LORETA S TUPARAN VS GOLDEN CROSS HEALTH CARE

DEPARTMENT A LAW AND MOTION RULINGS

Case Number: 19BBCV00117 Hearing Date: August 02, 2019 Dept: A

Pogosyan v Bristol West Ins. Services

Motion to Compel Form Interrogatories (x2);

Motion to Deem Requests for Admission Admitted (x2)

Calendar:

Case No.:

19BBCV00117

Hearing Date:

August 02, 2019

Action Filed:

February 06, 2019

Trial Date:

Not Set

Motion to Compel Form Interrogatories (Vazgen Pirijanyan)

MP:

Defendant Coast National Insurance Company

RP:

N/A

Motion to Compel Form Interrogatories (Lidoush Pogosyan)

MP:

Defendant Coast National Insurance Company

RP:

N/A

Motion to Deem Requests for Admission Admitted (Vazgen Pirijanyan)

MP:

Defendant Coast National Insurance Company

RP:

N/A

Motion to Deem Requests for Admission Admitted (Lidoush Pogosyan)

MP:

Defendant Coast National Insurance Company

RP:

N/A

ALLEGATIONS:

The instant action arises from an insurance coverage dispute related to a hit-and-run car collision that occurred on or about February 19, 2017. Plaintiff Vazgen Pirijanyan (“Pirijanyan”) is alleged to have been the driver and injured party in the underlying incident, while Plaintiff Lidoush Pogosyan (“Pogosyan” and together with Pirijanyan the “Plaintiffs”) is the individual who contracted with the relevant insurance agencies. Defendants Bristol West Insurance Services of California, Inc. (“Bristol”), Farmers Insurance Group (“Farmers”), and (as amended into the Complaint as Doe 1) Coast National Insurance Company (“Coast” and collectively the “Defendants”) are alleged to have wrongly denied Pirijanyan’s claim for coverage following the underlying incident.

In the February 06, 2019, Complaint Plaintiffs allege five (5) causes of action sounding in (1) Breach of Contract – Third Party Beneficiary, (2) Breach of Express Warranty, (3) Breach of Implied Warranty, (4) Indemnification, and (5) Contribution.

PRESENTATION:

The instant motions to compel responses to Form Interrogatories, and to deem Requests for Admission Admitted were filed by Coast on June 28, 2019. The Court has not received any opposition.

RELIEF REQUESTED:

Defendant Coast National Insurance Company moves to compel responses to form interrogatories, and to deem requests for admission admitted.

DISCUSSION:

Standard of Review – Where a party fails to timely respond to discovery requests, the propounding party may move for an order of Court compelling responses to the outstanding written discovery. Code of Civ. Proc. §2030.290 (interrogatories); Code of Civ. Proc. §2031.300. If a party fails to timely respond to requests for admissions, the propounding party may move for a Court order deeming the Requests for Admission admitted. Code of Civ. Proc. §2033.280. An untimely responding party waives all objections, including privilege, unless they subsequently serve responses in substantial compliance with the Civil Discovery Act and demonstrate that their failure is the result of mistake, inadvertence, or excusable neglect. Code of Civ. Proc. §2030.290(a); §2031.300(a); §2033.280(a). The Court shall impose monetary sanctions for failure to timely respond to interrogatories or requests for production unless the party acted with substantial justification or the circumstances render imposition of sanctions unjust. Code of Civ. Proc. §2030.290(c); §2031.300(c). For untimely responses to Requests for Admission, the Court shall deem the Requests for Admission admitted unless the responding party serves a code compliant response prior to the hearing. Code of Civ. Proc. §2033.280(c). The Court must impose a monetary sanction on the party or attorney whose failure to serve timely Requests for Admission responses necessitated the motion. Id.

On review of the moving papers, Coast has established a prima facie right to relief on each of the four motions. Because no opposition has been filed, the motions are conceded by Plaintiffs. As to the issue of sanctions, the Court has reviewed the Declarations submitted together with the moving papers, and the Court will adjust the sanctions award to a more reasonable $250.00 per motion plus $60.00 filing fee for a total set forth below

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RULING:

Grant and award sanctions in the amount of $1,240.00 total.

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In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Coast National Insurance Company’s Motions to Compel Responses to Form Interrogatories and Motions to Deem Requests for Admission Admitted came on regularly for hearing on August 02, 2019, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

The motions are: GRANTED IN THEIR ENTIRETY;

PLAINTIFFS ARE EACH ORDERED TO PROVIDE FULL, VERIFIED, CODE-COMPLIANT RESPONSES WITHOUT OBJECTION TO FORM INTERROGATORIES WTIHIN TWENTY DAYS;

DEFENDANT COAST’S REQUESTS FOR ADMISSION AS TO EACH PLAINTIFF ARE DEEMED ADMITTED; AND

PLAINTIFFS VAZGEN PIRIJANYAN AND LIDOUSH POGOSYAN ARE EACH ORDERED TO PAY SANCTIONS IN THE AMOUNT OF $620.00 TO COUNSEL FOR MOVING PARTY.

DATE: _______________ _______________________________

JUDGE

Case Number: 19STCV08953 Hearing Date: August 02, 2019 Dept: A

Scott v Burbank Unified School District

Motion to Change Venue

Calendar:

Case No.:

19STCV08953

Hearing Date:

August 02, 2019

Action Filed:

March 19, 2019

Trial Date:

Not Set

MP:

Plaintiff Sylvia Veronica Scott

RP:

Defendant Burbank Unified School District

ALLEGATIONS:

The instant action arises from the alleged wrongful termination and defamation of Plaintiff Sylvia Veronica Scott (“Plaintiff”) by Defendant Burbank Unified School District (“Defendant”). In her Complaint Plaintiff alleges that she reported missing children and drug use, which caused Defendants to terminate her employment and label her a ‘whistleblower’, which has interfered with her employment at other educational institutions.

Plaintiff filed her Complaint on March 14, 2019, alleging two causes of action for (1) Wrongful Termination and (2) Defamation. Defendant filed an Answer on May 23, 2019.

PRESENTATION:

The instant motion to change venue was filed by Plaintiff on July 10, 2019. Defendant submitted opposition to the motion on July 22, 2019.

RELIEF REQUESTED:

Plaintiff moves the Court to order the venue changed from the Los Angeles County Superior Court to the Orange County Superior Court.

DISCUSSION:

Standard of Review – Under Code of Civ. Proc. §397, the court may, on motion, change the place of trial in the following cases: (a) When the court designated in the complaint is not the proper court; (b) When there is reason to believe that an impartial trial cannot be had therein; (c) When the convenience of witnesses and the ends of justice would be promoted by the change; (d) When from any cause there is no judge of the court qualified to act; (e) When a proceeding for dissolution of marriage has been filed in the county in which the petitioner has been a resident for three months next preceding the commencement of the proceeding, and the respondent at the time of the commencement of the proceeding is a resident of another county in this state, to the county of the respondent’s residence when the ends of justice would be promoted by the change. Code of Civ. Proc. §397. A change of place of trial from one place to another in the same county is not within this section, which applies only to a change from one county to another. Barber v. Palo Verde Mut. Water Co. (1926) 198 Cal. 649. A change of venue under Code of Civ. Proc. §397(c) (allowing change of venue for the convenience of witnesses and for the ends of justice), militates towards a change in venue when witnesses are in the other venue, documents are in the other venue, and when the incident occurred in the other venue. See, e.g., Richfield Hotel Management, Inc. v. Superior Court (1994) 22 Cal. App. 4th 222 (Holding that the ends of justice militate towards a change of venue when “All of the designated witnesses live or work in the area… All of the relevant events allegedly took place in [the other county]. All of the relevant documents would be there.”).

Plaintiff’s motion is predicated on the argument that a fair trial cannot be conducted in the County of Los Angeles because (1) Plaintiff “experiences harassment, threats, and interference with the case from Los Angeles Court Personnel”, (2) “many staff members and possibly a Judge were recently given federal criminal charges”, and (3) that the “Commission on Judicial Performance in San Francisco, recently receives my complaints against both Los Angeles and Burbank Superior Courts.” Plaintiff relies on Code of Civ. Proc §394, San Francisco Found. v. Superior Court (1984) 37 Cal. 3d 285, Stockton v. Wilson (1926) 79 Cal. App. 422, and other cases to argue that the instant matter should be transferred to Orange County as a neutral county.

In opposition, Defendant argues that Code of Civ. Proc. §394 does not stand for the proposition that Plaintiff can change venue in the instant circumstances, and, in fact supports maintaining the action in the instant county under the express language of the statute. Additionally, Defendant contends that Plaintiff has failed to meet her burden under Code of Civ. Proc. §397 in establishing a prima facie basis for the transfer, as Plaintiff’s beliefs about the court staff do not constitute reasonable basis to believe that Plaintiff will be unable to empanel an impartial jury or that no judge in the County is qualified to act.

