Superior Court, State of California



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TROUBLESHOOTING TENTATIVE RULINGS

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

|LINE 1 |20CV374852 |Holly Hawkes vs Alta Devices Inc., a Delaware |Hearing: Order of Examination |

| | |corporation et al |of Defendant Alta Devices, Inc., Jian Ding CEO by Judgment Creditor |

| | | |Phillip Erkenbrack. |

| | | |Appearance Required. |

|LINE 2 |20CV372911 |A. Shirazi vs Daniel Neal et al |Hearing: Demurrer to the First Amended Complaint by Defendants Almaden|

| | | |Valley Soccer Club, Inc. and Thomas Brough |

| | | |Demurrer SUSTAINED. |

| | | |Click link at line 2 for full ruling. |

| | | |The Court will prepare the formal order. |

|LINE 3 |20CV372911 |A. Shirazi vs Daniel Neal et al |Motion: Motion to Strike Portions of the First Amended Complaint by |

| | | |Defendants Almaden Valley Soccer Club, Inc. and Thomas Brough |

| | | |Motion MOOT. |

| | | |Click link at line 2 for full ruling. |

| | | |The Court will prepare the formal order. |

|LINE 4 |21CV378021 |Bank of America, N.A. vs Ramiel E Chamaki |Motion: Motion to Quash Service of Summons and Complaint by Defendant |

| | | |Ramiel Chamaki. |

| | | |Motion DENIED. |

| | | |Click link at line 4 for full ruling. |

| | | |The Court will prepare the formal order. |

|LINE 5 |19CV358532 |Maria Morelos vs. Reynaldo Morelos |Motion: Motion for Summary Judgment/Adjudication by Defendant/Cross |

| | | |Complainant Reynaldo Morelos. |

| | | |The Court Regrets that this matter must be continued to 11/9/21 at |

| | | |9:00 AM. |

|LINE 6 |20CV363612 |Jai Kumar vs Jade Global, Inc. |Motion: Motion to Compel Defendant Jade Global, Inc. to Further |

| | | |Respond to Special Interrogs, and Inspection Demand and Request for |

| | | |Sanctions by Plaintiff Jai Kumar |

| | | |This Matter is ORDERED to an Informal Discovery Conference (IDC) with |

| | | |Judge Carol Overton on 11/18/21 at 9:00 am. Judge Overton will reach |

| | | |out to the parties with a Zoom invitation. Counsel with full decision|

| | | |making authority are ORDERED to attend. This matter is continued to |

| | | |12/2/21 at 9:00 if a hearing is needed. 7 days before the hearing, |

| | | |the parties are ORDERED to jointly file and serve a non-argumentative |

| | | |statement, no more than three pages in length, explaining what was |

| | | |resolved at the IDC and what remains to be heard. |

|LINE 7 |21CV376468 |Emilio Nakapaahu et al vs FCA US LLC et al |Motion: Motion to Order to Strike Defendant FCA US LLC's Meritless |

| | | |Objections and to Compel Further Responses to Plaintiff’s Request for |

| | | |Production of Documents Set One by Plaintiffs Emillio and Irene |

| | | |Nakapaahu. |

| | | |Click link at line 7 for full ruling. |

|LINE 8 |19CV360085 |Leopoldo Ramirez vs Miller Recycling Inc. et al|Motion: Motion for Order Dismissing the Complaint by Defendants Tung |

| | | |Tai Group, Joseph Chen and Celia Chen |

| | | |Motion DENIED |

| | | |Click link at line 8 for full ruling |

| | | |The Court will prepare the formal order. |

|LINE 9 |20CV362209 |Jeanne Galu v. George Towner et al. |Motion: Motion for Leave to Amend the Complaint by Plaintiff Jeanne |

| | | |Galu. |

| | | |Leave to Amend Granted. The Amended Complaint to be filed no later |

| | | |than 10/29/21. |

| | | |Defendant may amend his motion for summary judgment/adjudication to |

| | | |respond to the amendments to the complaint. Defendant’s amended papers|

| | | |shall be filed no later than 11/8/21. |

|LINE 10 |20CV370803 |CITY OF SAN JOSE et al vs DAVID TSAI et al |Motion to Confirm Receiver’s sale. Continued from 10/19/21. |

| | | |Appearance required. |

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Case Name: A. Shirazi v. Daniel Neal, et al

Case No.: 20CV372911

Before the court is Defendants Almaden Valley Soccer Club, Inc.’s (“AVSC”) and Thomas Brough’s (“Brough”) demurrer to first, second, third, fourth, fifth, sixth, ninth, and tenth causes of action of Plaintiff A. Shirazi’s (“Plaintiff”) first amended complaint (“FAC”) and AVSC’s and Brough’s motion to strike the request for attorney fees in the FAC.

