Superior Court, State of California



DATE: January 21, 2020 TIME: 9:00 A.M.

PREVAILING PARTY SHALL PREPARE THE ORDER OR AS STATED OTHERWISE BELOW.

(SEE RULE OF COURT 3.1312 – PROPOSED ORDER MUST BE E-FILED BY COUNSEL AND SUBMITTED PER 3.1312(C))

EFFECTIVE JULY 24, 2017, THE COURT WILL NO LONGER PROVIDE OFFICIAL COURT REPORTERS FOR CIVIL TRIALS OR LAW AND MOTION HEARINGS. SEE COURT WEBSITE FOR POLICY AND FORMS.

TROUBLESHOOTING TENTATIVE RULINGS

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|LINE # |CASE # |CASE TITLE |RULING |

|LINE 1 | 18CV328966 | Syed Nazim Ali vs Cisco Systems, Inc. |Ctrl/click on Line 1 for Tentative Ruling |

|LINE 2 | 19CV345300 | Tuyet Nguyen vs Binh Nguyen |Ctrl/click on Line 2 for Tentative Ruling |

|LINE 3 | 17CV314119 | Irma Vargas et al vs Level 10 Construction, |This motion apparently is withdrawn by moving party. Counsel claims |

| | |L.P. et al |to have filed a stipulation to withdraw the motion and regarding other|

| | | |issues on December 11, 2019, but no such pleading appears in the file.|

| | | |Moreover, no order is provided with the form of Stipulation attached |

| | | |to the “Reply” to the motion. The Court notes that an order attached |

| | | |to a document that has been filed cannot be signed by the Court. For |

| | | |future reference, any request to continue a hearing must be separately|

| | | |filed or brought to the Court during ex parte orders, and the order |

| | | |should be a separate document. |

|LINE 4 | 17CV317925 | Guillermina Garcia-Barrera et al vs Wells |Ctrl/click on Line 4 for Tentative Ruling |

| | |Fargo Bank, N.A. et al | |

|LINE 5 | 17CV310864 | QTV Enterprise, LLC vs Hieu Nguyen |Appearance of all counsel required on motion to compel deposition of |

| | | |Defendant/Cross-complainant Hieu Nguyen. |

|LINE 6 | 19CV344659 | JANE DOE vs JOHN F. KENNEDY UNIVERSITY |Appearance required. |

|LINE 7 | 19CV344659 | JANE DOE vs JOHN F. KENNEDY UNIVERSITY |See Line 7 |

|LINE 8 | 19CV347610 | San Te Properties LLC vs Charlene Lai et al |Appearance required. |

|LINE 9 | 19CV355815 | TCF National Bank vs 5-Stars Engineering |Motion for writ of possession was timely and properly served, and is |

| | |Associates Inc. |unopposed. Appearance required to address questions that the Court |

| | | |has. |

|LINE 10 | 17CV306482 | State Farm Mutual Automobile Insurance |Off calendar by moving party. |

| | |Company vs Jose Gutierrez | |

|LINE 11 | 19CV356499 | Wei "Wendy" Lin vs Yujing Pang |The motion to confirm arbitration award was timely and properly |

| | | |served. On December 18, 2019, Respondent filed an opposition, but |

| | | |does not seem to have served it. Appearance required. |

|LINE 12 | 16CV296069 | Cynthia Swinehart vs Google, Inc. |Ctrl/click on Line 12 for Tentative Ruling |

|LINE 13 | | | |

|LINE 14 | | | |

|LINE 15 | | | |

|LINE 16 | | | |

Calendar line 1

Case Name: Syed Nazim Ali v. Cisco Systems, Inc.

Case No.: 2018-CV-328966

Demurrer and Motion to Strike to the First Amended Complaint by Cisco Systems, Inc.

Factual and Procedural Background

This employment action for discrimination based on age, race, national origin, and religion arises out of the refusal by defendant Cisco Systems, Inc. (“Cisco”) to hire plaintiff Syed Nazim Ali (self-represented) (“Ali”).

On April 3, 2017, Ali applied for the following positions with Cisco: (1) Senior Security Consultant; (2) VPN Security Technical Support Engineer; (3) Hybrid Cloud Consultant; (4) Security Consulting Systems/Sales Engineer; (5) IT Auditor Engineer; (6) Security and Compliance Analyst; and (7) Corporate System Engineer. (First Amended Complaint [“FAC”] at ¶¶ 48-55, 87.) Despite Ali’s qualifications for the positions, defendant Cisco did not hire him. (Id. at ¶¶ 49-55, 57-58, 60, 87.) Ali alleges defendant Cisco discriminated and retaliated against him because of his race, religion, and national origin. (Id. at ¶¶ 60, 75, 77, 78.) Ali contends defendant Cisco has a preference for people of South Indian and Indian descent in management positions. (Id. at ¶ 78.) As a consequence, plaintiff Ali suffered undue emotional distress, physical pain, along with mental and emotional trauma. (Id. at ¶ 70.)