The question turns on whether Plaintiff has sufficiently demonstrated with evidence that there is reason to believe that an impartial trial cannot be had in the instant venue. To justify a transfer under subsection (b), “a showing of actual prejudice to the moving party” is required. Ohio Casualty Insurance Group v. Superior Court (1994) 30 Cal. App. 4th 444, 452. In Ross v. Kalin, infra, the court found that transfer was not required despite a showing that, 20 months prior to the hearing, “there had been a strong and bitter feeling of prejudice against the [moving party] in the minds of ‘a large number’ of residents of the county . . . [and non-moving parties and their friends] have been endeavoring to prejudice the minds of the people against [the moving party] to prevent his having an impartial trial.” Ross v. Kalin (1921) 53 Cal. App. 616, 619. The Court noted specifically that the difficulties of proof “would not justify the court in ignoring the rules of evidence to base its order on suspicion, or conjecture, or hearsay.” Id.

Here too, Plaintiff’s assertions of prejudice are based on personal outlooks, if not conjecture and hearsay. Nothing in the record indicates that Plaintiff has suffered any prejudice to her action by the conduct of the court staff; nothing in the record indicates that there is a federal criminal action against staff and judicial officers; and nothing in the record indicates that she will be incapable of having a fair trial in this county, by a jury of this county, and presided over by a judge of this county. At the inception of the case, there was an unfortunate incorrect assignment of the matter to Judge Berle; this occurred because the box number 5 on the Civil Case Cover Sheet had been checked “Yes” indicating that this case was a class action which is a type of case handled by Judge Berle. When it became apparent that the assignment was incorrect, Judge Jessner, the Supervising Judge of the Civil Division of the Los Angeles Superior Court, assigned the matter to this department.

So far as the Commission on Judicial Performance is concerned, their proceedings are made public when they reach a decision and publish their findings and orders, subject to review by the California Supreme Court.

In terms of a fair trial, jurors are assigned to this court house from a circle which extends up to, but no more than twenty miles from the courthouse. There is no inherent preference for jurors from the City of Burbank. The County of Los Angeles has a population greater than 41 other entire states, so the randomness of jury selection is assured by this fact if by none other. (Only California, Texas, Florida, New York, Massachusetts, Pennsylvania, Ohio, Illinois and Virginia have a larger population than Los Angeles County. Forty-one other states have a smaller population.)

The Court notes that Code of Civ. Proc. §394 provides that the proper venue for a local public agency brought into litigation as a defendant is generally the county in which that agency resides. See Code of Civ. Proc. §394(a) (“Whenever an action or proceeding is brought against a county, city and county, city, or local agency, in any county, or city and county, other than the defendant, if the defendant is a county, or city and county, or, if the defendant is a city, or local agency, other than that in which the defendant is situated, the action or proceeding must be, on motion of that defendant, transferred for trial to a county, or city and county, other than that in which the plaintiff, or any of the plaintiffs, resides, or is doing business, or is situated, and other than the plaintiff county, or city and county, or county in which that plaintiff city or local agency is situated, and other than the defendant county, or city and county, or county in which the defendant city or local agency is situated; provided, however, that any action or proceeding against the city, county, city and county, or local agency for injury occurring within the city, county, or city and county, or within the county in which the local agency is situated, to person or property or person and property caused by the negligence or alleged negligence of the city, county, city and county, local agency, or its agents or employees, shall be tried in that county, or city and county, or if a city is a defendant, in the city or in the county in which the city is situated, or if a local agency is a defendant, in the county in which the local agency is situated.”).

If plaintiff uncovers admissible evidence to support the basis for the request to change venue, a motion on these or other grounds may be filed at any time according to the statutes and the rules.

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TENTATIVE RULING: Deny the motion to change venue.

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ORDER

Plaintiff Sylvia Veronica Scott’s Motion to Change Venue came on regularly for hearing on August 02, 2019, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

The motion is: DENIED IN ITS ENTIRETY

DATE: _______________ _______________________________

JUDGE

Case Number: BC655051 Hearing Date: August 02, 2019 Dept: A

Tuparan v Golden Cross Health Care

Demurrer & Motion to Strike

Calendar:

Case No.:

BC655051

Hearing Date:

August 02, 2019

Action Filed:

March 23, 2017

Trial Date:

Not Set

MP:

Defendant 1450 North Fair Oaks, LLC d/b/a Golden Cross Healthcare

RP:

Plaintiff Lori S. Tuparan

ALLEGATIONS:

The instant action arises out of the alleged wrongful death of Nicolas Tuparan (“Decedent”) from the alleged improper acts of Defendants Golden Cross Healthcare a d/b/a of 1450 North Fair Oaks, LLC, and Golden Cross Care, Inc. (“Golden Cross”); Vida Arevalo (“Arevalo”); Vitas Hospice Services, LLC, and Vitas Healthcare Corp. of California (“Vitas”); Kindred Healthcare Operating, Inc., and KND Development 54, LLC d/b/a Kindred Hospital Riverside (“Kindred”); and Dr. Neil D. Katchmen (“Katchmen” and collectively the “Defendants”). Plaintiff Loreta Tuparan, brings the action individually, as successor in interest to Nicolas Tuparan, and as attorney-in-fact for Aurora Tuparan, Apolonia De Vera, Ellen Leonardo, Eva Rana, Esther Villanueva, Abimael Tuparan, Enrique Tuparan, Jemima De Leon, and Nicomedes Tuparan (collectively the “Plaintiffs”). Plaintiffs claim that the Defendants provided medication to the Decedent against his stated will, would not assist him with hygiene, did not feed him properly, did not provide sufficient medical care, and as a result the decedent died.

The operative Second Amended Complaint (“SAC”) was filed on January 16, 2018, and alleges six causes of action for: (1) Willful Misconduct; (2) Negligence; (3) Elder Abuse; (4) Breach of Fiduciary Duty; (5) Wrongful Death; and (6) Malpractice.

PRESENTATION:

The time to answer the SAC was stayed pursuant to arbitration proceedings that were conducted by and between Plaintiffs and Kindred. The arbitration resulted in a settlement that was adjudicated a good faith settlement on March 29, 2019.

Golden Cross filed the instant demurrer and motion to strike on June 12, 2019, demurring to the First, Third, Fourth, and Fifth Causes of Action, and moving to strike attorneys fees and punitive damages. Plaintiffs filed opposition to both motions on July 17, 2019.

RELIEF REQUESTED:

Golden Cross demurs to the First, Third, Fourth, and Fifth Causes of Action.

Golden Cross moves to strike Plaintiffs’ request for attorney’s fees and punitive damages.

DISCUSSION:

Standard of Review – Demurrer – The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. Code Civ. Proc. §430.30,(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action – i.e., if the complaint pleads facts that would entitle the plaintiff to relief. LiMandri v. Judkins (1997) 52 Cal. App. 4th 326, 339.

A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof. Blank, supra, 39 Cal. 3d at p. 318. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal. App. 4th 698, 709. A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. Blank, supra, 39 Cal. 3d at p. 318.

Pursuant to Code Civ. Proc. §430.10(e) and (f), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).

Meet and Confer – Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3).

The Court has reviewed the Declaration of Ashley Davies, and finds that Golden Cross has satisfied its meet and confer obligations.

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First Cause of Action (Willful Misconduct) – California recognizes three different legal standards that apply regarding actions that sound in reckless or negligent conduct. First, ordinary negligence, which is “an unintentional tort, a failure to exercise the degree of care in a given situation that a reasonable man under similar circumstances would exercise to protect others from harm.” Donnelly v. Southern Pacific Co. (1941) 18 Cal. 2d 863, 869. Second is gross negligence, which “has been defined in California and other jurisdictions as either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct,’” and which is generally a question of fact for the jury. Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal. App. 4th 546, 555. Finally, there is the standard of willful misconduct, which is distinguished even from the standard of gross negligence by “the further intent that the performance be harmful or that it be done with a positive, active and absolute disregard of the consequences.” Hawaiian Pineapple Co. v. Industrial Acci. Com. (1953) 40 Cal. 2d 656, 662.

In order to successfully plead a cause of action sounding in willful misconduct, the facts alleged need to create the inference that the conduct is willful, and not merely negligent. “[W]illfulness generally is marked by three characteristics: (1) actual or constructive knowledge of the peril to be apprehended; (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger; and (3) conscious failure to act to avoid the peril.” Calvillo-Silva v. Home Grocery (1998) 19 Cal. 4th 714, 730; see also Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal. App. 5th 1118, 1140 (“In order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. Willful misconduct is not marked by a mere absence of care. Rather, it involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences.”).

As to Golden Cross’ first argument on demurrer is that the instant cause of action has no basis in California law, the Court concludes pursuant the discussion supra that there is sufficient basis in California jurisprudence to permit causes of action sounding in ‘willful misconduct.’ Demurrer, 11:12-13:7. The Court therefore does not accept Golden Cross’ first argument.

