have diarrhea, which is defined for foodborne illness epidemiologic purposes as three or more bowel movements within 24 hours. Chipotle further noted the chicken bowl was never tested, and that Spellman never tested positive for any foodborne pathogen.

At the hearing on Chipotle’s summary judgment motion, the trial court expressed concerns that Dr. Galpin’s declaration failed to “cover all of the facts in this particular case.” Specifically, Dr. Galpin did not show a link between the gastroenteritis and the Chipotle food product. The court continued the matter to allow each party to submit additional declarations.

Spellman submitted a declaration from L. Scott Donnelly, a food safety consultant, declarations from her two friends, and a supplemental declaration from Dr. Galpin. Based on his review of Chipotle’s food preparation practices, which Chipotle described in its 2012 Annual Report and Proxy Statement, Donnelly opined that “the foods prepared in Chipotle restaurants in or about March of 2013 were of much higher risk than other quick serve type of restaurants” for several reasons. First, “the lack of centralized kitchen/cooking facility” left food safety oversight to individual restaurants which can find it difficult due to high employee turnover. Second, the considerable amount of employee interaction with the food increased the risk of contamination by employees. Finally, the temperature control required for cooking cold or raw food to the correct temperature increased the risk of creating a favorable environment for foodborne pathogen. Donnelly noted the Food and Drug Administration (FDA) has stated that Staphylocus aureus outbreaks have been linked to foods that require a lot of handling or were not kept at the proper temperatures. Donnelly further noted the Orange County Health Agency found the Fullerton restaurant at issue did not maintain proper temperature for various food products during inspections on June 12, 2012, December 3, 2012, May 20, 2013, and October 23, 2013.

The declarations of Spellman’s two friends stated that on March 10, 2013, they were studying with other students on campus at the student union. At lunchtime, her two friends went off campus to the Chipotle restaurant together with Spellman. The women each ordered a chicken bowl with rice and various vegetables to go, and the Chipotle workers prepared the orders one right after another. They ate the meal at the student union on campus and later that afternoon Christina complained that “her stomach wasn’t feeling very good.” Later that evening the three women complained to each other that they had experienced diarrhea. No other study participant complained of illness or diarrhea.

In Dr. Galpin’s supplemental declaration, he noted Chipotle has acknowledged in its 2013 and 2014 Annual Reports that it is at a higher risk of foodborne illness outbreaks than some competitors because of its standardized food preparation methods. Dr. Galpin also noted the food safety violations at the subject Fullerton restaurant were documented in June 2012, December 2012, May 2013, and October 2013. The May 2013 violation involved cooked chicken being stored at 114º F, more than 20 degrees cooler than the safe hold temperature for hot food items. Dr. Galpin identified nine potential pathogens that could cause the symptoms suffered by Spellman and her two friends after consuming the Chipotle food chicken products, and explained that some of these pathogens “grow well” in hot foods held below 135º F.

Although Dr. Galpin could not identify the specific pathogen that affected Spellman, he stated it was not unusual for the exact pathogen to remain unidentified because often, “by the time that testing is performed on an individual suspected of food poisoning, the pathogen has already left that person’s system, leaving behind the damage wrought by the infection.” Dr. Galpin explained the Centers for Disease Control (CDC) identifies a foodborne illness outbreak as “an incident in which two or more persons experience a similar illness resulting from the ingestion of a common food,” and he opined that the situation involving Spellman and her two friends suffering diarrhea following consumption of chicken bowls met this definition. Dr. Galpin opined that “[t]o a high degree of medical certainty, Christina Spellman [and her two friends] developed gastroenteritis, on the evening of March 10, 2013[,] as a result of consuming a harmful food product from the Chipotle restaurant in Fullerton.”

The trial court granted Chipotle’s summary judgment motion because it concluded that Spellman failed to show “a causal link between a ‘particular kind of food positioning involved’ and a ‘particular unsanitary condition found at the restaurant.’” The court found that Dr. Galpin “cannot state with any degree of medical probability the particular kind of food poisoning involved.” It determined that although Dr. Galpin identified potential pathogens, he did not say “that these possible pathogens were the cause, but only that they could have been; the physical symptoms she suffered are typically related with these pathogens.” As to the fact that Spellman’s friends became ill, “[a]ssuming this constitutes a cluster . . . , [Dr. Galpin] still cannot say, with any degree of medical probability, what the particular kind of food poisoning was. And he concedes he doesn’t know.” Finally, as to the food safety violations, the court determined “there is no evidence these procedures and methods were in place or had been used on the food (i.e., the restaurant’s chicken supply).”