I. Background

A. Factual

According to the allegations in the FAC, on or about May 2016, Plaintiff entered into a contract with AVSC, a non-profit organization, to provide soccer training for Plaintiff’s two children. Brough is the owner of AVSC. Brough and AVSC hired Daniel Neal (“Neal”) as a soccer coach. Neal engaged in a sexual relationship with Plaintiff’s now ex-wife. On information and belief, Plaintiff alleges that Neal engaged in sexual acts with Plaintiff’s ex-wife at various AVSC events. Plaintiff contends on information and belief that AVSC failed to conduct a background check on Neal. Plaintiff also argues that AVSC had a duty to train Neal to act professionally.

B. Procedural

Based on the foregoing allegations, Plaintiff initiated this action on October 30, 2020. On March 24, 2021, Plaintiff filed its FAC, which asserted causes of action for: (1) breach of contract (against AVSC only), (2) disseminating untrue statements to the public pursuant to section 17200 of the Business and Professions Code (against Brough and AVSC only), (3) violation of covenant of good faith and fair dealing as a violation of section 17200 of the Business and Professions Code (against Brough and AVSC only), (4) negligence (against AVSC, Brough, and Neal), (5) intentional misrepresentation (against AVSC), (6) negligent misrepresentation (against AVSC), (7) intentional infliction of emotional distress (against Neal), (8) negligent infliction of emotional distress (against Neal), (9) respondeat superior (against AVSC and Brough), and (10) negligent hiring, supervision, and retention of employee (against AVSC and Brough).

AVSC and Brough filed the instant demurrer to the FAC. Plaintiff opposed the demurrer and AVSC and Brough have filed a reply.

II. Demurrer

AVSC and Brough demur to the first, second, third, fourth, fifth, sixth, ninth, and tenth causes of action in the FAC on the grounds that they fail to state sufficient facts to constitute a cause of action and that they are uncertain.

A. Legal Standard for a Demurrer

As relevant to the instant case, “[t]he party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in [Code of Civil Procedure s]ection 430.30, to the pleading on any one or more of the following grounds: . . . (e) The pleading does not state facts sufficient to constitute a cause of action[,] (f) The pleading is uncertain. (Code Civ. Proc., § 430.10, subds. (e), & (f).)[1] A demurrer may be utilized by “[t]he party against whom a complaint [ ] has been filed” to object to the legal sufficiency of the pleading as a whole, or to any “cause of action” stated therein, on one or more of the grounds enumerated by statute. (§§ 430.10, 430.50, subd. (a).)

The court in ruling on a demurrer treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing 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.) In ruling on a demurrer, courts may consider matters subject to judicial notice. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 751.) Evidentiary facts found in exhibits attached to a complaint can be considered on demurrer. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.)

B. Timeliness

“A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” (§ 430.40, subd. (a).) Even if a demurrer is untimely filed, the Court has discretion to hear the demurrer so long as its action “. . . ‘does not affect the substantial rights of the parties.’ [Citations.]” (See McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 281-282.) Plaintiff does not argue that the demurrer was untimely. Accordingly, the court will reach the merits of the demurrer.

C. Meet and Confer

“Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (§ 430.41, subd. (a).) “As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.” (§ 430.41, subd. (a)(1).) “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (§ 430.41, subd. (a)(4).)

Here, AVSC and Brough have provided a declaration evidencing sufficient meet and confer efforts and Plaintiff does not argue that their meet and confer efforts were insufficient.

D. AVSC’s and Brough’s Request for Judicial Notice

AVSC and Brough requests judicial notice of (1) a restraining order in Niloufar Daneshparvar Dehkordi v. Amir Shirazi, Santa Clara County Case No. 19DV000714 filed on August 23, 2019 and (2) an additional restraining order in the same case filed on July 27, 2020.

Plaintiff objects to the request for judicial notice on the grounds that the case is not final, that AVSC and Brough have failed to identify which portions of the documents they would like the court to take judicial notice of and that AVSC and Brough have not provided the court with sufficient facts to determine whether or not the documents are relevant.

Court documents are generally a proper subject of judicial notice under Evidence Code section 452, subdivision (d). AVSC and Brough seek judicial notice of the restraining orders to show that Plaintiff is unable to contract on behalf of his wife and children. Accordingly, the court finds that the restraining orders are relevant to the arguments raised in the demurrer. AVSC’s and Brough’s request for judicial notice is GRANTED.

