Filed 11/21/19 The Semler Companies/Malibu, L.P. v. Pelissier CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE SEMLER COMPANIES/MALIBU, L.P.,

Plaintiff and Respondent,

v.

COLETTE PELISSIER,

Defendant and Appellant.

B294570

(Los Angeles County

Super. Ct. No. SC128428)

APPEAL from an order of the Superior Court of Los Angeles County, Lawrence H. Cho, Judge. Affirmed.

Murphy Rosen and David E. Rosen for Defendant and Appellant.

Evan L. Bardo for Plaintiff and Respondent.

_________________________

INTRODUCTION

Appellant Colette Pelissier (Pelissier) challenges the trial court’s denial of her motion to set aside a default judgment (Motion). Pelissier claimed she did not receive proper notice of the breach of contract complaint filed by respondent The Semler Companies/Malibu, L.P. (Semler) and that her failure to timely answer the complaint was reasonable and excusable.

We find no abuse of discretion and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant leased property from Semler. On August 17, 2017, after Pelissier withheld rent due to habitability issues, Semler filed an unlawful detainer action against her. Semler obtained a default judgment against appellant and writ of possession in the unlawful detainer case. However, the monetary portion of the default judgment was later set aside.

On November 29, 2017, Semler then filed a complaint for breach of contract to recover monetary damages arising from appellant’s alleged breach of the lease agreement. Semler completed substitute service by leaving a copy of the summons and complaint with Alex Castro, one of Pelissier’s employees, and by mailing the same documents to her home address. On February 26, 2018, after Pelissier failed to respond to the complaint, Semler served her with a notice of request for entry of default. On February 28, 2018, the court entered a default against Pelissier. On May 1, 2018, the court entered default judgment against her.

Pelissier moved to set aside entry of default and the default judgment, alleging she was improperly served. She also argued that any mistake she made in failing to respond to the complaint and summons was reasonable and excusable. On November 21, 2018, the trial court heard argument on the Motion and on December 3, 2018, the court denied it.

Pelissier timely appeals.

DISCUSSION

Pelissier moved to set aside entry of default and the default judgment under Code of Civil Procedure section 473, subdivision (b), which allows the court to relieve a party from a judgment taken against him or her through “mistake, inadvertence, surprise, or excusable neglect;” and section 473.5, which allows the court to set aside a default judgment when service of a summons has not resulted in actual notice to a party in time to defend the action.

We review a challenge to a trial court’s order denying a motion to set aside a default judgment for abuse of discretion. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) “Because the law favors disposing of cases on their merits,” however, we scrutinize orders denying a motion to set aside a default judgment more carefully and resolve any doubts in applying section 473 in favor of the party seeking relief. (Rappleyea v. Campbell, at p. 980; Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135 (Lasalle).)

I. Pelissier Was Properly Served.
II.
Section 415.20, subdivision (b) authorizes substituted service, in lieu of personal service, by leaving a copy of the summons and complaint at the home of the person to be served and thereafter mailing a copy to the person to be served at the address where the summons and complaint were left. The summons and complaint must be left with a “competent member of” or “a person apparently in charge” of the household, who “shall be informed of the contents thereof.” (§ 415.20, subd. (b).)

On appeal, Pelissier argues there is no evidence the process server described the contents of the documents to Castro or that Castro would have understood any such description because English was not his first language. She also argues the court abused its discretion by finding Castro was “apparently in charge” of her household when the process server delivered the summons and complaint to her home.

A. There is no evidence Castro did not understand the nature of the summons and complaint.
B.
In her opening brief, Pelissier claims English was Castro’s second language and points to a sworn declaration she submitted to the trial court as evidence. Yet, nothing in the declaration states English was Castro’s second language or that he did not speak English well enough to understand the process server’s description of the summons and complaint. Indeed, the only description of Castro is that he “is not my personal assistant and does not live in my home. [¶] . . . Mr. Castro works for me as an errand runner who also helps to let in maintenance workers at my home when I am not available.” Pelissier had the burden of establishing entitlement to relief from the judgment by a preponderance of the evidence. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1423.) To qualify for discretionary relief under section 473, the “ ‘proper procedure’ ” is to submit “ ‘affidavits or testimony demonstrating a reasonable cause for the default.’ ” (Huh v. Wang, at pp. 1419, 1422.) There must be “ ‘some showing – some evidence –’ ” of the circumstances justifying the default. (Id. at p. 1422.) Without any such evidence, we cannot credit Pelissier’s assertion that Castro did not speak English well enough to understand the summons and complaint.

Pelissier also claims there is “no evidence” that the contents of the documents were described to Castro; yet, the proof of service itself states the process server informed Castro “of the general nature of the papers.” Pelissier did not produce a declaration from Castro, or any other contrary evidence, demonstrating the process server did not describe the papers to Castro. Again, Pelissier failed to produce evidence to support this assertion.

C. Castro was “apparently in charge” of Pelissier’s premises when the summons and complaint were served.
D.
Pelissier also alleges the trial court had “absolutely no basis” for concluding Castro was “apparently in charge” of her premises when the complaint was served. Not so.

First, Pelissier claims the trial court discounted her sworn statement that Castro was an errand runner, not a personal assistant. In the very next paragraph of her brief, however, Pelissier quotes a portion of the order in which the court directly addresses this statement: “[b]y Plaintiff’s own admission, substituted service was made on Alex Castro who ‘works for me as an errand runner who also helps to let in maintenance workers at my home when I am not available.’ This admission indicates that Castro was ‘apparently in charge’ of the premises when the Complaint was served, regardless of whether or not Castro was actually Defendant’s personal assistant.” The court not only considered her sworn statement, but quoted it in the order denying the motion.

Pelissier then contends the trial court “had absolutely no basis” for concluding Castro was “apparently in charge” of her premises when the complaint was served. Yet, as stated above, the evidence upon which the court reached its conclusion was that Castro ran errands for appellant and allowed maintenance workers into the premises when she was not there. Clearly, the court found this was enough evidence to establish that Castro appeared to be in charge of the premises when the complaint was served. Pelissier’s disagreement with the court’s conclusion does not render it baseless.

In any event, we find no abuse of discretion. Section 415.20 authorizes substituted service upon a person “closely connected” to the defendant. (Judicial Council of Cal., com., reprinted at Deering’s Ann. Code of Civ, Proc. (2105 ed.) foll. § 415.20, p. 449.) “ ‘The evident purpose of Code of Civil Procedure section 415.20 is to permit service to be completed upon a good faith attempt at physical service on a responsible person . . . .’ [Citation.] Service must be made upon a person whose ‘relationship with the person to be served makes it more likely than not that they will deliver process to the named party.’ ” (Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1393.)

In Ellard v. Conway, for example, the court found substitute service was proper when the summons and complaint were served on the manager of a private, commercial post office box. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 543, 545.) The manager informed the process server he knew the defendants, and that the defendants received mail there. (Id. at p. 547.) On this evidence, the court concluded it was “more likely than not” the manager would deliver the summons and complaint to the defendants. (Ibid.)

Here, the evidence indicates Castro had an even closer connection to Pelissier than the manager of the post office box in Ellard. Castro was routinely present at Pelissier’s home, even when she was not there. She entrusted him to allow workers in and out of her home when she was absent. It can therefore be reasonably inferred that Pelissier believed Castro was a “responsible person” capable of managing her household when she was not home. (Bein v. Brechtel-Jochim Group, Inc., supra, 6 Cal.App.4th at p. 1393.) Whether Pelissier called Castro her personal assistant or errand runner is irrelevant; what matters is whether there was a close enough connection between Pelissier and Castro that it would be more likely than not that Castro would deliver the summons and complaint to her. The fact that he was present when she was not home and was responsible for monitoring who could walk in and out of her doors when she was absent is more than enough to establish Castro was “apparently in charge” of the household when the process server arrived.

We find no abuse of discretion.

III. Pelissier’s Failure to Respond Was Not Reasonable or Excusable
IV.
When default judgment is entered against a party, the court may “relieve a party . . . from a judgment . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (§ 473, subd. (b).) Neglect is only excusable if “a reasonably prudent person under similar circumstances might have made the same error.” (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 929.)

A. The court did not abuse its discretion in finding Pelissier’s failure to open her mail was not excusable.
B.
Pelissier argued in the trial court that her failure to respond to the complaint was excusable because she believed previous litigation involving Semler was dismissed or set aside when she moved out of the property and therefore she did not review the documents when she received them in the mail. She also stated that when she received the summons and complaint in the mail, she did not review them because she assumed they were related to the previous unlawful detainer case. The court determined that Pelissier’s failure to review her mail did not constitute a reasonable mistake or excusable neglect.

On appeal, Pelissier argues she would have acted to prevent a default if she “had been aware that the documents were related to a new matter.” Yet, she does not explain why mailing a summons and complaint to her mailing address was not sufficient to make her aware of a new lawsuit. Pelissier merely states she was “embroiled in a lawsuit involving the same courthouse and the same parties at the time the Complaint in the instant case was mailed to her.” “Thus,” she contends, “her failure to review the documents based on her belief that her attorneys were handling the case on her behalf was certainly within reason and, as such, constitutes reasonable mistake and excusable neglect.”

The court disagreed and we find no abuse of discretion in reaching this conclusion. In our view, a reasonably prudent person would review all legal documents received in the mail, even if they appeared to be related to a previously set aside lawsuit.

Additionally, we are not persuaded that Pelissier believed or had reason to believe the complaint in this case arose from the unlawful detainer case. Assuming she looked at the contents as she now states, she would have seen the very first page of the complaint states in bold, capital letters that it is a complaint for breach of contract, not unlawful detainer. If she indeed failed to take account of the nature of the complaint when it was clearly before her in bold, capital letters, it was entirely within the court’s discretion to conclude this failure was not reasonable or excusable. Indeed, “ ‘the only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded.’ ” (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 158, pp. 753–754; Elms v. Elms (1946) 72 Cal.App.2d 508, 513; Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.) It is not a stretch to expect an ordinary, prudent person to review legal documents received in the mail.

Although section 473, subdivision (b)’s broad remedial provisions are to be liberally applied to carry out the policy of permitting trial on the merits, courts “ ‘ “do not act as guardians for incompetent parties or parties who are grossly careless as to their own affairs.” ’ ” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1415.) Here, the trial court could reasonably conclude that Pelissier’s default was not the result of mistake or excusable neglect, but rather “was the consequence of [her] failure to take reasonably prudent steps to avoid entry of judgment.” (Hearn v. Howard, supra, 177 Cal.App.4th at p. 1207.)

C. There is no evidence Pelissier was not notified of entry of default.
D.
Pelissier states that neither she nor her attorneys were served with or given notice of entry of default in the trial court. Therefore, she argues, her failure to respond to the complaint constitutes excusable neglect under Lasalle, supra, 36 Cal.App.5th 127. We disagree.

First, Pelissier has not provided us with any records indicating this issue was argued in the trial court. While her counsel stated in the Motion that he was not served with notice of entry of default, the Motion did not contain any legal arguments as to how or why such alleged failure was improper or contributed to her failure to respond to the complaint. These statements appear only in two brief sentences within a 10-page motion.

Pelissier has therefore forfeited this theory as grounds for relief on appeal. “It is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal. A party who fails to raise an issue in the trial court has therefore waived the right to do so on appeal.” (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117.)

In any event, Lasalle does not stand for the proposition that a plaintiff’s failure to notify a defendant of entry of default renders excusable the defendant’s failure to respond to the initial complaint. In Lasalle, the Fourth District held that an attorney’s failure to timely respond to a complaint was excusable in part because she was notified by “unsatisfactory means [e-mail] of an unreasonably short deadline [one day]” to respond to the complaint. (Lasalle, supra, 36 Cal.App.5th at pp. 138–140.) The Lasalle court did not address whether a defendant must be served with notice of entry of default; it was considering the extent to which giving a defendant inadequate notice of an intent to request a default bears on the reasonableness of the delay. Furthermore, this was but one of five factors the court considered in its analysis; the court also determined that defendant’s failure to timely answer the complaint was excusable based on facts provided in her declaration. (Id. at p. 140.) The court also considered the lack of prejudice to plaintiff if the default were set aside, an issue which, as stated below, Pelissier has forfeited on appeal. (Ibid.)

Lasalle does not support Pelissier’s argument that not receiving notice of a default entered in February 2018 somehow justifies her failure to respond to a complaint filed in November 2017.

V. Prejudice
VI.
In exercising its discretion whether to grant a motion to set aside under section 473, the trial court “may properly consider” whether the party opposing the motion would be prejudiced by the delay. (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 740.) If not, only “ ‘very slight evidence’ ” is required to justify a court setting aside the default. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233; Lasalle, supra, 36 Cal.App.5th at p. 135, fn. 5.)

Pelissier asserts the trial court “made no finding at all” regarding any prejudice Semler would suffer if the default were set aside and therefore it committed an abuse of discretion warranting reversal. Semler, however, counters that the trial court heard and considered evidence and argument about prejudice at the hearing on the Motion, which the court took into account in its decision. Although we are not convinced a trial court must consider prejudice in exercising its discretion whether to set aside a judgment, especially where there is scant evidence the default was excusable, we cannot evaluate the issue because Pelissier did not provide us with a record of the hearing.

An appellant must provide an adequate record of every contested issue to enable meaningful review; failure to do so compels us to resolve the issue against the appellant. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.) If the record is inadequate, the appellant defaults and the trial court’s decision should be affirmed. (Ibid.)

Here, no court reporter was present at the hearing on Pelissier’s motion; thus, no transcript could be produced. Nonetheless, it is Pelissier’s obligation to provide a settled statement of the hearing pursuant to California Rules of Court, rules 8.163 and 8.137 if she wants us to consider issues that were addressed at that hearing. Pelissier does not deny that the prejudice issue was addressed at the hearing on her Motion; rather, she boldly claims Semler, on appeal, cannot rely on the evidence of prejudice he presented at the hearing because it is outside the record. This evidence is “outside the record,” however, because Pelissier deliberately excluded it. We cannot allow Pelissier to omit a portion of the record, argue an issue involving evidence contained in that omitted portion of the record, and then expect us to resolve the issue against Semler.

The absence of any record of a hearing “precludes a determination that the court abused its discretion.” (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259.) And, it is “ ‘elementary and fundamental that on a clerk’s transcript on appeal the appellate court must conclusively presume that the evidence is ample to sustain the findings.’ ” (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521–522.) Our review is limited to determining whether any error “appears on the face of the record.” (Id. at p. 521; see Cal. Rules of Court, rule 8.163.)

We do not know what took place at the hearing on Pelissier’s Motion. We cannot evaluate whether the court fully considered the prejudice issue and whether prejudice factored into the court’s decision to deny Pelissier’s Motion. Based on Semler’s uncontested representation that the court heard evidence of prejudice at the hearing on the Motion, and absent any contrary evidence on the face of the record, we presume the court properly exercised its discretion in denying the Motion.

DISPOSITION

The order is affirmed. Respondent is awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

BIGELOW, P. J.

WILEY, J.

Filed 11/21/19 Demoff v. Bell 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

TONJA LYNN DEMOFF,

Petitioner and Appellant,

v.

WAYNE J. BELL, as Real Estate Commissioner of the State of California,

et. al.,

Respondents.

G056145

(Super. Ct. No. 30-2016-00893938)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Reversed and remanded.

Ray and Bishop, Fredrick M. Ray and Lindsay M. Johnson for Petitioner and Appellant.

Xavier Becerra, Attorney General, Diane S. Shaw, Senior Assistant Attorney General, Brian D. Wesley and Van-Dzung V. Nguyen, Deputy Attorneys General for Respondents.

In 2008, Kemery Blair-Yeakel (also referred to as Kemery Day) filed a lawsuit against real estate broker Tonja Lynn Demoff, alleging she was the victim of three fraudulent real estate transactions. Day prevailed at trial and she was awarded $903,625 in damages plus attorney fees and costs against Demoff and several of her business entities. After Demoff failed to pay the judgment, Day filed an application with the Bureau of Real Estate of the State of California (BRE) for compensation. The BRE administers a fund called the Consumer Recovery Account (CRA), which provides money to judgment creditors defrauded by real estate licensees unable to pay judgments. The fund’s procedures and requirements for payment are outlined in Business and Professions Code section 10470 et seq., and title 10 of the California Code of Regulations section 3100 et seq. The BRE’s decision to pay a third party creditor from the CRA triggers an automatic suspension of the judgment debtor’s real estate license, which can be reinstated if the debt is paid back to the fund with interest. (§ 10471.)

When the BRE paid Day, it suspended Demoff’s license to practice real estate. She petitioned for a writ of mandate from the Orange County Superior Court, seeking to invalidate the CRA payment and the disciplinary action. After holding a trial and independently reviewing the administrative record, the court denied the petition. In this appeal, Demoff maintains the trial court abused its discretion by applying the wrong burden of proof, making evidentiary rulings contrary to facts in the record, and reaching erroneous legal conclusions. Specifically, she raises the following arguments: (1) Day did not properly serve the application for CRA funds; (2) payment was not warranted because the unsatisfied judgment needed to be based on fraud arising from activities involving a real estate license; (3) the Commissioner exceeded his authority by granting Day’s second application after denying the first one; (4) Demoff’s license could not be suspended unless there was clear and convincing evidence of fraud; and (5) the Commissioner’s ruling should have included detailed findings of fact and legal conclusions.

We conclude only the fourth contention has merit, and the court’s use of an incorrect standard of proof requires us to reverse the judgment with directions to set aside the order denying Demoff’s petition. We remand the matter for a new hearing because there must be clear and convincing evidence of fraud to suspend Demoff’s real estate license. This higher burden of proof can be satisfied by either of the following two methods: (1) it is evident from the face of the judgment that there was a prior finding, by clear and convincing evidence, of fraud related to the license (such as when punitive damages were awarded or the jury makes a special finding); or (2) the reviewing trial court determines the documents submitted by the parties established fraud by clear and convincing evidence.

FACTS

I. Background Facts & Prior Appeals

In 1997, Demoff obtained her license to practice real estate in California. In 2008, Day filed a lawsuit alleging she had been defrauded by Demoff with respect to several real estate deals. (Kemery Day et al. v. Tonja Demoff et al. (Super. Ct. Orange County, 2008, No. 30-2008-00103768.) The following year, the trial court entered a $1.2 million dollar default judgment against Demoff (and her two corporations). In 2011, we reversed this judgment and remanded the case for trial. (Day v. Demoff (May 25, 2011, G043227) [nonpub. opn.] (Day I).)

Three years later, Day prevailed on all her causes of action at a bench trial and the court awarded her $1,123,197.62. We affirmed this judgment in Day v. Demoff (Dec. 10, 2014, G049293) [nonpub. opn.] (Day II).

The following year, Day submitted a CRA application (BRE File No. R 5414, hereafter, “Second Application”). Day sought $1,421,074 from the CRA. Two years later, in August 2016, the BRE granted the application and paid Day $242,929 “against the real estate broker license of” Demoff.

In November 2016, the BRE sent Demoff a notice of suspension, stating the suspension would be lifted upon payment of the $242,929 plus interest at the rate of 10 percent per year. Demoff filed a petition for writ of mandate in the Orange County Superior Court, seeking to invalidate the CRA payment to Day and the automatic license suspension. The trial court denied her petition, and this appeal concerns Demoff’s challenge to this ruling.

II. Petition for Writ of Mandate

In November 2017, the trial court considered the administrative record, which the parties stipulated would be augmented with additional evidence supplied by Demoff. After hearing oral argument, the court took the matter under submission.

The court issued a minute order with a statement of decision, denying the petition. It reached the following conclusions:

“The court applied its independent judgment in its de novo review of the administrative record. ‘The statutory scheme regarding the Recovery Account specifically states the trial court independently reviews the evidence without being bound by the findings made by the Commissioner.’ [Citation.] [Section] 10472.1, [subdivision] (b) states that ‘The claimant shall be entitled to de novo review of the merits of the application as contained in the administrative record.’ For the reasons stated below, the court applied the ‘preponderance of the evidence’ burden of proof.

“To set the scene . . . Day got a judgment against . . . Demoff. [D]ay then applied to get paid from the BRE recovery fund . . . . [D]ay tried to serve the application on . . . Demoff by mail[, she] did not respond to the application[,] and the Commissioner of the [BRE] paid . . . [D]ay out of the [CRA]. The Commissioner then demanded reimbursement from . . . Demoff and suspended her real estate license until that was done. [D]emoff seeks to reverse the Commissioner’s decision to pay . . . Day from the [CRA] and reverse the decision suspending her license.

“Both parties agreed that the following are the controverted issues to be addressed in the statement of decision:

“Issue 1: Improper service of application in Case R-5414.

“The two issues regarding service, according to . . . Demoff, are:

“—The address to which . . . Day sent her application was incorrect, and,

“—[D]ay did not receive actual notice of the application.

“As to the first issue, [s]ection 10471.1 . . . requires that the application be sent by certified mail addressed to . . . Demoff at the latest business or residence address on file with the department. [¶] The BRE records listed . . . Demoff’s address as ‘6621 E. Pacific Coast Highway, Suite 140, Long Beach, CA 90803.’ [Day] sent her application in this matter to ‘Q&A Realty Group Inc., Tonja Demoff, 6621 Pacific Coast Hwy #140, Long Beach, CA 90803.’ [¶] It is the lack of the letter ‘E.’ that concerns . . . Demoff. The court is not as concerned as she. [¶] The statutory scheme in this matter does not require strict compliance. California Code of Regulations, Title 10, Regulation 3102, for instance, recognizes that an application may be deficient, but still ‘substantially complete.’ Thus, the court concludes that the legislature did not intend that the address be exactly as listed in the BRE.

“[D]emoff, however, is entitled to the benefits and protections under the general statutes regarding service. If she had shown that the lack of the ‘E.’ on the address violated her due process, she would prevail. She did not convince the court of that. [¶] . . . [T]he correct suite number or floor number is not fatal. [Citations.] [¶] The question becomes, then, whether E. Pacific Coast Highway is different than plain old vanilla Pacific Coast Highway? The court finds it is not and that the street address is substantially compliant. There was no evidence of a ‘W.’ Coast Highway in that zip code, that the United States Postal Service could not properly deliver mail to that area without the ‘E.’, that addresses in that area do not regularly use Pacific Coast Highway (no ‘E.’) in their addresses, or that there is, anywhere in Long Beach, a ‘6621 West Pacific Coast Highway’ which might confuse a mail carrier.

“As to the second issue, there is a declaration in the record from Ms. Novak, the owner of . . . Demoff’s employer, that . . . Novak never received any package addressed to . . . Demoff and containing the application and attachments. This is insufficient to show that the package was not delivered.

“Issue 2: The Commissioner of the BRE did not proceed as required by law and in excess of authority in paying the recovery account application and suspending the license of petitioner.

“The present claim for payment from the recovery account is not . . . Day’s first in this matter. She had made another claim, designated R-4510. That claim involved the same judgment, the same claims, and the same parties. The Commissioner informed . . . Day of the insufficiencies in her application. [D]ay did not address those insufficiencies and did not seek review in [s]uperior [c]ourt. Instead, she simply filed a new claim. The Commissioner recognized this as peculiar, but accepted the new application. [¶] [D]emoff complains that . . . Day has only one chance to make a claim and if she fails to pursue it timely, or abandons it, she is not entitled to bring another claim. She relies upon [section] 14072. This section provides a time frame for the review of the denial of a claim on the merits. The Commissioner found . . . Day’s earlier claim incomplete and premature. [¶] Provided that the second claim is timely, the court finds nothing in the Business and Professions Code related to recovery account claims that prevents a claimant from dismissing her claim and pursuing it later, so long as there are no findings on the merits, which would have preclusive effect.

“Issue 3: The service provision of [section] 10471.1 violate[s the] due process of petitioner.

“[D]emoff argues that the use of certified mail, without regular mail back up, violates her due process. [Section] 10471.1 requires personal service, certified mail, or publication in certain instances. [¶] Due process is a flexible concept. (Rodriguez v. Department of Real Estate (1996) 51 Cal.App.4th 1289.) In the Rodriguez case, the court found that the statutory provision for the automatic suspension of a real estate license on a payment from the [CRA] does not deprive the licensee of due process. The court’s analysis specifically included the right to notice provided by the statute. [¶] The court finds that the service and notice provisions of the statute provide adequate due process protection.

“Issue 4: Commissioner used the wrong standard of proof.

“The standard of proof used by the Commissioner is irrelevant, since this court reviewed the matter de novo.

“Issue 5: The underlying judgment did not arise out of acts requiring a license.

“[D]emoff argues that the underlying judgment obtained by . . . Day, although it may have been obtained against her based upon her fraud, misrepresentation, or deceit, did not arise out of transactions ‘for which a real estate license was required’ as stated in [section] 10471. [¶] The court’s statement of decision in the underlying matter of Day v. Demoff unequivocally states that . . . Demoff was acting as . . . Day’s real estate agent in [two of the] real estate transactions [litigated in the lawsuit]. The court also found liability based upon . . . Demoff’s fiduciary relationship as a ‘wealth coach,’ as a business partner, and as a managing member of TDCO, LLC. [¶] All of these ventures were based upon real estate transactions where . . . Demoff would get a commission as the licensed broker, or where she would get special compensation as defined by [section] 10131. [D]emoff and . . . Day entered into a commission agreement in which . . . Demoff promised to share her commissions with . . . Day. Since . . . Demoff earned those commissions through her license, this satisfies the requirements of [section] 10471. [¶] While this court understands the argument that the $49,000 and $200,000 loans/investments in TDCO arose from a business arrangement in which . . . Demoff was a principal and acting on her own behalf, the statement of decision makes clear that part of the loan arrangement was that . . . Day would get commission splits in return for those loans/investments. Those commissions require a license, satisfying the code. [¶] The fact that . . . Demoff also owed duties to . . . Day based upon other relationships with . . . Day (as managing agent, ‘wealth consultant,’ and joint venturer) does not vitiate the statutory basis for the recovery account. It is not practical or possible in this case to segregate those damages caused specifically by the misuse of the license from other causes.

“Issue 6: Commissioner failed to investigate application in R-5414

“[D]emoff argues that the Commissioner was biased against her by allowing . . . Day to make the second application. [Day] also argues that the Commissioner should have denied . . . Day’s application because, had the Commissioner investigated the claim, the Commissioner would have discovered that . . . Day had lied in her responses to two questions. [¶] As suggested above, opening a second claim number does not prove an improper bias by the Commissioner. The first claim was premature and the second claim was timely. The statutory scheme is not intended to be neutral; it is to assist in enforcing the judgments against licensees.