II

DISCUSSION

A motion for summary judgment is properly 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 judgment as a matter of law.’” (Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 813.) “The moving party bears the burden of showing the court that the plaintiff ‘has not established, and cannot reasonably expect to establish, a prima facie case. . . .’ [Citation.]” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) “We review summary judgment appeals by applying the same three-step analysis applied by the trial court: First, we identify the issues raised by the pleadings. Second, we determine whether the movant established entitlement to summary judgment, that is, whether the movant showed the opponent could not prevail on any theory raised by the pleadings. Third, if the movant has met its burden, we consider whether the opposition raised triable issues of fact.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940.) “‘Where the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.’ [Citation.]” (Id. at p. 940.)

“On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.]” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) “Because a summary judgment denies the losing party its day in court, we liberally construe the evidence in support of that party and resolve doubts concerning the evidence in that party’s favor.” (Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th 251, 255.)

Here, we must decide what evidence is sufficient to raise a triable issue on causation in a food poisoning case. Relying on Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187 (Sarti), Chipotle contends Spellman must show a specific “link between the particular kind of food poisoning . . . and [the] particular unsanitary condition at the restaurant.” (Id. at p. 1195, italices added.)

In Sarti, the plaintiff ate a raw tuna appetizer at a restaurant. (Sarti, supra, 167 Cal.App.4th at p. 1191.) The next day, the plaintiff became ill and after several days had to be hospitalized in intensive care. The doctor determined the plaintiff ingested campylobacter bacteria, a pathogen not found in raw tuna, unless it had been cross-contaminated by raw chicken, where bacteria are common. (Ibid.) The Orange County Health Department issued a “‘food borne illness’ report dated . . . a little less than a month after the meal. The report identified four practices at [the restaurant] that could lead to cross-contamination. Specifically: Wipe-down rags were not being sanitized between wiping down surfaces. There was also an insufficient amount of sanitizer in the dishwasher. Chicken tongs were sometimes used for other food. . . . Raw vegetables were stored under ‘raw meat’ (the expert testifying did not say what kind of raw meat), so that a drop of raw meat juice might get on the vegetables. There was also testimony that the waiter who served Sarti had used a wet, unsanitized rag stored underneath the bar to wipe down Sarti’s table.” (Ibid.)

After the jury found in favor of the plaintiff, the trial court granted judgment notwithstanding the verdict, concluding the plaintiff failed to show causation as a matter of law. We determined the plaintiff had shown causation and therefore reversed the judgment, explaining: “[T]here was expert testimony expressly making the link between the particular kind of food poisoning involved (campylobacter) and the particular unsanitary conditions found at the restaurant—cross-contamination from raw chicken. An expert for Sarti, Dr. Andrew Kassinove, testified that anything that might have touched something that touched raw chicken would be cross-contaminated. Particularly given the lack of proper sterilization in the dishwasher and the waiter’s constant use of an unsterilized wipe down rag, a reasonable jury could infer either that a rag used to wipe down a raw chicken board was used to wipe down a vegetable or tuna board, or, alternatively, that a drop or two of raw chicken juice may have leaked onto some of the vegetables stored beneath it.” (Sarti, supra, 167 Cal.App.4th at p. 1207.)

Chipotle argues it met its burden of demonstrating an absence of causation evidence because its medical expert “Dr. Harrison opined twice to a reasonable degree of medical and epidemiological certainty, that it was ‘not biologically plausible for Plaintiff to have contracted C. diff[ ] or a foodborne illness from her meal at Chipotle.’” Spellman contends Dr. Harrison’s declaration was factually limited to C. diff and the trial court erred in overruling her objections the declaration lacked foundation and was speculative. However, Dr. Harrison’s declaration was not limited to C. diff. The declaration noted that Spellman tested negative for three common causes of foodborne illness, and it explained the quick onset of diarrhea was not consistent with foodborne illness because “the onset of [diarrhea] symptoms is more than six hours and generally more than 12 hours after consuming the implicated food.” Dr. Harrison’s opinion on causation is not speculative and is based on an adequate foundation. The trial court did not abuse its discretion in overruling Spellman’s objections to the declaration.