On June 3, 2017, plaintiff Ali filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) and Department of Fair Employment and Housing (“DFEH”) which included charges of discrimination on the basis of race, national origin, and religion and retaliation. (FAC at ¶ 13.) Ali thereafter received a notice of right to sue.

On May 31, 2018, plaintiff Ali filed a complaint against defendant Cisco alleging causes of action for: (1) discrimination based on race in violation of the Fair Employment and Housing Act (“FEHA”); (2) discrimination based on age in violation of the Age Discrimination Employment Act of 1967; (3) discrimination based on national origin in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”); (4) discrimination based on race in violation of Title VII; (5) discrimination based on religion in violation of Title VII; (6) retaliation in violation of the FEHA; and (7) intentional infliction of emotional distress.

On April 12, 2019, defendant Cisco filed a demurrer and motion to strike to the complaint. The motions were heard and submitted on August 1, 2019. In its final order, the Court sustained the demurrer with leave to amend to the first and sixth causes of action. The demurrer was sustained without leave to amend to the seventh cause of action. The motion to strike the request for punitive damages was moot given the ruling on demurrer.

On August 7, 2019, plaintiff Ali filed the operative FAC alleging causes of action for: (1) discrimination based on race in violation of the FEHA; and (2) retaliation in violation of FEHA and the Labor Code.

Currently before the Court are defendant Cisco’s demurrer to the FAC and motion to strike the request for punitive damages. Plaintiff Ali filed written opposition. Defendant Cisco filed reply papers.

Demurrer to FAC

Defendant Cisco demurs to the first and second causes for failure to state a valid claim. (Code Civ. Proc., § 430.10, subd. (e).)

Legal Standard

“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’ ” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)

“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)

First Cause of Action: Race Discrimination in Violation of the FEHA

The first cause of action is a claim for race discrimination in violation of the FEHA.

“The FEHA establishes a comprehensive scheme for combating employment discrimination. [Citations.] As a matter of public policy, the FEHA recognizes the need to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination. [Citation.] [The Supreme Court] has declared that policy be ‘fundamental.’ [Citation.]” (Brown v. Super. Ct. (1984) 37 Cal.3d 477, 485.)

The FEHA makes it unlawful for an employer to refuse to hire a person because of his race or other statutorily specified reasons. (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1004, fn. 4 (Hicks); Gov. Code, § 12940, subd. (a).) “Failure-to-hire claims under the FEHA are subject to the burden-shifting framework of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 … (McDonnell Douglas).” (Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726, 736 (Abed).) “Although ‘[t]he specific elements of a prima facie case may vary depending on the particular facts,’ the plaintiff in a failure-to-hire case ‘[g]enerally ... must [establish] that (1) he [or she] was a member of a protected class, (2) he [or she] was qualified for the position he [or she] sought ..., (3) he [or she] suffered an adverse employment action, such as ... denial of an available job, and (4) some other circumstance suggests discriminatory motive,’ such as that the position remained open and the employer continued to solicit applications for it. [Citations.]” (Abed, supra, 23 Cal.App.5th at p. 736; Hicks, supra, 160 Cal.App.4th at pp. 997-1002, fn. 3, citing McDonnell Douglas, supra, 411 U.S. at p. 802; McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 979.)

As explained in the moving papers, plaintiff Ali’s pleading falls short as he fails to allege whether he was qualified for the seven positions he applied for with defendant Cisco to support the first cause of action. The FAC alleges throughout that plaintiff Ali had certain qualifications and certifications. But he fails to connect any specific qualifications to the positions he applied for with defendant Cisco. On that basis alone, plaintiff Ali fails to state a cause of action.

In addition, as discussed in the moving papers, plaintiff Ali fails to allege facts demonstrating that defendant Cisco acted with any racially discriminatory motive. The crux of his discrimination claim is that defendant Cisco had a preference for people of South Indian and Indian descent as opposed to plaintiff Ali whose country of origin is Pakistan. (See FAC at ¶¶ 75, 78.) As the United States Supreme Court has explained, “ ‘[d]isparate treatment’ … is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin.” (Teamsters v. United States (1977) 431 U.S. 324, 225-336, fn. 15.) “In order to prevail under the disparate treatment theory, an employee must show that the employer harbored a discriminatory intent.” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 195; Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1748 [in disparate treatment cases, the plaintiff must show that defendant engaged in intentional discrimination].) Plaintiff Ali here fails to allege facts showing defendant Cisco acted with a discriminatory motive in the selection and hiring process.

The Court notes that plaintiff Ali did reveal his Pakistani heritage during an interview on April 27, 2016 as he applied for a role as a Security Architect. (See FAC at ¶ 29.) Defendant Cisco persuasively argues this allegation is improper as it is time barred and not included with plaintiff Ali’s EEOC/DFEH Charge. (See Gov’t Code, § 12960, subd. (d); see also Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724 [to exhaust administrative remedies as to a particular act made unlawful by the FEHA, the claimant must specify that act in the administrative complaint].) Plaintiff Ali appears to concede this argument as he fails to address this point in opposition. Nor does plaintiff Ali provide any basis in opposition to support a cause of action for race discrimination.

