Superior Court, State of California
DATE: Tuesday, 26 July 2022
TIME: 9:00 A.M.
Please note that between now and 26 August 2022, all hearings will be conducted remotely as the Old Courthouse will be closed. This Department prefers that litigants use Zoom for Law and Motion and for Case Management Calendars. Please use the Zoom link below.
All Courts of California celebrate the diversity of the attorneys and the litigants who appear in our Courts. Do not hesitate to correct the Court or Court Staff concerning the pronunciation of any name or how anyone prefers to be addressed. As this Court is fond of saying, “with a name like mine, I try to be careful how I pronounce the names of others.” Please inform the Court how you, or if your client is with you, you and your client prefer to be introduced. The Court encourages the use of diacritical marks, multiple surnames and the like for the names of attorneys, litigants and in court papers.
You may use these links for Case Management Conferences and Trial Setting Conferences without Court permission. Informal Discovery Conferences and appearances on Ex Parte applications will be set on Order by the Court.
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Please Read This Page In Its Entirety As Some Of The Protocols Have Changed.
Please Check This Tentative Rulings Page Before Making Any Appearance.
Whether appearing in person or on a virtual platform, the usual custom and practices of decorum and attire apply.
For new Rules of Court concerning remote hearings and appearances, please review California Rules of Court, rule 3.672.
This Court expects all counsel and litigants to comply with the Tentative Rulings Procedures that are outlined in Local Civil Rule 7(E) and California Rules of Court, rule 3.1308. If the Court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the Court at (408) 808-6856 before 4:00 p.m. on the court day before the hearing of the party's intention to appear. A party must notify all other parties by telephone or in person. A failure to timely notify this Court and/or the opposing parties may result in the tentative ruling being the final order in the matter.
Please notify this Court immediately if the matter will not be heard on the scheduled date. California Rules of Court, rule 3.1304(b). If a party fails to appear at a law and motion hearing without having given notice, this Court may take the matter off calendar, to be reset only upon motion, or may rule on the matter. California Rules of Court, rule 3.1304(d). A party may give notice that he or she will not appear at a law and motion hearing and submit the matter without an appearance unless this Court orders otherwise. This Court will rule on the motion as if the party had appeared. California Rules of Court, rule 3.1304(c). Any uncontested matter or matters to which stipulations have been reached can be processed through the Clerk in the usual manner. Please include a proposed order.
All proposed orders and papers should be submitted to this Department’s e-filing queue. Do not send documents to the Department email unless directed to do so.
APPEARANCES.
While the Court will still allow physical appearances, all litigants are encouraged to use the Zoom platform for Law & Motion appearances and Case Management Conferences. Use of other virtual platform devices will make it difficult for all parties fully to participate in the hearings. Please note the requirement of entering a password (highlighted above.)
As for personal appearances, protocols concerning social distancing and facial coverings in compliance with the directives of the Public Health Officer will be enforced. Currently, facemasks are required in all courthouses. If you appear in person, it will be helpful if you wear a disposable paper mask while using the courtroom microphones so that your voice will not be muffled.
Individuals who wish to access the Courthouse are advised to bring a plastic bag within which to place any personal items that are to go through the metal detector located at the doorway to the courthouse.
Sign-ins will begin at about 8:30 AM. Court staff will assist you when you sign in. If you are using the Zoom virtual platform, it will helpful if you “rename” yourself as follows: in the upper right corner of the screen with your name you will see a blue box with three horizontal dots. Click on that and then click on the “rename” feature. You may type your name as: Line #/name/party. If you are a member of the public who wishes to view the Zoom session and remain anonymous, you may simply sign in as “Public.”
The Santa Clara County Superior Court has established listen-only telephone Lines to allow remote access to public court proceedings. To listen to a public court proceeding in Department 20, you may dial 888-251-2909. When prompted, enter the access code number 4362730 when prompted, followed by the pound or hashtag (#) sign.
COURT REPORTERS.
This session will not be recorded. No electronic recordings, video, still photography or audio capture of this live stream is allowed without the expressed, written permission of the Superior Court of California, County of Santa Clara. State and Local Court rules prohibit photographing or recording of court proceedings whether in the courtroom or while listening on the Public Access Line or other virtual platform, without a Court Order. See Local General Rule 2(A) and 2(B); California Rules of Court, rule 1.150.
This Court no longer provides for Court Reporters in civil actions except in limited circumstances. If you wish to arrange for a court reporter, please use Local Form #CV-5100. All reporters are encouraged to work from a remote location. Please inform this Court if any reporter wishes to work in the courtroom. This Court will approve all requests to bring a court reporter. Counsel should meet and confer on the use of a court reporter. Occasionally each side will retain a court reporter which leaves this Court in a conundrum as to which reporter will be the official reporter for the purposes of the hearing.
PROTOCOLS DURING THE HEARINGS.
During the calling of any hearing, this Court has found that the Zoom video platform works very well. But whether using Zoom or any telephone, it is preferable to use a landline if possible. IT IS ABSOLUTELY NECESSARY FOR ALL INDIVIDUALS TO SPEAK SLOWLY. Plaintiff should speak first, followed by any other person. All persons should spell their names for the benefit of Court Staff. Please do not use any hands-free mode if at all possible. Headsets or earbuds of good quality will be of great assistance to minimize feedback and distortion.
The Court will prepare the Final Order unless stated otherwise below or at the hearing. Counsel are to comply with California Rules of Court, rule 3.1312.
TROUBLESHOOTING TENTATIVE RULINGS.
To access a tentative ruling, move your cursor over the line number, hold down the “Control” key and click. If you see last week’s tentative rulings, you have checked prior to the posting of the current week’s tentative rulings. You will need to either “REFRESH” or “QUIT” your browser and reopen it. Another suggestion is to “clean the cache” of your browser. Finally, you may have to switch browsers. If you fail to do any of these, your browser may pull up old information from old cookies even after the tentative rulings have been posted.
This Court's tentative ruling is just that—tentative. Trial courts are not bound by their tentative rulings, which are superseded by the final order. (See Faulkinbury v. Boyd & Associates, Inc. (2010) 185 Cal.App.4th 1363, 1374-1375.) The tentative ruling allows a party to focus his or her arguments at a subsequent hearing and to attempt to convince the Court the tentative should or should not become the Court's final order. (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 917.) If you wish to challenge a tentative ruling, please refer to a specific portion of the tentative ruling to which you disagree.