Moreover, Dr. Harrison’s declaration was sufficient to satisfy Chipotle’s burden to show Spellman lacked causation evidence. As the Sarti court noted, the basic elements of proof in a food poisoning case are essentially those of any personal injury action. (Sarti, supra, 167 Cal.App.4th at p. 1202.) “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony.” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) Dr. Harrison’s opinion it was biological implausible for Spellman or her friends to have contracted a foodborne illness, based in part on the quick onset of symptoms, constituted evidence that Spellman could not prove causation to a reasonable degree of medical probability. Thus, the burden shifted to Spellman to present evidence showing a triable issue exists on causation.

Chipotle contends that Sarti compels Spellman to produce evidence of the specific pathogen involved, the specific unsanitary condition at Chipotle on March 10, 2013, and the link between the specific pathogen and the specific unsanitary condition. We disagree. As Sarti notes, although a legal treatise stated that the “‘ideal factual situation’” to prove food poisoning would involve four elements — simultaneous illness of a group of people who eat the same food at the same time, all “‘patients’” manifesting classic food poisoning symptoms, prompt investigation of suspect food, and “‘microscopic examination’” of that food — the same treatise recognized that the ideal situation will not always present itself to the court because often the plaintiff will have recovered to the point where the pathogenic bacteria cannot be identified and the food is not available for examination. (Sarti, supra, 167 Cal.App.4th at p. 1202.) But neither the treatise nor Sarti declared a plaintiff could not recover in the nonideal situations. Indeed, Sarti held “food poisoning cases are governed by the same basic rules of causation that govern other torts cases.” (Id. at p.1190.) Thus, a plaintiff need only produce substantial evidence from which a reasonable jury can infer causation.

Here, the complaint alleged that Spellman suffered “diarrhea, chills, pain and discomfort, vomiting, dehydration, colitis, and other serious physical ailments” “[a]s a result of ingesting the unclean, tainted, dirty, adulterated, contaminated and diseased food stuffs at CHIPOTLE.” Spellman therefore could prove causation if she presented evidence showing a link between her particular illness (gastroenteritis) and Chipotle’s wrongful conduct, such as improper handling of food used to make the chicken bowl she consumed. A reasonable jury could conclude the symptoms Spellman and her two friends suffered after eating the chicken bowls are consistent with foodborne illness. Dr. Galpin opined that the situation involving Spellman and her two friends met the CDC’s definition of a foodborne illness outbreak, which is defined as “an incident in which two or more persons experience a similar illness resulting from the ingestion of a common food.” (See also Sarti, supra, 167 Cal.App.4th at p. 1202 [ideal factual situation in a food poisoning case includes “simultaneous illness of a group of people who eat the same food at the same time, [and] all ‘patients’ manifesting classic food poisoning symptoms”].)

Dr. Galpin also identified several pathogens that could have caused Spellman’s gastroenteritis. Spellman presented evidence that one or more of these pathogens could have be present in the chicken bowl she consumed on March 10, 2013, because (1) Chipotle’s standardized food preparation methods presents a higher risk for illness outbreaks than some other fast food restaurants and (2) the same Fullerton restaurant violated safe food holding standards both before and after the incident. (Cf. Sarti, supra, 167 Cal.App.4th at p. 1191 [postincident report may be used to infer the food safety violations on date of incident].) The violations resulted in an ideal growing environment for the specifically identified pathogens.

Based on the evidence and Dr. Galpin’s declaration, a reasonable jury could infer causation. Specifically, a jury could infer that Chipotle’s failure to maintain proper food holding temperatures for cooked chicken or other food resulted in the growth of a pathogen on the food used to make Spellman’s chicken bowl and Spellman’s consumption of that pathogen-infested chicken bowl resulted in her gastroenteritis. Although there were several potential pathogens, this fact is not fatal to a causation finding because the jury could infer causation based on any number of reasonable hypotheses. (Cf. Sarti, supra, 167 Cal.App.4th at p. 1207 [the jury reasonably could infer cross-contamination occurred under any means supported by the evidence].) Because a jury reasonably could find causation, Spellman has shown a triable issue exists as to causation. The trial court therefore erred in granting summary judgment.