As to Golden Cross’ second argument, Golden Cross argues that Plaintiffs have failed to allege specific facts that support the contention that Golden Cross acted in a willful or intentional manner in the alleged misconduct. Demurrer, 13:8-14:22. The Court has reviewed the SAC, and concurs with Golden Cross’ analysis, in that the SAC fails to state facts sufficient to support the First Cause of Action for Willful Misconduct against Golden Cross. Specifically, the Court notes that Plaintiffs alleged that only a Vitas employee was present when Decedent was choking, and that the Vitas employee failed to perform Cardio Pulmonary Resuscitation on the Decedent, knowing that the result of such failure may be Decedent’s death. SAC ¶67-68, 70-75, 103(a)-(m). Golden Cross is alleged to have been unaware of Decedent’s condition following his choking on oatmeal and eggs, making the element of constructive or actual knowledge of the alleged peril missing from the SAC. SAC ¶¶69-70. To the extent that Plaintiffs have alleged other facts related to the provision of medicine or failure to render adequate care to Decedent as the basis for the cause of action (SAC ¶103[a]-[m]), the Court cannot discern the sequence of events linking the alleged acts to scienter and injury. Without the facts for the causal links alleged between the acts, the knowledge of the harm, and the actual harm, the Court does not permit the instant cause of action to proceed.

As Plaintiffs have failed to allege facts sufficient to support an inference of the cause of action, the First Cause of Action, the demurrer will be sustained.

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Third Cause of Action (Elder Abuse) – Under the Elder and Dependent Adult Civil Protection Act (EADACPA), Welf. & Inst. Code §15600 et seq., a dependent adult is defined as any person residing in California between 18 and 64 who has physical or mental limitations that restrict his ability to carry out normal activities, protect his rights, or whose physical or mental abilities have diminished because of age. Welf. & Inst. Code §15610.23,(a). The elements for dependent adult abuse are: (1) the victim is a dependent adult; and (2)(a) he suffers physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering, beyond negligence; (b) is deprived by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering; or (c) the dependent adult died and the neglect or abuse resulting in pain was reckless, oppressive, fraudulent, or malicious. See Perlin v. Fountain View Management, Inc. (2008) 163 Cal. App. 4th 657, 666. For heightened remedies under EADACPA, “a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 789. “[W]hen the medical care of an elder is at issue, ‘the statutory definition of “neglect” speaks not of the undertaking of medical services, but of the failure to provide medical care.” Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 404–5, as modified (Aug. 24, 2011) (emphasis original)(internal citations omitted).

“To obtain the remedies provided by the Act pursuant to section 15657, ‘a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct.’ [citation] Recklessness refers ‘to a subjective state of culpability greater than simple negligence, which has been described as a deliberate disregard of the high degree of probability that an injury will occur.’ Oppression, fraud and malice involve intentional or conscious wrongdoing of a despicable or injurious nature.” Sababin v. Superior Court (2006) 144 Cal. App. 4th 81, 88–89 (quoting from Delaney v. Baker (1999) 20 Cal. 4th 23).

Golden Cross argues that the SAC fails to allege sufficient facts to maintain the cause of action both as a general matter and as applied to Golden Cross as a corporate defendant when such allegations must be made regarding he participation or ratification of wrongful acts by a managing agent of Vitas. Demurrer, 15:12-21:19. Plaintiffs contend that they have sufficiently alleged Golden Cross’ liability pursuant to their responsibility, and failure, for providing for Decedent’s basic needs, such as food, clothing, shelter, physical care, mental care, and protection from health and safety hazards. Opposition, 8:1-13:3.

As to the factual allegations supporting the cause of action, the Court concurs with Plaintiffs’ assessment of the allegations in the SAC, and notes that there are sufficient facts alleged that Golden Cross deprived decedent of food, adequate clothing, isolated Decedent, and engaged in other acts constituting neglect under Welf. & Inst. Code §15600 et seq. SAC ¶¶40-57.

As to the issue of whether Plaintiffs have sufficiently alleged actions by a managing agent that permit the Elder Abuse action to be maintained against the corporate entity, the Court considers that there are sufficient facts alleged to support an inference that a managing agent ratified the purportedly wrongful conduct. See SAC ¶¶44, 46, & 116-122.

Accordingly, the Court will overrule the demurrer to the Third Cause of Action.

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Fourth Cause of Action (Breach of Fiduciary Duty) – The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary duty, (2) breach, and (3) damages proximately caused by the breach. Stanley v. Richmond (1995) 35 Cal. App. 4th 1070, 1086.

In the moving papers and in the Court’s own investigation into the matter, the Court cannot find any authority that stands for the proposition that a corporate healthcare provider and a patient are in a fiduciary relationship. It is well-founded in law that a doctor and patient are in a fiduciary relationship, but it would appear that the Legislature of California vitiated any possibility for the same type of duty attaching by and between a corporate healthcare provider and a patient by and through the prohibition on the corporate practice of medicine pursuant to Bus. & Prof. Code §2052, 2264, & 2400.

Absent any legal basis for the Court to conclude a fiduciary relationship exists in the first instance, the Court will sustain the demurrer.

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Fifth Cause of Action (Wrongful Death) – “A cause of action for wrongful death is … a statutory claim. (Code Civ. Proc., §§ 377.60–377.62.) Its purpose is to compensate specified persons—heirs—for the loss of companionship and for other losses suffered as a result of a decedent’s death. [Citation.] The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.”

Lattimore v. Dickey (2015) 239 Cal. App. 4th 959, 968 (emphasis original) (quoting Quiroz v. Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1263). As to persons eligible to recover under the wrongful death statutes, Code of Civ. Proc. §377.60 provides in pertinent part: “A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons: (a) The decedent’s surviving spouse, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse, who would be entitled to the property of the decedent by intestate succession.” The elements of the cause of action for wrongful death are (1) the tort (negligence or other wrongful act), (2) the resulting death, and (3) the damages, consisting of the pecuniary loss suffered only by those persons who, because of their relation to the deceased, are presumed to be injured by his or her death, not by persons who are not in the chain of intestate succession. See Quiroz, supra, 140 Cal. App. 4th at 1263-64. This last element is in line with the purpose to compensate specified persons, enumerated at Code of Civ. Proc. §377.60, for the loss of companionship and for other losses suffered as a result of a decedent’s death. Id., at 1263.

The damages recoverable in a wrongful death suit are expressly limited to those not recoverable in a survival action under Code of Civ. Proc. §377.34. See Code of Civ. Proc. §377.61; see also Quiroz, supra, 140 Cal. App. 4th at 1264. Code of Civ. Proc. §377.34 provides that the only damages recoverable in an estate’s lawsuit on the decedent’s cause of action are the damages sustained by decedent before death and punitive damages the decedent would have been entitled to had decedent lived; it expressly excludes damages for the decedent’s pain and suffering. Garcia v Superior Court (1996) 42 Cal. App. 4th 177, 180. Even though Code of Civ. Proc. §377.34 does not permit the estate to recover specific damages for decedent’s pain and suffering, California law permits the estate representative to seek punitive damages for the violation of decedent’s rights. Id., at 186. Also, under Code of Civ. Proc. §§ 377.60 & 377.61, designated surviving relatives or the decedent’s heirs at law can recover pecuniary losses caused by the death, including pecuniary support the decedent would have provided them, and non-economic damages for being deprived of the decedent’s society and comfort. Id., at 186-87.

A complaint for damages for negligent injury to person or property must allege: (1) defendant’s legal duty of care toward plaintiff; (2) defendant’s breach of duty, i.e., the negligent act or omission; (3) injury to plaintiff as a result of the breach, i.e., proximate or legal cause; and (4) damage to plaintiff. Pultz v. Holgerson (1986) 184 Cal. App. 3d 1110, 1117. No strict requirements exist for the form of such allegations. Id.

Golden Cross argues on demurrer that the causal element for wrongful death is missing form the SAC, as the alleged death occurred months after Decedent was discharged from Golden Cross’ care, and the coroner’s report does not indicate any acts or omissions by Golden Cross caused Decedent’s death. Golden Cross additional argues that Kindred’s removal from the action should militate in its favor under the instant circumstances. As to the first argument, the Court notes that whether Golden Cross’ acts and omissions were a substantial contributing factor to Decedent’s death is not assessable by the Court on demurrer, as it must make all inferences in favor of Plaintiffs. As to the second argument related to Kindred’s liability and dismissal from the matter, the Court notes that this is no basis for relief on demurrer, and if Golden Cross contests its liability in comparison to Kindred, the proper place for such argument was in an opposition to the application for good faith settlement, not on demurrer.

Accordingly, the Court will overrule the demurrer to the Fifth Cause of Action.

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Leave to Amend – Plaintiffs do not request leave to amend, and the Court considers that there is no likelihood of successfully amending the pleading to the First and Fourth Causes of Action. Thus, the Court will sustain the demurrer to the First and Fourth Causes of Action without leave to amend.