|LINE # |CASE # |CASE TITLE |TENTATIVE RULING |
|LINE 1 |18CV328417 |Kim Trinh v. Thuy Tran |Demurrer of Defendant Thuy Tran to Plaintiff’s Third Amended |
| | | |Complaint. |
| | | |Defendant Tran’s demurrer to the second cause of action in plaintiff |
| | | |Kim’s TAC on the ground that the pleading does not state facts |
| | | |sufficient to constitute a cause of action [Code Civ. Proc., §430.10, |
| | | |subd. (e)] for breach of contract is OVERRULED. |
| | | |Defendant Tran’s demurrer to the third cause of action in plaintiff |
| | | |Kim’s TAC on the ground that the pleading does not state facts |
| | | |sufficient to constitute a cause of action [Code Civ. Proc., §430.10, |
| | | |subd. (e)] for fraud is OVERRULED. |
| | | |Defendant Tran’s demurrer to the fourth cause of action in plaintiff |
| | | |Kim’s TAC on the ground that the pleading does not state facts |
| | | |sufficient to constitute a cause of action [Code Civ. Proc., §430.10, |
| | | |subd. (e)] for fraudulent transfer is SUSTAINED WITHOUT LEAVE TO |
| | | |AMEND. |
| | | |This defendant shall answer the complaint within 10 days of the filing|
| | | |and service of this order. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 2 |20CV372857 |Giovannotto Land and Cattle, LLC v. Elliot French et |Motion of defendant Paul Souza To Strike Punitive Damages from the |
| | |al. |First Amended Complaint. |
| | | |There is another motion to strike punitive damages in the same case by|
| | | |different defendants on 06 September 2022. |
| | | |As both motions address the same pleading (FAC), and in the interests |
| | | |of judicial economy, this Court will CONTINUE this motion to 06 |
| | | |September 2022 at 9:00 am in this Department so both motions can be |
| | | |heard together. |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 3 |22CV395167 |TD Bank USA, N.A. v. Jean M. Flores |Motion of Plaintiff for Judgment on the Pleadings. |
| | | |In the moving papers, plaintiff states that “[s]ince defendant admits |
| | | |the allegations and that defendant owes that, and has no calendar |
| | | |affirmative defenses, judgment on the pleadings must be granted.” |
| | | |(Memorandum of Points & Authorities, page 03, lines 16-17.) |
| | | |However, defendant’s answer does not appear in Odyssey. |
| | | |The parties should appear to discuss this matter with the Court. |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 4 |21CV387631 |Fuzu Li v. GEICO General Insurance Company |Motion of Defendant to Compel Plaintiff to Comply with Court Order |
| | | |regarding Appraisal and for Sanctions. |
| | | |The motion of GEICO to compel Mr. Li to comply with this Court’s |
| | | |lawful order of 10 February 2022 is GRANTED. The parties are to |
| | | |commence arbitration within 30 days of the filing and service of this |
| | | |order. |
| | | |The motion calendared by Plaintiff for 13 September 2022 at 9:00 AM in|
| | | |this Department to compel GEICO for appraisal and for sanctions is |
| | | |ordered OFF CALENDAR WITHOUT PREJUDICE. |
| | | |Mr. Li is to pay counsel for GEICO the sum of $1,000.00 within 30 days|
| | | |of the filing and service of this order. |
| | | |The request of Mr. Li for sanctions against Safeco for bringing this |
| | | |motion is DENIED. |
| | | |This Court will issue to plaintiff an Order to Show Cause why he |
| | | |should not be held in contempt of a lawful court order and set that |
| | | |matter for 22 September 2022 at 10:30 AM in this Department to be |
| | | |heard along with the arbitration review currently set. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 5 |21CV384731 |Brian Epps; Havu Epps v. Matthew Tranduc, M.D.; Daniel|Motion of Defendant Mark Noller, M.D. for Requests for Admissions to |
| | |Morgan, M.D.; Mark Noller, M.D.; El Camino Health |Be Admitted and Request for Monetary Sanctions. |
| | |Alliance; El Camino Health District; El Camino |The motion is not opposed. The motion is GRANTED in its entirety. The |
| | |Hospital. |requests for admissions are deemed to be ADMITTED. The request for |
| | | |monetary sanctions against plaintiffs is code-compliant and is |
| | | |GRANTED. |
| | | |Counsel for moving party is to prepare a formal order and submitted to|
| | | |this Department via the clerk’s e-filing queue. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 6 |18CH008214 |Maria Guzmán de Martínez v. Patrick Meyering |Motion of Respondent to Vacate Order of This Court Dated 04 May 2022 |
| | | |and Set Evidentiary Hearing. |
| | | |This Court treats this motion as a challenge for cause pursuant to |
| | | |Code of Civil Procedure, § 170.1. The challenge is STRICKEN. The |
| | | |challenge has been submitted for review. Good cause appearing, this |
| | | |Court will CONTINUE the hearing to 30 August 2022 at 9:00 AM in this |
| | | |Department. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 7 |19CV349517 |Dylan Nguyen; Julie Nguyen v. Green Bay Construction, |Motion of Cross-Defendant Tarrar Utility Consultants to Approve |
| | |Inc.; Hormoz Barandar |Good-Faith Settlement and Dismissal of Cross-Complaint. |
| | |and related cross-complaint. |Good cause appearing, this Court concludes that the settlement here |
| | | |encompasses the criteria of the Tech-Bilt case, given the limited |
| | | |amount of work Tarrar Utility Consultants was contracted to perform. |
| | | |This Court finds the settlement to be in good faith and therefore |
| | | |GRANTS the motion. Since all claims asserted against Tarrar Utility |
| | | |Consultants by Green Bay Construction, Inc. and by Hormoz Barandar are|
| | | |for equitable indemnity and are DISMISSED. |
| | | |Counsel for Tarrar Utility Consultants is to prepare an appropriate |
| | | |order and closing papers and submitted to this Department for |
| | | |execution via the e-filing queue. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 8 |21CV390899 |City of San José v. Kent Kanazawa |Petition of City of San José for Disposition of Firearms. |
| | | |OFF CALENDAR per stipulation and order filed on 21 July 2022. |
|LINE 9 |22CV395498 |Phillip Ekenbrack v. Reuben Sekarchi; Simin Fazanpour |Motion of Defendant Reuben Shekarchi for Relief from Default. |
| | | |No opposition on file. |
| | | |The motion of defendant for relief from entry of default is GRANTED on|
| | | |condition that he file a RESPONSE within 10 days of the filing and |
| | | |service of this order. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 10 |21CV377918 |Arnulfo Rios v. Hector Alvarado; Maria Isabel |Hearing on Petition of Compromise for Minor’s Claim. |
| | |Alvarado. | |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 11 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 12 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 13 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 14 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 15 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 16 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 17 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 18 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 19 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 20 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 21 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 22 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 23 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 24 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 25 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 26 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 27 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 28 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 29 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 30 | | |SEE ATTACHED TENTATIVE RULING. |
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Calendar Line 1
| | |
|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
| | |
|DEPARTMENT 20 | |
| | |
|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|smanoukian@ | |
| |(For Clerk's Use Only) |
|CASE NO.: |18CV328417 |Kim Huong Trinh v. Thuy Tran, et al. |
|DATE: 26 July 2022 |TIME: 9:00 am |LINE NUMBER: 01 |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 25 July 2022. Please specify the|
|issue to be contested when calling the Court and Counsel. |
|---oooOooo--- |
|Order on Defendant Thuy Tran’s General Demurrer to Third Amended Complaint. |
I. Statement of Facts.
When plaintiff Kim Huong Trinh’s (“Kim”)[1] aunt, Hong Kim Manh Nguyen (“Nguyen”), passed away, Nguyen’s will created a testamentary trust (“Trust”). (Third Amended Complaint (“TAC”), ¶14.) Plaintiff Kim was appointed testamentary trustee of the Trust. (TAC, ¶15.) Plaintiff Kim was also a beneficiary of the Trust. (Id.) Part of the Trust’s assets included two parcels of land located in Jacksonville, Florida. (TAC, ¶16.) The parcels of land were transferred to plaintiff Kim, as trustee of the Trust, in June 1995 and November 1995, respectively. (Id.)
In 1996, all the Trust beneficiaries agreed the two parcels of Florida land should be sold. (TAC, ¶17.) All the Trust beneficiaries agreed plaintiff Kim could keep the proceeds from the sale of the Trust’s two parcels of Florida land as her own property. (Id.) The two parcels of Florida land were sold in or about November 1997 and proceeds from the sale were transferred to plaintiff Kim as her own personal property. (TAC, ¶19.)
At the time plaintiff Kim received the proceeds from the sale of the two parcels of Florida land, defendant Dennis Trinh (plaintiff Kim’s father; hereafter, “Dennis”), Manh Duong (plaintiff Kim’s mother), defendant Hai Trinh (plaintiff Kim’s brother; hereafter, “Hai”), defendant Phung Trinh (plaintiff Kim’s sibling; hereafter, “Phung”), defendant Yen Kim Trinh (plaintiff Kim’s sibling; hereafter, “Yen”), defendant Tam Trinh (plaintiff Kim’s sibling; hereafter, “Tam”), defendant Thuy Tran (defendant Hai’s ex-wife; hereafter, “Tran”), and Vivian Trinh (defendants Hai and Tran’s daughter) lived in a three-bedroom condo in Sunnyvale. (TAC, ¶20.)
Plaintiff Kim wanted to invest the proceeds from the sale of the two Florida parcels in real estate and also wanted to help her family members by providing them a larger and nicer home to rent. (TAC, ¶21.) In October 1998, plaintiff Kim used the proceeds from the sale of the two Florida parcels as a down payment toward the purchase of real property located at 2547 Story Road in San Jose (“Subject Property”), a four-bedroom, two-bath house. (TAC, ¶¶22 – 23.) The eight family members living in the Sunnyvale condo moved to the Subject Property as renters. (TAC, ¶24.) Defendants rented the Subject Property from plaintiff Kim for $1,000 per month. (TAC, ¶¶25 – 26.) In 2003, plaintiff Kim increased the rent to $1,300 per month where it remains. (TAC, ¶27.) The rent has always been below market rate. (TAC, ¶¶26 – 27.) Plaintiff Kim’s family stopped paying rent to her after May 2018. (TAC, ¶27.)
Plaintiff Kim wed Ky Nguyen in July 1997, prior to receiving proceeds from the sale of the two parcels of Florida land. (TAC, ¶¶18 – 19.) When plaintiff Kim purchased the Subject Property, she did not know how to ensure it would be her separate property. (TAC, ¶28.) When plaintiff Kim purchased the Subject Property, she asked her siblings, defendants Phung and Yen, if they would hold the Subject Property in their names knowing plaintiff Kim was the actual owner. (TAC, ¶28.) Defendants Phung and Yen agreed plaintiff Kim held beneficial or equitable title to the Subject Property as the true owner and they would hold the Subject Property in their names until plaintiff Kim requested they return title. (Id.) Defendants Phung and Yen agreed to be straw holders of the Subject Property. (TAC, ¶29.)
