Filed 3/5/20 McMenamin v. Cooley Construction, Inc. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

EUGENE MCMENAMIN, as Co-trustee, etc., et al.,

Plaintiffs and Appellants,

v.

COOLEY CONSTRUCTION, INC.,

Defendant and Respondent.

E070836, E072458

(Super.Ct.No. CIVDS1602274)

OPINION

APPEAL from the Superior Court of San Bernardino County. Wilfred J. Schneider, Judge. Affirmed.

Lynberg & Watkins, Trevor O. Resurreccion, and Ruben Escobedo for Plaintiffs and Appellants.

Law Offices of Gregory J. Hout, Gregory J. Hout; Arias & Lockwood and Christopher D. Lockwood for Defendant and Respondent.

Following the plaintiffs’ opening statement in a construction defect trial, the trial court granted the defendant’s motion for nonsuit on the ground that plaintiffs lacked expert testimony that could support their causes of action. It denied plaintiffs’ motion for new trial filed several months later. On appeal, plaintiffs primarily argue that the trial court erred because liability could be proven without expert testimony. We disagree and affirm.

I. FACTUAL AND PROCEDURAL HISTORY
II.
Plaintiffs and appellants Eugene and Juttar McMenamin (collectively, plaintiffs) hired defendant and respondent Cooley Construction, Inc. (Cooley) to install and pave a parking lot in Twentynine Palms. The contract called for an asphalt layer four inches thick. Cracks began to appear nine months after the job completion, so plaintiffs brought causes of action against Cooley for negligence, breach of contract, and breach of implied warranty.

Cooley’s motions in limine included one that sought to exclude all testimony from plaintiffs’ expert on causation, Brett L. Anderson, which the court denied, and another that sought to limit Anderson’s opinions to those expressed during depositions, which the court granted. During his deposition, Anderson opined that the asphalt cracked because the oil that was used in the mixture “appear[ed] too brittle.” Anderson admitted, however, that he did not test the oil and that his opinion was based “entirely” on the fact that the asphalt was cracked.

Plaintiffs presented their opening statement at trial. Cooley then moved for nonsuit, arguing that because none of plaintiffs’ experts would be able to opine as to causation or breach (whether of the contract or of the standard of care), plaintiffs could not prevail on any of their causes of action. The trial court gave plaintiffs an opportunity to make an offer of proof. Plaintiffs responded that they could establish liability by cross-examining Cooley’s expert, to which the trial court noted that the expert was Cooley’s witness, was not required to appear under any subpoena from plaintiffs, and was under no obligation to testify unless Cooley chose to call him. The trial court granted the motion.

Several months later, plaintiffs moved for a new trial. Plaintiffs argued that they did not need expert testimony to establish their contract-based causes of action. Plaintiffs also contended that expert testimony was not needed to establish liability because Cooley had judicially admitted that the asphalt was deficient. Additionally, plaintiffs included a declaration from Eugene stating that although the job called four inches of asphalt, he found that the asphalt was only two inches thick in certain areas. The trial court denied the motion.

III. ANALYSIS
IV.
“The standard of review for a nonsuit after conclusion of the opening statement is well settled. Both the trial court in its initial decision and the appellate court on review of that decision must accept all facts asserted in the opening statement as true and must indulge every legitimate inference which may be drawn from those facts. [Citations.] A nonsuit at this early stage of the proceedings is disfavored. [Citation.] It can only be upheld on appeal if, after accepting all the asserted facts as true and indulging every legitimate inference in favor of plaintiff, it can be said those facts and inferences lead inexorably to the conclusion plaintiff cannot establish an essential element of its cause of action or has inadvertently established uncontrovertible proof of an affirmative defense. [Citations.]” (Abeyta v. Superior Court (1993) 17 Cal.App.4th 1037, 1041.)

Plaintiffs’ arguments on appeal largely mirror those raised in moving for a new trial. We describe and address each in turn.

A. Necessity of Expert Testimony
B.
Plaintiffs contend that expert testimony was not needed to prevail on their contract based causes of action. We disagree.

“‘[T]he decisive consideration in determining the admissibility of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ [Citations.] Expert opinion evidence is required in some circumstances. ‘If the matter in issue is one within the knowledge of experts only and not within the common knowledge of laymen, it is necessary for the plaintiff to introduce expert opinion evidence in order to establish a prima facie case.’ [Citations.]” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 844 (Carson).) “This rule has been applied to require expert testimony on a wide range of issues.” (Ibid.)

Whether an asphalt surface cracks due to a defect in construction is “‘not within the common knowledge of laymen’” but rather “‘within the knowledge of experts only.’” (Carson, supra, 36 Cal.3d at p. 844.) For example, whether the asphalt cracked because four inches was not a satisfactory thickness for a layer of asphalt in the desert; whether any asphalt (as opposed to concrete) in the desert would crack; or whether it cracked because the density after compaction was too low or too high, is not “‘such common knowledge that men of ordinary education could reach a conclusion as intelligently’” as expert witnesses. (Ibid.)

Plaintiffs recognize that negligence—their first cause of action—generally requires expert evidence when it implicates a professional standard of care. (See Unigard Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1239 [“In negligence cases arising from the rendering of professional services, as a general rule the standard of care against which the professional’s acts are measured remains a matter peculiarly within the knowledge of experts. Only their testimony can prove it, unless the lay person’s common knowledge includes the conduct required by the particular circumstances”].) Plaintiffs argue, however, that their claims of breach of an express contract term or an implied warranty of fitness do not require expert testimony because they do not turn upon the violation of a professional standard of care. The argument, as we understand it, is that the breach allegations turn on a violation of the contract, not on a violation of the standard of care.

A problem with the plaintiffs’ argument in this case is that they did not indicate at trial that there was a specific term of the contract that was violated, only a violation of an implied duty of workmanship. This appears to, at bottom, require the same showing of a violation of a professional standard of care as does plaintiffs’ tort claim.

In any event, however, plaintiffs’ focus on the breach allegations does not resolve the burden that they have of proving causation. “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th, 1182, 1186.) “Implicit in the element of damage is that the defendant’s breach caused the plaintiff’s damage” (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1352), and “[c]ausation of damages in contract cases requires that the damages be proximately caused by the defendant’s breach” (St. Paul Fire and Marine Ins. Co. v. American Dynasty Surplus Lines Ins. Co. (2002) 101 Cal.App.4th 1038, 1060; see Civ. Code, § 3300). Here, expert testimony was necessary (at a minimum) to show that something about Cooley’s purported violation of explicit terms in the contract, or of the implied warranty, caused the parking lot to crack, even assuming Cooley violated some contractual obligation.

As discussed above, why a layer of asphalt cracks is “‘not within the common knowledge of laymen.’” (Carson, supra, 36 Cal.3d at p. 844.) “Where the complexity of the causation issue is beyond common experience, expert testimony is required to establish causation.” (Hernandez v. County of Los Angeles (2014) 226 Cal.App.4th 1599, 1614.) Thus, all three of plaintiffs’ causes of action—negligence, breach of contract, and breach of implied warranty—required expert testimony. Plaintiffs could not have prevailed at trial without it.

C. Judicial Admissions
D.
Plaintiffs contend that Cooley judicially admitted that its use of asphalt was negligent. Plaintiffs point to Cooley’s cross-complaint against its asphalt supplier as well as statements made by Cooley’s counsel. Again, we disagree.

A judicial admission is “ordinarily a factual allegation by one party that is admitted by the opposing party.” (Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446, 452, italics omitted.) Such a concession by the opposing party “‘has the effect of removing the matter from the issues.’” (Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271.) “Although statements of counsel ‘may be treated as judicial admissions if they were intended to be such or reasonably construed by the court or the other party as such,’ such admissions must be clear and unambiguous.” (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1112.)

Cooley’s allegations in its cross-complaint do not constitute judicial admissions as between Cooley and plaintiffs here. A judicial admission is conclusive “‘only in the particular case’” (Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 456), and “a complaint and cross-complaint are separate actions” for these purposes (Shepard & Morgan v. Lee & Daniel, Inc. (1982) 31 Cal.3d 256, 260). This is to allow a party to choose “among possible alternative theories” of liability prior to trial: “[O]n the possibility that [liability] might be found to exist, [Cooley] should be permitted to reserve the option of seeking indemnity from third persons . . . on the theory that they were primarily responsible . . . .” (Ibid.) Cooley’s tactical decision to seek indemnity from others in the event it is held liable does not automatically mean that Cooley has admitted liability.

Plaintiffs also contend that Cooley’s counsel “admitted in open court that it was negligent” (italics and boldface omitted), citing a four page portion of the reporter’s transcript, but nothing in those pages constitutes an unambiguous admission. Plaintiffs cite to an argument made during one of plaintiffs’ motions in limine—specifically, a motion to exclude any evidence referring to the potential use of concrete rather than asphalt. The parties agree that concrete would have been better than asphalt, but Eugene stated during his deposition that a concrete parking lot was nothing more than “a wish.” At one point, Cooley’s counsel contended that plaintiffs’ decision to use asphalt despite “two civil engineers’ specifications and instructions to install concrete” raised an “issue about comparative fault.” However, this is not the same as Cooley conceding that any installation of asphalt would have been negligent. In making this contention, Cooley’s counsel was merely trying to argue that the fact that plaintiffs chose to install asphalt instead of concrete, despite engineering advice to the contrary, should not be withheld from the jury. Neither this statement nor any other one cited by plaintiffs is a judicial admission of negligence.

E. Asphalt Thickness
F.
Plaintiffs contend that they should have been allowed to present their cause of action for breach of contract to the jury because the fact that the asphalt was only two inches thick in certain areas could have been sufficient to establish liability. This appears to be an argument of a violation of a specific term of the contract. Putting issues of causation discussed above aside, this argument fails as untimely. Plaintiffs did not mention in their opening statement that they sought to establish that the asphalt was too thin, and when the trial court gave plaintiffs an opportunity to make an offer of proof in opposing the motion for nonsuit, plaintiffs failed to mention this theory. Instead, it was first advanced when plaintiffs moved for a new trial several months after the trial court granted Cooley’s motion for nonsuit. Courts have upheld denials of relief from nonsuit brought even one day after nonsuit where no justification for the delay has been shown. (Onick v. Long (1957) 154 Cal.App.2d 381, 388.) It is not hard to see why: If the rule were otherwise, a plaintiff could routinely devise a new theory after nonsuit was granted (and jurors dismissed) and be allowed to present a new trial before a new jury, forcing the parties to repeat the jury selection process. Allowing parties to craft new post trial theories in this manner would waste judicial resources. Plaintiffs make no attempt to explain why this theory of liability was never mentioned in their opening statement or offer of proof, so we reject their argument as inexcusably tardy.

G. Costs and Attorneys’ Fees
H.
Plaintiffs contend that the trial court’s costs and attorneys’ fees awards should be reversed if the judgment is. Because we affirm the judgment, we affirm the awards as well.

V. DISPOSITION
VI.
The judgment and orders awarding costs and attorneys’ fees are affirmed. Cooley is awarded its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL

J.

We concur:

RAMIREZ

P. J.

SLOUGH

J.

Case Number: 19STCV34819 Hearing Date: March 06, 2020 Dept: 29

Kerley v. Los Angeles County Metropolitan Transportation Authority

The unopposed Motion to Be Relieved as Counsel for Plaintiff is GRANTED. Counsel has complied with the requirements of Cal Rules of Court 3.1362. This ruling is not effective until proof of service of the order on Plaintiff is filed in this action. Until then, counsel continues to be counsel of record. Cal Rules of Court 3.1362(e).

Moving party is ordered to give notice.

Case Number: BC683952 Hearing Date: March 06, 2020 Dept: 29

Murphy v. CLT Providence Little Company of Mary Medical Center Torrance

On July 30, 2019, Defendant noticed the depositions of third party witnesses Mutsuko Murphy, Kevin Murphy and Conor Murphy. Subpoenas were served on the witnesses. The witnesses are Plaintiff’s mother, father and brother. The depositions were noticed for August 21, 2019. While it is unclear whether Plaintiff’s counsel has been retained to represent the witnesses, Plaintiff’s counsel undertook to schedule the depositions on the witnesses’ behalf and made clear to Defendant’s counsel that Plaintiff’s counsel was representing the witnesses at least for the purposes of scheduling.

Through communications with Plaintiff’s counsel, Defendant agreed to continue the depositions to September 26, 2019. Two days before the depositions, Plaintiff’s counsel requested that the depositions be continued to October. The parties eventually agreed to a date in late November. A day before the depositions were set to proceed, Plaintiff’s counsel again unilaterally cancelled the depositions on the grounds that the witnesses were purportedly unavailable. Defendant re-noticed the depositions on a date that Plaintiff’s counsel offered. Two days before the depositions were set to commence, Plaintiff’s counsel confirmed the dates.

On December 10, 2019 – the day before the scheduled deposition — Plaintiff’s counsel informed Defendant that one of the witnesses required a Japanese language interpreter. Defendant was able to secure an interpreter despite the untimely notice that one was required. As a courtesy to Plaintiff’s counsel, Defendant’s counsel agreed to take the depositions at Plaintiff’s counsel’s office.

On the day of the first deposition, Defendant’s counsel appeared at Plaintiff’s counsel’s office with the court reporter and interpreter. Plaintiff’s counsel informed Defendant’s counsel that the witness was at the office but that Plaintiff’s counsel was instructing her not to appear for the deposition. Defendant’s counsel obtained a certificate of non-appearance.

The witnesses have not opposed the motion. The only opposition is filed by Plaintiff. Plaintiff argues that the witnesses should not have to appear until other, unrelated discovery issues are resolved. There is no merit to that argument.

The Court grants the motion to compel. Mutsuko Murphy, Kevin Murphy and Conor Murphy are ordered to appear for their depositions at dates and times of Defendant’s choosing. The Court further concludes that Plaintiff’s counsel has engaged in discovery abuse by failing to proceed with an authorized method of discovery. Cal. Code Civ. Proc. § 2023.010(d), 2023.030. The Court awards sanctions against Plaintiff’s counsel Raymond Ghermezian, APLC, in the following amounts:

Attorneys’ fees for appearance at deposition (including reduced travel time): $450.00

Attorneys’ fees and costs for preparation, reply and argument of this motion: $1,410.00

Cost of the certificate of non-appearance: $350.00

Cost of the Japanese interpreter: $1,713.00

Total sanctions imposed against Raymond Ghermezian: $3,923.00

The sanctions are payable within 30 days.

Moving party is ordered to give notice.

Case Number: 19STCP03171 Hearing Date: March 06, 2020 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ROSEN & ASSOCIATES, P.C.,

Petitioner,

vs.

RICHARD MERUELO, etc.,

Respondent.

CASE NO.: 19STCP03171

[TENTATIVE] ORDER RE: MOTION FOR SANCTIONS; MOTION TO CONFIRM ARBITRATION AWARD AND ENTER JUDGMENT THEREON

Date: March 6, 2020

Time: 8:30 a.m.

Dept. 56

CMC: March 6, 2020

MOVING PARTY: Respondent Richard Meruelo

RESPONDING PARTY: Petitioner Rosen & Associates, P.C.

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

On July 26, 2019, Petitioner filed a petition to confirm an arbitration award[1] pursuant to a final arbitration award entered in favor of Petitioner and against Respondent on June 26, 2019.

Respondent filed a motion for sanctions in the amount of $4,500.00 jointly and severally against the law firm of Rosen & Associates, P.C. and attorney David Bleisten, Esq. pursuant to California Code of Civil Procedure, Section 128.7. Respondent’s motion is based on the grounds that Petitioner’s motion to strike Respondent’s peremptory challenge is improper and harassing because: (1) the motion is procedurally improper because the only available remedy is a writ of mandate; (2) the motion was filed after the predecessor court, Judge Fahey, accepted Respondent’s peremptory challenge rending this motion moot; (3) Petitioner’s counsel is still pursuing the motion despite a written request that Petitioner withdraw the motion; and (4) the motion is clearly frivolous and is lacking any legal basis because Judge Fujie has no authority to reverse the decision of a similarly situated superior court judge.

On February 7, 2020, Petitioner filed a motion to confirm arbitration award and enter judgment pursuant to the arbitration award pursuant to a final arbitration award entered in favor of Petitioner and against Respondent on June 26, 2019. Petitioner’s motion to confirm arbitration award and enter judgment was filed with an accompanying proof of service indicating that Respondent was served with the motion on February 7, 2020 via overnight mail delivery. Petitioner asserts that: (1) further delay should not be indulged; (2) Respondent must overcome the presumption of validity of the award; (3) Respondent’s unlicensed lawyering argument fails; and (4) Respondent’s undisclosed conflict argument fails.

The Court will address the respective motions filed by the parties in this one ruling.

MOTION FOR SANCTIONS

Petitioner opposes Respondent’s motion for sanctions in part on the grounds that: (1) Petitioner’s motion to strike was reasonable; and (2) Respondent failed to properly serve his motion for sanctions. Petitioner requests monetary sanctions in the amount of $2,475.00 for opposing Respondent’s motion for sanctions.

Judicial Notice

The Court, on its own motion, takes judicial notice of the Court’s ruling on Petitioner’s motion to strike Respondent’s peremptory challenge.

Brief Procedural History

The declaration of Respondent’s counsel, Peter D. Gordon (“Gordon”), relevantly declares that: (1) he filed a petition to vacate the arbitration award on behalf of Respondent on September 27, 2019 as case number 19STCP04198 (the “Meruelo Action”) and took steps to immediately serve the petition on the Rosen firm on October 2, 2019 and thereafter filed a proof of service (Gordon Decl. at ¶ 1 and Exhibit 1); (2) upon receipt of the case assignment in the Meruelo Action, he immediately and timely exercised his right to a peremptory challenge and the case was reassigned (Id. at ¶ 2 and Exhibit 2); (3) at the same time, Petitioner filed a notice of related case in both the earlier filed Rosen Action and the Meruelo Action and based on this notice of related case, the Meruelo Action was reassigned to the same department as the Rosen Action, Department 69 (Id. at ¶ 3 and Exhibit 3); (4) upon further research and investigation, he learned that Judge Fahey in the Rosen Action was heavily involved in another unrelated action involving Respondent and he believed the aggressive conduct of attorney Bleistein was the result of his knowledge of this unrelated action and as such the assigned judge would provide him and his client favorable rulings (Id. at ¶ 6); (5) Respondent exercised his peremptory challenge in the Rosen Action and on October 17, 2019 despite not having formally appeared in that action (Id. at ¶ 7 and Exhibit 6); (6) on October 17, 2019, Petitioner filed an objection to the challenge (Id. at ¶ 8 and Exhibit 7); (7) on October 18, 2019, the Honorable William Fahey reviewed the challenge, accepted the challenge, and based on this order both actions were reassigned to Department 56 (Id. at ¶ 9 and Exhibit 8); and (8) without any legal basis, Petitioner then filed a motion entitled “Motion to Strike Respondent’s Peremptory Challenge” seeking to have Respondent’s peremptory challenge in the Rosen Action stricken, but without explaining where the cases would be assigned to now that Judge Fahey had disqualified himself. (Id. at ¶ 10.)

Gordon further declares that: (1) Petitioner’s counsel refused to take the motion off calendar to which counsel did not respond (Id. at ¶ 11 and Exhibit 9); and (2) the motion cites no legal basis for the motion and contains no precedent on how such motion shall be maintained after the Court has already affirmatively ruled on the underlying challenge and the case has been transferred to another court. (Id. at ¶ 12.)

On December 27, 2019, the Court denied Petitioner’s motion to strike Respondent’s peremptory challenge. The Court found that Petitioner: (1) was seeking review of the Court’s granting of the peremptory challenge that was filed by Respondent in the Rosen Action; (2) was accepted by the Court; and (3) wanted this Court to reverse acceptance of such peremptory challenge. The Court clearly stated in its ruling that “the language from Hull and Section 170.3 is clear in that the procedurally correct method to challenge the Court’s peremptory challenge acceptance is via a writ of mandate. Thus, Petitioner’s motion is procedurally improper as Petitioner did not seek a writ of mandate within 10 days of the Court’s acceptance of Respondent’s peremptory challenge.”

Legal Standard

California Code of Civil Procedure, Section 128.7(b) states that “[b]y presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances” that: (1) it is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. California Code of Civil Procedure, Section 128.7(c) says that “[i]f, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may . . . impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.”

Issue No. 1: Failure to Properly Serve Motion for Sanctions

California Code of Civil Procedure, Section 128.7(c)(1) provides that a motion for sanctions “shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” Notice of a motion for sanctions must be in accordance with Section 1010 of the California Code of Civil Procedure. (Code Civ. Proc. § 128.7(c)(1).) “Notices must be in writing, and the notice of a motion . . . must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.” (Code Civ. Proc. § 1010.) “Notices and other papers may be served upon the party or attorney in the manner prescribed in this chapter.” (Id.)

The hearing on the motion to strike Respondent’s peremptory challenge was scheduled for hearing on December 26, 2019. The proof of service in connection with the motion for sanctions indicates that it was served on Petitioner’s counsel on December 2, 2019 via personal service and messenger. The motion for sanctions was not filed with the Court until January 9, 2020.

In connection with its opposition, Petitioner presents the declarations of: (1) David Bleistein; (2) Robert C. Rosen; (3) John B. Wallace; (4) Sharan Ramchandani; (5) Lora Foley; (6) Marcia Hendrick; and (7) Natalie Rosen, who each state the same things. Each declarant states that: (1) they never saw any documents “affixed” or attached in any way to Rosen’s front office door relating to the motion at any time; (2) they never say Respondent’s motion in the mail was a result of any alleged mailing; (3) they were never personally served with the motion for sanctions by anyone; and (4) they first became aware of the motion after it was filed on January 9, 2020.

Respondent’s counsel, Andrew T. Schoettle, declares in connection with Respondent’s reply brief that: (1) on December 2, 2019, he prepared 3 envelopes respectively addressed to—Rosen & Associates, Robert Rosen, Esq. and David Bleistein Esq., each containing Respondent’s motion for sanctions and related papers (Schoettle Decl. at ¶ 1); (2) he hand-delivered those 3 envelopes to a messenger that same day who was instructed to deliver the envelopes to the law firm of Rosen & Associates, 515 S. Figueroa Street, Ste. 1060, Los Angeles, CA 90071 (Id. at ¶ 2); (3) immediately thereafter, he received confirmation of the service via an invoice dated December 2, 2019, which states the envelopes were accepted by Natalie Rosen at 12:45 p.m. (Id. at ¶ 3 and Exhibit 1.)

“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.) Here, Respondent filed a proof of service in connection with a motion for sanctions, as well as a confirmation that the motion for sanctions was delivered to Natalie Rosen despite her declaration indicating the contrary. The Court finds that Petitioner has not overcome the presumption that the motion for sanctions was properly served.

Thus, the Court rejects Petitioner’s argument that service was not properly effectuated.

Issue No. 2: Frivolousness of the Motion to Strike Peremptory Challenge

The Court incorporates its December 27, 2019 ruling with respect to the motion to strike Respondent’s peremptory challenge, and applies it to the discussion of the frivolous nature of Respondent’s motion. As indicated by the Court’s order, Petitioner failed to follow proper procedure under Hull and California Code of Civil Procedure, Section 170.3, in that a writ of mandate was the only manner to challenge review of the disqualification of Judge Fahey. (People v. Hull (1991) 1 Cal.4th 266.) Petitioner’s motion to strike was clearly improper pursuant to this Court’s order in connection with such motion. Petitioner’s claims in its motion to strike were not warranted by existing law and in fact the entire motion was procedurally inaccurate. Moreover, Petitioner’s opposition to the instant motion argues that the motion to strike was acceptable and in good faith because “it showed clear procedural violations by [Respondent].” (Opposition at 3:20-24.) The fact that Petitioner’s motion showed procedural violations is not indicative of whether the motion was presented to harass, for an improper purpose, or lacked a meritorious basis in the law. Moreover, none of the declarations in support of Petitioner’s opposition states that the motion to strike Respondent’s peremptory challenge: (1) was presented for a proper purpose; (2) was not intended to harass Respondent; or (3) was warranted by its legal contentions.

Thus, the Court finds that Respondent’s request for sanctions pursuant to California Code of Civil Procedure, Section 128.7(c)(1) is appropriate.

Issue No. 3: Sanctions

If monetary sanctions are warranted “the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.” (Code Civ. Proc. § 128.7(c)(1).)

Gordon declares that: (1) he undertook representing Respondent at the rate of $475.00 per hour which is reasonable given his more than 30 years of litigation experience (Gordon Decl. at ¶ 14); (2) since Petitioner’s counsel has refused to take the motion off-calendar, the Respondent has been forced to incur 15 hours of attorney time in dealing with the motion, necessary research and drafting an opposition brief (Id. at ¶ 13); (3) his associate, Andrew Schoettle, bills at the rate of $300.00 per hour (Id. at ¶ 15); (4) he has incurred 8 hours of his time and his associate has incurred 7 hours of legal time (Id. at ¶ 16); (5) Respondent is requesting sanctions in the form of attorney fees and costs based on the fees and costs incurred and anticipated to be incurred to respond to Petitioner’s frivolous motion (Id. at ¶ 17); and (6) due to Plaintiff’s counsel’s refusal to take their frivolous motion off calendar, monetary sanctions of not less than $4,500 should be awarded jointly and severally against counsel David Bleistien and Rosen & Associates, P.C. (Id. at ¶ 18.)

The Court exercises its discretion pursuant to California Code of Civil Procedure, Section 128.7(c)(1) and awards Respondent reasonable monetary sanctions in the amount of $1,425.00 which represents three hours of work at Gordon’s rate. Monetary sanctions are to be paid to Respondent within 20 days of the date of this order by Rosen & Associates, P.C. and attorney David Bleistein, Esq.

The Court GRANTS Respondent’s motion for sanctions.

Respondent is ordered to give notice of this ruling with respect to the motion for sanctions.

MOTION TO CONFIRM ARBITRATION AWARD AND ENTER JUDGMENT

Petitioner asserts that the AAA arbitration award should be confirmed in a judgment, and that Petitioner’s petition to confirm and Respondent’s petition to vacate should be denied.

Procedural Issues

California Code of Civil Procedure, Section 1290.4(a) says that “[a] copy of the petition and written notice of the time and place of the hearing thereof and any papers upon which the petition is based shall be served in the manner provided in the arbitration agreement for the service of such petition and notice.” “If the arbitration agreement does not provide the manner in which such service shall be made and the person upon whom service is to be made has not previously appeared in the proceeding and has not previously been served” then “[s]ervice within this State shall be made in the manner provided by law for the service of summons in this action.” (Code Civ. Proc. § 1290.4(b)(1).) “Service outside this State shall be made by mailing a copy of the petition and notice and other papers by registered or certified mail. Personal service is the equivalent of such service by mail.” (Code Civ. Proc. § 1290.4(b)(2).) “If the arbitration agreement does not provide the manner in which such service shall be made and the person on whom service is to be made has previously appeared in the proceeding or has previously been served in accordance with subdivision (b) of this section, service shall be made in the manner provided in Chapter 5 (commencing with Section 1010) of Title 14 of Part 2 of this code.” (Code Civ. Proc. § 1290.4(c).)

Lack of Service of the Petition

Respondent asserts that the petition to confirm arbitration award (the “Petition”) was filed on July 26, 2019, and since that time, Petitioner has not served the Petition on either Respondent or his counsel, and no proof of service has been filed. The proofs of service filed on February 26, 2020 which are titled “Notice of Filing Proofs of Service of Rosen’s Petition to Confirm on Respondent Meruelo” only indicate that a summons was served and do not indicate that the Petition was served on Respondent or his counsel. Both proofs of service indicate that the party served was “Monica Front Desk Clerk @ Seacoast Towers.” Thus, that is neither Respondent nor his counsel, and such service was made in Miami, Florida. In connection with its moving papers or reply, Respondent does not indicate in a declaration by what means the arbitration agreement giving rise to such arbitration between the parties indicates the method of service of the Petition. A review of the Petition and the agreement therein giving rise to the right to arbitrate does not indicate a service method for such Petition. (Petition at Exhibit 1.) Even considering that Respondent has appeared in this action, based on the February 26, 2020 proofs of service, Respondent has still not been served with the Petition.

Moreover, the proofs of service contain a sworn statement by Luis E. Palomo Mendret who states that he personally served Respondent with the summons in Puerto Rico on September 14, 2019; however, the proofs of service indicate that service took place in Miami, Florida and a person named “Monica” was served. Thus, based on this discrepancy, the Court cannot find that “service was proper” [Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163] and finds that Respondent has not been served with the Petition as required by California Code of Civil Procedure, Section 1290.4. Service of the Petition is a mandatory requirement under Section 1290.4.

Peter Gordon’s Declaration

Respondent’s counsel Peter Gordon filed a declaration: (1) objecting to the defective proofs of service to confirm the arbitration award; and (2) indicating that the March 6, 2020 hearing is premature and requires continuance to allow Respondent’s pending motion to set aside award to be heard on June 5, 2020.