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Standard of Review – Motion to Strike – The proper procedure to attack false allegations in a pleading is a motion to strike. Code Civ. Proc. §436,(a). In granting a motion to strike made under Code Civ. Proc. §435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” Code Civ. Proc., §436,(a). Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. Code Civ. Proc., §431.10. The court may also “[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.” Code Civ. Proc. §436(b).

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1228-1229. “Under the statute, malice does not require actual intent to harm. Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences.” Pfeifer v. John Crane, Inc. (2013) 220 Cal. App. 4th 1270, 1299 (internal quotations omitted).

The motion to strike is predicated on the Court accepting Golden Cross’ arguments on demurrer and sustaining the demurer on the Elder Abuse and Willful Misconduct Causes of Action without leave to amend, which the Court has not done. Without such outcome on demurrer, the instant motion lacks a substantial basis for obtaining relief, and will be denied, as attorney’s fees and punitive damages may be recoverable pursuant to the Elder Abuse Cause of Action.

Accordingly, the motion will be denied.

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RULING:

Overrule the demurrer on the Second and Fifth Causes of Action, sustain the demurrer on the First and Fourth Causes of Action, and deny the motion to strike.

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ORDER

Defendant 1450 North Fair Oaks, LLC d/b/a Golden Cross Healthcare’s Demurrer to the Second Amended Complaint and Motion to Strike came on regularly for hearing on August 02, 2019, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

The demurrer is: SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE FIRST AND FOURTH CAUSES OF ACTION ONLY; AND

OVERRULED AS TO THE REMAINDER.

The motion to strike is: DENIED IN ITS ENTIRETY.

DATE: _______________ _______________________________

JUDGE

Case Number: EC056720 Hearing Date: August 02, 2019 Dept: A

Samara v Nahigian

Motion for Summary Judgment

Calendar:

Case No.:

EC056720

Hearing Date:

August 02, 2019

Action Filed:

September 06, 2011

Trial Date:

September 10, 2019

MP:

Defendant Haitham Matar, D.D.S.

RP:

Plaintiff Rana Samara

ALLEGATIONS:

The instant action arises out of a personal injury allegedly suffered by Plaintiff Rana Samara (“Plaintiff”) through the alleged professional negligence of Defendant Stephen Nahigian, D.D.S. (“Nahigian”). Plaintiff additionally alleges that Defendant Haitham Matar, D.D.S. (“Matar”) is liable for Nahigian’s acts.

Plaintiff filed her Complaint on September 06, 2011, her First Amended Complaint on November 30, 2011, and operative Second Amended Complaint (“SAC”) on April 02, 2019. In the SAC, Plaintiff alleges a single cause of action sounding in professional negligence.

PRESENTATION:

The Court granted summary judgment in favor of Nahigian on January 02, 2013, following the motion being heard on October 12, 2012. In granting judgment in favor of Nahigian, the Court held that the statute of limitations barred the action and that Nahigian and that Plaintiff was unable to establish the element of causation. During the same hearing, the Court determined that Matar could not establish that the cause of action was barred on the grounds of statute of limitations as to him, due to Plaintiff filing an intent to sue letter extending the deadline by 90 days. Additionally, the Court determined on that motion that Matar had failed to establish a right to judgment on his own provision of dental care to Plaintiff.

Plaintiff appealed the Court’s decision as to Nahigian, and on November 10, 2014, the Second Appellate District affirmed the Court’s determination on the grounds that the statute of limitations barred the action against Nahigian. Matar thereafter filed a second motion for summary judgment, which was heard on May 01, 2015, and granted on July 09, 2015. In the Court’s determination on the second motion for summary judgment, it held that the entry of judgment against Nahigian vitiated the ‘negligent co-venturer’ theory ascribed to Matar on the grounds of res judicata. Plaintiff thereafter appealed the Court’s decision, and on August 02, 2018, the California Supreme Court reversed judgment in favor of Matar by overruling the 150-year-old precedent of People v. Skidmore (1865) 27 Cal. 287, and determining that res judicata did not apply under the circumstances.

The action returned to this Court, and on May 14, 2019, Matar filed this current motion for summary judgment in this action. Plaintiff opposed the motion on July 19, 2019.

RELIEF REQUESTED:

Defendant Haitham Matar, D.D.S. moves for entry of judgment on the sole cause of action for professional negligence.

DISCUSSION:

Standard of Review – A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. Code Civ. Proc. §437c(a). To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any Matarial fact and that the moving party is entitled to judgment as a matter of law. Code Civ. Proc. §437c(c). In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“For purposes of motions for summary judgment and summary adjudication: (1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more Matarial facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of Matarial fact exists but, instead, shall set forth the specific facts showing that a triable issue of Matarial fact exists as to that cause of action or a defense thereto.” Code Civ. Proc. §437c(p)(1).

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to Matarial facts; the court has no power to weigh one inference against another or against other evidence. Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841. In determining whether the facts give rise to a triable issue of Matarial fact, “‘[a]ll doubts as to whether any Matarial, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment . . . .’” Gold v. Weissman (2004) 114 Cal. App. 4th 1195, 1198-99. “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.

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Joint Venturer/Agency Liability – The first grounds upon which Matar moves for adjudication is that he is not liable for the negligent acts of Nahigian because Nahigian and Matar were not engaged in a joint venture. Under Corp. Code §16202, a partnership is formed when any “two or more persons to carry on as coowners a business for profit forms a partnership, whether or not the persons intend to form a partnership.” Corp. Code §16202(a). A prima facie case for the formation of a partnership occurs when a person “receives a share of the profits of a business”. Corp. Code §16202(c).

Additional factors that a court must consider prior to finding the existence of a partnership include (1) the capital contributions of the putative partners, (see Mercado v. Hoefler (1961) 190 Cal. App. 2d 12, 17 [holding that the contribution of labor by one putative partner and capital by another does not preclude the formation of a partnership]), (2) the community of interests between the putative partners and the business, (see Moulin v. Der Zakarian (1961) 191 Cal. App. 2d 184, 189 [there should exist a community of interests such “as empowers each party to make contracts, incur liabilities, manage the whole business”]), (3) joint ownership or liability in the putative partnership, (see Stilwell v. Trutanich (1960) 178 Cal. App. 2d 614, 618 [joint ownership may exist even when legal title to the property at issue is in the name of only one of the putative partners]), (4) the management and control of the business, (see Billups v. Tiernan (1970) 11 Cal. App. 3d 372, 379 [holding that some degree of participation in the management or control of the business is one of the elements of finding the existence of a partnership]), and (5) the sharing of losses and profits (see Holmes v. Lerner (1999) 74 Cal. App. 4th 442).

Ultimately, “[t]he existence and scope of the partnership are facts to be determined by the trial court.” Vineland Homes, Inc. v. Barish (1956) 138 Cal. App. 2d 747, 755. The fact finder must determine the existence of the putative partnership by a preponderance of the evidence. Weiner v. Fleischman (1991) 54 Cal. 3d 476, 490 (“[N]othing in our constitutional, statutory or case law requires a departure from the ordinary civil standard of preponderance of the evidence when a party seeks to establish the existence and scope of an oral joint venture or partnership agreement.”).

Regarding the issue of agency, “[a]n employee is an individual who performs services subject to the right of the employer to control both what shall be done and how it shall be done and an employer is a person for whom an individual performs services as an employee.” Weisman v. Blue Shield of California (1984) 163 Cal. App. 3d 61, 67. “[T]he right to control job performance is the primary factor in determining any employment relationship.” State ex rel. Department of California Highway Patrol v. Superior Court (2015) 60 Cal. 4th 1002, 1012. “An agent is one who represents another, called the principal, in dealings with third persons.” Cal. Civ. Code §2295. “Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.” Huong Que, Inc. v. Luu (2007) 150 Cal. App. 4th 400, 410-11. “An agency is proved by evidence that the person for whom the work was performed had the right to control the activities of the alleged agent.” Van’t Rood v. County of Santa Clara (2003) 113 Cal. App. 4th 549, 572.

On review of the evidence presented by the parties, the Court concludes that there exists a material dispute as to whether Nahigian and Matar were join venturers, and whether Nahigian was Matar’s agent. Specifically, there is evidence that Matar and Nahigian exerted joint control over (1) shared office space (Plaintiff’s Ex. E, 24:15-25), (2) prescription fulfillment software (Plaintiff’s Ex. E, 30:31-33:10), and (3) x-ray machinery (Plaintiff’s Ex. E, 23:7-23; Plaintiff’s Ex. D, 23:15-26:2); there is additional evidence that Matar exclusively controlled the price of procedures and payments remitted to Nahigian (Plaintiff’s Ex. E, 13:1-14:12). These facts are sufficient to create triable issues as to whether Matar and Nahigian were joint-venturers or whether Nahigian was the agent of Matar.

Accordingly, the Court will not grant judgment on this basis.