Accordingly, the demurrer to the first cause of action is SUSTAINED for failure to state a claim.

Second Cause of Action: Retaliation in Violation of the FEHA

The second cause of action is claim for retaliation in violation of the FEHA.

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)  

Government Code section 12940, subdivision (h) allows for protected conduct to take many forms. The statute “makes it an unlawful employment practice ‘[f]or any employer … to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.’ ” (Yanowitz, supra, 36 Cal.4th at p. 1042.)

Also, “[s]tanding alone, an employee’s unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of establishing a prima facie case of retaliation, where there is no evidence (or facts) the employer knew that the employee’s opposition was based upon a reasonable belief that the employer was engaging in discrimination.” (Yanowitz, supra, 36 Cal.4th at p. 1046.) “[C]omplaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct.” (Id. at p. 1047.)

That said, “[e]mployees need not explicitly and directly inform their employer that they believe the employer’s conduct was discriminatory or otherwise forbidden by FEHA.” (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1046.) “ ‘[A]n employee is not required to use legal terms or buzzwords when opposing discrimination. The court will find opposing activity if the employee’s comments, when read in their totality, oppose discrimination.’ ” (Yanowitz, supra, 36 Cal.4th at p. 1047.) “We do not believe employees should be required to elaborate to their employer on the legal theory underlying the complaints they are making, in order to be protected by the FEHA.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 474.) The relevant question is not whether a formal accusation of discrimination is made but whether the employee’s communications to the employer sufficiently convey the employee’s reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner. (Yanowitz, supra, 36 Cal.4th at p. 1047; see Raad v. Fairbanks North Star Borough School Dist. (9th Cir. 2003) 323 F.3d 1185, 1197 [“[T]he plaintiff must make some showing sufficient for a reasonable trier of fact to infer that the defendant was aware that the plaintiff had engaged in protected activity.”].)

Defendant Cisco here persuasively argues that plaintiff Ali fails to allege sufficient facts showing he was retaliated against for engaging in protected activity. Like the prior pleading, plaintiff Ali does not identify the conduct that allegedly constitutes protected activity in the FAC. Instead, Ali alleges that defendant Cisco and its decision makers retaliated against him in the hiring and selection process. (See FAC at ¶ 98.) Consequently, Ali has not established that he engaged in a protected activity or that Cisco retaliated against him for engaging in that activity.

Accordingly, the demurrer to the second cause of action is SUSTAINED for failure to state a claim.

Leave to Amend

“The plaintiff bears the burden of proving there is a reasonable possibility of amendment.” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43 (Rakestraw).)  To satisfy this burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)  “Plaintiff must clearly and specifically set forth the ‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it.  Further, plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action.  [Citations.]  Allegations must be factual and specific, not vague or conclusionary.” (Rakestraw, supra, at pp. 43-44.)  

 

The Court here has already afforded plaintiff Ali an opportunity to amend and he has not yet been able to state a cause of action to overcome demurrer. Nor has plaintiff Ali made a formal request in his opposition for further leave to amend. He thus fails to carry his burden showing he can effectively amend his pleading to state a cause of action. Plaintiff Ali is not relieved of this burden because of his self-representation status in this action. (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98; Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193 [self-represented party “held to the same restrictive procedural rules as an attorney”].) Therefore, having failed to carry this burden, the Court finds no legal basis for further amendment.    

 

Accordingly, leave to amend is DENIED.  

Motion to Strike Request for Punitive Damages

Given the Court’s ruling on demurrer, the motion to strike the request for punitive damages is MOOT.

Disposition

The demurrer to the first and second causes of action in the FAC is SUSTAINED WITHOUT LEAVE TO AMEND for failure to state a claim.

The motion to strike the request for punitive damages is MOOT.

After compliance with Rules of Court, Rule 3.1312, Defendant Cisco Systems, Inc. shall submit a judgment.

The Court will prepare the Order.

- oo0oo -

Calendar line 2

Case Name: Tuyet Nguyen v. Binh Nguyen

Case No.: 2019-CV-345300

Demurrer to the Cross-Complaint by Cross-Defendant H2O Deli aka H2O Coffee House

Factual and Procedural Background

On August 26, 2017, cross-complainant Binh Nguyen[1] (“Binh”) purchased four lottery scratcher tickets from cross-defendant H2O Deli (aka H2O Coffee House) (“H2O”). (Cross-Complaint at ¶ 9.) Cross-Defendants Tuyet Nguyen (“Tuyet”) and Thy Vo (“Vo”) were on duty and working at H2O’s premises. (Id. at ¶ 6.) Tuyet asked Binh if she could scratch off the numbers for him for fun. (Id. at ¶ 9.) Tuyet and Vo took turns scratching the numbers off one of the tickets, which was not a winner. (Ibid.) Binh also allowed Vo to scratch off numbers on Ticket No. 1167224-026 which was a winning ticket in the amount of $750,000. (Ibid.) Binh has had the original winning ticket and original claim receipt in his possession at all times since that day. (Ibid.)