Gordon declares that: (1) the motion to confirm set for hearing on March 6, 2020 should be continued to the current scheduled hearing on Respondent’s motion to vacate the arbitration award scheduled for June 5, 2020[2] to allow Petitioner time to properly serve its Petition and Respondent proper time to file responses. (Gordon Decl. at ¶ 13.) On February 25, 2020, Petitioner filed a response to Respondent’s petition to vacate arbitration award. A review of the Court’s future hearing dates does not indicate a set hearing date for June 5, 2020 with respect to Respondent’s petition to vacate. The Court, however, finds it logistically inefficient to rule on Petitioner’s motion while Respondent’s petition remains outstanding due to the risk of inconsistent rulings.

The Court therefore CONTINUES the hearing on Petitioner’s motion to confirm arbitration award to June 5, 2020 at 8:30 a.m. in this department. The Court also sets a hearing date of June 5, 2020 at 8:30 a.m. in this department with respect to Respondent’s petition to vacate arbitration award so that both matters may be heard at the same time.

Petitioner is ordered to give notice of this ruling with respect to the motion to confirm arbitration award.

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 6th day of March 2020

Hon. Holly J. Fujie

Judge of the Superior Court

[1] A review of the Court file indicates that Respondent was never served with Petitioner’s petition to confirm arbitration award. As explained below, the proofs of service filed on February 26, 2020 do not cure this defect.

[2] The Court’s electronic filing system with respect to this action does not show a motion to vacate the arbitration award being filed with respect to this case; however, Petitioner filed a response to such petition to vacate on February 25, 2020. Respondent is ordered to file its petition to vacate arbitration award properly with the Court.

Case Number: 18STCV04807 Hearing Date: March 06, 2020 Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

JOSH A. GOSLIN, et al.,

Plaintiffs,

Case No.:

18STCV04807

vs.

[Tentative] RULING

LOS ANGELES COUNTY SHERIFF’S DEPARTMENT, et al.,

Defendants.

Hearing Date: March 6, 2020

Moving Parties: Defendant County of Los Angeles

Responding Party: Plaintiffs John A. Goslin, Stacey Goslin, and Danielle Bain

(1) Motion to Compel Further Responses to Form Interrogatories, Set One

(2) Motion to Compel Further Responses to Form Interrogatories, Set One

(3) Motion to Compel Further Responses to Form Interrogatories, Set One

The court considered the moving, opposition, and reply papers.

RULING

The motions are GRANTED.

Plaintiff Danielle Bani is ordered to serve on defendant further supplemental response to defendant’s Form Interrogatory No. 8.7, within 15 days.

Plaintiffs are ordered to serve on defendant further supplemental responses to defendant’s Form Interrogatory No. 8.8, within 15 days.

Each plaintiff and plaintiff’s attorney of record are ordered to pay sanctions to defendant County of Los Angeles in the amount of $495 within 30 days.

BACKGROUND

On November 13, 2018, plaintiffs John A. Goslin, Stacey Goslin, and Danielle Bain filed a complaint against LA County Sheriff’s Department and Jaime Alvarez Ruiz for negligence. Plaintiffs allege that on October 10, 2017, John Goslin was the driver of a 2015 Toyota Camry and the other plaintiffs were the passengers when they were stopped on Arbor Vitae Street at the intersection of Airport Blvd. At the same time, defendant Ruiz was driving a 1997 Chevrolet Tahoe in a westerly direction on Arbor Vitae St. At the same time, defendant LA County Sheriff’s Dept. was engaged in a high-speed pursuit of defendant Ruiz. Ruiz entered the intersection of Airport Blvd., under a red light, while being pursued. Ruize’s vehicle collided with another vehicle travelling in a southerly direction on Airport Blvd. The impact caused Ruiz’s vehicle to spin out of control and collide with plaintiffs’ vehicle. The force of the impact caused plaintiffs’ vehicle to collide with another vehicle.

LEGAL AUTHORITY

45-Day Rule: This motion must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax; see CCP § 1013); otherwise, the demanding party waives the right to compel any further response to the CCP §2031.010 demand. CCP §§2031.310(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal. App. 4th 736, 745. The 45-day time limit is mandatory and jurisdictional. Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410. The parties, however, can also agree in writing on a specific later date by which to file the motion to compel. CCP §2031.310(c).

Meet-and-Confer Requirement: The motion to compel further responses must be accompanied by a declaration showing “a reasonable and good faith attempt” to resolve the issues outside of court (so-called “meet and confer”). CCP §§2016.040, 2031.310(b)(2).

Separate Statement: Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement. This includes a motion to compel further responses to demand for inspection of documents or tangible things. CRC Rule 3.1020(a)(3).

Interrogatories

CCP §2030.300 states: “(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. . . . (3) An objection to an interrogatory is without merit or too general. (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories. . . .”

DISCUSSION

Defendant County of Los Angeles requests that the court order plaintiffs Josh Goslin, Stacy Goslin, and Danielle Bain to provide verifications to the County’s Form Interrogatories, Set One and to provide supplemental responses to Form Interrogatory No. 8.8 (all three plaintiffs) and No. 8.7 (as to Danielle)

Defendant explains that on May 3, 2019, it propounded discovery requests on plaintiffs. Plaintiffs requested a two-week extension, which was granted, and plaintiffs served objections and no substantive responses. Defense counsel met and conferred and plaintiffs served responses on August 9, 2019. Defendant asserts that they were not verified and were incomplete and evasive and asserted unmeritorious objections. Defense counsel met and conferred. Plaintiffs served supplemental responses on October 25, 2019 but were not verified. On November 22, 2019, defense counsel met and conferred and requested further supplemental responses by December 2, 2019. On December 10, 2019, defense counsel again attempted to meet and confer. Plaintiff’s counsel informed defense counsel that plaintiffs would provide verifications by December 20, 2019, which they did not do.

In opposition, plaintiffs contend that they serve verifications on December 26, 2019. The motion is MOOT as to compelling verifications.

Defendant seeks further supplemental responses to Nos. 8.7 and 8.8.

Form Interrogatory No. 8.7 (as to Danielle) requests: “State the total income you have lost to date as a result of the Incident and how the amount was calculated.” She asserted several objections, of which none have merit. In the statement of damages, she claims $200,000 in loss earnings. Is this the amount she still claims and how was this amount calculated?

Form Interrogatory No. 8.8 (as to all three plaintiffs) requests: “Will you lose income in the future as result of the incident? If so, state (a) the facts upon which you base this contention; (b) an estimate of the amount: (c) an estimate of how long you will be unable to work; and (d) how the claim for future income is calculated.”

Defendant asserts that plaintiffs are claiming over $20 million in damages, including $5.5 million in loss of future earning capacity. Plaintiffs responded “yes” and that they have sustained physical injuries that have caused limitations. As to (b)-(d), they responded “Plaintiff is uncertain at this time, as this would require an expert opinion.”

The court finds that these responses are deficient. In the statement of damages, plaintiffs are claiming $5.5 million in loss of future earning capacity. How was the $5.5 million calculated? Are plaintiffs still claiming that amount? Plaintiffs have not shown why they cannot provide estimates.

The motions are GRANTED.

Sanctions

Under CCP § 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Under CCP § 2023.010, an example of the misuse of the discovery process is “(d) Failing to respond or to submit to an authorized method of discovery.”

Sanctions are mandatory in connection with motions to compel further responses against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel 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.” CCP §2031.310(h).

Cal. Rules of Court, Rule 3.1348(a) states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Defendant requests monetary sanctions against each plaintiff and each plaintiff’s attorneys of record, Parris Law Firm in the amount of $1,325.50. Defense counsel contends that he incurred 24.1 hours at $165/hr. for all three motions, for a total of $3,976.50. The court finds that sanctions are warranted. Verifications were not provided until after the motions were filed. The court finds that $495 ($165/hr. x 3 hrs.) is a reasonable amount to be imposed against each plaintiff and plaintiff’s attorneys of record.

Defendant is ordered to give notice of this ruling.

Filed 3/6/20 Okparaocha v. Sovereign Packaging Inc. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

IWEKA OKPARAOCHA,

Plaintiff and Appellant,

v.

SOVEREIGN PACKAGING INC. et al.,

Defendants and Respondents.

B289004

(Los Angeles County

Super. Ct. No. BC592353)

APPEAL from a judgment of the Superior Court of Los Angeles County. Peter J. Mirich, Judge. Affirmed.

Iweka Okparaocha, in pro. per., for Plaintiff and Appellant.

Law Offices of Cleidin Z. Atanous, Cleidin Z. Atanous; Raffalow, Rhoads & Bretoi and Perry Matthew Forrester for Defendants and Respondents.

_________________________________

Iweka Okparaocha appeals from a judgment in his favor in the amount of $151,550 following a jury trial. We affirm.

Appellant has failed to support his contentions on appeal with coherent arguments supported by analysis and authority. To the extent the court can discern Okparaocha’s contentions, we reject them for the reasons discussed below.

BACKGROUND

Okparaocha sued respondent Sovereign Packing Inc. and one of its employees, Fernando Camarena (collectively, Sovereign), following an automobile accident. Okparaocha was injured when the car he was driving collided with a truck driven by Camarena, who was backing out of a driveway. Camarena was making a delivery for his employer at the time.

Sovereign conceded liability. The court conducted a five-day jury trial on causation and damages, which included testimony by Okparaocha and Camarena as well as by five medical experts. The jury returned a special verdict awarding Okparaocha total damages in the amount of $151,550, consisting of $31,230 for past economic loss (medical expenses); $40,320 for past economic loss (loss of income); $20,000 for future medical expenses; $50,000 for past noneconomic loss; and $10,000 for future noneconomic loss. The trial court entered judgment in favor of Okparaocha in that amount.

DISCUSSION

1. Okparaocha Has Not Met His Obligations as Appellant

On appeal, this court presumes that a trial court’s judgment is correct unless it is shown otherwise. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is the appellant’s burden to show both that the trial court erred and that the error affected the outcome of the trial. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281–282 (Shaw).)

To do so, an appellant must “present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) A point that is asserted without legal authority and without factual analysis that includes citations to the record may be deemed forfeited. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655–656.) Each point must be presented separately under an appropriate heading, showing the nature of the issue and the point to be made. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Otherwise, the points may be forfeited. (Keyes, at p. 656.)

Okparaocha’s decision to represent himself does not exempt him from the requirements of appellate practice. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247.) A party who represents himself or herself “ ‘is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.’ ” (Id. at p. 1247.)

Okparaocha’s brief does not have separately identified arguments supported by citations to legal authority and the record. It consists of an undifferentiated collection of assertions and descriptions of the trial and court rulings that are not linked to particular arguments. It does not provide any coherent argument that this court may analyze.

The court has nevertheless attempted to discern Okparaocha’s contentions from his brief and discusses those contentions below. To the extent that Okparaocha intended to assert any other arguments, those arguments have been forfeited.

2. Okparaocha Forfeited His Argument that the Damages Were Insufficient by Failing to File a Motion for a New Trial

Okparaocha contends that the damages the jury awarded were inadequate based upon the evidence of his injuries and the amount of damages he demanded.

A plaintiff who claims that the damages a jury awarded are too low based upon the evidence may not make such an argument on appeal unless he or she first asserts the argument in a timely motion for a new trial in the trial court. (Code Civ. Proc., § 657, subd. (5); Schroeder v. Auto Driveway Co. (1974) 11 Cal.3d 908, 918, fn. 6; County of Los Angeles v. Southern Cal. Edison Co. (2003) 112 Cal.App.4th 1108, 1121.) Okparaocha did not file a motion for a new trial. He therefore may not make the argument on appeal.

3. Okparaocha Has Not Shown Error or Prejudice in the Trial Court’s Decision to Exclude Photographs from Evidence

Okparaocha claims that the trial court wrongly precluded him from admitting photographs showing his physical condition prior to the accident. The record shows that, when Okparaocha’s counsel sought to introduce pre-accident photographs, Sovereign’s counsel objected on the ground that the photographs had not been produced during discovery and had not been included in the trial exhibit book. After further argument and after the court reviewed the proffered photographs, the court ruled that one of the photographs could be admitted, and permitted Okparaocha to choose which.

The court stated that, in making its ruling, it had exercised its discretion under Evidence Code section 352. The court “weigh[ed] the fact that these photos were not in the exhibit book, not divulged to counsel.”

Okparaocha has not identified any error in this ruling. We review a trial court’s decision to exclude evidence under Evidence Code section 352 for abuse of discretion. (People v. Hamilton (2009) 45 Cal.4th 863, 930.) The trial court could properly consider the fact that at least most of the photographs had not been disclosed before trial. The Superior Court of Los Angeles, Local Rules, rule 3.52 requires parties to exchange and pre-number exhibits before trial, except for exhibits anticipated in good faith to be used for impeachment. In addition, more than one photograph showing Okparaocha’s appearance before the accident would have been cumulative. The trial court permitted one such photograph. The court had discretion to exclude such cumulative evidence on the ground that it would needlessly consume time. The court could also consider the possibility of unfair prejudice to Sovereign, who saw the photographs for the first time during Okparaocha’s direct examination.

In addition, Okparaocha has failed to show prejudice from the exclusion of the photographs. To obtain reversal, an appellant who complains about a decision to exclude evidence must show that the court’s decision affected the outcome of the trial. (Shaw, supra, 170 Cal.App.4th at pp. 281–282; Evid. Code, §§ 353, 354.) Okparaocha was permitted to testify about his physical condition before and after the accident and to illustrate his pre-accident condition with one photograph. The jury also heard extensive expert testimony concerning Okparaocha’s post-accident physical problems and whether the accident caused them. The record suggests no basis to conclude that exclusion of the photographs affected the jury’s verdict, and Okparaocha does not provide any.

4. There Was No Error in the Amount of Damages Included in the Judgment

Okparaocha apparently claims that the jury actually awarded damages for past economic loss in the amount of $3,102,230 rather than $31,230. The argument is meritless.

Okparaocha cites the portion of the postverdict proceedings in which the jury was polled. The court clerk read the special verdict form that the jury had completed, and, in an obvious error, the court reporter recorded that the clerk read the jury’s answer for “past economic loss medical expenses” as $3,102,230. The verdict form itself states the jury’s damage award in that category was $31,230. The judge’s question immediately following the clerk’s reading confirms that this was the correct amount. The judge asked, “[I]s there anyone who did not vote that are [sic] amount. $31,230? That would be 12 yes.” The amount of damages for past economic loss written in the special verdict form clearly appears as $31,230. The judgment is correct in including that amount in the total damage award.

5. The Trial Court Did Not Preclude Okparaocha’s Wife From Testifying

Okparaocha claims that his wife was denied the opportunity to testify. The record shows otherwise.

Sovereign made a motion to exclude testimony from Okparaocha’s wife (Vivian) on the ground that, although she was listed on the witness list, she was not identified in response to an interrogatory asking for the identity of witnesses who would testify about Okparaocha’s claim for general damages. The trial court denied the motion, ruling that Vivian could testify, but that Sovereign could conduct a 30-minute deposition prior to her testimony, at Okparaocha’s expense. The court permitted the deposition to take place in the courtroom immediately.

Vivian did not testify. The record does not explain why not, although the court did later report to the jury after an unrecorded conference in chambers that “[t]here are witnesses, who I mentioned before, who are now not going to be called.” In any event, Okparaocha does not identify any record support for his claim that the court excluded Vivian’s testimony. We therefore reject the argument.

DISPOSITION

The judgment is affirmed. Sovereign is entitled to its costs on appeal.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.

Filed 3/6/20 Reghabi v. J.P. Morgan Chase Bank 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

ROSS KHOSRO REGHABI,

Plaintiff and Appellant,

v.

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

Defendants and Respondents.

B291574

(Los Angeles County

Super. Ct. No. LC103560)

APPEAL from a judgment of the Superior Court of Los Angeles County, Rupert A. Byrdsong, Judge. Affirmed.

Ross Khosro Reghabi, in pro. per.; and Estivi Ruiz for Plaintiff and Appellant.

Dunbar & Associates, Kevin T. Dunbar, and Matt D. Derossi for Defendants and Respondents.

____________________

The plaintiff is a lawyer who once represented a borrower in default. The borrower wanted to renegotiate a home loan with his lender. The lender contacted the borrower directly, saying that, when the lawyer had been out of contact for more than two months, it was the lender’s policy to bypass the lawyer and to speak directly with the borrower. The lender explained it had left many messages with the lawyer, but had been permitted to speak only with the lawyer’s assistant, who was unable to make decisions on the account.

The lawyer eventually lost that client, who went on to renegotiate without the lawyer.

The lawyer then sued the lender for defamation and interference with contractual relations, alleging that, by bypassing and allegedly defaming the lawyer, the lender cost the lawyer his client.

The trial court sustained the lender’s demurrer to the lawyer’s first amended complaint. The court gave the lawyer 15 days to amend. The lawyer did not amend within those 15 days. When the lawyer finally filed a tardy second amended complaint, the lender demurred a third time. The trial court sustained this demurrer without leave to amend on a number of grounds, beginning with the lawyer’s failure to comply with the court’s filing deadline. We affirm because the lawyer concedes he violated the court’s order, which alone justified the court’s ruling under these circumstances.

I

We recount the factual setting.

A

The plaintiff is lawyer Ross Khosro Reghabi. Reghabi sued the lender and its representative, Thomas Latham. Latham negotiated on behalf of lender J.P. Morgan Chase Bank, which we refer to as “Chase.” For convenience, unless context is to the contrary, we refer to defendants Latham and Chase collectively as “Latham.”

The borrower (and Reghabi’s former client) was Alireza Torchizy, who owed Chase $448,314.54 on a note secured by Torchizy’s home.

B

Ordinarily the record on an appeal from a demurrer flows mainly or exclusively from the allegations in the operative complaint.

An unusual request for judicial notice takes this case out of the ordinary.

The request for judicial notice was for notice of nine transcripts of telephone conversations about loan negotiations.

Latham moved for the trial court to take judicial notice of these transcribed calls. Reghabi did not file an opposition to Latham’s request for judicial notice, and the court granted Latham’s request. Reghabi has not appealed this ruling about judicial notice, and indeed his opening brief to this court quotes these transcribed telephone calls.

Under these circumstances, the nine transcribed telephone conversations are valid parts of the appellate record.

These transcripts occupy 67 pages. The speakers on the telephone variously are Latham, Torchizy, Reghabi, and Steven Ruiz, a nonlawyer assistant to lawyer Reghabi.

We excerpt the nine transcripts.

1

The first transcribed call was on Wednesday, October 8, 2014. Latham called Torchizy on a recorded line.

The call began with Latham telling Torchizy the call was an attempt to collect a debt. Torchizy stated “my lawyer is in contact with you.” Latham asked for the lawyer’s name, and Torchizy said his name was Ross Reghabi. Latham asked “when is your attorney going to call me?” Torchizy said “most probably Monday.” Latham said “I look forward to talking to your attorney on Monday.”

2

The second transcribed call was on Friday, October 31, 2014. Latham called Reghabi’s office, asking for him. The call was transferred to his assistant, Steven Ruiz:

Ruiz: Hi Tom. This is Steven.

Latham: Yes, Steven. It’s funny that I’m speaking to you more than I’ve spoken to [Reghabi].

Ruiz: I know. I know. Tell me about it.

Later in the call, Latham said, “Well, if [Reghabi] had called me, we wouldn’t be having this conversation. . . . I think you can agree that I’ve made more than enough attempts to the — Mr. Reghabi and have not gotten one call back.

Ruiz: Yeah. I would agree with that.

Latham: I mean, I’ve done all I can do. I mean, what — tell me what I can do to get [Reghabi] to call me back and discuss the clients account. You tell me what I can do. . . . He knows — I’m sure he knows that I’m trying to reach him. You’ve — you’ve made an attempt to leave a message with him that I’ve called; right?

Ruiz: Yes.

Latham: Okay. I mean, you work with him. Do I need to do more than that? You’re closer to him than I am. . . . I mean, I can’t sit on this account. Again it’s been in default since August of 2011. The bank wants closure. . . . As far as we’re concerned, [Torchizy] owes the balance in full which is $448,314.54. . . .

Ruiz: All right. I’ve got nothing, you know, I’m — I’m as in the dark as you are.

Latham: Well, are you handling this or are you just speaking on his behalf or how exactly are you involved in this? Are you in a position where you can negotiate?

Ruiz: No, not at all.

Latham: Okay. Well, then — then, I mean, I’m not — I don’t mean to disrespect you because I do appreciate the fact you’re leaving messages. I mean, at least I hope that you are, but, I mean, I’m really not sure what your part in this is besides just leaving the messages if you’re in no position to negotiate or help me resolve this account this — this situation.

Ruiz: I wish I was because then it would be easier, but —

Latham: Oh, I wish you were too and, I mean, that because, I mean, I haven’t had any luck reaching Mr. Reghabi. I do realize that he’s busy, I understand that, but my time is just as valuable to me as it is to him and I’m — I’m making more than enough attempts to try to reach him. So what do I have to do to get in touch with the attorney? . . . It’s a very simple situation, Steven. The attorney is going to contact me or he isn’t. If he’s not, then there’s — we can’t contact the customer because he’s retained Mr. Reghabi so we don’t have any other choice. If the attorney is not going to return my calls, then I need to escalate this file as a nonpay. . . .

Ruiz: All right. Like I said, I’ll — I’ve made this impression on him before and I’ll do it again.

Latham: So you have actually spoken to him? Well, then why do you think he hasn’t returned my calls?

Ruiz: I don’t know. It doesn’t make sense. I don’t know.

Latham: Is that a fair question?

Ruiz: That is a fair question and my response is my honest response.

Latham: Okay. Fair enough. All right. . . . Steven, this is not personal towards you, it’s just that . . . I get a little frustrated because I think you would agree that I’ve made every attempt to reach Mr. Reghabi and I’ve gotten nothing in return and this account — I mean, a half million dollars — almost a half million dollars so the bank is taking this very seriously.

3

The third call was on Wednesday, November 5, 2014.

Latham called Reghabi. The two negotiated over Torchizy’s debt. On Torchizy’s behalf, Reghabi offered $60,000.00 to settle the $448,314.54 debt. Latham rejected this offer and said he would document the case as a refusal to pay.

4

The fourth call was on Monday, November 17, 2014.

Latham called Reghabi and spoke to Ruiz. Latham asked if Ruiz received Latham’s fax. Ruiz said he had. Latham asked Reghabi if Torchizy would be willing to offer to make a lump sum settlement of $73,972.18, which “would be the figure that I could submit; now, whether they approve it or not, it’s a different situation . . . .” Ruiz said “I’m going to say go ahead and try to resubmit that.” Latham announced this offer would be good only through Wednesday, November 26, 2014, but “I’ll resubmit it and see what happens.”

5

The fifth call was on Monday, December 22, 2014.

Latham called and asked for Reghabi. The call was transferred to Ruiz. Latham explained to Ruiz that Torchizy’s office called his office asking for Latham’s fax number. Latham told Ruiz that Latham could not speak to Torchizy because Reghabi represented Torchizy, but Latham asked Ruiz what Torchizy was trying to fax to Latham. Ruiz explained Torchizy was proposing a total payment of $63,000 paid over the next six months in six equal payments. Latham rejected this proposal and said “Mr. Ruiz, I’m not going to argue with you.” The call ended with each man telling the other to “[h]ave a great day.”

6

The sixth call was more than two months later, on Friday, February 27, 2015. Latham called Torchizy.

Latham: We’ve been trying to work with you for some time now. . . . We offered you a very generous settlement, you countered in payments which is not an option. There’s equity in the property so the bank is ready to move forward against the property. . . .

Torchizy: Now, look, I should see how I can pay. I don’t want to promise something that I cannot do it.

Latham: The bank wants closure on this. Mr. Torchizy, and this has been going on for quite some time. . . .

Torchizy: [Y]ou are bypassing my lawyer and talking to me, you know, I’m not a baby. I am — I have a big business here in California.

Latham: No, I respect that.

Torchizy: You bypassed — you bypassed my lawyer and came to me. . . .

Latham: Are you talking about right now?

Torchizy: Excuse me?

Latham: Are you talking about right now or before?

Torchizy: No, right now even if I have that lawyer on the case.

Latham: No, we don’t have him on the account anymore because as far as Chase — and I want you to understand this — as far as Chase policy is concerned, this is Chase policy. . . . If we do not have contact with the attorney in over a two month process, we can get rid of that attorney . . . and we can contact the customer. We have not — I’ve left many messages with Mr. — with the attorney and all we’ve spoke to was his assistant, [Mr.] Ruiz who was unable to make any decisions on the account so that being the case, we figure well, what’s the point. We’ll just talk to you.

Torchizy: You know, you know, I wanted to resolve this issue. Okay? And I am ready to resolve this —

Latham: What’s your offer? We can’t do payments and — we can’t do a settlement in payments. . . . It would have to be a one time payment.

Torchizy: Okay. Send me a letter and give me a lump sum that I can pay it, I would do that.

Latham: Well, we did that already and you — you — you changed it around so you tell me what you can pay and we’ll go from there. . . .

Torchizy: See, either I go month-to-month or I cannot pay more than the 45, 46 if I wanted to pay lump sum, you know, I cannot.

Latham: Okay. Well, then those aren’t options so I’m just going to . . . Those aren’t options. . . . The bank is not going to take a $45,000 settlement from you. . . . You have to understand, your account is in default. You’ve been in default since August of 2011 almost four years. . . .

Torchizy: Now — now, I cannot — I say cannot.

Latham: Okay.

Torchizy: Few days I call you back.

Latham: Okay. Fair enough. I’ll give you that so I need to hear back from you by Friday.

Torchizy: Okay.

Latham: That’s a whole week.

Torchizy: Okay. Thank you.

Latham: Fair enough?

Torchizy: Yes.

7

The seventh call was on Monday, March 9, 2015. Torchizy called Latham, who greeted Torchizy and said he recalled their last telephone conversation, which Latham said “didn’t go very well.”

Torchizy: I — yeah. I wanted to pay my payments, you know, I don’t want it to be late or in bad position because my credit is not bad — it’s not good. . . .

Latham: So the only way to resolve it is — is — is to possibly through a settlement or, I mean, I’ve already put a red flag on your account because of our previous conversation so . . . The only thing they’re going to do is the last offer was 73,000 and, you know, I’m going to have to fight to get that approved for you because that was on offer that was extended to you in December and you — you didn’t take advantage of it so you reduced it and you wanted it in six payments and that’s not going to happen. That’s not what a settlement is. You owe the bank almost $450,000, they want that in a lump sum.

Torchizy: I remember the offer was 16 something —

Latham: No, it was 73 because I have it.

Torchizy: Look, how much — how long you can extend my time . . .

Latham: Through the 26th of this month, that’s the next to the last day of the month. That would be it because the bank is ready to move forward. You have to understand. You were extended this in December and it didn’t happen for whatever reason. If I resubmit this, they’re going to want the money this month. . . . What I’m trying to explain to you, I know you’re very intelligent person because you are a doctor. I get that. Okay. This is nothing like what you do. The fact of the matter is, you’ve allowed your house to go into default, there’s equity in the property where the bank can get a full payoff, the 73,000 was offered to you back in December; for whatever reason, you didn’t take advantage of it. . . . What I’m telling you is offers don’t go down, they go up and what I’m going to submit is the 73,000, but if you’re asking for the bank to give you more time until April, it will go up.

Torchizy: Yeah. You know, you do your — please do your best to extend it April 16th; if not, please send me the papers for this month.

Latham: Okay. . . . If you want more time, I’m telling you it’s going to be more than 73. That’s all I’m trying to explain to you.

Torchizy: Okay. I understand.

Latham: Time is money in this business. . . .

Torchizy: I — I tell you very simply, I say if — if the bank is . . . I pay 73 for April 16 is okay. If not, send me the paper for 73 by the end of this month.

Latham: Okay. That’s what I’m going to do then. I’m going to send you the paperwork for the 73 by the end of this month.

Torchizy: Okay.

Latham: Okay? Do you — do you —

Torchizy: Okay.

Latham: Do you want me to fax it to you or you want me to fax it to Mr. Reghabi?

Torchizy: No, no because now I am talking to you —

Torchizy then gave Latham his fax number.

8

The eighth phone call was on Tuesday, March 31, 2015. Torchizy called to give Latham bank routing and account numbers. There was no mention of Reghabi.

9

The ninth call was on Thursday, April 9, 2015. Torchizy called Latham to discuss Torchizy’s payment to the bank. There was no mention of Reghabi.

C

Reghabi sued Latham and Chase on November 10, 2015. The five counts were for slander, intentional and negligent contract interference, and intentional and negligent interference with prospective economic advantage.

The trial court sustained the defense demurrer.

Reghabi filed his first amended complaint.

The trial court sustained the defense demurrer to the first amended complaint, granting leave to amend except on Reghabi’s third claim for negligent interference with contractual relations.

This ruling was July 25, 2017. The court ordered Reghabi to amend within 15 days.

Reghabi did not file his second amended complaint within the court-ordered 15 days.

On August 31, 2017, Reghabi filed his second amended complaint.