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First Cause of Action (Professional Malpractice) – In any medical malpractice action, the plaintiff must establish: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. Tortorella v. Castro (2006) 140 Cal. App. 4th 1, 4, fn. 2.

In the remainder of his motion, Matar argues that neither he nor Nahigian breached the applicable standard of care nor caused the injury to Plaintiff through their acts or omissions. As both the issue of the requisite standard of care and causation require expert witness testimony, the Court has reviewed the expert witness declarations of Matar, in the Declaration of William C. Ardary, M.D., D.D.S, and of Plaintiff, in the Declaration of Gregory Doumanian, D.D.S. Pursuant to the Court’s review, the Court determines that Matar has failed to establish a prima facie right to relief, as the expert declaration fails to inform the Court what the requisite standard of care is under the facts of this case. As stated by the Supreme Court of California:

Evidence Code section 801 provides: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and (b) Based on matter … 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.” (Italics added.) Subdivision (b) clearly permits a court to determine whether the matter is of a type on which an expert may reasonably rely.

In Lockheed Litigation Cases (2004) 115 Cal. App. 4th 558, 563 [10 Cal. Rptr. 3d 34], the plaintiffs argued that under Evidence Code section 801, subdivision (b), “a court should determine only whether the type of matter that an expert relies on in forming his or her opinion is the type of matter that an expert reasonably can rely on in forming an opinion, without regard to whether the matter relied on reasonably does support the particular opinion offered.” The Court of Appeal disagreed. “An expert opinion has no value if its basis is unsound. [Citations.] Matter that provides a reasonable basis for one opinion does not necessarily provide a reasonable basis for another opinion. Evidence Code section 801, subdivision (b), states that a court must determine whether the matter that the expert relies on is of a type that an expert reasonably can rely on ‘in forming an opinion upon the subject to which his testimony relates.’ (Italics added.) We construe this to mean that the matter relied on must provide a reasonable basis for the particular opinion offered, and that an expert opinion based on speculation or conjecture is inadmissible.” (Lockheed Litigation Cases, supra, at p. 564, 10 Cal. Rptr. 3d 34.)

….

Thus, under Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or 3) speculative. Other provisions of law, including decisional law, may also provide reasons for excluding expert opinion testimony. [Emphasis added].

See, Sargon Enterprises, Inc. v. Univ. of S. California (2012) 55 Cal. 4th 747, 769–70.

As further stated by the Court:

…“[A] properly qualified expert may offer an opinion relating to a subject that is beyond common experience, if that expert’s opinion will assist the trier of fact.” (Bushling v. Fremont Medical Center (2004) 117 Cal. App. 4th 493, 510, 11 Cal. Rptr. 3d 653 (Bushling ).) “However, even when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise. For example, an expert’s opinion based on assumptions of fact without evidentiary support, or on speculative or conjectural factors, has no evidentiary value and may be excluded from evidence. Similarly, when an expert’s opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an ‘expert opinion is worth no more than the reasons upon which it rests.’ ” [Emphasis added] (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal. App. 4th 1108, 1117, 8 Cal. Rptr. 3d 363 (Jennings ).) “An expert who gives only a conclusory opinion does not assist the jury to determine what occurred, but instead supplants the jury by declaring what occurred.” (Id. at pp. 1117–1118, 8 Cal. Rptr. 3d 363.) Regarding causation, “the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff’s injury.” [Emphasis added] (Id. at p. 1118, 8 Cal. Rptr. 3d 363.)

These rules apply to expert witness declarations submitted in connection with a motion for summary judgment. (Powell, supra, 151 Cal. App. 4th at p. 123, 59 Cal. Rptr. 3d 618); (Bushling, supra, 117 Cal. App. 4th at p. 510, 11 Cal. Rptr. 3d 653.) “Cases dismissing expert declarations in connection with summary judgment motions do so on the basis that the declarations established that the opinions were either speculative, lacked foundation, or were stated without sufficient certainty.” (Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal. App. 4th 703, 718, 128 Cal. Rptr. 2d 529.) “[U]nder Evidence Code section 801, the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion.” (Sargon, supra, 55 Cal. 4th at p. 770, 149 Cal. Rptr. 3d 614, 288 P. 3d 1237.) “[T]he gatekeeper’s role ‘is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.’ ” [Emphasis added] (Id. at p. 772, 149 Cal. Rptr. 3d 614, 288 P. 3d 1237.)

See, Sanchez v. Kern Emergency Med. Transportation Corp. (2017) 8 Cal. App. 5th 146, 153 and 155–56, as modified (Feb. 16, 2017).

In ¶ 7, Dr. Ardary does explicate various items which are thusly averred to be within or even exceed the standard. However, Plaintiff’s expert’s contrary opinion on some other subjects does create a material issue for the factfinder. Specifically, the Declaration of Doumanian identifies and explains the applicable standard of care and the causal basis for both Matar and Nahigian’s negligent acts and omissions in a manner that satisfies the above-described standard. Decl. of Doumanian, ¶¶6-12.

Accordingly, the Court will deny summary judgment.

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RULING:

Deny the motion.

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ORDER

Defendant Haitham Matar, D.D.S.’s Motion for Summary Judgment came on regularly for hearing on August 02, 2019, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

The motion is: DENIED IN ITS ENTIRETY

DATE: _______________ _______________________________

JUDGE

Case Number: EC062923 Hearing Date: August 02, 2019 Dept: A

Shen v Gao

Motion for Attorney Fees

Calendar:

Case No.:

EC062923

Hearing Date:

August 02, 2019

Action Filed:

August 15, 2014

Trial Date:

Judgment on July 05, 2017

MP:

Plaintiffs Weibao Shen; Jai Li Chai; Huizen Shi; Yu Jia Yin; Xin Li

RP:

Defendant Jinghan Liu, as personal representative for decedent Defendant Ling Ling Zhang

ALLEGATIONS:

The instant action arose from an investment agreement between Plaintiffs Weibao Shen; Jai Li Chai; Huizen Shi; Yu Jia Yin; and Xin Li (“Plaintiffs”) and Defendants Ling Ling Zhang; Jian Ming Gao; and Fei Gao (“Defendants”) whereby Defendants purported to buy shares in two companies (American Pine Bio-tech and Consumer Capital Group, Inc.). Plaintiffs’ sought to recover for causes of action sounding in breach of contract, and several species of fraud. The Court conducted a bench trial, and entered Judgment in favor of Plaintiffs on July 05, 2017.

PRESENTATION:

Following an appeal, which affirmed the Judgement of the Court, Plaintiffs filed the instant motion on July 01, 2019, seeking attorney’s fees in the amount of $97,875.00 for the appeal and $72,315.00 in post-judgment fees. Defendant Jinghan Liu (“Liu”), as personal representative for decedent Defendant Ling Ling Zhang opposed the motion on July 22, 2019, contending that the amount should be reduced to a total of $30,780.00.

RELIEF REQUESTED:

Plaintiffs move for an attorney’s fees award of $170,190.00.

DISCUSSION:

Standard of Review – Attorney’s Fees – As the Court has already determined the propriety of an award of attorney’s fees in its October 13, 2017, Minute Order, and there is no opposition to the award in the first instance, the sole issue for consideration is the amount of the award. A person seeking attorney’s fees bears that “burden of showing that the fees incurred were ‘allowable,’ were ‘reasonably necessary to the conduct of the litigation,’ and were reasonable in amount.’” Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal. App. 4th 807, 816. The Court first notes that an attorney’s hourly rate is determined by the well-established legal standard that attorney’s fees for contested matters are calculated by the use of the Lodestar method. See, e.g., Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1134 (“[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. . . . The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. [Citation]. Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary.”).

A ‘reasonable’ attorney’s fee award generally falls “within the sound discretion of the trial judge.” Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 659. However, in making a determination on the reasonableness of attorney’s fees and costs, a trial court should consider (1) the nature of the litigation, (2) its difficulty, (3) the amount involved, (4) the skill required and the skill employed in handling the litigation, (5) the attention given, (6) the success of the attorney’s efforts, (7) his learning and age, (8) his experience in the particular type of work demanded the intricacies and importance of the litigation, and (9) the labor and necessity for skilled legal training and ability in trying the cause, and (10) the time consumed. Church of Scientology v. Wollersheim (1996) 42 Cal App 4th 628, 638-39.

Neither party provides detailed analysis for the Court to consider the reasonability of the attorney’s fees rate, thus the Court has conducted its own analysis including the factors set forth below in italics.