E. Plaintiff’s Request for Judicial Notice

Plaintiff requests judicial notice of (1) Protecting Young Victims from Sexual Abuse and

Safe Sport Authorization Act of 2017 (Also known as the Safe Sport Authorization Act) (132 Stat. 138) (“the Act”) and (2) AVSC’s and Brough’s notice of joinder to a demurrer filed by Neal, which was heard by this court on October 19, 2021.

Plaintiff’s request for judicial notice is GRANTED as it pertains to AVSC’s and Brough’s joinder to Neal’s demurrer. (See Evid. Code, § 452, subd. (d).)

AVSC and Brough object to Plaintiff’s request for judicial notice of the Act on the ground that the Act is not mentioned anywhere in the FAC and on the ground that the Act is irrelevant to the resolution of the demurrer. However, the court finds that the Act is relevant to the arguments made in Plaintiff’s opposition to the demurrer and although the Act is not mentioned in the FAC, the Act is relevant to whether Plaintiff may be able to amend the FAC in the event the demurrer is sustained. Legislative enactments and official acts of the United States are proper subjects of judicial notice under Evidence Code section 452, subdivision (b) and (c). Accordingly, Plaintiff’s request for judicial notice is GRANTED as to the Act.

F. AVSC’s and Brough’s Evidentiary Objections to the Declaration of Harpaul Nahal

AVSC and Brough object to multiple statements in the declaration of Harpaul Nahal in support of the opposition to the demurrer. The court need not rule on the evidentiary objections because it finds that the evidence objected to is not material to the outcome of the demurrer.

G. Merits of the Demurrer

As mentioned above, AVSC and Brough demur to the first, second, third, fourth, fifth, sixth, ninth, and tenth causes of action in the FAC on the grounds that they fail to state sufficient facts to constitute a cause of action and that they are uncertain.

AVSC and Bough contend that all causes of action arise from an attempt at suing based on Neal’s sexual relationship with Plaintiff’s ex-wife, which is barred by Civil Code section 43.5. Civil Code section 43.5 provides that no cause of action arises for, inter alia, “[a]lienation of affection” or “[c]riminal conversation.”[2]

In Smith v. Pust (1993) 19 Cal.App.4th 263, 266 (Smith), the plaintiff’s wife had an affair with her therapist. Her husband sued the therapist and his employer asserting causes of action for “negligence, bad faith, intentional infliction of emotional distress and negligent infliction of emotional distress.” (Id. at p. 268.) The Court of Appeal concluded that, despite the labelling of the causes of action, the lawsuit was one for criminal conversation and alienation of affection, neither of which are actionable in California. (Id. at p. 266.) The court explained that the substance of the facts alleged was that the therapist had engaged in a sexual relationship with the plaintiff’s wife, causing the breakdown of the plaintiff’s marriage. (Id. at p. 268.)

The court noted, however, that there was one exception to the prohibition on lawsuits for criminal conversation and alienation of affection. “There is authority in California, however, that conduct which constitutes alienation of affection or criminal conversation is not immune from tort liability if it ‘breaches a duty of care independent’ of those old causes of action. [Citation.]” (Smith, supra, 19 Cal.App.4th at p. 269.) There are “two requirements for such an independent duty of care: (1) a genuine professional relationship must exist between the plaintiff and the defendant, and (2) the wrongful conduct must have a meaningful connection to the purpose of that professional relationship.”

(Id. at p. 270.) The Smith court concluded that the therapist did not owe a duty to the plaintiff because the therapist’s duty was to his patient, the plaintiff’s wife. (Id. at p. 272.)

Here, despite their labels, the causes of action in the FAC are clearly based on Neal’s sexual relationship with Plaintiff’s ex-wife and the alleged failure of AVSC and Brough to adequately train, supervise, or otherwise prevent Neal from doing so. “A plaintiff cannot . . . camouflage an abolished action with the catchwords of the common law. The question is whether the essence of the cause of action is something more than mere seduction[,]” or, in this case, adultery. (Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 267.) Thus, liability will lie only if AVSC or Neal breached an independent duty of care owed to Plaintiff and the alleged wrongful conduct has a meaningful connection to the professional relationship.

Plaintiff contends that the challenged causes of action raised against AVSC and Brough are not barred by Civil Code section 43.5 because he has met all elements of the causes of action and because AVSC and Brough owed him a duty to provide a safe, professional environment for youth sports under the Act. Plaintiff cites to no case law in the opposition or in the FAC on this point and the FAC does not mention Act.