Latham demurred. The first ground in his demurrer was that Reghabi failed to file within 15 days, thereby violating the court’s order and making the second amended complaint “void in its entirety.”

Reghabi’s opposition brief admitted Reghabi missed the court’s filing deadline. Reghabi wrote that his error was mistaken and not intentional and he “pray[ed] the Court would not dismiss the complaint. (California Code of Civil Procedure 473.)” That was the extent of Reghabi’s argument on this point.

In reply, Latham argued that Reghabi’s opposition brief was tardy and had left Latham only two business days to draft his reply. Latham argued Reghabi had demonstrated “a pattern of conduct” of “skirting the laws” and of dilatory conduct. “The violations of law keep adding up,” Latham claimed, listing a range of problems including Reghabi’s 2010 suspension from the practice of law, and a second suspension in 2011.

Latham also argued Code of Civil Procedure section 473 offered Reghabi no protection. Reghabi had not complied with this section’s procedural requirements — for instance, there was no sworn declaration of fault. More fundamentally, Latham noted this section does not apply to an attorney representing himself. Because Reghabi “cannot sue himself for legal malpractice, there is no additional litigation for this provision to discourage.”

The trial court heard oral argument on this demurrer on May 7, 2018. Apparently neither party retained a court reporter.

The court sustained the demurrer without leave to amend. The court’s order listed problems with the second amended complaint, beginning with Reghabi’s failure to amend his complaint within the 15 days ordered by the court.

II

We affirm the trial court’s ruling because Reghabi admits he violated the court order requiring him to amend within 15 days. (See Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 611–615 (Leader).)

We review this issue for abuse of discretion. (Leader, supra, 89 Cal.App.4th at p. 612)

The trial court’s ruling was proper. A trial court has authority to strike pleadings not filed in conformity with its earlier ruling. (Leader, supra, 89 Cal.App.4th at p. 613.) Reghabi’s failure to file his amended complaint within the time specified subjected his entire action to dismissal in the court’s discretion under section 581, subdivision (f)(2) of the Code of Civil Procedure. (Ibid.) Reghabi’s presentation of his belated complaint did not cut off the court’s ability to dismiss his action. (Id. at p. 614.) This trial court accomplished the proper end of dismissal by sustaining Latham’s demurrer on the ground that Reghabi’s tardy filing violated the trial court’s order.

In oral argument, Reghabi conceded the trial court could treat Chase’s demurrer as a motion to strike.

Reghabi attacks the trial court’s ruling with two brief and invalid arguments.

The first invalid argument is that Latham has not filed a cross-appeal and has “likely waived any argument concerning Reghabi’s late filing of the appeal.” We italicize “appeal” because, based on this section’s heading, we presume this is Reghabi’s typographical error and that he meant to assert Latham has waived any argument about Reghabi’s late filing of his second amended complaint.

So understood, Reghabi’s argument fails, for Latham amply pursued his attack on Reghabi’s tardy filing in the trial court. Latham did not forfeit this point. Nor was there any need for Latham to file a cross-appeal.

Reghabi’s second argument is that the trial court excused his late filing and “forgave Reghabi when the trial court ruled on the substance of the demurrer.” This argument has no basis in the record. The trial court forgave nothing. It sustained Latham’s demurrer on every point, beginning with Reghabi’s failure to amend within the time the court had ordered.

The trial court ruled in Latham’s favor for many independent reasons. The fact the first ground is independently sufficient to support the trial result signifies we need go no further in our analysis.

In reply, Reghabi cites Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, 827–828 (Gitmed), which is inapplicable. The Leader court distinguished Gitmed. (Leader, supra, 89 Cal.App.4th at p. 614.) We do as well, for Gitmed involved an extreme situation. A defendant moved to dismiss a complaint without any notice to the plaintiff — an obviously unfair practice “not condoned by this court.” (Gitmed, supra, 26 Cal.App.4th at p. 829.) The Gitmed opinion chastised the trial court as “remiss” for not requiring defense counsel even to call plaintiff’s counsel and give notice of the defense’s ex parte application. (Id. at p. 826, fn. 3.) By contrast, Chase gave Reghabi proper notice of its position, which Reghabi debated on the merits to the trial court. Gitmed thus has no bearing here.

We deny Reghabi’s motion to augment the record.

DISPOSITION

We affirm the judgment and award costs to Chase and Latham.

WILEY, J.

We concur:

GRIMES, Acting P. J.

STRATTON, J.

Filed 3/5/20 Matthews v. Superior Court CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

SEMAJ MATTHEWS,

Petitioner,

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent;

PEOPLE OF THE STATE OF CALIFORNIA,

Real Party in Interest.

B296109

(Los Angeles County

Super. Ct. No. ZM040945)

ORIGINAL PROCEEDINGS in mandate. Mark S. Arnold, Judge. Petition denied.

Ricardo D. Garcia, Public Defender, Albert J. Menaster, Christina Behle and Lara Kislinger, Deputy Public Defenders, for Petitioner.

No appearance for Respondent.

Jackie Lacey, District Attorney, Phyllis C. Asayama and Matthew Brown, Deputy District Attorneys, for Real Party in Interest.

______________________________

The Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.; hereafter SVPA) “allows for the involuntary commitment of certain convicted sex offenders, whose diagnosed mental disorders make them likely to reoffend if released at the end of their prison terms.” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 235 (Cooley).) For the individual to be committed, a judge or unanimous jury must find beyond a reasonable doubt that the person is a sexually violent predator. (Id. at p. 243.) The SVPA defines a sexually violent predator as “a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” (§ 6600, subd. (a)(1).)

“The SVPA provides for both a preliminary probable cause hearing and a later trial” to determine whether a convicted sex offender is a sexually violent predator. (People v. Hurtado (2002) 28 Cal.4th 1179, 1186 (Hurtado).) Before there can be a trial, the People must petition the superior court for a finding of “probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release.” (§ 6602, subd. (a); see Hurtado, at p. 1186 [emphasizing that the People must prove that the likely future criminal behavior be not only sexually violent but also predatory].)

If the court determines such probable cause exists, a trial must be conducted “to determine whether the person is, by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her release from the jurisdiction of the Department of Corrections and Rehabilitation or other secure facility.” (§ 6602, subd (a).)

Semaj Matthews petitions for a writ to overturn the superior court’s finding of probable cause to hold him for trial under the SVPA (§ 6600 et seq.), contending the court prejudicially erred by admitting inadmissible hearsay at the probable cause hearing. We conclude no prejudicial hearsay was admitted, and thus deny the petition.

BACKGROUND

In 2015, Matthews fondled an 11-year-old girl in a children’s playground. He was convicted of lewd and lascivious acts with a minor and sentenced to three years in prison. (Pen. Code, § 288, subd. (a).) This is deemed a “qualifying offense” for purposes of an SVPA proceeding.

On March 12, 2018, toward the end of his prison term, the People filed a petition to commit Matthews to a mental health facility as a sexually violent predator. Matthews was evaluated by two psychologists, both of whom concluded he met the criteria to be considered a sexually violent predator.

At the probable cause hearing the People offered the report of, and called to testify, Dr. Charles Flinton, a forensic psychologist specializing in sexual offender cases. Matthews repeatedly objected to all hearsay offered in Dr. Flinton’s report and testimony.

Dr. Flinton’s report indicated that according to police records, Matthews had committed five nonqualifying sexual offenses. A Salina, Kansas police report (that Dr. Flinton did not identify) indicated that in 2001 Matthews victimized five different girls by pestering them to have sex with him, actually having sex with a 15-year-old victim, kissing an 11-year-old on the lips, and propositioning and kissing two 13-year-olds. He was charged with several sex- and battery-related counts, convicted of two counts of sexual battery, and sentenced to 12 months of probation and six months in county jail. The report further stated that police records indicated that in 2010 Matthews was convicted of indecent exposure in Kansas, was charged with indecent exposure in California in 2014, and was arrested in California in 2016 on charges of indecent exposure committed in prison.

According to another unidentified police record referenced in the Flinton report, in 2013 Matthews was arrested for sexual battery on a 25-year-old woman to whom he had offered a ride. As recited in the report, “The victim was apparently walking home when a black male approached her and offered to give her a ride in his vehicle. The victim got into his vehicle. At one point, Mr. Matthews took her to a liquor store and went inside leaving the victim in the vehicle. The victim stated that her ‘intuition’ alerted her that something wasn’t right, so she exited the vehicle and started walking. She only made it a couple blocks before she realized that Mr. Matthews was following her. The victim got back into Mr. Matthews’s car and told him ‘not to fight with her.’ At one point, Mr. Matthews reportedly told her that they were going to ‘the park on the hill.’ The victim then reported that Mr. Matthews touched her ‘where she pees.’ The victim then jumped out of the moving vehicle, causing injuries to her hands, foot, arm, and back. The case was eventually dropped due to ‘insufficient probable cause.’ ”

Dr. Flinton testified that he based his opinion on the police reports, medical records, and a 2017 interview he conducted with Matthews. He testified that Matthews suffered from schizophrenia, and the sexual assaults recounted by the police reports established “a pattern of sexually inappropriate and sexually criminal behavior.” When Dr. Flinton questioned Matthews about these incidents he denied having engaged in any inappropriate sexual behavior with any victim. But his qualifying offense and “other behaviors” established a “pattern of sexually inappropriate behavior” that could manifest in impulsivity and sexual and nonsexual violence, which led Flinton to conclude Matthews was predisposed to commit sexually violent criminal acts.

When asked whether any future offenses would be predatory, Flinton testified, “Well, his qualifying offense involved an 11-year-old female who[] was a stranger to him. There’s also another offense that occurred in 2012 in which he approached a female in the early morning . . . hours, who was delivering newspapers, he approached her and sexually assaulted her by grabbing her crotch area outside her clothing.”

At the conclusion of the hearing the court stated it found Dr. Flinton credible, and found probable cause existed to believe Matthews was a sexually violent predator. The court said, “I believe that there is sufficient evidence to show that Mr. Matthews is a sexually violent–excuse me—is a person who is likely to engage in sexually violent predatory criminal behavior upon release. And I find it predatory because it appears that all of his victims he had no relationship with at all previously. So there is—the probable cause determination is made.”

Matthews filed the instant petition on March 8, 2019, contending he should receive a new hearing because the trial court’s finding of probable cause was based on inadmissible hearsay. Matthews argued Dr. Flinton improperly relied on unqualifying incidents in forming his opinion, which he knew of only through hearsay police records. Matthews argued the trial court improperly allowed Dr. Flinton to relate facts from those records, and improperly considered the unqualifying incidents related therein to make its probable cause determination.

We issued an order to show cause why Matthews’s petition should not be granted. The People filed a return, to which Matthews replied.

DISCUSSION

A. General Principles

“When an offender is determined to be a potential SVP, he or she is referred to the State Department of State Hospitals for a ‘full evaluation.’ [Citation.] The offender is then evaluated by two mental health professionals. [Citation.] If both professionals concur ‘that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody,’ the Director of State Hospitals forwards a request for a petition for civil commitment.” (Bennett v. Superior Court (2019) 39 Cal.App.5th 862, 874 (Bennett).)

Upon receiving the request, the People may petition the superior court for a finding of “probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release.” (§ 6602, subd. (a).) “Once the petition is filed a superior court judge reviews it to determine whether, on its face, the petition contains sufficient facts that, if true, would constitute probable cause ‘to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release.’ [Citation.] [¶] If the judge makes such a finding, a probable cause hearing is set. [Citations.] At the probable cause hearing, the judge ‘shall review the petition and shall determine whether there is probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release. . . . If the judge determines there is not probable cause, he or she shall dismiss the petition and any person subject to parole shall report to parole. If the judge determines that there is probable cause, the judge shall order that the person remain in custody in a secure facility until a trial is completed . . . .’ [Citation.] The probable cause hearing is ‘analogous to a preliminary hearing in a criminal case; both serve to “ ‘ “weed out groundless or unsupported charges . . . and to relieve the accused of the degradation and expense of a . . . trial.” ’ ” [Citation.] Like a criminal preliminary hearing, the only purpose of the probable cause hearing is to test the sufficiency of the evidence supporting the SVPA petition.’ ” (Bennett, supra, 39 Cal.App.5th at p. 874.)

To determine whether an individual is a sexually violent predator the court must examine three elements. First, the offender must have been “convicted of a sexually violent offense against one or more victims.” (§ 6600, subd. (a)(1).) This may be established by documentary evidence, including “preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of State Hospitals.” (Id. at subd. (a)(3).) Although this evidence is hearsay, the Legislature created an expansive hearsay exception allowing for its admission “after prosecutors complained that ‘they must bring victims back to court to re-litigate proof of prior convictions.’ ” (People v. Otto (2001) 26 Cal.4th 200, 208 (Otto).) Penal Code section 969b also permits the existence of a prior conviction for a sexually violent offense to be established by documentary evidence. (People v. Roa (2017) 11 Cal.App.5th 428, 444 (Roa).) That section “allows the admission into evidence of records or certified copies of records ‘of any state penitentiary, reformatory, county jail, city jail, or federal penitentiary in which’ the defendant has been imprisoned to prove that a person has been convicted of a crime.” (Roa, at p. 444.)

If the individual has been convicted of a qualifying offense, the People must prove he or she suffers from a “ ‘[d]iagnosed mental disorder,’ ” which may include “a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” (§ 6600, subd. (c).) “To prove at trial that a defendant suffers from a mental disorder, the People have one or more experts evaluate the defendant to make a diagnosis. A trial court may order an alleged [sexually violent predator] to submit to a mental examination by an expert retained by the People [citation][, but] defendants often refuse to meet with the expert. The diagnosis is therefore frequently based on documentary evidence such as state hospital records, police reports, probation reports, and prison records.” (Roa, supra, 11 Cal.App.5th at pp. 444-445, fn. omitted; see People v. Yates (2018) 25 Cal.App.5th 474, 478 (Yates).)

For the third element, the People must show the alleged sexually violent predator will likely engage in sexually violent criminal behavior “because of a diagnosed mental disorder affecting the person’s volitional or emotional control.” (People v. Shazier (2014) 60 Cal.4th 109, 126.) “A person is likely to engage in sexually violent criminal behavior if the jury finds that the person presents ‘a substantial danger, that is, a serious and well-founded risk, of committing such crimes if released from custody.’ [Citation.] Expert testimony is admissible regarding the dangerousness of the defendant and the likeliness of the defendant to reoffend. [Citation.] Such testimony is typically based on diagnostic tools that are used to predict future violent sexual behavior. A common diagnostic tool for predicting violent sexual behavior is the STATIC-99, ‘an actuarial instrument that allows an evaluator to place sexual offenders in different risk categories based on historical (static) factors such as age, marital status, the number of prior offenses, the relationship of the offender to the victims and the gender of the victims.’ [Citation.] The STATIC-99 assigns the offender a numeric score that reflects a percentage chance of the offender being convicted of a future sexual offense. [Citation.] A score of 0 to 1 indicates a low risk of committing a new violent sexual offense, 2 to 5 indicates a moderate risk, and 6 indicates a high risk of reoffending.” (Roa, supra, 11 Cal.App.5th at p. 445, fn. omitted.)

B. Certain Hearsay is Inadmissible in SVPA Proceedings

“ ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Hearsay evidence is inadmissible unless an exception applies. (Id. at subd. (b).)

As noted above, in subdivision (a)(3) of section 6600, the Legislature created a hearsay exception for SVP proceedings to permit the introduction of certain documentary evidence to prove the details of a prior qualifying conviction. However, this exception does not permit the introduction of hearsay to prove details of nonqualifying offenses or alleged offenses that did not result in conviction. (Otto, supra, 26 Cal.4th at pp. 207-208.)

In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), our Supreme Court articulated another exception to the hearsay rule, holding that an expert’s testimony involving his or her general knowledge in the expert’s field of expertise is not barred. (Id. at p. 676.) An expert may thus render an opinion “[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (Evid. Code, § 801, subd. (b).) An expert “may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion.” (Evid. Code, § 802.) But the court “may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion.” (Evid. Code, § 803.)

“When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert’s opinion, it cannot logically be asserted that the hearsay content is not offered for its truth. In such a case, ‘the validity of [the expert’s] opinion ultimately turn[s] on the truth’ [citation] of the hearsay statement. If the hearsay that the expert relies on and treats as true is not true, an important basis for the opinion is lacking.” (Sanchez, supra, 63 Cal.4th at pp. 682-683.) An expert cannot “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.” (Id. at p. 686.) “Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so.” (Id. at p. 685.) But “[t]here is a distinction to be made between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception.” (Id. at p. 686.)

The rule explained in Sanchez applies in SVPA trials. (See, e.g., Roa, supra, 11 Cal.App.5th at p. 452; Yates, supra, 25 Cal.App.5th at p. 483; Burroughs (2016) 6 Cal.App.5th 378, 410-411; People v. Flint (2018) 22 Cal.App.5th 983, 995-998.)

It also applies in an SVPA probable cause hearing held to determine whether there should be a commitment trial. (Bennett, supra, 39 Cal.App.5th at p. 879; People v. Superior Court (Couthren) (2019) 41 Cal.App.5th 1001, 1019 (Couthren).)

In Bennett, our colleagues in Division Two of this District reversed a finding of probable cause that was based on inadmissible case-specific hearsay, and dismissed the People’s civil commitment petition. (Bennett, supra, 39 Cal.App.5th at p. 885.) After the People filed their return, the First District similarly held in Couthren that Sanchez applies to probable cause hearings under the SVPA. In that case, the prosecution relied solely on documentary evidence to establish probable cause that Couthren qualified as an SVP. The trial court dismissed the People’s civil commitment petition, finding the prosecution had failed to present admissible evidence to establish probable cause. On appeal, the court held that “neither statute nor decisional law authorizes the wholesale admission of the reports of expert evaluators for their truth at SVP probable cause hearings.” (Couthren, supra, 41 Cal.App.5th at p. 1019.)

We review a trial court’s evidentiary rulings for abuse of discretion. (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 181.) A ruling that rests on an error of law is an abuse of discretion. (People v. Patterson (2017) 2 Cal.5th 885, 894.) We will reverse, however, only if an error was prejudicial, i.e., only if a reasonable probability exists that a different result would have been reached had inadmissible evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818; Roa, supra, 11 Cal.App.5th at p. 433.)

C. Application

Matthews contends the trial court prejudicially erred by allowing expert testimony of case-specific facts relating to nonqualifying offenses, and improperly relied on those incidents in finding probable cause. We disagree.

Dr. Flinton opined that Matthews’s diagnosable mental disorder—schizophrenia—made him likely to engage in sexually violent predatory conduct. He based the opinion on his review of reports detailing (1) Matthews’s qualifying conviction from 2015, and (2) five non-qualifying sexual offenses involving different victims. The underlying facts for all offenses came solely from police reports, i.e., Flinton had no independent knowledge of them.

The admissible evidence was thus twofold. First, police reports describing Matthews’s qualifying conviction from 2015, when he fondled an 11-year-old over her clothing at a park, were admissible pursuant to the hearsay exception set forth in subdivision (a)(3) of section 6600. Second, Flinton’s opinion itself was admissible even though it relied in part on inadmissible hearsay reports. The trial court thus had ample evidence from which to find probable cause existed that Matthews was a sexually violent predator.

Matthews argues that Flinton improperly testified about out-of-court statements to explain the basis of his opinion, and this testimony was material to the court’s finding of probable cause, which the court said was based on offenses Matthews committed against “all of his victims.” The argument is without merit.

We agree that no admissible evidence substantiated Matthews’s nonqualifying offenses, and Dr. Flinton thus had no basis to testify regarding them. (See Sanchez, supra, 63 Cal.4th at p. 686 [an expert may not “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception”].) But no reasonable probability exists that the result would have been more favorable to Matthews absent Flinton’s testimony about nonqualifying offenses.

The standard at a probable cause hearing to determine whether an offender may be a sexually violent predator is lower than that ultimately used at any trial to decide the matter. At a probable cause hearing the trial court need only determine whether “a reasonable person could entertain a strong suspicion that the offender is” a sexually violent predator. To reject the People’s evidence at the probable cause stage, “either the evidence presented must be inherently implausible, the witnesses must be conclusively impeached, or the demeanor of the witnesses must be so poor that no reasonable person would find them credible.” (Cooley, supra, 29 Cal.4th at p. 258.) Given this standard, even if specific information about nonqualifying offenses was erroneously admitted under Sanchez, sufficient other evidence—a police report and Dr. Flinton’s testimony—supported a strong suspicion that Matthews was a sexually violent predator. Nothing about this evidence was inherently implausible or was in any way impeached or incredible. And nothing suggested there would have been no finding of probable cause had details of the nonqualifying offenses been excluded from the proceedings.

Matthews notes that the trial court stated it found his conduct to be predatory because it appeared he had no prior relationship with any “of his victims.” (Italics added.) From this he argues the court would not have found his conduct to be predatory absent the inadmissible evidence of there being more than one victim. We disagree.

“The class of persons who commit predatory acts as defined in section 6600, subdivision (e), is a much smaller group than the class of persons who commit sexually violent criminal acts as defined in the same section. It includes, however, the most dangerous offenders. Because predatory offenders could strike at any time and victimize anyone, they pose a much greater threat to the public at large. In contrast, a defendant likely to commit crimes only against family members or close acquaintances is less likely to reoffend because potential victims will be aware of the defendant’s status as a sex offender. The public at large, however, is inevitably more defenseless against acts committed by strangers.” (Hurtado, supra, 28 Cal.4th at pp. 1187-1188.)

Here, Dr. Flinton testified he believed that any future offense would be predatory because Matthews’s “qualifying offense involved an 11-year-old female who[] was a stranger to him.” (Italics added.) Although Dr. Flinton later testified about other victims to whom Matthews was also a stranger, it remained his opinion that Matthews’s predatory nature was established by one offense against one victim. Nothing suggests the court required that Matthews commit more than one offense involving a stranger before concluding he was probably a predator.

DISPOSITION

The petition is denied.

NOT TO BE PUBLISHED

CHANEY, Acting P. J.

I concur:

WEINGART, J.*

BENDIX, J.

I concur in the result but not in the application of People v. Sanchez (2016) 63 Cal.4th 665 to statements Dr. Flinton made about nonqualifying offenses when testifying about the bases for his opinions.

BENDIX, J.

Case Number: BC721468 Hearing Date: March 09, 2020 Dept: 32

Superior Court of California
County of Los Angeles
Department 32

luis damian robles,

Plaintiff,

v.

francisco barajas, jr., et al.,

Defendants.

Case No.: BC721468

Hearing Date: February 28, 2020

[TENTATIVE] order RE:

MOTION for terminating sanctions

NOTICE

The Court continues the hearing on this motion to the final status conference: March 9, 2020, at 10:00 a.m. If the deposition of Plaintiff is not completed on or before March 8, 2020, the Court will consider terminating sanctions. If the deposition of Plaintiff is completed on or before March 8, 2020, the following would be the Court’s tentative order. If the deposition of Plaintiff is completed on or before March 8, 2020, and Defendants require additional time to prepare for trial, the Court intends to hold a trial setting conference on March 9, 2020, at 10:00 a.m. Any party who does not appear at the final statute conference, motions hearing, and trial setting conference on March 9, 2020, at 10:00 a.m. shall waive their right to be heard and shall submit to any decision the Court makes on any of these issues.

TENTATIVE ORDER IF DEPOSITION COMPLETED ON OR BEFORE MARCH 8

Defendants Francisco Barajas, Jr. and Letitia Barajas (“Defendants”) move to dismiss the complaint of Plaintiff Luis Damian Robles (“Plaintiff”) as a terminating sanction for failing to submit to a deposition, as ordered by the Court. In the alternative, Defendants seek sanctions in the amount of $1,109.15 against Plaintiff and counsel-of-record.

The Court has discretion to impose terminating sanction when a party willfully disobeys a discovery order. (Code Civ. Proc., §§ 2023.010, subd. (g), 2030.290, subd. (c).) The Court may impose a terminating sanction by striking a party’s pleading. (Code Civ. Proc., § 2023.030, subd. (d)(1).)

In its order of October 18, 2019, the Court ordered Plaintiff to appear for a deposition on October 30, 2019 at Defendant’s counsel’s office. (Declaration of Stephen Hsu, ¶ 12.) To date, Plaintiff has not appeared for a deposition. (Id., ¶ 13.) Nor has Plaintiff or counsel-of-record paid the prior monetary sanctions as ordered by the Court. (Ibid.) Trial remains set for March 11, 2020.

Plaintiff provides no good cause for the delays in taking his deposition. The memorandum of points and authorities represents that there have been a family emergency involving Plaintiff’s counsel’s son. The Court does not necessarily need specific information concerning the nature of the purported family emergency, as the Court respects parties’ privacy. Nevertheless, Counsel’s declaration does not contain the same representation as the memorandum of points and authorities, so this representation is not properly before the Court. Nor does Plaintiff’s counsel explain why this issue prevented the deposition from occurring over the course of several months.

Plaintiff’s counsel states that he contacted Defendants’ counsel on three occasions (specifically, on February 11, 12, and 13, 2020) to provide dates for the deposition. Specifically, Plaintiff has proposed February 27, February 28, and March 3, 2020. (Declaration of Jonathan Kashani, Exh. D.) Yet, the Court is unclear why Plaintiff’s counsel waited until mid-February to attempt to resolve this issue. It appears to the Court that Plaintiff’s counsel only took the issue seriously after Defendants filed the instant motion (on January 31, 2020).

The Court is required to consider lesser sanctions before imposing a terminating sanction. Prior monetary sanctions were not effective. Nevertheless, a terminating sanction is premature, because Plaintiff’s deposition has been completed in advance of trial. The remedy for any prejudice to Defendants is a continuance, not dismissal. Therefore, the Court imposes monetary sanctions in the amount of $1,109.15 against Plaintiff and Plaintiff’s counsel, jointly and severally, having found no good cause for Plaintiff’s failure to comply with this Court’s order and having found that this motion was necessary in order to facilitate the deposition. The Court finds that this amount is fair and reasonable under the circumstances, considering the work required to file the motion and litigate this issue.

Defendants shall provide notice.

DATED: February 26, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: 19STCV08710 Hearing Date: March 09, 2020 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ZHOIE PEREZ, etc.,

Plaintiffs,

vs.

EDDUIN ZELAYA GRUNFELD., etc., et al.,

Defendants.

CASE NO.: 19STCV08710

[TENTATIVE] ORDER RE: DEMURRERS TO SECOND AMENDED COMPLAINT; MOTIONS TO STRIKE

Date: March 9, 2020

Time: 8:30 a.m.

Dept. 56

FSC: July 13, 2020

Jury Trial: July 27, 2020

MOVING PARTIES: Defendant Edduin Zeyala Grunfeld (“Grunfeld”); Defendant Bais Chana Heritage School, Inc. (erroneously sued as Ohel Chana High School, a California business entity unknown) and Defendant Etz Jacob Congregation aka Etz Jacob Torah Center (collectively, “School and Congregation Defendants”); and Defendant Stealth Protection and Security, Inc. (“SPS”)

RESPONDING PARTY: Plaintiff Zhoie Perez

The Court has considered the moving, opposition, and reply papers.[1]

BACKGROUND

Plaintiff’s Second Amended Complaint (“SAC”) arises from the alleged wrongful actions of Grunfeld which resulted in Plaintiff being shot in her leg due to her status as a transgender female. Plaintiff filed the operative SAC against Defendants alleging causes of action for: (1) assault and battery; (2) false imprisonment; (3) negligence; (4) violations of the Ralph Civil Rights Act pursuant to California Civil Code, Section 51.7; (5) violations of the Bane Civil Rights Act pursuant to California Civil Code, Section 52.1; and (6) violations of the Unruh Act pursuant to California Civil Code, Sections 51 and 52.