“The rest of the argument is based upon three fallacies: [¶] One, while the Commissioner has the ability to investigate the claim, [(§ 10471.4)], there is no statutory obligation to verify every assertion by the claimant. The statutes governing the [CRA] does not prescribe the scope and depth of the investigation required before paying a claim. [¶] Two, there is insufficient evidence from which the court can conclude that had the Commissioner investigated, he would have found the inconsistencies that . . . Demoff highlights. [¶] Third, the inconsistencies in the application do not negate the application. [D]emoff claims that . . . Day incorrectly stated that . . . Novak did not know the whereabouts of . . . Demoff in May 2015. [N]ovak declares that she never said that. Neither this court nor that Commissioner took live testimony, so neither can comment upon the credibility of the witnesses. There was no evidence that . . . Novak knew where . . . Demoff lived or worked. [¶] [D]emoff also argues that . . . Day lied when she said that she was diligently pursuing collection of the judgment and relies on a statement from an attorney who apparently tried to settle the matter. Again, credibility is not discernible from the written materials. Further, negotiating to settle a judgment is not a requisite to diligently pursuing collection of the judgment. [¶] So, even if the Commissioner had discerned the allegedly false statements, the Commissioner would have been justified in paying the judgment from the recovery account.

“Burden of Proof [¶] This court used the preponderance of evidence standard in evaluating the evidence in this de novo review. [D]emoff, in a slightly different context, urges that the burden should be ‘clear and convincing.’ [¶] It is well recognized that the California Constitution requires clear and convincing evidence before disciplining a professional by suspension of her license. [¶] Under [section] 10177.5, the Commissioner may impose discipline based on a final judgment in a civil action against any real estate licensee upon grounds of fraud, misrepresentation, or deceit with reference to any transaction for which a license is required, but only when the plaintiff in the civil action proved fraud, misrepresentation, or deceit by clear and convincing evidence. [Citation.] [¶] In this case, however, the Commissioner was not disciplining . . . Demoff; he was simply suspending the license until the recovery account is paid off.

“[Section] 10471 is a remedial statute intended to protect the public from loss resulting from unsatisfied damage awards against licensed real estate personnel. Remedial statutes are to be construed to promote their purposes and protect persons within their purview. The statute will be construed when its meaning is doubtful so as to suppress the mischief at which it is directed, to advance or extend the remedy provided, and to bring within the scope of the law every case, which comes clearly within its spirit and policy. (Worthington v. Davi (2012) 208 Cal.App.4th 263.) [¶] The Court of Appeal decided Worthington after Grubb and presumably knew of it. It is clear from the recitation of facts in Worthington that neither the arbitrator, the Commissioner, nor the trial court used the clear and convincing standard. There is no language in the opinion that the burden to be applied in a recovery account action should have been clear and convincing. [¶] This court concludes that when the Commissioner seeks to discipline a license holder under [section] 10471, the underlying fraud must be found by clear and convincing evidence. In remedial statutes, such as those governing the recovery account, the burden is preponderance of the evidence. The Commissioner is not suspending her license as discipline for the fraud, but for the failure to pay the judgment. [¶] Although the Worthington court recognized a punitive aspect to the [CRA] statutes in footnote 5 of the opinion, the court did not go as far as to characterize the license suspension as discipline. [¶] There is some support for this position in the case of Owen v. Sands (2009) 176 Cal.App.4th 985. In that case, a contractor challenged a citation and argued that his citation proceeding was equivalent to a disciplinary proceeding that could result in suspension or revocation of his license because if he failed to pay the fines his license would be suspended or revoked by operation of law. The contractor argued that the administrative law judge should have used a clear and convincing standard. The appellate court disagreed and found that the appropriate standard was preponderance of the evidence.”

DISCUSSION

I. Standard of Review

“On an appellate review of the trial court’s decision granting or denying a recovery from the [CRA], the reviewing court merely determines whether there is substantial evidence to support the conclusion of the trial court. The reviewing court applies a substantial evidence test, not de novo review, and will sustain the trial court’s decision if its express and implicit findings are supported by substantial evidence, whether or not the reviewing court believes different findings of fact would be more reasonable from the evidence produced at trial. This is so even if the evidence is undisputed but susceptible of more than one inference.” (2 Miller & Starr, Cal. Real Estate (4th ed. 2019) § 4:51, fns. omitted (Miller & Starr); Worthington v. Davi (2012) 208 Cal.App.4th 263, 283 (Worthington); Booth v. Robinson (1983) 147 Cal.App.3d 371, 377.)

II. CRA Application Process

Before addressing the issues raised on appeal, it is helpful to review the CRA application process and requirements for payments. The procedures and requirements are set forth in sections 10471 through 10481, and the California Code of Regulations, title 10, section 3100 et seq.

“The purpose of the Consumer Recovery Account of the Real Estate Fund is to ‘protect the public against loss resulting from misrepresentation and a breach of fiduciary duty by real estate brokers who are unable to respond to damage awards.’ It is designed to raise the standards of the real estate profession by requiring its members to deal fairly and ethically with their clients, and this objective is accomplished by compensating innocent members of the public who are victimized by dishonest licensees. Because its purpose is remedial, it should be given a liberal construction to accomplish its objectives.” (2 Miller & Starr, supra, § 4:46, fns. omitted.)

“The Account serves as a trust fund for compensation to any aggrieved person who obtains a final judgment in any court against any licensee on grounds of fraud, misrepresentation, deceit, or conversion of trust funds, with reference to any transaction that required a license. It is available whether the licensee is a licensed real estate broker or a licensed salesperson.” (2 Miller & Starr, supra, § 4:46, fns. omitted.)

Within one year of obtaining a final fraud judgment against a licensee, the injured person seeking to recover CRA funds must file a verified application with the Department of Real Estate and use the form provided by the Commissioner. (2 Miller & Starr, supra, § 4:50.) Section 10471, subdivisions (a) through (f), list the specific criteria for payment. The application must include the following: (1) proof of service of the notice an application on the judgment debtor; (2) copies of the final judgment and if the matter was appealed, any appellate decision and the remittitur; (3) the original pleadings; (4) briefs filed before and after trial; (5) lists describing discovery efforts and copies of demurrers; (6) documents relating to the original transaction; (7) statements regarding the basis for damages; (8) names of witnesses and co-defendants; (9) efforts taken to collect the judgment and tax ramifications of the unpaid debt; and (10) any bankruptcy proceedings. (Ibid.) The injured person can submit less information if the BRE determines what was provided was sufficient to determine the requirements for payment. (Cal. Code Regs., tit. 10, §§ 3101, subd. (b), 3102, subd. (q).)

The CRA application contains a special notice that informs the licensee that his or her license will be automatically suspended if payment is made from the CRA, and the license will not be reinstated until the CRA is reimbursed. The judgment debtor intending to contest payment has 30 days to file a written response to the Commissioner, “setting forth in detail the factual and legal bases upon which he or she believes the application should be denied.” (Cal. Code Regs., tit. 10, § 3106, subd. (a); see § 10471.1, subds. (a), (d), (e).) The judgment debtor also has the right to be represented by counsel when making this argument. (Cal. Code Regs., tit. 10, § 3103, subd. (b).)

Neither the statute nor regulation mentions whether the judgment debtor has a right to a formal hearing before the Commissioner. One appellate court has determined a judgment debtor is not entitled to a full evidentiary hearing before the Commissioner. (Rodriguez v. Department of Real Estate (1996) 51 Cal.App.4th 1289, 1292, 1299 (Rodriguez) [“It does not appear that a formal hearing would add significantly to the integrity of the administrative process”].)

“[T]he statute contemplates three levels of due process protection before a broker may lose his or her license. Only a judgment creditor with a final judgment is eligible for payment from the recovery account. [Citation.] Thus, a broker is afforded the full procedural safeguards in a court of law before judgment is obtained. The statute also provides for those protections that were allowed to [the judgment debtor] in the administrative process—the right to notice and an opportunity to submit written argument before the Commissioner ruled on [the victim’s] claim for payment. Finally, a broker has the right to challenge an adverse decision by traditional mandate. Taken together, these procedures are sufficient to protect real estate brokers without imposing additional requirements at the administrative level. [Citations.] After all, due process ‘insists upon the opportunity for a fair trial, not a multiplicity of such opportunities.’ [Citation.]” (Rodriguez, supra, 51 Cal.App.4th. at p. 1298.)

If the Commissioner determines the application “fails to comply substantially with the requirements of [s]ection 10471 or with the requirements of a regulation adopted by the Commissioner . . . the Commissioner shall, within 15 days after receipt of the application, mail an itemized list of deficiencies to the claimant.” (§ 10471.2, subd. (a).) On the other hand, once the Commissioner determines the application is “substantially complete” (§ 10471.2, subd. (b)), the commission must render a ruling on the application within 90 days. (§ 10471.3.)

The Commissioner can accept, deny, or offer a settlement for less than the amount claimed. (§ 10471.3, subd. (b).) “When the Commissioner decides to pay the claim, a copy of the decision must be sent to the licensee/debtor with a notice of the payment that informs the debtor that his or her license will be suspended and cannot be reinstated until the [CRA] is reimbursed the amount of the payment plus interest at the prevailing legal rate. The notice also must state that the debtor may petition the court to review the suspension within 30 days after receipt of the notice.” (2 Miller & Starr, supra, § 4:50, fn. omitted.)

The CRA statutory procedures provide the judgment debtor has a right to a formal hearing if he or she files a petition for writ of mandamus in superior court. (§§ 10471.5, subd. (c) [right to petition], 10473.1 [judgment debtor may defend action against recovery account and have recourse to all appropriate means of defense and review, including examination of witnesses]; Rodriguez, supra, 51 Cal.App.4th at p. 1296 [recognizing right to full evidentiary hearing in superior court upon filing petition for writ of mandate].)

III. Lack of Service

Section 10471.1 and California Code of Regulations, title 10, section 3101 (Regulation 3101) both state the CRA claimant must include in the application proof it was served on the judgment debtor. Demoff asserts Day failed to comply with proper service requirements, which should have precluded the Commissioner from rendering a decision on her CRA application. She asserts the faulty service meant the application was not “substantially complete” as required by section 10471.3. Additionally, Demoff asserts the defective service created a due process violation because her lack of notice about the pending action “hindered her ability to meaningfully defend herself.” We conclude both contentions lack merit.

Section 10471.1 provides, “The claimant shall serve a copy of the notice prescribed in subdivision (e) together with a copy of the application upon the judgment debtor by personal service, by certified mail, or by publication, as set forth in subdivision (b).” (§ 10471.1, subd. (a).) Subdivision (b) of section 10471.1 instructs on when it is appropriate to serve the application by certified mail versus by publication. “If the judgment debtor holds an unexpired and unrevoked license issued by the bureau, service of the notice and a copy of the application may be made by certified mail addressed to the judgment debtor at the latest business or residence address on file with the bureau. If the judgment debtor does not hold an unexpired and unrevoked license . . . and personal service cannot be effected through the exercise of reasonable diligence, the claimant shall serve the judgment debtor by . . . publication . . . in a newspaper of general circulation.” (Italics added.)

Demoff seizes on the italicized phrase above, reading it to mean an application will not be “substantially complete” unless the judgment debtor’s proof of service lists the exact same address as the one “on file with the bureau.” (§ 10471.1, subd. (b).) In this case, there was evidence the address “on file” with the BRE was 6621 E. Pacific Coast Highway #140, but Day’s proof of service showed she sent her application by certified mail to Demoff at 6621 Pacific Coast Highway #140. She asserts the lack of the letter “E.” before Pacific Coast Highway on the proof of service was grounds for the BRE to reject the application.

The trial court rejected this argument on the following two grounds: (1) the statutory scheme does not require strict compliance; and (2) Demoff failed to prove the lack of the letter “E.” resulted in a due process violation. This was correct.

Although section 10471.1, subdivision (b), provides the application should be sent to the judgment creditor at the latest address on file, the statute does not mandate it is the “only” possible address. The statute, when read in combination with the real estate Commissioner’s regulations regarding CRA applications, permits the BRE to consider any application it determines is in substantial compliance. Specifically, Regulation 3101, subdivision (b)(1), authorizes the BRE to use its expertise when deciding whether “what has been submitted is sufficient for [the BRE] to make a determination whether the application qualifies for payment from [CRA].” The regulations specify an application will be “‘substantially complete’” as long as there is proof the judgment debtor was served with the notice and application. (Cal. Code Regs., tit. 10, § 3102, subd. (a) (Regulation 3102).) The regulations do not require the judgment creditor to utilize a specific address.

Regulation 3101, subdivision (a), describes the application process as follows: “An application for payment from the [CRA] shall be made on a form prescribed by the [BRE], shall contain the items specified by [s]ection 10471[, subdivision (c),] . . . and shall contain all of the information specified in [s]ection 3102, except as provided in subdivision (b) of this section.” (Italics added.)

Subdivision (b) of Regulation 3101 permits claimants to submit less than all of the required documentation if the BRE determines the information provided was sufficient to make a determination about payment from the CRA. (Cal. Code Regs., tit. 10, § 3101, subd. (b).) Accordingly, in some instances all the “items specified” in section 10471 may not be absolutely required before the Commissioner considers the application. Such was the case here. As mentioned, Regulation 3102 provides the CRA application is substantially complete if it contains “[p]roof that the judgment debtor was served with the Notice and Application.” (Regulation 3102, subd. (a).) The record amply supports the conclusion the application contained “proof” Day served Demoff with the notice and application using the correct address. Although the letter “E.” was missing from the proof of service, it was included in the mailing label used on the package as well as the post office’s card used for certified mail. It appears there was a typographical error on the proof of service because it did not reflect that the package’s postal label showed it was mailed to 6621 East Pacific Coast Highway.

Moreover, the post office tracking record shows there were two attempts to deliver Day’s package of documents to the address. On July 31, 2015, the postal worker left a notice and wrote in the tracking log, “no authorized recipient available.” (Capitalization omitted.) On Monday morning, August 17, 2015, the postal worker noted, “[b]usiness [c]losed.” Based on this record, it was reasonable for the BRE to conclude there was sufficient “proof” Day served Demoff with the notice and application at her last known address.

We also reject Demoff’s assertion the typographical error on the proof of service shows there was a violation of Demoff’s due process rights. The superior court gave Demoff an opportunity to present evidence and be heard at the trial on her writ petition. It permitted Demoff to augment the administrative record with additional evidence and included this information in its de novo review of the case. We find it telling that despite being given the opportunity to present proof on the issue, Demoff failed to augment the record with evidence suggesting the postal service would not have been able to deliver mail to her business if the “E.” had been missing from the package’s label. Her assertion in the appellate briefing that Day used an “incorrect address,” and/or one “inconsistent” with the one on file with BRE, is not supported by any evidence. There was no reason to suspect the mail carrier was confused about the location of the Demoff’s business or that a different business existed at 6621 West Pacific Coast Highway.

In conclusion, substantial evidence supports the trial court’s finding the BRE had authority to consider Day’s CRA’s application because there was evidence Day sent the package (containing notice and the application) by certified mail to Demoff’s most recent address. There was no evidence supporting her claim of a due process violation. The statute/regulations requiring service of the notice and application by certified mail to Demoff’s most recent address on file with the BRE satisfied due process “because it was reasonably calculated to provide the licensee with notice” of the proceedings. (Miller Family Home v. Department of Social Services (1997) 57 Cal.App.4th 488, 492 [court held proof of actual notice not required, affirming revocation of group home licensee where statute required only service of notice by certified mail and agency’s accusation was returned undelivered].)

IV. Collateral Estoppel

Demoff asserts the doctrine of collateral estoppel precluded Day from litigating the Second Application. Alternatively, she argues section 10472 gives victims only one chance to make a claim. She concludes that because Day abandoned the First Application, and failed to appeal, she should not have been permitted to file the Second Application.

With respect to the collateral estoppel argument, Demoff asserts the BRE investigated Day’s First Application and notified her “via a [d]eficiency [l]etter, that she had until December 5, 2014, to remediate her request or the denial would be finalized.” Demoff maintains Day’s failure to withdraw her application or respond to the letter resulted in a denial of her application on the merits. Not so. The doctrine of collateral estoppel requires evidence the previous proceeding was terminated with a final judgment on the merits. (Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 482-483 (Castillo) [administrative decision final and on merits “because it followed a ‘full hearing’ in which ‘“the substance of the claim [was] tried and determined’””].)

The BRE’s written decision denying Day’s First Application stated the “primary reason” for its decision was Day’s failure to provide additional documentation, making it incomplete. Specifically, the deficiency letter, dated November 10, 2010, asked Day to provide copies of “transaction documents” and “any documents/exhibits submitted to the [c]ourt in support of claimant’s allegations against judgment debtors, but not provided to the [BRE]. In addition, the letter asked Day to provide a statement about whether she intended to have the debt determined nondischargeable in bankruptcy proceedings.

It cannot be overlooked that during this same period Demoff’s two appeals were before this court and sought reversal of the trial court’s orders denying two motions to set aside the default judgment. (Day I, supra, G043227.) In May 2011, this court reversed the default judgment. (Ibid.) Our reversal nullified the judgment, and we remanded the matter. Thereafter, it took several years for the BRE to send a final written denial of the First Application (the written ruling was dated December 2014, and mailed to the parties in January 2015).

We conclude the BRE did not deny Day’s First Application on the merits, i.e., it did not decide if Day’s default judgment against the licensee qualified for payment from the fund. The evidence showed the BRE denied the application because it was incomplete. In addition to the missing documents outlined in the deficiency letter, there was no longer a final judgment. As stated, the doctrine of collateral estoppel requires a final judgment on the merits. (Castillo, supra, 92 Cal.App.4th at pp. 482-483.)

Alternatively, Demoff argues section 10472 “is unequivocal” in stating the rule that the victim’s failure to appeal the Commissioner’s decision precludes a second application. Section 10472 says no such thing. It simply describes the procedure giving denied claimants six months to seek review of the Commissioner’s decision. (Ibid.)

Demoff fails to appreciate Day did not refile the same application with the BRE. Day’s First Application referenced a nullified $1,254,242 default judgment. (Day I, supra, G043227.) The Second Application related to an entirely different judgment, awarding Day $1,123,197 in damages because she prevailed on all her causes of action at trial. We found nothing in section 10472 precluding Day from filing a new CRA application after obtaining a final judgment against Demoff.

Moreover, we conclude the BRE’s decision to consider the Second Application fulfilled the underlying legislative polices of the CRA. The purpose of paying funds from the CRA is to “raise the standards of the real estate profession” by requiring licensees to conduct themselves ethically and fairly. As explained in our prior opinion, the court entered the default judgment after Demoff’s counsel repeatedly sought continuances of the trial, and then failed to appear on the date set for trial. (Day I, supra, G043227.) Demoff refused to discharge the lawyer despite being cautioned by the trial court the case needed to go to trial. (Ibid.) Frustrated by “the defense shenanigans in this case and in particular with [Demoff’s counsel’s] unprofessional behavior” the trial court struck the answer, entered defaults, and set a default prove-up hearing. (Ibid.) Although we reversed this ruling as being in excess of the trial court’s authority, Demoff’s appellate victory cannot be attributed to her ethical or fair conduct. The legislative objectives of the CRA Program would not be served by adopting Demoff’s interpretation of section 10472, or her theory Day was limited to one application based on a technically deficient default judgment. We applaud the BRE for appropriately construing the statutes/regulations governing the CRA and achieving its remedial purpose.

V. Standard of Proof

Demoff maintains the BRE’s payment from the CRA and the resulting suspension of her license was a disciplinary action, which required proof of fraud by “clear and convincing evidence” and not by a “preponderance of the evidence” standard for a civil fraud claim. She raises the following contention: “The minimal investigation conducted by [the BRE] in this matter failed to meet [the clear and convincing evidence] standard. To support [the BRE’s] failure, and justify the action, [the] superior court impermissibly lowered the burden placed on [the BRE] to a ‘preponderance of the evidence.’ [Citation.] Such an action violated [Demoff’s] due process rights.”

The trial court agreed with BRE’s argument that the statutes governing payment from the CRA are remedial, requiring a lower standard of proof. We conclude labeling the CRA program as remedial does not change the fact the statutory scheme has a severe disciplinary component effecting a fundamental vested right, and thus, requiring a higher standard of proof.

“‘Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.’ [Citation.] In determining the proper standard of proof to apply in administrative license revocation proceedings, courts have drawn a distinction between professional licenses such as those held by doctors [citation], lawyers [citation], and real estate brokers [citation] on the one hand, and nonprofessional or occupational licenses such as those held by food processors [citation], and vehicle salespersons [citation], on the other hand. In proceedings to revoke professional licenses, the decision makers apply the clear and convincing evidence standard of proof, while in proceedings to revoke nonprofessional or occupational licenses, the decision makers apply the preponderance of the evidence standard of proof.” (Imports Performance v. Department of Consumer Affairs, Bureau of Automotive Repair (2011) 201 Cal.App.4th 911, 916 (Imports Performance).)

“The ‘sharp distinction between professional licenses, on the one hand, and . . . nonprofessional licenses, on the other, supports the distinction in the standards of proof applicable in proceedings to revoke these two different types of licenses. Because a professional license represents the licensee’s fulfillment of extensive educational, training and testing requirements, the licensee has an extremely strong interest in retaining the license that he or she has expended so much effort in obtaining. It makes sense to require that a higher standard of proof be met in a proceeding to revoke or suspend such a license.” (Imports Performance, supra, 201 Cal.App.4th at p. 916.)

Case authority also recognizes a distinction between license suspension and revocation proceedings from other citation proceedings. For example, in Owen v. Sands (2009) 176 Cal.App.4th 985, 988-989 (Owen), the Registrar of Contractors (Registrar) ordered a licensed contractor to pay civil penalties and compensation to a homeowner due to defective work performed on a private residence. The issue on appeal was whether the clear and convincing evidence standard that courts applied in license suspension and revocation proceedings (doctor, attorney, and real estate licenses) also applied in a contractor’s citation proceeding. (Id. at p. 989.) The court first examined the line of cases applying the clear and convincing evidence standard of proof. (Id. at pp. 991-992.) “‘[W]e often have recognized that an individual, having obtained the license required to engage in a particular profession or vocation, has a “fundamental vested right” to continue in that activity. [Citations.] [¶] A licensee, having obtained such a fundamental vested right, is entitled to certain procedural protections greater than those accorded an applicant. For example, this court repeatedly has held, with exceptions not pertinent here, that the “independent judgment” standard of review must be applied [in the trial court] to an administrative decision that substantially affects such a fundamental vested right. [Citations.]’ [Citation.] ‘Similarly, it has been held that procedural due process of law requires a regulatory board or agency to prove the allegations of an accusation filed against a licensee by clear and convincing evidence rather than merely by a preponderance of the evidence. [Citations.]” (Id. at pp. 991-992, citing Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 788-789.)

The court next turned to case authority considering the appropriate trial court standard of review with respect to citation proceedings (because of the lack of authority regarding the Registrar’s standard of review). (Owen, supra, 176 Cal.App.4th at p. 992.) In cases where the “‘only sanction imposed is a fine—not revocation, suspension, or restriction of the petitioner’s license—no fundamental vested right is implicated and the trial court is not authorized to exercise independent judgment on the evidence.’” (Ibid., citing Handyman Connection of Sacramento, Inc. v. Sands (2004) 123 Cal.App.4th 867, 880.)

Based on the Supreme Court’s determination that application of the independent judgment standard of review and the clear and convincing evidence standard of proof depended on the nature of the fundamental vested property right, the court in Owen concluded “that, because the citation hearing on review could only result in civil penalties or correction orders, and could not have resulted in orders suspending, limiting, or revoking [the contractor’s] license, the preponderance of the evidence rather than the clear and convincing evidence standard of proof applied.” (Owen, supra, 176 Cal.App.4th at p. 992.)

The court in Owen rejected the contractor’s argument the citation hearing was “nonetheless a ‘disciplinary hearing’” because the relevant statutes were codified in an article of the Business and Professions Code entitled ‘Disciplinary Proceedings’” and the citation was a type of discipline. (Owen, supra, 176 Cal.App.4th at p. 993.) It determined “the procedural safeguards the due process clause requires in an administrative proceeding” is not determined solely on whether “the proceeding is ‘disciplinary’ . . . [i]nstead, the necessary procedural safeguards are determined through a balancing test, which includes assessing the weight of ‘“the private interest that will be affected by the official action.”’ [Citation.]” (Ibid.) It concluded, “Licensed contractors cited for violations and subject only to sanctions such as correction orders or monetary penalties are not entitled to the same procedural safeguards afforded to contractors who face restriction, suspension, or revocation of their licenses.” (Ibid.)

The court also rejected the contractor’s argument “that his citation proceeding was equivalent to a disciplinary proceeding that could result in suspension or revocation of his license because if he fail[ed] to pay the fines and penalties assessed by the Registrar his license w[ould] be suspended or revoked by operation of law. [Citation.]” (Owen, supra, 176 Cal.App.4th at p. 993, fn. omitted.) The court reached the following conclusion: “That the Registrar can enforce the correction orders and penalties in this manner does not change the fact that the greatest sanction that could be imposed in the citation proceeding itself was a fine or penalty, not suspension or revocation of his license. Critically, [the contractor] does not argue that the fines and penalties imposed were so burdensome as to be tantamount to a suspension or revocation of his license.” (Id. at pp. 993-994, fn. omitted.) The Registrar’s citation imposed $1,600 in civil penalties and its “order of correction” awarded the homeowner $7,880.79. (Id. at p. 989.)