Cross-Defendant Vo however wrote Tuyet’s name on the back of the ticket without Binh’s knowledge or consent. (Cross-Complaint at ¶ 9.) But, Tuyet never had physical possession of the winning ticket or the claim receipt. (Id. at ¶ 10.) Nor did she take the ticket to the cashier to have it scanned. (Ibid.) In addition, cross-defendants Tuyet and Vo did not pay Binh for any of the lottery tickets. (Ibid.)

Cross-Complainant Binh thereafter submitted his claim to the California State Lottery for the $750,000 prize with a copy of his claim receipt. (Cross-Complaint at ¶ 11.) On February 27, 2019, a Lottery representative came to Binh’s home and told him he would be receiving a check in the amount of $500,000 after tax deductions. (Ibid.)

Binh later learned that Tuyet presented a claim to the Lottery, claiming she owned the winning ticket. (Cross-Complaint at ¶ 12.) The Lottery rejected Tuyet’s claim on or about March 6, 2019 because the Lottery concluded that Tuyet was not the owner of the winning ticket at the time it determined Binh to be the winner. (Ibid.)

On March 28, 2019, Tuyet filed a lawsuit against Binh and ex parte application for a temporary restraining order and for a preliminary injunction. (Cross-Complaint at ¶ 13.) The complaint alleges causes of action for: (1) quiet title; (2) fraud; (3) negligent misrepresentation; (4) estoppel; (5) injunctive relief; (6) conversion; and (7) constructive trust.

On April 23, 2019, Binh filed the operative cross-complaint alleging causes of action for: (1) fraud; (2) conspiracy to commit fraud; (3) breach of fiduciary duty; (4) conspiracy to commit breach of fiduciary duty; and (5) intentional infliction of emotional distress.

Currently before the Court is a demurrer to the cross-complaint by cross-defendant H2O. Cross-Complainant Binh filed written opposition. H2O filed reply papers.

Demurrer to the Cross-Complaint

Cross-Defendant H2O demurs to each cause of action in the cross-complaint on the ground that they fail to state a valid claim. (Code Civ. Proc., § 430.10, subd. (e).)

Legal Standard

“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)

“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)

First Cause of Action: Fraud

The first cause of action is a claim for fraud. “The elements of fraud are (1) misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance on the misrepresentation, (4) justifiable reliance on the misrepresentation, and (5) resulting damages.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)

“Fraud must be pleaded with specificity rather than with general and conclusory allegations. The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793, citation and quotation marks omitted.)

In the first cause of action, cross-complainant Binh alleges Tuyet submitted a false and fraudulent claim to the California Lottery claiming she was the winner of Ticket No. 1167224-026. (Cross-Complaint at ¶ 16.) Tuyet falsely presented she was the owner of the lottery ticket and knew that her claim was false. (Ibid.) Binh also alleges that cross-defendant Vo assisted Tuyet in making her false claim to the California Lottery and has provided false testimony in support of Tuyet’s lawsuit. (Id. at ¶ 21.)

Cross-Defendant H2O argues there are no facts to support a fraud claim as the conduct alleged pertains primarily to cross-defendant Tuyet. In opposition, Binh argues that cross-defendant H2O can be held liable under a theory of respondeat superior.

“Under the doctrine of respondeat superior, an employer is ordinarily liable for the injuries its employees cause others in the course of their work. Respondeat superior imposes liability whether or not the employer was itself negligent, and whether or not the employer had control of the employee. The doctrine’s animating principle is that a business should absorb the costs its undertaking impose on others.” (Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798, 803 (Bussard).) As one appellate court described the doctrine:

“Under the theory of respondeat superior, an employer is vicariously liable for an employee’s torts committed within the scope of employment. [Citations.] This theory is justified as ‘ “a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business.” ’ [Citation.] The employer is liable not because the employer has control over the employee or is in some way at fault, but because the employer has control over the employee or is in some way at fault, but because the employer’s enterprise creates inevitable risks as a part of doing business.”

(Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1558-1559 (Bailey).)

The doctrine’s application requires that the employee be acting within the course of his or her employment. (Bussard, supra, 105 Cal.App.4th at p. 803.) “In California, the scope of employment has been interpreted broadly under the respondeat superior doctrine.” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004.) For example, “[t]he fact that an employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not preclude attribution of liability to an employer.” (Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 139.) Thus, acts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly personal and not acts of service, do not take the employee outside the scope of employment. (See ibid.) Moreover, “ ‘where the employee is combining his own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business he was actually engaged in at the time of injury, unless it clearly appears that neither directly nor indirectly could he have been serving his employer.’ [Citations.]” (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447 (John R.).) It is also settled that an employer’s vicarious liability may extend to willful and malicious torts of an employee as well as negligence. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209 (Mary M.); John R. supra, 48 Cal.3d at p. 447.) Finally, an employee’s tortious act may be within the scope of employment even if it contravenes an express company rule and confers no benefit to the employer. (Mary M., supra, 54 Cal.3d at p. 209; Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 969-970.)

“Whether a tort was committed within the scope of employment is generally a question of fact.” (Bailey, supra, 48 Cal.App.4th at p. 1558.)