Even if Neal, AVSC, and Brough owed Plaintiff’s children a duty of care that was breached by the sexual relationship, the FAC states that Plaintiff is suing in his capacity as an individual. Plaintiff does not allege that he has standing to assert any claim on behalf of his children. Further, Plaintiff points to no portion of the Act that establishes a duty on the part of Neal, AVSC, or Brough. Plaintiff argues that Exhibits A and B to his request for judicial notice establish that AVSC and Brough hired Neal, that Neal coached Plaintiff’s children, and that AVSC and Brough had a duty to Plaintiff. Exhibit B is AVSC’s and Brough’s joinder to Neal’s demurrer and Plaintiff cites to no portion of that document that might establish that AVSC and Brough had a duty to Plaintiff.

Plaintiff also relies on the Act to establish that Neal had a duty to act professionally and that AVSC and Brough had a duty to train and supervise him so that he would do so. He also contends that the Act “is a broad statute that encompasses and prevents many aspects of sexual activities, abuse, violence or other unprofessional activates that take place at youth sports events[.]” (Opposition at p. 11, lns. 3-5.) But, the only portion of the Act Plaintiff cites to is the portion where it is explains who it applies to.

Assuming without deciding that the Act applies to AVSC and Brough, the Act does not appear to provide for a duty to act professionally or to prevent the type of conduct Neal engaged in. The Act provides that certain covered individuals, including certain sports officials have a duty to report “child abuse, including sexual abuse[.]” (34 U.S.C. § 20341, subd. (a)(2).) In context, “the term ‘child abuse’ means the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child[.]’ ” (34 U.S.C. § 20341, subd. (c)(1).) “[T]he term ‘sexual abuse’ includes the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children[.]” (34 U.S.C. § 20341, subd. (c)(4).) Clearly, neither child abuse nor sexual abuse are alleged in the FAC. The Act also amended 18 U.S.C. 2255, which provides for a civil remedy for personal injuries to minors. The FAC alleges no personal injury to any minor and, as mentioned above, Plaintiff is not suing on behalf of his children. Finally, the Act makes several provisions relating to the United States Olympic and Paralympic Committee and the United States Center for Safe Sport. (See 36 U.S.C. § 220501, et seq.) And, 36 U.S.C. § 220541 specifically provides, “Nothing in this chapter [36 USCS §§ 220501 et seq.] shall be construed to create a private right of action.”

Plaintiff has failed to allege that Neal, AVSC, or Brough had more of a duty than any other person to abstain from engaging in sexual relations with his ex-wife. (Smith, supra, 19 Cal.App.4th at p. 273.) Therefore, Plaintiff points to no independent duty that would remove the challenged causes of action from the ambit of Civil Code section 43.5. Accordingly, the demurrer must be sustained.[3]

Plaintiff argues that, should the court sustain the demurrer, he should be allowed to amend the FAC. However, he does not explain how the FAC could be amended to avoid the prohibition of Civil Code section 43.5 or to allege a recognized duty on the part of Neal, AVSC, or Brough in the context of this case.

“ ‘Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment. [Citation.] . . . Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. [Citations.]” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Plaintiffs have the burden to show how they could further amend their pleadings to cure the defects. [Citation.]” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 411.)

Notwithstanding that general rule, leave to amend is properly denied where the issue raised on the motion is strictly a legal one and no further amendment can alter that issue. (See Schonfeldt v. State of Calif. (1998) 61 Cal App 4th 1462, 1465 [leave to amend is properly denied where the plaintiff cannot succeed as a matter of law].) The issue here is an issue of law and Plaintiff has failed to show how he could amend the FAC to correct the deficiencies discussed above. Accordingly, leave to amend will be denied.

H. Conclusion

AVSC’s and Brough’s request for judicial notice is GRANTED. Plaintiff’s request for judicial notice is GRANTED. The court need not rule on AVSC’s and Brough’s evidentiary objections because they are immaterial to the outcome of the demurrer. The demurrer is SUSTAINED as to the first, second, third, fourth,[4] fifth, sixth, ninth, and tenth causes of action in the FAC without leave to amend.

III. Motion to Strike

In light of the court’s ruling on AVSC’s and Brough’s demurrer, the motion to strike is moot. Accordingly, it is DENIED.

IV. Conclusion

The demurrer is SUSTAINED as to the first, second, third, fourth, fifth, sixth, ninth, and tenth causes of action in the FAC without leave to amend. In light of the court’s ruling on AVSC’s and Brough’s demurrer, the motion to strike is DENIED as moot.

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Case Name: Bank of America, N.A. v. Ramiel E. Chamaki

Case No.: 21CV378021

Before the court is Defendant Ramiel E. Chamaki’s (“Defendant”) motion to quash service of summons by Plaintiff Bank of America, N.A. (“Plaintiff”).

V. Background

This is an action to recover a balance owed on a credit card Plaintiff issued to Defendant. Defendant filed a motion to quash service of summons, which Plaintiff has opposed. Defendant has not filed a reply.