Here, the BRE asserts the statute is purely remedial and cannot be considered disciplinary. It is true the CRA statutory scheme is located in a different chapter from Chapter 3, Article 3’s “Disciplinary Actions.” (See 10175 et seq.) Chapter 6, titled “Revenue,” which immediately precedes the CRA-related statutes, concerns the maintenance of, and payments to, the Real Estate Fund, which makes contributions to the CRA. Chapter 6.5, titled “Real Estate Recovery Program,” contains all the provisions relevant to the CRA, and is what its title suggests, a plan of action designed to accomplish several legislative goals. Specifically, there is a compensation component created to protect members of the public victimized by dishonest licensees as well as a disciplinary component designed to accomplish two different objectives. First, suspension of the wrongdoer’s license serves as an effective punishment for those in the real estate profession not dealing fairly and ethically with their clients. As stated earlier, the overall purpose of the CRA is to help raise the standards of the real estate profession. Second, requiring the licensee to replenish the CRA “plus interest at the prevailing legal rate” provides a strong incentive to restore funds to the CRA to be used for other victims. (§ 10475.) This debt is not dischargeable in bankruptcy and must be repaid to lift the suspension. (Ibid.) When the judgment is large, as in this case, the license suspension may become permanent.

In any event, as noted in Owen, the statutory title of the administrative procedure does not determine the necessary level of due process safeguards. In this case, the statutory provisions relating to the CRA program contain many of the notice and due process provisions typically seen in other administrative disciplinary proceedings. Specifically, the licensee is afforded notice (§§ 10471, subd. (e), 10471.1), and an opportunity to defend an action against the BRE (§ 10473.1). After the Commissioner’s final decision, the licensee must be notified of the amount of payment and the automatic license suspension. (§§ 10471.5, 10475.) The statute specifically requires the Commissioner to notify the licensee of the right to seek judicial review of the license suspension by petitioning the superior court for a writ of mandamus. (§ 10471.5.) We conclude the CRA program is a hybrid of remedial and disciplinary provisions, and because the proceedings implicate a fundamental vested right, the Commissioner and reviewing trial court must apply a clear and convincing standard of proof.

The BRE asserts the CRA program is not disciplinary because the license suspension was automatic and can be reinstated without the Commissioner’s involvement. It maintains the Commissioner’s only task was to determine if the criteria for a CRA payment was satisfied, which does not require an adjudicative or discretionary act. It suggests the task was entirely administrative, a matter of checking off the documents required by statute (§ 10471, subd. (c)(1)-(6)) to be part of the application.

This assertion goes to the heart of Demoff’s due process concerns. Indeed, the question we must decide is “whether the Legislature can constitutionally authorize the imposition of professional discipline based only on clear and convincing evidence that a civil judgment was entered against the professional for license-related misconduct, without requiring that the judgment itself have been based on clear and convincing evidence.” (Grubb, supra, 194 Cal.App.4th at pp. 1504-1505.) In short, we conclude the answer is no. Demoff’s due process rights were violated when the trial court used the preponderance of the evidence standard in evaluating the evidence in its de novo review of the Commissioner’s decision.

The legal analysis in the Grubb case is instructive. In that case, a licensed real estate brokerage firm, The Grubb Company, Inc. (the Brokerage), was sued after one of its employees represented both parties in a real estate deal and refused to return the buyers’ deposit after the sale fell through. (Grubb, supra, 194 Cal.App.4th at p. 1496.) The jury determined the Brokerage made misrepresentations and breached its fiduciary duty, but it also concluded the buyers had failed to prove by clear and convincing evidence that the Brokerage or its employee acted with malice, fraud, or oppression. (Ibid.)

Thereafter, the California Real Estate Commissioner (Commissioner) initiated administrative disciplinary proceedings against the Brokerage under section 10177.5. (Grubb, supra, 194 Cal.App.4th at p. 1497.) That section provides the following: “When a final judgment is obtained in a civil action against any real estate licensee upon grounds of fraud, misrepresentation, or deceit with reference to any transaction for which a license is required under this division, the Commissioner may, after hearing in accordance with the provisions of this part relating to hearings, suspend or revoke the license of such real estate licensee.” (§ 10177.5) “By its terms, section 10177.5 permits the Commissioner to discipline a real estate licensee based solely on the entry of a judgment against the licensee for fraud, misrepresentation, or deceit in a real estate transaction, without reference to the facts underlying that judgment.” (Grubb, supra, 194 Cal.App.4th at p. 1502.)

In Grubb, the administrative law judge recommended no discipline, but the Commissioner suspended the Brokerage’s license for 30 days and permitted it to pay a fine in lieu of suspension. (Grubb, supra, 194 Cal.App.4th at p. 1501.) The court explained that in rejecting the recommendation, the Commissioner “acknowledged that discipline against a professional licensee must be based on clear and convincing evidence, but concluded that under section 10177.5, the only fact that must be proven by clear and convincing evidence is the existence of a judgment based on fraud, misrepresentation, or deceit in reference to a transaction for which a license is required. (Ibid.) The trial court agreed and denied the Brokerage’s petition for a writ of mandate. (Ibid.)

The appellate court in the Grubb case stated, “The main legal issue presented by this appeal is whether the application of section 10177.5 to the particular circumstances of this case violates the principle that, under the California Constitution, the suspension or revocation of a professional license must be based on misconduct proven by clear and convincing evidence. [Citation.]” (Grubb, supra, 194 Cal.App.4th at p. 1502.) The parties did not dispute the jury’s special verdicts in the underlying litigation clearly indicated the jury found fraud by a preponderance of the evidence, and expressly declined to impose punitive damages (which would have required clear and convincing evidence of malice, oppression, or fraud). (Id. at pp. 1502-1503.) Under these circumstances, the Brokerage asserted any discipline imposed under section 10177.5 violated the Brokerage’s due process right to proof by clear and convincing evidence.

The court offered the following analysis, “While the Commissioner’s ruling was based on principles of collateral estoppel, we agree with [the Brokerage] that collateral estoppel does not apply when the factual finding in the prior proceeding was arrived at based on a lower standard of proof than the one required in the subsequent proceeding. [Citation.] Indeed, [many Supreme Court and appellate court decisions] . . . stress that professional licensees’ due process rights require that proof of misconduct be by clear and convincing evidence. [Citations.] This conclusion is also consistent with application of the doctrine of collateral estoppel in other contexts, such as where a civil judgment based on a finding by a preponderance of the evidence is not collateral estoppel in a subsequent criminal matter. [Citation.]” (Grubb, supra, 194 Cal.App.4th at pp. 1503-1504.)

The court rejected the Commissioner’s argument that “‘if the elements of fraud have been proved in the civil action, collateral estoppel principles bar the licensee from attempting to relitigate those facts at the administrative proceeding. [Citations.]’ [Citations.]” (Grubb, supra, 194 Cal.App.4th at p. 1504.) It noted the Commissioner was relying on two inapt cases; the first discussed outdated case authority and the second involved a fraud judgment based on clear and convincing evidence because the jury awarded punitive damages against the realtor. (Ibid.) “Thus, in that [second] case, the court’s reliance on the fact of that judgment alone subsequently to impose discipline was consistent with both due process and the doctrine of collateral estoppel.” (Ibid.)

The court offered the following analysis: “[E]ven if collateral estoppel could apply in the context of an earlier judgment based on a quantum of proof lower than that required in the subsequent proceeding, this does not answer the due process question [the Brokerage] raises. Thus, the real question here is not whether collateral estoppel applies, but whether the Legislature can constitutionally authorize the imposition of professional discipline based only on clear and convincing evidence that a civil judgment has been entered against the professional for license-related misconduct, without requiring that the judgment itself have been based on clear and convincing evidence. [¶] In the attorney licensing and disciplinary context, it is settled law that findings made by a preponderance of the evidence in civil cases cannot be given binding effect, because clear and convincing evidence is required. [Citation.] [¶] The Commissioner has not articulated a principled reason why a different rule should apply in real estate discipline proceedings. Instead, he argues that if we adopt [the Brokerage’s] position, section 10177.5 would be nullified. We acknowledge that we are obligated to construe a statute in such a way as to uphold its constitutionality, if the interpretation is consistent with the statutory language and purpose. [Citation.] This result can be achieved here, however, and section 10177.5’s utility preserved, by interpreting section 10177.5 to provide that the Commissioner may impose discipline based on ‘a final judgment . . . in a civil action against any real estate licensee upon grounds of fraud, misrepresentation, or deceit with reference to any transaction for which a license is required,’ but only when the plaintiff in the civil action proved fraud, misrepresentation, or deceit by clear and convincing evidence. Thus, for example, if the jury in the present case had entered a verdict for punitive damages against [the Brokerage], section 10177.5 would have applied . . . . [Citation.] [¶] In sum, we conclude that the limiting construction proposed above is necessary in order to harmonize section 10177.5 with constitutional due process principles that were not well settled at the time of the statute’s original enactment in 1945. Because the proceedings in this case did not comport with the constitutionally mandated construction of the requirements of section 10177.5, we agree with [the Brokerage] that the trial court erred in denying its petition for writ of mandate.” (Grubb, supra, 194 Cal.App.4th at pp. 1504-1505.)

This legal analysis is applicable in our consideration of the CRA program. We can find only a few minor distinctions between sections 10177.5 and 10471, but none make a difference to the underlying due process legal analysis of what is required before a license can be suspended. For example, we appreciate each statute permits different parties to initiate BRE proceedings (the Commissioner initiates a § 10177.5 hearing, and the fraud victim files a petition under § 10471). The BRE suggests a victim seeking compensation should not have the same burden as a Commissioner engaging in a disciplinary proceeding. We would agree if the victim were merely seeking compensation. However, the Legislature incorporated into the CRA program a disciplinary component, so that the victim’s application significantly impacts a fundamental vested right. We cannot ignore that when a victim’s application is successful, the judgment debtor’s license is suspended without any further hearings or disciplinary proceedings. There is no second chance to afford the licensee his or her due process rights. Thus, due to the disciplinary component of the CRA program, the victim is unfortunately burdened with the same standard of proof as the Commissioner pursuing a section 10177.5 disciplinary action. We cannot legally justify a lesser standard of proof based on who initiates the disciplinary proceedings.

Section 10471 differs from section 10177.5 in that it permits payment/discipline for more than just a final civil judgment, and extends payment to victims who have obtained final arbitration awards and criminal restitution orders against malfeasant real estate licensees and brokers. Given this broader scope of possible judgments and orders, the statute requires the applicant to provide in addition to a copy of the judgment, “[a] detailed narrative statement of the facts in explanation of the allegations of the complaint upon which the underlying judgment is based.” (§ 10471, subd. (c)(4).) Unlike a section 10177.5 hearing, a section 10471 hearing requires the Commissioner review more than the fraud judgment. The section 10471 hearing involves a longer and more fact-intensive hearing. This is because the Commissioner must also decide whether the victim meets the qualifications for payment, i.e., what efforts were made to collect the judgment, the victim’s relationship to licensee, and if victim “prosecuted conscientiously and in good faith” the underlying action. (§ 10471, subd. (c)(5).) The Commissioner may need to dig deeper into the facts underlying the judgment to determine whether the judgment creditor qualified for funds by considering if there was license-related misconduct covered by the statute.

Despite the differences, what cannot be ignored is that both statutes contemplate suspension of a real estate license due to license-related misconduct. As determined in the Grubb case, the Legislature cannot constitutionally authorize the imposition of professional discipline for fraud based on the preponderance of the evidence standard of proof. The Grubb court upheld the constitutionality of section 10177.5 by construing the statute to require clear and convincing evidence that a civil judgment was entered for license-related misconduct (such as when punitive damages have been awarded). (Grubb, supra, 194 Cal.App.4th at pp. 1504-1505.) The license cannot be revoked when fraud was established in a civil trial only by the preponderance of the evidence. This same analysis is equally applicable to section 10471 proceedings.

We construe section 10471 to uphold its constitutionality, holding the Commissioner and the reviewing trial court may only impose discipline if the victim could prove fraud, misrepresentation, or deceit by clear and convincing evidence. As noted in the Grubb case, this can be accomplished by the victim’s civil judgment or arbitration award including an award of punitive damages. (Grubb, supra, 194 Cal.App.4th at pp. 1504-1505.) Moreover, because the Commissioner (and reviewing trial court) considering a CRA petition also possess documents and a narrative relating to the underlying license-related misconduct, the Commissioner (and court) are in the unique position to evaluate the documents and determine if there was clear and convincing evidence of fraud, misrepresentation, or deceit.

Because in this case the trial court applied a lower standard of proof (preponderance of the evidence) the ruling must be reversed. We remand the matter for independent review using a clear and convincing evidence standard of proof.

VI. Evidence of License-Related Misconduct

Demoff asserts that applying the standard of proof used by the trial court, there was not a preponderance of the evidence her fraudulent transactions required her real estate license. Because we have remanded the case for a new hearing, applying the correct standard of proof, we need not address this contention. The trial court must determine if there was clear and convincing evidence Demoff’s final judgment of fraud arose “directly out of any transaction in which [Demoff] . . . performed acts for which a real estate license . . . was required . . . .” (§ 10471, subd. (a).)

VII. Standard of Review of Petition for Writ of Mandate

Demoff maintains the Commissioner abused his discretion in failing to issue a written decision with detailed factual findings and legal conclusions. Specifically, she complains, “no factual findings were produced or procedural steps explained as to why the amount was imposed.” She explains this was prejudicial error because “without a decision setting forth the facts and calculations contemplated” her right to challenge the decision by filing a petition for a writ of mandate “was futile.” She asserts the error was compounded when the trial court “was forced to articulate the factual findings for [BRE]” and cure the BRE’s defective written decision. She notes the court supplied its own rationale for discipline, improperly relied on hypotheticals, and engaged in speculation.

To support this contention, Demoff relies on a single case concerning an administrative agency’s decision to grant a land variance. (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506.) That court determined administrative agencies granting zoning variances “must render findings to support their ultimate rulings [and] . . . that when called upon to scrutinize a grant of a variance, a reviewing court must determine whether substantial evidence supports the findings of the administrative board and whether the findings support the board’s action.” (Id. at pp. 509-510, italics added.) This case is inapplicable because when the trial court’s review is limited to determining whether the findings are supported by substantial evidence, “the administrative decision neither involves nor substantially affects a fundamental vested right[.]” (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313.)

The Commissioner’s suspension of a real estate license concerned a vested fundamental right requiring the trial court to exercise its independent judgment on the evidence presented in the administrative hearing. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143 (Bixby); Code Civ. Proc., § 1094.5, subd. (c).) “By carefully scrutinizing administrative decisions which substantially affect vested, fundamental rights, the courts of California have undertaken to protect such rights, and particularly the right to practice one’s trade or profession, from untoward intrusions by the massive apparatus of government. If the decision of an administrative agency will substantially affect such a right, the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Ibid., fn. omitted.)

In the case before us, the trial court correctly applied a de novo review standard when considering the Commissioner’s ruling. Under this standard, any of the administrative agencies factual and legal findings are irrelevant. Indeed, the trial court permitted Demoff to submit evidence and argument regarding the viability of the application and payment amount. The court then exercised its independent judgment and issued a statement of decision making factual and legal conclusions before denying the petition. Demoff mischaracterizes the court’s independent judgment as a misguided effort to fix the BRE’s factually defective written decision.

We conclude the court’s statement of decision properly reflected its factual findings and conclusions of law. The record does not support Demoff’s assertion the trial court’s ruling was based on speculation and unfounded hypotheticals. She does not provide any legal analysis or record citations to support her theory the CRA payment amount was improperly calculated or too speculative. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [appellant must present reasoned argument or waived]; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) As noted earlier in this opinion, the only error we found in the statement of decision was a legal one, application of a lower standard of proof (preponderance of the evidence rather than clear and convincing proof of license-related fraud).

DISPOSITION

The judgment is reversed with directions to set aside the order denying Demoff’s petition for administrative mandamus and remanded for a new hearing applying the appropriate standard of proof. Appellant shall recover her costs on appeal.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

GOETHALS, J.

Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Barbara Kvistad vs Alexandra Van Antwerp
Case No: 19CV05329
Hearing Date: Fri Nov 22, 2019 9:30

Nature of Proceedings: Demurrer

TENTATIVE RULING: For the reasons articulated below, the demurrer is sustained, without leave to amend.

A verified unlawful detainer complaint was filed October 4, 2019. It alleges that plaintiff, as owner of premises at 4436 La Tierra Lane in Carpinteria, entered into a written agreement with defendant on 4/22/16 for a 12 month tenancy, with rent of $3,600 payable monthly on the first of the month. The agreement is attached. Defendant was served with a 3-day notice to pay rent or quit which included an election of forfeiture, by personal service, on 9/20/19. The period expired on 9/24/19. The notice is attached. At the time the 3-day notice was served, the amount of rent due was $58,500. The fair rental value of the premises is $120/day.

The Agreement provides for a 12-month tenancy, ending on May 31, 2017, with creation of a month-to-month tenancy thereafter should the landlord accept rent from the tenant after that date. It provided for monthly rent of $3,600/month, payable on the first of each month, but provided for the tenant to receive a $100 discount on the monthly rent if the rent amount is received by the landlord prior to the due date. The agreement provided that rent shall be paid by auto-deposit into a specified account held by the landlord.

The 3-Day Notice to Pay Rent or Quit states that the $58,500.00 sought represents rent due and unpaid for the months of April 2018 through September 2019, plus late fees.

Defendant has demurred to the complaint, contending that the 3-day Notice is defective, in that it includes rent owed more than one year prior to the date the Notice was served. Plaintiff’s Notice includes rent due April–September 2018, which is more than one year prior to the served of the notice on 9/20/19. Further, defendant contends that the Notice does not state how rent should be paid, and if personally, the days and hours for payment, as required by Code of Civil Procedure section 1161.

Plaintiff has not opposed the demurrer.

ANALYSIS: The demurrer is sustained, without leave to amend.

The 3-day Notice to Pay Rent or Quit notice was fatally deficient in seeking rent due and owing for a period longer than 1 year prior to the service of the notice. Code of Civil Procedure section 1161(2) requires that the three-day nonpayment of rent notice be served on the tenant at any time within one year after the rent becomes due. Such a notice is invalid, and will not support an unlawful detainer, if it demands rent due for more than one year prior to service of the notice. (See Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697-698.) This is because unlawful detainer is a summary proceeding. If the landlord waits over a year to sue for unpaid rent, he or she is limited to collecting that rent in a separate breach of contract action. (Levitz Furniture Co. of the Pac., Inc. v. Wingtip Communications, Inc. (2001) 86 Cal.App.4th 1035, 1042.) Only rent due and owing within a year of serving the notice may be collected in the summary unlawful detainer proceeding.

Additionally, defendant is correct that the 3-day notice was also defective in its complete failure to address the manner in which the rent due was to be paid. Pursuant to Code of Civil Procedure section 1161(2), the notice must state the name, telephone number, and address of the person to whom the rent payment shall be made and, if an electronic funds transfer procedure has been previously established, must state that payment may be made pursuant to that procedure. While the notice properly stated the name, telephone number, and address of the person to whom the rent must be paid, i.e., here, the landlord, it did not contain the required statement that payment could properly be made pursuant to the electronic transfer procedure that existed between the parties. The Notice was not defective, however, in its failure to state usual days and hours the person would be available to receive payment; that is only required if the notice provides that the payment may be made personally, which this notice did not.

In any event, the 3-Day Notice to Pay Rent or Quit was fatally defective in these respects, and cannot support an unlawful detainer action. As a result, this Court has no alternative but to sustain the demurrer, without leave to amend.

Landlord is free to serve a compliant 3-Day Notice upon the tenant, and proceed with a subsequent unlawful detainer action, and obtain possession of the premises in that manner. Landlord is also free to seek the full amount of rent owed in a breach of contract action against the tenant.

Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
David Weisman vs Michael Post
Case No: 1469303
Hearing Date: Fri Nov 22, 2019 9:30

Nature of Proceedings: Motion for Attorney Fees and Costs to Plaintiff Against Defendant

Tentative Ruling: The court grants plaintiff David Weisman’s motion to attorney fees and awards attorney fees in the amount of $104,863.50.

Background: On October 24, 2014, plaintiff David Weisman brought this action against defendant Michael Post to determine that defendant had no publicity rights under Civil Code § 3344.1 because Edie Sedgwick was not a “deceased personality” as defined in that statute. On August 26, 2019, the court entered judgment after a court trial in favor of plaintiff. The court specifically ordered and decreed that plaintiff was the prevailing party entitled to costs of suit.

On October 8, plaintiff served by mail a notice of entry of judgment and a memorandum of costs in the amount of $12,312.30 plus attorney fees in an amount to be determined. There is no motion to tax or strike costs. On November 7, defendant filed a motion for new trial.

Motion: Plaintiff moves for attorney fees in the amount of $110,038.50 under Civil Code § 3344.1(a)(1) and as costs of proof under CCP § 2033.420. Defendant has not filed an opposition to the motion.

Plaintiff’s counsel submitted a declaration in support of the motion with four exhibits. Plaintiff filed a request for judicial notice in support of the motion with six attached exhibits. There are no electronic bookmarks for the exhibits. “[E]lectronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” CRC 3.1110(f)(4). This rule has been in effect since January 1, 2017. The exhibits consist of 174 pages. Plaintiff apparently expects the court to scroll through all those pages to find what plaintiff is referring to in the motion.

1. Civil Code § 3341: Civil Code § 3344.1(a)(1) (hereafter “§ 3344.1”) provides: “The prevailing party or parties in any action under this section shall also be entitled to attorney’s fees and costs.” The statute provides for actions for damages and does not mention declaratory relief. Nevertheless, courts have held that attorney fees under § 3344.1 may be awarded to declaratory judgment plaintiffs. Electronic Arts Inc. v. Hebrew University of Jerusalem, 100 F.App’x 629, 632 (9th Cir. 2004); Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc., 2009 WL 10669361, at *10 (C.D. Cal. Mar. 25, 2009).

In his first amended complaint [FAC], plaintiff alleges that defendant wrongfully claimed to be the successor-in-interest to Sedgwick under § 3344.1. [FAC ¶¶24, 25] At trial, defendant sought to prove “that there was in fact at least ‘some’ commercial value at the time of her death or as the result of her death, which is all that is required under Civil Code Section 3344.1.” Plaintiff sought and obtained declaratory relief that defendant has no publicity rights to Sedgwick under § 3344.1 or otherwise. Plaintiff also sought and obtained injunctive relief on the same grounds as declaratory relief.

Plaintiff is entitled to attorney fees under § 3344.1(a)(1).

2. CCP § 2033.420: Plaintiff alternatively seeks attorney fees under CCP § 2033.420(a), which provides: “If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees.”

The court did scroll through the exhibits to find Exhibit D to counsel’s declaration and Exhibit 1 to the request for judicial notice, which are identical. These exhibits consist of a Request for Admissions and the responses to a Request for Production of Documents. So, in addition to the deficiency in exhibits lacking electronic bookmarks, plaintiff has not produced admissible evidence of the responses to requests for admission.

The court will not base its attorney fee award on CCP § 2033.420.

3. Amount of Attorney Fees: Plaintiff seeks attorney fees for 197.3 hours at the rate of $495 per hour, for a total of $97,663.50; and costs totaling $12,375.

The fee request inquiry begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. PLCM Grp. v. Drexler, 22 Cal.4th 1084, 1095 (2000). “The value of legal services performed in a case is a matter in which the trial court has its own expertise. [Citation] The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony.” Id. at 1096. A trial court need not “become enmeshed in a meticulous analysis of every detailed facet of the professional representation.” Serrano v. Unruh, 32 Cal.3d 621, 642 (1982). Otherwise the inquiry into the mount of the fee would “assume massive proportions, perhaps dwarfing the case in chief.” Id.

A trial judge ‘is entitled to take all of the circumstances [of the case] into account and is not bound by the itemization claimed in the attorney’s affidavit.’” Hadley v. Krepel, 167 Cal.App.3d 677, 682-683 (1985) [citations omitted]. “[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” Horsford v. Bd. Of Trustees of California State Univ., 132 Cal.App.4th 359, 396 (2005).

The court finds the rate charged by experienced counsel is reasonable. The hours expended reflect the complexity of the case and quality of the representation.

The bill includes $7,200 for paralegal services at $150 per hour. “[N]ecessary support services for attorneys, e.g., secretarial and paralegal services, are includable within an award of attorney fees.” Salton Bay Marina, Inc. v. Imperial Irrigation Dist., 172 Cal.App.3d 914, 951 (1985). Plaintiff seeks compensation for paralegal services. “[A]wards of attorney fees for paralegal time have become commonplace in California….” Guinn v. Dotson, 23 Cal.App.4th 262, 269 (1994). The court will award fees for paralegal services as part of the attorney fee award.

The total attorney fee award is $104,863.50.

4. Costs: Plaintiff seeks expert witness fee costs ($5,000) and courier and routine services costs ($175).

Plaintiff is not entitled to recover, as part of the attorney fee award, costs that are not recoverable under CCP § 1033.5. In Bussey v. Affleck, 225 Cal.App.3d 1162 (1990), a panel of the First District Court of Appeal that “where a contract provides for payment of costs and attorney’s fees, the court may allow disbursements of counsel as attorney fees under section 1033.5, subdivision (a)(10), if they represent expenses ordinarily billed to a client and are not included in the overhead component of counsel’s hourly rate.” Id. at 1166. But the weight of authority appears to hold contrary – that expert witness fees and various other litigation expenses not allowed by statute are not recoverable as costs even when a contract provides for the recovery of attorney fees and costs by the prevailing party. Ripley v. Pappadopoulos, 23 Cal.App.4th 1616, 1626 (1994). “In the absence of some specific provision of law otherwise, attorney fees and the expenses of litigation, whether termed costs, disbursements, outlays, or something else, are mutually exclusive, that is, attorney fees do not include such costs and costs do not include attorney fees.” Id. See also Hsu v. Semiconductor Systems, Inc., 126 Cal.App.4th 1330, 1342 (2005), a First District case expressly disavowing Bussey.

This court is particularly influenced by a decision of the Second District, Div. 6, Jones v. Union Bank of California, 127 Cal.App.4th 542 (2005). That court held: “Because costs other than those allowed under section 1033.5 are not based on statute, they must be specifically pleaded and proved at trial rather than included in a memorandum of costs.” Id. at 551.

The court will not include these costs in the award.

5. Order: The court grants plaintiff David Weisman’s motion to attorney fees and awards attorney fees in the amount of $104,863.50.

Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Sean Carmean vs Martha Rodriguez et al
Case No: 18CV03763
Hearing Date: Fri Nov 22, 2019 9:30

Nature of Proceedings: Motion: Compel Neuropsychological Exam; Motion to Continue Trial/Pre-Trial

Tentative Ruling: The court grants defendant LTK Home Care, Inc.’s application to compel the mental examination of plaintiff. Defendant’s proposed order is acceptable but must be modified to include conditions 1-8 and 10-12 at pages 3 and 4 of plaintiff’s opposition to the application. (Condition #9 is already included in the proposed order.)