Cross-Complainant Binh here alleges Tuyet was an employee of cross-defendant H2O and that her actions occurred within the course and scope of her employment. (See Cross-Complaint at ¶¶ 5, 18, 15, 22.) In particular, Binh alleges the following:

“Tuyet Nguyen and Thy Vo were acting in the course and scope of their employment with H2O at the time they plotted and created their plan to try to cheat Cross-Complainant out of his lottery winnings. Further, Tuyet Nguyen was acting in the course and scope of her employment with H2O when she presented the false claim to the California Lottery.”

(Id. at ¶ 22.)

As explained in the moving papers, cross-complainant Binh has not stated a valid fraud claim against Tuyet. For example, there are no facts showing that Binh relied on a false representation by Tuyet which caused him to suffer damage. Instead, Tuyet intended for the California Lottery to rely on her claim. (Cross-Complaint at ¶ 17.) Nor has cross-defendant Vo made any false representation relied upon by cross-complainant Binh to establish a cause of action for fraud. Without a valid fraud claim against Tuyet and Vo, there is no liability for respondeat superior against cross-defendant H2O.

Accordingly, the demurrer to the first cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND after service of this signed order for failure to state a claim. (See City of Stockton (2007) 42 Cal.4th 730, 747 [where plaintiff has not had opportunity to amend complaint in response to demurrer, “leave to amend is liberally allowed as a matter of fairness unless the complaint shows on its face that it is incapable of amendment”].)

Second Cause of Action: Conspiracy to Commit Fraud

The second cause of action is a conspiracy to commit fraud. “Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. [Citation.] By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. [Citation.] In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.)

“The elements of a civil conspiracy are (1) the formation and operation of the conspiracy; (2) the wrongful act or acts done pursuant thereto; and (3) the damage resulting.” (Mosier v. Southern California Physicians Ins. Exchange (1998) 63 Cal.App.4th 1022, 1048.) “A complaint for civil conspiracy states a cause of action only when it alleges the commission of a civil wrong that causes damage. Though conspiracy may render additional parties liable for the wrong, the conspiracy itself is not actionable without a wrong.” (Okun v. Super. Ct. (1981) 29 Cal.3d 442, 454.)

As stated above, there is no claim stated for fraud against cross-defendant H2O. Therefore, there is no viable cause of action for conspiracy to commit fraud.

Consequently, the demurrer to the second cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND after service of this signed order for failure to state a claim.

Third Cause of Action: Breach of Fiduciary Duty

The third cause of action is a claim for breach of fiduciary duty. Fiduciary duties arise as a matter of law in certain technical, legal relationships. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 632.) Such relationships include attorney and client, stockbroker and customer, and trustee and beneficiary. (Id. at pp. 632-633.)

“The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach.” (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1405.) “In order to plead a cause of action for breach of fiduciary duty, there must be an adequate showing of each of these elements” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 483.)

The allegations for breach of fiduciary duty are set forth in paragraph 29 of the Cross-Complaint which provides:

“Cross-Defendants alleges that by selling the winning lottery ticket to Cross-Complainant, by having its employees assist or participate in scratching off the numbers, by having their cashier scan the winning ticket, and by giving Cross-Complainant the claim form for the winning ticket, Cross-Defendant H2O and its participating employees assumed fiduciary duties and responsibilities to Cross-Complainant. Cross-Complainant placed his trust in Cross-Defendants that they would follow the Lottery’s rules and regulations and not try to steal his money.”

(Cross-Complaint at ¶ 29.)

Cross-Defendant H2O persuasively argues there are no facts establishing a fiduciary relationship between Binh and H2O as a matter of law to state a claim for breach of fiduciary duty. Nor has Binh cited any legal authority in opposition to support the existence of any fiduciary relationship in the third cause of action.

Accordingly, the demurrer to the third cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND after service of this signed order for failure to state a claim.

Fourth Second Cause of Action: Conspiracy to Commit Breach of Fiduciary Duty

The fourth cause of action is a claim for conspiracy to commit breach of fiduciary duty. As stated above, there is no claim stated for breach of fiduciary duty. Therefore, there is no viable cause of action for conspiracy to commit breach of fiduciary duty.

Consequently, the demurrer to the fourth cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND after service of this signed order for failure to state a claim.

Fifth Cause of Action: Intentional Infliction of Emotional Distress

The fifth cause of action is a claim for intentional infliction of emotional distress.

A cause of action for intentional infliction of emotional distress exists when there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)

“An essential element of a cause of action for intentional infliction of emotional distress is ‘extreme and outrageous conduct by the defendant.’ [Citation.]” (Yurick v. Super. Ct. (1989) 209 Cal.App.3d 1116, 1123.) “[T]he standard for judging outrageous conduct does not provide a ‘bright line’ rigidly separating that which is actionable from that which is not. Indeed, its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility.” (Id. at p. 1128.) “[I]t is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities, or threats which are considered to amount to nothing more than mere annoyances. The plaintiff cannot recover merely because of hurt feelings.” (Ibid.) Thus, “[c]onduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.)

