Case Number: BC520671 Hearing Date: June 23, 2014 Dept: 46

Posted 6-20-2014 at 10:55 a.m.

Case Number: BC520671
PANORAMA RANCH LLC ET AL VS PETER WALLACE ORR ET AL
Filing Date: 09/09/2013
Case Type: Other Real Property Rights Case (General

06/23/2014 at 08:31 am in department 46 at 111 North Hill Street, Los Angeles, CA 90012
Demurrers/Motions to Strike/Conference-Case Management

TENTATIVE RULING [MOTIONS]: PETER WALLACE ORR’S demurrer to the First Amended Complaint (FAC) pursuant to CCP 430.10(e) and (f) is OVERRULED. Defendant ORR shall have 20 days to file an Answer. PETER WALLACE ORR’S motion to strike portions of the FAC pursuant to CCP 436(a) is DENIED in part: Paragraphs 58, 59, 68, 69, 73 and 74 and Items No. 10 are NOT stricken) and GRANTED in part without prejudice (Paragraphs 60, 70, 75, 82 and Item Nos. 11 and 12 are ordered stricken from the FAC.) MSE’s DEMURRER (pursuant to CCP §§430.10(e) & (f), TO THE FAC is OVERRULED. Defendant MSE shall have 20 days to file an Answer. MSE’S motion to strike portions of the FAC is GRANTED – Paragraphs 60, 70, 75, 82, and ITEM 11 of prayer are ordered stricken without prejudice.

TENTATIVE RULING [CASE MANAGEMENT CONFERENCE]: Matter to be set for court trial on 04/22/2015 at 9:30 a.m. and a final status conference on 04/07/2015 at 8:30 a.m. In the CMC statements of the parties filed on 1/24/2014 the parties all agree to meditation. The court orders the parties to select a mutually agreeable mediator by 11/25/2014, complete mediation by 1/30/2015 and then return to court for post-mediation conference on 2/05/2015 at 8:30 a.m. in Dept. 46. The parties are to comply with the CMC order which is issued separately and follows the discussion regarding the rulings on motions.

DISCUSSION RE RULINGS ON DEMURRERS AND MOTIONS TO STRIKE

PETER WALLACE ORR’S DEMURRER TO FIRST AMENDED COMPLAINT PURSUANT TO CCP §430.10(e) & (f) – OVERRULED

Plaintiff has properly alleged each of the elements of a breach of contract in the FIRST CAUSE OF ACTION – As such, the demurrer is overruled

1. “A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff. (Reichert v. General Ins. Co. (1968) 68 C.2d 822, 830).” Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 C.A.3d 1371, 1388.

2. Plaintiffs have alleged these required elements, in ¶¶10-20, 32-36 and 46-49.

3. Orr’s argument is that “[t]here is no explanation whatsoever for whether the barrier was up 24-7, or was up and down or exactly what happened? Instead, we are faced with the conclusionary allegations that there was a barrier erected which prevented access to Mr. Kay’s parcels. But there is no explanation as to how he used his parcels for 8 months without bringing suit, or bringing any request for relief. Yet the interference is the basis for all of the damage requests.” (Demurrer, 1:20-25). This is an improper basis for demurrer since Plaintiff are not required to explain how they were denied access to their property, only that it was denied.

The plaintiffs THIRD THROUGH SEVENTH CAUSES OF ACTION FOR Conversion; Misappropriation of Trade Secrets, Statutory; Misappropriation of Trade Secrets, Common Law; and Intentional/Negligent Interference with Prospective Economic Advantage (Respectively) are all properly pled.