VI. Motion to Quash Service of Summons Legal Standard

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: [¶] To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (Code Civ. Proc., § 418.10, subd. (a)(1).)[5] “When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’ ” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413, footnote omitted.)

VII. Merits of the Motion

Defendant argues that he was not properly served in connection with this matter because Plaintiff’s process server did not personally serve him and because substitute service was not made at his residential or business address.

Plaintiff argues that substitute service was proper under section 415.20, subdivision (b), which states, “If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.”

Plaintiff has provided a proof of service and its counsel’s declaration, both indicating that Defendant’s only known address was a mail box located 59 Washington Street #200, Santa Clara. Section 415.20, subdivision (c) provides, “Notwithstanding subdivision (b), if the only address reasonably known for the person to be served is a private mailbox obtained through a commercial mail receiving agency, service of process may be effected on the first delivery attempt by leaving a copy of the summons and complaint with the commercial mail receiving agency in the manner described in subdivision (d) of Section 17538.5 of the Business and Professions Code.”

Plaintiff filed a proof of service explaining that, on April 30, 2021, the summons and complaint were left with the owner of the mail center in which Defendant’s mail box was located and that the owner was informed of the contents of the summons and complaint and directed to deliver the summons and complaint to Defendant. The owner of the mail center, Bhaskar Patel, confirmed that the mail box belonged to Defendant. Thereafter, on May 3, 2021, Plaintiff’s process server mailed, by first class mail, a copy of the complaint and summons to 59 Washington Street #200.

“The return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” (Evid. Code, § 647.) “The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.” (Evid. Code, § 604.) Thus, the court must presume that service is proper unless Defendant has provided evidence to the contrary.

Here, Defendant has provided no evidence whatsoever that service was improper. Although the motion refers to three separate declarations that allegedly show that service was improper, Defendant has not provided the court with these declarations. Accordingly, Defendant has failed to rebut the presumption of proper service under Evidence Code section 647.

VIII. Conclusion

The motion to quash service of summons is denied. Defendant is entitled to 15 days, after service of written notice of entry of the order denying the motion to quash, to respond to the complaint. (See § 418.10, subdivision (b).)

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Case Name: Emilio Nakapaahu et al vs FCA US LLC et al

Case No.: 21CV376468

BACKGROUND

Before the Court is the Motion of EMILLIO NAKAPAAHU and IRENE NAKAPAAHU (“Plaintiffs”) for an order striking FCA US LLC’S (Defendant’s) objections and to compel Defendant to further respond to Plaintiffs’ Requests for Production of Documents, Set One, Nos. 1, 8, 11, 20, 24, 30, 33, 35, 37, 40, 83, 84, 85, 90, and 91 for the production of all responsive documents. Defendant opposes the Motion. The parties were referred to an IDC that does not appear to have resolved any of the disputed issues. Accordingly, the matter is before the Court for decision.

DISCUSSION

Defendant’s Objections.

Defendant objects to all of the disputed requests for production of documents on grounds that the requests do not provide sufficient information to identify the documents or category of documents being sought. Defendant also objects on the further grounds that the terms “STALLING DEFECT” and “2017 CHRYSLER PACIFICA VEHICLES” are vague and ambiguous.

Defendant offers no reasoned analysis as to why the requests do not provide sufficient basis for identifying the requested documents. As such, those objections are overruled. The Court overrules the objections to the terms “Stalling Defect” and “2017 CHRYSLER PACIFIC VEHICLES.”

Defendant objects to the production of ESI documents on the grounds that it is unduly burdensome. Defendant offers no reasoned analysis as to why the production of such documents would be unduly burdensome. Indeed, Defendants supplemental responses indicate that such documents will be produced. Defendant’s objection is overruled.

Defendant objects to Plaintiff’s definition of the terms “YOU” and "YOUR" because they are overly broad and compound, and includes entities not owned or operated by Defendant or who are not agents of Defendant or within Defendant’s control. The Court sustains the objection to the extent that Plaintiff s request seeks to expand Defendant’s discovery obligations, however to the extent the definitions refer to Defendant’s authorized dealers or agents the objection is overruled.

Defendant has objected to the production of customer complaints on the basis customer privacy. Those objections are sustained, however, the Court understands that Defendants have agreed to produce documents responsive to the requests, subject to a protective order.

IDC Joint Statement

The parties were ordered to provide the Court with a Joint Statement of remaining disputed issues post IDC. Based on the Court’s reading of the Joint Statement, it would appear that Plaintiffs’ concern regarding Defendant’s response and production is that Defendant says it will only “comply in part” in producing documents and has limited its responses to only the “Subject Vehicle” as opposed to all 2017 Chrysler Pacifica vehicles. Plaintiff also claims Defendant is refusing to inform Plaintiffs what key search terms were used in their ESI document production searches.