Background: This action arises out of an automobile-motorcycle collision on December 22, 2017. Plaintiff Sean Carmean alleges that defendant Martha Rodriguez caused the collision. LTK Home Care, Inc., was Rodriguez’s employer at the time of the collision. Trial is set for January 10, 2020.

Motion: LTK applies for an order compelling a mental examination of plaintiff by psychologist Dr. Kyle Boone, Ph.D. Carmean opposes the application.

A party may obtain discovery by means of a mental examination of a party to the action if the mental condition of that party is in controversy in the action. CCP § 2032.020(a). There is no dispute that Carmean’s mental condition is in controversy in this action as he alleges that he continues to suffer from severe cognitive deficits and emotional injuries as a result of the collision.

1. Designation of Expert Witness: Carmean initially agreed to the examination by Dr. Boone but he proposed conditions. He apparently did not raise the issue of designation of an expert witness by LTK. It appears those discussions took place prior to the expert witness exchange. However, in opposing the application, he does raise the issue.

On October 21, 2019, Carmean served a demand for exchange of expert witness information with an exchange date of November 14. (LTK had served its demand for exchange of expert information on October 15 and Rodriguez had served hers on October 11.) Plaintiff and Rodriguez served expert witness designations on November 14. LTK did not designate any experts.

The issue before the court is not whether Dr. Boone can testify. Rather, it is whether LTK can conduct a mental examination. The purpose of discovery is to find information that “‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.’ [Citation]” Lipton v. Superior Court, 48 Cal.App.4th 1599, 1611-1612 (1996). The failure to designate Dr. Boone as an expert witness does not preclude the mental examination.

The court expresses no opinion as to whether a party who did not designate any experts can file a supplemental expert list under CCP § 2034.280(a). See, e.g., Fairfax v. Lords, 138 Cal.App.4th 1019, 1027 (2006); Du-All Safety, LLC v. Superior Court, 34 Cal.App.5th 485, 501 (2019).

2. Conditions for Examination: Other than the expert designation issue, Carmean does not contend that LTK is not entitled to a mental examination. Carmean wants certain conditions and to limit the type of tests Dr. Boone can administer.

The application anticipated Carmean’s insistence that a third person attend the examination to record it. In the list of conditions in his opposition to the application, Carmean only wants to record the examination, not to have anyone else present, which would be inappropriate. See generally Golfland Entertainment Centers, Inc. v. Superior Court, 108 Cal.App.4th 739, 747 (2003). Carmean may audio record the examination but no person may be present, other than Carmean, Dr. Boone, and a designated and identified assistant of Dr. Boone.

Conditions ##1-12 identified in Carmean’s opposition are standard and do not appear to be in controversy.

An order granting a mental examination must “specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.” CCP § 2032.320(d). LTK lists 24 tests in its proposed order. LTK then adds: “Dr. Boone, unfortunately, will not know exactly which tests on this list she will administer until she starts testing Plaintiff. … Dr. Boone may administer all, or only a subset, of the tests listed above. Which tests are actually used will depend on Plaintiff’s preliminary testing results and Dr. Boone’s assessment as to of whether further testing in any particular areas of concern is warranted.”

Carmean objects to the suggestion that Dr. Boone may not administer all of the tests and demands that LTK indicate which tests will be administered. The court fails to see the prejudice if Dr. Boone does not administer all the tests on the list. A judge and lawyers are in no position to prejudge what psychological tests will be necessary in a mental examination. If Dr. Boone determines that one or more of the tests is not necessary, that is her prerogative. The only stipulation is that she not administer tests not on the list of 24 tests.

The most serious issue between the parties is whether the examination can include “performance validity tests.” Carmean objects to five of them: the Wechsler Memory Scale—III or IV, the Warrington Recognition Memory Test, the Rey-15 Item, the Dot Counting Test, and the Modified Somatic Perception Questionnaire. Carmean says these tests “are not generally accepted by neuropsychologists and have no medical validity and are therefore burdensome, harassing and unnecessary and do not apply to this case” and “these tests go beyond neuropsychological testing.” [Opposition 5:23-24; 6:7]

Carmean provides no evidence or authority to support these medical conclusions. Carmean’s counsel may be very familiar with neuropsychological testing but he is not an expert in the field and his conclusory statements in a memorandum carry no weight. The court will not limit the testing other than confining it to the 24 listed tests.

The court grants defendant LTK Home Care, Inc.’s application to compel the mental examination of plaintiff. Defendant’s proposed order is acceptable but must be modified to include conditions 1-8 and 10-12 at pages 3 and 4 of plaintiff’s opposition to the application. (Condition #9 is already included in the proposed order.)

Case Number: BC705315
HSI CHE WANG VS MARY MEI LI FONG ET AL
Filing Courthouse: Stanley Mosk Courthouse

Filing Date: 05/07/2018
Case Type: Other Real Property (not eminent domain, landlord/tenant, foreclosure) (General Jurisdiction)
Status: Pending

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

01/14/2020 at 08:30 AM in Department 74 at 111 North Hill Street, Los Angeles, CA 90012
Final Status Conference

01/21/2020 at 10:00 AM in Department 74 at 111 North Hill Street, Los Angeles, CA 90012
Jury Trial

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

FONG MARY MEI LI – Cross-Complainant

FONG MARY MEI LI – Defendant

FONG MARY MEI LI – Cross-Complainant

LAU BENSON – Attorney for Cross-Defendant

LIU CONNIE CHING HUEI – Defendant

LIU CONNIE CHING HUEI – Cross-Complainant

LIU CONNIE CHING HUEI – Cross-Complainant

SATNICK ADAM MICHAEL – Attorney for Cross-Defendant

VAKILI SA’ID – Attorney for Cross-Complainant

VAKILI SA’ID ESQ. – Attorney for Cross-Complainant

WANG HSI CHE – Cross-Defendant

WANG HSI CHE AKA JAMES WANG – Cross-Defendant

WANG HSI CHE AKA JAMES WANG – Plaintiff

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

Documents Filed (Filing dates listed in descending order)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
01/22/2019

11/12/2019 Answer
Filed by Hsi Che Wang (Cross-Defendant)

11/12/2019 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

11/12/2019 Notice of Ruling
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

11/08/2019 Minute Order ( (Hearing on Motion to Compel Further Discovery Responses; Hear…))
Filed by Clerk

11/01/2019 Reply ( Memorandum of Points & Authorities in Support of Motions to Compel Further Responses to Production of Documents and Further Responses to Form Interrogatories)
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

10/28/2019 Declaration ( of Benson K. Lau, Esq. in support of Opposition to Motions to Compel)
Filed by Hsi Che Wang (Plaintiff)

10/28/2019 Opposition ( to Defendants Motions to Compel Further Responses and Production of Documents)
Filed by Hsi Che Wang (Plaintiff)

10/17/2019 Separate Statement
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

10/17/2019 Notice (Third Amended Notice of Motion to Compel Further Responses to Form Interrogatories & Request for MOnetary Sanctions)
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

10/17/2019 Affidavit (Appendix of Exhibits for Motion to Compel Further Responses to Form Interrogatories & Request for Monetary Sanctions)
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

10/17/2019 Memorandum of Points & Authorities
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

10/17/2019 Affidavit (Appendix of Exhibits for Motion to Compel Further Responses, Document Production & Request for Monetary Sanctions)
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

10/17/2019 Notice (Third Amended Notice of Motion to Compel Further Responses, Document Production & Request for Monetary Sanctions)
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

10/17/2019 Separate Statement
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

10/17/2019 Memorandum of Points & Authorities
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

10/08/2019 Second Amended Cross-Complaint
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

09/25/2019 Notice (Second Amended Notice of Motion to Compel Further Responses, Document Production & Request for Monetary Sanctions)
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

09/25/2019 Notice (Second Amended Notice of Motion to Compel Further Responses to Form Interrogatories & Request for Monetary Sanctions)
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

09/18/2019 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

09/18/2019 Minute Order ( (Hearing on Demurrer – with Motion to Strike (CCP 430.10)))
Filed by Clerk

09/11/2019 Reply (to Opposition to Motion to Strike Punitive Damages Allegations of First Amended Cross-Complaint)
Filed by Hsi Che Wang (Cross-Defendant)

09/11/2019 Reply (to Opposition to Demurrer to First Amended Cross-Complaint)
Filed by Hsi Che Wang (Cross-Defendant)

09/09/2019 Memorandum of Points & Authorities
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

09/09/2019 Memorandum of Points & Authorities
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

08/16/2019 Motion to Strike (not initial pleading)
Filed by Hsi Che Wang (Cross-Defendant)

08/16/2019 Declaration (of Benson K. Lau, Esq. in support of Demurrer to First Amended Cross-Complaint)
Filed by Hsi Che Wang (Cross-Defendant)

08/16/2019 Demurrer – with Motion to Strike (CCP 430.10)
Filed by Hsi Che Wang (Cross-Defendant)

06/28/2019 Notice (Amended Notice of Motion to Compel Further Responses, Document Production & Request for Monetary Sanctions)
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

06/28/2019 Notice (Amended Notice of Motion to Compel Further Responses & Request for Monetary Sanctions)
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

05/06/2019 Substitution of Attorney
Filed by Hsi Che Wang (Plaintiff)

05/06/2019 Substitution of Attorney
Filed by Hsi Che Wang (Plaintiff)

05/01/2019 Minute Order ( (Hearing on Demurrer – without Motion to Strike; Hearing on Ex…))
Filed by Clerk

05/01/2019 Ex Parte Application (Withdrawal of Attorney & Excuse from any Motions to Compel)
Filed by Hsi Che Wang (Plaintiff)

04/26/2019 Notice of Motion (NOTICE OF DEFENDANT/CROSS¿ COMPLAINANT MARY MElLI FONG’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES AND PRODUCTION OF DOCUMENTS TO HER FIRST PRODUCTION DEMAND TO)
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

04/26/2019 Notice of Motion (NOTICE OF DEFENDANT/CROSS¿ COMPLAINANT MARY MElLI FONG’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO HER FIRST SET OF FORM INTERROGATORIES TO PLAINTIFF/CROSS-DEFENDANT HSI CHE WANG A/KIA JAMES WANG,)
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

04/18/2019 First Amended Cross-Complaint of Defendants and Cross-Complainants Mary Mei Li Fong and Connie Ching Huei Liu for: (1) Breach of Oral Agreement; (2) Fraud; (3) Negligent Misrepresentation; (4) Violation of California Unfair Competition Law; and (5) etc.
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

04/18/2019 Cross-Complaint
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

03/11/2019 Notice (Out of Office)
Filed by Hsi Che Wang (Plaintiff)

03/06/2019 Demurrer – without Motion to Strike
Filed by Hsi Che Wang (Cross-Defendant)

02/19/2019 Cross-Complaint
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

02/19/2019 Answer
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

01/30/2019 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

01/30/2019 Minute Order ( (Hearing on Demurrer – without Motion to Strike To First Amend…))
Filed by Clerk

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 01/22/2019

01/22/2019 Reply (Reply MPA in Support of Def’s Demurrer to First Amended Complaint)
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

01/17/2019 Opposition (TO DEMURRER WITHOUT MOTION TO STRIKE)
Filed by Hsi Che Wang (Plaintiff)

01/17/2019 Case Management Statement
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

12/28/2018 Demurrer – without Motion to Strike (Notice of Demurrer and Demurrer to First Amended Complaint)
Filed by Hsi Che Wang (Plaintiff)

12/19/2018 Certificate of Mailing for (Minute Order (Hearing on Demurrer; Case Management Conference) of 12/19/2018)
Filed by Clerk

12/19/2018 Minute Order ((Hearing on Demurrer; Case Management Conference))
Filed by Clerk

12/18/2018 Notice (Defendant’s Mary Mei Li Fong And Connie Ching Huei Liu’s Notice Of Taking December 19, 2018 Hearing On Demurrer To Complaint Off Calendar)
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

11/20/2018 1st Amended Complaint
Filed by Hsi Che Wang (Plaintiff)

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

09/05/2018 Minute Order

09/04/2018 CASE MANAGEMENT STATEMENT

09/04/2018 Case Management Statement
Filed by James Wang (Legacy Party)

08/27/2018 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT OF DEFENDANTS MARY MEL LI FONG AND CONNIE CHING HUEI LIU; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF SA’ID VAKILI IN SUPPORT THEREOF

08/27/2018 Demurrer
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

07/20/2018 Minute order entered: 2018-07-20 00:00:00
Filed by Clerk

07/20/2018 Minute Order

07/17/2018 PROOF OF ELECTRONIC SERVICE

07/17/2018 Miscellaneous-Other
Filed by James Wang (Legacy Party)

07/16/2018 NOTICE OF ACKNOWLEDGEMENT OF RECEIPT – CIVIL

07/16/2018 DECLARATION OF ATTORNEY KWAN IN RESPONSE TO OSC: RE SERVICE OF PROCESS PROOF OF SERVICE FORM FILING

07/16/2018 NOTICE OF ACKNOWLEDGEMENT OF RECEIPT – CIVIL

07/16/2018 Notice and Acknowledgment of Receipt
Filed by Hsi Che Wang (Plaintiff); James Wang (Legacy Party)

07/16/2018 Notice and Acknowledgment of Receipt
Filed by Hsi Che Wang (Plaintiff); James Wang (Legacy Party)

07/16/2018 Declaration
Filed by Hsi Che Wang (Plaintiff); James Wang (Legacy Party)

05/18/2018 Proof-Service/Summons
Filed by Hsi Che Wang (Plaintiff); James Wang (Legacy Party)

05/18/2018 Proof-Service/Summons
Filed by Hsi Che Wang (Plaintiff); James Wang (Legacy Party)

05/18/2018 Proof of Service (not Summons and Complaint)
Filed by Hsi Che Wang (Plaintiff)

05/18/2018 Notice of Ruling
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

05/18/2018 Memorandum – Other
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

05/18/2018 Ex-Parte Application
Filed by Hsi Che Wang (Plaintiff); James Wang (Legacy Party)

05/18/2018 Minute order entered: 2018-05-18 00:00:00
Filed by Clerk

05/18/2018 PROOF OF SERVICE BY MAIL

05/18/2018 Minute Order

05/18/2018 PROOF OF SERVICE BY MAIL

05/18/2018 EX PARTE APPLICATION ON COMPLAINT FOR: BREACH OF CONTRACT, QUIET TITLE, PARTITION, UNJUST ENRICHMENT, ACCOUNTING & APPRAISAL, FOR A TRO AND; ETC.

05/18/2018 MEMORANDUM OF POINTS AND AUTHORITIES OF DEFENDANTS MARY MEL LI FONG AND CONNIE CHING HUEI LIU IN OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION FOR A TRO AND; ETC.

05/18/2018 PROOF OF SERVICE SUMMONS

05/18/2018 PROOF OF SERVICE SUMMONS

05/18/2018 NOTICE OF RULING ON PLAINTIFF’S EX PARTE APPLICATION FOR A TRO AND OSC RE: PRELIMINARY INJUNCTION ENJOINING ANY RENTAL OF UNIT A AND ALL UNITS UNTIL LITIGATION HAS BEEN DETERMINED

05/18/2018 Proof of Service (not Summons and Complaint)
Filed by Hsi Che Wang (Plaintiff); James Wang (Legacy Party)

05/16/2018 Notice of Case Management Conference
Filed by Clerk

05/16/2018 ORDER TO SHOW CAUSE HEARING

05/16/2018 OSC-Failure to File Proof of Serv
Filed by Clerk

05/16/2018 NOTICE OF CASE MANAGEMENT CONFERENCE

05/07/2018 COMPLAINT FOR: 1. BREACH OF CONTRACT ;ETC

05/07/2018 SUMMONS

05/07/2018 Complaint
Filed by Hsi Che Wang (Plaintiff)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 01/22/2019

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

Proceedings Held (Proceeding dates listed in descending order)

11/08/2019 at 08:30 AM in Department 74
Hearing on Motion to Compel Further Discovery Responses – Held – Motion Granted

11/08/2019 at 08:30 AM in Department 74
Hearing on Motion to Compel Further Discovery Responses – Held – Motion Granted

09/30/2019 at 08:30 AM in Department 74
Hearing on Motion to Compel Further Discovery Responses – Not Held – Rescheduled by Party

09/30/2019 at 08:30 AM in Department 74
Hearing on Motion to Compel Further Discovery Responses – Not Held – Rescheduled by Party

09/18/2019 at 08:30 AM in Department 74
Hearing on Demurrer – with Motion to Strike (CCP 430.10) – Held

08/13/2019 at 08:30 AM in Department 74
Hearing on Motion – Other (Notice of Motion and Motion to withdraw as Attorney of Record & excuse and release from any motion/s to compel)

07/26/2019 at 08:30 AM in Department 74
Hearing on Motion to Compel Further Discovery Responses – Not Held – Rescheduled by Party

07/26/2019 at 08:30 AM in Department 74
Hearing on Motion to Compel Further Discovery Responses – Not Held – Rescheduled by Party

05/01/2019 at 08:30 AM in Department 74
Hearing on Ex Parte Application (WITHDRAWAL OF ATTORNEY & EXCUSE FROM ANY MOTIONS TO COMPEL) – Held – Motion Denied

05/01/2019 at 08:30 AM in Department 74
Hearing on Demurrer – without Motion to Strike – Not Held – Taken Off Calendar by Party

01/30/2019 at 08:30 AM in Department 74
Case Management Conference – Held

01/30/2019 at 08:30 AM in Department 74
Hearing on Demurrer – without Motion to Strike (To First Amended Complaint) – Held

01/30/2019 at 08:30 AM in Department 74
Order to Show Cause Re: (entry of default) – Held

12/19/2018 at 08:32 AM in Department 74
Hearing on Demurrer – without Motion to Strike – Not Held – Taken Off Calendar by Party

12/19/2018 at 08:30 AM in Department 74
Case Management Conference – Not Held – Continued – Court’s Motion

09/05/2018 at 08:30 AM in Department 74
Case Management Conference (Conference-Case Management; Matter continued) –

07/20/2018 at 08:30 AM in Department 74
Order to Show Cause Re: Failure to File Proof of Service (OSC-Failure to File Proof of Serv; Discharged) –

05/18/2018 at 08:30 AM in Department 1
Ex-Parte Proceedings (Exparte proceeding; Denied without prejudice) –

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

Register of Actions (Listed in descending order)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
03/06/2019

11/12/2019 Notice of Ruling
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

11/12/2019 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

11/12/2019 Answer
Filed by Hsi Che Wang (Cross-Defendant)

11/08/2019 at 08:30 AM in Department 74
Hearing on Motion to Compel Further Discovery Responses – Held – Motion Granted

11/08/2019 at 08:30 AM in Department 74
Hearing on Motion to Compel Further Discovery Responses – Held – Motion Granted

11/08/2019 Minute Order ( (Hearing on Motion to Compel Further Discovery Responses; Hear…))
Filed by Clerk

11/01/2019 Reply ( Memorandum of Points & Authorities in Support of Motions to Compel Further Responses to Production of Documents and Further Responses to Form Interrogatories)
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

10/28/2019 Declaration ( of Benson K. Lau, Esq. in support of Opposition to Motions to Compel)
Filed by Hsi Che Wang (Plaintiff)

10/28/2019 Opposition ( to Defendants Motions to Compel Further Responses and Production of Documents)
Filed by Hsi Che Wang (Plaintiff)

10/17/2019 Separate Statement
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

10/17/2019 Notice (Third Amended Notice of Motion to Compel Further Responses to Form Interrogatories & Request for MOnetary Sanctions)
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

10/17/2019 Affidavit (Appendix of Exhibits for Motion to Compel Further Responses to Form Interrogatories & Request for Monetary Sanctions)
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

10/17/2019 Memorandum of Points & Authorities
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

10/17/2019 Affidavit (Appendix of Exhibits for Motion to Compel Further Responses, Document Production & Request for Monetary Sanctions)
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

10/17/2019 Notice (Third Amended Notice of Motion to Compel Further Responses, Document Production & Request for Monetary Sanctions)
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

10/17/2019 Separate Statement
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

10/17/2019 Memorandum of Points & Authorities
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

10/08/2019 Second Amended Cross-Complaint
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

09/30/2019 at 08:30 AM in Department 74
Hearing on Motion to Compel Further Discovery Responses – Not Held – Rescheduled by Party

09/30/2019 at 08:30 AM in Department 74
Hearing on Motion to Compel Further Discovery Responses – Not Held – Rescheduled by Party

09/25/2019 Notice (Second Amended Notice of Motion to Compel Further Responses to Form Interrogatories & Request for Monetary Sanctions)
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

09/25/2019 Notice (Second Amended Notice of Motion to Compel Further Responses, Document Production & Request for Monetary Sanctions)
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

09/18/2019 at 08:30 AM in Department 74
Hearing on Demurrer – with Motion to Strike (CCP 430.10) – Held

09/18/2019 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

09/18/2019 Minute Order ( (Hearing on Demurrer – with Motion to Strike (CCP 430.10)))
Filed by Clerk

09/11/2019 Reply (to Opposition to Motion to Strike Punitive Damages Allegations of First Amended Cross-Complaint)
Filed by Hsi Che Wang (Cross-Defendant)

09/11/2019 Reply (to Opposition to Demurrer to First Amended Cross-Complaint)
Filed by Hsi Che Wang (Cross-Defendant)

09/09/2019 Memorandum of Points & Authorities
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

09/09/2019 Memorandum of Points & Authorities
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

08/16/2019 Declaration (of Benson K. Lau, Esq. in support of Demurrer to First Amended Cross-Complaint)
Filed by Hsi Che Wang (Cross-Defendant)

08/16/2019 Demurrer – with Motion to Strike (CCP 430.10)
Filed by Hsi Che Wang (Cross-Defendant)

08/16/2019 Motion to Strike (not initial pleading)
Filed by Hsi Che Wang (Cross-Defendant)

08/13/2019 at 08:30 AM in Department 74
Hearing on Motion – Other (Notice of Motion and Motion to withdraw as Attorney of Record & excuse and release from any motion/s to compel)

07/26/2019 at 08:30 AM in Department 74
Hearing on Motion to Compel Further Discovery Responses – Not Held – Rescheduled by Party

07/26/2019 at 08:30 AM in Department 74
Hearing on Motion to Compel Further Discovery Responses – Not Held – Rescheduled by Party

06/28/2019 Notice (Amended Notice of Motion to Compel Further Responses, Document Production & Request for Monetary Sanctions)
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

06/28/2019 Notice (Amended Notice of Motion to Compel Further Responses & Request for Monetary Sanctions)
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

05/06/2019 Substitution of Attorney
Filed by Hsi Che Wang (Plaintiff)

05/06/2019 Substitution of Attorney
Filed by Hsi Che Wang (Plaintiff)

05/01/2019 at 08:30 AM in Department 74
Hearing on Ex Parte Application (WITHDRAWAL OF ATTORNEY & EXCUSE FROM ANY MOTIONS TO COMPEL) – Held – Motion Denied

05/01/2019 at 08:30 AM in Department 74
Hearing on Demurrer – without Motion to Strike – Not Held – Taken Off Calendar by Party

05/01/2019 Minute Order ( (Hearing on Demurrer – without Motion to Strike; Hearing on Ex…))
Filed by Clerk

05/01/2019 Ex Parte Application (Withdrawal of Attorney & Excuse from any Motions to Compel)
Filed by Hsi Che Wang (Plaintiff)

04/26/2019 Notice of Motion (NOTICE OF DEFENDANT/CROSS¿ COMPLAINANT MARY MElLI FONG’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES AND PRODUCTION OF DOCUMENTS TO HER FIRST PRODUCTION DEMAND TO)
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

04/26/2019 Notice of Motion (NOTICE OF DEFENDANT/CROSS¿ COMPLAINANT MARY MElLI FONG’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO HER FIRST SET OF FORM INTERROGATORIES TO PLAINTIFF/CROSS-DEFENDANT HSI CHE WANG A/KIA JAMES WANG,)
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

04/18/2019 Cross-Complaint
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

04/18/2019 First Amended Cross-Complaint of Defendants and Cross-Complainants Mary Mei Li Fong and Connie Ching Huei Liu for: (1) Breach of Oral Agreement; (2) Fraud; (3) Negligent Misrepresentation; (4) Violation of California Unfair Competition Law; and (5) etc.
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

03/11/2019 Notice (Out of Office)
Filed by Hsi Che Wang (Plaintiff)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 03/06/2019

03/06/2019 Demurrer – without Motion to Strike
Filed by Hsi Che Wang (Cross-Defendant)

02/19/2019 Cross-Complaint
Filed by Mary Mei Li Fong (Cross-Complainant); Connie Ching Huei Liu (Cross-Complainant)

02/19/2019 Answer
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

01/30/2019 at 08:30 AM in Department 74
Case Management Conference – Held

01/30/2019 at 08:30 AM in Department 74
Order to Show Cause Re: (entry of default) – Held

01/30/2019 at 08:30 AM in Department 74
Hearing on Demurrer – without Motion to Strike (To First Amended Complaint) – Held

01/30/2019 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

01/30/2019 Minute Order ( (Hearing on Demurrer – without Motion to Strike To First Amend…))
Filed by Clerk

01/22/2019 Reply (Reply MPA in Support of Def’s Demurrer to First Amended Complaint)
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

01/17/2019 Opposition (TO DEMURRER WITHOUT MOTION TO STRIKE)
Filed by Hsi Che Wang (Plaintiff)

01/17/2019 Case Management Statement
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

12/28/2018 Demurrer – without Motion to Strike (Notice of Demurrer and Demurrer to First Amended Complaint)
Filed by Hsi Che Wang (Plaintiff)

12/19/2018 at 08:32 AM in Department 74
Hearing on Demurrer – without Motion to Strike – Not Held – Taken Off Calendar by Party

12/19/2018 at 08:30 AM in Department 74
Case Management Conference – Not Held – Continued – Court’s Motion

12/19/2018 Certificate of Mailing for (Minute Order (Hearing on Demurrer; Case Management Conference) of 12/19/2018)
Filed by Clerk

12/19/2018 Minute Order ((Hearing on Demurrer; Case Management Conference))
Filed by Clerk

12/18/2018 Notice (Defendant’s Mary Mei Li Fong And Connie Ching Huei Liu’s Notice Of Taking December 19, 2018 Hearing On Demurrer To Complaint Off Calendar)
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

11/20/2018 1st Amended Complaint
Filed by Hsi Che Wang (Plaintiff)

09/05/2018 at 08:30 AM in Department 74
Case Management Conference (Conference-Case Management; Matter continued) –

09/05/2018 Minute Order

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

09/04/2018 CASE MANAGEMENT STATEMENT

09/04/2018 Case Management Statement
Filed by James Wang (Legacy Party)

08/27/2018 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT OF DEFENDANTS MARY MEL LI FONG AND CONNIE CHING HUEI LIU; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF SA’ID VAKILI IN SUPPORT THEREOF

08/27/2018 Demurrer
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

07/20/2018 at 08:30 AM in Department 74
Order to Show Cause Re: Failure to File Proof of Service (OSC-Failure to File Proof of Serv; Discharged) –

07/20/2018 Minute order entered: 2018-07-20 00:00:00
Filed by Clerk

07/20/2018 Minute Order

07/17/2018 PROOF OF ELECTRONIC SERVICE

07/17/2018 Miscellaneous-Other
Filed by James Wang (Legacy Party)

07/16/2018 Notice and Acknowledgment of Receipt
Filed by Hsi Che Wang (Plaintiff); James Wang (Legacy Party)

07/16/2018 DECLARATION OF ATTORNEY KWAN IN RESPONSE TO OSC: RE SERVICE OF PROCESS PROOF OF SERVICE FORM FILING

07/16/2018 NOTICE OF ACKNOWLEDGEMENT OF RECEIPT – CIVIL

07/16/2018 Notice and Acknowledgment of Receipt
Filed by Hsi Che Wang (Plaintiff); James Wang (Legacy Party)

07/16/2018 Declaration
Filed by Hsi Che Wang (Plaintiff); James Wang (Legacy Party)

07/16/2018 NOTICE OF ACKNOWLEDGEMENT OF RECEIPT – CIVIL

05/18/2018 at 08:30 AM in Department 1
Ex-Parte Proceedings (Exparte proceeding; Denied without prejudice) –

05/18/2018 Proof of Service (not Summons and Complaint)
Filed by Hsi Che Wang (Plaintiff); James Wang (Legacy Party)

05/18/2018 Proof of Service (not Summons and Complaint)
Filed by Hsi Che Wang (Plaintiff)

05/18/2018 Proof-Service/Summons
Filed by Hsi Che Wang (Plaintiff); James Wang (Legacy Party)

05/18/2018 PROOF OF SERVICE BY MAIL

05/18/2018 PROOF OF SERVICE SUMMONS

05/18/2018 PROOF OF SERVICE SUMMONS

05/18/2018 MEMORANDUM OF POINTS AND AUTHORITIES OF DEFENDANTS MARY MEL LI FONG AND CONNIE CHING HUEI LIU IN OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION FOR A TRO AND; ETC.