III

DISPOSITION

The judgment is reversed. Spellman is entitled to her costs on appeal.

ARONSON, ACTING P. J.

I CONCUR:

GOETHALS, J.

O’LEARY, J., Dissenting.

“Just because you get sick soon after eating at a restaurant doesn’t prove bad food or some other contamination at the restaurant caused it. Any other rule would be untenable, since it would make restaurants de facto health insurers of their customers.” (Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187, 1196 (Sarti).) I respectfully dissent from my colleagues’ decision to reverse the trial court’s ruling. I would affirm the judgment because no triable issue exists on the issue of causation.

I agree with my colleagues that a plaintiff in a food poisoning case need not always determine the precise foodborne pathogen that caused his or her illness. However, in this case, Christina Spellman underwent extensive testing for common foodborne illnesses at the emergency room. Multiple tests for shigella, salmonella, and campylobacter were all negative. There simply was no reliable evidence Spellman’s symptoms were a result of any foodborne pathogen.

The parties engaged in discovery for approximately two and one-half years. Plaintiff asserted in her verified discovery responses that she was diagnosed with C. diff after eating her Chipotle chicken bowl, and that her diagnosis was what ultimately led to

her damages. Spellman argued her liability theory was “that she contracted gastroenteritis from a harmful chicken product,” and this compromised her “already-fragile bowel ecosystem[.]” This compromise caused several reactions, she claimed, including the C. diff infection. Chipotle argued there was “no triable issue of material fact both from a factual standpoint as well as a medical causation standpoint that the proximate cause of [Spellman’s] illness was the chicken bowl from Chipotle.”

Spellman’s retained medical expert, Dr. Jeffrey Galpin, opined in his supplemental declaration that Spellman and her two friends had “contracted gastroenteritis on the evening of March 10, 2013, as a result of their consumption of a harmful food product from Chipotle.” Galpin did not specifically link the alleged gastroenteritis to Chipotle. Instead, he offered two different hypotheses. First, he claimed it was “caused either by the typical pathogens,” of which he identified a laundry-list of nine potential “typical pathogens,” none of which were included in the emergency room screening for food illnesses. Second, he claimed it was other pathogens “such as one of [sic] following with early but broad ranged signs and symptoms” and identified an additional three potential pathogens.

The trial court properly rejected Spellman’s theory the mere possibility that “possible toxins or bacteria . . . could have been” present at Chipotle, combined with the fact that Spellman’s physical symptoms “are typically related with these pathogens” created a reasonable inference from which causation could be inferred. While Spellman identified several general procedures and sanitizing methods that were improper at the Fullerton Chipotle and nationwide, she failed to produce any evidence that those procedures and methods were in place on or about the day she ate at Chipotle. The only violation that occurred close in time to the March 10, 2013, incident was a May 20, 2013, violation regarding chicken storage temperatures—71 days after Spellman ate there.

The trial court properly recognized foodborne illness cases are “governed by the same basic rules of causation that govern other tort cases.” Reviewing a grant of summary judgment, we consider all the evidence in the moving and opposing papers, except evidence to which objections were made and properly sustained, liberally construing and reasonably deducing inferences from appellant’s evidence, and resolving any doubts in the evidence in appellant’s favor. (Code Civ. Proc. § 437c, subd. (c).) While reasonable inferences are available to show causation, “[w]hat is a reasonable inference is where it gets tricky.” “‘Speculation . . . is not evidence’ that can be utilized in opposing a motion for summary judgment. [Citations.]” (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 99; see also Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161 [summary judgment opposition based on inferences “must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork”].)

The trial court properly concluded Spellman’s evidence in opposition to Chipotle’s summary judgment motion was insufficient to demonstrate the existence of a triable issue of material fact. The crux of Spellman’s argument on appeal is that Galpin’s declaration was sufficient to make a prima facie showing of a triable issue of fact on the issue of causation. Galpin opined that: a “cluster” of three friends became ill within a few hours of eating at Chipotle; one of the friends found a black hair in her food; none of these friends ate anything between the time they ate at Chipotle and got sick; and the onset of symptoms Spellman experienced is consistent with exposure to numerous types of foodborne bacteria. Galpin’s assertions fail to support Spellman’s inferences.