According to Defendant, all documents in its possession, custody or control specific to the “Subject Vehicle” have been produced along with “extensive” documentation regarding other 2017 Chrysler Pacificas. Defendant also claims that they have provided Plaintiffs with a detailed explanation of how the searches were conducted, including the exact Boolean search strings used to search for the ESI and emails relating to the investigations regarding Recalls.

FINDINGS AND ORDERS

The Court finds that Plaintiffs’ requests discovery about other vehicles that are the same make, model, and year as their vehicle are relevant to willfulness under the Song-Beverly Act. Accordingly, to the extent Defendant has additional documents responsive to Plaintiffs’ requests that have been withheld, those documents are ordered to be produced.

Defendant claims that, despite its objections above, all documents responsive to Plaintiffs’ requests have been produced. To the extent any documents have been withheld based on the objections that the Court has overruled above, they must be produced

Unless Plaintiff can explain why Defendant’s detailed explanation of how the ESI searches were performed was inadequate, the Court finds that Defendant has fully complied with this request.

Considering each document request, to the extent that any documents have been withheld based on the objections asserted above, the Court orders Defendant to further produce all non-privileged (either attorney client or work product) documents responsive to each request, consistent with the rulings above. The Court finds that searching for them will not pose an undue burden, in light of their clear relevance.

To the extent that any documents have been withheld based on a privacy objection, those documents are ordered to be produced subject to a protective order.

Defendant must provide its supplemental document responses within 55 days of the October 26, 2021 hearing and responsive documents (and a privilege log, if necessary) within 85 days of that hearing.

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Case Name: Leopoldo Ramirez v. Miller Recycling, Inc., et al

Case No.: 19CV360085

Before the Court is Defendants’ Tung Tai Group, Joseph Chen, and Cecilia Chen (collectively, “Defendants”) motion to dismiss this action by Plaintiff Leopoldo Ramirez (“Plaintiff”).

IX. Background

Plaintiff contends that, on April 14, 2019, he was injured while working at a recycling plant in San Jose. On December 12, 2019, Plaintiff filed the Complaint in this action raising claims for (1) general negligence and (2) violation of Labor Code section 3706. On March 15, 2021, the Complaint was amended to add additional defendants.

On July 27, 2021, Defendants filed the instant motion to dismiss. Plaintiff opposed the motion and Defendants filed a reply.

X. Discussion

A. Defendants’ Request for Judicial Notice

Defendants request judicial notice of (1) the docket, (2) Plaintiff’s application for worker’s compensation relief, and (3) Defendant Tung Tai’s answer, in Plaintiff’s Workers’ Compensation action under Evidence Code sections 401 through 403.[6] These statutes do not provide a basis for the Court to take judicial notice of the subject records.

However, Plaintiff requests judicial notice of, among other things, his application and of Defendant Tung Tai’s answer. These documents are the proper subject of judicial notice under Evidence Code section 452, subd. (c) which permits judicial notice of official acts of the legislative, executive, and judicial departments. “Evidence Code section 452, subdivision (c) permits the trial court to take judicial notice of the records and files of a state administrative board.” (Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1749-1750.)

The Court declines to take judicial notice of the Workers’ Compensation Board’s docket as it is not clear why Defendants’ seek judicial notice of that item. Accordingly, Defendants’ request for judicial notice is granted in part as to Plaintiff’s application for worker’s compensation relief and as to Defendant Tung Tai Group’s answer and denied in part as to the Workers’ Compensation Board’s docket.

B. Plaintiff’s Request for Judicial Notice

Plaintiff requests judicial notice of (1) Plaintiff’s application for worker’s compensation relief, (2) Defendant Tung Tai Group’s answer, and (3) Defendant Tung Tai Group’s petition to dismiss party defendants in Plaintiff’s Workers’ Compensation action. He also requests judicial notice of portions of the (4) deposition testimony of Joseph Chen and of (5) Jose Diaz, each taken in connection with Plaintiff’s Workers’ Compensation proceedings. Finally, Plaintiff requests judicial notice of (6) emails between his counsel and Defendants’ counsel in connection with the instant case.

With respect to all requests, Plaintiff seeks judicial notice of the documents under Evidence Code section 452, subdivision (d) and (h). As mentioned above, the documents filed with the Workers’ Compensation Board are the proper subject of judicial notice under Evidence Code section 452, subdivision (c). Accordingly, Plaintiff’s request for judicial notice is granted as to the first three items.