05/18/2018 EX PARTE APPLICATION ON COMPLAINT FOR: BREACH OF CONTRACT, QUIET TITLE, PARTITION, UNJUST ENRICHMENT, ACCOUNTING & APPRAISAL, FOR A TRO AND; ETC.

05/18/2018 PROOF OF SERVICE BY MAIL

05/18/2018 Minute Order

05/18/2018 Minute order entered: 2018-05-18 00:00:00
Filed by Clerk

05/18/2018 NOTICE OF RULING ON PLAINTIFF’S EX PARTE APPLICATION FOR A TRO AND OSC RE: PRELIMINARY INJUNCTION ENJOINING ANY RENTAL OF UNIT A AND ALL UNITS UNTIL LITIGATION HAS BEEN DETERMINED

05/18/2018 Ex-Parte Application
Filed by Hsi Che Wang (Plaintiff); James Wang (Legacy Party)

05/18/2018 Memorandum – Other
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

05/18/2018 Notice of Ruling
Filed by Mary Mei Li Fong (Defendant); Connie Ching Huei Liu (Defendant)

05/18/2018 Proof-Service/Summons
Filed by Hsi Che Wang (Plaintiff); James Wang (Legacy Party)

05/16/2018 Notice of Case Management Conference
Filed by Clerk

05/16/2018 OSC-Failure to File Proof of Serv
Filed by Clerk

05/16/2018 ORDER TO SHOW CAUSE HEARING

05/16/2018 NOTICE OF CASE MANAGEMENT CONFERENCE

05/07/2018 Complaint
Filed by Hsi Che Wang (Plaintiff)

05/07/2018 SUMMONS

05/07/2018 COMPLAINT FOR: 1. BREACH OF CONTRACT ;ETC

Case Number: 18STCV09276
MONIQUE MIMS, ET AL. VS REX ZHENG
Filing Courthouse: Spring Street Courthouse

Filing Date: 12/21/2018
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

06/05/2020 at 10:00 AM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012
Final Status Conference

06/19/2020 at 08:30 AM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012
Non-Jury Trial

12/17/2021 at 08:30 AM in Department 5 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

AMACKER LEWIS – Plaintiff

BUTLER JONECIA – Plaintiff

GLADKOV SERGEI – Attorney for Plaintiff

MIMS MONIQUE – Plaintiff

WEISSMAN DAVID – Attorney for Defendant

ZHENG REX – Defendant

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

Documents Filed (Filing dates listed in descending order)

11/22/2019 Minute Order ( (Hearing on Motion to Compel Discovery (not “Further Discovery”)))
Filed by Clerk

11/05/2019 Notice of Change of Firm Name
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF TO ANSWER SPECIAL INTERROGATORIES; REQUEST FOR SANCTIONS)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF TO ANSWER SPECIAL INTERROGATORIES; REQUEST FOR SANCTIONS;)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF TO ANSWER SPECIAL INTERROGATORIES; REQUEST FOR SANCTIONS)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF TO ANSWER FORM INTERROGATORIES; REQUEST FOR SANCTIONS;)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF TO ANSWER FORM INTERROGATORIES; REQUEST FOR SANCTIONS)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF TO ANSWER FORM INTERROGATORIES; REQUEST FOR SANCTIONS;)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF TO RESPOND TO REQUEST FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF TO RESPOND TO REQUEST FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS;)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF TO RESPOND TO REQUEST FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS;)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER TO HAVE REQUEST FOR ADMISSIONS DEEMED ADMITTED; REQUEST FOR MONETARY SANCTIONS;)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER TO HAVE REQUEST FOR ADMISSIONS DEEMED ADMITTED; REQUEST FOR MONETARY SANCTIONS)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER TO HAVE REQUEST FOR ADMISSIONS DEEMED ADMITTED; REQUEST FOR MONETARY SANCTIONS)
Filed by Rex Zheng (Defendant)

07/17/2019 Notice of Posting of Jury Fees
Filed by Rex Zheng (Defendant)

07/17/2019 Answer
Filed by Rex Zheng (Defendant)

07/17/2019 Demand for Jury Trial
Filed by Rex Zheng (Defendant)

06/18/2019 Declaration re: Due Diligence
Filed by Monique Mims (Plaintiff)

06/18/2019 Proof of Service by Mail
Filed by Monique Mims (Plaintiff)

06/18/2019 Proof of Service by Substituted Service
Filed by Monique Mims (Plaintiff)

12/21/2018 Notice of Case Assignment – Unlimited Civil Case
Filed by Clerk

12/21/2018 Summons (on Complaint)
Filed by Clerk

12/21/2018 Civil Case Cover Sheet
Filed by Monique Mims (Plaintiff); Jonecia Butler (Plaintiff); Lewis Amacker (Plaintiff)

12/21/2018 Complaint
Filed by Monique Mims (Plaintiff); Jonecia Butler (Plaintiff); Lewis Amacker (Plaintiff)

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

Proceedings Held (Proceeding dates listed in descending order)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

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

Register of Actions (Listed in descending order)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”)

11/22/2019 Minute Order ( (Hearing on Motion to Compel Discovery (not “Further Discovery”)))
Filed by Clerk

11/05/2019 Notice of Change of Firm Name
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF TO ANSWER SPECIAL INTERROGATORIES; REQUEST FOR SANCTIONS)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF TO ANSWER FORM INTERROGATORIES; REQUEST FOR SANCTIONS;)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF TO ANSWER FORM INTERROGATORIES; REQUEST FOR SANCTIONS)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF TO ANSWER FORM INTERROGATORIES; REQUEST FOR SANCTIONS;)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF TO RESPOND TO REQUEST FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF TO RESPOND TO REQUEST FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS;)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF TO ANSWER SPECIAL INTERROGATORIES; REQUEST FOR SANCTIONS)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF TO ANSWER SPECIAL INTERROGATORIES; REQUEST FOR SANCTIONS;)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER TO HAVE REQUEST FOR ADMISSIONS DEEMED ADMITTED; REQUEST FOR MONETARY SANCTIONS)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER TO HAVE REQUEST FOR ADMISSIONS DEEMED ADMITTED; REQUEST FOR MONETARY SANCTIONS)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER TO HAVE REQUEST FOR ADMISSIONS DEEMED ADMITTED; REQUEST FOR MONETARY SANCTIONS;)
Filed by Rex Zheng (Defendant)

10/16/2019 Motion for Order (NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF TO RESPOND TO REQUEST FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS;)
Filed by Rex Zheng (Defendant)

07/17/2019 Answer
Filed by Rex Zheng (Defendant)

07/17/2019 Demand for Jury Trial
Filed by Rex Zheng (Defendant)

07/17/2019 Notice of Posting of Jury Fees
Filed by Rex Zheng (Defendant)

06/18/2019 Declaration re: Due Diligence
Filed by Monique Mims (Plaintiff)

06/18/2019 Proof of Service by Mail
Filed by Monique Mims (Plaintiff)

06/18/2019 Proof of Service by Substituted Service
Filed by Monique Mims (Plaintiff)

12/21/2018 Complaint
Filed by Monique Mims (Plaintiff); Jonecia Butler (Plaintiff); Lewis Amacker (Plaintiff)

12/21/2018 Civil Case Cover Sheet
Filed by Monique Mims (Plaintiff); Jonecia Butler (Plaintiff); Lewis Amacker (Plaintiff)

12/21/2018 Summons (on Complaint)
Filed by Clerk

12/21/2018 Notice of Case Assignment – Unlimited Civil Case
Filed by Clerk

Case Number: 19STCV10611
HEATHER GRUENINGER VS CENTURY CITY DENTAL GROUP, ET AL.
Filing Courthouse: Spring Street Courthouse

Filing Date: 03/27/2019
Case Type: Medical Malpractice – Physicians & Surgeons (General Jurisdiction)
Status: Pending

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

09/09/2020 at 10:00 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012
Final Status Conference

09/23/2020 at 08:30 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012
Non-Jury Trial

03/23/2022 at 08:30 AM in Department 3 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

CENTURY CITY DENTAL GROUP – Defendant

GRUENINGER HEATHER – Plaintiff

NAYSSAN D.D.S. FRED – Defendant

SAPIR ERIC – Attorney for Plaintiff

SAVAGE JAMES DOUGLAS – Attorney for Defendant

ZAKHOR DDS MANSOUR – Defendant

ZAKHOR DENTAL GROUP – Defendant

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 Notice of Ruling
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

11/13/2019 Minute Order ( (Hearing on Motion to Compel Discovery (not “Further Discovery…))
Filed by Clerk

11/05/2019 Notice (notice of non opposition)
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

11/05/2019 Notice (notice of non opposition)
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

11/05/2019 Notice (notice of non opposition)
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

10/15/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

10/15/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

10/15/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

05/08/2019 Notice of Posting of Jury Fees
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

04/30/2019 Demand for Jury Trial
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

04/30/2019 Answer
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

04/05/2019 Certificate of Mailing for ([PI General Order] and Standing Order re PI Procedures and Hearing Dates)
Filed by Clerk

04/05/2019 PI General Order
Filed by Clerk

03/28/2019 Summons (on Complaint)
Filed by HEATHER GRUENINGER (Plaintiff)

03/27/2019 Notice of Case Assignment – Unlimited Civil Case
Filed by Clerk

03/27/2019 Civil Case Cover Sheet
Filed by HEATHER GRUENINGER (Plaintiff)

03/27/2019 Complaint
Filed by HEATHER GRUENINGER (Plaintiff)

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

Proceedings Held (Proceeding dates listed in descending order)

11/13/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

11/13/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Denied

11/13/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

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

Register of Actions (Listed in descending order)

11/19/2019 Notice of Ruling
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

11/13/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

11/13/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Granted

11/13/2019 at 1:30 PM in Department 3, Jon R. Takasugi, Presiding
Hearing on Motion to Compel Discovery (not “Further Discovery”) – Held – Motion Denied

11/13/2019 Minute Order ( (Hearing on Motion to Compel Discovery (not “Further Discovery…))
Filed by Clerk

11/05/2019 Notice (notice of non opposition)
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

11/05/2019 Notice (notice of non opposition)
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

11/05/2019 Notice (notice of non opposition)
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

10/15/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

10/15/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

10/15/2019 Motion to Compel Discovery (not Further Discovery) – 1 moving party, 1 motion
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

05/08/2019 Notice of Posting of Jury Fees
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

04/30/2019 Answer
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

04/30/2019 Demand for Jury Trial
Filed by Fred Nayssan, D.D.S., Inc. dba Century City Dental Group Erroneously Sued As CENTURY CITY DENTAL GROUP (Defendant); Fred Nayssan, D.D.S. (Defendant)

04/05/2019 PI General Order
Filed by Clerk

04/05/2019 Certificate of Mailing for ([PI General Order] and Standing Order re PI Procedures and Hearing Dates)
Filed by Clerk

03/28/2019 Summons (on Complaint)
Filed by HEATHER GRUENINGER (Plaintiff)

03/27/2019 Notice of Case Assignment – Unlimited Civil Case
Filed by Clerk

03/27/2019 Complaint
Filed by HEATHER GRUENINGER (Plaintiff)

03/27/2019 Civil Case Cover Sheet
Filed by HEATHER GRUENINGER (Plaintiff)

Case Number: BC661596 Hearing Date: November 26, 2019 Dept: 48

MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES; REQUEST FOR SANCTIONS

MOVING PARTY: Defendants Heartland Payroll Solutions, Inc.

RESPONDING PARTY(S): Plaintiff Netpay Payroll, Inc. and Netpay Insurance Services, Inc.

PROOF OF SERVICE

Correct Address: Yes.
16/21 (CCP § 1005(b)): OK. Served by mail on May 29, 2019.

GRANT motion to compel compliance as to Requests For Production Nos. 75, 76, 80, 81, 82;
GRANT request for sanctions in the reduced amount of $2,610.00.
Motion to compel further responses and motion for evidentiary sanctions are placed OFF-CALENDAR.

ANALYSIS:

Motion to Compel Compliance

This should have been reserved and filed as three separate motions: (1) a motion to compel compliance; (2) a motion to compel further responses; and (3) a motion for evidentiary sanctions. However, only one hearing was reserved and only one filing fee was paid. Combining multiple motions under the guise of one motion with one hearing reservation manipulates the Court Reservation System and unfairly jumps ahead of other litigants. Moreover, combining motions to avoid payment of separate filing fees deprives the Court of filing fees it is otherwise entitled to collect.

The Court will only rule upon the motion to compel compliance[1]. The motion to compel further responses and motion for evidentiary sanctions is placed OFF-CALENDAR.

CCP § 2031.320(a) provides:

(a) If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.

A motion to compel compliance pursuant to CCP § 2031.320 does not have a 45-day time limit, nor does it contain a meet and confer requirement or a good cause requirement. However, such a motion is only proper where the responding party represented in its response that it would comply with the request for production and failed to do so. CCP § 2031.320(a). A proper response to a request for production is “[a] statement that the party will comply with the particular demand for inspection, copying, testing, or sampling” by the date set forth in CCP § 2031.030(c)(2)(within a reasonable time, at least 30 days after service of the demand).

The motion to compel compliance is GRANTED as to Requests for Production Nos. 75, 76, 80, 81, 82.

Defendant’s counsel indicates that he learned that Plaintiffs are in possession of responsive documents. Declaration of Kristapor Vartanian, ¶ 9. Plaintiffs are to produce all of the following documents in their possession, custody or control to the extent they are responsive to the document requests:

¿ Contracts and agreements between Plaintiffs and customers at issue in this litigation;

¿ Documents showing the first and last date Plaintiffs did business with such customers;

¿ Documents showing accounts payable relating to such customers;

¿ Documents showing accounts receivable relating to such customers;

¿ Receipts and invoices related to such customers;

¿ Communications between Plaintiffs and subject customers after February 1, 2016;

¿ Communications between Plaintiffs’ officers, directors, owners or employees relating to the subject customers.

Production of documents is due within 20 days of this order.

The request for sanctions against Plaintiffs and their counsel, Law Offices of Paul D. Bojic, jointly and severally, is GRANTED in the reduced amount of $2,610.00. Sanctions are to be paid to Defendant’s counsel within 20 days of this order.

[1] The Court notes that a motion to compel further responses would appear to be untimely based upon the February 25, 2019 service of responses (deadline: April 16, 2019). This motion was served and filed on May 29, 2019. Moreover, a motion for evidentiary sanctions would be premature at this stage.

Case Number: BC590284 Hearing Date: November 26, 2019 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

CESAR ROMERO, et al.,

Plaintiffs,

vs.

BROCCA CUSTOM FINISHING CARPENTRY, INC., et al.,

Defendants.

CASE NO.: BC590284

[TENTATIVE] ORDER RE: MOTION TO SET ASIDE AUGUST 12, 2019 DISQUALIFICATION ORDER AND ANY DEFAULTS ENTERED AGAINST INDIVIDUAL DEFENDANTS AFTER AUGUST 20, 2019; MOTION FOR SANCTIONS

Date: November 26, 2019

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Defendants Victor Daniel Brocca; Ida Brocca; Jerry Guzman; and Craig N. Rossell (“Rossell”) and the Rossell Law Firm (“Moving Parties”)

RESPONDING PARTIES: Plaintiffs Cesar Romero and Tatiana Romero

The Court has considered the moving and opposition papers in connection with the: (1) motion to set aside the Court’s August 12, 2019 disqualification order; and (2) any defaults entered against individual defendants after August 20, 2019. No reply brief was filed thereto.

In connection with Plaintiffs’ motion for sanctions against Rossell there was no opposition brief filed although the proof of service filed with Plaintiffs’ motion for sanctions indicates that all interested parties were served with Plaintiffs’ motion for sanctions on September 7, 2019. Any opposition to Plaintiffs’ motion for sanctions was required to be filed by November 13, 2019 pursuant to California Code of Civil Procedure, Section 1005(b).

BACKGROUND

Plaintiffs’ complaint arises from alleged wrongful actions taken in connection with a contract for carpentry services. Plaintiffs filed a complaint against Defendants alleging causes of action for: (1) breach of contract; (2) negligence; (3) fraud; (4) constructive fraud; and (5) racketeer influenced and corrupt organizations (RICO) violations.

Moving Parties filed a motion: (1) for the Court to set aside its August 12, 2019 disqualification order which Rossell was disqualified from representing Defendants in this action; and (2) its August 20, 2019 order striking the answer of and entering default against any of the Individual Defendants—Ida Brocca, Victor Daniel Brocca, and Jerry Guzman—to the extent such defaults have been, or will be, entered. Moving Parties filed their motion pursuant to California Code of Civil Procedure, Section 473(b).

Plaintiffs also filed a motion for sanctions pursuant to California Code of Civil Procedure, Sections 128.5 and 128.7 against Rossell. Plaintiffs seek sanctions in the amount of $87,714.88 against Rossell. The Court will address the respective motions filed by the parties within this one ruling.

On October 15, 2019, Moving Parties’ motion for the Court to set aside: (1) its August 12, 2019 disqualification order which Rossell was disqualified from representing Defendants in this action; and (2) its August 20, 2019 order striking the answer of and entering default against any of the Individual Defendants—Ida Brocca, Victor Daniel Brocca, and Jerry Guzman—to the extent such defaults have been, or will be, entered was called for hearing. The Court’s minute order indicated that the Court had read and considered all filed documents related to Moving Parties’ motion, provided counsel with its written tentative ruling, and gave counsel the opportunity to argue. The Court continued the hearing on Moving Parties’ motion to November 26, 2019. The Court also continued the hearing on Plaintiffs’ motion for sanctions to November 26, 2019. Plaintiff was ordered to give notice to which Plaintiff complied.

Brief Procedural Background

On July 18, 2019, Plaintiffs filed a motion to disqualify Rossell from further representing Defendants which went unopposed and on August 12, 2019, the Court granted Plaintiffs’ motion for disqualification with respect to Rossell.

On August 20, 2019, as indicated by the Court’s minute order, the Court struck the answer of Defendant Brocca Custom Finishing and entered a default against Defendant Brocca Custom Finishing. The Court’s August 20, 2019 minute order indicated that the substitution of attorney for Defendant Brocca Custom Finishing had not been filed.

On September 12, 2019, Individual Defendants each filed substitution of attorney forms in which they each indicated that Rossell was their former legal representative and that they were now each representing themselves.

JUDICIAL NOTICE

The Court GRANTS Plaintiffs’ request for judicial notice in connection with their motion for sanctions.

EVIDENTIARY OBJECTIONS

The Court SUSTAINS Moving Parties’ objections numbers 1, 3-40 to the exhibits accompanying the declaration of Cesar Romero in opposition to Moving Parties’ motion to set aside the Court’s disqualification order and vacate defaults. Although the Court sustains all of Moving Parties’ objections they do not have an impact have on the Court’s ruling with respect to Moving Parties’ motion.

MOTION TO SET ASIDE

California Code of Civil Procedure, Section 473(b) says that “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made without a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or other proceeding was taken.” “The requirement that a verified pleading accompany the application for relief or that one be on file is mandatory, and failure to comply necessarily results in denial of relief.” (Daniels v. Daniels (1955) 136 Cal.App.2d 224, 228.)

August 12, 2019 Disqualification Order

While Moving Parties request that the Court set aside its August 12, 2019 disqualification order, Moving Parties’ motion fails to attach a copy of the pleading proposed to be filed therein. Although Moving Parties bought a collective motion, Rossell is purporting to object to the Court’s order disqualifying him due to his surprise as the moving papers assert that Rossell never received notice of Plaintiffs’ motion to disqualify. Proof of service, however, was filed with respect to Plaintiffs’ motion for disqualification and “the filing of a proof of service creates a rebuttable presumption that the service was proper.” (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) Moving Parties should have attached a proposed opposition to Plaintiffs’ motion for disqualification to their motion for the Court to set aside its August 12, 2019 order disqualifying Rossell. Moving Parties motion is procedurally improper under Daniels.

August 20, 2019 Entry of Default and Striking Answer

Additionally, to the extent that Moving Parties seek to set aside defaults entered against them individually—Victor Daniel Brocca; Ida Brocca; and Jerry Guzman (the “Individual Defendants”)—the Court finds that Moving Parties’ motion is moot, irrelevant, and is based on an inaccurate understanding of the procedural posture of this action. No default was entered against the Individual Defendants based on the Court’s August 20, 2019 minute order. Moreover, the answer of any of the Individual Defendants was never stricken. The Court’s August 20, 2019 minute order struck the answer filed by Defendant Brocca Custom Finishing and entered default against that party. The Court cannot set aside any default or set aside an order striking an answer as to any of the Individual Defendants because neither entering a default nor striking an answer has occurred with respect to any of the Individual Defendants.

The Court therefore DENIES Moving Parties’ motion for the Court to set aside: (1) its August 12, 2019 disqualification order; and (2) its August 20, 2019 order striking the answer of any Individual Defendant and entering default against any of the Individual Defendants to the extent such defaults have been, or will be, entered.

MOTION FOR SANCTIONS

Plaintiffs filed a motion for sanctions against Rossell on the grounds that Rossell: (1) engaged in bad-faith and frivolous actions in order to cause unnecessary delays; (2) offered defenses and legal contentions that were not supported by existing law and that any reasonable attorney would have known is completely devoid of any merit; (3) offered allegations and factual contentions that had no evidentiary support; and (4) denied factual contentions that were not warranted. Plaintiffs seek sanctions in the amount of $87,714.88 against Rossell pursuant to California Code of Civil Procedure, Sections 128.5 and 128.7 reflecting the litigation expenses and attorney’s fees that Plaintiffs were forced to incur as a result of Rossell’s bad faith actions and tactics throughout this five-year litigation.

Sanctions pursuant to California Code of Civil Procedure, Section 128.5 are discretionary. Similarly, sanctions pursuant to California Code of Civil Procedure, Section 128.7 are discretionary. Due to Plaintiffs’ motion being unopposed, the Court GRANTS Plaintiffs’ motion for sanctions against Rossell pursuant to California Code of Civil Procedure, Section 128.5 and 128.7. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) The Court exercises its discretion and orders Rossell to pay sanctions in the more reasonable amount of $17,542.98 which represents twenty percent (20%) of Plaintiffs’ requested sanctions amount and should be sufficient to deter repetition of Rossell’s conduct which is the goal of sanctions under Sections 128.5 and 128.7. Sanctions are payable by Rossell to Plaintiffs within 120 days.

Moving Parties are ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 26th day of November 2019

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: 19STCV10464 Hearing Date: November 26, 2019 Dept: 61

Defendants and Cross-Complainants Jose Garcia, Fernando Covarrubias, and Oliver Arellano’s Motions to Compel Responses to Form and Special Interrogatories and Requests for Production to Plaintiffs and Cross-Defendants Dawn Downs and Jeff T. Grange are GRANTED. The court awards sanctions against Plaintiffs and their counsel in the amount of $3,825.

MOTION TO COMPEL

A propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., § 2031.010.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. § 2030.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., §§ 2030.290, 2031.300.)

A party who fails to serve a timely response to interrogatories or a demand for inspection waives any objection to the demand. (Code Civ. Proc., §§ 2030.290, 2031.300.)

Likewise, “[a]ny party may obtain discovery . . . by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.” (Code Civ. Proc., § 2033.010.) If a party fails to serve a timely response to requests for admissions, “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction” (Code Civ. Proc., § 2033.280 subd. (b).)

A party who fails to timely respond to requests for admission waives all objections to the requests. (Code Civ. Proc. § 2033.280, subd. (a).)