In 2003, defendant Yen asked that her name be removed from title to the Subject Property because she did not derive any benefits from having the Subject Property in her name. (TAC, ¶30.) In 2004, defendant Phung asked that her name be removed from title to the Subject Property as she was planning to get married. (TAC, ¶31.)
Plaintiff Kim wanted the Subject Property to be recognized as her separate property. (TAC, ¶32.) Plaintiff Kim’s then husband, Ky Nguyen, agreed to provide plaintiff Kim with an interspousal transfer deed stating the Subject Property was to be plaintiff Kim’s sole and separate property. (Id.) The interspousal transfer deed was recorded 24 May 2004. (Id.) The $1,300 rent plaintiff Kim received from renting the Subject Property was declared on her and her then husband’s joint income taxes. (TAC, ¶33.)
In 2009, plaintiff Kim’s marriage began to deteriorate. (TAC, ¶34.) In the course of quarrelling, Ky Nguyen threatened divorce and claimed he would be entitled to half the Subject Property despite the interspousal transfer deed. (TAC, ¶35.) Plaintiff Kim eventually filed for divorce in April 2015. (TAC, ¶36.) Ky Nguyen did not claim half-ownership of the Subject Property. (TAC, ¶37.) Plaintiff Kim disclosed her ownership of the Subject Property during the divorce proceedings and, as part of their settlement, plaintiff Kim and Ky Nguyen agreed the Subject Property would remain plaintiff Kim’s property without offset. (TAC, ¶¶37 – 38.)
In 2011, however, plaintiff Kim believed her husband’s threat to take half of plaintiff Kim’s separate property. (TAC, ¶39.) Based on this mistaken belief, plaintiff Kim asked her brother, defendant Tam, and her sister-in-law, defendant Tran, to serve as straw owners of the Subject Property, just as defendants Phung and Yen had previously done. (Id.) On or about 8 June 2011, at the Subject Property, defendants Tam and Tran agreed plaintiff Kim would remain the actual owner of the Subject Property holding beneficial or equitable title to the Subject Property, but record title to the Subject Property would be placed in defendants Tam and Tran’s names temporarily until Kim requested return of title. (TAC, ¶40.)
In reliance, plaintiff Kim transferred title to the Subject Property to defendants Tam and Tran. (TAC, ¶41.) Defendants Tam and Tran had no intention of returning title of the Subject Property to plaintiff Kim because defendants Tam and Trans believed the money plaintiff Kim used for the down payment was given to plaintiff Kim by defendants Dennis and Hai. (TAC, ¶¶42 – 43.) Months after title to the Subject Property transferred on 20 October 2011, plaintiff Kim paid off the remaining mortgage balance for the Subject Property in the amount of $104,456.85 with her own funds. (TAC, ¶45.) For the entire time there was a mortgage on the Subject Property, plaintiff Kim paid the mortgage. (TAC, ¶50.)
In November 2017, while her divorce was still ongoing, plaintiff Kim asked defendants Tam and Tran to return title to the Subject Property to her. (TAC, ¶46.) Defendants Tam and Tran avoided plaintiff Kim from November 2017 to May 2018. (Id.) On 6 May 2018, plaintiff Kim received her last rent check from defendants. (TAC, ¶47.) After plaintiff Kim filed the original complaint in this action, defendant Tran transferred her interest in the Subject Property to defendant Yen. (TAC, ¶49.)
Even though title to the Subject Property has been in defendants Tam and Tran’s name since 8 June 2011, plaintiff Kim paid the annual premium for homeowner’s insurance since her purchase until 24 March 2018. (TAC, ¶52.) Insurance bills were always sent to plaintiff Kim’s residence in Union City, not to the Subject Property. (Id.) Plaintiff Kim paid the great majority of property taxes from the time she purchased the Subject Property to February 2018 even though defendants Tam and Tran held title since 8 June 2011. (TAC, ¶53.) Defendant Tran made one bi-annual property tax payment in 2017 and two payments in 2014. (Id.) Nobody except plaintiff Kim and defendant Tran made property tax payments for the Subject Property since plaintiff Kim purchased the Subject Property. (Id.) Plaintiff Kim paid for maintenance and upkeep of the Subject Property from the time or purchase until May 2018. (TAC, ¶54.)
On 16 May 2018[2], plaintiff Kim filed the original complaint in this action against defendants Tam and Tran asserting causes of action for:
1) Breach of Contract
2) Fraudulent Misrepresentation
3) Resulting Trust
On 30 May 2018, plaintiff Kim filed a first amended complaint (“FAC”) adding Yen as a defendant and adding a fourth cause of action for fraudulent transfer.
On 25 July 2018, defendant Yen filed an answer to the FAC.
On 22 January 2019, defendant Tran filed a demurrer to plaintiff Kim’s FAC.
On 16 April 2019, the court sustained, with leave to amend, defendant Tran’s demurrer to the first through third causes of action, but overruled defendant Tran’s demurrer to the fourth cause of action.
On 16 April 2019, plaintiff Kim filed a second amended complaint (“SAC”) asserting only a cause of action for fraudulent transfer.
On 3 May 2019, defendant Tran filed an answer to plaintiff Kim’s SAC.
On 3 October 2019, defendant Yen filed an answer to plaintiff Kim’s SAC and also filed a cross-complaint against Kim for quiet title.
On 16 August 2021, Kim filed an answer to Yen’s cross-complaint.
Following multiple continuances, the matter came on for trial on 22 November 2021, On that date, the court ordered the trial off calendar. In the minute order, the court denied plaintiff Kim’s ex-parte request to amend without prejudice to a noticed motion for leave to file a TAC. The court dismissed the first cause of action of the SAC (fraudulent transfer) pursuant to stipulation. The court also dismissed the cross-complaint without prejudice. The court scheduled the hearing on plaintiff’s motion for leave to file a TAC for 1 February 2022.
On 1 February 2022, the court granted plaintiff’s motion for leave to file a TAC.
On 3 February 2022, plaintiff Kim filed the operative TAC against defendants Tran, Tam, Yen, Dennis, Hai, and Phung asserting the following causes of action:
1) Quiet Title
2) Breach of Contract
3) Fraud
4) Fraudulent Transfer
On 18 April 2022, defendant Tran filed the motion now before the court, a demurrer to the second through fourth causes of action in plaintiff Kim’s TAC.
II. Demurrers in General.
A complaint must contain substantive factual allegations sufficiently apprising the defendant of the issues to be addressed. (See Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)
A demurrer tests the legal sufficiency of a complaint. It is properly sustained where the complaint or an individual cause of action fails to “state facts sufficient to constitute a cause of action.” (Code of Civil Procedure, § 430.10, subd. (e).) “[C]onclusionary allegations . . . without facts to support them” are insufficient on demurrer. (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.) “It is fundamental that a demurrer is an attack against the complaint on its face, it should not be sustained unless the complaint shows that the action may not be pursued.” (Yolo County Dept. of Social Services v. Municipal Court (1980) 107 Cal.App.3d 842, 846-847.)
“It is not the ordinary function of a demurrer to test the truth of the plaintiff’s allegations or the accuracy with which he describes the defendant’s conduct. A demurrer tests only the legal sufficiency of the pleading.” (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213.) “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.’ [Citation.]” (Id. at pp. 213-214; see Cook v. De La Guerra (1864) 24 Cal. 237, 239: “[I]t is not the office of a demurrer to state facts, but to raise an issue of law upon the facts stated in the pleading demurred to.”)
“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 (or she) can amend his (or her) 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.)
III. Analysis.
A. Request for judicial notice.
In opposition to defendant Tran’s demurrer, plaintiff Kim requests judicial notice of various court records from the instant action. Plaintiff Kim’s request for judicial notice is GRANTED insofar as the court takes judicial notice of the existence of the documents, not necessarily the truth of any matters asserted therein. (Evid. Code, §452, subd. (d); see also People v. Woodell (1998) 17 Cal.4th 448, 455-- Evidence Code section 452 and 453 permit the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.”)
B. Defendant Tran’s demurrer to the second cause of action [breach of contract] in plaintiff Kim’s TAC is OVERRULED.
Defendant Tran demurs to the second cause of action for breach of contract on the ground that it is an illegal contract and unenforceable. “A general demurrer lies where the terms of the contract alleged are illegal and thus void. Again, the complaint discloses on its face a bar to recovery.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶7:59.1, p. 7(I)-34 citing Beck v. American Health Group, Int’l, Inc. (1989) 211 Cal.App.3d 1555, 1563.)