With respect to the deposition testimony, it has been held that deposition testimony from another action is hearsay and not subject to judicial notice. (Mireskandari v. Gallagher (2020) 59 Cal.App.5th 346, 360.) Furthermore, although the existence of statements contained in a deposition transcript if it was filed as part of the administrative record can be judicially noticed, the truth of those statements is not subject to judicial notice. (See Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22.) Accordingly, the court declines to take judicial notice of the deposition testimony.

Plaintiff’s request for judicial notice of the emails between counsel for Plaintiff and counsel for Defendants is denied as the emails, which are offered for the purpose of showing that Defendants’ counsel decided not to produce Joseph Chen for deposition in this proceeding pending the outcome of the motion, are irrelevant to the issues before the Court on the motion to dismiss.

C. Defendants’ Evidentiary Objections

Defendants filed objections to evidence submitted in support of Plaintiff’s opposition. They indicate that they object to portions of Plaintiff’s request for judicial notice, specifically the requests for judicial notice of the deposition testimony of Joseph Chen and Jose Diaz taken in connection with the Workers’ Compensation proceedings on the basis of hearsay and authentication. The contents of the actual request for judicial notice is not evidence. To the extent Defendants are objecting to the court taking judicial notice of the deposition testimony, the court has already declined to take judicial notice of the deposition testimony. The evidentiary objections to Plaintiff’s request for judicial notice are overruled.

Defendants also object to portions of the declaration of Plaintiff’s counsel in opposition that indicate that the corresponding exhibits attached to Plaintiff’s request for judicial notice are true and correct copies of that deposition testimony. But, the court need not rule on these objections as they are immaterial to the outcome of the motion to dismiss.

D. Merits of the Motion

Defendants move to dismiss the Complaint on the ground that the Court lacks subject matter to proceed due to pending proceedings involving some of the same parties before the Workers Compensation Board. Defendants contend that the action before the Workers’ Compensation Board was first in time and the subject matter jurisdiction of the Board is exclusive as to the type of controversy in this case, therefore, the Superior Court lacks subject matter jurisdiction to hold further proceedings in this case.

“The Workers’ Compensation Act [], codified in section 3201 of the Labor Code, sets forth an elaborate scheme for the compensation of California employees injured in the course and scope of their employment. Labor Code section 3602 expressly states that the right to recover workers’ compensation benefits is ‘the sole and exclusive remedy’ available to an injured employee against his employer. Moreover, the WCAB has exclusive jurisdiction over disputes regarding an employee’s right to compensation or the liability of an employer. ([Lab. Code,] § 5300, subds. (a) & (b).)” (Marsh & McLennan, Inc. v. Superior Court (1989) 49 Cal.3d 1, 5.)

In Scott v. Industrial Acci. Com. (1956) 46 Cal.2d 76 (Scott), the California Supreme Court was faced with a similar situation wherein the first action filed was in the Superior Court. The Court ultimately concluded that the Workers’ Compensation Board proceedings should be stayed pending the outcome of the Superior Court case. (Id. at p. 79.)

The Scott Court explained that the Superior Court and the Workers’ Compensation Board “do not have concurrent jurisdiction over the whole of the controversy, and one of them will be without jurisdiction to grant any relief whatsoever, depending upon whether or not the injuries were suffered within the course and scope of an employment relationship and so covered by the workmen’s compensation laws. In other words, . . . the only point of concurrent jurisdiction of the two tribunals appears to be jurisdiction to determine jurisdiction; jurisdiction once determined will be exclusive, not concurrent. [Citations.]” (Scott, supra, 46 Cal.2d at pp. 82-83; accord La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co. (1994) 9 Cal.4th 27, 35.)

“If at the time of the accident there was no workmen’s compensation coverage, then the commission is without jurisdiction to grant relief, and if there was such coverage then the superior court is without jurisdiction and must leave the parties to pursue their remedies before the commission. [Citations.]” (Scott, supra, 46 Cal.2d at p. 83.) “[T]he type and extent of relief which can be granted and the factors by which such relief is determined differ materially between the two tribunals; the superior court cannot award workmen’s compensation benefits, and the commission cannot award damages for injuries.” (Ibid.) “[I]f there is a final determination as to the matter of coverage (i.e., of jurisdiction) in either the commission or the superior court proceedings, such determination will be res judicata in subsequent proceedings before the other tribunal between the same parties or those privy to them.” (Ibid.)