Pertinent Factual Allegations of the SAC

The SAC alleges that: (1) Plaintiff is a 45-year old transgender woman of color and was injured by a gunshot fired by Grunfeld while in the course and scope of his employment as a security officer for School and Congregation Defendants and SPS (SAC at ¶ 11); (2) as Plaintiff was returning from a medical appointment she walked passed the Center and the School and was observing the architecture and stained glass windows of the building and was intrigued (Id. at ¶ 13); (3) Plaintiff lawfully stopped on the public sidewalk to look at and take pictures of the building but was unaware that the building was a synagogue and/or part of a school (Id.); (4) in response, Grunfeld who was dressed in tactical riot gear attire and armed with a handgun came from behind a locked wrought-iron front gate and onto the public sidewalk to approach Plaintiff (Id. at ¶ 14); (5) he was employed as an armed security guard by School and Congregation Defendants and SPS at all relevant times and was acting within the course and scope of his employment as he remained in his security uniform (Id. at ¶ 15); and (6) Grunfeld aggressively approached Plaintiff coming within feet of her an putting his hand on his gun provided to him by SPS and School and Congregation Defendants, and began to question Plaintiff about what she was doing and ordered she leave the property even though she was on public property. (Id. at ¶ 16)

The SAC further alleges that: (1) Plaintiff remained on the public sidewalk and continued to non-violently record Grunfeld with her cellular phone to document their interaction (Id. at ¶ 17); (2) following Plaintiff’s lawful recording of the interaction, Grunfeld became belligerent and without provocation and justification, began to harass, intimidate, coerce and threaten Plaintiff by pointing his finger and gun at Plaintiff’s face, yelling and threatening to shoot Plaintiff, calling Plaintiff a terrorist, and continually grabbing his gun and pointing it at Plaintiff in an attempt to terrorize and frighten her and/or instigate a physical altercation (Id. at ¶ 19); (3) at all relevant times, Grunfeld use his actual and/or apparent authority as a security officer employed by SPS and School and Congregation Defendants to guard the premises during the time he threatened and harassed Plaintiff (Id. at ¶ 20); (4) the weapon brandished by Grunfeld was a gun he used within the course and scope of his employment as an armed security officer employed by SPS, as well as School and Congregation Defendants (Id. at ¶ 20); (5) when Plaintiff refused to leave the public sidewalk and/or stop recording the interaction, Grunfeld went back behind the locked wrought-iron gate and continued to threaten, harass, and intimidate Plaintiff who remained at all times on the public sidewalk 6 to 8 feet away from the gate (Id. at ¶¶ 21-22); (6) from behind the gate, Grunfeld drew his weapon and pointed it at Plaintiff for no other reason than her right to exist as a transgender woman of color and/or as a member of another actual and/or perceived protected class and to exercise her constitutional rights (Id. at ¶ 23); (7) and from behind the gate, Grunfeld pointed his gun in the direction of the market and he remained in uniform as a security officer employed by Defendants and threatened Plaintiff with a gun (Id. at ¶ 24); and (8) from behind the locked wrought-iron gate, Grunfeld pulled the trigger and shot his weapon in the direction of the market, the people eating at the market, and Plaintiff. (Id. at ¶ 25.)

The SAC further alleges that: (1) from behind the gate, Grunfeld shot Plaintiff in the leg, and at all relevant times remained in uniform as a security officer employed by SPS and School and Congregation Defendants (Id. at ¶¶ 25-26); (2) Grunfeld shot his weapon intentionally with intent to hurt and/or kill Plaintiff and to deprive her of her freedom of movement and freedom to exercise her First Amendment Rights by use of physical force (Id. at ¶ 28); (3) as a result of being shot, Plaintiff collapsed and fell onto the sidewalk area where she was standing and was rendered unable to move (Id. at ¶ 30); (4) Grunfeld then came from the gated area with his gun drawn and told Plaintiff the next time he would shoot her “for real” meaning that he would shoot to kill her (Id. at ¶ 30); (4) after wrongfully shooting Plaintiff, Defendants and each of them wrongfully and intentionally summonsed law enforcement causing Plaintiff to be arrested without a warrant and she would not have been arrested but for Defendants’ wrongful and intentional conduct (Id. at ¶ 31); (5) she was arrested without a warrant and was handcuffed to a gurney while she bled and was in pain from the bullet wound caused by Grunfeld, and Defendants effectuated an unlawful private person’s arrest (Id.); (6) SPS and School and Congregation Defendants knew and/or should have known that Grunfeld was unfit to perform his work based on him stockpiling illegal weapons and harboring violent animus towards people with protected characteristics including Plaintiff’s actual and/or perceived sex, gender, race, color, religion, national origin, political affiliation, and/or ancestry (Id. at ¶ 32); and (7) Grunfeld made social media posts which were communicated to SPS and School and Congregation Defendants about stockpiling illegal weapons and harboring violent animus against transgender people and people with protected characteristic’s like Plaintiff whom he falsely called a terrorist. (Id. at ¶ 33.)

The Present Demurrers and Motions to Strike

Grunfeld filed a demurrer to the second, fourth, and sixth causes of action in the SAC. School and Congregation Defendants filed a demurrer to the first, second, third, fourth, fifth, and sixth causes of action in the SAC. SPS filed a demurrer to the first, second, third, fourth, fifth, and sixth causes of action in the FAC.

Grunfeld, School and Congregation Defendants, and SPS each filed motions to strike portions of the SAC.

The Court will address the respective demurrers and motions to strike filed by the parties within this one ruling.

MEET AND CONFER

The meet and confer requirement has been met.

DEMURRERS

“The complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Id.) “The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.” (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) With respect to a demurrer “[t]he complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) “On demurrer, all material facts properly pleaded and all reasonable inferences which can be drawn therefrom are deemed admitted.” (Bush v. California Conservation Corps (1982) 136 Cal.App.3d 194, 198.) A demurrer will be sustained without leave to amend if there exists no “reasonable possibility that the defect and be cured by amendment.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “The burden of proving such reasonable possibility is squarely on the plaintiff.” (Id.) “California courts have adopted the principle that specific allegations in a complaint control over an inconsistent general allegation.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1236.)

Issue No. 1: First Cause of Action

“An employer is vicariously liable for the torts of employees committed within the course or scope of their employment.” (Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 138-139.) “[E]mployers are [not] strictly liable for all actions of their employees during working hours.” (Id. at 139.) “If an employee substantially deviates from his duties for personal purposes, the employer is not vicariously liable for the employee’s actions.” (Id.) “Respondeat superior liability should apply only to the types of injuries that as a practical matter are sure to occur in the conduct of the employer’s enterprise.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 299.) “[V]icarious liability [has been] deemed inappropriate where the misconduct does not arise from the conduct of the employer’s enterprise but instead arises out of a personal dispute.” (Id. at 301.) “[I]f an employee’s tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer under the doctrine of respondeat superior.” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1005.) “In such cases, the losses do not foreseeably result from the conduct of the employer’s enterprise and so are not fairly attributable to the employer as a cost of doing business.” (Id.) Liability will not be imputed on an employer “if the employee inflicts injury out of personal malice, not engendered by the employment . . . or acts out of personal malice unconnected with the employment.” (Id.)

“[T]he employer will not be held liable for the assault or intentional tort that did not have a causal nexus to the employee’s work.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297.) “An act serving only the employee’s personal interest is less likely to arise from or be engendered by the employment than an act that, even if misguided, was intended to serve the employer in some way.” (Id. at 298.) “That the employment bought the tortfeasor and victim together in time and place is not enough.” (Id.) “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive.” (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.) “[R]atification is the [c]onfirmation and acceptance of a previous act.” (Id. at 168.) “A corporation cannot confirm and accept that which it does not actually know about.” (Id.)

Analysis Pursuant to the First Cause of Action

The Court incorporates its discussion of the pertinent factual allegations from above and applies it to its discussion about the sufficiency of the first cause of action in the SAC.

The Court finds that the allegations in the SAC pursuant to the first cause of action against either: (1) SPS; or (2) School and Congregation Defendants are insufficient because the SAC itself alleges that Grunfeld’s actions were clearly motivated by his own personal animus against transgendered people. Despite the SAC making the conclusory allegation that Grunfeld was acting in the course and scope of his employment during the alleged incident, the specific allegations about his animus, threats, and social media posts indicating his violent propensities control over general allegations under Perez. There is also no basis for ratification under Cruz as there are not sufficient facts pled that either SPS or School and Congregation Defendants ratified a prior act of Grunfeld shooting someone based on a violent and personal animus. There is no basis to impose vicarious liability or respondeat superior liability against either SPS or School and Congregation Defendants based on Grunfeld’s personal animus and actions against those with Plaintiff’s characteristics.

The demurrers of SPS and School and Congregation Defendants to the first cause of action are SUSTAINED WITHOUT LEAVE TO AMEND under Blank. Plaintiff has not met her burden in showing a reasonable possibility that the first cause of action can be amended to cure its current defects. This is Plaintiff’s third version of her complaint as she has previously filed the initial complaint and a First Amended Complaint.

Issue No.2: Second Cause of Action

“The tort and the crime of false imprisonment are defined in the same way.” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 372.) “[T]he tort of false imprisonment is the nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time.” (Id. at 373.) “That length of time can be as brief as 15 minutes.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.) “A person is falsely imprisoned if he [or she] is wrongfully deprived of his [or her] freedom to leave a particular place by the conduct of another.” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 372.) “The delegation by a citizen to a law enforcement officer of the physical act of arrest need not be express, but may be implied from the citizen’s act of summoning an officer, reporting the offense, and pointing out the suspect. In considering whether a citizen’s arrest was made, and the legality thereof, it is the substance and not any magic words which must be considered.” (Johanson v. Department of Motor Vehicles (1995) 36 Cal.App.4th 1209, 1211.) “False arrest is but one way of committing a false imprisonment, and they are distinguishable only in terminology.” (Collins v. City and County of San Francisco (1975) 50 Cal.App.3d 671, 673.) “The only mental state required to be shown to [state a cause of action for] false imprisonment is the intent to confine, or to create a similar intrusion.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 716.)

The Court incorporates its recitation of pertinent allegations of the SAC and the analysis pursuant to the first cause of action above and applies it to the discussion of the sufficiency of the second cause of action in the SAC. There are no facts to support a claim for false imprisonment against either SPS or School and Congregation Defendants. With respect to Grunfeld, Plaintiff has failed to plead facts that Grunfeld intended to confine her with the requisite mental state per Fermino. (SAC at ¶¶ 48-58.) Plaintiff pled that she was on a public sidewalk during the entire time this incident occurred.

Plaintiff has not stated sufficient facts for a cause of action for false imprisonment against Grunfeld, SPS, or School and Congregation Defendants.

The Court SUSTAINS WITHOUT LEAVE TO AMEND the respective demurrers of Grunfeld, SPS, and School and Congregation Defendants to the second cause of action in the SAC under Blank.

Issue No. 3: Third Cause of Action

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) “Liability for negligent conduct may only be imposed where there is a duty of care owed by the defendant to the plaintiff or to a class of which the plaintiff is a member.” (Id. at 918.) “The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128.) When alleging a cause of action for negligence a plaintiff must allege the acts or omissions that were negligently performed. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 522.) “An employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit.” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.) “[A] person in plaintiff’s position retains significant legal remedies against an employer of a security guard who engages in misconduct . . . [t]he employer remains potentially liable to a victim . . . for negligent hiring, retention, and supervision of a security guard.” (Maria D. v. Westec Residential Sec., Inc. (2000) 85 Cal.App.4th 125, 149.) “Negligence liability will be imposed upon the employer if it knew or should have known that hiring the particular employee created a particular risk or hazard and that particular harm materializes.” (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.) “It would be a dubious proposition indeed to suggest that a party, simply by virtue of engaging in business, owes a duty to the world for all acts taken by its employee, irrespective of whether those actions were connected with the enterprise in which the business was engaged.” (Id. at 816.) “Failing to require a connection between the employment and the injured party would result in the employer becoming an insurer of the safety of every person with whom its employees come into contact, regardless of their relationship to the employer.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1341.) “Foreseeability of harm is a crucial factor in determining the existence and scope of [a] duty.” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1189.)

Plaintiff’s opposition against SPS and School and Congregation Defendants in connection with the third cause of action assert that those Defendants can be held liable under a theory of: (1) vicarious liability; or (2) respondeat superior. The Court as explained above has already indicated that there is no basis for vicarious liability or respondeat superior liability due to Grunfeld’s actions being personal in nature. While Plaintiff’s opposition indicates that both SPS and School and Congregation Defendants can be liable on a theory of negligent hiring, retention, and supervision, Plaintiff is not bringing a cause of action for such claim as Plaintiff’s third cause of action is merely for negligence. The Court, however, finds that Plaintiff’s conclusory allegations that Defendants knew or should have known that Grunfeld was unfit are insufficient under Shea Homes. (SAC at ¶¶ 59-67.) Also, as explained above, Grunfeld’s acts as alleged by the SAC were personal in nature. Plaintiff also fails to state facts, and not mere conclusions, establishing the foreseeability of the harm she suffered.

The respective demurrers of School and Congregation Defendants and SPS to the third cause of action in the SAC are SUSTAINED WITHOUT LEAVE TO AMEND under Blank.

Issue No. 4: Fourth Cause of Action

California Civil Code, Section 51.7(b) says that “[a]ll persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51 . . .or because another person perceives them to have one or more of those characteristics.” “Civil Code section 51, subdivision (b) provides [that] . . . [a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 880.) California Civil Code, Section 51(e)(5) indicates that “[g]ender means sex, and includes a person’s gender identity and gender expression. Gender expression means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” “Under the Ralph Act, a plaintiff must establish the defendant threatened or committed violent acts against the plaintiff or their property, and a motivating reason for doing so was a prohibited discriminatory motive, or that the defendant aided, incited, or conspired in the denial of a protected right.” (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1291.) The general rule is that “statutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

The Court incorporates its recitation of pertinent factual allegations from above and applies it to the Court’s discussion of the sufficiency of the fourth cause of action in the SAC. Plaintiff has stated a cause of action in the SAC against Grunfeld for violation of the Ralph Civil Rights Act pursuant to California Civil Code, Section 51.7. (SAC at ¶¶ 68-76.) There are no facts, however, pled that either SPS or School and Congregation Defendants personally committed violent acts against Plaintiff or threatened to commit violent acts against Plaintiff or her property.

Plaintiff has pled that Grunfeld possessed animus towards transgender individuals and labeled her a terrorist because of her darker-skinned complexion, that he shot her, and he shot her due to that characteristic.

Plaintiff, however, has not stated a cause of action for violation of the Ralph Civil Rights Act pursuant to California Civil Code, Section 51.7 against either School and Congregation Defendants or SPS because as indicated above, Plaintiff has not pled facts to warrant the showing of ratification, vicarious liability, or respondeat superior liability.

The demurrer of Grunfeld to the fourth cause of action in the SAC is OVERRULED. The respective demurrers filed by School and Congregation Defendants and SPS to the fourth cause of action in the SAC are both SUSTAINED WITHOUT LEAVE TO AMEND under Blank.

Issue No. 5: Fifth Cause of Action

“The Bane Act prohibits interfering by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.” (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1289-1290.) “[I]t is clear that to state a cause of action under section 52.1 there must first be violence or intimidation by threat of violence. Second, the violence threatened must be due to plaintiff’s membership in one of the specified classifications set forth in Civil Code section 51.7 or a group similarly protected by constitution or statute from hate crimes.” (Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 111.) The general rule is that “statutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

The Court incorporates its analysis from above with respect to the fourth cause of action in the SAC and applies it to its analysis of the fifth cause of action in the SAC. Plaintiff has failed to state a cause of action against either SPS or School and Congregation Defendants for violation of the Bane Civil Rights Act. There are no facts pled that SPS or School and Congregation Defendants committed violence or threatened to commit violence against Plaintiff.

The respective demurrers of SPS and School and Congregation Defendants are SUSTAINED WITHOUT LEAVE TO AMEND under Blank.

Issue No. 6: Sixth Cause of Action

“The Unruh Civil Rights Act was enacted to create and preserve nondiscriminatory environment in California business establishments by banishing or eradicating arbitrary, invidious discrimination by such establishments.” (Flowers v. Prasad (2015) 238 Cal.App.4th 930, 937.) “The substantive protections against discrimination established by the Unruh Civil Rights Act are set forth in Civil Code section 51.” (Id.) California Civil Code, Section 51(b) says that “[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” To state a cause of action for violation of the Unruh Civil Rights Act, a plaintiff must show: (1) that defendant denied, aided or incited a denial of or discriminated against plaintiff with respect to full and equal accommodations, advantages, facilities, privileges, or services; (2) the substantial motivating reason for defendant’s conduct was due to its perception of an actionable characteristic; (3) the actionable characteristic was a substantial motivating reason for defendant’s conduct; and (4) defendant was a substantial factor in causing Plaintiff’s harm. (CACI 3060.) The general rule is that “statutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

Plaintiff has failed to plead, pursuant to the sixth cause of action, that any of the Defendants were a substantial factor in causing her harm. Under Covenant Care, this cause of action is required to be pled with particularity. (SAC at ¶¶ 90-98.) Plaintiff’s sixth cause of action in the SAC is not sufficiently pled.

Therefore, the demurrers of: (1) SPS; (2) School and Congregation Defendants; and (3) Grunfeld to the sixth cause of action in the SAC are SUSTAINED WITHOUT LEAVE TO AMEND under Blank.

MOTIONS TO STRIKE

Grunfeld, SPS, and School and Congregation Defendants each filed respective motions to strike portions of the FAC. Due to the Court sustaining without leave to amend the respective demurrers of SPS and School and Congregation Defendants as to each cause of action asserted in the SAC, the Court GRANTS the respective motions to strike filed by SPS and School and Congregation Defendants WITHOUT LEAVE TO AMEND.

The Court, however, will address the motion to strike filed by Grunfeld as he did not demur to the first, third, or fifth causes of action in the SAC, and in connection with his demurrer to the SAC as indicated above, the Court overruled his demurrer to the fourth cause of action in the SAC.

Grunfeld’s Motion to Strike

Grunfeld asserts that: (1) Plaintiff’s second cause of action for false imprisonment is devoid of facts to support the cause of action or damages; (2) Plaintiff’s third cause of action for negligence is devoid of facts to support punitive damages; (3) Plaintiff’s fourth and sixth causes of action are devoid of facts to support either cause of action or damages; and (4) Plaintiff’s claims for attorneys’ fees, civil penalties, and treble damages cannot survive.

To the extent that Grunfeld is arguing that Plaintiff has failed to sufficiently state various causes of action and is seeking to strike entire causes of action from the SAC on that basis, the Court will not address such arguments in connection with his motion to strike as those arguments have been addressed in connection with his demurrer to the SAC.

California Code of Civil Procedure, Section 436(a) allows a court to “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” California Code of Civil Procedure, Section 436(b) allows a court to “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

Legal Standard for Imposing Punitive Damages

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) California Civil Code, Section 3294 authorizes punitive damages upon a showing of malice, fraud, or oppression. Malice is defined as either “conduct which is intended by the defendant to cause injury to the plaintiff,” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civil Code § 3294(c)(1).) “Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331.) Fraud under California Civil Code, Section 3294(c)(3) “means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” California Civil Code, Section 3294(2) defines oppression as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Punitive damages thus require more than the mere commission of a tort. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.)

Specific facts must be pled in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.) A “conclusory characterization of [a] defendant’s conduct as intentional, wilful and fraudulent [is] [a] patently insufficient statement of oppression, fraud, or malice.” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 865.) Facts must be pled to show that a defendant “act[ed] with the intent to vex, injure or annoy, or with a conscious disregard of the plaintiff’s rights.” (Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 462.) “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.” (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) Conduct that is merely negligent will not support a claim for punitive damages. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1288.) Punitive damages “are not a favorite of the law and the granting of them should be done with the greatest of caution. They are allowed only in the clearest of cases.” (Gombos v. Ashe (1958) 158 Cal.App.2d 517, 526.)

Issue No. 1: Second Cause of Action

Due to the second cause of action failing to state a cause of action against Grunfeld as explained above in connection to his demurrer to the second cause of action in the SAC, the Court GRANTS Grunfeld’s request to strike damages allegations, including punitive damages, in connection with the second cause of action in the SAC WITHOUT LEAVE TO AMEND.

Issue No. 2: Third Cause of Action

Grunfeld asserts that this Court has already ruled on Plaintiff seeking punitive damages in connection with the third cause of action in the SAC, and as such punitive damages from Plaintiff’s third cause of action for negligence should be stricken.

“[M]ere negligence, [e]ven gross negligence is not sufficient to justify an award of punitive damages” because “[m]ere spite or ill will is not sufficient” to justify the imposition of punitive damages against a defendant. (Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894.)

Although Grunfeld did not demur to the third cause of action in the SAC for negligence, under Ebaugh negligent conduct is not enough to impose punitive damages.

As such, the Court GRANTS Grunfeld’s request to strike punitive damages in connection with the third cause of action in the SAC WITHOUT LEAVE TO AMEND.

Issue No. 3: Punitive Damages in Connection with the Fourth and Sixth Causes of Action

As indicated above in connection with Grunfeld’s demurrer to the sixth cause of action in the SAC, the SAC fails to plead the sixth cause of action with sufficient facts against Grunfeld. The sixth cause of action cannot warrant imposition of punitive damages against Grunfeld. The Court GRANTS Grunfeld’s request to strike punitive damages from the sixth cause of action in the SAC WITHOUT LEAVE TO AMEND.

The Court finds that Plaintiff has stated facts indicating malice to support punitive damages against Grunfeld pursuant to the fourth cause of action in the SAC. Grunfeld’s demurrer to the fourth cause of action in the SAC was overruled.

The Court incorporates its recitation of pertinent factual allegations from above and applies it to the discussion of punitive damages against Grunfeld pursuant to the fourth cause of action in the SAC.

The SAC clearly shows malice on behalf of Grunfeld. The SAC alleges that he pointed his gun at Plaintiff and shot his gun in the direction of a market where customers were eating. The SAC also alleges that Grunfeld threatened to “next time shoot Plaintiff for real” meaning that he would shoot to kill her. The SAC specifically alleges that Grunfeld, at numerous times, threatened to shoot and kill Plaintiff and that Grunfeld’s intention in shooting was to injure or kill Plaintiff. The SAC further alleges that Grunfeld had animus against inidividuals with Plaintiff’s characteristics.

Therefore, the Court DENIES Grunfeld’s request to strike all references to damages, including punitive damages, pursuant to the fourth cause of action in the SAC.

Issue No. 4: Attorneys’ Fees, Civil Penalties, and Treble Damages

Grunfeld asserts that Plaintiff’s claim for attorneys’ fees, civil penalties, and treble damages cannot survive because the SAC fails to state causes of action pursuant to the fourth and sixth causes of action. Grunfeld, however, fails to cite to any legal authority in his moving papers to support this argument. As such, the Court finds that Grunfeld has conceded on this point of argument. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.)

The Court, therefore, DENIES Grunfeld’s request that because the SAC fails to state a cause of action for violation of the Ralph Act and Bane Act, Plaintiff’s claims for attorneys’ fees, civil penalties, and treble damages should be stricken.

The Court GRANTS IN PART Grunfeld’s motion to strike.

Grunfeld shall have twenty days to answer the SAC.

The respective moving parties are each 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 9th day of March 2020

Hon. Holly J. Fujie

Judge of the Superior Court

[1] Grunfeld did not file a reply brief in connection with his demurrer and motion to strike.

Case Number: 18STCV02222 Hearing Date: March 09, 2020 Dept: 32

shafiqul islam,

Plaintiff,

v.

STATE OF CALIFORNIA, et al.

Defendants.

Case No.: 18STCV02222

Hearing Date: March 9, 2020

[TENTATIVE] order RE:

motion to compel plaintiff’s mental examination

BACKGROUND

Plaintiff Shafiqul Islam (“Plaintiff”) commenced this action against Defendant State of California (“State”) on October 24, 2018. The Complaint asserts seven FEHA-based causes of action: (1) discrimination (race, religion, national origin/ancestry), (2) discrimination (disability), (3) failure to reasonably accommodate, (4) failure to engage in an interactive process, (5) retaliation, (6) harassment, and (7) failure to prevent discrimination, retaliation, and harassment. The Complaint alleges in pertinent part as follows.

Plaintiff is a person of Bangladeshi origin, a Muslim, and disabled person within the meaning of FEHA. Since 1998, Plaintiff has been employed by the California Department of Transportation, an agency of Defendant State, as a transportation engineer. During the course of his employment with the State, Plaintiff was subjected to discrimination, retaliation, and harassment by his supervisors.

DISCUSSION

Defendant State moves to compel Plaintiff to submit to a mental examination.

If a party desires to obtain discovery by a mental examination, the party shall obtain leave of court. (CCP § 2032.310(a).) To obtain leave of court, the moving party must show that (1) the mental condition of the examinee is in controversy (CCP § 2032.020(a)) and (2) there is good cause for the mental examination (CCP § 2032.320(a)).

A. Mental Condition in Controversy

“[A] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 839.)

The State cites to the Complaint and Plaintiff’s deposition testimony to show that Plaintiff’s mental state is in controversy. In the Complaint, Plaintiff alleges that the hostile work environment created by his supervisor exacerbated “his anxiety and depression, resulting in undue stress, shortness of breath, and sleep issues, among other psychological conditions.” (Compl. ¶ 18.) At deposition, Plaintiff testified that he is undergoing therapy with a psychologist as a result of this stress caused by his supervisor. (Pl. Depo. pp. 42-48.) Plaintiff testified that his emotional distress and anxiety is ongoing. (Pl. Depo. pp. 506, 508.) And Plaintiff testified that his supervisor’s actions caused him to take eight months off from work. (Pl. Depo. p. 514.)

The State’s evidence is well-taken. The Complaint’s allegations of emotional distress and Plaintiff’s deposition testimony of the same have placed Plaintiff’s mental condition in controversy in this action.

Relying on Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, Plaintiff responds that his mental condition is not in controversy because his alleged emotional distress is not presently severe. The Court disagrees. First, Doyle simply emphasized that the claimed emotional distress must be “ongoing” in order to warrant a mental examination. (Doyle, supra, 50 Cal.App.4th at 1887 (“The mental condition of a person who is suffering ongoing mental distress is clearly ‘in controversy’ in an action seeking damages for that ongoing mental distress.”).) At deposition Plaintiff testified that his emotional distress is ongoing. (Pl. Depo. pp. 506, 508.) Second, even assuming that a severity requirement was prerequisite, this severity requirement would be met because Plaintiff testified that his present anxiety was an eight on a scale of one to ten. (Pl. Depo. p. 508.)

B. Good Cause

Good cause generally requires a showing of (1) relevancy to the subject matter and (2) specific facts justifying discovery. (Vinson, supra, 43 Cal.3d at 840; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 8:1557.)

A mental examination is relevant to this action because Plaintiff is alleging emotional distress and pursuing emotional distress damages. Specific facts justifying this mental examination include Plaintiff’s deposition testimony that he suffers and continues to suffer emotional distress as a result of the hostile work environment. Hence, good cause supports the State’s demand to examine Plaintiff’s medical condition.

Plaintiff argues that good cause does not support all aspects of this mental examination because the mental examination will probe into matters unrelated to Plaintiff’s alleged emotional distress. This argument is unpersuasive because Plaintiff has presented no evidence showing that this mental examination would delve into inappropriate or irrelevant matters, such as his sexual history and practices. The tests proposed to be administered (recited post) appear reasonably calculated toward assessing the emotional distress claim brought by Plaintiff.

C. Conditions of Examination

A motion to compel a mental examination must specify the time, place, manner, conditions, scope and nature of the examination, as well as the identity and the specialty, if any, of the person who will perform the examination. (CCP § 2032.310(b).)

The State proposes that the medical examination be conducted by Fernando Gonzalez (“Gonzalez”), a licensed psychologist. (Schele Decl. Ex. C.) The State proposes that the examination take place on March 2020 at 9:00 a.m. at 107 S. Fair Oak Ave., Ste 214, Pasadena, CA 91105. (Ibid.) The State notes that the examination will take approximately six to seven hours and will consist of an interview and the administration of the following tests: the MMPI-II or MMPI-IIRF, Beck Depression Inventory-II and Beck Anxiety Inventory, HIT-6, Trauma Symptom Inventory II, Epsworth Sleepiness Study, and Mini Mental State Exam. (Ibid.)

Plaintiff argues that the exams proposed to be administered are irrelevant to his claim for emotional distress damages. The Court disagrees. In the Court’s experience, the eight tests proposed to be administered are all recognized tests for assessing a claim for emotional distress damages where anxiety, depression, stress, and sleeplessness have been alleged. If Gonzalez determines, in his discretion, that one or more tests are unnecessary or improper, Gonzalez is instructed to not implement those tests.

The Court finds the conditions of this proposed mental examination to be acceptable.

D. Safeguards

Plaintiff states that he should be entitled to record the entirety of the examination and testing pursuant to CCP section 2032.530(a). The Court agrees. Section 2032.530(a) provides in pertinent part that “[t]he examiner and examinee shall have the right to record a mental examination by audio technology.” Plaintiff may therefore record the mental examination.

Plaintiff also requests that questions at the mental examination be limited to the relevant time frame of the Complaint. This request is denied. In the FAC, Plaintiff alleges that the State’s misconduct “exacerbat[ed] his anxiety and depression,” indicating that Plaintiff had preexisting anxiety and depression. (Compl. ¶ 18.) Delving into these matters during the examination is appropriate. Further, general background information is presumably necessary for a complete and comprehensive mental examination.

CONCLUSION

The State’s motion to compel Plaintiff to submit to a mental examination is GRANTED. The conditions of the mental examination are those articulated in the State’s motion and in this ruling.

Case Number: 18STCV05137 Hearing Date: March 09, 2020 Dept: 32

Superior Court of California
County of Los Angeles
Spring Street Courthouse, Department 32

Ayad alanizi,

Plaintiff,

v.

akira ishiyama, m.d., et al.,

Defendants.