Here, the opposing party does not challenge the billings of the appellate specialist, Mr. Posner and those fees will be approved and ordered at par, $30,780.00. The claim of Mr. Scandura is challenged as [containing] “ . . . many questionable if not downright phantom tasks.” In the reply, Mr. Scandura contends that [success] “ . . on appeal validates the time spent by them.” The court finds that both counsels’ notions as expressed are unsound. The Court of Appeal decision, while favoring plaintiffs, specifically points out the inadequate record produced by Appellant. This court has reviewed the billings of Mr. Scandura and does not find any indicia of “phantom” billing by which the court understands the claim to mean sham or that time has been recorded for work not in fact done. Mr. Scandura’s bill rate of $450.00 is neither particularly high nor low in this court’s experience for an attorney admitted over twenty years, but is a typical figure in a broad range of civil litigation and practice. The billing sheets show a thorough attention to detail which is confirmed by the attorney’s declaration about the arcane world of securities which was a central subject in the litigation, albeit it a rare one for state courts. Mr. Scandura explains that he spent extensive time on this subject against the possibility that the justices may question the plaintiffs’ recovery under the multifaceted rules pertaining to securities, and that he is not a specialist in this field, but that a specialist would bill at a considerably higher rate, and by inference, would not take the matter on a contingent basis, as did he. All of this activity seems not only reasonable, but exemplary for an attorney who has taken a relatively small dollar case and provided his clients a high level of service and a potentially valuable recovery. The court does question some unintelligible entries in the bill records, notably “Preparation of attorney time calculation.” Such entries total 30.6 hours, and will be deducted from the total claim.

The court addresses other general factors:

Nature of the Litigation – The instant litigation is moderately complex, as it involves issues of international financial transactions, corporate investment, and fraudulent conveyances.

Difficulty of the Litigation – While the underlying litigation was relatively long and challenging, the instant attorney’s fees involve only post judgment motion practice and a single appeal, which militates against the difficulty of the litigation for the purposes of the instant attorney’s fees motion.

Amount Involved – The amount involved in the appeal was the amount of the Judgment: $142,992.67, plus interest; plus the amount of the already assessed attorney’s fees: $123,800.00; for a total amount in controversy of $266,792.67. The current amount of attorney’s fees requested ($170,190.00) represents approximately 1.4 times the amount of attorney’s fees already awarded in the action for the underlying litigation occurring between 2014-2017. It is not infrequent that fee claims end up exceeding the dollar amount at issue.

Skill Required and Skill Employed – Based on the Court’s review of the appellate decision, the Court concludes that very little skill was actually required to succeed on appeal, but given the rare nature of the claim the predictability of the final outcome was far from a sure thing. In the Second Appellate District’s March 22, 2019, statement of decision the appeals court emphasizes that one of the primary reasons for its analysis and ultimate decision is not due to any effort by the appellate attorneys, but rather due to the “extraordinarily incomplete” trial court record. March 22, 2019, Appellate Statement of Decision (“App. Stmt.”), pp.2; see also App. Stmt. pp. 2-3 (“Even the appellant’s appendix is incomplete.”); App. Stmt. pp. 3 (“Because the record before us does not provide the information necessary to fully evaluate Liu’s claims of error, we conclude that the judgment and post-judgment order must be affirmed.”); App. Stmt. pp. 3 (“Our recitation of the procedural and factual background is limited due to the paucity of the record on appeal.”); App. Stmt. pp. 7 (“Although we cannot confirm this assertion because the record does not include the documents cited in the points and authorities, we assume it is correct because plaintiffs did not contest it in their opposition to the motion.”); App. Stmt. pp. 15 (“We conclude that, due to the extremely limited record, Liu has failed to demonstrate error.”); App. Stmt. pp. 17 (“[Appellant’s] arguments fail because the record does not affirmatively demonstrate error.”); et cereta.

Attention Given – The Court notes that the attorneys represent that they spent a significant, though not excessive, amount of time on the case post-judgment, with Steven Scandura representing that he spent 309.8 hours on the case, and Howard Posner spending 68.4 hours directly on the appeal.

Success of Efforts – Plaintiffs were successful in opposing Defendant’s post-judgment appeal and motion practice.

Learning and Age – Mr. Scandura (SBN #153796) has been an active member of the California State Bar since 1991, and is a graduate of UCLA School of Law. Mr. Posner (SBN #94712) has been an active member of the California State Bar since 1980, is a graduate of UCLA also, and is Certified in Appellate Law by the State Bar of California.

Experience in the Particular Type of Work and Importance of the Litigation – While the litigation is undoubtedly of great import to the parties involved in the proceedings, there is no indication that this case is of any particular importance to the broader field, or demonstrative of any novel litigation technique, extension of law, or other noteworthy accomplishment by any litigant or attorney. Otherwise, the attorneys do not provide sufficient information to indicate they have particularly relevant experience in this particular type of work, other than Mr. Posner’s specialization in appellate applications. Indeed, Mr. Scandura declaims his lack of experience in securities law as a reason for expended and extensive preparation for hearing in the higher court.

Need for Specialized Ability – There does not appear to have been any need for special ability by the attorneys for the work performed. There is no contention that an attorney specialized in securities law would undertake this matter at any stage on a contingency for the recovery of $55,000.00.

Time Consumed – As already noted above, the attorneys spent a significant but not grossly excessive amount of time on the litigation.

Pursuant to these considerations and the Court’s further review of the record of attorney’s fees attached to the moving papers, the Court will award fees at par for Mr. Posner and reduce Mr. Scandura’s fees by $14,220.00, net value therefore equaling $125,190.00.

—

RULING:

Grant the motion for attorney’s fees and set the total award to $155,970.00.

—

ORDER

Plaintiffs Weibao Shen; Jai Li Chai; Huizen Shi; Yu Jia Yin; and Xin Li’s Motion for Attorney’s Fees came on regularly for hearing on August 02, 2019, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

The motion is: GRANTED AS FOLLOWS:

ATTORNEY’S FEES PER THE CURRENT MOTION ARE AWARDED IN THE AMOUNT OF $155,970.00.

DATE: _______________ _______________________________

JUDGE

Case Number: EC067766 Hearing Date: August 02, 2019 Dept: A

Motion for Summary Judgment/Adjudication;

Motion to be Relieved as Counsel (3)

Calendar:

Case No.:

EC067766

Hearing Date:

August 02, 2019

Action Filed:

March 14, 2018

Trial Date:

Not Set

Motion for Summary Judgment/Adjudication

MP:

Plaintiffs Jose Sanchez d/b/a Sanchez Construction; Sanchez Construction 1

RP:

Defendants New Ridge Development, LLC; Yanying Dong a/k/a “Claire” Dong; Yanbo Liao

Motions to be Relieved as Counsel (x3)

MP:

Tyler H. Brown, Esq., of Brown & Brown, Attorneys at Law, Counsel for Defendant Joshua Higgins, Cross-Defendant Ruben J. Gonzalez, and Cross-Defendant Andi Cerroni

RP:

N/A

ALLEGATIONS:

This action involves the original and corrective interior and exterior construction to be performed by Plaintiff Jose Sanchez dba Sanchez Construction, and Sanchez Construction 1 (“Plaintiffs”) on 6 condominiums. The real properties at issue are known as the New Ridge Condominiums located at 681, 683, and 685 N. First Street, Arcadia, CA 91006. Plaintiff alleges that Defendants New Ridge Development, LLC (“New Ridge”), Yanying Dong aka “Claire” Dong (“Dong”), and Yanbo Liao (“Liao” and collectively the “Defendants’) were the beneficial and legal holders of title to the properties. Plaintiffs allege that on March 20, 2017, they entered into a verbal agreement with Defendants to furnish labor on the condominiums. Plaintiffs further allege that Defendant Joshua Higgins (“Higgins”) represented himself as the owner of the properties and the contracting entity, Infinities Group, and that he held a contractor’s license, but Plaintiffs allege that both of these representations were false.

The operative Second Amended Complaint (“SAC”) was filed on June 26, 2018, and alleges causes of action sounding in (1) Breach of Contract; (2) Quantum Meruit; (3) Fraud in the Inducement; (4) Intentional Misrepresentation; (5) Negligent Misrepresentation; (6) Breach of the Implied Covenant of Good Faith and Fair Dealing; (7) Declaratory Relief; and (8) Restitution/Unjust Enrichment.

PRESENTATION:

Plaintiffs Jose Sanchez d/b/a Sanchez Construction; and Sanchez Construction 1 filed their instant motion for summary judgment or adjudication on May 09, 2019. Defendants New Ridge Development, LLC; Yanying Dong a/k/a “Claire” Dong; and Yanbo Liao filed opposition to the motion on July 10, 2019. Plaintiffs submitted a reply brief on July 17, 2019.

Tyler H. Brown, Esq., of Brown & Brown, Attorneys at Law, Counsel for Defendant Joshua Higgins, Cross-Defendant Ruben J. Gonzalez, and Cross-Defendant Andi Cerroni moved to be relieved as counsel for each of its clients on June 27, 2019, citing non-payment and breakdown in attorney-client communication as the basis for relief. No opposition has been received on any of the three motions.