In a similar case in which the Workers’ Compensation Board action was the first in time, “the superior court should not try the case until the commission has made a final determination of the issue as to whether it or the court has jurisdiction to proceed; i.e., as to whether [the claimant’s] alleged injuries are covered by the workmen’s compensation laws so far as concerns his claims against petitioner. Meanwhile, the commission should proceed to a determination of such issue. Its adjudication, when final, will be conclusive on all parties.” (Taylor v. Superior Court of Los Angeles County (1956) 47 Cal.2d 148, 151 (Taylor).) In Taylor, the plaintiff initially filed a Workers’ Compensation action in which he named the defendant as his employer. While it was pending, the plaintiff filed a civil action in the Superior Court naming the United States Forest Service as his employer. The defendant “answered, alleging as an affirmative defense that the commission has ‘exclusive jurisdiction over . . . [the subject] matter.’ ” (Id. at p. 149.) The Supreme Court explained, “Although this plea, if substantiated, would constitute a defense in the superior court it is a defense which, under the Scott case and in view of the prior inception of the commission proceeding, could be finally determined only after the Industrial Accident Commission had ruled on the question. In the meantime, however, it would be incumbent upon the superior court to stay proceedings before it.” (Ibid.)

In Elkins v. Derby (1974) 12 Cal.3d 410, 417, fn. 4, the California Supreme Court reiterated that “the progress of a civil action filed after the initiation of a compensation claim normally ceases during the pendency of the compensation claim. [Citations.] . . . [A] tort action filed after a compensation application will not move ahead, therefore, until a claimant has been denied benefits by the compensation board.”

What can be gleaned from the above cases is that, where the action is filed first before the Workers’ Compensation Board and then in the Superior Court, the Superior Court may not proceed to hear the merits of the case. However, it does not appear that dismissal of the action is an appropriate action in this case.

“A judicial affirmation of compensability becomes res judicata only when it reaches finality.” (Azevedo v. Abel (1968) 264 Cal.App.2d 451, 460.) Therefore, dismissal of an action under Scott is premature if it occurs before the Workers’ Compensation Board’s decision is final. (See ibid.) As explained in Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 221, “the court in Scott only issued a stay. It did not dismiss the workers’ compensation action for lack of subject matter jurisdiction. Indeed it could not have. The jurisdictional question, whether the plaintiff was an employee, had not been determined.”

Further, Plaintiff has asserted a cause of action under Labor Code section 3706, which provides, “If any employer fails to secure the payment of compensation, any injured employee or his dependents may bring an action at law against such employer for damages, as if this division did not apply.” “Jurisdiction of the superior court to try claims of an employee against his employer for damages under section 3706 arises only when payment of compensation is not secured.” (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1177.)

Here, Defendant Tung Tai Group has disputed that Plaintiff was its employee in the proceedings before that Workers’ Compensation Board in its motion to dismiss. Plaintiff contends that Defendants Joseph Chen and Cecelia Chen are not parties to the Workers’ Compensation Board proceedings. The Complaint alleges that Defendants did not have workers’ compensation insurance and although Defendants contend that they were insured, they provide no evidence of that fact. Neither party has presented any evidence that the Workers’ Compensation Board had made a final determination as to its own jurisdiction over this action. Accordingly, under the above authorities, dismissal is premature at this stage.

XI. Conclusion

Defendants’ request for judicial notice is GRANTED as to Plaintiff’s application for worker’s compensation relief, and Defendant Tung Tai’s answer, in Plaintiff’s Workers’ Compensation action and DENIED as to the docket in the Workers’ Compensation action. Plaintiff’s request for judicial notice is GRANTED as to Plaintiff’s application for worker’s compensation relief, Defendant Tung Tai Group’s answer, and Defendant Tung Tai Group’s petition to dismiss party defendants in Plaintiff’s workers’ compensation action and DENIED as to all other items. Defendants’ evidentiary objections to Plaintiff’s request for judicial notice are OVERRULED. The court need not rule on the remainder of Defendants’ evidentiary objections as they are immaterial to the outcome of the motion to dismiss.

The motion to dismiss is DENIED. The court will, however, entertain a motion to stay.

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[1] All further undesignated statutory references are to the Code of Civil Procedure.

[2] Criminal conversation is “a euphemism for a third party’s sexual intercourse with an adulterous spouse.” (Smith v. Pust (1993) 19 Cal.App.4th 263, 266.)

[3] In light of this conclusion, the court declines to reach AVSC’s and Brough’s additional arguments in support of the demurrer.

[4] The court previously sustained Neal’s demurrer to the fourth cause of action as to Neal, AVSC, and Brough based on AVSC’s and Brough’s joinder to that demurrer.

[5] All further undesignated statutory references are to the Code of Civil Procedure.

[6] Plaintiff represents that Defendants Joseph Chen and Cecelia Chen are not currently parties to the Workers’ Compensation action.

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