Spellman is bound by Sarti’s requirement that her expert make the “link between the particular kind of food poisoning involved” and “the particular unsanitary conditions found at the restaurant.” (Sarti, supra, 167 Cal.App.4th at p. 1207.) This requirement of causation is basic to any tort claim. In Sarti, a county health department report from less than a month after the meal identified four specific practices that could lead to cross-contamination and cause the identified foodborne illness. (Sarti, supra, 167 Cal.App.4th at p. 1196.) Galpin’s declaration stands in stark contrast to the expert evidence in Sarti. The expert in Sarti made the link between the particular kind of food poisoning involved (campylobacter) and the particular unsanitary condition (cross contamination from raw chicken) that caused plaintiff’s injury. (Id. at p. 1207.) Spellman was unable to show (1) she contracted a particular foodborne illness, or even narrow the foodborne illness down from a dozen, or (2) a particular unsanitary condition existed at the Fullerton Chipotle at or near the time of her symptoms that could have caused her alleged illness. Without establishing either of these factors, no inference can be reasonably drawn that Chipotle’s acts or omissions were a substantial factor in bringing about Spellman’s injury.

First, Spellman produced no reliable evidence she contracted a foodborne illness. She tested negative multiple times for common causes of foodborne illness and conceded her food was never tested. Galpin failed to state to any degree of medical probability Spellman contracted a particular pathogen, instead he simply gave a laundry list of potential bacteria and toxins.

Second, even if Galpin’s declaration was sufficient to establish Spellman contracted a particular foodborne illness, the declaration fails to link that illness to a particular unsanitary condition at the Fullerton Chipotle that could have caused it. Galpin relied on food safety expert L. Scott Donnelly’s declaration that the Food and Drug Administration has stated staphylocus aureus outbreaks have been linked to food not kept at proper temperature. Galpin also noted he read several articles concerning foodborne illness outbreaks in Chipotles in other states between 2008 and 2017. However, Donnelly failed to make any connection between out of state foodborne illness outbreaks in other Chipotles over a nine-year period to any conditions purportedly existing at the Fullerton Chipotle on March 10, 2013.

Donnelly’s declaration and the articles Galpin read are not facts from which a reasonable inference can be drawn. Specifically, there was no inference shown that chicken used in Spellman’s meal was stored at an improper temperature on or about March 10, 2013, and this was the cause of Spellman’s injury. Spellman’s attempt to establish a triable issue as to causation was based on speculation, conjecture, and inferences unsupported by relevant facts. A mere possibility of causation is insufficient for Spellman to sustain her burden.

Chipotle properly demonstrated Spellman lacked evidence to prove a factual basis for causation. The trial court’s entry of summary judgment was proper.

O’LEARY, P. J.

Filed 11/21/19 Yi v. Joe CA2/2

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 TWO

JANG KIL YI et al.,

Plaintiffs and
Respondents,

v.

JAQUELINE JOE et al.,

Defendants and
Appellants.

B294248

(Los Angeles County

Super. Ct. No. BC627773)

APPEAL from a judgment of the Superior Court of Los Angeles County. Barbara A. Meiers, Judge. Affirmed.

David S. Kim & Associates, David S. Kim and Todd A. Fuson for Defendants and Appellants.

The Milner Firm and Timothy V. Milner for Plaintiffs and Respondents.

Defendants and appellants Jaqueline Joe, Win Realty, Abraham Kim, SNK Management, Inc., and Everyday Rich, LLC (appellants) appeal from the default judgment entered against them. On appeal, appellants challenge only the trial court’s order striking their second amended answer to the third amended complaint of plaintiffs and respondents Jang Kil Yi, The Yi Family Limited Partnership, and The Yi Family Trust (respondents). Appellants argue the trial court abused its discretion in striking their answer without leave to amend and allowing respondents to proceed by way of default. As discussed below, we recognize the severity of the trial court’s order but under the circumstances of this case find no abuse of discretion. Accordingly, we affirm.