“A contract must be lawful (Civ. Code, §1550); i.e., it must not be in conflict either with express statutes or public policy. (1 Witkin, Summary of Cal. Law (10th ed.2005), Contracts, § 420, p. 461.) A contract that conflicts with an express provision of the law is illegal and the rights thereto cannot be judicially enforced. [Citations.]” (Vierra v. Workers' Comp. Appeals Bd. (2007) 154 Cal.App.4th 1142, 1148.)
“'The general principle is well established that a contract founded on an illegal consideration, or which is made for the purpose of furthering any matter or thing prohibited by statute, or to aid or assist any party therein, is void. This rule applies to every contract which is founded on a transaction malum in se, or which is prohibited by a statute on the ground of public policy.' Nor in such cases does it matter whether the contract has been partially or wholly performed, or whether the consideration has passed or not.” (C.I.T. Corp. v. Breckenridge (1944) 63 Cal.App.2d 198, 200.)
“A promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable or the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms.” (Rest.2d of Contracts, §178.)
“No principle of law is better settled than that a party to an illegal contract cannot come into a court of law and ask to have his illegal objects carried out.” (Yoo v. Jho (2007) 147 Cal.App.4th 1249, 1251.)
Defendant Tran contends the contract at issue here is an agreement by plaintiff Kim entered into with the intent to hide assets from her then husband in violation of Family Code section 2100 which states:
The Legislature finds and declares the following:
(a) It is the policy of the State of California (1) to marshal, preserve, and protect community and quasi-community assets and liabilities that exist at the date of separation so as to avoid dissipation of the community estate before distribution, (2) to ensure fair and sufficient child and spousal support awards, and (3) to achieve a division of community and quasi-community assets and liabilities on the dissolution or nullity of marriage or legal separation of the parties as provided under California law.
(b) Sound public policy further favors the reduction of the adversarial nature of marital dissolution and the attendant costs by fostering full disclosure and cooperative discovery.
(c) In order to promote this public policy, a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage or legal separation of the parties, regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties. Moreover, each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these issues, each party will have a full and complete knowledge of the relevant underlying facts.
(Emphasis added.)
The court previously sustained defendant Tran’s demurrer to plaintiff Kim’s breach of contract cause of action on the basis that the object of the alleged agreement was to avoid a full and accurate disclosure of all assets in a contemplated divorce. In pleading the TAC, plaintiff Kim has specifically pleaded allegations which suggest that she did not have, as the object of the alleged an agreement, the intent to conceal the Subject Property. Plaintiff Kim now alleges that prior to the deterioration in her marriage, she obtained an interspousal transfer deed from her then husband in order to confirm the Subject Property as her separate property.
Plaintiff Kim also now alleges that she did make full disclosure of the Subject Property in the divorce proceedings and that the court in the divorce proceedings affirmed the Subject Property as her separate property. Thus, plaintiff Kim now alleges essentially that the object of the agreement was to maintain the Subject Property as her separate property and to preclude her then husband from asserting a community or quasi-community interest in the Subject Property rather than to avoid a full and accurate disclosure of assets in the divorce proceedings. In view of these new factual allegations, it does not appear from the face of the pleading that the alleged contract is illegal.
Accordingly, defendant Tran’s demurrer to the second cause of action in plaintiff Kim’s TAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for breach of contract is OVERRULED.
C. Defendant Tran’s demurrer to the third cause of action [fraud] in plaintiff Kim’s TAC is OVERRULED.
Defendant Tran demurs to the third cause of action for fraud on the ground that it is based upon the refusal to carry out an illegal contract. In essence, defendant Tran contend the fraud is barred by the doctrine of unclean hands. “He who comes into equity must come with clean hands. A court will neither aid in the commission of a fraud by enforcing a contract, nor relieve one of two parties to a fraud from its consequences, where both parties are in pari delicto. Any unconscientious conduct in the transaction may give rise to the defense.” (11 Witkin, Summary of California Law (9th ed. 1990) Equity, §8, p. 684, italics original.)
However, in light of the court’s ruling above, defendant Tran’s demurrer to the third cause of action in plaintiff Kim’s TAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for fraud is OVERRULED.
D. Defendant Tran’s demurrer to the fourth cause of action [fraudulent transfer] in plaintiff Kim’s TAC is SUSTAINED.
The court understands defendant Tran to demur to the fourth cause of action for fraudulent transfer on the grounds of res judicata/ collateral estoppel as the court dismissed this claim with prejudice on 22 November 2021.
“Collateral estoppel is a doctrine which prevents relitigation of issues previously argued and resolved in a prior proceeding. [Citation.] In order to apply this principle:
(1) the issue must be identical to that decided in the prior proceeding;
(2) the issue must have been actually litigated in the prior proceeding;
(3) the issue must have been necessarily decided in the prior proceeding;
(4) the decision must have been final and on the merits; and
(5) preclusion must be sought against a person who was a party or in privity with a party to the prior proceeding. [Citation.]” (Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223, 1233 (Alvarez).)
“In deciding whether to apply collateral estoppel, the court must balance the rights of the party to be estopped against the need for applying collateral estoppel in the particular case, in order to promote judicial economy by minimizing repetitive litigation, to prevent inconsistent judgments which undermine the integrity of the judicial system, or to protect against vexatious litigation.” (Alvarez, supra, 143 Cal.App.4th at p. 1233.)
In reviewing the court’s minute order of 22 November 2021, the court unequivocally indicated, “By stipulation of counsel, the 1st cause of action of the Second Amended Complaint is DISMISSED WITH PREJUDICE by the Court.” This court finds the fourth cause of action to be barred by collateral estoppel.
Accordingly, defendant Tran’s demurrer to the fourth cause of action in plaintiff Kim’s TAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for fraudulent transfer is SUSTAINED WITHOUT LEAVE TO AMEND.
IV. Tentative Ruling.
The tentative ruling was duly posted.
V. Case Management.
The Case Management Conference currently set for 06 December 2022 at 10:00 AM in this Department will REMAIN AS SET.
VI. Order.
Defendant Tran’s demurrer to the second cause of action in plaintiff Kim’s TAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for breach of contract is OVERRULED.
Defendant Tran’s demurrer to the third cause of action in plaintiff Kim’s TAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for fraud is OVERRULED.
Defendant Tran’s demurrer to the fourth cause of action in plaintiff Kim’s TAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for fraudulent transfer is SUSTAINED WITHOUT LEAVE TO AMEND.
This defendant shall answer the complaint within 10 days of the filing and service of this order.
|___________________________ |______________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
| | |
|DEPARTMENT 20 | |
| | |
|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|department20@ | |
| | |
| |(For Clerk’s Use Only) |
|CASE NO.: |21CV387631 |Fuzu Li v. GEICO General Insurance Company |
|DATE: 26 July 2022 |TIME: 9:00 am |LINE NUMBER: 04 |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 25 July 2022. Please specify the|
|issue to be contested when calling the Court and Counsel. |
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|Order on Motion of Defendant to Compel Plaintiff to Comply |
|with the Court Order of 10 February 2022; for Monetary Sanctions against Plaintiff; |
|and, in the Alternative, for the Setting of an Order to Show Cause In Re: Contempt. |
I. Statement of Facts.
Plaintiff filed this complaint in propria persona on 20 August 2021.[3]
The First Amended Complaint was filed on 04 January 2022. In that complaint, the following causes of action:
1. Breach of Insurance Contract;
2. Breach of the Implied Covenant of Good Faith and Fair Dealing (Insurance Bad Faith);
3. Fraud and Intentional Deceit;
4. Conversion;
5. Declaratory Relief; and
6. Violation of California’s Unfair Competition Laws (“UCL”); California Business & Professions Code, §§ 17200, et seq.
Plaintiff alleges that on 15 June 2013 he purchased a new BMW model 320I with a total cost of $35,445.72. On 13 January 2018 plaintiff’s wife and GEICO entered into a contract of insurance for the vehicle. The vehicle was damaged in an automobile accident on 26 August 2019 in a collision with an uninsured motorist who fled the scene. Plaintiff then filed a claim with GEICO for the damaged automobile.
Plaintiff and defendant have become involved in a dispute over the value of the automobile in question. GEICO takes the position that the vehicle was rendered a total loss, meeting not economically feasible to repair. Consistent with the terms of the policy, GEICO offered to pay to plaintiff the full actual cash value (“ACV”) of the vehicle, based on the cost of comparable vehicles in the market. GEICO contends that this is the well-accepted method in the insurance industry and under the applicable insurance regulations.