The outrageous conduct alleged in the fifth cause of action arises from the prior claims for fraud and breach of fiduciary duty. (See Cross-Complaint at ¶ 34.) As stated above, cross-complainant Binh has not alleged valid claims for fraud or breach of fiduciary duty. As a consequence, there are no facts of extreme and outrageous conduct to state a claim for intentional infliction of emotional distress.

Accordingly, the demurrer to the fifth cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND after service of this signed order for failure to state a claim.

The Court will prepare the Order.

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Case Name: Guillermina Garcia-Barrera, et al. v. Wells Fargo Bank, et al.

Case No: 17CV317925

I. Background

This complaint alleges a single, statutory violation of the Homeowners’ Bill of Rights. Plaintiffs Guillermina Garcia-Barrera and Rogelio Barrera (collectively, “Plaintiffs”) bring this action against Wells Fargo Bank, N.A. (“Defendant”) and Clear Recon Corporation.

According to the allegations of the second amended complaint (“SAC”), Plaintiffs own real property in San Jose. (SAC, ¶ 3.) They purchased the home with financing from World Savings Bank. (Id. at ¶ 8.) A few years later, Plaintiffs obtained a loan modification. (Id. at ¶ 10.) However shortly thereafter, they fell into arrears due to an unexpected financial hardship and they eventually filed for bankruptcy. (Ibid.)

At some point, Defendant acquired the loan, and though Plaintiffs have made substantial payments, Clear Recon recorded a notice of default of the loan. (SAC, ¶ 15.) Defendant contends that $771,419 is owed on the mortgage, but that sum does not reflect the payments Plaintiffs have made, and it includes escrow amounts that were erroneously collected. (Id. at ¶¶ 13, 15.)

Plaintiffs filed the SAC alleging three causes of action for: (1) violation of Civil Code section 2924.17; (2) violation of Civil Code section 2924(a)[2]; and (3) declaratory relief.

On January 30, 2019, the Court sustained a demurrer to the second cause of action in the SAC, without leave to amend. Thus only the first and third causes of action remain.

Before the Court is Defendant’s motion for summary judgment or in the alternative, summary adjudication.

II. Request for Judicial Notice

In support of its motion for summary judgment, Defendant requests judicial notice of three recorded instruments and ten items from Plaintiffs’ two bankruptcy cases, case numbers 11-56877 and 16-51474.

A court may take judicial notice of instruments recorded in the official records of a county. (See Evid. Code, § 452, subd. (h); see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 [disapproved on other grounds in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919] [court may take judicial notice of the existence and recordation of real property records]; Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549 [court may take judicial notice of recorded deeds].)  

Consequently, the Court takes judicial notice of the Deed of Trust recorded on May 23, 2006, the Notice of Default and Election to Sell Under Deed of Trust recorded on April 20, 2016, and the Notice of Trustee’s Sale, recorded on August 31, 2017.

A court may also take judicial notice of court orders, findings of facts and conclusions of law, and judgments within court records. (Evid. Code, § 452, subd. (d).) “However, while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.”  (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.)  

Thus, the Court will take judicial notice of the existence of court records filed in the two bankruptcy cases, Exhibits B, C, D, E, F, G, I, J, K and L. It will also take judicial notice of the orders of dismissal, as these are court orders. However, where Defendant seeks judicial notice of the truth of hearsay statements in any of the court documents, the Court will not take judicial notice of these. These include hearsay statements contained in the court records regarding escrow charges, proof of claim amounts, and arrearages.

As a result, the request for judicial notice is GRANTED in part and DENIED in part.

III. Evidentiary Objections

Plaintiffs lodge eight objections to Defendant’s evidence, specifically to statements in the declaration of Jacqueline Hunter.

However, the format of Plaintiffs’ evidentiary objections does not comply with California Rules of Court, rule 3.1354.   In particular, they do not include a separate proposed order in conformity with the rule. (Cal. Rules of Court, rule 3.1354, subdivision (c).) Instead, they merely list the objections, along with the grounds for each, with blanks apparently for the Court to indicate its rulings, but with no place for the Court to sign.  Such hybrid documents are improper.  See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal App 4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal App 4th 1 [trial court not required to rule on objections that do not comply with Rule of Court 3.1354 and not required to give objecting party a second chance at filing properly formatted papers].)    

As a result, the Court does not rule on Plaintiffs’ objections to Defendant’s evidence.

IV. Motion for Summary Judgment/Summary Adjudication

Defendant moves for summary judgment, or in the alternative summary adjudication pursuant to Code of Civil Procedure section 437c.

A. Legal Standard

  “A motion for summary judgment shall be granted when ‘all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 464, internal citations omitted.)  Summary adjudication is procedurally identical, except it acts on specific causes of action or affirmative defenses, rather than on the entire complaint. (Ibid.) A summary adjudication is properly granted only if a motion therefor completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Ibid.) Motions for summary adjudication proceed in all procedural respects as a motion for summary judgment. (Ibid.)