RELIEF REQUESTED:

Plaintiffs move for judgment as to the entire action, and alternatively moves for adjudication on the following issues:

(1) On the First Cause of Action, on the grounds that there is no material dispute as to the existence of the agreement, Plaintiffs’ performance, and Defendants’ failure to pay $313,052.52;

(2) On the Second Cause of Action, on the grounds that there is no dispute that Plaintiffs rendered work with the expectation of receiving compensation, and that the fair value of the work is $313,052.52;

(3) On the Sixth Cause of Action, on the grounds that Defendants substantially interfered with Plaintiffs’ right to receive payment in the amount of $313,052.52; and

(4) On the Eighth Cause of Action, on the grounds that Defendants received a material benefit from the work done by Plaintiffs, and it would be unjust to allow them to receive the benefit without just compensation to Plaintiffs in the amount of $313,052.52.

Tyler H. Brown, Esq., of Brown & Brown, Attorneys at Law, move in three separate motions to be relieved as counsel for (1) Defendant Joshua Higgins, (2) Cross-Defendant Ruben J. Gonzalez, and (3) Cross-Defendant Andi Cerroni.

DISCUSSION:

Standard of Review – Motion to be Relieved as Counsel – Code of Civil Procedure §284(1) allows for a change or substitution of attorney “[u]pon the consent of both client and attorney, filed with the clerk, or entered upon the minutes.” If both parties do not consent to a substitution of attorney, Code of Civ. Proc. §284(2) allows for a substitution “[u]pon the order of the court, upon the application of either client or attorney, after notice from one to the other.” California Rules of Court Rule 3.1362 sets forth procedures for relieving counsel without the mutual consent of both parties.

Under Rule 3.1362, an attorney seeking to withdraw by motion rather than by consent of the client, as here, is required to make that motion using approved Judicial Council forms. The motion also requires a declaration stating “in general terms, and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1).” Cal. Rules of Ct., Rule 3.1362(c). Judicial Council form MC-052, the attorney’s declaration, requires that the client be provided no less than five days’ notice before hearing on the motion. A proposed order prepared on form MC-053 must also be lodged with the court with the moving papers.

The Court of Appeals has recognized, “A lawyer violates his or her ethical mandate by abandoning a client [citation], or by withdrawing at a critical point and thereby prejudicing the client’s case. [Citation.] We are, however, aware of no authority preventing an attorney from withdrawing from a case when withdrawal can be accomplished without undue prejudice to the client’s interests.” Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915.

While there is no trial date pending, the Court notes that on July 29, 2019, (1 month after movant’s June 27, 2019, motions) Defendants New Ridge, Dong, and Liao have filed for summary judgment against Higgins, Gonzalez, and Cerroni – the hearing date is set for November 01, 2019. This nevertheless presents sufficient time for Higgins, Gonzalez, and Cerroni to retain new counsel and, if necessary, seek a continuance of the summary judgment motion. The motions are otherwise in proper form, and appear to have been served to each client at a recently confirmed mailing addresses.

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Standard of Review – Motion for Summary Judgment – A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. Code Civ. Proc. §437c(a). To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Code Civ. Proc. §437c(c). In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“For purposes of motions for summary judgment and summary adjudication: (1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” Code Civ. Proc. §437c(p)(1).

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841. In determining whether the facts give rise to a triable issue of material fact, “‘[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment . . . .’” Gold v. Weissman (2004) 114 Cal. App. 4th 1195, 1198-99. “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.

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Principal/Agent Liability – The four causes of action subject to the instant motion for summary judgment/adjudication turn on the principal-agent relationship between Higgins and Defendants, as there appears to be no contested facts regarding the work performed by Plaintiffs, only the intent of Defendants in their hiring of Higgins. Specifically, Defendants argue that they hired Higgins to perform the work that was ultimately performed by Plaintiffs, and did not intend for Higgins to hire Plaintiffs to perform the work they did. Plaintiffs contend that because Higgins and Defendants were in an agent-principal relationship, Defendants are liable to pay for the contracts entered into by their agent for work that accrued to their benefit. Defendants, on the other hand, contend that they should not be required to pay twice for the same work when Higgins is the party to the instant litigation that defrauded both Defendants and Plaintiffs through a scheme whereby he pocketed the money paid to him by Defendants and failed to pay Plaintiffs for the (unauthorized) work they performed.

Under the standards of the instant motion, the Court must accept the inference that Higgins was acting outside of the scope of his agency when he hired Plaintiffs to perform work on the subject property. See Decl. of Dong, ¶12. Under this factual inference, the Civ. Code provides that “[w]hen an agent exceeds his authority, his principal is bound by his authorized acts so far only as they can be plainly separated from those which are unauthorized.” Civ. Code §§2331 & 2333. However, “[a] principal is bound by acts of his agent, under a merely ostensible authority, to those persons only who have in good faith, and without want of ordinary care, incurred a liability or parted with value, upon the faith thereof.”

Before recovery can be had against the principal for the acts of an ostensible agent, three requirements must be met: (1) The person dealing with an agent must do so with a reasonable belief in the agent’s authority, (2) such belief must be generated by some act or neglect by the principal sought to be charged and (3) the person relying on the agent’s apparent authority must not be negligent in holding that belief. Associated Creditors’ Agency v. Davis (1975) 13 Cal. 3d 374, 399. Ostensible agency cannot be established by the representations or conduct of the purported agent; the statements or acts of the principal must be such as to cause the belief the agency exists. Dill v. Berquist Construction Co. (1994) 24 Cal. App. 4th 1426, 1438, fn. 11. “‘Liability of the principal for the acts of an ostensible agent rests on the doctrine of “estoppel,” the essential elements of which are representations made by the principal, justifiable reliance by a third party, and a change of position from such reliance resulting in injury. [Citation.]’ [Citation.]” Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal. App. 4th 741, 747.

On review of the moving papers, Plaintiffs have failed to establish a right to recover from Defendants as a mater of law, as there exists a factual inference that Higgins was working outside of his authority as Defendants’ agent, and insufficient information has been provided to the Court to indicate that Defendants should nevertheless be held liable as a matter of law on the grounds of an ostensible agency theory. Stated another way, while Plaintiffs have established that they performed valuable work, they have not established an uncontestable legal right to receive payment from New Ridge Development, LLC; Yanying Dong a/k/a “Claire” Dong; or Yanbo Liao. Further, as the alleged right to recover on each of the causes of action noticed to the Court for adjudication are premised on the same principal-agent relationship between Higgins and Defendants, the Court cannot grant any portion of the motion seeking adjudication on the separate causes of action.

Accordingly, the motion will be denied.

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RULING:

Grant Tyler H. Brown, Esq., of Brown & Brown, Attorneys at Law’s three motions to be relieved as counsel.

Deny Plaintiffs’ motion for summary judgment or adjudication.

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ORDER

Tyler H. Brown, Esq., of Brown & Brown, Attorneys at Law’s Motions to be Relieves as Counsel for Defendant Joshua Higgins, Cross-Defendant Ruben J. Gonzalez, and Cross-Defendant Andi Cerroni came on regularly for hearing on August 02, 2019, together with Plaintiffs Jose Sanchez d/b/a Sanchez Construction; Sanchez Construction 1’s Motion for Summary Judgment or Adjudication with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

TYLER H. BROWN, ESQ., OF BROWN & BROWN ATTORNEYS AT LAW’S THREE MOTIONS TO BE RELIVED AS COUNSEL ARE GRANTED; AND

PLAINTIFFS MOTION FOR SUMMARY JUDGMENT OR ADJUDICATION IS DENIED IN ITS ENTIRETY.

DATE: _______________ _______________________________

JUDGE

Case Number: EC068217 Hearing Date: August 02, 2019 Dept: A

Liu v Yung

Motion for Leave to File a Cross-Complaint

Calendar:

Case No.:

EC068217

Hearing Date:

August 02, 2019

Action Filed:

May 31, 2017

Trial Date:

Not Set

MP:

Defendant Tin Y. Yung

RP:

Plaintiffs Tien Kuang Liu; Frank Zeng; Charlie Chi-Jen Yu; Peter Yungching Shay; Philip Luc; Jack C. Lee

ALLEGATIONS:

This action arises from a purported plan for real estate development which from the onset turned into a fraudulent, continuing conversion scheme. Plaintiffs Amancio Mora (“Mora”) and Peter Shay (“Shay”) allege that they made $100,000 and $150,000 capital contributions, respectively, in an investment plan by Hsuch-Hui “Andy” Liu to create a real estate development along Eloise Street in Pasadena. The proposal included, among other things, details that: Defendant Tin Y. Yung (“Yung”) would be the manager of an investment company, Enterprise Realty Investment and Development Group, LLC (“ERI”) would be paid management fees, and Defendant Pasadena Officotel Enterprises, LLC (“POE”) would be organized later as an investment company and would own the Eloise Properties.

Plaintiffs allege that Yung and ERI failed to disclose or concealed information that the property was being purchased in Yung’s own name, that there were insufficient funds to purchase the properties, neither Yung nor ERI provided funds or capital contributions to POE, Yung and ERI failed to sell the property for significant profits, failed to hold meetings to keep Plaintiffs informed about the development, and Yung failed to inform Plaintiffs that he was involved in litigation regarding the property.