Plaintiff contends that he had not planned to sell his vehicle and therefore GEICO was precluded from using the value of comparable vehicles to calculate his own vehicle’s ACV. The policy also contains the following language concerning “Appraisal”:
“If we and the insureds do not agree on the amount of loss, either may, within 60 days after proof of loss is filed, demand and appraisal of the loss. In that event, we and the insured will each select a competent appraiser. The appraisers will select a competent and disinterested umpire. The appraisers will state separately the actual cash value and the amount of the loss. If they fail to agree, they will submit the dispute to the umpire. An award in writing of any to will determine the amount of loss. We and the insured will each pay his chosen appraiser and will bear equally the other expenses of the appraisal and umpire. [¶] We will not waive our rights by any of our acts relating to appraisal.”
On 16 November 2021 Defendant GEICO General Insurance Company filed a petition to compel arbitration. Plaintiff opposed the motion. He contended that the insurance policy between her and defendant plainly defined “actual cash value” as “the replacement cost of auto or property less depreciation or betterment.” He asserts that defendant systematically and habitually asserted that “actual cash value” is “fair market value.”
Plaintiff also asserts that defendant never demanded an appraisal, that defendant had a series of willful misconduct inconsistent with appraisal, including closing the claim, releasing the vehicle to a third party without the owner’s consent, and without the vehicle’s title resulting in the vehicle being sold. He contends that these actions constitute a waiver of defendant’s right to an appraisal.
This Court heard Defendant’s motion to compel arbitration on 10 February 2022. In its written order, this Court observed that Plaintiff did not dispute that the vehicle was insured with GEICO, that it was rendered a total loss, and that that he rejected the amount offered by GEICO. It appeared to this Court that Mr. Lee is disputing the amount of the offer because the offer of GEICO is based on the value of other vehicles, not the value of his vehicle to him. The Court also noted that nothing in the order was intended to preclude Mr. Li from asserting any method of valuation that he believed was in compliance with the insurance policy in question.
As outlined in GEICO’s original motion to compel appraisal, after Mr. Li refused to accept GEICO’S valuation of his vehicle, GEICO repeatedly tried to deliver the salvage to Mr. Li, but he would not accept it. GEICO asserts that it was after Mr. Li refused to accept the salvage that GEICO released its interests in the vehicle and notified Mr. Li of the same. Since Mr. Li then did nothing, the salvage was sold.
This Court concluded by ordering that the motion of GEICO General Insurance Company to dismiss/stay this action was GRANTED as follows: the action will be STAYED until the arbitration provision contained in the policy of insurance is completed according to the terms of the policy.
II. Motion to Compel Plaintiff to Comply with Court Order.
Code of Civil Procedure, § 128(a)(4) and (5) state: “Every court shall have the power to do all of the following: . . . . . (4) To compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein. (5) To control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.”
III. Analysis.
At the outset, this Court notes that Defendant’s reply papers include a list of objections to plaintiff’s evidence. This Court notes and considers the objections but there is no requirement that this Court prepare formal rulings on such a motion. It is undisputed that parties to litigation are required to make their evidentiary objections at the hearing otherwise they run the risk of having the objections deemed waived. (Code of Civil Procedure, § 437c(b)(5) and (d).) However, there is no authority to suggest that the trial court must rule on these objections outside of summary judgment or anti-SLAPP motions. In fact, in Reid v. Google, Inc., the California Supreme Court held that if a trial court fails to rule on evidentiary objections with regard to a summary judgment hearing, those objections are also preserved on appeal. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532.)
This Court issued a lawful order staying the section until the arbitration provision contained in the policy of insurance was completed according to the terms of the policy. This Court further noted that nothing in the order was intended to preclude plaintiff from asserting any method of valuation that he believed was in compliance with the insurance policy in question.
Plaintiff begins his opposition to this motion by stating: “GEICO has no ground to bring this motion to compel Li’s compliance with the Court’s prior appraisal Order.” (Memorandum of Points & Authorities, page 01, 03-04.)
It seems that plaintiff has chosen to intentionally disregard the lawful order of this Court.
A further sign that plaintiff intends to disregard this Court’s order is his filing of a motion on 14 June 22 to compel defendant to comply with his definition of what the policy requires by way of arbitration.
Plaintiff bases his position on his premise that an appraisal requires an inspection of the actual vehicle. GEICO and now this Court have informed plaintiff that the vehicle cannot be recovered. Plaintiff openly concedes as much in his opposition papers:
“D. The Damaged Vehicle Is NOT Available
After LI has filed the motion to compel GEICO’s compliance With the Court’s Order, on June 21, 2022. GEICO reluctantly sent the contact and location information of the Vehicle to LI. (the location information is apparent wrong; however, GEICO refused to provide the original communication) (Id. and EX. K)
Having the contact and location information, LI contacted Montoya's Auto Wrecking Inc. Robert, one of the owners of the Montoya company, confirmed that the vehicle is not available anymore, ‘that car has been dismantled’ and ‘sent to a scrap yard.’ Id.” (Memorandum & Points And Authorities, page 03, lines 13-20.)
In the bulk of his Memorandum of Points & Authorities, plaintiff recites his understanding of the law of appraisal and valuation, insisting that the automobile be inspected. He further argues that GEICO owed a duty to him to preserve the automobile.
Mr. Li argues in opposition papers that appraisal cannot be completed until he can physically inspect the vehicle and that GEICO is obligated to locate the vehicle for him. He then presents a treatise discussing the function of appraisal and how appraisals may be performed and what factors are important for an appraisal.
This Court agrees with GEICO that nothing appears to require that in order to complete a vehicle appraisal, the actual vehicle has to be available for inspection. Further, nothing appears to require that GEICO locate the actual vehicle and make it available for inspection.
More to the point, Mr. Li completely fails to address the main question raised by this motion: has distantly failed to comply with this Court’s lawful order of 10 February 2022? He has not.
The motion of GEICO to compel Mr. Li to comply with a lawful order of this Court is GRANTED. The parties are to commence arbitration within 30 days of the filing and service of this order.
Plaintiff has calendared for 13 September 2022 at 9:00 AM in this Department a motion to compel GEICO for appraisal and for sanctions. That motion will be ordered OFF CALENDAR WITHOUT PREJUDICE.
GEICO makes a request for monetary sanctions against Mr. Li. The declaration of Mr. Pressman sets out a code-compliant calculation of the fees incurred and determines that it has incurred $2,950.00 an attorney’s fees. GEICO is only seeking $1,000.00 in attorneys fees. That request is GRANTED. Mr. Li is to pay counsel for GEICO the sum of $1,000.00 within 30 days of the filing and service of this order.
Mr. Li seek sanctions against Safeco for bringing this motion. That request is DENIED.
This Court will issue to plaintiff an Order to Show Cause why he should not be held in contempt of a lawful court order and set that matter for 22 September 2022 at 10:30 AM in this Department to be heard along with the arbitration review currently set.
IV. Tentative Ruling and Hearing.
The Tentative Ruling was duly posted.
V. Case Management.
The arbitration review date of 22 September 2022 at 10:30 AM in this Department will REMAIN AS SET.
VI. Conclusion and Order.
The motion of GEICO to compel Mr. Li to comply with this Court’s lawful order of 10 February 2022 is GRANTED. The parties are to commence arbitration within 30 days of the filing and service of this order.
The motion calendared by Plaintiff for 13 September 2022 at 9:00 AM in this Department to compel GEICO for appraisal and for sanctions is ordered OFF CALENDAR WITHOUT PREJUDICE.
Mr. Li is to pay counsel for GEICO the sum of $1,000.00 within 30 days of the filing and service of this order.
The request of Mr. Li for sanctions against Safeco for bringing this motion is DENIED.
This Court will issue to plaintiff an Order to Show Cause why he should not be held in contempt of a lawful court order and set that matter for 22 September 2022 at 10:30 AM in this Department to be heard along with the arbitration review currently set.
|____________________________________ |_________________________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
| | |
|DEPARTMENT 20 | |
| | |
|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|smanoukian@ | |
| |(For Clerk's Use Only) |
|CASE NO.: |18CH008214 |Maria A. Guzmán de Martínez v. Patrick Meyering |
|DATE: 26 July 2022 |TIME: 9:00 am |LINE NUMBER: 06 |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 25 July 2022. Please specify the|
|issue to be contested when calling the Court and Counsel. |
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|Order Striking Challenge. |
This case concerns the hearing of a petition to extend a civil harassment order brought by Petitioner Maria A. Guzmán de Martínez against Respondent Patrick Meyering, a licensed attorney in the state of California (SBN 148622).[4] The petition to extend the prior order was granted by this Judge.