 

  “The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must make a prima facie showing either that the plaintiff cannot establish one or more elements of a cause of action or that there is a complete defense to the action. (Ibid.) The defendant may satisfy the initial burden of production by presenting evidence that conclusively negates an element of the plaintiff’s cause of action. (Id. at 854.) Once defendant meets its burden, the burden shifts to the plaintiff to present evidence showing there is a triable issue of material fact. (Id. at 850.)

  The motion is evidentiary in nature and cannot be based solely upon the allegations in a pleading. (College Hospital Inc. v. Super. Ct. (1994) 8 Cal.4th 704, 720, fn. 7; Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 733.) In ruling on the motion, a court cannot weigh the evidence presented or deny summary judgment or adjudication on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) 

B. First and Third Causes of Action

Defendant moves for summary judgment on the basis there are no triable issues of material fact for the first cause of action because it met its statutory obligations pursuant to Civil Code section 2924.17. Thus, by extension, the declaratory relief cause of action also does not withstand summary judgment.

1. Defendant Meets its Initial Burden

Defendant meets its initial burden to show that it met its statutory obligations under Civil Code section 2924.17.

Civil Code section 2924.17, a subdivision of the Homeowners Bill of Rights, requires that when filing a notice of default, a mortgage servicer must submit a declaration as described by section 2923.55, subdivision (c). (Civ. Code, § 2924.17.) The declaration must be “accurate and complete and supported by competent evidence.” (Civ. Code § 2924.17, subd. (a).) The declaration shall state that the mortgagor has contacted the borrower, tried with due diligence to contact the borrower, or that no contact was required because the property owner did not meet the definition of “borrower.” (Civ. Code, § 2923.55, subd. (c); Lucioni v. Bank of America, N.A. (2016) 3 Cal.App.5th 150, 162.) Section 2924.17 also requires the mortgagor to “ensure that it has reviewed competent and reliable evidence to substantiate the borrower’s default, and the right to foreclose, including the borrower’s loan status and loan information.” (Civ. Code § 2924.17, subd. (b); Lucioni v. Bank of America, N.A., supra, 3 Cal.App.5th 150, 163.)

“These provisions do not create a burden on the foreclosing party to prove anything in court, other than that the declaration required by section 2923.55, subdivision (c) was filed, and that necessary steps were taken before filing it.” (Lucioni v. Bank of America, N.A., supra, 3 Cal.App.5th 150, 163.) Likewise, they “do not create a right to litigate, preforeclosure, whether the foreclosing party’s conclusion that it had a right to foreclose was correct.” (Ibid, emphasis in original.)

Defendant meets its burden of proof to establish its compliance with the statutory requirements of section 2924.17. Preliminarily, the Court takes judicial notice of the Notice of Default recorded against Plaintiffs’ property, which includes a “Declaration of Compliance” pursuant to Civil Code section 2923.55, subdivision (c), indicating an exercise of diligence in Defendant’s attempts to notify Plaintiffs of their default. Thus, it has met its burden to prove that the declaration was filed as required.

Defendant also meets its burden to show that the necessary steps were taken before the declaration was filed. Proof is provided through the declaration of Jacqueline Hunter (“Hunter Dec.”), a Vice President of Loan Documentation for Defendant. (Hunter Dec., ¶ 1.) She attests to Wells Fargo’s review of “competent and reliable information regarding Plaintiffs’ account.” (Id. at ¶ 13.) The declaration states her familiarity with Defendant’s procedures of record keeping for mortgage loans. (Id. at ¶ 2.) She also attests to a personal review of Defendant’s system relative to Plaintiffs’ loan. (Ibid.)

Hunter states her review of Defendant’s records indicate Plaintiffs defaulted on their mortgage on or about July 22, 2011. (Hunter Dec., ¶¶ 2, 6.) She also states that in response to Plaintiffs’ bankruptcy petition filed shortly thereafter in July 2011 (RJN, Exhibit B), Defendant initiated escrow reviews to insure that the scheduled escrow payments covered property taxes and insurance premiums. (Dec. in Supp. Of MSJ, ¶¶ 6, 7.) According to its records, Defendant then advised Plaintiffs that their monthly payment amount would increase. (Id. at ¶ 7.) Defendant also filed a Proof of Claim in the bankruptcy case setting forth Plaintiffs’ arrearages on the mortgage. (Ibid.) The bankruptcy case was dismissed in February 2016 (RJN, Exhibit F), but Defendant’s records reflect that Plaintiffs remained delinquent on the mortgage. (Id. at ¶ 11.) Finally, Hunter states that on April 20, 2016, Defendant caused the Notice of Default to be recorded against the property, along with the statutorily required declaration. (Dec. in Supp. Of MSJ, ¶ 13; RJN, Exhibit H.)

As a result, Defendant met its burden of proof to show that the declaration was filed as required by Civil Code section 2924.17, and that the necessary steps were taken prior to filing the Notice of Default, specifically a review of competent and reliable evidence regarding Plaintiffs’ loan status and loan information.