BACKGROUND

The underlying lawsuit began in July 2016 and concerns allegations of a real estate transaction gone wrong, complete with fraudulent deeds of trust and clouded title. The particulars of the alleged wrongdoing are not relevant to this appeal and we do not recite them here.

1. The First Three Complaints

Respondents filed their initial complaint against appellants on July 21, 2016, alleging negligence, fraud, fraud in the inducement, and unjust enrichment. After the trial court sustained appellants’ demurrer to the initial complaint with leave to amend, respondents filed a first amended complaint. The first amended complaint alleged causes of action for fraud, negligence, and elder abuse. The trial court again sustained with leave to amend appellants’ demurrer to the amended complaint. Thus, respondents filed a second amended complaint, again alleging fraud, negligence, and elder abuse, to which appellants again demurred.

2. The Operable Third Amended Complaint

In July 2017, before the trial court ruled on appellants’ demurrer to the second amended complaint, respondents successfully moved to file a third amended complaint. In addition to causes of action for fraud, negligence, and elder abuse, the third amended complaint also included a quiet title cause of action. The third amended complaint is the operable complaint (complaint).

3. Answers, Cross-complaints, and Respondents’ Motions to Strike

a. Answer, First Amended Answer, Cross-complaint, and First Amended Cross-complaint

In March 2018, almost eight months after the complaint was filed, appellants filed a verified answer to the complaint. The answer was confusing and for almost every paragraph of the 50-paragraph complaint stated the appellants “lack knowledge or information sufficient to form a belief about the truth of the remainder of the allegations in paragraph . . . [of the complaint].” Similarly, for almost every paragraph of the complaint, the answer simply repeated the phrase: “ANSWERING DEFENDANTS admit the existence of [appellants] SNK Management, Inc., Abraham Kim, Jaqueline Joe, Everyday Rich, LLC, Win Realty, and [respondent] Jang Kil Yi, and the fact that [respondent] Yi failed or refused to comply with the July 26, 2017, court order that Everyday Rich, LLC, be served within five court days.” The answer also attached a six-page form listing a variety of affirmative defenses, many of which had been checked off.

The same day appellants filed their first answer, appellant Joe also filed a cross-complaint and soon after a first amended cross-complaint against respondents, both alleging a cause of action for breach of contract.

On May 4, 2018, respondents filed a motion to strike the entire answer and for sanctions. Counsel for respondents acknowledged the unusual nature of requesting the entire answer be struck, but stated he was “at a loss as to what else to do in this case.” In the motion to strike, respondents listed a number of deficiencies in the answer, including its inconsistent pagination and paragraph numbering. Respondents also explained many of the affirmative defenses simply had no application to the case as they included defenses to causes of action not at issue (such as breach of contract). Similarly, respondents noted the affirmative defenses were directed toward “18 causes of action” when the complaint alleged only four causes of action, the answer repeated irrelevant phrases throughout, and appellant’s counsel had verified the answer despite its blatant inaccuracies. Respondents also filed a demurrer to appellant Joe’s first amended cross-complaint.

A few weeks later, on May 29, 2018, appellants filed an amended answer. Although the amended answer fixed some formatting issues, added an “Introduction,” and deleted the erroneous reference to 18 causes of action, the amended answer was almost exactly the same as the original answer. Appellants’ attorney again verified the amended answer on behalf of his clients. At some point, respondents filed a motion to strike the amended answer, which motion is not in the record on appeal.

On June 12, 2018, the trial court held a hearing on respondents’ motion to strike the amended answer and respondents’ demurrer to the first amended cross-complaint. The trial court granted respondents’ motion to strike the amended answer. As reflected in the minute order from the hearing, the court ruled, “[appellants are] to file what we will call [the] Third [sic] Amended Answer to the Complaint without the ream of surplusage now included . . . in the pending Answer, without non-responsive immaterial affirmative defenses and with facts pled in support of and with every affirmative defense where the law calls for the inclusion of facts.” The trial court also sustained the demurrer to the amended cross-complaint “with leave to amend one last time within 15 days.” The court noted significant substantive issues with the cross-complaint. The court ordered the amended papers “to be served and filed within 15 days, and if they are not the pertinent Cross-Complaint and Answers [sic] will be stricken.” Finally, the court denied respondents’ motion for sanctions “without prejudice to its renewal should the conduct now in issue be repeated since defense counsel has been, inter alia, unable to make any offer of proof to repair the pleadings to justify the relief now given.”