Defendants argue that Form and Special Interrogatories and Requests for Production were served on August 28, 2019, with responses due on October 2, 2019, but that no responses have been received. (Shaneyfelt Decl. ¶¶ 5–7.)

If objection-free responses are not served by the hearing on these motions, the motions shall be GRANTED.

SANCTIONS

The prevailing party on a motion to compel is generally entitled to monetary sanctions, unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. §§ 2030.290, 2031.300.) Sanctions are also mandatory against a party whose failure to serve responses to requests for admission makes the motion necessary. (Code Civ. Proc. § 2033.280, subd. (c).)

Defendants ask for $2,125.00 in sanctions, representing five hours of work at $425 per hour, in connection with each motion, for a total sought award of $6,375.00. (Shaneyfelt Decl. ¶¶ 7–9.) This includes two hours preparing a reply to an opposition which was never filed, leading to a total maximum sanctions award of $3,825.00.

The court awards sanctions against Plaintiffs and their counsel in the amount of $3,825.

Defendants to provide notice.

Case Number: 19STCV18964 Hearing Date: November 27, 2019 Dept: 4B

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO QUASH SUBPOENAS FOR MEDICAL, BILLING, AND RADIOLOGICAL RECORDS

On May 31, 2019, plaintiff Janelle Miosoty Rodriguez (“Plaintiff”) filed this action against defendants Ki Nam Lee and Kyoung Lee (collectively, “Defendants”) for injuries arising from a car accident. On September 4, 2019, Defendants served ten subpoenas for Plaintiff’s medical, billing, and radiological records from various medical providers and custodians. Plaintiff moves to quash the subpoenas on the grounds that they are overbroad and violate Plaintiff’s constitutional right to privacy. Defendants did not oppose.

When a plaintiff puts her health and physical condition at issue, the privacy and privileges that normally attach to such sensitive information are “substantially lowered by the very nature of the action.” (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 43.) The Court must “balance the public need against the weight of the privacy right” and only serious invasions of privacy will bar discovery. (Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 966.) There is not an egregious invasion of privacy every time there is a request for private information and courts must “place the burden on the party asserting a privacy interest to establish its extent and seriousness of the prospective invasion.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.) However, “although in seeking recovery for physical and mental injuries plaintiffs have unquestionably waived their physician-patient . . . privileges as to all information concerning the medical conditions which they have put in issue, past cases make clear that such waiver extends only to information relating to the medical conditions in question, and does not automatically open all of a plaintiff’s past medical history to scrutiny.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 849.)

The subpoenas seek Plaintiff’s entire medical, billing, and radiological history from January 1, 2009 to the present, including, but not limited to: charts, records, lien files, soap notes, pathology records and reports, lab reports, pharmacy and prescription records, payment history, all billing records, radiological reports, photographs, insurance documents, physical therapy records. While some of Plaintiff’s medical records and bills are likely relevant and discoverable, ten years of records is probably too broad. Defendant did not file an opposition explaining why such a broad scope from all ten custodians is necessary. Plaintiff’s motion to quash is GRANTED.

The next time the parties dispute the extent of subpoenas for medical records and bills, counsel are to meet and confer in person or on the phone. If they do not resolve the dispute, they are to participate in and Informal Discovery Conference before a hearing on any motion.

The court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive. (Code Civ. Proc., § 1987.2, subd. (a).) Plaintiff requests sanctions of $5,310.00 for seven hours of work at the rate of $750.00 per hour. This is excessive. The motion was unopposed, consisted of largely generic case law, and appears to have been copied from another motion. (See, e.g., Motion at 8:28-9:1.) An attorney billing at the high hourly rate of $750.00 should not have drafted this very basic motion. The work should have been done by a junior associate at a much lower billing rate.

Accordingly, the Court grants sanctions in the amount of $700.00 against Defendants and defense counsel, jointly and severally, to be paid within 20 days of the date of this order.

Moving party to give notice.

Case Number: BC687753
VASILE LINDGREN VS TIANLI YANG ET AL
Filing Courthouse: Stanley Mosk Courthouse

Filing Date: 12/20/2017
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

04/03/2020 at 10:00 AM in Department 4A at 312 North Spring Street, Los Angeles, CA 90012
Final Status Conference

04/17/2020 at 08:30 AM in Department 4A at 312 North Spring Street, Los Angeles, CA 90012
Jury Trial

12/21/2020 at 08:30 AM in Department 4A 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

LINDGREN VASILE – Plaintiff

OBERRECHT KIMBERLY S. – Attorney for Defendant

TAN XIYUAN – Defendant

VARDANYAN RUBEN – Attorney for Plaintiff

YANG TIANLI – Defendant

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

Documents Filed (Filing dates listed in descending order)

11/20/2019 Notice of Ruling
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

11/18/2019 Minute Order ( (Motion to Compel Physical examination of Plaintiff and for Sa…))
Filed by Clerk

10/25/2019 Notice of Ruling
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/22/2019 Memorandum of Points & Authorities
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/22/2019 Notice of Lodging (in Support of Physical Exam of Plaintiff)
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/22/2019 Declaration (in Support of Physical Exam of Plaintiff)
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/22/2019 Proof of Service by Mail
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/22/2019 Motion to Compel (Physical Examination of Plaintiff and for Sanctions)
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/18/2019 Minute Order ( (Ex Parte Application of Defendants Tianli Yang and Xiyuan Tan…))
Filed by Clerk

10/18/2019 Ex Parte Application (to Continue Trial)
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/18/2019 Ex Parte Application (to Continue Trial)
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/17/2019 Proof of Service by Mail
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/17/2019 Declaration in Support of Ex Parte Application
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/17/2019 Memorandum of Points & Authorities
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/16/2019 Memorandum of Points & Authorities
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/16/2019 Proof of Service by Mail
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/16/2019 Declaration in Support of Ex Parte Application
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

08/02/2019 [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District)
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

04/23/2019 [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District)
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

03/22/2019 Notice of Change of Address or Other Contact Information
Filed by Kimberly S. Oberrecht (Attorney)

05/24/2018 DEFENDANTS ANSWER TO COMPLAINT

05/24/2018 Answer
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

05/14/2018 PROOF OF SERVICE SUMMONS

05/14/2018 Proof of Service (not Summons and Complaint)
Filed by Vasile Lindgren (Plaintiff)

12/20/2017 Complaint

12/20/2017 Summons
Filed by Vasile Lindgren (Plaintiff)

12/20/2017 Complaint
Filed by Vasile Lindgren (Plaintiff)

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

Proceedings Held (Proceeding dates listed in descending order)

11/18/2019 at 10:00 AM in Department 4A, Christopher K. Lui, Presiding
Hearing on Motion to Compel (Physical examination of Plaintiff and for Sanctions) – Not Held – Clerical Error

11/18/2019 at 1:30 PM in Department 4A, Christopher K. Lui, Presiding
Hearing on Motion to Compel (Physical examination of Plaintiff and for Sanctions) – Held – Motion Granted

10/18/2019 at 08:30 AM in Department 4A, Christopher K. Lui, Presiding
Hearing on Ex Parte Application (to continue trial and related dates) – Held – Motion Granted

10/18/2019 at 08:30 AM in Department 4A, Christopher K. Lui, Presiding
Hearing on Ex Parte Application (to continue trial and related dates) – Held – Motion Granted

09/19/2019 at 08:30 AM in Department 4A, Christopher K. Lui, Presiding
Jury Trial – Not Held – Continued – Stipulation

09/04/2019 at 10:00 AM in Department 4A, Christopher K. Lui, Presiding
Final Status Conference – Not Held – Continued – Stipulation

06/20/2019 at 08:30 AM in Department 4A, Christopher K. Lui, Presiding
Jury Trial – Not Held – Continued – Stipulation

06/05/2019 at 10:00 AM in Department 4A, Christopher K. Lui, 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)

11/20/2019 Notice of Ruling
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

11/18/2019 at 10:00 AM in Department 4A, Christopher K. Lui, Presiding
Hearing on Motion to Compel (Physical examination of Plaintiff and for Sanctions) – Not Held – Clerical Error

11/18/2019 at 1:30 PM in Department 4A, Christopher K. Lui, Presiding
Hearing on Motion to Compel (Physical examination of Plaintiff and for Sanctions) – Held – Motion Granted

11/18/2019 Minute Order ( (Motion to Compel Physical examination of Plaintiff and for Sa…))
Filed by Clerk

10/25/2019 Notice of Ruling
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/22/2019 Proof of Service by Mail
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/22/2019 Motion to Compel (Physical Examination of Plaintiff and for Sanctions)
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/22/2019 Declaration (in Support of Physical Exam of Plaintiff)
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/22/2019 Notice of Lodging (in Support of Physical Exam of Plaintiff)
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/22/2019 Memorandum of Points & Authorities
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/18/2019 at 08:30 AM in Department 4A, Christopher K. Lui, Presiding
Hearing on Ex Parte Application (to continue trial and related dates) – Held – Motion Granted

10/18/2019 at 08:30 AM in Department 4A, Christopher K. Lui, Presiding
Hearing on Ex Parte Application (to continue trial and related dates) – Held – Motion Granted

10/18/2019 Ex Parte Application (to Continue Trial)
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/18/2019 Ex Parte Application (to Continue Trial)
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/18/2019 Minute Order ( (Ex Parte Application of Defendants Tianli Yang and Xiyuan Tan…))
Filed by Clerk

10/17/2019 Memorandum of Points & Authorities
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/17/2019 Proof of Service by Mail
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/17/2019 Declaration in Support of Ex Parte Application
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/16/2019 Memorandum of Points & Authorities
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/16/2019 Declaration in Support of Ex Parte Application
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

10/16/2019 Proof of Service by Mail
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

09/19/2019 at 08:30 AM in Department 4A, Christopher K. Lui, Presiding
Jury Trial – Not Held – Continued – Stipulation

09/04/2019 at 10:00 AM in Department 4A, Christopher K. Lui, Presiding
Final Status Conference – Not Held – Continued – Stipulation

08/02/2019 [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District)
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

06/20/2019 at 08:30 AM in Department 4A, Christopher K. Lui, Presiding
Jury Trial – Not Held – Continued – Stipulation

06/05/2019 at 10:00 AM in Department 4A, Christopher K. Lui, Presiding
Final Status Conference – Not Held – Continued – Stipulation

04/23/2019 [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District)
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

03/22/2019 Notice of Change of Address or Other Contact Information
Filed by Kimberly S. Oberrecht (Attorney)

05/24/2018 DEFENDANTS ANSWER TO COMPLAINT

05/24/2018 Answer
Filed by Tianli Yang (Defendant); Xiyuan Tan (Defendant)

05/14/2018 PROOF OF SERVICE SUMMONS

05/14/2018 Proof of Service (not Summons and Complaint)
Filed by Vasile Lindgren (Plaintiff)

12/20/2017 Summons
Filed by Vasile Lindgren (Plaintiff)

12/20/2017 Complaint

12/20/2017 Complaint
Filed by Vasile Lindgren (Plaintiff)

17-CIV-02547 DERRICK BURNS, ET AL. VS. SUNEET SINGAL, ET AL.

DERRICK BURNS SUNEET SINGAL
ADAM M. FOREST ROBERT M. MERRITT

PLAINTIFFS DERRICK BURNS AND VINCE NAKAYAMA’S MOTION FOR ATTORNEY FEES AND COSTS TENTATIVE RULING:

Plaintiffs/Judgment Creditors Derrick Burns’ and Vince Nakayama’s “Motion for Attorney’s Fees and Costs,” filed 9-27-19, is GRANTED-IN-PART, in the amount of $48,787.50. Defendants/Judgment debtors do not dispute that the 12-24-18 Stipulated Judgment entitles Plaintiffs to recover reasonable attorney’s fees incurred in enforcing the Judgment. 9-27-19 Forest Decl., Ex. A; see also Code Civ. Proc. § 685.080. Without repeating the details of Plaintiffs’ collection efforts, the Court agrees Judgment debtors have themselves to blame for the post-Judgment fees incurred. See, generally, 9-27-19 Forest Decl.; 11-13-19 Reply brief at 2-3; 5-30-19 Minute Order. The Court finds the claimed attorney’s fees are sufficiently documented/supported. 9-27-19 Forest Decl., ¶22, Ex. L. Defendants cite no authority requiring Plaintiffs to attach the actual invoices sent to the client rather than the billing statement that was filed, nor a requirement to provide proof that the incurred fees were paid by the client. The Court finds the $375/hr. rates charged by attorneys Forest, Yuen, and Snyder are reasonable. The Court also finds that Mr. Forest’s time spent communicating with counsel in the JFURTI matter, and his attendance at Mr. Singal’s debtor’s examination, were reasonably related to the collection efforts and are recoverable. 9-27-19 Forest Decl., ¶¶6-12.

Plaintiffs seek $53,287.50 in fees. 9-27-19 Forest Decl. Ex. L. The Court will reduce the recoverable hours spent on this motion by 12 hrs. (down from 28.6 hrs. to 16.6 hrs.), which reduces the claimed fees by $4,500 (12 hrs. x $375/hr. = $4,500). This reduces the $53,287.50 in fees down to $48,787.50 ($53,287.50 – $4,500 = $48,787.50).

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

Case Number: 18STCV07505 Hearing Date: December 02, 2019 Dept: 4B

[TENTATIVE] ORDER RE: MOTIONS TO COMPEL FUTHER DISCOVERY RESPONSES

On April 23, 2019, Defendant served requests for production of documents, special interrogatories, and form interrogatories on Plaintiff. Plaintiff contends Defendant served them at the wrong address – counsel’s old address. Defendant argues Plaintiff failed to file a proper change of address. In any event, on June 7, 2019, defense counsel mailed Plaintiff’s counsel about the missing responses. Plaintiff’s counsel called, saying counsel had not received the discovery request. Defense counsel sent another copy of the discovery requests and granted an extension to respond to August 12, 2019. Plaintiff served responses on August 13, 2019, because, Plaintiff’s counsel states, he mistakenly thought the responses were due that day based on a calendaring error.

On October 2, 2019, Defendant served motions to compel further responses. Defendant argued the responses were defective, Plaintiff waived all objections by serving the responses late, and Plaintiff’s counsel refused to meet and confer. On November 12, 2019, the parties participated in an IDC. On November 14, 2019, Plaintiff served further responses without the objections. Therefore, the motions to compel are now MOOT.

At this point, the only issue appears to be sanctions. Defendant claims $2,060, $2,310 and $2,560 in sanctions for the three motion based on eight hours, nine hours, and ten hours of work, for a total of 27 hours of work on all three motions. Given that the motion and reply papers for the three motions are almost entirely duplicative of each other, the claim for $6,930 in sanctions for 27 hours of work in total is excessive. Also, much of the parties’ motion papers was occupied with whether Plaintiff properly filed and served a change of address form, long discussions of meet and confer letters, and other such ancillary matters. The Court awards sanctions in the amount of $1,180 against Plaintiff and Plaintiff’s counsel, jointly and severally, to be paid within 20 days of the date of this order.

Moving party to give notice.

Filed 12/5/19 P. v. Moon CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ADRIAN MOON,

Defendant and Appellant.

B294215

(Los Angeles County

Super. Ct. Nos. 8PR05534, 8PR07115)

APPEALS from orders of the Superior Court of Los Angeles County, Donald S. Kennedy, Commissioner and Keith H. Borjón, Judge. Reversed; dismissed as moot.

Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Wyatt E. Bloomfiled and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

——————————

Adrian Moon appeals from a postjudgment order executing a 100-day sentence in county jail for violating the terms of his postrelease community supervision (PRCS). Moon contends there was insufficient evidence to show a violation and the condition that he not harass any probation officer is unconstitutionally vague and overbroad. We reverse.

BACKGROUND

After Moon served time in prison for theft and fraud-related offenses, he was released and placed on PRCS in January 2018. On August 14, 2018 the Los Angeles County Probation Department (probation department) called and emailed Moon to report on August 17, 2018. Moon responded to the email, inquiring about auxiliary funds he had requested, but did not indicate whether he would report.

Moon did not report as instructed and the probation department filed a petition for revocation. At the revocation hearing, Moon said that he tried to report, but when he arrived at the probation office at 4:00 p.m., his probation officer had already gone home. He explained that he was late because he had other court appearances for separate matters that same day. Although the trial court accepted Moon’s explanation, it nonetheless found that Moon failed to report in violation of his PRCS.

The trial court revoked and reinstated Moon’s PRCS on the original terms, ordering him to serve 100 days in county jail, cooperate with a mental health assessment, and refrain from harassing any probation officers. Moon completed his jail sentence but remains under mandatory supervision.

DISCUSSION

I. Moon’s appeal is not moot

The People argue that Moon’s appeal is moot because he has already served his sentence for violating his PRCS. Moon does not dispute that he has completed his sentence, but argues the appeal is not moot because the probation violation is part of his permanent record and a successful appeal would clear his record and remove the stigma of criminality. Further, Moon contends that he remains on mandatory supervision and the PRCS violation precludes an early discharge.

Relying on People v. DeLeon (2017) 3 Cal.5th 640, the People argue that none of the consequences identified by Moon are sufficient to overcome mootness. In DeLeon, defendant violated his parole and was sentenced to serve 180 days in custody. (Id. at p. 644.) While his appeal was pending, defendant completed his sentence and his parole supervision ended. (Id. at p. 645.) Although it found defendant’s appeal moot, the California Supreme Court reviewed the challenge because the issue was of continuing public interest. (Id. at p. 646.) DeLeon rejected defendant’s argument that his parole violation would have disadvantageous collateral consequences, finding that his parole violation would be just one of many factors a court may consider in deciding whether to grant probation or what sentence to impose in future cases. (Ibid.)

The facts here are distinguishable from DeLeon because Moon remains on mandatory supervision and the violation precludes Moon from early discharge from his PRCS. Penal Code section 3456, subdivision (a)(3) provides: “The person who has been on postrelease supervision continuously for one year with no violations of his or her conditions of postrelease supervision that result in a custodial sanction shall be discharged from supervision within 30 days.” If we reverse the trial court’s finding that Moon violated his PRCS, and provided Moon has had no other violations, he would be eligible for discharge from PRCS. Thus, we can grant Moon some form of relief so his appeal is not moot.

II. Substantial evidence does not support the PRCS violation

Turning to the merits of Moon’s appeal, substantial evidence does not support the trial court’s finding that he violated his PRCS. The People must show a PRCS violation has occurred by a preponderance of the evidence (see People v. Rodriguez (1990) 51 Cal.3d 437, 447), and that the violation was willful (People v. Galvan (2007) 155 Cal.App.4th 978, 982). Where a defendant is unable to comply with a PRCS condition because of circumstances beyond his control and he is not willfully disobedient, revocation of PRCS is error. (See People v. Zaring (1992) 8 Cal.App.4th 362, 379.) We review the trial court’s factual findings for substantial evidence. (People v. Gonzalez (2017) 7 Cal.App.5th 370, 381.) A trial court’s decision whether to revoke PRCS will not be disturbed absent an abuse of discretion. (Galvan, at pp. 981–982.)

We find such an abuse of discretion here. The trial court accepted Moon’s explanation that he was in court on separate matters on the day he was supposed to report. He had prescheduled court appearances and the probation department instructed him to appear on a short two to three days’ notice. There is no evidence that Moon had missed any reporting dates prior to August 17. The court also credited his representation that he tried to comply by taking public transportation in order to arrive at the probation office after his other court matters had concluded, but before the close of business. Nevertheless, his probation officer had already left for the day. These circumstances show that Moon’s failure to report was not the result of irresponsibility, contumacious behavior or disrespect for the orders and expectations of the court. (See People v. Zaring, supra, 8 Cal.App.4th at p. 379.)

The trial court’s revocation of Moon’s PRCS was an abuse of discretion because his failure to report was not willful. Lastly, because we reverse the trial court’s order imposing the additional condition that Moon refrain from harassing any probation officers, we do not address Moon’s contentions that the condition is unconstitutionally vague and overbroad.

DISPOSITION

The order in 8PR05534 is reversed. The appeal in 8PR07115 is dismissed as moot.

NOT TO BE PUBLISHED.

DHANIDINA, J.

We concur:

EDMON, P. J.

EGERTON, J.

Filed 12/5/19 P. v. Cromer CA4/2

Opinion on transfer from Supreme Court

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

THE PEOPLE,

Plaintiff and Respondent,

v.

AARON RICHARD CROMER,

Defendants and Appellants.

E069960

(Super.Ct.No. FVI1502150)

OPINION

APPEAL from the Superior Court of San Bernardino County. Victor R. Stull and Raymond L. Haight III, Judges. Affirmed.

Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kelley Johnson and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Aaron Richard Cromer was involved in a road rage incident during which he intentionally rammed into another driver while driving southbound on the 1-15 Freeway in San Bernardino County.

Defendant was convicted of assault with a deadly weapon, an automobile, within the meaning of Penal Code section 245, subdivision (a)(1) and vandalism under $400, a misdemeanor, within the meaning of section 594, subdivision (b)(2)(A). Defendant was sentenced to three years in state prison.

On appeal, defendant claimed instructional error on the assault with a deadly weapon charge required reversal of his conviction because the jury was instructed on an inadequate legal theory; and the trial court erred by denying his People v. Marsden (1970) 2 Cal.3d 118 (Marsden) motion to relieve counsel based on its inadequate inquiry into the reasons for substituting counsel. We affirmed the judgment in our prior opinion in People v. Cromer, E069960 (April 19, 2019).

On July 25, 2019, the California Supreme Court granted review on the issue of whether there was prejudicial instructional error on assault with a deadly weapon and the correct standard of review. The California Supreme Court filed its decision in People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat) on August 26, 2019, addressing these issues in a similar case. On October 30, 2019, the California Supreme court ordered in this case, “The above-captioned matter is transferred to the Court of Appeal, Fourth Appellate District, Division Two, with directions to vacate its decision and to reconsider the cause in light of People v. Aledamat (2019) 8 Cal.5th 1, 9, footnote 4. (Cal. Rules of Court, rule 8.528(d).)” We vacated our prior opinion on November 1, 2019. The parties filed supplemental briefs addressing whether the instructional error was prejudicial in this case in light of Aledamat. We conclude, as we did prior to the opinion in Aledamat, the instructional error in this case was not prejudicial.

FACTUAL AND PROCEDURAL HISTORY

A. PEOPLE’S CASE-IN-CHIEF

Sometime in the late afternoon on May 3, 2015, Rodney Haggstrom was driving southbound on the I-15 Freeway in San Bernardino County. He was returning to Orange County from a weekend visiting his family in Las Vegas. He was driving a rental car. While driving, he got behind a red pickup truck, which was in the middle lane of three lanes. The driver of the red pickup truck, later identified as defendant, was weaving all over the road. Haggstrom pulled into the truck lane to the right of the middle lane to try to get past defendant before defendant caused an accident. As he started to pass the red truck, it drifted over and almost hit him.

Haggstrom was able to get by and he kept driving. As he was driving down the freeway going 75 to 80 miles an hour, he was suddenly bumped from behind by defendant. Haggstrom was able to control his vehicle. There were no other cars in the immediate vicinity. Defendant pulled up next to Haggstrom. Haggstrom rolled down his passenger’s side window. Defendant had his head out the window with his tongue hanging out. He looked like a “nut.” Haggstrom yelled to defendant “What is wrong with you?” and defendant did not respond.

Haggstrom sped up to 90 miles per hour to get away from defendant. Haggstrom thought that defendant was on drugs. Haggstrom continued driving in the fast lane; defendant was in the middle lane. Haggstrom called the police and they told him to pull over until they could respond. Haggstrom did not want defendant to get away so he continued to drive. Haggstrom sped up; defendant caught up to him and bumped him a second time. Defendant got beside Haggstrom and swerved into Haggstrom. Defendant’s truck scratched the passenger’s side mirror. Haggstrom’s car swerved into the dirt on the shoulder, but he kept control of his vehicle. Haggstrom slowed down and let defendant get ahead of him. Defendant began to exit the freeway. Haggstrom pulled into the emergency lane on the side of the road just past the exit and started to back up to keep defendant in sight until the police arrived. As he was backing up, defendant crossed over the dirt between the exit lane and the freeway and headed directly for Haggstrom. Haggstrom quickly got back on the freeway but not before defendant hit him again.

Defendant and Haggstrom continued driving on the freeway. Haggstrom drove fast trying to get away from defendant. Haggstrom came upon some cars and had to slow down. At that point, defendant slammed into the back of his car. Haggstrom’s car began to fishtail but he was able to keep control of the car. Defendant drove in front of Haggstrom and Haggstrom continued to follow him.

California Highway Patrol (CHP) Officer Tirrell Hayes was assigned to the Barstow Highway Patrol Station on May 3, 2015. He was advised of a road rage incident occurring approximately 25 miles north of Baker, and that a sheriff’s deputy had pulled over defendant and Haggstrom in Baker. Officer Hayes spoke with defendant, who was in the driver’s seat of his truck. Defendant had a dog with him in the truck. Defendant insisted he had been driving in the middle lane southbound on the I-15 Freeway when Haggstrom passed him on the right. As Haggstrom was passing him, Haggstrom flipped off defendant.

Defendant continued driving but soon saw Haggstrom’s vehicle in front of him “brake checking him.” Officer Hayes explained that “brake checking” was when someone puts on his or her brakes for no apparent reason but in an effort to cause another person to slow down or to intentionally cause an accident. Defendant told Officer Hayes he had on his cruise control and he did not intend to stop. He rear-ended Haggstrom’s vehicle one time. Defendant claimed he did not call the police because he did not have his phone. He also stated he had to “stick up” for himself because he was disabled. Defendant admitted he intentionally hit Haggstrom’s car. He struck Haggstrom’s car because he was upset with him for flipping him off and brake checking him.

Neither Haggstrom nor defendant appeared to be intoxicated. Defendant did not complain of any mechanical trouble with his truck. Officer Hayes inspected the two vehicles. Based on the damage, it was apparent defendant hit Haggstrom from behind. There were white marks on defendant’s truck that matched Haggstrom’s car’s paint.

Officer Hayes indicated it was impossible to determine the rate of speed based on the damage to the vehicles. Haggstrom’s air bags did not deploy but Officer Hayes indicated they commonly would not deploy during a rear-end collision. Haggstrom denied that he flipped off defendant when he first passed him; he merely raised his arms to ask what defendant was doing. Haggstrom told Officer Hayes he had not been injured. Haggstrom had over $3,000 of damage to the back end of his car, which had to be paid to the rental car company.