Additionally, because there is no underlying cause of action or controversy, Defendant also meets its burden as to the cause of action for declaratory relief.[3] (See Artus v. Gramercy Towers Condominium Assn. (2018) 19 Cal.App.5th 923, 931.)

2. Plaintiffs Fail to Present a Triable Issue of Material Fact

Plaintiffs do not establish a triable issue of material fact to show Defendant failed to meet its statutory obligations under Civil Code section 2924.17. Plaintiffs do not attempt to contradict the declaration attesting to diligent efforts to contact them, instead they focus on the competence of the evidence on which Defendant relied prior to filing the Notice of Default.

Plaintiffs’ argument rests on its contention that they were overcharged for the mortgage, and as a result the amount stated in the Notice of Default are inaccurate and do not reflect the amount due, thus there is a triable issue of material fact.

Plaintiffs’ evidence consists of two identical declarations, signed by each of them. In substance, the declarations attest to Plaintiffs’ belief and information that they have been overcharged for the loan, primarily due to incorrect overcharges from escrow holds for insurance premiums. (See Dec. of R. Barrera; G. Garcia-Barrera, at ¶¶ 11, 13, 14, 15, 16.) Likewise, they dispute the alleged arrearage, stating that they have made substantial payments that were not applied towards the loan. (Id. at ¶¶ 19, 21.)

This evidence does not raise a triable issue of material fact as to whether Defendant reviewed “competent and reliable evidence” prior to filing the Notice of Default, nor does it sufficiently contradict Defendant’s declaration as to the same.

Furthermore, Plaintiffs’ arguments in opposition to the motion misconstrue the requirements of the statute and infer an obligation to prove in court that “foreclosure documents contain accurate and complete information supported by competent and reliable evidence.” (Pl. Opp. to Def. MSJ, p. 10:13-14.) This is not the standard because Defendant does not have to prove anything other than that the declaration required by section 2923.55, subdivision (c) was filed, and that necessary steps were taken before filing it.” (Lucioni v. Bank of America, N.A., supra, 3 Cal.App.5th 150, 163.) Finally, their approach presumes Plaintiffs have an ability to litigate whether Defendant’s information upon which it relied was correct, which in the preforeclosure context they do not. (Ibid.)

As a result, Defendant’s motion for summary judgment is GRANTED.[4]

After this signed order has been served and Defendants have complied with Rules of Court, Rule 3.1312, Defendants shall submit a proposed judgment.

The Court will prepare the order.

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Case Name: Cynthia Swinehart vs Google, Inc.

Case No.: 16CV296069

On April 5, 2019, the Court issued its order granting the motion by Google to dismiss the action due to the failure by Plaintiff to amend her complaint to state a valid claim. Judgment in favor of Google was entered that same day. On July 16, 2019, Plaintiff’s first motion to vacate the judgment pursuant to CCP 663.6 was denied as untimely and because not supported by facts or law. The Court’s order denying that motion was entered on July 26, 2019. On August 22, 2019, Plaintiff filed her appeal from the order denying the motion to vacate. That appeal is still pending.

On October 7, 2019, Plaintiff filed her motion to vacate the judgment that had been entered on April 5, 2019, apparently on the grounds of mistake. She claims that her finger was injured which prevented her from filing a 473 motion earlier, and she was not aware of the requirement that she submit a proposed amended complaint.

The Court agrees with Defendants’ contention that it lacks jurisdiction to entertain Plaintiff’s motion because of the pending appeal on orders Plaintiff is asking this Court to reconsider. As a general rule, “the perfecting of an appeal stays [the] proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order....’ (CCP 916(a). See also Betz v. Pankow, 16 Cal. App. 4th 931, 938, as modified on denial of reh'g (July 13, 1993); In re Marriage of Horowitz (1984) 159 Cal.App.3d 377, 381; Varian Med. Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189; Dowling v. Zimmerman (2001) 85 Cal.App. 4th 1400, 1427-1428.)

For this reason, and as the motion otherwise lacks merit, the motion is DENIED.

Google shall prepare the order. The Court notes that it prefers that instead of attaching the tentative ruling to the proposed order, that Google prepare an order that repeats the wording of the tentative ruling, and to incorporate any additional orders made at the hearing.

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[1] The court refers to the parties by their first name for clarity and not out of disrespect. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)  

[2] The second cause of action alleged that the notice of default Plaintiffs received was defective in that it incorrectly stated the amount owed in arrearage based on Defendant’s failure to correctly apply Plaintiffs payments and also based on erroneous overcharges through escrow.

[3] Likewise, a demurrer was sustained, without leave to amend, as to the second cause of action which alleged a violation of Civil Code section 2924, subdivision (a)(1)(C), thus Plaintiffs fail to state a statutory cause of action to challenge the validity of the nonjudicial foreclosure. Furthermore, California law does not permit a preemptive judicial action to challenge the right, power and authority of a foreclosing beneficiary to initiate foreclosure. (See Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 51, disapproved on another ground in Yvanova v. new Century Mortgage Corp. (2016) 62 Cal.4th 919, 933-934.)

[4] Given this ruling, the Court does not consider Defendant’s arguments regarding preemption.

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