Case No.: 18STCV05137

Hearing Date: March 9, 2020

[TENTATIVE] order RE:

MOTION FOR SUMMARY JUDGMENT

Background

Plaintiff Ayad Alazizi (“Plaintiff”) filed this medical malpractice action against Defendant Regents of the University of California (“Defendant”). Plaintiff alleges that he sought treatment for a gradual decline of hearing in his right ear, as well as dizziness and tinnitus, on January 31, 2017. Plaintiff alleges that he received an MRI on February 7, 2017, and had surgery on February 15, 2017. Plaintiff alleges that Defendant’s two doctors, Akira Ishiyama, M.D. (“Ishiyama”) and Stellios Karnezis, M.D. (“Karnezis”), failed to properly diagnose the cause of his tinnitus, which lead to Plaintiff’s undergoing an unnecessary surgery. Defendant moves for summary judgment on Plaintiffs’ complaint, or, in the alternative, summary adjudication, arguing that its doctors complied with the standard of care or, in the alternative, nothing Defendants’ doctors did, or failed to do, caused or contributed to the injuries in this case. Plaintiff opposes the motion, which is denied.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law . . . . There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.) In ruling on the motion, “the court may not weigh the plaintiff’s evidence or inferences against the defendant[’s] as though it were sitting as the trier of fact.” (Id. at 856.) However, the court “must . . . determine what any evidence or inference could show or imply to a reasonable trier of fact.” (Ibid., emphasis original.)

EVIDENTIARY OBJECTIONS

The Court sustains Defendant’s objection to the Declaration of Stephen P. Grifka, M.D., with respect to the opinion: “I hold to a reasonable degree of medical certainty that Plaintiff would have opted against surgery and opted for a hearing aid had he known about the lesion.” The Court overrules Defendant’s remaining objections or elects not to rule on them, per Code of Civil Procedure section 437c(q). The Court elects not to rule on Plaintiff’s objections, per Code of Civil Procedure section 437c(q).

DISCUSSION

Defendant argues that its employees met the standard of care in their treatment of Plaintiff. To prevail on a claim for professional negligence against a medical professional, a plaintiff must demonstrate that: (1) a medical professional had a duty to use the skill, prudence and diligence that members of the profession commonly possess and exercise; (2) breach of that duty; (3) an injury that resulted from the breach of that duty; and (4) actual loss or damage resulting from the breach of that duty. (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612.) Expert testimony is the only admissible evidence on breach of the standard of care. (Landeros v. Flood (1976) 17 Cal.3d 399, 410.)

Defendant first argues that its doctors satisfied the appropriate standard of care. Defendant relies on the declaration of Lawrence R. Lustig, M.D. (“Lustig”), a medical doctor who specializes in otolaryngology and neurotology. Lustig states that the treatment Defendant’s employees provided to Plaintiff, specifically the treatment by Ishiyama, complied with the standard of care at all times. (Declaration of Lawrence R. Lustig, M.D., ¶ 8.) Lustig opines that Plaintiff “met the clinical criteria for otosclerosis,” and that diagnosis was not a breach of the standard of care, given the symptoms. (Id., ¶ 8(b).) Lustig opines that Ishiyama ordered an MRI to rule out endolymphatic hydrops, but the appropriate standard of care did not require any additional imaging studies. (Id., ¶ 8(d).) Lustig opines that the failure to diagnose the lesion was not a breach of the standard of care because “[i]t is very rare to have a schwannoma on the same side as ostoclerosis, which Plaintiff ultimate did have” and because “[t]his was also a very small lesion and would not cause the symptoms Plaintiff complained of.” (Id., ¶ 8(i).)

Defendant also relies on a declaration from Ali R. Sepahdari, M.D. (“Sepahdari”), a radiologist. Sepahdari states that the treatment Defendant provided to Plaintiff, particularly the treatment that Karnezis provided, met the standard of care. (Declaration of Ali R. Sepahdari, ¶ 8.) Sepahdari further states that the type of MRI Plaintiff underwent was intended only to rule out endolymphatic hydrops, and that Karnezis correctly concluded that endolymphatic hydrops were not present. (Declaration of Ali R. Sepahdari, ¶¶ 7(d), 8(a).) Sepahdari opines that the failure to detect the “tiny lesion” when initially reviewing the MRI results was not a breach of the appropriate standard of care because “[t]his is a very subtle finding in an area of the auditory canal where lesions are extremely rare” and “[t]he purpose of the study was not to rule in or rule out the presence of any vestibular schwannomas or lesions.” (Id., ¶ 8(c).) In other words, Sepahdari states that because the purpose of the MRI was not to search for lesions, Defendant’s doctors would not have appreciated the existence or significance of the lesion. This evidence is sufficient to satisfy Defendant’s burden to show that its employees complied with the standard of care in their treatment of Plaintiff.

In opposition, Plaintiff proffers the declaration of Stephen P. Grifka, M.D. (“Grifka”), an otolaryngologist. Grifka states that Karnezis and Ishiyama should have informed Plaintiff about the nodule on the cochlear nerve prior to surgery. (Declaration of Stephen P. Grifka, M.D., ¶ 6.) However, Grifka does not state that Karnezis and Ishiyama knew or should have known of the nodule prior to surgery, such that Karnezis and Ishiyama could have informed Plaintiff of the nodule. Although his declaration states that the MRI evidenced “a 2.5 mm nodule along the course of the cochlear nerve,” Grifka does not state that either doctor necessarily would have seen the nodule or appreciated its significance. Indeed, Defendant’s expert, Sepahdari, notes that the MRI was conducted for the purpose of ruling out endolymphatic hydrops, and Defendant’s doctors were not looking for the nodule. (Declaration of Ali Sepahdari, ¶ 8(a).) Sepahdari also notes that while the MRI “does reveal a small, eccentric low signal focus which could be interpreted as a bone projection, a prominent vascular structure, a meningioma, or a schwannoma of the cochlear nerve, all of which are benign conditions. (Id., ¶ 8(b).) In the absence of an opinion from Grifka that any doctor looking at this MRI for endolymphatic hydrops necessarily would have seen the nodule and understood its significance, Grifka’s declaration does not give rise to a triable issue.

Plaintiff also proffers the declaration of Leonard V. Petrus, M.D. (“Petrus”), who reviewed the imaging studies of Plaintiff. Petrus opines that “there is a 2.0-2.5 mm nodule along the course of the cochlear nerve nearing the fundus of the anterior/inferior intra-auditory canal which was concerning for a small cochlear schwannoma.” (Declaration of Leonard V. Petrus, M.D., ¶ 7.) Based upon this, Petrus states that “[i]t is a radiologist’s duty to interpret the results of an MRI and report any and all inconsistencies and abnormalities regardless of severity.” (Declaration of Leonard V. Petrus, M.D., ¶ 7.) However, as discussed above, this declaration does not state that Defendant’s doctors necessarily would have seen the nodule in an MRI conducted solely for the purpose of ruling out endolymphatic hydrops. Nor does Petrus state that any doctor reviewing this MRI would have interpreted this image as an “inconsistency” or “abnormality.” Therefore, Petrus’s declaration does not give rise to a triable issue whether Defendants’ doctors breached the appropriate standard of care.

The Court initially heard this motion on February 4, 2020, and indicated that its tentative order was to grant the motion based upon the shortcomings in these declarations. Plaintiff’s counsel requested a continuance and indicated that his expert witnesses could, in fact, testify that Defendant’s doctors should have identified the issue. Therefore, the Court granted Plaintiff’s request for a continuance.

Plaintiff has proffered supplemental declarations of Grifka and Petrus. In his supplemental declaration, Grifka states that the nodule was “quite visible . . .” on the MRI. (Supplemental Declaration of Stepehn P. Grifka, M.D., ¶ 1.) Grifka further states that “any doctor trained to interpret MRI films” should have seen and reported the nodule. (Supplemental Declaration of Stepehn P. Grifka, M.D., ¶ 2.) This testimony is sufficient to create a triable issue.

CONCLUSION AND ORDER

The motion for summary judgment is denied. Defendant shall provide notice and file proof of such with the Court.

DATED: March 9, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: 18STCV08915 Hearing Date: March 09, 2020 Dept: 32

Superior Court of California
County of Los Angeles
Department 32

DONGYA HONG,

Plaintiff,

v.

DEWAYNE EARL GREEN-SESSION,

Defendant.

Case No.: 18STCV08915

Hearing Date: March 9, 2020

[TENTATIVE] order RE:

motion for terminating sanctions

Plaintiff Dongya Hong (“Plaintiff”) moves for terminating sanctions against Defendant Dewayne Earl Green-Session (“Defendant”). The court has discretion to impose terminating sanction when a party willfully disobeys a discovery order. (Code Civ. Proc., §§ 2023.010, subd. (g), 2030.290, subd. (c).) The court may impose a terminating sanction by striking a party’s pleading. (Code Civ. Proc., § 2023.030, subd. (d)(1).)

In its order of August 28, 2019, the Court ordered Defendant to serve verified responses to requests for production of documents that Plaintiff served on Defendant within thirty (30) days of notice of the order. Plaintiff served Defendant with notice of the ruling by mail on August 29, 2019. Defendant thus had until October 3, 2019 to serve responses in compliance with this Court’s order. Subsequently, Defendant served responses, which contained a verification that was dated August 25, 1984, and did not include a copy of Defendant’s driver’s license, as required. Defendant has thus disobeyed this Court’s order of August 28, 2019.

The Court initially heard this motion on January 13, 2020. In opposition, Defendant’s then-counsel, Michael F. Moon stated that Counsel had been unable to locate Defendant to correct the errors in the verification and obtain a copy of Defendant’s driver’s license. Counsel states that Counsel is prepared to stipulate to liability on behalf of Defendant, or, in the alternative, to request intervention on the part of Allstate Insurance Company (“Insurer”). The Court ruled that a stipulation to liability does not preclude Plaintiff’s right to conduct discovery from Defendant. Accordingly, a stipulation to liability does not moot the motion for terminating sanctions. However, the Court also ruled that if Insurer has a significant interest in this matter, which Defendant cannot protect, then Insurer may have the right to intervene. (See Code Civ. Proc., § 387, subd. (b).) Accordingly, the Court continued to the motion to March 5, 2020.

Defendant’s counsel, Scott B. Spriggs, has filed another opposition and a declaration. The memorandum of points and authorities states: “Defendant’s counsel has made several attempts to get DEFENDANT to properly date the verifications which he previously signed and affixed the wrong date. To date, DEFENDANT has NOT contacted Defendant’s counsel to remedy the same, despite Defense counsel sending personal carrier’s [sic] to Defendant’s known residential address.” (Memorandum of Points and Authorities, p.2:8-11.) In his declaration Spriggs states: “I am working diligently with my client to obtain the verifications and hope to have same served prior to the hearing on the motion, which would thys make the motion moot. Further, I have made several attempts to get DEFENDANT to sign the aforementioned verifications and have not received the signed verifications from client to date.” (Declaration of Scott B. Spriggs, ¶ 3.)

Defendant’s opposition and supporting declaration does not inspire confidence. The responses were due on or before October 3, 2019. Now, five months later, it still is unclear when, if ever, the responses will be done. It appears that Defendant’s counsel has lost contact with his client, and as a result, there is no reason to believe that proper discovery responses will be served.

Plaintiff has noticed both monetary and terminating sanctions against Defendant (but not Defendant’s counsel). The Court must impose graduated sanctions in addressing such issues. The Court finds good cause to impose monetary sanctions at this time, as Defendant has had ample opportunity to provide responses, and the failure to do so constitutes an abuse of the discovery process. Therefore, Defendant is ordered to pay Plaintiff, by and through counsel, sanctions in the amount of $1,810, which was requested by Plaintiff. The Court finds this amount to be fair and reasonable, commensurate with the work required on this issue.

The Court continues the motion insofar as it seeks terminating sanctions. If the monetary sanctions ordered by the Court do not compel compliance, the Court will have no choice but to impose terminating sanctions as a last resort.

CONCLUSION AND ORDER

Plaintiff’s motion is granted with respect to monetary sanctions. The Court orders Defendant (but not Defendant’s counsel) to pay $1,810, by and through counsel, within thirty (30) days of notice of this order.

The Court continues the motion with respect to terminating sanctions to April 15, 2020, at 1:30 p.m. The Court provides notice that if Defendant does not provide verified discovery responses, as required by the Code of Civil Procedure and this Court’s prior orders, the Court intends to grant the motion for terminating sanctions, meaning the Court would strike Defendant’s answer and enter a default judgment against Defendant.

The Court’s clerk shall provide notice.

DATED: March 9, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: 18STCV10187 Hearing Date: March 10, 2020 Dept: 31

MOTION TO DEEM REQUESTS FOR ADMISSIONS ADMITTED.

Background

On December 31, 2018, Plaintiffs Julian Garcia (“Julian”), Erika Mendoza (“Erica”), Xavier Garcia (“Xavier”), Alexander Garcia (“Alexander”), and Brianna Mendoza (“Brianna”) filed the instant action against Defendants Heartland Express, Inc. of Iowa (erroneously sued and served as Heartland Express, Inc.; Heartland Express Services, Inc.; and Heartland Express Maintenance Services, Inc.); A & M Express, Inc.; Sankie Lee Henderson; Jose Reyes Gutierrez Moreno; and Does 1 through 50. The Complaint asserts causes of action for:

Motor Vehicle Negligence, Negligent Entrustment, Negligent Hiring, Negligent Undertaking, Negligent Retention, Negligent Supervision, and Negligent Training; and

Negligence Per Se.

Defendant Heartland Express, Inc. of Iowa (hereinafter referred to as “Defendant”) seeks an order deeming the Requests for Admission, Set One served on Plaintiffs Julian, Erica, Xavier, Garcia, and Brianna (hereinafter collectively referred to as “Plaintiffs”) admitted.

Legal Standard

Code of Civil Procedure section 2033.280 provides in relevant part:

If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply:

(a) The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). . . .

(b) The 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 under Chapter 7 (commencing with Section 2023.010).

(c) The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.

(Code Civ. Proc., § 2033.280(a)-(c).)

Discussion

Defendant moves for an order deeming the Requests for Admission served on Plaintiffs admitted. Defendant argues that on November 13, 2019, it served Requests for Admission, Set One on Plaintiffs. (Fabrega Decl., Exh. A.) Defendant asserts that responses were due on December 18, 2019 and that as of the date of filing of the motion, January 17, 2020, Plaintiffs have failed to provide responses to Defendant’s Requests for Admission, Set One.

The Court finds that Defendant properly served its Requests for Admission on each Plaintiff, the time to respond has expired, and Plaintiffs have failed to provide a timely response.

Based on the foregoing, Defendant’s motions to deem Requests for Admission admitted are GRANTED.

Sanctions

Pursuant to Code of Civil Procedure section 2033.280(c), “[i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.”

Defendant seeks sanctions against Plaintiffs and their counsel of record, Law Offices of Bob B. Khakshooy, in the amount of $3,500.00, $460.00 per motion for 4 motions, consisting of 2 hours spent preparing the moving papers billed at a rate of $200 per hour plus the $60 filing fee and $1,660.00 for the motion related to Plaintiff Julian consisting of 2 hours spent drafting the moving papers, an anticipated 2 hours reviewing an opposition and preparing a reply, and an anticipated 4 hours spent traveling to and appearing for the motion billed at a rate of $200 per hour plus the $60 filing fee.

The Court finds that the amount of sanctions requested is excessive given the relative simplicity of the motions and the lack of oppositions. The Court thus awards reduced sanctions in the amount of $1,800.00, $260 per motion consisting of 1 hour spent preparing the moving papers and the $60 filing fee, plus an additional 1 hour spent attending the hearing.

Conclusion

Defendant’s motions to deem Requests for Admission admitted are GRANTED. Plaintiffs and their counsel of record, Law Offices of Bob B. Khakshooy, are ordered to pay monetary sanctions in the amount of $1,800.00 to Defendant within thirty (30) days.

Moving party to give notice.

Case Number: 19STCV34674 Hearing Date: March 10, 2020 Dept: 19

Defendant Masoumeh Khayat Islami’s Motion for Change of Venue to the Orange County Superior Court is hereby GRANTED.

Defendant’s Request for Award of Attorneys’ Fees and Costs is GRANTED. Counsel for Plaintiff to pay Defendant’s reasonable attorney’s fees of $3,000.00 and any costs and fees for the transfer of this action. within 5 days of receipt of this ruling.

Plaintiff’s request for attorney’s fees is DENIED.

The Court enters Defendant’s proposed order.

Counsel for Defendant to give notice.

STATEMENT OF THE CASE

This case arises in breach of contract. In the Complaint, filed 09/30/2019, Plaintiff F. Bari Nejadpour, Assignee of L.A. Law, Inc. (“Plaintiff”) alleges that Defendant Masoumeh Khayat Islami (“Defendant”) failed to pay outstanding amounts due under the attorney client retainer agreement with regards to various cases in Orange County. The Complaint alleges three counts for breach of contract. None of the contracts are attached to the Complaint.

On 12/24/2019, Defendant filed the instant Motion for Change of Venue, alleging that Defendant resides in Orange County and that the contracts were executed and performed in Orange County.

On 02/11/2020, Plaintiff filed a First Amended Complaint (“FAC”) that attaches the contracts at issue. The FAC changes the Plaintiff’s name to L.A. Law Inc., APC. (also, “Plaintiff”).

GROUNDS FOR MOTION

Defendant Masoumeh Khayat Islami moves for an order pursuant to Code of Civil Procedure section 397 to transfer the venue of this action to the Superior Court of the State of California in and for the County of Orange. The motion is made on the ground that the court designated in the complainant is not the proper court.

Defendant moves for an award of reasonable attorney’s fees incurred in making the motion to transfer, in the amount of $3,000.00 together with any costs and expenses.

DISCUSSION

K.R.L. Partnership v. Sup. Ct. (2004) 120 Cal. App. 4th 490, 496-97, describes the basic framework for determining proper venue:

The term “venue” denotes the particular county within the state where a case is to be heard. [citation] Which county constitutes the proper venue in a particular case is determined according to the venue statutes—section 392 et seq. In applying these statutes to determine the county (or counties) where venue is proper, the courts generally look to the main relief sought, as determined from the complaint as it stands at the time of the motion for change of venue. [citation] Generally (but with numerous exceptions), when the main relief sought in a case does not relate to rights in real property, “the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action.” (§ 395, subd. (a).) When a case is founded on a contractual obligation, venue is also proper “where the contract was in fact entered into.”

(K.R.L. Partnership, supra, 120 Cal.App.4th at 496–497.)

“If a case is filed in a county that is not the proper venue under section 395, the defendant may move to transfer the case to a proper venue.” (Id. at 497.)

Timeliness

As an initial matter, a motion to change venue must be brought “within the time otherwise allowed to respond to the complaint.” (Code Civ. Proc. §396b(a).) Here, the Complaint was filed 09/30/2019 and the proof of service indicates it was personally served on Defendant on 10/30/2019. The instant motion was filed on 12/24/2019. The Opposition does not object to the timeliness of the instant motion. The Court finds that the instant motion is timely. Any objections to timeliness have been waived.

Operative Complaint for Purposes of Motion

“Venue is determined based on the complaint on file at the time the motion to change venue is made.” (Brown v. Sup. Ct. (1984) 37 Cal. 3d 477, 482; see also, K.R.L. Partnership, supra, 120 Cal. App. 4th at 496-97 [“In applying … statutes to determine the county (or counties) where venue is proper, the courts generally look to the main relief sought, as determined from the complaint as it stands at the time of the motion for change of venue.”].)

Again, the Complaint was filed on 09/30/2019. The instant motion was filed on 12/24/2019. Plaintiff filed the First Amended Complaint (“FAC”) on 02/11/2020.

The Court considers the Complaint, not the First Amended Complaint, for purposes of this motion, as it was the operative pleading at the time the motion was filed.

Proper Venue

As described above, venue is generally proper where one or more defendant resides, or where a contract was entered into. (K.R.L. Partnership, supra, 120 Cal.App.4th at 496–497.) Code of Civil Procedure section 395(a) provides, in pertinent part: “Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action.” (Code Civ. Proc., § 395(a).) The statute further provides: “Subject to subdivision (b), if a defendant has contracted to perform an obligation in a particular county, the superior court in the county where the obligation is to be performed, where the contract in fact was entered into, or where the defendant or any defendant resides at the commencement of the action is a proper court for the trial of an action founded on that obligation, and the county where the obligation is incurred is the county where it is to be performed, unless there is a special contract in writing to the contrary.” (Code Civ. Proc., § 395(a).)

Further, in contracts for services intended for personal, family, or household use, venue is proper in the superior court where the contract was signed, where the buyer resided at the time of contract, or where the buyer resides at the commencement of the action. (Code Civ. Proc., §395(b) [“Subject to the power of the court to transfer actions or proceedings as provided in this title, in an action arising from an offer or provision of goods, services, loans or extensions of credit intended primarily for personal, family or household use, . . . the superior court in the county where the buyer or lessee in fact signed the contract, where the buyer or lessee resided at the time the contract was entered into, or where the buyer or lessee resides at the commencement of the action is the proper court for the trial of the action…”].)

A defendant challenging venue has the burden to show facts justifying transfer of venue. (Mission Imports, Inc. v. Sup. Ct. (1982) 31 Cal.3d 921, 929.) Moving parties must negate all possible bases for proper venue (Buran Equip. Co. v. Sup. Ct. (1987) 190 Cal. App. 3d 1662, 1666.)

Here, the Complaint alleges that venue is proper in Los Angeles County because (1) Defendant entered into the contract here, and (2) the contract was to be performed here. (See Compl. ¶ 7.)

Defendant argues that the Complaint is incorrect with regards to the venue allegations because (1) the contracts at issue were signed in Orange County, (2) the contracts at issue were to be performed in Orange County with regard to pending litigation in those courts, and (3) Defendant has resided, and continues to reside in Orange County.

Plaintiff in Opposition concedes that the contracts at issue were signed in Orange County and were to be performed there, and concedes that Defendant resides in Orange County.

The Court considers whether Defendant has met her burden in establishing that venue is improper in Los Angeles County. Defendant has set forth evidence that Defendant has resided in and continues to reside in Orange County, California. (Islami Decl. ¶ 2.) Defendant has set forth evidence that Plaintiff was hired by Defendant in Orange County to represent Defendant in civil matters before the Orange County Superior Court. (Id. ¶3.) Defendant declares that Plaintiff never represented her in Los Angeles County. (Id. ¶ 7.) Defendant avers that she never traveled to Plaintiff’s office in Los Angeles County. (Id. ¶¶ 5, 8.) Defendant declares, and sets forth evidence to show, that the parties met in Orange County in Newport Beach to sign the agreement. (Id. ¶¶5, 6, Ex. 1.) Based on the evidence presented, the Court finds that Defendant has met her burden of showing that venue is not proper in Los Angeles County, and that venue is instead proper in Orange County.

The Court further considers whether Plaintiff’s arguments indicate that Los Angeles is the proper venue. As stated above, “Venue is determined based on the complaint on file at the time the motion to change venue is made.” (Brown, supra, 37 Cal. 3d at 482.) The Complaint does not allege a contractual basis for venue. (See Compl. ¶ 7.) Further, the Complaint does not append any of the contracts at issue. Thus, Plaintiff has failed to establish that venue is proper in Los Angeles based on a contractual provision. The Court declines to further analyze Plaintiff’s forum selection clause arguments, as they to not apply to the initial Complaint.

On the other hand, the Court notes that Plaintiff amended the Complaint on 02/11/2020 in order to allege venue based on the contractual provision. (See FAC ¶ 7.) The FAC appends the contracts at issue. Counsel for Defendant points out on Reply that the venue allegations in the FAC were completely changed from those alleged in the Complaint. (Reply Gulino Decl. ¶3.) Counsel for Defendant declares that he did not receive the FAC until it was emailed to him on 02/25/2020. (Id.) The Court agrees that it is improper for Plaintiff to attempt to defeat Defendant’s motion by filing an amended complaint that is significantly changed to allege a new basis for venue in Los Angeles.

In sum, the Court concludes that Defendant has met her burden in showing that venue is not proper in Los Angeles County because Defendant resides in Orange County and the contracts at issue were entered into, and to be performed, in Orange County. The Court finds that Los Angeles County is not the proper venue and this action should have been filed in Orange County. Accordingly, Defendant’s motion to transfer venue is GRANTED. The action is ordered transferred to Orange County Superior Court.

Attorney’s Fees and Costs

“In its discretion, the court may order the payment to the prevailing party of reasonable expenses and attorney’s fees incurred in making or resisting the motion to transfer whether or not that party is otherwise entitled to recover his or her costs of action. In determining whether that order for expenses and fees shall be made, the court shall take into consideration (1) whether an offer to stipulate to change of venue was reasonably made and rejected, and (2) whether the motion or selection of venue was made in good faith given the facts and law the party making the motion or selecting the venue knew or should have known. As between the party and his or her attorney, those expenses and fees shall be the personal liability of the attorney not chargeable to the party. Sanctions shall not be imposed pursuant to this subdivision except on notice contained in a party’s papers, or on the court’s own noticed motion, and after opportunity to be heard.” (Code Civ. Proc., §396b(b).)

“If the transfer is sought solely, or is ordered, because the action or proceeding was commenced in a court other than that designated as proper by this title, those costs and fees, including any expenses and attorney’s fees awarded to the defendant pursuant to Section 396b, shall be paid by the plaintiff before the transfer is made.” (Code Civ. Proc., §399(a).)

The original Complaint was filed on October 11, 2019. The Complaint failed to allege a basis for venue in Los Angeles. (See Id. ¶ 9.) Defendant attempted to meet and confer with Plaintiff regarding venue. (Gulino Decl. ¶¶6, 7, Ex. 2.) However, Plaintiff rejected the request to change venue. (Gulino Decl. ¶ 8, Ex. 3.) Thereafter, Defendant filed the instant motion on December 24, 2019. In addition, Defendant addressed the motion to change of venue to Orange County in her Case Management Statement filed on January 28, 2020. Plaintiff filed an opposition to the motion on February 24, 2020.

The evidence presented shows that Defendant made the instant motion in good faith based on the law, facts, and pleadings at the time. Defendant’s position with regard to venue in Orange County was reasonable. Plaintiff rejected meet and confer attempts, and instead, improperly filed an amended complaint on February 28, 2020, just several days after filing the opposition to the instant motion. At the Case Management Conference on February 10, 2020, Plaintiff failed to mention that he intended on filing a First Amended Complaint to address the change of venue issue. Based on the facts and evidence before this Court, the Court finds that sanctions against Plaintiff’s counsel, F. Bari Nejadpour, Esq. are warranted under Code of Civil Procedure section 396b(b).

The Court considers Defendant’s request for monetary sanctions in the amount of $3,000.00. Counsel for Defendant declares his billable rate is $400 per hour and he spent 2- ½ hours drafting the instant motion. Counsel declares he will spend 5 hours to review the opposition, prepare a reply, and appear at hearing. (Gulino Decl. ¶11.) The Court finds the hourly rate and total fees of $3,000 are reasonable. The Court considers the tasks performed, the experience and background of counsel, the prevailing hourly rates in the Los Angeles legal market, and the nature of the case. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132).

The Court orders Plaintiff’s counsel, F. Bari Nejadpour, Esq., to pay monetary sanctions in the amount of $3,000 and the transfer fee to Defendant through counsel of record within 5 court days

.

Case Number: 19STCV22776 Hearing Date: March 10, 2020 Dept: 20

Tentative Ruling

Judge David J. Cowan

Department 20

Hearing Date: Tuesday, March 10, 2020

Case Name: Blended Clothing, Inc. v. CLM California Design Corporation

Case No.: 19STCV22776

Motion: Quash Deposition Subpoena

Moving Party: Plaintiff Blended Clothing, Inc.

Responding Party: Defendant CLM California Design Corporation

Notice: OK

Ruling: Plaintiff Blended’s Motion to Quash Deposition Subpoena is DENIED, without prejudice to Chico’s right to oppose the deposition subpoena.

CLM’s request for monetary sanctions is GRANTED in the total amount of $800.00 payable to CLM within 30 days of this order by Blended’s counsel, LPL Lawyers.

Moving party to give notice.

BACKGROUND

On January 18, 2019, Plaintiff Blended Clothing, Inc. (“Blended”) issued a written purchase order to Defendant CLM California Design Co. (“CLM”) for printing services on fabric provided by Blended.

From February 15 to February 19, Blended sold shirts printed by CLM to retailer Chico’s FAS, Inc. (“Chico’s).

On March 24, 2019, Chico’s gave Blended notice of issues with colors bleeding from the provided shirts.

On June 27, 2019, Blended filed a Complaint against CLM stating causes of action for breach of contract, fraud, and breach of the implied covenant of good faith and fair dealing.

On July 9, 2019, Blended filed its First Amended Complaint against CLM stating causes of action for breach of contract, negligence, equitable indemnity, and declaratory relief.

On September 4, 2019, CLM filed a Cross-Complaint against Blended, stating causes of action for open book account, account stated, services rendered, and reasonable value of services rendered. CLM also filed an Answer to the First Amended Complaint.

On October 1, 2019, CLM served Blended with a Notice of Deposition Subpoena for Production of Business Records directed to Chico’s, seeking production of documents related to the “Project” between Blended and Chico’s involving CLM’s shirts.