1. As to all of these causes of action Orr does not contend that Plaintiffs have not alleged the elements of each of these cause of action; rather, the argument is that “with respect to the causes of actions related to the confidential financial information (causes of action numbers 3-7), no facts are pled which would in any way lead anyone to conclude that Mr. Orr had anything whatsoever to do with Kay’s former employee, Valentin Romero, and thus accusing him of ‘unfair competition’ makes no sense without a factual basis.” (Demurrer, 1:26-2:2). This is not a proper basis to sustain a demurrer because of the conspiracy allegations. Plaintiffs have alleged that it “is informed and believes that beginning in November 2012, defendants ORR and ROMERO colluded and conspired to orchestrate a burglary and theft of computer and computer equipment from SOUTHLAND’s radio facility located at 8611 Apian Way, Hollywood Hills, CA. Said theft occurred on or about November 14, 2012.” (FAC, ¶ 37). (emphasis added)

2. These allegations of conspiracy are sufficient to require the court to overrule the demurrer as to all the of causes of action as to Mr. Orr. “Although conspiracy to commit a tort is not a separate cause of action from the tort itself, alleging a conspiracy fastens liability on those who agree to the plan to commit the wrong as well as those who actually carry it out. (Applied Equipment Corp. v. Litton Saudi Arabia, Ltd. [(1994)] 7 C.4th [503,] at pp. 510-511). The elements of a civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act done in furtherance of the common design. ( Id. at p. 511.) Liability may also be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person. (Rest.2d Torts [(1979)] § 876, subds. (b), (c); and see Central Bank of Denver v. First Interstate Bank of Denver (1994) 511 U.S. 164; Coffman v. Kennedy (1977) 74 C.A.3d 28, 31-32).” Saunders v. Superior Court (1994) 27 C.A.4th 832, 845-846.

PETER WALLACE ORR’S MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT PURSUANT TO CCP §436(a) – MOTION TO STRIKE IS DENIED in part (i.e., as to ¶¶ 58, 59, 68, 69, 73 and 74 and Items No. 10) and GRANTED in part without prejudice (as to ¶¶ 60, 70, 75, 82 and Item Nos. 11 and 12).

1. The motion to strike is directed to ¶¶ 58-60, 68-70, 73-75 and 82 and Items Nos. 10-12 of the prayer, on the basis that they constitute irrelevant matter and/or surplusage.

2. The stricken paragraphs relate to a claim for punitive damages and seeking an order for attorney’s fees.

3. With respect to punitive damages, CC § 3294 states, in relevant part, as follows:

“(a) In an action for the breach of an obligation not arising from contract,
where it is proven by clear and convincing evidence that the defendant has
been guilty of oppression, fraud, or malice, the plaintiff, in addition to the
actual damages, may recover damages for the sake of example and by way
of punishing the defendant…
(c) As used in this section, the following definitions shall apply:
(1) ‘Malice’ means 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.
(2) ‘Oppression’ means despicable conduct that subjects a person to cruel
and unjust hardship in conscious disregard of that person’s rights.
(3) ‘Fraud’ 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…”

“'[T]he standard of ‘clear and convincing evidence’… has been defined by our Supreme Court to be proof by evidence that is ‘”’clear, explicit, and unequivocal” “so clear as to leave no substantial doubt” and “sufficiently strong to demand the unhesitating assent of every reasonable mind.”’” In re Michael B. (1983) 149 C.A.3d 1073, 1087 (citations omitted).

At present the claim for entitlement to punitive damages are not supported by more than mere conclusions unsupported by evidentiary facts. “[A] conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ within the meaning of section 3294.” Brousseau v. Jarrett (1977) 73 C.A.3d 864, 872 (citations omitted).

4. With respect to attorney’s fees, Plaintiffs have not pled a contractual or statutory basis for same.

MSE’s DEMURRER (pursuant to CCP §§430.10(e) & (f), TO THE FAC is OVERRULED

1. The demurrers are overruled for the same legal reason that the court overruled the demurrers filed by Mr. Orr. Plaintiffs have alleged that Defendants Orr and MSE owned parcels of land identified as APN 4464-009-005 and 4464-025-004, which comprise the servient tenements of the Grant Deed Easement granted to land owned by P Panorama, identified as APN 4464-022-013, 4464-009-007. They have also alleged that Defendant Orr was acting as Defendant MSE’s agent at the time he allegedly misappropriated Plaintiffs’ trade secrets.