B. DEFENSE CASE

CHP Officer Hayes was recalled by the defense. He observed defendant had a firearm in his vehicle during this incident; it was not used. Haggstrom had no front-end damage to his car.

Defendant testified on his own behalf. Defendant first noticed Haggstrom when he drove by him and Haggstrom threw up his hands at him; he was not sure Haggstrom flipped him off. Haggstrom got in front of defendant and started brake checking him. Defendant had his cruise control on when Haggstrom put on his brakes. He did not have time to put his foot on the brake so he bumped Haggstrom. They did not pull over to the side of the road. Defendant turned off his cruise control and slowed down. Haggstrom was in front of him. Defendant was trying to get away.

Haggstrom continued to put on his brakes. Defendant felt he was trying to cause an accident. Defendant went past Haggstrom and Haggstrom began chasing him. Haggstrom bumped into the back of his truck. Defendant insisted that Haggstrom caused damage to his truck. Haggstrom continued to chase defendant. Defendant observed Haggstrom get off the freeway. Defendant drove off quickly down the freeway to get away from Haggstrom. Defendant continued to drive until he was pulled over by a sheriff’s deputy in Baker.

Defendant told Officer Hayes it was his fault he rear-ended Haggstrom’s car but he assumed since he hit Haggstrom, he had to be at fault. Defendant never touched the firearm in his truck. Defendant never called the police. Defendant needed additional time to react while driving because he was disabled. He denied he ever hung his head out the window or hit Haggstrom’s car so hard it caused Haggstrom’s car to fishtail.

Officer Hayes was called in rebuttal. He insisted defendant told him he intentionally hit Haggstrom’s car because he was upset by his actions. Defendant told him “I had my cruise control on and I wasn’t going to stop.” Defendant admitted fault.

DISCUSSION

A. ASSAULT WITH A DEADLY WEAPON INSTRUCTIONAL ERROR

The California Supreme Court has instructed this court to consider defendant’s claim that the trial court instructed the jury with a legally incorrect theory when it instructed the jury with CALCRIM No. 875 in light of its decision in Aledamat. Defendant insists that since the jury was presented with a legally incorrect theory, that an automobile is an inherently deadly weapon, reversal is required as the error was not harmless beyond a reasonable doubt. The automobile was being used for its intended use and the evidence here was more “ambiguous” than the evidence in Aledamat. The People respond that any error in the instruction was harmless beyond a reasonable doubt.

1. ERRONEOUS INSTRUCTION TO THE JURY

The jury was instructed that defendant was charged with assault with a deadly weapon, and it must conclude whether the evidence presented supported the charge. They were instructed, “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act, by its nature, would directly and probably result in the application of force to someone; [¶] 4. When the defendant acted, he had the present ability to apply force with a deadly weapon to a person.” The instructions defined willfully, great bodily injury, and touching.

The instruction then defined deadly weapon as follows: “A deadly weapon is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.” Great bodily injury was defined as “significant or substantial physical injury. . . . It is an injury that is greater than minor or moderate harm.” CALCRIM No. 875 also instructed, “No one needs to actually have been injured by defendant’s act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was.”

It is well established that an automobile is not an inherently deadly weapon. (People v. Montes (1999) 74 Cal.App.4th 1050, 1054.) As such, the portion of CALCRIM No. 875, which advised the jurors that defendant had to do an act with a deadly weapon, and that deadly weapon, here the automobile, was defined as any object, instrument, or weapon that is inherently deadly, was erroneous.

2. STANDARD OF REVIEW AND ALEDAMAT

The parties in their opening briefs disputed the correct standard of review for prejudice and whether such error here was reversible or harmless error. We now consider this argument in light of the Aledamat opinion, which clarified the standard of review for instruction with a legally inadequate theory.

In Aledamat, the defendant used a box cutter, which is not an inherently dangerous weapon, by thrusting the blade at a man several times saying “ ‘I’ll kill you.’ ” (Aledamat, supra, 8 Cal.5th at p. 4.) The defendant was charged with assault with a deadly weapon and a weapons use enhancement. As in this case, the trial court instructed the jury with CALCRIM No. 875, which defined deadly weapon as “ ‘any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or . . . great bodily injury.” (Aledamat, at p. 4.) The intermediate appellate court found that the jury was erroneously instructed that a box cutter could be an inherently deadly weapon, and instruction with an inadequate legal theory warranted reversal because the evidence and instructions failed to establish that the verdict was not based on the inadequate theory. (Id. at p. 5.) The California Supreme Court granted review to determine the proper standard of review for prejudice. (Ibid.)

Initially, the Aledamat court determined that the instruction was erroneous because a box cutter was not an inherently deadly weapon. (Aledamat, supra, 8 Cal.5th at p. 6.) It then concluded for prejudice that the “usual ‘beyond a reasonable doubt’ standard of review established in Chapman v. California (1967) 386 U.S. 18, 24 . . . for federal constitutional error applies. The reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt.” (Aledamat, at pp. 3, 13.)

In assessing prejudice, the Aledamat court found that the error in the instruction was harmless. Initially, it found it was unlikely the jury would actually only consider that the box cutter was an inherently deadly weapon, without considering how it was used, based on the entirety of the instructions, including that it was instructed in deciding for the weapons enhancement that it was to consider all of the surrounding circumstances. It was “unlikely the jury would simply view the box cutter as inherently deadly without considering the circumstances.” (Aledamat, supra, 8 Cal.5th at p. 14.)

Further, the Aledamat court noted that neither counsel argued there were two separate ways to conclude the box cutter was a deadly weapon. (Ibid.) Finally, the Aledamat court considered another way that the error could be seen as harmless as follows: “The reviewing court examines what the jury necessarily did find and asks whether it would be impossible, on the evidence, for the jury to find that without also finding the missing fact as well.” (Id. at p. 15.) Based on what the jury did find based on the instructions, specifically, the elements in CALCRIM No. 875, and the fact that the jury had to conclude that “inherently deadly” meant something, “ ‘[n]o reasonable jury that made all of these findings could have failed to find’ that defendant used the box cutter in a way that is capable of causing or likely to cause death or great bodily injury. [Citation.] For all of these reasons, the error was harmless beyond a reasonable doubt.” (Aledamat, at p. 15)

3. PREJUDICE IN THIS CASE

Here, the jury was presented with a legally valid theory (the automobile could be considered a deadly weapon because it was used in a manner that was capable of causing and likely to cause great bodily injury) and an invalid legal theory (the automobile was an inherently deadly weapon). Using the standard from Aledamat, a review of the entire record demonstrates the instructional error here was “harmless beyond a reasonable doubt.” (Aledamat, supra, 8 Cal.5th at p. 15.)

Here, the jury was presented with evidence that defendant hit Haggstrom’s vehicle on four separate occasions: initially bumped him; swiped the side mirror; hit him at the offramp; and hit him hard from behind causing Haggstrom’s car to fishtail. It was instructed that it must find only one or all of these acts supported the charge of assault with a deadly weapon. It was advised, “The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of the these [sic] acts and you all agree on which act he committed.”

The prosecutor argued in opening argument, “So all it [assault] is is an act. It’s vague. It can be anything. And here we have the act of ramming someone with a pickup truck. That is an act. The pickup truck is the deadly weapon. It’s used in this circumstance on the freeway, it’s a deadly weapon. And nailing someone on the highway with a pickup truck, that will apply force to somebody. Check. Done.”

Defense counsel argued that defendant had to willfully hit Haggstrom’s car to be guilty of assault with a deadly weapon. No one was hurt, which would have occurred if he intentionally hit Haggstrom’s car at a speed of 85 miles per hour. Defense counsel insisted that Haggstrom would have been hurt if he was hit at 85 miles per hour. Further, if defendant hit Haggstrom as hard as described by Haggstrom, the side mirror would have come off and not just be scratched. Defense counsel also argued, “And I might add that the damage to the car is just not consistent with what Mr. Haggstrom says. He says he was hit four times. You look at that picture, that doesn’t look like four different hits. [¶] And, again, I point out that if [defendant] hit Mr. Haggstrom at 85 miles an hour, even if they were both going the same speed, something would have happened to [defendant’s dog].”

In response, the People argued that Haggstrom had testified that the first two bumps to his car were not “that big a deal.” It was the hit from behind that caused him to fishtail and have to regain control. The prosecutor continued, “[E]ven if you conclude that the first collision was some type of accident and that the defendant didn’t intend, wasn’t willful, didn’t willfully hit Mr. Haggstrom that first time, you can still agree that he willfully hit him a second time. You can still all agree that he willfully hit him so hard that he was fishtailing down the freeway the third time, and you can agree that he willfully drove at him at a high rate of speed on that freeway off ramp.”

Initially, defendant never disputed his truck was being used as a deadly weapon. Although he disputed he intentionally hit Haggstrom, he never disputed that his truck could be considered a deadly weapon. The prosecutor did not argue that defendant’s act of just bumping Haggstrom’s car with his truck was enough because the truck was an inherently deadly weapon. Rather, the prosecutor argued that defendant hit Haggstrom so hard Haggstrom fishtailed, and defendant drove at Haggstrom at a high rate of speed at the offramp.

Moreover, the jury was instructed as to the vandalism charge it must find that defendant “maliciously” damaged personal property. It was further instructed, “Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else.” The jury concluded that defendant maliciously damaged Haggstrom’s vehicle, foreclosing the possibility that his truck was not used in a manner likely to cause great bodily injury or death. Defendant hitting Haggstrom’s car occurred while defendant and Haggstrom were barreling down the I-15 Freeway in excess of 80 miles per hour. Haggstrom indicated that he was able to control his car when he was side-swiped by defendant and hit from behind but only because he considered himself a very good driver. These actions did cause him to swerve and to fishtail. He was lucky to keep the car from veering off the road or into another car. If Haggstrom had lost control of his automobile while traveling at 80 miles per hour certainly it was likely to cause great bodily injury or death.

Further, as in Aledamat, the jury had to conclude in finding defendant guilty of assault with a deadly weapon that (1) defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force; (2) when he acted, he was aware of a fact that would lead a reasonable person to realize his act would directly and probably result in the application of force to someone; and (3) when he acted, he had the present ability to apply force with a deadly weapon to a person. These were the same elements referred to by the California Supreme Court in Aledamat. (Aledamat, supra, 8 Cal.5th at p. 15.)

Here, the jury necessarily concluded that defendant used his car in a manner that directly and probably resulted in the application of force to Haggstrom’s vehicle; that when defendant acted, he was aware of a fact that would lead a reasonable person to realize his act would directly and probably result in the application of force to Haggstrom; and he had the present ability to apply force with a deadly weapon to a person. It is unreasonable to conclude that the jury would have found these above elements, but not conclude that defendant used his vehicle in a way in which it could be considered a deadly weapon. The instructional error in this case was harmless beyond a reasonable doubt.

B. MARSDEN

Defendant was afforded three Marsden hearings throughout the trial court proceedings. He complains about the result of only one of those hearings, insisting that although the trial court afforded him the opportunity to list most of his reasons for removing his appointed counsel, the trial court did not allow him to explain his concerns regarding counsel lying to him.

1. ADDITIONAL BACKGROUND

At a pretrial hearing on December 29, 2015, defendant was represented by Deputy Public Defender Philip Zywiciel. Defendant immediately stated, “I don’t want him talking for me, because he lied to me, and I need—I would like new counsel.” The trial court conducted a Marsden hearing.

At this first Marsden hearing, defendant advised the trial court that Zywiciel had lied to him. Defendant insisted counsel had told him that he would get one year of probation, but the deal had been changed to three years. Counsel explained that defendant was out on his own recognizance (OR) for the felony charge when he committed a misdemeanor that was different than the one charged in the case. When he was brought into court on the misdemeanor, his felony OR was revoked. Defendant was offered credit for time served on the misdemeanor, one year of probation and that he could be released on OR until the felony matter was heard. Defendant refused to plead to anything, stating he had done nothing wrong.

Zywiciel told defendant he would attempt to get the deputy district attorney to agree to one year, but defendant would have to plead guilty to the misdemeanor. Defendant stated he could not believe anything Zywiciel told him. Defendant then told Zywiciel he wanted another lawyer.

The trial court advised defendant it did not understand how Zywiciel had lied, as it appeared there was an initial offer of one year of probation, but defendant had rejected the offer. Once it was rejected, the district attorney could withdraw the offer. Defendant was not entirely clear on whether or not—if the offer of one year probation was given again—he would take the offer. Defendant insisted that Zywiciel had not told him the truth, but the trial court did not understand how counsel had lied.

The trial court was willing to take a plea to the misdemeanor with the one-year probation term. Defendant asked if he was getting a new attorney and the trial court responded it did not see any reason to remove Zywiciel. Defendant decided he wanted to proceed to trial on the misdemeanor charge. At the next hearing on January 8, 2016, the misdemeanor was dismissed for lack of evidence. The trial court agreed to release defendant on bail.

The next hearing on the case was conducted on December 19, 2016, after several continuances. Defendant was represented by Deputy Public Defender Mark Bruce. Defendant sought to have Bruce removed and another Marsden hearing was conducted.

Defendant insisted that at each court appearance over the prior year, he had wanted the case to proceed to trial. Defendant believed each time he came to court that the case was going to proceed but Bruce would ask for a continuance. At the previous court appearance, they argued in the hall about the continuance. Bruce stated, in front of other persons in the hall, that everyone in the public defender’s office thought he was an “asshole” besides Bruce. Defendant did not believe he could receive a fair trial. Defendant also accused Bruce of lying to him. Defendant wanted to move the trial to another venue because of what Bruce said to him in the hallway.

The trial court asked, “What else?” Defendant responded, “That’s it.” Defendant then stated he had one more thing to say to the court and the trial court allowed him to talk. Defendant began to talk about the time a bench warrant was issued against him, and the trial court responded, “Forget that. I don’t care. I literally don’t care.”

The trial court reviewed the continuances in the case. It noted that since March 2, 2016, defendant had been out of custody on the case. Defendant explained that prior to that, they had put him in custody on a “fucking ticket in Vegas.” Defendant additionally stated, “No shit. I spent 54 days in jail because of it.” The trial court told defendant he would remand him to custody if he did not stop using bad language.

Defendant apologized and stated that he was frustrated by the length of time the case had been ongoing. He complained he was not getting proper representation. The trial court clarified that Bruce had not started representing defendant until March 2016, and it wanted to know what Bruce had done to delay the case since March.

Bruce indicated he and defendant had been outside the courtroom in the hallway and defendant had been yelling at him. Bruce did raise his voice but told defendant he believed he was innocent. Bruce was appointed in March and continued the case so he and defendant could discuss the case. The preliminary hearing was set for May. On the day of the preliminary hearing, defendant brought his service dog and the trial court wanted to continue the case in order to be given the paperwork confirming that it was a service dog. Bruce convinced defendant to waive the preliminary hearing so that defendant could be kept out of custody (defendant had a heated argument with the trial judge set to hear the preliminary hearing) and the case was set for arraignment on June 3, 2016.

The matter was set for trial the beginning of August 2016. Defendant was late to an appearance and the matter was continued. He also failed to appear on September 2, 2016, and a bench warrant was issued. The matter had to be continued. Defendant was upset that a bench warrant was issued against him and yelled at Bruce. Bruce told him the other attorneys in his office thought he was going to be convicted but he thought he had a chance to win at trial. Bruce did not deny that he may have said that other attorneys in his office thought defendant was an asshole, but Bruce also told defendant he thought defendant was innocent and wanted to represent defendant at trial. Bruce denied he had lied to defendant. Bruce had represented difficult clients in the past and he felt he was capable of dealing with defendant. Bruce personally had no problems with defendant.

Defendant again complained about the number of continuances. The trial court noted that one of the continuances was due to defendant failing to appear. The other continuances were within normal time frames for preliminary hearing to the time of trial.

The trial court explained that unfortunately the public defender’s office had a large volume of cases. In listening to the reasons for the continuances, the trial court found no fault in how the case was handled. Also, the incident in the hallway did not affect Bruce’s representation of defendant or Bruce’s ability to put forth his best effort in the case. The trial court was aware Bruce was more than competent based on prior cases and that he would do his best for defendant. The trial court found defendant had received adequate representation and that there was not an irreconcilable conflict in the attorney/client relationship. Defendant stated for the record that he objected to Bruce being his attorney.

2. ANALYSIS

“Criminal defendants are entitled to the assistance of counsel in their defense. [Citation.] A court must appoint counsel to represent an indigent defendant. [Citation.] A defendant also has a right to seek substitute counsel under Marsden if the defendant can show that continued representation by present counsel would substantially impair or deny his or her right to effective assistance of counsel.” (People v. Knight (2015) 239 Cal.App.4th 1, 5-6.)

“ ‘When a defendant seeks substitution of appointed counsel pursuant to . . . Marsden . . . , “the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” ’ [Citation.] ‘A trial court should grant a defendant’s Marsden motion only when the defendant has made “a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation.” ’ ” (People v. Streeter (2012) 54 Cal.4th 205, 230, overruled on other grounds in People v. Harris (2013) 57 Cal.4th 804, 834.)

“A trial court errs under Marsden by not affording a criminal defendant the opportunity to state all his reasons for dissatisfaction with his appointed attorney. [Citations.] On the other hand, a defendant is not entitled to keep repeating and renewing complaints that the court has already heard.” (People v. Vera (2004) 122 Cal.App.4th 970, 980.)

“ ‘We review the denial of a Marsden motion for abuse of discretion.’ [Citation.] ‘Denial is not an abuse of discretion “unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.” ’ ” (People v. Streeter, supra, 54 Cal.4th at p. 230.)

Here, defendant complains he was not allowed to express all of his reasons for his dissatisfaction with counsel; specifically, the ways that Bruce lied to him. This court has reviewed the entirety of the trial. It was clear that defendant frequently interrupted the trial court and could be difficult. It was also clear that he accused his first attorney of lying to him but could not provide adequate reasons for his belief. The record here supports that the trial court gave defendant every opportunity to state his dissatisfaction with counsel.

Defendant accused Bruce of lying to him. The trial court asked, “What else?” Defendant responded, “That’s it.” Defendant then stated he had one more thing to say to the court and the trial court allowed him to talk. Defendant began to talk about the time a bench warrant was issued against him, and the trial court responded, “Forget that. I don’t care. I literally don’t care.” Defendant was given an opportunity to expand on his statement that Bruce lied to him, but he failed to provide any further reasons. The trial court adequately inquired of defendant. Further, Bruce was willing to provide the best representation to defendant despite defendant being difficult. The trial court did not abuse its discretion by denying defendant’s Marsden motion.

DISPOSITION

We affirm the judgment in its entirety.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

RAPHAEL

J.

Filed 12/5/19 P. v. Rosado CA3

NOT TO BE PUBLISHED

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

WALLACE ROSADO,

Defendant and Appellant.

C082791

(Super. Ct. No. 16FE014349)

Defendant Wallace Rosado pled no contest to inflicting corporal injury on a cohabitant with a prior conviction for the same offense and was placed on probation with various conditions, including that he submit to warrantless searches of electronic storage devices and that he obtain his probation officer’s permission before traveling out of state or being away from his residence for more than 48 hours. The court also imposed various fines and fees, including $1,000 in penalty assessments on a domestic violence fee.

On appeal, defendant challenges the electronic search condition, arguing it is unreasonable under People v. Lent (1975) 15 Cal.3d 481 and overbroad. He further contends that the travel approval condition violates his constitutional right to travel, and that the court was not authorized to impose the $1,000 penalty assessment because the domestic violence program fee is not a fine subject to penalty assessments.

We conclude the record contains no indication of defendant’s past or future use of any electronic device for any illegal activity and therefore the condition is not reasonably related to future criminality and is unreasonable under Lent. Accordingly, we modify the judgment by striking the electronic search condition. We conclude the travel approval condition is not overbroad and does not unconstitutionally infringe on defendant’s right to travel. Finally, we shall strike the $1,000 penalty assessment as unauthorized. As so modified, the judgment is affirmed.

BACKGROUND

On July 24, 2016, defendant assaulted the victim, leaving her with bruises on her right buttocks area, back, hip, and knee; defendant had previously been convicted of inflicting corporal injury on a cohabitant in January 2014. He was charged with one count of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), and it was alleged that he had a prior conviction for the same offense (§ 273.5, subd. (f)(1)).

On August 8, 2016, defendant pled no contest to the charge and admitted the prior conviction allegation in exchange for a grant of probation and 150 days in jail. During the same proceeding, the court suspended imposition of sentence, placed defendant on five years’ formal probation and entered a three-year criminal protective order protecting the victim “from further acts of violence, threats, stalking, sexual abuse, harassment, and, if appropriate, residence exclusion or stay away conditions pursuant to Section 1203.097(a)(2) of the Penal Code.”

As a condition of probation, the prosecutor requested that the court impose the following electronic search condition: “Defendant shall submit his/her person, place, property, automobile, electronic storage devices, and any object under his/her control, including but not limited to cell phones and computers, to search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his/her presence or further consent. [¶] Defendant being advised of his/her constitutional and statutory rights pursuant to Penal Code section 1546 et seq. in this regard, and having accepted probation, is deemed to have waived same and also specifically consented to searches of his/her electronic storage devices. [¶] Defendant shall provide access to any electronic storage devices and data contained therein, including disclosing and providing any and all information necessary to conduct a search.”

The prosecutor explained that the victim requested a written no-contact order prohibiting defendant from having any electronic contact with her and that he has a history of domestic violence related offenses against the same victim; defendant had also violated probation on a previous occasion in 2016 for what the prosecutor described as “in lieu contact that was domestic violence conduct.” The prosecutor further argued that an electronic search condition was necessary where, like here, a written no-contact order or criminal protective order is issued in domestic violence cases as those orders can be violated using electronic devices.

To support the requested electronic search condition, the prosecutor submitted a nonspecific declaration of Sacramento County Sheriff’s Deputy Sean Smith who had experience investigating domestic violence crimes. According to Deputy Smith, based on his nearly 20 years of training and experience, persons convicted of domestic violence related crimes often violate postoffense restraining orders, protective orders, or no-contact orders, and evidence of such violations is often found on their electronic devices. The offender may communicate with the victim via text, chat, or e-mail, or may attempt to have a third party contact the victim electronically to deliver communications. Geolocation data may also provide evidence that the offender’s device was near the victim’s location in violation of a no-contact or stay-away order. The declaration did not relate specifically to the facts of defendant’s case or defendant’s history.

Defense counsel objected to the electronic search condition under Lent, arguing the condition was unreasonable because no evidence showed defendant used any electronic devices in planning or carrying out the corporal injury offense. Counsel further objected that requiring defendant to turn over his passwords to his electronic devices violated his Fifth Amendment right against self-incrimination and that the condition was unconstitutionally overbroad.

After considering the parties’ arguments, the court imposed the electronic search condition as proposed by the prosecutor despite defense counsel’s continued objection. The court also entered a criminal protective order prohibiting contact with the victim (§ 1203.097) and included a probation condition prohibiting defendant from contacting the victim without the prior approval of his probation officer.

In addition to the above conditions, the court also imposed general condition No. 3 as follows: “You may not leave the State of California, at any time, without first securing permission from your probation officer and completing the appropriate procedures to do so. You are not to remain away from your regular residence for more than 48 hours without first having secured permission from your probation officer. You are to immediately notify your probation officer of any intended change of address and the reasons therefore.” Defendant did not object to general condition No. 3.

The court ordered defendant to pay $500 to the domestic violence program special fund and domestic violence fund pursuant to section 1203.097, subdivision (a)(5). Although the written fees and fines, which the trial court reviewed during the hearing, did not include any penalty assessments on the domestic violence fee, the minute order states: “Defendant pay a minimum of $500[] pursuant to Section 1203.097(a)(5) of the Penal Code with a $800[] penalty assessment pursuant to Section 1464 . . . and a $200[] penalty assessment pursuant to Section 76000 of the Government Code . . . .”

Defendant timely appealed from the order granting probation.

DISCUSSION

I

Electronic Search Condition

Defendant challenges the electronic search condition on two grounds, arguing that the condition is unreasonable under Lent and that it is unconstitutionally overbroad. We agree the condition as written is unreasonable and therefore do not reach defendant’s constitutional challenge.

A trial court has broad discretion to impose reasonable conditions of probation in order to promote the rehabilitation of the probationer and to protect public safety. (§ 1203.1, subd. (j); People v. Olguin (2008) 45 Cal.4th 375, 379 [“ ‘The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions’ ”].) A trial court does not abuse its discretion unless its determination is arbitrary or capricious or “ ‘ “exceeds the bounds of reason, all of the circumstances being considered.” ’ ” (People v. Welch (1993) 5 Cal.4th 228, 234.)

Under Lent, a probation condition is invalid if it “ ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .’ ” (People v. Lent, supra, 15 Cal.3d at p. 486.) All three prongs of the Lent test must be met to invalidate a probation condition. (People v. Olguin, supra, 45 Cal.4th at p. 379.) Thus, “even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.” (Id. at pp. 379-380.)

Communicating electronically is not itself criminal. And nothing in the sparse record suggests any electronic device played a role in defendant’s current offense. The question, then, is whether the electronic search condition is reasonably related to preventing future criminality.

Our Supreme Court recently addressed a similar issue in In re Ricardo P. The probation condition at issue in Ricardo P. required a juvenile, who admitted to having committed two counts of felony burglary, to submit to warrantless searches of his electronic devices and passwords at any time even though there was no indication that he used an electronic device in connection with the burglaries. (In re Ricardo P., supra, 7 Cal.5th at p. 1115.) The court imposed the electronic search condition in order to monitor the juvenile’s compliance with separate conditions prohibiting him from using or possessing illegal drugs after he said he had stopped smoking marijuana following his arrest because it prevented him from thinking clearly. (Id. at pp. 1116-1117.) To support the condition, the juvenile court noted that minors typically brag about drug usage by posting on the Internet or showing pictures of themselves using drugs or with drug paraphernalia. (Id. at p. 1117.)