b. Second Amended Answer and Second Amended Cross-complaint

On July 2, 2018, after the court-ordered 15 days had expired, appellants filed a second amended answer verified by their attorney and appellant Joe filed a second amended cross-complaint for breach of contract. The second amended answer deleted the confusing phrase previously repeated throughout: “and the fact that [respondent] Yi failed or refused to comply with the July 26, 2017, court order that Everyday Rich, LLC, be served within five court days.” However, the second amended answer still stated in response to almost every paragraph in the complaint that appellants admitted the existence of themselves and respondent Yi but otherwise “lack[ed] knowledge or information sufficient to form a belief about the truth of” each paragraph of the complaint. In addition, the amended answer’s Introduction in large part addressed an earlier discovery ruling and included block quotes from the Evidence Code. The second amended answer dispensed with the form affirmative defenses and instead specified the following nine affirmative defenses: breach of contract, waiver, estoppel, prevention of performance, laches, lack of privity, failure to mitigate, unclean hands, and assumption of risk.

In response to appellants’ second amended answer, respondents filed another motion to strike. Relying on Code of Civil Procedure sections 435 and 436, respondents urged the trial court to strike the second amended answer in its entirety, noting appellants “have had multiple opportunities to comply with this Court’s Orders and file an intelligible Answer. They have failed to do so.” In the alternative, respondents argued the court should strike the specified portions of the second amended answer which were most of the introduction and all of the affirmative defenses. Respondents claimed the second amended answer violated the trial court’s June 2018 order in two ways. First, the second amended answer was untimely. The June 2018 order required the amended answer be filed no later than June 27, 2018, but it was filed five days late on July 2, 2018. Second, respondents argued the second amended answer failed to correct the deficiencies identified by the trial court in its June 2018 order. The trial court had ordered appellants to file an amended answer “without the ream of surplusage now included [and] without non-responsive immaterial affirmative defenses and with facts pled in support of and with every affirmative defense where the law calls for the inclusion of facts.” Respondents stated the second amended answer included immaterial language and the affirmative defenses were irrelevant and undecipherable.

Respondents also filed a demurrer to the second amended cross-complaint. In both the motion to strike and the demurrer, respondents also moved for sanctions.

Appellants did not file opposition to either the motion to strike, the demurrer, or requests for sanctions.

c. Ruling on Motion to Strike

Following August 23 and 27, 2018 hearings, the trial court issued a minute order ruling on respondents’ motion to strike, demurrer, and requests for sanctions. According to the minute order, appellants were represented by new counsel, who sought ex parte relief either for an extension of time to file further amended pleadings or for an order setting a hearing on a motion for relief from default under section 473. The trial court denied the ex parte request without prejudice, stating there was no emergency requiring ex parte relief and appellants could file “whatever they wish subsequently.”

The trial court granted respondents’ motion to strike the second amended answer in its entirety, stating in its minute order, “the Answer in issue inter alia again containing a plethora of inappropriate and inapplicable materials.” The court ordered, the “Answer having been stricken, [respondents] may proceed as if by default submitting evidence by Declaration.”

The trial court also granted respondents’ demurrer to the second amended cross-complaint without leave to amend. The court’s minute order indicated the court’s ruling was based on “all the reasons stated in the demurrer papers, not the least of which is that the filing of the Amended Cross-Complaint pursuant to the written order of June 12, 2018 was untimely and remained unintelligible.”

Finally, the trial court denied without prejudice respondents’ requests for sanctions. However, after further briefing, the court awarded respondents $3,000 in sanctions to be paid by appellants and their counsel jointly and severally.

4. Default Judgment

On October 18, 2018, after reviewing respondents’ default judgment package, the trial court entered judgment in favor of respondents and against appellants. In addition to quieting title to the real estate at issue, the court awarded respondents over $100,000 in total damages, plus costs and attorney fees.