On October 25, 2019, Blended filed a Motion to Quash Deposition Subpoena.

On February 26, 2020, CLM filed an Opposition to the Motion to Quash.

On March 3, 2020, Blended filed a Reply.

DISCUSSION

Initially, the Court notes the Motion to Quash is unusually brief—the memorandum of points and authorities is only one page long. Blended argues any requests for documents from 2018 to present are overbroad, since Blended issued its purchase order to CLM on January 18, 2019 and the damages occurred in March of 2019. Blended argues Requests no. 5-7 are “vague and ambiguous” because they use the phrase “sample approval phase.” However, “sample approval phase” is defined in the subpoena itself, and Blended does not elaborate on how the term is vague or ambiguous. Finally, Blended argues Requests no. 9-11 and 13-19 seek private or confidential material protected by “confidentiality provisions, along with state and federal trade laws.” Blended fails to explain what it means by “confidentiality provisions,” fails to identify any applicable state or federal trade law, and does not provide any facts or argument in support of its assertion of privilege. (See CCP § 2031.240(c)(1) (“If an objection is based on a claim of privilege . . . the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log”)) On the whole, the Motion to Quash fails to apprise CLM of the grounds for Blended’s privilege and ambiguity objections.

In its Reply, Blended substantially expands on its arguments and introduces new arguments. The Reply is five times longer than the original Motion to Quash. The Court will not consider any arguments raised for the first time in the Reply, as considering those arguments would severely prejudice CLM, which was unfairly deprived of an opportunity to respond to those points. Specifically, Blended argues for the first time that CLM failed to establish “that it does not possess the material to be discovered or if in its possession, that the material is unreliable”; that the subpoena improperly “attempt[s] to place the burden and cost of supplying information equally available to both [parties] solely upon the adversary”; that the phrase “Project,” as used in the subpoena, fails to sufficiently identify the requested information; and that the subpoena improperly seeks documents “regarding parties that are not part of this case or the project.” Additionally, Blended’s Reply expands its ambiguity argument from the Motion, now arguing the phrase “sample approval phase” is vague and ambiguous because it “references fact that lack any foundation and do not pertain to the subject matter”—i.e., reference facts not raised by Blended. This “lack of foundation” argument is, once again, newly raised in the Reply, and CLM was deprived of an opportunity to respond to it. These new arguments will be disregarded, as it would be highly improper and prejudicial for the Court to consider them.

Blended argues that “information such as costing, prices, trends, design processes, and manufacturing methods qualify as trade secrets that should not be disclosed without appropriate redaction.” Blended does not identify any “state . . . trade law,” even though it previously asserted protection thereunder. Indeed, Blended only cites 18 USC § 1839(3)—and its quote is highly misleading. Blended claims the “term ‘trade secret’ is defined in part as “all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing.” (18 USC § 1839(3)) Blended intentionally omits the critical part of the definition providing that the above only constitute trade secrets “if . . . the owner thereof has taken reasonable measures to keep such information secret; and . . . the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.” (Id.)

Blended has made absolutely no showing that any of the requested documents seek information Chico’s has taken “measures to keep . . . secret” or information that derives its value from staying secret. Indeed, Blended has not submitted any evidence (e.g., by affidavit) that the subpoena would impact Chico’s interests or uncover trade secrets. Accordingly, Blended’s assertion of trade secret privilege is baseless. Should Chico’s find that the requests impinge on its trade secrets, it is within its rights to oppose the deposition subpoena.

Blended also narrows its overbreadth argument, specifically arguing the only relevant time period for discovery from Chico’s is January 18, 2019 to April 15, 2019. This is unjustifiably narrow—CLM has indicated its defenses are based in part on events during the sample approval phase that began before January 18, 2019. (See Opposition, Ex. 2) Additionally, as CLM points out, every request for documents “2018-present” are limited to documents “regarding the Project,” which CLM claims began back in 2018. Blended does not address this point in its Reply, and simply claims that requests for documents before January 18, 2019 are overly burdensome and invade privacy. The Court also notes that Blended did not the proposed April 15, 2019 cutoff date in its Motion, so CLM could not address this in its Opposition.

Finally, Blended requests a protective order if the Court denies its Motion to Quash; however, these orders can only be granted “on motion of any party or other person affected by discovery sought.” (CCP 2017.020(a)) Here, Blended did not move for a protective order, and Blended has not indicated how the Court should restrict discovery. It is not clear the Court has unlimited discretion to fashion a protective order as it sees fit without input from the party requesting the order. Moreover, Blended fails to provide any separate grounds to limit discovery other than those already rejected above. Blended’s request for a protective order is denied.

CLM argues Blended brought this Motion to Quash solely to prevent CLM from obtaining discovery necessary for its defense. CLM intends on arguing that the fabric bleeding problems were caused by Blended improperly switching fabrics after the sample approval phase. As evidence for this point, CLM notes that Blended’s original Complaint alleged CLM had sold it inferior quality fabric which caused bleeding, but following the July 8, 2019 exchange where CLM states its anticipated defenses, Blended amended its complaint to allege that CLM’s printing on the fabric caused the bleeding instead. Indeed, Blended’s attempt to exclude any reference to a “sample approval phase,” its amendment to the Complaint, and its Motion to Quash all indicate Blended’s interest in suppressing evidence of previous fabric testing. Such evidence is critical to CLM’s proposed defense, and Blended has failed to adequately show any reason to restrict discovery. For the foregoing reasons, the Motion to Quash is DENIED. However, this order does not preclude Chico’s from opposing the deposition subpoena.

Sanctions

CLM has requested $2,000 in sanctions under CCP 1987.2 and CCP 2023.030(a). CCP 1987.2 authorizes the Court to “award the amount of the reasonable expenses incurred in making or opposing the motion [to quash a subpoena], 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.” Here, as explained above, Blended’s motion was apparently made in bad faith as part of a concerted effort to deprive CLM of access to discovery critical to its defense. Additionally, Blended’s tactical decision to make the vast majority of its argument in the Reply—depriving CLM of an opportunity to respond—constitutes bad faith litigation conduct. Finally, Blended failed to provide more than minimal support for its arguments, so the Motion was made without substantial justification. However, as the Court has indicated it will not consider several of Blended’s arguments in ruling on the motion, and part of CLM’s Opposition was not prompted by the content of Blended’s Motion, it appears reasonable to reduce the sanctions imposed. Accordingly, the Court GRANTS CLM’s request for monetary sanctions in the reduced amount of $800.00 for two hours of work at a rate of $400 an hour.

CLM’s request for monetary sanctions is GRANTED in the total amount of $800.00 payable to CLM within 30 days of this order by Blended’s counsel, LPL Lawyers.

Evidentiary Objection

CLM’s evidentiary objection to the Declaration of Ginam Lee submitted in support of the Motion to Quash Deposition Subpoena is GRANTED. “[D]eclarations setting forth only conclusions, opinions or ultimate facts are to be held insufficient.” (Greshko v. County of Los Angeles (1987) 194 Cal.App.3d 822, 852)

CONCLUSION

Blended’s Motion to Quash Deposition Subpoena is DENIED. Chico’s is not hereby precluded from opposing the deposition subpoena.

CLM’s request for monetary sanctions is GRANTED in the total amount of $800.00 payable within 30 days of this order by Blended’s counsel, LPL Lawyers.

Moving party to give notice.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ROBERTO CONTRERAS,

Plaintiff,

vs.

GENERAL MOTORS, LLC, etc., et al.,

Defendants.

CASE NO.: 19STCV24022

[TENTATIVE] ORDER RE: MOTION TO DEEM REQUESTS FOR ADMISSION, SET ONE AS ADMITTED AND FOR MONETARY SANCTIONS

Date: March 10, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Plaintiff Roberto Contreras

RESPONDING PARTY: Defendant General Motors LLC

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiff’s complaint arises from alleged mechanical issues he experienced with respect to a 2018 Chevrolet Traverse. Plaintiff filed a complaint against Defendants alleging causes of action for: (1) violation of the Song-Beverly Act—Breach of Express Warranty; (2) violation of the Song-Beverly Act—Breach of Implied Warranty; and (3) negligent repair.

Plaintiff filed a motion for an order deeming the following requests for admission as admitted: 6-11; 13-15; 23-25; 34-36; 41; 46-48; 54-56; 64-67; 73-76; 83-84; 86; 94-96; 102-104; 106-109; 111-112; and 118-119. Plaintiff also requests monetary sanctions against Defendant and/or its counsel in the amount of $4,186.44.

Plaintiff asserts that he served his request for admissions, set one on Defendant. Plaintiff contends that despite granting Defendant four extensions, Defendant produced unverified responses and objections signed by Defendant’s counsel only.

Defendant opposes Plaintiff’s motion on the grounds that: (1) it provided verifications before the hearing on this motion and the requests therefore must not be deemed admitted; (2) Plaintiff’s counsel breached a duty of civility to apply the most reasonable means of obtaining Defendant’s discovery verifications; (3) sanctions against Defendant and/or its counsel are inappropriate, and Plaintiff’s sanctions request is inflated, vague, and improper; and (4) Plaintiff’s counsel should be ordered to show cause why they should not be sanctioned for breach of this Court’s guidelines of civility in litigation.

Tertiary Arguments

Defendant asserts that Plaintiff refused to initiate correspondence to Defendant’s counsel regarding the missing verifications and instead looked to the Court for what is ultimately a sanctions demand.

“Litigation is supposed to be a search for the truth.” (Rosales v. Thermex-Thermatron, Inc. (1998) 67 Cal.App.4th 187, 199.) A party cannot abandon “its part of the search in favor of tactics that made plaintiff’s pretrial discovery more burdensome.” (Id.) Attorneys that “fail to extend common courtesies to their opposition” can be sanctioned. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487.) The Los Angeles Superior Court Guidelines for Civility in Litigation states that “[b]efore filing a motion, counsel should engage in more than a mere pro forma discussion of its purpose in an effort to resolve the issue.” (Shugart Decl, Exhibit D at Appendix 3.A., subdivision (h)(1).) In the context of a motion to deem requests for admissions as admitted “there is no meet and confer obligation at all.” (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 777.) “The propounding party need give no warning . . . it simply files a motion to deem the matters covered by the requests admitted.” (Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395.)

The Court does not find Defendant’s argument persuasive. The Court will not sanction Plaintiff for his failure to meet and confer before filing his motion and the Court will not deny his motion on such basis. As St. Mary holds, there is no meet and confer requirement with respect to a motion to deem requests for admission as admitted.

EVIDENTIARY OBJECTIONS

The Court SUSTAINS Defendant’s evidentiary objections numbers 1 and 2 to the evidence submitted in connection with Plaintiff’s reply brief.

DISCUSSION

Where requests for admission are propounded on a party and that party fails to serve a timely response that party waives any objection to the requests. (Code Civ. Proc. § 2033.280(a).) California Code of Civil Procedure, Section 2033.280(b) provides that “[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.” Nevertheless, if a “party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220” then the court cannot order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (Code Civ. Proc. § 2033.280(b)-(c).) “It is mandatory that the court impose a monetary sanction . . . on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated [a] motion.” (Code Civ. Proc. § 2033.280(c).) “[U]nsworn responses are tantamount to no responses at all.” (Allen-Pacific, Ltd. v. Superior Court (1997) 57 Cal.App.4th 1546, 1551.) The court “must grant a motion to have admission requests deemed admitted where responses have not been served prior to the hearing or, if such responses were served, they were not in substantial compliance.” (Id.) “The party to whom the requests for admission are directed shall sign the response under oath, unless the response contains only objections.” (Code Civ. Proc. § 2033.240(a).)

Declaration of Plaintiff’s Counsel

Plaintiff’s counsel, Daniel Inscore (“Inscore”), declares that: (1) on July 30, 2019, Plaintiff served Plaintiff’s Requests for Admissions, Set One on Defendant (Inscore Decl. at ¶ 2 and Exhibit 2); (2) Plaintiff agreed to four extensions for Defendant to respond to written discovery (Id. at ¶¶ 3-6); (3) on October 15, 2019, Defendant served unverified responses (Id. at ¶ 7 and Exhibit 3; (4) Defendant has not served timely verified responses which amounts to no response at all (Id. at ¶ 9); (5) due to Defendant’s failure to respond, Plaintiff has incurred and will incur reasonable costs and attorneys’ fees for bringing this motion in the amount of $4,186.44 which includes $4,000.00 for attorneys’ fees, $126.44 for mileage, and a motion fee of $60.00 (Id. at ¶ 10); (6) his hourly billing rate is $400.00 per hour and he spent 4 hours drafting the moving papers (Id. at ¶ 10); (7) based on his experience he will spend 6 hours of additional time to prepare the reply on this motion, prepare for oral argument, and attend the hearing (Id.); and (8) he estimates the total fees incurred will be $4,000.00. (Id.)

Declaration of Defendant’s Counsel

Defendant’s counsel, Jonathan M. Shugart declares that: (1) when he learned of Plaintiff’s motion he realized that he inadvertently failed to send the verifications that Defendant provided him (Shugart Decl. at ¶ 8); and (2) he provided the verifications to Plaintiff’s counsel. (Id. at ¶ 12 and Exhibit C.)

Analysis

Due to Defendant’s serving responses before the hearing date on this motion which are in substantial compliance pursuant to California Code of Civil Procedure, Section 2033.220, the Court cannot make an order deeming the requests admitted and will only rule on the request for monetary sanctions.

The Court exercises its discretion and GRANTS Plaintiff’s request for monetary sanctions in the reasonable amount of $1,200.00 which represents 3 hours of work on Plaintiff’s motion. Sanctions are to be paid by Defendant and its counsel of record, jointly and severally, to Plaintiff within 20 days of the date of this order. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)

Moving party is 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 10th day of March 2020

Hon. Holly J. Fujie

Judge of the Superior Court

Filed 3/10/20 Marriage of Shinozuka and Feng CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of MASANOBU SHINOZUKA and MARIA FENG.

MASANOBU SHINOZUKA,

Respondent,

v.

MARIA FENG,

Appellant,

HITTELMAN STRUNK LAW GROUP, LLP,

Real Party in Interest.

G056461

(Super. Ct. No. 17D004015)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Michael J. Naughton, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Law Offices of Marjorie G. Fuller and Marjorie G. Fuller for Appellant.

Serbin & Carmeli and Michele Carmeli for Real Party in Interest Hittelman Strunk Law Group.

I. INTRODUCTION

Masanobu Shinozuka (Masanobu) had been a brilliant professor of civil engineering. He taught at both Columbia and UCI until he retired in May 2016. He was an expert in earthquake engineering and a wealthy man. He and his second wife, Maria Feng (Maria), also a professor of civil engineering at Columbia and UCI, accumulated an estate worth around $15 million. But by January 2017, at least two UCI-connected doctors had opined Masanobu, at age 85, was suffering from dementia.

Masanobu had been living with Maria at their home in Newport Coast for about six months. But his daughter from his first marriage and his daughter-in-law thought he was being badly cared for by Maria. Maria, for her part, was worried the daughter and daughter-in-law were out to raid Masanobu’s fortune. On April 27, 2017, the daughter and daughter-in-law took Masanobu, over Maria’s protests, from his Newport Beach residence to their home in New Jersey. Less than three weeks later, Masanobu filed a petition for dissolution of his marriage to Maria in Orange County Superior Court.

Our record in this appeal is the story of Maria’s legal efforts over the next year and half to prevent a court from entering a judgment of dissolution of her marriage before Masanobu’s death. Those efforts included: (1) an elder abuse action filed in Orange County Superior Court; (2) a separate conservatorship action also filed in Orange County Superior Court; (3) a motion to quash Masanobu’s dissolution petition in Orange County Superior Court on the ground he was mentally incompetent to file the petition in the first place, and, finally, (4) the subject of this appeal, a second motion to quash the dissolution petition on the ground of noncompliance with Family Code section 2320.

Section 2320 provides that no judgment of dissolution may be entered unless “one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition.” Maria’s theory is that neither she nor Masanobu was a resident of California on the date he filed his petition for dissolution, May 15, 2017. According to Maria, the family law court therefore had no subject matter jurisdiction to enter any orders in Masanobu’s dissolution action other than to dismiss the case.

Three California Supreme Court cases construing the predecessor to section 2320 say noncompliance with the statute is not jurisdictional and any objection to its noncompliance can be waived. As we show below, Maria waived her objection based on noncompliance with section 2320 in two undeniable ways: (1) she made her motion too late and (2) she judicially estopped herself from contesting the factual issue of residency by swearing to Masanobu’s and her own California residency multiple times. We therefore affirm the trial court’s order denying Maria’s motion to quash Masanobu’s petition based on section 2320.

II. BACKGROUND

There is no dispute that as of April 27, 2017, Masanobu was living in a home on Twilight Bluff in Newport Coast, California. He had taken up residence there in June 2016, upon his retirement from Columbia. But Maria had moved her sister and her sister’s husband into the house as well. In Masanobu’s words, Maria “left me to live in a smaller room in my own home, while they lived in the majority of the house.” Maria neglected Masanobu to the point where she missed more than 10 doctor appointments.

What exactly happened on April 27, 2017, when Masanobu was removed from his home in Newport Coast is a matter of dispute. Was it an abduction or a rescue? According to a declaration prepared for Masanobu in a conservatorship action, he had already decided he “no longer wanted to live in California and instead wanted to move to New Jersey permanently.” He said he asked his children to “assist” him. According to Maria, his daughter Megumi and his daughter-in law Rei simply showed up at the Twilight Bluff residence unannounced, said they were taking him to lunch, then, seven hours later, returned to gather his belongings while keeping him locked in the car. The whole group then left for New Jersey.

Two and a half weeks later, on May 15, 2017, Masanobu filed a petition in Orange County Superior Court (case No. 17D004015 (“the Dissolution action”)) to dissolve his marriage with Maria. The petition did not list a date of marriage and gave April 26 – the day before the move to New Jersey – as the date of separation. Maria immediately reacted on three separate legal fronts:

First, on May 25, 2017, Maria filed an elder abuse case (case No. 30-2017-00922670 (“the Elder Abuse action”)) in Orange County Superior Court, alleging Masanobu had been removed from his home “over the objections of his wife” when he was “suffering from Severe Dementia.” Maria asserted the court had jurisdiction, stating, under penalty of perjury, that “[Masanobu] is a California resident, as confirmed by the Petition for Dissolution, and he is also a registered voter in California. [Masanobu] and I jointly own our home and other properties in California. Therefore, jurisdiction lies properly with this court.”

Second, on June 5, 2017, in the Dissolution action, instead of filing a standard response to Masanobu’s petition, Maria filed a motion to quash Masanobu’s

dissolution petition for lack of mental competency on Masanobu’s part (“Quash 1”). She alleged Masanobu’s signatures on the petition for dissolution were forged.

And third, on June 26, 2017, Maria filed a petition to impose a formal conservatorship on Masanobu (case No. 30-2017-00928104 (“the Conservatorship action”)). This was five days after the Elder Abuse action had been dismissed because the trial judge in the case determined the court had no jurisdiction since Masanobu was then physically in New Jersey.  

As in the Elder Abuse action, Maria’s petition in the Conservatorship action – again signed under penalty of perjury – alleged that Masanobu was a resident of California, living on Twilight Bluff in Newport Coast. Her petition accused Megumi and Rei of “abducting the Proposed Conservatee from his home in California and removing him to New Jersey[.]” It asked the court to “return him to his California residence in Orange County.” Maria herself was the proposed conservator, and she gave as her address the same address on Twilight Bluff her petition asserted was also Masanobu’s residence.

Masanobu counterattacked on the two remaining legal fronts in late June and early July 2017. First, in the Dissolution action, Masanobu’s attorneys sought money to fund his forthcoming divorce. Specifically, in late June 2017, Masanobu sought access to funds from which he claimed Maria had locked him out. His counsel filed a request for order (RFO) seeking return of Masanobu’s identification cards, an accounting of his retirement income then under Maria’s control, and an order changing his direct deposits to accounts in his, not Maria’s, control. Masanobu’s counsel followed up the next month by filing an amended petition in the Dissolution action giving a slightly different date of separation – now April 27 instead of the original April 26 – and filling in the date of marriage (October 15, 1996).

The second counterattack was in the Conservatorship action. Masanobu opposed the appointment of Maria as his conservator. To that end, on July 7, 2017, Attorney Payson Lederman, then purporting to represent Masanobu, prepared a declaration. The declaration was verified but not signed by Masanobu, and it would later form the core of Maria’s appeal in the present action. We say “purporting” to represent Masanobu because Attorney Lederman wasn’t in the Conservatorship action for very

long – less than one week according to the filings in our record – before he was removed by the judge in the Conservatorship action.

But it was the declaration Lederman prepared that would supply the grist for this appeal. After relating how Maria had neglected him in Newport Coast, Masanobu asserted an intention to remain in New Jersey permanently, not just stay there temporarily: “Eventually, I decided for sure that I no longer wanted to live in California and instead wanted to move to New Jersey permanently. I also realized that I no longer wanted to be married to Maria. I asked my children to assist me in moving to New Jersey and on April 27, 2017, they came to get me.” The court in the Conservatorship action denied Maria’s request for appointment as Masanobu’s temporary conservator, though she continued to seek a permanent appointment.

Back on the Dissolution front, on August 9, 2017, Masanobu’s attorneys had taken Maria’s default on the July 5 amended petition. About a month later, the two sides stipulated to having the default vacated, “pending a ruling” on Maria’s Quash 1 motion. Additionally, on September 1, 2017, Maria agreed to advance $85,000 to Masanobu’s attorneys (Hittelman Strunk Lawgroup) for pendente lite attorney fees and costs. It would be more than half a year before the family law court would rule on Quash 1. From the record before us, it appears nothing happened in the Dissolution action until April 23, 2018, other than Maria’s switching family law attorneys early in the year.

In the Conservatorship action, Maria’s deposition was taken in November 2017. Her testimony contradicted Lederman’s prepared declaration averring that Masanobu had gone to New Jersey intending to live there permanently. Rather, Maria testified (several times) that she spoke with Masanobu after his move to New Jersey in

April 2017, each time Masanobu making it clear he was only staying in New Jersey “for the moment” or words to that effect.

Also in the Conservatorship action, an attorney representing Masanobu argued he was still compos mentis – at least enough to “participate meaningfully in the litigation now” – but with every day that passed, Masanobu was “at risk for further deterioration of his cognitive functioning.”

Finally, in January 2018 Maria threw in the towel in the Conservatorship action. She withdrew her petition January 26, 2018; the court entered an order formally dismissing the case on February 1, 2018.

That left the Dissolution action as the last battlefield. On April 23, 2018, Maria’s new family law attorney filed a second motion to quash Masanobu’s petition and amended petitions for dissolution (“Quash 2”). This time her theory was that the family law court never acquired subject matter jurisdiction over the dissolution of her marriage to Masanobu. Her main proof was the declaration prepared by Lederman in the Conservatorship action which had Masanobu saying he wanted to live in New Jersey permanently.

In this new round of residential musical chairs, Maria took a diametrically opposite position from the one she had taken previously. Maria’s new position was that Masanobu was a resident of New Jersey when the May 15 petition and July 5 amended petition were filed and Maria herself was a resident of Manhattan as of both dates.

But counsel’s new theory created a timing problem. By court rule, motions to quash in family law court must be filed “within the time permitted to file a response” to a dissolution petition. Even assuming the deadline began running as late as the service of Masanobu’s amended petition filed July 5, 2017, more than nine months had gone by since then. Maria’s solution was to assert that because Quash 1 had yet to be decided, Quash 2 would still be timely if it was considered and ruled on prior to Quash 1. So Maria sought an ex parte motion to continue Quash 1.

Fortunately for Maria, the family law judge was agreeable to hearing Quash 2 before Quash 1. The hearing date set for Quash 2 was set for Monday May 21, 2018, while the hearing date for Quash 1 was moved back to Thursday May 24.

Masanobu’s opposition to Quash 2 was equivocal about his residency in New Jersey – basically he asserted that he thought he was a resident of California when he filed the May 15 and July 5 petitions. But the focus of Masanobu’s opposition was procedural: He asserted Quash 2 was untimely and Maria was judicially estopped to assert that Masanobu was a New Jersey resident when she had repeatedly sworn that Masanobu was a California resident. As against the declaration prepared for Masanobu by Attorney Lederman, Masanobu’s opposition to Quash 2 noted that not only had Maria sworn Masanobu was a California resident several times, but she had actually obtained affirmative relief from the California court in the Elder Abuse action by way of a temporary restraining order issued by the court. That restraining order effectively kicked Magumi and Rei out of their house (so as to comply with the order to stay away from Masanobu), causing them to incur expenses amounting to “tens of thousands of dollars [for having to reside] in motels, for meals, and for attorneys’ fees.”

The family law judge denied Quash 2. He reasoned that Maria had waived her challenge based on section 2320 by not filing Quash 2 within 30 days of the original May 15 petition. He rejected the idea that Quash 1’s pendency made Quash 2 timely. He also concluded that judicial estoppel “tends to apply” because Maria had taken “truly inconsistent positions.”

Given the narrow time span before Quash 1 was going to be heard, Maria’s counsel prepared the formal findings and order after the May 21 hearing on Quash 2. The family law judge signed the document that day. The findings and order – surprisingly – do not mention judicial estoppel as one of the reasons given by the trial court for the denial. Rather, it mentions only Quash 2 being untimely under rule 5.63 and that there were no obstacles in terms of “fundamental fairness” or due process in proceeding with the Dissolution action in California.

On May 24, Quash 1 was finally heard. And denied. The family law judge concluded that by rejecting Maria’s quest to be appointed temporary conservator back in July 2017, the court in the Conservatorship action had impliedly found Masanobu sufficiently mentally competent to seek a dissolution of his marriage.

Five days later, on May 29, 2018, a third hearing was held in the Dissolution action. This one focused on Masanobu’s attempt to obtain pendente lite attorney fees filed back in August 2017. The result was a formal order, filed May 31, 2018, requiring Maria to disperse $125,000 to the Hittelman Strunk Lawgroup for pendente lite attorney fees. It is that order from which Maria timely appealed June 18, 2018.

III. DISCUSSION

A. Appealability

The notice of appeal says it is the order filed May 31, 2018, that is being appealed. But that order is most assuredly not what appellant Maria is really challenging in this appeal. The opening brief is inescapably clear that the only question presented is whether the trial court lacked subject matter jurisdiction over Masanobu’s dissolution petition. Subject matter jurisdiction was adjudicated in Quash 2, decided May 21, not May 29 and then later embodied in an order of May 31.

The problem for Maria is that she cannot directly appeal from the May 21 order denying Quash 2. It is an interlocutory order not made specifically appealable in section 904.1 of the Code of Civil Procedure.

That said, Maria’s whole point is that the trial court never had subject matter jurisdiction to make any order in the Dissolution action, other than perhaps to make an order saying it had no jurisdiction and dismiss the case. If Maria is correct, the trial court had no authority to enter even the May 31 order.

And the May 31 order itself is most certainly appealable, since it is well established in family law that pendente lite attorney fee orders are appealable as collateral matter. (E.g., In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1311.) We thus have jurisdiction to consider Maria’s argument that noncompliance with section 2320 deprived the family law court of subject matter jurisdiction, despite the fact the order from which she is appealing is not the one she really wishes to challenge.

B. The Merits

The family law judge denied Maria’s motion in Quash 2 on the basis it was not timely under California Rules of Court, rule 5.63. Timeliness would require filing within 30 days of the service of the petition for dissolution. (See section 2020 [“A responsive pleading, if any, shall be filed and a copy served on the petitioner within 30 days of the date of the service on the respondent of a copy of the petition and summons.”].)

The judge correctly concluded Quash 2 was not timely. We quote the salient parts of rule 5.63 in the margin. It provides that lack of legal capacity to sue is a basis for moving to quash different from the failure to meet the residency requirements of section 2320. The two grounds are distinct, as are the additional grounds of a prior judgment or another action pending.

This structural separation has logical consequences, namely that one ground to quash does not cover any other ground to quash. Thus if the respondent in a dissolution case has multiple reasons to quash (say, both lack of residency under section 2320 and lack of legal capacity), there is no reason the respondent cannot assert both in the same motion. A timely motion to quash for reason A thus cannot excuse a second, untimely motion to quash for reason B.

Maria’s theory that one timely motion on one ground is sufficient to make a second motion on another ground timely is too susceptible to manipulation to be consonant with the rule. This case furnishes a great example of that danger: Masanobu filed for dissolution on May 15, 2017. Maria’s argument that he wasn’t a resident of California wasn’t decided until more than a year later, on May 21, 2018. What is particularly problematic about the delay here is that Maria’s motion to quash for lack of compliance with section 2320 was based completely on facts discovered more than 30 days after Masanobu’s May 15 petition. Maria had no facts to bring a section 2320 motion to quash within 30 days of the service of Masanobu’s petition on her.