MSE’S MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT PURSUANT TO CCP §436(a) – MOTION TO STRIKE IS GRANTED (i.e., as to ¶¶ 60, 70, 75, 82, and ITEM 11 of prayer without prejudice.

Plaintiff has not yet showed entitlement to punitive damages or attorney’s fees on the same basis as with respect to the ruling on the Orr motion to strike.

CASE MANAGEMENT ORDER

Case Number: BC520671
PANORAMA RANCH LLC ET AL VS PETER WALLACE ORR ET AL

Trial and Final Status Conference

Trial is set for 4/22/2015 at 9:30 a.m. in Department 46.

Final Status Conference is set for 4/07/2015 at 8:30 a.m. in Department 46.

Jury Instructions and Verdict Form

The Court settles jury instruction and the verdict form at the Final Status Conference. A jury panel will not be ordered until the instructions and verdict form are settled.
Counsel and self-represented parties with authority to agree on jury instructions and the verdict form shall meet and confer in person within thirty (30) days of the Final Status Conference regarding jury instructions and a special verdict form with interrogatories. All counsel and self-represented parties shall bring to that meeting their requested jury instructions and special verdict form with interrogatories.
As required by LASC Local Rule 3.25(g)(7), counsel and self-represented parties shall present at the Final Status Conference one joint set of agreed jury instructions, one joint set of disputed jury instructions and one joint agreed special verdict with interrogatories. Jury instructions must be formatted as required by Cal. Rules of Court (CRC) 2.1055.
Any disputed jury instructions that is not a form instruction as approved by BAJI or CACI shall contain a citation to the case in support of the instruction with a page citation to the portion of the case that supports the instruction. If federal or out-of-state citations are included, a copy of the entire case must be lodged with the court in accordance with CRC 3.1113(i).

Motions in Limine

Motions in limine shall be noticed pursuant to CCP §1005(b) to be hear at the Final Status Conference and shall comply with LASC Rules 3.25(g)(2) and 3.57.

Counsel shall seek and obtain from the Court an alternate briefing schedule if it is not possible to notice a motion in limine for the Final Status Conference on 16 days notice, such as motions in limine regarding expert witnesses.

Witness and Exhibit Lists

Witness and exhibits lists shall be filed and served in compliance with LASC Local Rule 3.25(f)(1).

Alternative Dispute Resolution

The parties have agreed to mediate. Counsel shall select the mediator by 11/30/2014. The mediation shall be completed by 1/30/2015. Post-Mediation status conference is set for 02/05/2015 at 8:30 a.m. in Dept. 46.
All parties including persons with authority to settle, and lead trial counsel shall be physically present at the mediation. Insurance claims representatives assigned to the file and located in California shall be physically present. Insurance claims representatives assigned to the file and located outside California shall be available by telephone during the entire mediation.
Counsel participating in any form of alternative dispute resolution shall comply with CRC 3.1380(b). The mediator has no authority to make any exceptions to this order.

Motions

Objections to evidence filed in connection with any motion shall be in the format required by CRC 3.1354(b). Counsel shall lodge a proposed order on objections in the format specified in CRC 3.1354(c). Objections must be filed and proposed orders lodged at the time of the opposition or reply brief or objections will be waived.
All citations to federal or out of state authorities shall be accompanied by lodged out of state authorities in the format specified by CRC 3.1113(i).
No more than one (1) summary judgment/adjudication to be filed per party.

Trial

On the first date of trial, all counsel and self-represented parties will bring to court five sets of three ring binders containing exhibits. Exhibits must be sequentially numbered, starting from the number 1, on the lower right side of each page.
Counsel and self-represented parties are to assign trial exhibit numbers so there are no duplicate exhibit numbers.
Counsel and self-represented parties are ordered to meet and confer so that exhibits not in dispute can be admitted at the beginning of each party’s case.
Counsel and, where applicable, parties and witnesses, shall comply with LASC Local Rules 3.70 – 3.193.

IT IS SO ORDERED:

Dated: _______________________________
FREDERICK C. SHALLER
Judge of the Superior Court