The first amended complaint (“FAC”), filed October 4, 2018, alleges causes of action for: (1) Breach of Contract; (2) Negligence; (3) Fraud; (4) Breach of Fiduciary Duties; (5) Conversion; (6) Aiding and Abetting Fraud; (7) Aiding and Abetting Conversion; (8) Civil Conspiracy; (9) Intentional Interference with Prospective Economic Advantage; (10) Accounting; (11) Declaratory Relief; and (12) Judicial Dissolution.

PRESENTATION:

Yung filed the instant motion on July 11, 2019, seeking leave to file a Cross-Complaint. Plaintiffs Tien Kuang Liu (“Lui”); Frank Zeng (“Zeng”); Charlie Chi-Jen Yu (“Yu”); Shay; Philip Luc (“Luc”); and Jack C. Lee (“Lee”) opposed the motion on July 24, 2019. The Court has not received a reply brief.

RELIEF REQUESTED:

Yung moves for leave to file a Cross-Complaint on compulsory counter-claims.

DISCUSSION:

Standard of Review – Compulsory Cross-Complaint – Parties to an action that fail to pleas causes of action for any cause may seek the court’s leave to file amend their pleading, file a cross-action or assert such unstated causes of action, when the application is made in good faith. Code of Civ. Proc. §426.50. Pursuant to California’s liberal standards, and policy of adjudicating causes of action on their merits, the appropriate standard for a court to grant leave to file a compulsory cross-complaint is that such a “motion to file a cross-complaint at any time during the course of action must be granted unless bad faith of the moving party is demonstrated.” Silver Orgs. v. Frank (1990) 217 Cal. App. 3d 94, 99. The purpose for the liberal standards for allowing cross-complaints is because the failure of a defendant to raise a compulsory counterclaim serves as a bar to future litigation on that claim. See, e.g., AL Holding Co. v. O’Brien & Hicks, Inc. (1999) 75 Cal. App. 4th 1310 (Pursuant to Code of Civ. Proc. § 426.30, defendant had demurred on the ground that the cause of action was barred because the plaintiff never raised it in a compulsory cross-complaint in a prior action instituted by defendant.). The existence of bad faith “involves a factual inquiry into the [moving party’s] subjective state of mind: Did he or she believe the action was valid? What was his or her intent or purpose in pursuing it? A subjective state of mind will rarely be susceptible of direct proof; usually the trial court will be required to infer it from circumstantial evidence.” People v. Superior Court (Sokolich) (2016) 248 Cal. App. 4th 434, 447.

Plaintiffs opposition focusses on Yung’s failure to demonstrate good faith behavior. Opposition, 4:19-7:9. As stated above, objective good faith is not the standard, as the deprivation of the right to access the courts is the result of a granted opposition to a compulsory cross-complaint, the opposing party must demonstrate bad faith in the moving party’s motion. To the extent that Opposing Plaintiffs argue that Yung’s motion is made in bad faith, they argue that (1) the instant motion was filed 2 years after the lead case was filed and 19 months after his Answer, and (2) that Yung’s behavior in discovery precipitated the instant motion when he was required to submit signature pages together with certain documents. Opposition, 7:17-26. In light of the three separate actions ultimately resulting in consolidation, the Court considers that some delay is insufficient to demonstrate bad faith. To the extent that the Opposing Plaintiffs argue that bad faith should be inferred from Yung’s actions in discovery, the Court considers that the Opposing Plaintiffs have not cited to any motion practice involving such purported abuses, which would generally be the proper remedy for discovery abuse – not the denial of access to the courts on potentially valid claims. As it stands, nothing in the record indicates that Yung has filed the instant motion with the belief that the Cross-Complaint is invalid, or with evil intent.

The Court notes, however, that Yung has not submitted any proposed Cross-Compliant with the moving papers. Accordingly, the Court must continue the motion. CRC 3.1324.

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RULING:

Indicate a grant, but continue the motion to file proposed pleading.

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ORDER

Defendant Tin Y. Yung’s Motion for Leave to File a Cross-Complaint came on regularly for hearing on August 02, 2019, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

The motion is: GRANT INDICATED, BUT CONTINUE WITH CROSS-COMPLAINT ORDERED FILED WITHIN 20 DAYS.

DATE: _______________ _______________________________

JUDGE

Case Number: EC068602 Hearing Date: August 02, 2019 Dept: A

Calendar 18 Discovery motions

GRANTED;

DEFENDANT DANIEL RICHARD RACZKA ORDERED TO PROVIDE FULL, VERIFIED, CODE-COMPLIANT RESPONSES TO FORM INTERROGATORIES WITHIN 20 DAYS;

PLAINTIFF STATE FARM INSURANCE COMPANY’S REQUESTS FOR ADMISSION, SET ONE, ARE DEEMED ADMITTED; AND

PLAINTIFF AWARDED SANCTIONS IN THE AMOUNT OF $1,000 TOTAL, PAYABLE BY DEFENDANT.

Case Number: EC068946 Hearing Date: August 02, 2019 Dept: A

ASG Construction v Green Bldg.

Motion to Set Aside

Calendar:

Case No.:

EC068946

Hearing Date:

August 02, 2019

Action Filed:

September 04, 2018

Trial Date:

Dismissed on March 04, 2019

MP:

Plaintiff ASG Construction Inc. d/b/a Gonzales Construction Co.

RP:

N/A

ALLEGATIONS:

The instant action arises from the alleged breach of a written contract between Plaintiff ASG Construction Inc. d/b/a Gonzales Construction Co. (“Plaintiff”) and Defendants Green Building Corporation (“Green”) and Allied World Insurance Company (“Allied” and together the “Defendants”).

In Plaintiff’s September 04, 2018, Complaint, they allege four causes of action sounding in (1) Breach of Written Contract, (2) Reasonable Value, (3) Unjust Enrichment, and (4) Recovery on Payment Bond.

PRESENTATION:

The Court dismissed the instant action on March 04, 2019, without prejudice following Plaintiff’s failure to appear at the OSC re Plaintiff’s failure to comply with the Trial Court Delay Reduction Act.

The instant motion was filed by Plaintiff on July 11, 2019. No opposition has been received. In Plaintiff’s proof of service, the Court notes that there has been insufficient notice for the instant motion pursuant to Code of Civ. Proc. §1005, as the proof of service indicates that the instant motion was served by regular mail on July 11, 2019, making the notice effective on July 16, 2019. The hearing date of August 02, 2019, is set within 13 days of the service date, and not 16 days. This defect does not deprive the court of jurisdiction.

RELIEF REQUESTED:

Plaintiff ASG Construction Inc. d/b/a Gonzales Construction Co. moves to set aside the dismissal for failure to appear.

DISCUSSION:

Standard of Review – Motion to Set Aside/Vacate Default – Code Civ. Proc. §473(b) provides that the trial court may, “upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” In order for the Court to grant discretionary relief, the moving party must (1) “be accompanied by a copy of the answer or other pleading proposed to be filed therein,” (2) “be made within a reasonable time, in no case exceeding six months,” but (3) “[n]o affidavit or declaration of merits shall be required of the moving party.” Code Civ. Proc. §473(b). Whether the filing is made within a reasonable time is a matter left to the discretion of the trial court, and depends upon the specific circumstances of the delay, including the cause for the attorney’s mistake, inadvertence, surprise, or excusable neglect. Minick v. City of Petaluma (2016) 3 Cal. App. 5th 15; Comunidad En Accion v. Los Angeles City Council (2013) 219 Cal. App. 4th 1116, 1133–34.

In addition to the discretionary provisions of Code Civ. Proc. §473(b), “the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” The purpose of the mandatory provision is to provide a client the opportunity to litigate a claim on its merits even though their attorney made a mistake in representation. See Yeap v. Leake (1997) 60 Cal. App. 4th 591 abrogated by Hossain v. Hossain (2007) 157 Cal. App. 4th 454. It mandates that the court grant relief unless it finds that the default was not in fact caused by lawyer error – which functions as both a credibility and causation testing device. Milton v. Perceptual Development Corp. (1997) 53 Cal. App. 4th 861.

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Pursuant to the Declaration of Newton Kellam explaining that the default occurred due to the mistake, inadvertence, and excusable neglect of Kellam and appearance attorney Eric McClain, the Court finds that Plaintiff has established a prima facie right to relief under Code of Civ. Proc. §473(b). Without opposition, the Court will grant the motion.

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RULING:

Granted the motion and set control dates for the case, based upon plaintiff’s intentions to proceed and not neglect the matter.

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ORDER

Plaintiff ASG Construction Inc. d/b/a Gonzales Construction Co.’s Motion to Set Aside Default came on regularly for hearing on August 02, 2019, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

The motion is: GRANTED IN ITS ENTIRETY

DATE: _______________ _______________________________

JUDGE

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