On 30 June 2022, Respondent filed a challenge to this Department pursuant to Code of Civil Procedure, § 170.1(6)(A)(iii). There is no proof of service in the file showing how service was made on this Judge. The challenge was apparently never personally served on this Judge although this Court will treat the matter as having been timely served.
However, this Court is aware that on Tuesday, 26 July 2022 at 9:00 AM in this Department, Respondent has calendared a motion to vacate the order at issue. Petitioner has opposed the motion. This Court hereby notifies the parties that it intends to continue the hearing on the motion until review of this Order Striking Challenge is completed.
This Judge served as the Judge hearing civil harassment petitions during calendar years 2010-2011 as well as needed in years 2013-2015 and 2020 to present.
A chronology of pertinent dates is as follows:
On 03 July 2018, Petitioner filed a petition for a civil harassment restraining order against defendant.
On 21 August 2018, Respondent filed a cross-request for a restraining order. He also filed a separate request for a restraining order against Lorenzo Martinez (Ms. Martinez’s husband) in docket 18CH00310. The petitions were not served on either Ms. Martinez or Mr. Martinez.
After hearing, on 18 September 2018, Judge Overton granted the request for a three-year restraining order.
In an unpublished decision filed on 30 April 2021, the Court of Appeal affirmed the order of Judge Overton. Remittitur was issued on 06 August 2021.
On 11 January 2022, Commissioner Johnson recused himself from this matter.
On 27 January 2022, this matter was reassigned to this Judge.
On 23 February 2022, Petitioner filed a request to extend/renew the restraining order issued by Judge Overton. On 14 March 2022, the clerk served notice of the date of the hearing for 02 May 2022 at 8:45 AM in front of Judge Kulkarni “(to be reassigned to a trial dept).” Proper notice was sent to all parties.
On 26 April 2022, Respondent filed opposition to the request of Petitioner to extend the civil harassment order previously issued by Judge Overton. Judge Kulkarni assigned the trial of this matter to this Judge as well as the Respondent’s opposition to the motion of Petitioner.
On 04 May 2020 to the matter was set for trial and called to order by this Department. Plaintiff appeared with counsel but Respondent did not appear. No reason for Respondent’s nonappearance was ever conveyed to this Department.
Since the matter was presented to this Judge as a “petition to extend a civil harassment order,” I assume that a prior order had been issued.
The Court briefly reviewed the file, noted the prior petition, order of Judge Overton and took notice of the existence of the Court of Appeal decision but did not read the details of these documents so as not to cloud the judgment of this Court with matters not presented in testimony. Since this Court never reviewed the Court of Appeal decision, there was no reason to suspect that Justice Bamattre-Manoukian participated in the decision of the Court of Appeal.
This Court heard testimony from the Petitioner and the hearing was not “a truncated, superficial hearing.” (Motion to Disqualify Assigned Judge, filed on 30 June 2022, page 03, lines 12-14.) This Court concluded that the evidence showed by clear and convincing evidence of a high probability that Respondent would again perform the proscribed conduct in the future. (Code of Civil Procedure, § 527.6(i) [“At the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an order shall issue prohibiting the harassment.] Cooper v. Bettinger (2015) 242 Cal.App.4th 77[5]. This case must be judged by a prospective view, the probability that acts might happen in the future. This Court granted the request of Petitioner to extend the restraining order based on the evidence that it heard in testimony.
Respondent has now filed a challenge to this Judge on several grounds.
First, Respondent contends that he was unable to appear at the 04 May 2022 hearing “due to hospitalization. Respondent gave notice BEFORE May 4, 2022 to both the Superior Court and the opposing party that Respondent was medically unable to get to court on May 4, 2022.” (Motion to Disqualify, page 01, lines 24-26.) In the motion of Respondent to vacate the order of 04 May 2022, filed on 18 May 2022, Respondent states that he was injured on 28 April 2022 and taken by ambulance and admitted to El Camino Hospital. Respondent states that a document from El Camino Hospital confirming the hospitalization was attached to the moving papers but none was found. The papers do not state how long he was in the hospital or when he was discharged. Notwithstanding that he was apparently unable to leave phone messages with or otherwise communicate the issue of his incapacity to the court, there was no statement offered as to why he waited until 18 May 2022 to bring this matter to the attention of the court. Assuming, as Respondent claims, this contacted Petitioner’s office on 04 May 2022 via telephone, Respondent does not offer that there was a live person who would have received the phone call or that any message left would have been relayed to Respondent wherever he was.
Pursuant to Code of Civil Procedure, § 1008, a motion for reconsideration should be made within 10 days of the order in question. Respondent never presented such a motion. Second, pursuant to Code of Civil Procedure, § 170.1(a) contending that Justice Bamattre-Manoukian, who was on the panel which affirmed the original judgment, was a “witness” in the case. This contention is made without citation to any authority and should be disregarded.[6]
Third, Respondent claims that this Court, again without citation to authority, should be disqualified pursuant to Code of Civil Procedure, § 170.1(a)(6)(A)(iii). In general, this Court has read and cited many appellate decisions in which Justice Bamattre-Manoukian either authored or participated. Specifically, as stated above, this Court noted the appellate decision but never read it and did not know at the time of the trial of this matter that Justice Bamattre-Manoukian participated in the appellate decision. If this Court had read the reports of the earlier hearing by Judge Overton or the Court of Appeal decision (no matter who authored it), it would not be beyond speculation to believe this Judge was influenced by the earlier rulings.
Therefore, this Court concludes that a person aware of these facts would not reasonably entertain a doubt that this Judge would not be able to be impartial.
Good cause appearing, IT IS ORDERED that:
1. The challenge of Respondent pursuant to Code of Civil Procedure, § 170.1 is STRICKEN
2. This matter is referred to the Presiding Judge.
I declare under penalty of perjury under the laws of the State of California that the foregoing statements are true and correct. Executed on 19 July 2022 in San Jose, California.
|___________________________ |______________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
| | |
|DEPARTMENT 20 | |
| | |
|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|department20@ | |
| | |
| |(For Clerk’s Use Only) |
|CASE NO.: |19CV349517 |Dylan[7] Nguyen, Julie Nguyen v. Hormoz Bandahar |
|DATE: 26 July 2022 |TIME: 9:00 am |LINE NUMBER: 07 |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 25 July 2022. Please specify the|
|issue to be contested when calling the Court and Counsel. |
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|Order on Motion of Cross-Defendant Tarrar Utility Consultants |
|to approve That Good-Faith Settlement and Dismissal of Cross-Complaint. |
I. Statement of Facts.
A. The Complaint.
Plaintiff filed this complaint on 05 June 2019.[8]
On or about 18 June 2017, plaintiffs hired defendant Green Bay Construction Company, Inc. and its president, defendant Hormoz Barandar, to construct a new house at 3603 Groesbeck Hill Drive[9] in the City of San José. The new house was going to be in excess of 4000 ft.² The contract price was $800,000.[10]
Plaintiffs contend that prior to executing the written contract, Mr. Barandar repeatedly represented that he would personally manage and oversee the project and make sure the project was completed on time and in good condition. Mr. Barandar also personally represented he had over 80 employees when he did not and that he was licensed provided steelwork, which he was not licensed to do (¶ 8.)
The project commenced on 24 June 2017 but was unreasonably delayed without good cause and did not pass inspection until 06 December 2018 (¶ 12.)[11]
In ¶ 13 of the complaint, plaintiffs allege that defendants materially breached the contract by:
a. Mr. Barandar failed to act as the general contractor, forcing the plaintiffs to do so;
b. permitting process was unreasonably delayed due to the defendants;
c. actual construction work was delayed for over three months without cause;
d. Mr. Barandar repeatedly lied to the plaintiffs regarding the project on various topics;
e. defendants failed to pay the subcontractor painter, forcing plaintiffs to hire another subcontractor complete the painting;
f. defendants failed to complete the street improvements such as street asphalt and street lights which forced the plaintiffs to hire a third-party to complete, costing over $140,000;
g. the installed balcony railing was too low and did not pass inspection which required a third-party to raise the railing;
h. failed to properly install a mainline which required a third-party to complete;
i. plaintiffs had to spend an additional $5,914 to buy replacement material which defendant failed to protect and secure; and
j. defendants failed to complete the three-car garage, forcing the plaintiffs to hire a third-party to complete.
Both the complaint as well as the first amended complaint filed on 10 September 2019[12] allege cause of action for:
1. negligence;
2. negligence per se;
3. breach of contract;
4. breach of the implied covenant of good faith and fair dealing;
5. fraud; and
6. negligent misrepresentation.