5. Appeal

Appellants filed a notice of appeal from the October 18, 2018 default judgment.

DISCUSSION

On appeal from the default judgment, appellants challenge only the trial court’s order striking their second amended answer. They do not challenge the court’s order sustaining without leave to amend respondents’ demurrer to the second amended cross-complaint or the trial court’s sanctions order.

Appellants argue the trial court abused its discretion when it struck the second amended answer in its entirety. Appellants admit the answer was insufficient in some respects, but claim the trial court should have used other options short of striking the entire answer, such as striking only specified portions of the answer. As explained below, given the unique circumstances of this case, we conclude the trial court did not abuse its discretion.

1. Applicable Law and Standard of Review

Section 436 permits a court on its own motion or on motion by a party to “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (§ 436, subd. (b).) Section 435 permits and governs a party’s motion to strike a complaint or pleading.

We review the trial court’s order striking all or part of a pleading for an abuse of discretion. (Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1497; Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1282; Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) Under that standard of review, we will not substitute our opinion for that of the trial court unless a showing of a “ ‘ “clear case of abuse” ’ ” and a “ ‘ “miscarriage of justice” ’ ” is shown. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331; Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) “ ‘Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered.’ ” (Denham, supra, at p. 566.)

2. No Abuse of Discretion

We do not disagree with appellants’ summary of the relevant law. “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. [Citations.] Terminating sanctions should not be ordered as a first response when noncompliance is through no fault of the party.” (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) We do disagree, however, that the trial court ran afoul of that law in this case.

Appellants had three chances to file an acceptable answer. As noted above, appellants’ initial and first amended answers contained nonsensical phrases and statements repeated throughout as well as wholly inapplicable defenses. In its minute order striking the first amended answer, the trial court gave appellants another chance to file an answer, ordering the amended answer to be filed “without the ream of surplusage now included . . . in the pending Answer, without non-responsive immaterial affirmative defenses and with facts pled in support of and with every affirmative defense where the law calls for the inclusion of facts.” Moreover, the trial court ordered appellants to file the second amended answer within 15 days and warned, if they did not, the court would strike the answer.

Although their second amended and final answer was improved, it still failed to address specific issues identified by the trial court and violated the court’s orders. First, the second amended answer was filed after the court-ordered deadline, a violation of which the court stated would result in the amended answer being stricken. Second, contrary to the court’s order the amended answer again included surplusage (such as block quotes of portions of the Evidence Code). Third, the amended answer again included irrelevant and confusing affirmative defenses such as “breach of contract.” Thus, despite the trial court’s orders and guidance, appellants simply were unable to file an acceptable and compliant answer.

Appellants argue that, in respondents’ motion to strike the second amended answer, the only ground respondents argued “for striking the entire Answer was that it was filed five days later than ordered by the Court.” This is not entirely accurate. Respondents certainly argued the answer should be struck in its entirety because it was untimely. But respondents also argued the answer should be struck in its entirety because “[Appellants] have had multiple opportunities to comply with this Court’s Orders and file an intelligible Answer. They have failed to do so.” Only as an alternative to striking the entire answer, respondents argued the trial court should strike identified portions of the answer. In their briefing on appeal, appellants also compare the trial court’s “broader” statements in sustaining respondents’ demurrer to the amended cross-complaint with the court’s statements in ruling on the motion to strike. We do not find this comparison dispositive of the issue presented.

The decision to strike an answer and proceed by default is undoubtedly a harsh decision, but it is one permitted by law when called for by the circumstances. (§ 436.) Had the trial court struck appellant’s first answer without leave to amend, that more likely would have been an abuse of discretion. However, on the record before us, we are not convinced the trial court “ ‘exceed[ed] the bounds of reason, all of the circumstances before it being considered’ ” or that a miscarriage of justice occurred. (Denham v. Superior Court, supra, 2 Cal.3d at p. 566.) Finally, although the trial court expressed an openness to appellants moving to set aside default or to vacate the default judgment (an additional avenue to seek relief from the court’s orders), it appears appellants did not file any such motions.

DISPOSITION

The October 18, 2018 judgment is affirmed. Respondents are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3), (5).)

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

CHAVEZ, J.

HOFFSTADT, J.