However, it is not a sufficient answer to Maria’s appeal to say Quash 2 was untimely. A rule of court cannot contradict a statute. (E.g., In re Jesse W. (2007) 157 Cal.App.4th 49, 63-64.) If Maria is right that noncompliance with section 2320 deprives the family law court of subject matter jurisdiction, then the fact Quash 2 was untimely under rule 5.63 – or that Maria waived her objection under rule 5.63 – is irrelevant. “Subject matter jurisdiction . . . cannot be conferred by waiver, consent, or estoppel.” (E.g., Sullivan v. Delta Airlines, Inc. (1997) 15 Cal.4th 288, 307, fn. 9.)

But Maria is not right about section 2320 being a matter of subject matter jurisdiction. Seldom do we have a case which is resolved by three California Supreme Court cases on point, but this is one of them.

California has had a statutory residence requirement to institute a proceeding for “divorce,” (later “dissolution”) since 1872. Prior to the enactment of the Family Code, those requirements were set forth in former section 128 of the Civil Code. Whether those requirements had to be met for the trial court to have subject matter jurisdiction was first examined in In re Estate of McNeil (1900) 155 Cal. 333 (McNeil), and the answer the high court there provided was a resounding “No.”

McNeil was a battle between a first wife and a second wife over a rich man’s estate. The trial court ruled the second wife was the true surviving wife, and the first wife appealed. She argued that when the rich man obtained a default divorce from her in 1892, there was no compliance with former Civil Code section 128. (McNeil, supra, 155 Cal. at p. 339.) The high court said that noncompliance with the Civil Code made no difference: the trial court acquired subject matter jurisdiction regardless. We quote the definitive language of the McNeil opinion, which eviscerates the argument the residency requirement of section 2320 must be complied with for subject matter jurisdiction to exist:

“If we assume that there is force in either of these objections [noncompliance with former [Civil Code] section 128 and an argument there was no evidence to support divorce on the ground of extreme cruelty], it is apparent that they go solely to the question whether or not the complaint sufficiently stated facts warranting a divorce, and that the alleged defects in no degree affected the jurisdiction of the court to hear and determine the action, provided the court obtained jurisdiction of the person of the defendant. This is, of course, obvious as to any defect in the allegations of acts of cruelty, and, we think, equally clear as to any defects in allegations of residence. The superior court is by the constitution given general jurisdiction of actions for divorce. Under this grant, when a complaint is filed asking for a divorce the court at once acquires jurisdiction of the subject-matter of the action regardless of whether or not the complaint states facts warranting the granting of a divorce, and when it has obtained jurisdiction of the person of the defendant, it has the power to hear and determine the cause. . . . Section 128 of the Civil Code, relative to residence of the plaintiff, does not impose any limitation on the jurisdiction of the superior court in the matter of divorces, but simply prescribes certain facts as essential to the making out of a case warranting a divorce, and allegations in regard to residence stand upon the same footing as any other allegation of facts showing the right to a divorce. If they are defective in any respect and the court nevertheless holds them to be sufficient, we have nothing more than error in the exercise of jurisdiction.” (McNeil, supra, 155 Cal. at p. 339-341, italics added.)

The second case, Bullard v. Bullard (1922) 189 Cal. 502 (Bullard), even more acutely shows that section 2320 does not implicate subject matter jurisdiction because in Bullard, the court actually enforced the statutory residency requirement and still made it clear subject matter jurisdiction was not involved.

In Bullard, a wife living in San Francisco filed for separate maintenance. Her husband lived in Alameda County. But he filed a cross-complaint for divorce in the wife’s action in San Francisco. The husband prevailed in the San Francisco action despite his failure to allege the wife resided in San Francisco. The Supreme Court held that because the husband was not a resident “of the county in which the action was commenced and tried” the judgment of divorce was indeed “in violation of the mandatory provisions” of the former section 128. (Bullard, supra, 189 Cal. at p. 506.) It was a victory for the wife, but the court hastened to disabuse the wife of her argument the San Francisco court had no jurisdiction to grant the husband his divorce. “The point as presented in appellant’s brief was to the effect that ‘the court was without jurisdiction to grant the defendant a divorce,’ because of the matters stated above. To this the respondent makes answer that by the filing of the complaint for separate maintenance and the service of summons upon the defendant the court acquired jurisdiction of the parties and the subject matter, which it thereafter retained for all purposes of the action. Both of these arguments misconceive the real nature of the objection. It is not a question of the lack of jurisdiction, as was pointed out by this court in Estate of McNeil, 155 Cal. 333, but of error in the exercise of jurisdiction. The court undoubtedly had jurisdiction in this case, but erred in deciding that the defendant was entitled to a decree of divorce.” (Bullard, supra, 189 Cal. at p. 506, italics added.)

The third case is DeYoung v. DeYoung (1946) 27 Cal.2d 521 (DeYoung). There a wife sued for separate maintenance, but the husband defended on the ground he had already gotten a divorce in Mexico. She lost and appealed. After the case had gone all the way to the Supreme Court and even after oral argument in that court, the wife advanced an argument that former Civil Code section 128 had not been complied with. The DeYoung court made short shrift of the wife’s belated contention: “A sufficient answer to this contention is that section 128 of the Civil Code does not impose any limitation upon the jurisdiction of the superior court. [Citations to Bullard and McNeil.] The attack plaintiff makes upon the Mexican judgment is collateral, and such attack cannot be successfully made upon grounds which would amount, at most, to a showing of error in the exercise of jurisdiction.” (DeYoung, supra, 27 Cal.2d at p. 526.)

To paraphrase Maria’s reply brief, when the Supreme Court speaks, we listen. (See App. Rep. Br. at p. 9.) McNeil, Bullard and DeYoung all dealt with former section 128, the earlier iteration of section 2320, and there has been no material change in the structure of the statute since. Switch out “one year” in the previous statute for the current “six months,” and change “divorce” to “dissolution,” and the statutes are functionally identical.

Maria does not mention either McNeil or Bullard in her briefing. In her reply she tries to distinguish DeYoung on the theory that the case involved a Mexican divorce, and the wife’s attack was collateral. But we don’t see the significance of that distinction. Bullard did not involve a collateral attack – the wife appealed directly from the judgment – and the high court still said the residence requirement did not implicate jurisdiction. And the DeYoung court made it clear in the language we have quoted that noncompliance with the residency requirements of the statute did not go to subject matter jurisdiction, regardless of whether the attack is direct or collateral.

By contrast, the single Supreme Court case on which Maria relies, Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280 (Abelleira), is highly distinguishable. It dealt with a different statute and statutory scheme. Abelleira centered on the issue of whether an appellate court had jurisdiction to stop unemployment insurance payments made by the California Employment Commission at a point prior to the Commission determining whether the payments were improper as a made during a trade dispute. (See Abelleira, supra, 17 Cal.2d at p. 284.) The appellate court didn’t have subject matter jurisdiction because the Unemployment Insurance Act simply didn’t allow for it at that stage. (See id. at pp. 291-292.) That was a statutory wrinkle not present here.

Since Abelleira is not on point, it appears Maria mainly cites Abelleira for one sentence in its general discussion of jurisdiction: “A court has no jurisdiction to adjudicate upon the marital status of persons when neither is domiciled within the state. See Restatement, Conflict of Laws, sec. 111; Ryder v. Ryder [(1934)], 2 Cal.App.2d 426, 37 P.2d 1069 [Ryder].” (Abelleira, supra, 17 Cal.2d at p. 288.)

But if one examines Ryder, it is obvious what the Abelleira court was saying in its reference to neither party being domiciled with the state. Ryder involved the question of whether a California court should give effect to a mail-order Mexican divorce decree when neither party was ever domiciled in Mexico. (See Ryder, supra, 2 Cal.App.2d at p. 432.) Ryder certainly was not construing California’s residency requirements in former Civil Code section 128. Put another way, unlike Ryder, the case before us does not involve the question of whether California should enforce an out-of-state divorce decree when neither party was ever domiciled in that state. And that was all the Abelleira dictum was about.

Finally, we must note that Maria mistakes what is really “in rem” jurisdiction for “subject matter” jurisdiction. It is well established that the dissolution of a marriage qua dissolution is an in rem proceeding and does not deal with subject matter jurisdiction. (Zaragoza v. Superior Court (1996) 49 Cal.App.4th 720, 724-725 (Zaragoza); In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 13 (Obrecht).)

And in rem jurisdiction can be waived by failing to object timely. (Zaragoza, supra, 49 Cal.App.4th at pp. 725-726 [upholding applying predecessor of rule 5.63].)

Here, Maria waived any objection based on section 2320 in two undeniable ways: First, as we have shown, Maria’s objection certainly was not timely. California Rules of Court, rule 5.63 does not contemplate piggybacking multiple motions to quash.

And second, Maria is judicially estopped from asserting noncompliance with section 2320. Section 2320 requires residence in California for the six months preceding the filing of a petition for dissolution. Residence is equated with domicile, and domicile is a test of two elements, actual physical presence plus a subjective intention to stay in a given jurisdiction indefinitely. (See Obrecht, supra, 245 Cal.App.4th at pp. 13-14.)

It might be argued that Maria’s sworn declarations that Masanobu was a California resident should be excused since she had no personal knowledge of his mental state on May 15. But it is a logical inference that since the two of them were living together as of April 27, she had enough information to know he had no intention of moving to New Jersey as of April 27; after all, she characterized his move to New Jersey as an “abduction.”

Even more telling is that Maria has no excuse for misleading the court as to her own residence. If, on May 15, she had moved to New York with an intention to take up residence in Manhattan, she had no business allowing the court to think she was a California resident living in Newport Coast. And yet that was her theory in both the Elder Abuse action and the Conservatorship action.

Instead, in filing after filing Maria told the story of her and Masanobu living in “our home” in Newport Coast. Her claim of residency in New York was made only in the April 2018 Quash 2 motion. Since domicile is a question of fact (Obrecht, supra, 245 Cal.App.4th at p. 14), the family law court was well within its power in impliedly holding that Maria was estopped from contesting residency under section 2320.

IV. DISPOSITION

The collateral order made May 31, 2018 is affirmed. Real party shall recover its costs on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.

Filed 3/10/20 Macrotron Systems v. Gooch & Housego CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

MACROTRON SYSTEMS, INC. et al.,

Plaintiffs and Appellants,

v.

GOOCH & HOUSEGO (PALO ALTO) LLC,

Defendant and Respondent.

A153730

(Alameda County

Super. Ct. No. HG16808204)

MACROTRON SYSTEMS, INC. et al.,

Plaintiffs and Appellants,

v.

GOOCH & HOUSEGO (PALO ALTO) LLC,

Defendant and Respondent.

A154721

(Alameda County

Super. Ct. No. HG16808204)

Landlord, Macrotron Systems, Inc. (Macrotron), appeals from a judgment awarding its tenant, Gooch & Housego (Palo Alto) LLC (G&H), over $2 million in damages due to its breach of the parties’ commercial lease. Macrotron contends the evidence was insufficient to prove it breached the lease when it refused to pay the cost of compliance with state energy efficiency standards or allow G&H to utilize a portion of the building’s existing HVAC system. Alternatively, Macrotron asserts G&H failed to notify it of the alleged breaches as required by the lease. In a related appeal, which we order consolidated for oral argument and decision, Macrotron challenges an order awarding G&H $579,117 in contractual attorneys’ fees. Substantial evidence supports the judgment and the fee award. Accordingly, we affirm.

BACKGROUND

G&H manufactures and supplies optical components used in laser technology for high-end microscopes and telecommunications. Macrotron is an electronics supplier owned by Gordon and Anita Ting (hereafter, Ting) that also owns and partially occupies a large commercial building in Fremont, California. In August 2014, G&H leased just over half of the building’s square footage from Macrotron. Various disputes arose over the parties’ responsibilities under the lease, culminating in a jury trial on cross-actions between Macrotron and G&H for breach of contract and related claims. The jury rejected all of Macrotron’s claims against G&H, found that Macrotron breached the lease, and awarded G&H $2,015,100.88 in damages. On appeal, Macrotron challenges two specific claims of breach associated with about half of the total damages: its failure to pay for energy efficiency compliance work and its refusal to allow G&H to access bargained-for HVAC capacity.

I. Title 24 Work

The lease provided for G&H to make specified improvements to the premises. The parties understood those improvements would require compliance with energy efficiency standards for lighting and lighting control systems set forth in Title 24, Part 6 of the California Code of Regulations (Title 24). G&H Vice President of Finance Mark Batzdorf testified that G&H “knew that we had a sizeable renovation project. We knew that that would trigger Title—or we understood that that would trigger Title 24, and we wanted to make sure that that was covered and any incremental or additional cost was covered by the landlord in that case.” The parties addressed this issue during the lease negotiations. To that end, Section 8 of the Lease provided that “Landlord shall deliver the Premises to Tenant . . . (ii) with the Premises and Building in compliance with all Applicable Laws, including ADA Requirements and Title 24. . . . In addition and notwithstanding anything to the contrary, Landlord shall be responsible to perform all work to the Premises and/or Building necessary to comply with Title 24 which may be required as a result of the Landlord’s Work or Tenant’s Work.”

G&H carried out the Title 24 work as part of its tenant improvement project. During the project it regularly submitted design drawings for the mechanical, HVAC, and electrical systems to Macrotron for review and approval. G&H’s general contractor, VANIR Construction, (VANIR) met with representatives of G&H and Macrotron to review those drawings, sometimes including the responsible design professional in the meetings to answer Ting’s questions.

Occasionally Ting demanded changes to the drawings during or after the review meetings. VANIR would then make the requested revisions and resubmit drawings to G&H and Macrotron for approval. VANIR did not proceed with any work until Ting or another Macrotron representative signed off on the revised drawings. Macrotron never offered to undertake the Title 24 work itself, and neither Ting nor anyone else from Macrotron ever objected to G&H’s plans to perform it.

The total cost of the lighting required for Title 24 compliance was $492,177. When G&H presented Macrotron with the bill, Macrotron refused to pay it.

II. HVAC System

The building was originally equipped with six ducted HVAC units mounted on the roof, identified as AC1 through AC6, and a seventh smaller unit, AC7, that served a warehouse in the back of the premises. AC1 through AC6 fed into the building’s duct work in different locations and served the entire building except for the warehouse served by AC7.

Section 8 of the lease provided that “Landlord shall deliver the Premises to Tenant (i) with the Premises, Building, and all Building systems serving the Premises, including, the common areas, sidewalk, driveways, parking lot, truck doors, mechanical systems, HVAC systems, electrical, plumbing and lighting to be in good working condition and repair . . . .” When the parties negotiated and signed the lease, three of the six rooftop units, AC2, AC4, and AC6, served G&H’s part of the building. AC6 had the largest tonnage capacity and also served Macrotron’s side of the building.

When G&H executed the lease it understood from Macrotron’s assurances and the lease’s terms that G&H would have access to the existing building systems that served the premises it was going to occupy. The initial design for its tenant buildout was thus based on that understanding. But in January 2015, when G&H presented its first set of mechanical drawings for review, Ting refused to let G&H use AC6. “He said absolutely not. He refused to allow us to use it. We offered money in exchange. He refused that as well. We offered to upgrade the existing capacity in the existing six units, and he refused that as well.” Instead, Ting demanded that G&H cap AC6 so that it would serve only Macrotron’s side of the building. G&H ultimately had to purchase and install another unit, AC8, at a cost of $445,000.

III. Electrical System

In addition to its claims related to Title 24 compliance and the HVAC system, G&H asserted that Macrotron breached the lease by refusing it access to the building’s electrical transformers, thereby requiring G&H to install a parallel electrical system at the cost of more than $720,000, and also caused it to incur $250,000 in holdover rent at its former facility by delaying completion of G&H’s build-out.

IV. Jury Verdict and Postverdict Motions

The jury rejected all of Macrotron’s claims against G&H, found in favor of G&H on its breach of contract claims against Macrotron, and awarded damages of $2,015,100.88. The verdict form did not allow the jury to identify the bases for its findings of breach or allocate damages between G&H’s various breach allegations.

Macrotron moved for a new trial and judgment notwithstanding the verdict, arguing the evidence failed to establish breach of the lease under any of G&H’s theories and that the damages award was excessive and unsupported by the evidence. The court denied both motions. It ruled: “G&H’s claim for the cost to build an additional HVAC unit is supported by evidence that Macrotron breached the contract and the implied covenant. Under Section 8 of the lease, Macrotron agreed to provide HVAC systems in good working condition and repair. The evidence at trial is sufficient to show that G&H and Macrotron both reasonably expected that the three HVAC units already serving the portion of the buildings leased from Macrotron would be available for use by G&H. The evidence shows that G&H only built an additional unit, AC8, after Macrotron refused to allow use of AC6, which partially serviced the premises leased by G&H when the lease was signed. The lease does not contain any provisions specifying the amount of HVAC capacity that Macrotron agreed to supply; thus, the evidence that G&H reasonably expected that HVAC units servicing its side of the building would remain available is not contrary to the lease.” The court also found the evidence showed G&H notified Macrotron of its breach.

The court also found G&H’s claim for the cost of Title 24 compliance was supported by substantial evidence. “Macrotron’s contention that G&H cannot recover for the Title 24 work because G&H performed that work, and Macrotron did not agree to pay for work done by G&H, also fails to refute G&H’s claims. Under Section 8, Macrotron agreed to ‘be responsible to perform all work to the Premises and/or Building necessary to comply with Title 24 which may be required as a result of the Landlord’s Work or Tenant’s Work.’ Evidence was presented at trial that Macrotron received G&H’s plans for the work, did not object to those plans, and did not offer to perform the Title 24 work. That evidence is sufficient to show that Macrotron is liable for damages resulting from its failure to take responsibility for the Title 24 work.”

The trial court awarded G&H contractual attorneys’ fees in the amount of $579,117.

Macrotron filed timely appeals from the judgment and fee order.

DISCUSSION

I. Title 24 Work
II.
Macrotron contends it is not liable for the cost of the Title 24 work because, while it concedes it was contractually required to “perform all work . . . necessary to comply with Title 24,” G&H, not Macrotron, performed it. In Macrotron’s view, the lease “obligates Macrotron to do the work, but it does not require Macrotron to pay for work done by others.” Substantial evidence supports the jury’s contrary determination.

A. Legal Principles
B.
“A lease agreement is subject to the general rules governing the interpretation of contracts. [Citation.] ‘A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.’ (Civ.Code, § 1636.) When possible, the parties’ mutual intention is to be determined solely from the language of the lease. ‘The “clear and explicit” meaning of these provisions, interpreted in their “ordinary and popular sense,” . . . controls judicial interpretation.’ [Citation.] ‘Interpretation of a contract “must be fair and reasonable, not leading to absurd conclusions. [Citation.]” ’ ” (Bill Signs Trucking, LLC v. Signs Family Limited Partnership (2007) 157 Cal.App.4th 1515, 1521 (Bill Signs).)

“We review a trial court’s construction of a lease de novo as long as there was no conflicting extrinsic evidence admitted to assist in determining the meaning of the language. [Citation.] If a lease provision is ambiguous, parol evidence may be admitted as to the parties’ intentions if the language is reasonably susceptible to a suggested interpretation.” (California National Bank v. Woodbridge Plaza LLC (2008) 164 Cal.App.4th 137, 142.) Parol evidence is also admissible to show the lease is reasonably susceptible to two or more interpretations. (Bill Signs, supra, 157 Cal.App.4th at p. 1521.)

If there is conflicting evidence, our review is for substantial evidence. We “ ‘consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.] [¶] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. . . . [Citations.]’ [Citation.] To be substantial, the evidence must be of ponderable legal significance, reasonable in nature, credible, and of solid value. [Citations.] However, substantial evidence is not synonymous with any evidence. [Citations.] ‘The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.’ ” (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266 (ASP Properties).)

We review the denial of a motion for judgment notwithstanding the verdict to determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the jury’s verdict. If there is, we affirm. (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1138.) Similarly, “we can reverse the denial of a new trial motion based on insufficiency of the evidence . . . only if there is no substantial conflict in the evidence and the evidence compels the conclusion that the motion should have been granted.” (Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 752.)

B. Analysis

In Macrotron’s view, the analysis begins and ends with Section 8’s language that the “[l]andlord shall be responsible to perform” all Title 24 compliance work necessitated by G&H’s tenant improvement project. (Italics added.) From this, Macrotron reasons it was obligated to personally carry out the Title 24 work (or, presumably, to engage contractors for the work), but was under no obligation to pay for Title 24 work performed by G&H. “[T]he lease imposed no obligation on Macrotron to reimburse G&H for work that it unilaterally undertook—even if Macrotron had an underlying obligation to perform that work itself.”

The trial court rejected this argument in light of the evidence, described above, that (1) the parties negotiated and ultimately agreed that Macrotron was responsible for the cost of Title 24 compliance; (2) Macrotron was informed during the design review process that G&H was doing the work as part of its tenant improvement project; and (3) it neither objected to G&H’s plans nor offered to “perform” the work itself. In view of this evidence, the jury could reasonably construe Section 8 as placing responsibility for Title 24 remediation on Macrotron, whether it performed the work or paid for its performance by a third party.

Macrotron disagrees. In support of its own interpretation, it points to other instances in the contract where the parties expressly allocated responsibility for the cost, rather than performance, of various tasks. This argument, at its core, asks us to reweigh the evidence and substitute different inferences and deductions for those of the fact finder. It is beyond our ambit as a court of review to do so. (ASP Properties, supra, 133 Cal.App.4th at p. 1266.)

Macrotron argues the plans it reviewed for G&H’s buildout were insufficiently clear about the nature and scope of the Title 24 work to show that it implicitly agreed to pay for it, and that, in any event, such a “tacit agreement . . . to reimburse G&H for its performance of Title 24 work would amend the parties’ contractual obligations” in violation of a lease term barring oral modifications or amendments. But the evidence supports the conclusion that the parties negotiated Section 8 to allocate to Macrotron the responsibility for and cost of Title 24 compliance, so the prohibition against oral modifications is irrelevant.

Macrotron argues that Section 30.10 of the lease expressly barred G&H from performing the Title 24 work and then seeking reimbursement from Macrotron. Section 30.10 provides that “if the Landlord fails to perform its obligations under this Lease, then Tenant shall not be entitled . . . to make any repairs or perform any acts at Landlord’s expense.” But Macrotron did not make this argument in the trial court. “ ‘A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing party.’ ” (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 29.)

Alternatively, Macrotron contends G&H failed to provide the written notice of its breach and afford it an opportunity to cure as required under Section 15.6 of the lease. This argument, too, is barred by Macrotron’s failure to raise it at trial and provide citations to the record showing us that it did so. Although Macrotron unsuccessfully asserted Section 15.6 as a defense to breach of its obligations concerning the electrical and HVAC system, as far as we can discern from the record it made no such claim regarding the Title 24 work. It is elementary that the appellant’s opening brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C).) “When an appellant’s brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made. [Citations.] We can simply deem the contention to lack foundation and, thus, to be forfeited. [Citations.]” (In re S.C. (2006) 138 Cal.App.4th 396, 406–407.) So it is here.

I. HVAC System
II.
Macrotron cherry picks bits of testimony in support of its construction of the lease to assert its refusal to let G&H utilize AC6 did not breach its contractual obligations. Instead, it argues the lease at most required it to offer G&H a percentage of the building’s total cooling capacity proportional to the area of the leased premises, or roughly 50 percent. Macrotron contends it fulfilled its obligation by giving G&H access to AC2, AC4 and AC7, which it claims jointly comprised 62 percent of the building’s cooling capacity. “If the lease required a proportional share of capacity, as both of G&H’s representatives at trial . . . at some point have claimed, Macrotron satisfied that obligation.”

The jury reasonably rejected this view of Macrotron’s obligations under the lease. Section 8 required Macrotron to “deliver the Premises to Tenant (i) with the Premises, Building, and all Building systems serving the Premises, including . . . HVAC systems . . . in good working condition and repair.” This term and G&H’s testimony about the lease negotiation process comprise substantial evidence the parties intended that the three HVAC units already serving the leasehold premises including AC6, would be available to G&H. Accordingly, even if the evidence and contract language could also support Macrotron’s “proportional share of capacity” theory, we cannot disturb the jury’s verdict.

Macrotron’s alternative claim that G&H failed to provide it with written notice of the default as required under Section 15.6 (infra, fn. 2) is also contradicted by the evidence. As the court observed in denying Macrotron’s new trial motion, “the evidence at trial showed that G&H notified Macrotron that its refusal to let G&H use the existing HVAC units was a breach of the lease. The Notes to Meeting drafted by Mr. Bartham and Mr. Batzdorf, dated April 3, 2015, provided notice of G&H’s claim that Macrotron was in breach of the lease because it refused to allow G&H to use the existing HVAC units and HVAC-related building systems serving the G&H side of the building. The Notes to Meeting further provided notice of G&H’s position that Macrotron’s obligations with regard to the provision of HVAC were well-defined in the existing language of the lease, and that compromise on this issue would affect G&H’s operational requirements and was not an option. The Notes to Meeting further stated that failure to resolve the HVAC issues had already constructively delayed the permitting, construction, and relocation process.” Review of the April 3 notes leaves us with no doubt that substantial evidence supports the jury’s implicit and the court’s explicit finding of adequate notice.

Macrotron’s further contention that any notice was untimely because it was given more than three-months after the lease term began is also meritless. Macrotron relies on the provision in Section 8 that “If Tenant notifies Landlord within the first three (3) months following the Commencement Date that the Premises, Building and/or Building systems are not in good working order and repair . . . , Landlord shall, at its sole cost and expense . . . make such repairs, replacements or corrections as necessary.” But G&H never contended the HVAC system was not “in good working order or repair” at the commencement date. The problem was that Macrotron later refused to allow G&H to fully use the HVAC system as it existed when the parties agreed upon the lease. The timely notice provision has no bearing on the breach occasioned by that refusal.

III. Attorneys’ Fees
IV.
G&H moved as the prevailing party for an award of $674,265.50 in contractual attorneys’ fees pursuant to Civil Code section 1717. With exceptions not relevant here, the court found the hourly rates and amount of time charged by G&H’s counsel were reasonable, rejected fees for duplicative legal work, and awarded G&H fees in the amount of $579,117.

Macrotron argues the court erred in awarding G&H $45,941.50 of the total award for services rendered by two Ohio attorneys before they were granted admission to appear pro hac vice in this matter. Relying on Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119, 127 (Birbrower) for the rule barring recovery for fees incurred by attorneys not authorized to practice law in California, Macrotron argues G&H “cannot recover their Ohio attorneys’ fees unless each of those attorneys was, ‘at the time the services were performed,’ admitted to practice [law] in California.” We disagree.

A. Background
B.
Macrotron filed this action on March 18, 2016. G&H promptly retained both California counsel and an Ohio law firm with which it had a longstanding relationship. On April 12, 2016, less than a month after Macrotron filed suit, G&H reserved a hearing date for applications for pro hac vice admission of its Ohio counsel. Those applications were filed April 28, the date of G&H’s first appearance in the action, and granted on May 27. In the interim, Ohio counsel in their Ohio office worked primarily on preparing demurrers and a cross-complaint.

C. Analysis
D.
Pursuant to rule 9.40 of the California Rules of Court, “[a] person who is not a member of the State Bar of California but who is a member in good standing of and eligible to practice before the bar of any United States court or the highest court in any state, territory, or insular possession of the United States, and who has been retained to appear in a particular cause pending in a court of this state, may in the discretion of such court be permitted upon written application to appear as counsel pro hac vice, provided that an active member of the State Bar of California is associated as attorney of record.” The record indicates that G&H’s Ohio Counsel satisfied the requirements for admission pro hac vice and that their promptly filed application complied with all procedural requirements. Indeed, no one contends otherwise. Macrotron’s only complaint is that it should not have to pay for the legal work Ohio counsel performed in the interim before the court granted the application. We disagree.

Macrotron cites no authority for its broad proposition that as a matter of law a successful litigant cannot recover fees for services rendered by qualified out-of-state counsel who promptly applies for pro hac vice admission, reasonably expects the application will be granted, and starts to provide legal services in the interim before the court grants the application. Certainly the cases on which Macrotron does rely, Birbrower, supra, 17 Cal.4th at pp. 130–131, and Golba v. Dick’s Sporting Goods, Inc. (2015) 238 Cal.App.4th 1251 (Golba) say no such thing. In Birbrower, the New York attorneys who were precluded from recovering fees for unauthorized legal work in California never obtained—and never even applied for—admission pro hac vice. In Golba,

out-of-state counsel was found ineligible for and therefore denied pro hac vice admission. (Golba, supra, 238 Cal.App.4th 1251,

1257–1258.) Neither of these case, accordingly, is inconsistent with the trial court’s award of fees for services rendered by qualified out-of-state counsel between promptly applying for admission pro hac vice and obtaining an order granting that status. Moreover, disallowing those fees on appeal would simply result in a remand for the court to expressly grant Ohio counsel pro hac vice status effective nunc pro tunc to the date of the application. We see no purpose in such an idle act.

Macrotron has also failed to show the court awarded fees in an unreasonable amount. “[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. ‘California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.’ [Citation.] . . . [¶] ‘. . . After the trial court has performed the calculations [of the lodestar], it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure.’ ” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096 (PLCM Group).)