An interesting side issue that has been running throughout this litigation is whether Julie Nguyen is a proper plaintiff because she was not a signatory to the contract.[13] This Court finds no need to resolve that issue at this moment as it has not been properly presented to this Court other than a discussion of the cross-complaint, she apparently represented herself as the foreperson.
B. The Cross-Complaint.
On 18 October 2019, Attorney Beau Jacob filed an answer on behalf of Green Bay Construction, Inc. Mr. Jacob also filed the cross-complaint against Dylan Nguyen, Julie Nguyen, and Tarrar Utility Consultants, entity unknown.
The cross-complaint alleges additional agreed-to work by Green Bay construction with the plaintiffs for the sums of $16,700 and $11,500. (¶¶ 19-20.) Residence was completed without any defects or construction -related issues in March 2018. Final expection by the City of San Jose was done on 27 July 2018. The only work preventing a final inspection would be the inspection of the public works which was outside the scope of the contract.
¶ 28 of the cross-complaint alleges that contract did not include the electrical utility scientific designed necessary for PG&E (¶¶ 28-29.) Plaintiff hired cross-Defendant Tarrar for this purpose to provide all scientific designs to PG&E for final approval before the gas and electrical connections could be performed. Cross-defendant failed to perform in a timely manner and the work performed was deficient and cause the project to be unreasonably delayed because PG&E requested several design changes. (¶¶ 30-31.) Plaintiffs ended up hiring A1 Construction to complete utility work necessary to receive the final permits. Plaintiff Julie Nguyen alleges that she was acting as the foreman for the construction but she was an unlicensed contractor, not hired by Green Bay and did not possess the requisite training education licensing requirements to act as such (¶¶ 32-34.)
¶ 45 of the cross-complaint itemizes other work outside of the contract that was agreed to and performed by defendant Green Bay Construction. ¶ 46 alleges that the revised contract total is $959,490. Plaintiffs have tendered payments in the amount of $860 but Green Bay construction is currently hold the balance of $99,490 for the extra work performed, not counting attorneys fees, costs and other fees as a result of the breach of contract. Including the lost profit of $53,620, Green Bay construction alleges that it has been damaged in the sum of $153,110 excluding attorneys fees, taxes, interest, costs and other related expenses.
The cross-complaint lists the following causes of action:
1. breach of written contract (against Dylan Ngyen);
2. breach of oral contract (against Dylan Ngyen);
3. intentional misrepresentation (against Dylan Ngyen);
4. negligent misrepresentation (against Dylan Ngyen);
5. implied indemnity (all cross-defendants); and
6. negligence.
Dylan Nguyen and Julie Nguyen answered the cross-complaint on 23 December 2019.
On 13 March 2020 cross-defendant Tarrar filed demurrers and a motion to strike, that Green Bay Construction failed to file a certificate of merit required under Code of Civil Procedure, § 411.35. Tarrar separately demurs to the fifth and sixth causes of action for failure to state a claim. (See Code of Civil Procedure, § 430.10(e). These issues were ultimately adjudicated by this Department on 28 July 2020.
Cross-complainant filed its first amended cross-complaint on 05 August 2020. Tarrar answered on 09 September 2020.
C. Other Events of Note.
In a hearing on 24 October 2019, Judge Kirwan denied the motion of these defendants to disqualify counsel for plaintiffs.
On 24 January 2020, defendant Mr. Barandar answered the complaint.
II. Motion For Good-Faith Settlement.
Tarrar and plaintiffs have reached a settlement wherein Tarrar would pay the plaintiffs the sum of $10,000, that sum being the original contract price between plaintiffs and Tarrar. Tarrar denies that it acted beneath any standard of care. The parties arrived at that figure through the assistance of a neutral mediator following arm’s-length negotiation and thus is within the proverbial “ballpark” of any anticipated damages that could be awarded by a finder of fact against Tarrar.
Tarrar claims that it obtained approvals for the project in record time and consistent with the standard of care. Tarrar notes that it believes in the cross-complaint, Green Bay Construction claims that the plaintiffs/cross-defendants brought the suit in order to avoid paying the bills.
Tarrar asks that the court grant the motion and bar any claim for implied indemnity asserted by Green Bay construction.
Green Bay Construction and Mr. Barandar filed a joint statement in opposition to the motion. In addition to a claim that the settlement was not in good faith, they contend that this is a premature attempt to limit potential liability by Tarrar to Green Bay construction for implied indemnity, attorneys fees and costs so that nonsettling defendants would have to pay more than their fair share of resolving this matter.
The Court also understands that plaintiff’s are attempting to bootstrap the alleged breach of contract against Green Bay construction into a tort cause of action against Mr. Barandar personally.
III. Analysis.
A. “Settlement” Defined.
A settlement is an agreement among adverse parties to settle a dispute regarding how that dispute will be resolved. (Mares v. Baughman (2001) 92 Cal.App.4th 672, 676; Gregge v. Hugill (2016) 1 Cal.App.5th 561, 571.) Compromise settlements are governed by the legal principles applicable to contracts generally.
California courts have long recognized a strong public policy in favor of concluding litigation by way of settlement. (Potter v. Pacific Coast Lumber Co. (1951) 37 Cal.2d 592, 602-603; Fisher v. Superior Court (1980) 103 Cal.App.3d 434, 400-441.)
B. “Good-Faith Settlements” Defined.
Code of Civil Procedure, § 877.6(a)(1) provides that in “an action in which it is alleged that two or more parties are joint tortfeasors” any party to the action “shall be entitled to a hearing on the issue of the good faith of a settlement entered into by plaintiff . . . and one or more alleged tortfeasors . . . . .” “The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counteraffidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing.” (Code of Civil Procedure, § 877.6(b); see Brehm Communities v. Superior Court (2001) 88 Cal.App.4™ 730, 736: “Whether pursuant to the advice of a referee or based on the court's unaided review of the motion, the determination whether the settlement was in good faith must be based on competent, admissible evidence. Such a determination will be extremely difficult in this case. But the difficulty presented does not excuse the court from performing the task.”[14]
“A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (Code of Civil Procedure, § 877.6(c).)
The California Supreme Court set the parameters for determining good faith under § 877.6 in Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488. There, the Court articulated a liberal standard for establishing good faith, requiring only that “a defendant’s settlement figure must not be so grossly disproportionate to what a reasonable person, at the time of settlement, would estimate the settling defendant's liability to be.” (Id. at 499.) A mere showing that a defendant “paid less than his [or her] theoretical proportionate or fair share” is insufficient to successfully challenge a settlement. Any settlement that is not “out of the ballpark” will pass muster. (Id. at 499 (citations omitted).
To determine what is in the “ballpark,” the Tech-Bilt, Inc. Court enumerated several factors that a court may consider in assessing the good faith of a settlement:
• the amount of the settlement;
• a rough approximation of plaintiff’s total recovery and the settler’s proportionate liability;
• allocation of the proceeds among the plaintiffs;
• a recognition that a settling defendant should pay less in settlement than after an adverse judgment at trial;
• the settler’s financial condition and insurance policy limits; and
• whether there is any evidence of any fraud or collusion aimed to injure the interests of non-settling defendants. (Id. at 449; see Bay Development, Ltd. v. Superior Court (1990) 50 Cal. 3d 1012, 1027.)
In analyzing a settlement, however, “[a] judge charting the boundaries of good faith of necessity must avoid a rigid application of the factors set forth in Tech-Bilt.” (North County Contractor's Association, Inc. v. Touchstone Insurance Services (1994) 27 Cal.App.4th 1085, 1090.[15]) “As Tech-Bilt emphasizes, of course, a ‘good faith’ settlement does not call for perfect or even nearly perfect apportionment of liability.
In order to encourage settlement, it is quite proper for a settling defendant to pay less than his proportionate share of the anticipated damages. What is required is simply that the settlement not be grossly disproportionate to the settlor's fair share.” (Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 874-875.) see also City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251 (1987) (reasoning that not all of the Tech-Bilt factors are relevant in every case, and that the essential question is whether a settlement is fair.)