Although skeptical of the juvenile court’s general premise that teenagers have a tendency to brag about drug use online, our Supreme Court found that even accepting the premise as true, the electronic search condition was not reasonably related to future criminality under Lent’s third prong because the burden imposed on the minor’s privacy was substantially disproportionate to the condition’s goal of monitoring and deterring drug use. (In re Ricardo P., supra, 7 Cal.5th at pp. 1116, 1119-1120.) Given the breadth of sensitive and confidential information accessible on devices like cell phones, the limited justification for the condition did not support the significant burden imposed. (Id. at pp. 1119-1120.)

In so finding, our Supreme Court held that the third prong of the Lent test “requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.” (In re Ricardo P., supra, 7 Cal.5th at p. 1121.) It “contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” (Id. at p. 1122.)

Here, as in Ricardo P., only the third prong of the Lent test is at issue. The factual basis for the plea indicates only that defendant physically assaulted the victim with whom he lived. There is no probation report and no evidence regarding any personal history of defendant. Nothing in the record indicates defendant used an electronic device in committing the offense or had any history of using electronic devices to commit, facilitate, or plan criminal conduct, or to brag about such conduct on social media. The only support for the sweeping electronic search condition in the record is Deputy Smith’s generalized declaration, unrelated to either defendant or his specific offense, that those who commit domestic violence related offenses often use electronic devices to violate postoffense restraining orders, protective orders, or no-contact orders, and that geolocation data can show whether a defendant had violated such court orders. Even presuming that these premises are true, like the statements about teenagers posting about their drug use online in Ricardo P., such generalized, hypothetical statements about domestic violence perpetrators — unrelated to the particular defendant before the court — does not satisfy the requirements of Lent. “If we were to find this record sufficient to sustain the probation condition at issue, it is difficult to conceive of any case in which a comparable condition could not be imposed, especially given the constant and pervasive use of electronic devices and social media . . . today. In virtually every case, one could hypothesize that monitoring a probationer’s electronic devices and social media might deter or prevent future criminal conduct.” (In re Ricardo P., supra, 7 Cal.5th at p. 1123.)

Accordingly, we find the electronic search condition is not reasonably related to future criminality and is therefore invalid under Lent because it imposes a burden that is substantially disproportionate to the legitimate interests in promoting rehabilitation and public safety. (In re Ricardo P., supra, 7 Cal.5th at p. 1129; People v. Lent, supra, 15 Cal.3d at p. 486.) Having determined the condition is invalid under Lent, we need not address defendant’s additional contention that the condition is unconstitutionally overbroad.

II

Travel Approval Condition

Defendant challenges the condition that prohibits him from traveling outside of California or remaining away from his residence for more than 48 hours without first receiving permission from his probation officer, arguing that the condition is overbroad and unconstitutionally infringes on his right to travel. While he acknowledges that he did not object to the condition below, he argues he did not forfeit his challenge on appeal because the condition can be corrected without reference to the sentencing record. The People contend defendant forfeited his constitutional challenge to the condition, or, alternatively, that the condition is valid.

Initially, we reject the People’s claim that defendant forfeited his constitutional challenge to the travel approval condition. Although the failure to make a timely objection to a probation condition ordinarily forfeits the claim of error on appeal, a claim that a probation condition is facially overbroad may be treated as a question of law which is not forfeited by failure to raise it in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 881, 888-889 [forfeiture rule does not apply to a defendant’s contention that a probation condition, on its face, is unconstitutionally vague and overbroad].) Accordingly, we address defendant’s claim on the merits.

As noted above, trial courts generally have broad discretion in fashioning terms of probation that foster rehabilitation and protect public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; § 1203.1].) Where a probation condition impinges on constitutional rights, the condition must be carefully tailored and reasonably related to the compelling state interest in reforming and rehabilitating the defendant. (People v. Bauer (1989) 211 Cal.App.3d 937, 942; People v. Olguin, supra, 45 Cal.4th at p. 384 [“[A] probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad”].)

“The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights . . . .” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) “Conditions which infringe on constitutional rights are not automatically invalid. Certain intrusions by government which would be invalid under traditional constitutional concepts may be reasonable at least to the extent that such intrusions are required by legitimate governmental demands.” (In re White (1979) 97 Cal.App.3d 141, 149-150.) We independently review defendant’s constitutional challenge to a probation condition. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)

Although all citizens have a basic constitutional right to interstate and intrastate travel (In re White, supra, 97 Cal.App.3d at p. 148; People v. Relkin (2016) 6 Cal.App.5th 1188, 1195), that right is not absolute and may be reasonably restricted in the public interest (Relkin, at pp. 1195-1196; In re White, at pp. 149-150). Indeed, “[i]mposing a limitation on probationers’ movements as a condition of probation is common . . . .” (People v. Moran (2016) 1 Cal.5th 398, 406.)

The environment in which a probationer serves probation is an important factor in determining whether probation will be successfully completed, and, thus, directly impacts the likelihood of effective rehabilitation. A probation officer’s awareness of a probationer’s whereabouts, moreover, “facilitates supervision and rehabilitation and helps ensure probationers are complying with the terms of their conditional release.” (People v. Moran, supra, 1 Cal.5th at p. 406.)

The travel approval condition here is similar to others that have been upheld as valid. (People v. Relkin, supra, 6 Cal.App.5th at pp. 1195-1196 [upholding against constitutional overbreadth challenge of a probation condition similarly requiring defendant to obtain written permission from probation officer prior to leaving state]; In re Antonio R. (2000) 78 Cal.App.4th 937, 942 [probation condition prohibiting juvenile offender who legally resided in Orange County from traveling to Los Angeles County unless accompanied by a parent or with his probation officer’s permission held valid].) Contrary to defendant’s contention, the condition does not impermissibly restrict his right to travel. The condition does not prohibit him from traveling outside California or from being away from his residence for more than 48 hours, but merely requires him to obtain his probation officer’s approval before doing so. Leaving the state or remaining away from one’s home for an extended period of time would interfere with the probation officer’s ability to effectively supervise defendant. It could also hinder defendant’s rehabilitation and successful compliance with other probationary conditions. The condition is thus narrowly tailored and reasonably related to the compelling state interest of facilitating the supervision and rehabilitation of defendant. (People v. Moran, supra, 1 Cal.5th at p. 406.)

Defendant’s claim that the probation condition gives the probation officer “unfettered control” in deciding whether to allow him to leave the state or remain away from his home for more than 48 hours is not persuasive. There is nothing to suggest that defendant’s reasonable requests to travel out of state or to stay somewhere other than his residence for more than 48 hours would be disapproved. Our Supreme Court in People v. Olguin, supra, 45 Cal.4th at page 382, stated that a probation condition “should be given ‘the meaning that would appear to a reasonable, objective reader.’ ” We view the travel approval condition here in light of Olguin and presume a probation officer will not withhold approval for irrational or capricious reasons. (Id. at p. 387; see People v. Stapleton (2017) 9 Cal.App.5th 989, 996 [“A probation officer cannot issue directives that are not reasonable in light of the authority granted to the officer by the court”]; People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240 [probation conditions are limited by reasonableness “[s]ince the court does not have the power to impose unreasonable probation conditions, [and therefore] could not give that authority to the probation officer”].)

Based on the foregoing, we conclude the travel approval condition is not unconstitutionally overbroad and it does not unreasonably restrict defendant’s right to travel.

III

Penalty Assessments

Defendant contends $1,000 in penalty assessments was improperly added to the domestic violence fee imposed by the court. The People concede the penalty assessments were improper and we agree.

Various statutory provisions require the addition of a penalty assessment upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses. (§ 1464, subd. (a)(1); Gov. Code, § 76000, subd. (a)(1).) However, penalty assessments do not apply to fees imposed not as punishment but to defray administrative costs. (People v. Vega (2005) 130 Cal.App.4th 183, 195.)

Section 1203.097 requires a person who is granted probation for a domestic violence crime to pay a minimum $500 “fee” unless the court finds the person does not have the ability to pay the fee. (§ 1203.097, subd. (a)(5)(A).) The statute expressly delineates the payment as a fee rather than a fine (§ 1203.097, subd. (a)(5)(D) [“The fee imposed by this paragraph shall be treated as a fee, not a fine”]), and the legislative history of the statute makes clear that the $500 payment is a fee not a fine (Legis. Counsel’s Dig., Assem. Bill No. 139 (2013-2014 Reg. Sess.), ch. 144). It was therefore error to impose $1,000 in penalty assessments on the fee, and we shall order the penalty assessment stricken.

DISPOSITION

The electronic search condition is stricken from the order of probation. The $800 penalty assessment under section 1464 and the $200 penalty assessment under Government Code section 76000 imposed on the $500 domestic violence fee are stricken from the minute order, and the clerk is directed to prepare a corrected minute order. As so modified, the judgment is affirmed.

/s/

Robie, J.

We concur:

/s/

Blease, Acting P. J.

/s/

Murray, J.

Filed 12/6/19 P. v. Sahinian CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

EDWARD SAHINIAN,

Defendant and Appellant.

B290389

(Los Angeles County

Super. Ct. No. BA456291)
APPEAL from a judgment of the Superior Court of Los Angeles County, Jose I. Sandoval, Judge. Reversed and remanded with instructions.

Megan Hailey-Dunsheath, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Zee Rodriguez, Supervising Deputy Attorney General, Noah P. Hill, Deputy Attorney General, Nathan Guttman, Deputy Attorney General, for Plaintiff and Respondent.

_________________________________

We must interpret Proposition 47, which voters passed in 2014 to reduce some felonies to misdemeanors. Our main issue here is, which felonies? In particular, did Proposition 47 reduce the sentence for receiving a stolen vehicle, which is the crime outlawed by Penal Code section 496d?

This issue has split courts badly.

Six published opinions have said no. (People v. Bussey (2018) 24 Cal.App.5th 1056, review granted Sept. 12, 2018, S250152; People v. Orozco (2018) 24 Cal. App. 5th 667, 674, review granted Aug. 15, 2018, S249495; People v. Varner (2016) 3 Cal.App.5th 360, review dism. and case remanded Aug. 9, 2017, S237679; People v. Nichols (2016) 244 Cal.App.4th 681, review dism. and case remanded Aug. 9, 2017; People v. Garness (2015) 241 Cal.App.4th 1370, review dism. and case remanded Aug. 9, 2017; People v. Peacock (2015) 242 Cal.App.4th 708, review dism. and case remanded Aug. 9, 2017.)

Two published opinions say yes. (People v. Wehr (2019) 41 Cal.App.5th 123 (Wehr); People v. Williams (2018) 23 Cal.App.5th 641.)

We join the minority that says yes. We hold Proposition 47 applies to section 496d. That is, Proposition 47 confers misdemeanor status on receiving a stolen vehicle, unless the vehicle’s value exceeds $950 or unless the offender has a particularly serious record. Unspecified citations are to the Penal Code.

I

The germane facts are few because interpreting Proposition 47 issue is a legal issue. A jury convicted Edward Sahinian of violating section 496d. Police arrested him in a stolen car in 2017. No evidence set the car’s value. At sentencing, Sahinian asked the trial court to apply Proposition 47 to reduce his felony conviction to a misdemeanor because nothing showed the car was worth more than $950, which is the line between grand and petty theft. The court denied the motion, denied probation, and sentenced Sahinian to the upper term of three years in state prison plus an additional year for one of the prior prison terms, with presentence custody credit for 820 days.

II

We independently review decisions about the scope of Proposition 47. (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1249.)

Our Supreme Court has resolved important issues about Proposition 47. (See People v. Valenzuela (2019) 7 Cal.5th 415, 423 [“Proposition 47 has generated many interpretive issues for this court.”] [listing 10 Supreme Court cases].)

This jurisprudence frames our analysis. It predates Proposition 47’s passage in 2014. People v. Garza (2005) 35 Cal.4th 866, 871 considered whether dual convictions under Vehicle Code section 10851 (taking or driving a vehicle without the owner’s consent) and Penal Code section 496, subdivision (a) (receiving stolen property) violated the statutory rule against convicting a person for both stealing and receiving the same property. The Garza decision concluded the answer depended on the basis for the Vehicle Code section 10851 conviction—whether it was for stealing the automobile or for taking or driving it in another prohibited manner.

The Page case then applied Garza’s distinction in the context of Proposition 47. (See People v. Page (2017) 3 Cal.5th 1175, 1183 (Page).) Page reviewed a conviction under Vehicle Code section 10851 and established an “automobile is personal property.” This meant that, under Proposition 47, one who obtains a car worth less than $950 by theft must be charged with petty theft and may not be charged as a felon under any other criminal provision. (Ibid.)

Our Supreme Court has ruled theft of access card account information is one of the crimes eligible for reduced punishment under Proposition 47. (People v. Romanowski (2017) 2 Cal.5th 903, 905–906 (Romanowski).)

Earlier this year, the Supreme Court again grappled with a Proposition 47 case involving a stolen car. The jury convicted one Lara of violating Vehicle Code section 10851, but the evidence was only that he was driving the stolen car, not that he had stolen it. (People v. Lara (2019) 6 Cal.5th 1128, 1137 (Lara).) No evidence showed the vehicle’s value, but the proof supported a theory of posttheft driving, which does not require proof of vehicle value in order to be treated as a felony. The Lara decision held Proposition 47 did not cover such a case. (Ibid.)

These cases illuminate our analysis. But they are not directly controlling, because none involved the statute here: section 496d. We thus seek to apply Supreme Court guidance to an interpretive question the Supreme Court has yet to resolve.

In every interpretive quest involving legislation, we seek the legislature intent. With Proposition 47, the “legislature” was the millions of Californians who voted on it. The proposition’s words are key. We supplement that focus with other traditional interpretative tools. (See, e.g., People v. Valencia (2017) 3 Cal.5th 347, 356–358 (Valencia).)

The text is silent on the central question. Proposition 47’s text neither expressly affirms nor negates its application to section 496d.

Our job is to effectuate the purpose of the statute. (E.g., Apple Inc. v. Superior Court (2013) 56 Cal.4th 128, 135.) “The dominant mode of statutory interpretation over the past century has been one premised on the view that legislation is a purposive act, and judges should construe statutes to execute that legislative purpose. This approach finds lineage in the sixteenth-century English decision Heydon’s Case, which summons judges to interpret statutes in a way ‘as shall suppress the mischief, and advance the remedy.’” (Katzmann, Judging Statutes (2014) p. 31, italics added.)

So we search for the mischief Proposition 47 sought to remedy. We find Proposition 47 applies to section 496d, and thus yields misdemeanor treatment for Sahinian. Here is why.

The text of Proposition 47 states its purpose. That purpose was to “[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, subd. 3, p. 70 (Voter Information Guide).) The goal was to save “significant state corrections dollars on an annual basis.” (Id. at text of Prop. 47, §3, subd. 6, p. 70.)

According to the proposition, then, the mischief was the expensive over-incarceration of offenders who had committed nonviolent and nonserious crimes. Its remedy was to shorten their sentences, to reduce the state’s prison population, and thus to save public funds. (Accord, Wehr, supra, 41 Cal.App.5th at p. 128–129.)

This goal was big. The voter guide forecast the annual savings to be in the “hundreds of millions of dollars.” (Voter Information Guide, supra, at p. 34; see also id. at text of Prop. 47, §3, subd. 6, p. 70 [“Preliminary estimates range from $150 million to $250 million per year.”].) Proponents argued the measure would eliminate the waste of “money on warehousing people in prisons for nonviolent petty crimes, saving hundreds of millions in taxpayer funds every year.” (Voter Information Guide, supra, at p. 38.) Opponents claimed “10,000 inmates will be eligible for early release.” (Id. at p. 38.) Friends and foes agreed this proposition was to have a major impact.

This breadth of purpose suggests Proposition 47 applies to section 496d. Nothing about this broad purpose implies persnickety or crabbed boundaries on Proposition 47’s scope, as would be necessary were we to distinguish section 496 from 496d.

This analysis of purpose is consistent with the text of the voter pamphlet, which we now scrutinize.

The important parts of the voter pamphlet are the title, the summary, and the description by the Attorney General and the Legislative Analyst. That is what voters typically read first, if indeed they read the pamphlet at all. Voters also may look over the arguments pro and con to see who has endorsed the measure, who has opposed it, and what their arguments are. Further information in the voter pamphlet — especially the text of the proposed law — is of less utility. Those with voter experience in our state know how unusual it is for any voter to grapple with the pages of very small print setting forth the proposed law’s complete text. For good reason, then, our Supreme Court does not presume voters thoroughly study the probable impact of proposed propositions. (Valencia, supra, 3 Cal.5th at pp. 370–375.) Voters do not have legislative staff. It is unreasonable to presume the average voter will be aware of a proposition’s implications outside the text of the proposition and the voter pamphlet. (Id. at p. 372.) Thus the voter guide’s summary of a proposition is the vital part of its legislative history.

We summarize the vital part of the voter pamphlet. For Proposition 47, the summary was six pages long. The title for Proposition 47 was “Criminal Sentences. Misdemeanor Penalties. Initiative Statute.” The description began with a one-line description of Proposition 47’s impact on drug possession offenses, which are not pertinent here.

The important line comes next. This bullet point is near the very top of the first page of description. It states the proposition would require misdemeanor sentences instead of felony sentences for the following crimes when the amount involved is $950 or less: “petty theft, receiving stolen property, and forging/writing bad checks.” We add italics to emphasize the obvious point: straightaway, the pamphlet implies this proposition does apply to section 496d.

There is a further reference on the second page (page 35 of the pamphlet) that mentions “cars” specifically, to the effect that theft of cars would get misdemeanor treatment unless the car’s value exceeded $950. (See Page, supra, 3 Cal.5th at p. 1187.) This sentence enforces the notion the proposition applies to section 496d.

Most significant is this sentence: “Under [Proposition 47], receiving stolen property worth $950 or less would always be a misdemeanor.” (Voter Information Guide, supra, at p. 35, italics added.)

Nothing in this six-page summary hints at an exception that would retain felony treatment for receiving stolen cars, no matter the value. The important part of the voter pamphlet states the opposite.

In sum, the voter pamphlet suggests Proposition 47 applies to section 496d.

We acknowledge a wrinkle. Proposition 47 adds or amends many sections of statutory code but omits section 496d. In other circumstances, this omission might create a negative implication that Proposition 47 does not apply to section 496d. But here, as we have just seen, there is a clear legislative intent to the contrary. (See Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 635–636 [if the statute specifies exemptions, judges may not imply additional exemptions unless there is a clear legislative intent to the contrary].)

This wrinkle is insignificant because context shows we should not draw a negative implication from the Proposition 47’s failure to mention section 496d. (Cf. Scalia & Garner, Reading Law: The Interpretation of Legal Texts (2012) p. 107 [“Virtually all the authorities who discuss the negative-implication canon emphasize that it must be applied with great caution, since its application depends so much on context.”].)

The vital context is the text of Proposition 47 itself. This text gives us pause because it included two sentences saying the same thing. The two redundant sentences are both on page 74 of the voter pamphlet. The first sentence states (with our italics) that “[t]his act shall be broadly construed to accomplish its purposes.” (Voter Information Guide, supra, at text of Prop. 47, § 15, p. 74.) Again, and on the same page, section 18 states “This act shall be liberally construed to effectuate its purposes.” (Id. at § 18, p. 74, italics added; see Page, supra, 3 Cal.5th at p. 1187; Romanowski, supra, 2 Cal.5th at p. 909.)

These two sentences say the same thing. It is impossible to interpret them to say different things. So one of them is surplusage. This is curious.

Even more curious is how the surplusage is redundant in a pointlessly differing way: “broadly” versus “liberally,” and “accomplish” versus “effectuate.” This is inattention to detail.

Surplusage in legislation is unusual and disfavored. The venerable assumption is drafters avoid surplusage and therefore so should judges who interpret the drafting. (E.g., Market Co. v. Hoffman (1879) 101 U.S. 112, 115–116; People v. Leiva (2013) 56 Cal.4th 498, 506.)

The drafters of Proposition 47 departed from this assumption, for no obvious reason. This observation is not carping criticism. Rather the point is a valuable clue: we should not draw a negative implication from the drafting omission.

Judges prefer to show respect for the democratic process by presuming legislative omniscience and omnicompetence. But it does not honor democracy to use that assumption to thwart the plain will of voters, which they revealed through their purpose in passing Proposition 47. This wrinkle is indeed inconsequential.

As a final point, the proposition contains express instructions for judges to interpret it “broadly” and “liberally.” As just observed, sections 15 and 18 repeat this instruction, with some puzzling redundancy. But a repeated instruction remains an instruction. We obey it. And we obey the Supreme Court holdings to the same end. (See Page, supra, 3 Cal.5th at p. 1187; Romanowski, supra, 2 Cal.5th at p. 909.)

We thus interpret Proposition 47 broadly. We apply it to section 496d.

What does that mean, exactly? It means the following sentence from section 496 also governs section 496d: “However, if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.”

We agree with our colleagues in Wehr that we should remand and allow the People either (1) to accept a reduction of the conviction to a misdemeanor, or (2) to retry Sahinian for a felony violation of section 496d. (See Wehr, supra, 41 Cal.App.5th at pp. 134–135). We adopt Wehr’s thorough analysis of this issue.

III

Sahinian incorrectly faults the trial court for admitting evidence of his previous arrests. This evidence was that he had been arrested three times in the past for stealing cars or possessing a stolen car. This evidence was proper because it suggested Sahinian knew the car in which he was arrested was stolen. We review this issue for abuse of discretion. (People v. Whisenhunt (2008) 44 Cal.4th 174, 203 (Whisenhunt).)

Additional facts are pertinent now. At trial, an officer testified a key ring with shaved keys was on the floor of the stolen car in which police found Sahinian in 2017. The evidence was shaved keys are for stealing cars.

There also was testimony about three pre-2017 events. These events were in 2005, 2013, and 2014.

Officer Camuy testified that, in 2005, he found Sahinian driving a stolen taxi. The key to the taxi looked unusual, but Camuy could not determine whether it belonged to the taxi or instead whether it had been altered.

Officer Leal testified she went to the scene of a traffic collision in 2013 where police arrested Sahinian after a pursuit. He had been driving a stolen car and had the owner’s driver’s license and two shaved keys. Neither of these keys belonged to the stolen car. Sahinian told Leal he stole the car using keys he had stolen. He used the owner’s key, not the shaved keys.

Officer Liang testified he found Sahinian in 2014 with a stolen car. Sahinian had two shaved keys. He gave a false name, but then admitted he stole the car. He explained how to start cars with shaved keys.

The court instructed jurors to use this evidence for the limited purpose of deciding whether Sahinian knew the vehicle was stolen and whether his actions were or were not the result of mistake.

This evidence was proper. It was relevant. An issue was whether Sahinian knew the car he received was stolen. The shaved keys in the car tended to prove his guilty knowledge, but only if Sahinian knew shaved keys were for stealing cars. The episodes in 2005, 2013, and 2014 tended to show Sahinian knew this. Therefore this testimony was proper proof of knowledge and not bad character evidence. Nor was there a probability of undue prejudice substantially outweighing the probative value. There was no abuse of discretion. (See, e.g., Whisenhunt, supra, 44 Cal.4th at pp. 203–205.)

Sahinian states on page 21 of his reply brief he is not arguing the trial court should have sanitized the evidence. We thus do not pursue this point.

IV

Sahinian argues we must reverse because the trial court provided no adequate remedy for the prosecution’s failure to provide timely discovery. He concedes such an error (assuming there was one) is usually harmless unless there is a reasonable probability it affected the verdict. This argument fails for want of this probability.

Sahinian says he suffered prejudice because defense counsel did not have the chance to interview non-testifying witnesses mentioned in the police reports for the episodes in 2005, 2013, and 2014.

Sahinian has not demonstrated prejudice. He does not say in particular how non-testifying witnesses could have helped his cause. Nor can we imagine how other witnesses could have undone the valid damage Officer Liang did in just two pages of transcript. Liang recounted how he personally found Sahinian in 2014 with a stolen car and shaved keys in Sahinian’s left front pocket. This was all the prosecution needed. The other evidence of this sort was cumulative. There was no reasonable probability the tardiness of discovery could have affected the verdict.

V

We grant Sahinian’s motion to withdraw his argument concerning People v. Dueñas (2019) 30 Cal.App.5th 1157.

VI

The Attorney General does not contest Sahinian’s argument that, if Proposition 47 applies to his offense, the one-year enhancement imposed under section 667.5, subdivision (b) must be vacated as unauthorized. The trial court is to address this issue on remand.

DISPOSITION

We reverse and remand to allow the People either (1) to accept a reduction of the conviction to a misdemeanor, or (2) to retry Sahinian for a felony violation of section 496d. After the People have made this election, the court is to determine whether the one-year enhancement imposed under section 667.5, subdivision (b) must be vacated as unauthorized.

WILEY, J.

We concur:

BIGELOW, P. J.

STRATTON, J.

Filed 12/6/19 P. v. Williams CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER WILLIAMS,

Defendant and Appellant.

B294090

(Los Angeles County

Super. Ct. No. YA095655)
APPEAL from a judgment of the Superior Court of Los Angeles County, Eric C. Taylor, Judge. Affirmed.

Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General of California, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent.

____________________

The trial court ordered Christopher Williams to make restitution to his robbery victims. Williams claimed he was first entitled to an ability-to-pay hearing under People v. Dueñas (2019) 30 Cal.App.5th 1157, 1169 (Dueñas). We affirm. Statutory references are to the Penal Code.

Williams pleaded no contest to two counts of robbing to get diamond rings. We dismissed his appeal of his prison sentence because he did not obtain a certificate of probable cause. (People v. Williams (2019) 37 Cal.App.5th 602, 606, review granted Sept. 25, 2019, S257538.) At Williams’s request, we judicially notice that appeal’s record.

The trial court ordered Williams to pay direct victim restitution of $62,112.18 plus interest. Williams argues the trial court had to determine his ability to pay before it could make this order. He cites Dueñas, where direct victim restitution was “not at issue.” (Dueñas, supra, 30 Cal.App.5th at p. 1169, italics added.) This case concerns only direct victim restitution. Nevertheless, Williams says Dueñas’s logic entitled him to an ability-to-pay hearing. This is incorrect.

The Dueñas decision did not consider the constitutional interest in victim restitution at stake here. “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer.” (Cal. Const., art. I, § 28, subd. (b), par. (13)(A).) Californians enacted this unequivocal provision out of concern for victims. This constitutional mandate eclipses Williams’s contention.

DISPOSITION

The judgment is affirmed.

WILEY, J.

We concur:

BIGELOW, P. J.

GRIMES, J.