“[T]he trial court has broad authority to determine the amount of a reasonable fee. [Citations.] As we have explained: ‘The “experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong” ’—meaning that it abused its discretion.” (PLCM Group, supra, 22 Cal.4th at p. 1095.)

Macrotron takes issue with the court’s assessment that counsel expended a reasonable number of hours on the litigation. The court explained: “Although this case was not ‘complex’ as the term is used in rule 3.400 of the California Rules of Court, it was certainly complicated litigation. Macrotron claimed damages of $5,000,000 based on a multitude of claims involving faulty or unauthorized tenant improvements in breach of the parties’

55-page commercial lease agreement. G&H submitted evidence that the database maintained by [counsel] for this case was substantial, consisting of 8,608 separate documents. Macrotron’s characterization of the case as involving only a ‘plain vanilla breach of contract claim’ is grossly inaccurate.”

Macrotron disagrees. It protests that the case was “not unusually complex” or prolonged because the trial lasted only five days, with seven witnesses and 29 exhibits; that on some occasions more than one of G&H’s attorneys participated in the same depositions and other litigation tasks; and, generally, that counsel simply spent too much time on “minor tasks” and “given the relatively modest scope of this case.” But the trial court disagreed with those views, and nothing Macrotron says on appeal persuades us its assessment was “clearly wrong.”

(PLCM Group, supra, 22 Cal.4th at p. 1095.) Finally, Macrotron’s complaint that G&H’s counsel billed substantially more than its own attorneys is perhaps best answered with the simple observation that Macrotron did not prevail at trial.

In this arena “ ‘[a]n appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1249.) Macrotron has not shown the court’s fee ruling exceeded its discretion, so the attorneys’ fee award stands.

DISPOSITION

The judgment and fee award are affirmed.

_________________________

Siggins, P.J.

We concur:

_________________________

Fujisaki, J.

_________________________

Petrou, J.

Macrotron et al., v. Gooch (A153730/A154721)

Filed 3/10/20 McCallum v. Batista CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MACK A. McCALLUM,

Plaintiff and Appellant,

v.

GILBERT BATISTA,

Defendant and Respondent.

F079622

(Super. Ct. No. 18CV-02271)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Merced County. David W. Moranda, Judge.

Mack A. McCallum, in pro. per., for Plaintiff and Appellant.

Hampton Firm and Kyle A. Hampton for Defendant and Respondent.

-ooOoo-

Plaintiff Mack A. McCallum, representing himself, appeals from an order granting an unopposed motion for summary judgment. The defendant’s moving papers relied heavily on McCallum’s failure to respond to requests for admission and a subsequent order deeming the requests admitted. As with the motion for summary judgment, McCallum did not oppose defendant’s motion for requests for admission to be deemed admitted.

The deemed admissions are fatal to McCallum’s two causes of action. We have independently reviewed the defendant’s moving papers and the rest of the appellate record and conclude defendant has shown McCallum will not be able to establish an essential element of his causes of action alleging violations of Penal Code sections 290.4 and 290.46. McCallum’s specific contention that he did not oppose the summary judgment motion or appear at the hearing because he did not receive notice until after the hearing lacks evidentiary support and, therefore, the question of proper service is resolved by the rebuttable presumption in Code of Civil Procedure section 1013a for service by mail. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442 (Dill); see Evid. Code, § 641 [presumption that letter is received in ordinary course of mail].)

We therefore affirm the summary judgment.

FACTS & PROCEEDINGS

McCallum is a self-representing litigant who lives in a gated community in the County of Merced. McCallum has been a member of the board of directors of the homeowners’ association of the gated community for many years.

McCallum alleges that defendant Gilbert Batista misused information from the Megan’s Law website (MLW) in blatant disregard of Penal Code sections 290.4 and 290.46. McCallum alleges Batista misused the information in attempts to get residents to sign a petition to remove McCallum from the board of directors. At the board’s April 17, 2018 meeting, Batista announced to the board that McCallum was on the MLW and that Batista had a removal petition with 28 signatures. Batista then presented McCallum with a resignation document, which McCallum refused to sign.

In June 2018, McCallum filed a complaint against Batista, alleging two causes of action for violations of Penal Code sections 290.4 and 290.46. In July 2018, Batista’s attorney filed an answer containing a general denial and asserting the complaint (1) failed to state facts sufficient to constitute a cause of action and (2) was confusing, unintelligible and vague.

On the same day the attorney filed the answer, he also caused McCallum to be served with written discovery requests. Batista’s first two requests for admission asked McCallum to “ADMIT that BATISTA did not violate ANY section or subsection of Penal Code [section] 290.4” and to “ADMIT that BATISTA did not violate ANY section or subsection of Penal Code [section] 290.46.” The requests also asked McCallum to admit his insurance, loans, credit, employment, education, housing, and business relationships were not affected by any actions of Batista. The first nine special interrogatories asked McCallum how the alleged Penal Code violations had impacted his insurance, loans, credit, employment, education, housing, or benefits or privileges provided by any business. The final two special interrogatories asked, “In what way do YOU believe BATISTA violated Penal Code [section] 290.4” and section 290.46.

On August 6, 2018, Batista’s attorney received McCallum’s unverified, two-page response to special interrogatories, set one. McCallum stated the first nine interrogatories “had nothing to do with the complaint.” McCallum’s answer to the final two special interrogatories attempted to explain the statutory restrictions placed on the disclosure of information from the MLW and the related penalties. McCallum also stated he had a certificate of rehabilitation (a copy of the September 2005 certificate was attached) and asserted Batista’s claim that McCallum was a convicted felon was not accurate. McCallum did not respond to the form interrogatories or the requests for admission.

In September 2018, Batista filed motions relating to his written discovery. Batista sought an order (1) compelling interrogatory responses that complied with applicable statutes and (2) deeming his requests for admission admitted.

In October 2018, the trial court filed an order after hearing granting Batista’s unopposed motions. The order stated: “The truth of any matter specified in Defendant Gilbert Batista’s Request for Admission, Set One, therefore are deemed admitted.” The order also imposed monetary sanctions against McCallum.

In January 2019, Batista filed (1) a notice of motion and motion for summary judgment, (2) a memorandum of points and authorities in support of the motion, (3) a separate statement of undisputed material facts, and (4) an attorney’s declaration in support of the motion. Based on the deemed admissions, Batista argued there were no triable issues of material fact.

In April 2019, the trial court issued and adopted its tentative ruling to grant the summary judgment motion. No party requested argument or appeared at the hearing. The tentative ruling directed the prevailing party to prepare a written order for the court’s signature.

On May 9, 2019, McCallum served Batista with a document labeled “ENOUGH INFORMATION HAS ALREADY BEEN PRESENTED.” Under the heading “DISAGREEMENT WITH JUDGMENT,” McCallum stated: “I disagree with any summary judgment. I was not told the time or date of this hearing. I was not told of the hearing until a week after it was over.” McCallum also asserted the discovery was never completed because Batista never gave him a copy of the petition Batista used in his attempt to get McCallum removed from the board of directors, despite McCallum requesting it three times. McCallum stated he had witnesses who were at the board meeting and could testify to the use of the MLW information. McCallum also stated: “I had to underline and send the lawyer 290.4 and 290.46 pc, so he could see what the infraction was.”

On May 14, 2019, the trial court filed an order after hearing stating (1) Batista had met his initial burden of providing evidence that one or more elements of McCallum’s claim could not be met, (2) the burden shifted to McCallum to show the existence of a triable issue of material fact, and (3) McCallum, who did not oppose the motion for summary judgment, did not meet his burden. As a result, the court concluded judgment should be entered in favor of Batista and against McCallum.

On July 2, 2019, McCallum filed a document labeled “MOTION OF APPEAL or COULD BE Back on right track?” This court construed the document as a notice of appeal. On October 2, 2019, McCallum filed a document that this court treated as an attempt at an opening brief. In an order filed October 8, 2019, this court returned the document to McCallum for corrections, stating the deficiencies were “too numerous to list but include the lack of any table of contents or table of authorities, the failure to make any argument and to incorporate citations to authority in the arguments, and the failure to provide any citations to the record.” Our order also directed our clerk’s office to provide McCallum with a copy of California Rules of Court, rule 8.204 and referred him “to our self-help website which contains valuable information on how to prepare a brief. It can be found at https://selfhelp.appellate.courts.ca.gov/.”

In November 2019, McCallum filed his opening brief. In December 2019, Batista filed his respondent’s brief and a motion to augment the record. The motion sought to include in the record Batista’s discovery motions, his summary judgment papers, and the court’s orders on the motions. In January 2020, we granted the motion to augment and McCallum filed his reply brief.

DISCUSSION

I. BASIC PRINCIPLES

A. Overview: Access to Justice

1. Access to Court

The United States Supreme Court has “grounded the right of access to courts in the Article IV Privileges and Immunities Clause [citations], the First Amendment Petition Clause [citations], the Fifth Amendment Due Process Clause [citations], and the Fourteenth Amendment Equal Protection [citation] and Due Process Clauses [citations].” (Christopher v. Harbury (2002) 536 U.S. 403, 415, fn. 12.) A California appellate court stated access to court is “a right guaranteed to all persons by the federal and state Constitutions.” (Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 821.) It arises from the right to “petition the government for redress of grievances” contained in article I, section 3, subdivision (a) of the California Constitution and also is protected by the First Amendment. (Jersey, supra, at p. 821.)

“Access to justice is a fundamental and essential right in a democratic society. It is the responsibility of government to ensure that all people enjoy this right.” Providing access to justice through the civil court system is a multidimensional problem, as is illustrated by the symposia sponsored by the Civil Justice Program at Loyola Law School Los Angeles. The Legislature has addressed one aspect of the access problem by adopting provisions relating to court fees and the waiver of those fees for indigent parties. (See Gov. Code, §§ 68630-68641 [waiver of court fees and costs].) Our Supreme Court recently addressed issues relating to providing court reporters for a proceeding involving an indigent litigant. (Jameson v. Desta (2018) 5 Cal.5th 594, 623 (Jameson) [trial court erred in failing to make an official court reporter available to in forma pauperis plaintiff upon request].) Another set of issues about access to the court is raised by litigants who represent themselves.

2. Self-Represented Litigants

The California Rules of Court address how the judicial system interacts with in propria persona (i.e., self-representing) litigants. “Providing access to justice for self-represented litigants is a priority for California courts.” (Rule 10.960(b) [effective Jan. 1, 2008].) The difficulties faced by self-represented litigants in obtaining meaningful access to the courts can be addressed in a variety of ways. (See Buhai, Access to Justice for Unrepresented Litigants: A Comparative Perspective (2009) 42 Loy. L.A. L.Rev. 979, 985-993.) For instance, self-represented litigants could be allowed to proceed under relaxed rules of procedure and evidence. This approach, for the most part, has not been taken in California. (Id. at p. 993; see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 (Rappleyea) [difficulties of providing special treatment to parties who represent themselves].) Thus, as a general rule of California law, “in propria persona litigants, like appellant, are entitled to the same, but no greater, rights than represented litigants.” (Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1487 (Apollo); Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 (Nwosu); Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.)

This is a general rather than absolute rule because it is subject to exceptions. For example, it “ ‘must yield to the even greater principles of providing in propria persona litigants with meaningful access to the courts and of deciding bona fide civil actions on their merits.’ ” (Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, 469, quoting Apollo, supra, 167 Cal.App.4th at p. 1487.) Also, judges have “ ‘the discretion to take reasonable steps, appropriate to the circumstances and consistent with the law and the canons, to enable a [self-represented] litigant to be heard.’ ” (Rothman, et al., California Judicial Conduct Handbook (4th ed. 2017) § 2:28, pp. 96-97, quoting Cal. Code Jud. Ethics, canon 3B(8), commentary.) The handbook describes ethically permissible conduct related to self-represented litigants, including some areas of permissible accommodation. (Id. at pp. 99-100.)

California’s primary means of addressing the problems faced by self-representing litigants is to provide services that prepare individuals to better represent themselves. Specifically, self-representing litigants may receive assistance from brick-and-mortar and online self-help centers. In accordance with this statewide policy, the Merced County Superior Court maintains a web page describing its self-help center. Physical offices of the center are located on the first floors of the Merced Courthouse and the Los Banos Courthouse. In addition, the court’s web page contains a link to online resources.

The stated purpose of the self-help centers is to improve the delivery of justice to the public by facilitating the timely and cost-effective processing of cases involving self-represented litigants. (Rule 10.960(b).) “The information and education provided by court self-help centers must be neutral and unbiased, and services must be available to all sides of a case.” (Rule 10.960(d).) An Online Self-Help Center is available to the public at www.courts.ca.gov/selfhelp.htm. (See Rule 1.6(22) [definition of “California Courts Web Site”].) A web page titled “Discovery” states formal discovery is a legal process that can be used after a case has been filed to get information from the other side and lists the formal discovery tools as interrogatories, depositions, requests for production of documents, requests for admissions, and subpoenas. The web page also states:

“Discovery is very complicated and often requires knowledge of evidence rules and other legal strategies. It is often necessary to have a lawyer help you with discovery. If you are representing yourself in your case, discovery may be a good part of your case to let a limited-scope lawyer handle on your behalf.” (Ibid.)

To assist users in understanding specific legal terms, the Online Self-Help Center includes a glossary that defines “discovery,” “interrogatories,” “request for admission,” “summary judgment,” and many other terms.

Another online self-help center is devoted to civil appeals. The California Appellate Courts Self-Help Resource Center provides an appeals timeline that breaks the appeals process into 12 steps and provides information to assist litigants in navigating each step. Our October 8, 2019, order informed McCallum of the existence of this online self-help center.

3. McCallum’s Arguments

In this case, McCallum has not explicitly argued he is entitled to more lenient treatment because he represented himself and is not a lawyer. However, the document labeled “Complaint of Mack McCallum [¶] Fifth Appellate District [¶] Answer to Defendants brief” and filed with this court in January 2020 asserts: “We need witnesses in this case who can testify as to what they heard on April 17th 2017 during the executive session that [Batista] called.” The final paragraph of that document states: “Defendant’s lawyers has put together a 169 page synopsis which is inaccurate and leaves me wondering what else in the 169 pages was copied inaccurately. We really need the witness’s to get justice in this case.”

These arguments could be viewed as implying that McCallum believes the procedural rules governing discovery, motions to compel, motions for summary judgment, and how an appellant establishes reversible error should not be applied in this case and, instead, this court should “get justice in this case” by reversing the judgment and remanding for a trial at which witnesses are presented.

Based on the California Supreme Court’s discussion in Rappleyea, supra, 8 Cal.4th at page 985 and Rule 10.960, we conclude that McCallum, despite his status as a self-representing litigant, is subject to the provisions of the Code of Civil Procedure governing the discovery process, motions for requests for admission to be deemed admitted, and motions for summary judgment. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284–1285 (Gamet) [self-representing litigants must follow the same statutes and court rules governing procedure as represented parties; however, courts should exercise care when dealing with self-representing litigants to make sure oral instructions and written notices are clear and understandable].)

Similarly, at the appellate level, McCallum is subject to the basic principles of appellate procedure and to Rule 8.204, which governs the contents and form of appellate briefs. (Nwosu, supra, 122 Cal.App.4th at pp. 1246–1247 [on appeal, self-representing appellant must follow correct rules of procedure].) Self-representing litigants like McCallum are assisted in complying with these requirements by the web pages and videos available through the California Appellate Courts Self-Help Resource Center, and an outline of an opening brief is provided.

B. Appellant’s Burden to Establish Prejudicial Error

In Jameson, supra, 5 Cal.5th 594, the California Supreme Court set forth some of the basic principles of appellate procedure by stating “it is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] ‘This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.] ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court.…’ [Citation.] ‘ “A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant [has failed to carry its burden] and the decision of the trial court should be affirmed.” ’ [Citation.] ‘Consequently, [the appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].’ ” (Id. at pp. 608–609.)

C. Standard of Review

Under the long-established principles for appellate review of orders granting summary judgment, we conduct a de novo review, considering all the evidence set forth in the moving and opposition papers except evidence for which objections were made and sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) “De novo is a Latin phrase meaning ‘from the beginning.’ In de novo review, the appellate court does not defer to the decisions made in the trial court and looks at the issue as if the trial court had never ruled on it. This type of review is generally limited to issues involving questions of law.” Accordingly, when reviewing the grant of a summary judgment, we apply the same three-step analysis used by the trial court and reach our own determinations. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.)

Under section 437c, subdivision (c), a motion for summary judgment must be granted if “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Thus, we first identify the issues framed by the pleadings. Our second step is to decide whether the defendant has met his burden of showing that the causes of action have no merit by showing that one or more elements of the cause of action cannot be established or there is a complete defense to the cause of action. (§ 437c, subds. (o), (p)(2); Guz, supra, at p. 334.) If the moving defendant has met its burden, we proceed to the third step of the analysis and determine whether the plaintiff has presented evidence showing a triable issue of one or more material facts exists as to the cause of action. (§ 437c, subd. (p)(2).) Even when a motion is unopposed, the moving party must meet its initial burden before the trial court may grant summary judgment. (Harman v. Mono General Hospital (1982) 131 Cal.App.3d 607, 613 [judgment reversed because motion should have been denied].)

II. SUMMARY JUDGMENT ANALYSIS

A. Absence of a Separate Statement

The summary judgment statute provides that a party opposing a summary judgment must “include a separate statement that responds to each of the material facts contended by the moving party to be undisputed” and the “[f]ailure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (§ 437c, subd. (b)(3).) This provision has been interpreted to mean that the failure to submit a separate statement does not relieve the moving party of its initial burden. (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 416.)

In this case, McCallum did not file a separate statement. Under the foregoing rules, that fact, standing alone, does not provide a sufficient ground for affirming the grant of summary judgment. Consequently, we must undertake the second step of the summary judgment analysis and independently determine whether Batista’s moving papers carried his initial burden.

B. Existence of a Constitutional Violation

As the moving party, Batista “bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Here, Batista has attempted to carry his burden of persuasion by showing an element of the causes of action cannot be proven—specifically, the violations of the Penal Code alleged in each of McCallum’s causes of action.

Batista relied on the order stating the truth of any matter specified in Batista’s requests for admission, set one, was deemed admitted. (See § 2033.280, subd. (b) [order that truth of matters specified in requests are deemed admitted].) Because Batista requested McCallum to admit that Batista did not violate any section or subsection of Penal Code sections 290.4 and 290.46, the order establishes (at least for purposes of this litigation) that Batista did not violate those statutes. (See St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 775 [matters deemed admitted through request for admission discovery devices are conclusively established in the litigation and are not subject to being contested through contradictory evidence]; see § 2033.410, subd. (b).) Consequently, the deemed admissions were sufficient to carry Batista’s initial burden of demonstrating an element of the causes of action—specifically, the statutory violation alleged—could not be established. (§ 437c, subds. (o)(1), (p)(2).) Accordingly, the trial court properly granted Batista’s motion for summary judgment, unless one of the procedural points raised by McCallum establishes a reversible error.

III. McCALLUM’S CLAIMS OF REVERSIBLE ERROR

The document we have interpreted as McCallum’s appellant’s opening brief appears to set forth four things that McCallum contends went wrong during the trial court proceedings. We consider the asserted errors in chronological order.

A. Motion to Compel Answers to Interrogatories

McCallum’s assertion of trial court error is set forth verbatim to assure we do not change its nature by paraphrasing it:

“The judge ruled in favor of defendant’s lawyer for a Motion to Compel, when the interrogatories had nothing to do with the case and had already been answered. The ruling was granted 7 months after the lawyer told the court he didn’t receive enough information. This is long after the 6 week time limit.”

First, we note this assertion, like the entire opening brief, lacks a single citation to the appellate record. Pursuant to Rule 8.204(a)(1)(C), an appellate brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” In Nwosu, supra, 122 Cal.App.4th 1229, the court quoted an earlier version of this provision and set forth the principle that “ ‘[i]f a party fails to support an argument with the necessary citations to the record, … the argument [will be] deemed to have been waived. [Citation.]’ ” (Id. at p. 1246.) Under this principle, McCallum’s challenge is deemed waived.

Second, the augmented record Batista provided includes an order after hearing filed on October 10, 2018, ruling on various motions to compel. The order states the unopposed motion to compel McCallum to respond to special interrogatories, set one, is granted. The absence of an opposition to the motion to compel demonstrates McCallum did not raise his arguments about timing when the trial court was considering the motion to compel. This failure to raise the argument results in a forfeiture of the argument. (See Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1381 [failure to raise issue in trial court is deemed a waiver of the point on appeal].)

Third, under California’s constitutional doctrine of reversible error, an appellant must affirmatively demonstrate “the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) The “miscarriage of justice” standard is satisfied when there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached. (Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606, 617; see In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1051 [doctrine of reversible error requires appellant to establish prejudice].) Here, McCallum has not demonstrated the claimed error relating to the interrogatories and corresponding motion to compel had any effect on the outcome of the motion for summary judgment, which was based on the deemed admissions. Therefore, we conclude McCallum has not shown the ruling on the motion to compel interrogatory responses or the timing of that ruling caused any prejudice to his case.

Based on the foregoing three grounds, we conclude McCallum has not demonstrated reversible error.

B. Proof of Service

McCallum contends defense counsel “would use his legal aid to sign his proof of service and also to write responses to the court. This is not legal.” This contention lacks merit because it is based on an incorrect view of California law.

Section 1013a addresses the preparation of a proof of service by mail. Nothing in this section requires the attorney who prepared the document to complete the related proof of service. Rather, the statute refers to an affidavit “showing the name and residence or business address of the person making the service .…” (§ 1013a(1), italics added.) “[T]he person making the service” by mail must satisfy the criteria set forth in the statute—specifically, the person must be “a resident of or employed in the county where the mailing occurs,” must be “over the age of 18 years,” and must not be “a party to the cause.” (§ 1013a(1).) These criteria can be (and customarily are) met by someone other than the attorney who prepared the document being served.

A widely used practice guide states: “Frequently, the secretary or other person doing the mailing declaration does not actually put the mail in the U.S. mailbox, but gives it to someone in the office for this purpose. In such cases, the declarant must state” additional information prescribed in subdivision (3) of section 1013a about the business’s practices for the collection of mail. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 9:86.3, p. 9(I)-55.) Thus, the statute and practice guide demonstrate a legal assistant or other law firm employees are authorized to sign a proof of service attached to a document prepared by counsel. Accordingly, we reject McCallum’s claim that the proofs of service were “not legal.”

C. McCallum’s Discovery

McCallum contends that during discovery he asked for the names of the persons who signed the petition Batista presented to the board on April 17, 2018. McCallum asserts he “asked for them 4 times and it was never ruled on. Finally, I sent a Motion to Compel and the court said the case was over.” As with his other arguments, McCallum provides no citations to the record to support his assertions of fact and his designation of the record on appeal does not include his four requests for information, his motion to compel, or any response by the court to that motion. (See Jameson, supra, 5 Cal.5th at pp. 608–609 [if the record designated by appellant is inadequate for meaningful review, appellant cannot carry his burden of demonstrating error and the decision of the trial court should be affirmed].) As a result of these omissions, McCallum is deemed to have waived this argument relating to his discovery.

Moreover, McCallum does not explain how the trial court’s handling of his discovery requests resulted in Batista’s motion for summary judgment being erroneously granted. In particular, he has not shown the treatment of his discovery had any impact on the deemed admissions. These deemed admissions were the foundation for Batista’s motion for summary judgment. Thus, even if there were an error relating to McCallum’s discovery requests, he has not shown there is a reasonable probability that in the absence of the error, a result more favorable to him would have been reached. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) Thus, McCallum has not demonstrated any error in the handling of his discovery requests was prejudicial. (See Cal. Const., art. VI, § 13.)

D. Lack of Notice

McCallum’s opening brief includes the following argument as to why his appeal should be granted: “Defendant’s lawyer had the jurisdiction changed without my approval and set up a summary judgment without my knowledge. I was told about this judgement 7 days after it was ruled on, when the judge gave only 5 days to respond.” McCallum provides no citations to the record to support the factual assertions in this argument. Also, the record he designated for appeal did not include any documents demonstrating the lack of notice.

There are, however, documents in the appellate record supporting the inference that McCallum did not receive notice of the motion for summary judgment. For instance, the trial court’s one-page minute order stated the “unopposed motion for summary judgment by defendant is GRANTED.” The absence of an opposition provides a small amount of support for the inference that McCallum did not receive notice. In addition, the respondent’s augmented record included a document labeled “ENOUGH INFORMATION HAS ALREADY BEEN PRESENTED” in which McCallum disagreed with the granting of Batista’s motion for summary judgment. The document was signed by McCallum, dated May 9, 2019, and stated: “I disagree with any summary judgment. I was not told the time or date of this hearing. I was not told of this hearing until a week after it was over.”

In comparison, the record also contains documents showing McCallum was notified of the motion. The proof of service attached to the notice of motion and motion for summary judgment states it was served by placing a copy in an envelope addressed to McCallum at the address listed on the face of his complaint and placing the envelope, postage fully prepaid, in the area designated for outgoing mail in accordance with the declarant’s office’s practices. The declaration in the proof of service is “sufficient to raise a rebuttable presumption that the notice has been received in the ordinary course of mail.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 9:86.3a, p. 9(I)-55; see Evid. Code, § 641 [letter received in ordinary course of mail].) Similar proofs of service are included with the memorandum of points and authorities in support of the motion for summary judgment, the separate statement of undisputed material facts, and a supporting declaration. “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper.” (Dill, supra, 24 Cal.App.4th at pp. 1441-1442.) The rebuttable presumption can be overcome by detailed and credible declarations that notice was not actually received. (See Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1481 (Bonzer).)

Here, the record does not show McCallum challenged the proofs of service prior to the grant of the motion for summary judgment. Thus, when the trial court granted the motion, it properly relied on the proofs of service. In addition, after learning the motion for summary judgment had been granted, McCallum did not raise the issue of the failure to receive the mailed documents in a procedurally appropriate way with the trial court. For instance, unlike the appellant in Bonzer, McCallum did not file a motion to set aside the judgment pursuant to section 473 and support that motion with a detailed declaration showing notice was not actually received. (Bonzer, supra, 20 Cal.App.4th at pp. 1479-1481 [six detailed, credible and unimpeached declarations of no actual notice precluded trial court from inferring the subject notices had been received; denial of motion for relief from judgment reversed].) Consequently, we conclude McCallum’s claim that he did not receive notice of the summary judgment motion lacks evidentiary support and fails to demonstrate reversible error.

DISPOSITION

The judgment is affirmed. Batista shall recover his costs on appeal.

Judge Pauline Maxwell
Department 6 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Sheila Gianelli vs Mark Schwarz et al
Case No: 18CV02660
Hearing Date: Wed Mar 11, 2020 9:30

Nature of Proceedings: OSC Re Contempt and Issue Sanctions

Tentative Ruling: The court strikes the motion of defendants Eric A. Woosley and Law Office of Eric A. Woosley for an order to show cause, issue sanctions, and monetary sanction as untimely.

Background: On May 5, 2017, plaintiff filed an action in the Superior Court, Contra Costa County, against defendants Mark Schwartz, Eric Woosley, and Don Dennis, Jr., for legal malpractice, breach of fiduciary duty, and fraud. The action arises out of defendants’ representation of plaintiff in her action against The Home Depot in the United States District Court for the Eastern District of California (the “Home Depot case”).

In an order dated January 8, 2018, the Contra Costa Superior Court transferred the action to this county. Defendants Law Office of Eric A. Woosley, a Professional Corporation (erroneously sued as Eric Woosley), Mark Schwartz, and Don Dennis, Jr., answered the complaint. On February 11, 2019, plaintiff dismissed Dennis with prejudice.

On February 3, 2020, the court continued the Trial Confirmation Conference of February 19, 2020, to March 11, 2020, at 11:30 a.m. in Department 6. The court ordered that all trial related deadlines will be based on the new Trial Confirmation date.

Motion: Defendants Eric A. Woosley and Law Office of Eric A. Woosley move for an order to show cause re contempt, for issue sanctions, and a monetary sanction. The motion arises out of this court’s November 27, 2019 order granting, in part, defendants’ motion to compel plaintiff’s deposition testimony. Specifically, the court ordered that, “because there is nothing incriminating about helping someone with legal documents (so long as the person does not provide legal advice or engage in the practice of law), plaintiff will be required to answer questions about whether [her husband Eric Cover (“Cover”)] helped her prepare documents in this case. … Plaintiff must also answer questions about whether Cover helped her prepare any of the documents in this case. Plaintiff will not be required to testify about whether she received any help from a licensed attorney in drafting her complaint or about any matters relating to Cover’s criminal conviction.”

This is a motion concerning discovery, which must be heard on or before the 15th day before trial. CCP § 2024.020. This motion is scheduled to be heard on the day of trial. The court strikes the motion of defendants Eric A. Woosley and Law Office of Eric A. Woosley for an order to show cause, issue sanctions, and monetary sanction as untimely.