C. Effective Determination of “Good-Faith.”
“The purpose of this statute is to bar claims against a settling tortfeasor and thereby promote settlement. Allowing a joint tortfeasor to bring an affirmative claim for damages that is actually an artfully pleaded claim for indemnity would contravene the purpose of the statute. The Supreme Court has stressed the importance of interpreting section 877.6, subdivision (c) such that settlement is encouraged. Few joint tortfeasors would be willing to settle with plaintiffs if they knew another tortfeasor could bring an action on the same issues by merely cloaking claims of indemnity in affirmative language. Therefore, a trial court must have the discretion to ferret out those claims that are in fact claims for indemnity.” (Cal-Jones Properties v. Evans Pac. Corp. (1989) 216 Cal.App.3d 324, 327-328. (internal citations omitted, punctuation altered. )
D. Judicial Discretion In Determining “Good Faith.”
The trial court, which presides over the good faith settlement hearing, is in the best position to determine whether the terms of a proposed settlement are unfair to a nonsettling tortfeasor. (See Far West Financial Corp. v. D & S Co., supra, 46 Cal.3d at p. 815, fn. 15.)” (Cal-Jones Properties v. Evans Pac. Corp. (1989) 216 Cal.App.3d 324, 329.)
Trial courts have "broad discretion in determining whether a settlement was entered in good faith and within the Tech-Bilt ballpark, and in allocating potential liability and exposure between or among joint tortfeasors." (Norco Delivery Service, Inc. v. Owens-Corning Fiberglass, Inc. (1988) 64 Cal.App.4th 955, 962; see also Greshko v. County of Los Angeles(1987) 194 Cal.App.3d 822, 832; Mattco Forge, Inc. v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1349.[16])
However, that discretion is not unlimited, and must be exercised in view of the equitable goals of the statute, in conformity with the spirit of the law, and in a manner that serves the interest of justice. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420.)
“Practical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement. ‘[A] defendant's settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant's liability to be.”’ (Tech-Bilt, Inc. v. Woodward-Clyde & Associates, supra at 499 (quoting Torres v. Union Pacific R.R. Co. (1984) 157 Cal.App.3d 499, 509.)
“The Supreme Court, however, made it clear a showing that a settling defendant paid less than his theoretical proportionate or fair share would not in itself establish bad faith since a disproportionately low settlement figure might be reasonable in light of the settling defendant's relative insolvency, underinsurance or lack of insurance, the speculative nature of the damages or the uncertainty or remoteness of legal liability. (Tech-Bilt, supra, 38 Cal.3d 488, 499.) The court expressed concern that ‘such a rule would tend to convert the pretrial settlement approval procedure into a full-scale minitrial. (Ibid.)” (Standard Pacific of San Diego v. A. A. Baxter Corp. (1986) 176 Cal.App.3d 577, 583.)
E. Relevant Burden of Proof.
The standard for determining whether a settlement is in good faith is whether the settlement is “so far out of the ballpark” as to be inconsistent with the equitable goals of the statute. (Long Beach Memorial Medical Center v. Superior Court (2009) 172 Cal.App.4" 865.)
Pursuant to Code of Civil Procedure, § 877.6(d), “[t]he party asserting the lack of good faith shall have the burden of proof on that issue.” (See also Shane v. Superior Court (1984) 160 CaL.App.3d 1237.) Further, any “party asserting the lack of good faith has the burden of proof on that issue.” (Code of Civil Procedure, § 877.6(d); Schultz v. Superior Court (1980) 104 Cal.App.3d 22 250, 252.) A party challenging a good faith settlement has the burden of demonstrating that the settlement is so “out of the ballpark,” in relation to the aforementioned factors, as to be inconsistent with the equitable objectives of the statutes. (Tech-Bilt, Inc. v. Woodward-Clyde & Associates, supra at 499-500.)
F. Discussion.
This Court understands that Green Bay Construction and Mr. Barandar oppose the motion because of the lack of involvement on the part of Tarrar.
Cross-Defendant Tarrar Utility Consultants asks this Court to rule on certain evidentiary objections. This Court is unaware of any authority requiring it to do so. It is undisputed that parties to litigation are required to make their evidentiary objections at the hearing otherwise they run the risk of having the objections deemed waived. (Code of Civil Procedure, § 437c(b)(5) and (d).) However, there is no authority to suggest that the trial court must rule on these objections outside of summary judgment or anti-SLAPP motions. In fact, in Reid v. Google, Inc., the California Supreme Court held that if a trial court fails to rule on evidentiary objections with regard to a summary judgment hearing, those objections are also preserved on appeal. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532.)
But as pointed out in the cross-complaint, this Court is under the impression that Tarrar had a very limited scope of work in connection with this project.
Mr. Jacob declares that he was not part of the settlement negotiations between the plaintiffs and Tarrar that apparently were overseen by Judge Murphy, the stipulated mediator. (¶ 3.) There is no other assertion of fact mounting to any substance.
Mr. Barandar declares that the construction of the premises was substantially complete in July 2018 and the final building permit was not issued until 06 December 2018 (¶¶ 9-10.)
This Court observes that Green Bay Construction and Mr. Barandar have taken the position that this is a case of little or no liability as far as they are concerned and that the plaintiffs have either unclean hands or contributed to the delay in completion of the project or never intended to pay for the project from Day One. This Court sees how a neutral finder of fact could come to that conclusion without too much imagination.
Having said that, this Court also observes that defendants/cross-complainants do not really give this Court any opinion on what percentage of fault if any should be tagged on Tarrar. There is no evidence of any communication, either by discussion, email, or snail mail, that the parties discuss the issue of causes of any delay order due to work performed or not performed by Tarrar.
If the only claim against Tarrar is that completion of the project was delayed (and this Court has seen estimates of three months to six months to a year in delay), this Court has not been giving guidance as to what is the reasonable value of that delay.
Good cause appearing, this Court concludes that the settlement here encompasses the criteria of the Tech-Bilt case, given the limited amount of work Tarrar Consulting Services was contracted to perform. This Court finds the settlement to be in good faith and therefore GRANTS the motion.
Counsel for Tarrar is to prepare an appropriate order and closing papers and submitted to this Department for execution via the e-filing queue.
IV. Tentative Ruling and Hearing.
The Tentative Ruling was duly posted.
V. Case Management.
The Trial Setting Conference currently set for 05 December 2022 shall REMAIN AS SET.
VI. Conclusion and Order.
Good cause appearing, this Court concludes that the settlement here encompasses the criteria of the Tech-Bilt case, given the limited amount of work Tarrar Utility Consultants was contracted to perform. This Court finds the settlement to be in good faith and therefore GRANTS the motion. Since all claims asserted against Tarrar Utility Consultants by Green Bay Construction, Inc. and by Hormoz Barandar are for equitable indemnity and are DISMISSED.
Counsel for Tarrar Utility Consultants is to prepare an appropriate order and closing papers and submitted to this Department for execution via the e-filing queue.
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|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
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|DEPARTMENT 20 | |
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|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
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| |(For Clerk’s Use Only) |
|CASE NO.: |22CV395498 |Phillip Ekenbrack v. Rueben Sekarchi; Simin Fazanpour |
|DATE: 26 July 2022 |TIME: 9:00 am |LINE NUMBER: 09 |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 25 July 2022. Please specify the|
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|Order on Motion of Defendant Reuben Shekarchi |
|For Relief from Default. |
I. Statement of Facts.
Plaintiff filed this complaint on 14 March 2022.[17] The complaint alleges that “[t]he defendant entered into a settlement agreement and breach [sic] the terms of the settlement agreement by filing a lawsuit, case 21SC086563[18], 21SC086562.[19]”
The complaint further alleges that on or about 18 November 2020, the defendants knowingly filed a false application for and renewal of judgment with the court. The renewal was for apparently $9,600.00 when the judgment was only $560.00. Plaintiff purchased the judgment from apparently the defendants and was only able to collect $1120.00.
Additionally, plaintiff is requesting that the court enforce the settlement agreement and dismiss the lawsuits that they filed against him and to find to what amounts if any the plaintiff is entitled.
The proof of summons shows that Mr. Shekarchi was served the same day at 12:53 PM.
II. Motion To Vacate Default.
Plaintiff was personally served on 14 March 2022 therefore making the answer due by 13 April 2022. At 8:45 AM on 14 April 2022, plaintiff filed a request to enter default. Later that day, Mr. Sekarchi presented his answer. The clerk declined the answer because default had already entered it but accepted it per defendant’s demand.
Defendant, in his request for relief from default, states that he had little or no available legal resources from which to benefit. Nonetheless, “coupled with serious health issues and being at the ER the week before the expiration” of the 30 day period within which to answer, he miscalculated the days and coincidently filed the answer on 14 April, shortly after the entry of default.
III. Analysis.
Plaintiff has not filed opposition to this motion.
A. Failure of Plaintiff to Provide Notice to Defendant.
“Despite the unenforceability of stipulations and agreements not conforming to statutory requisites (see 1 Witkin, Cal. Proc. (4th), Attorneys, §292), attorneys customarily rely on oral or implied understandings that no default or other prejudicial step will be taken without notice, and the breach of such informal agreements is often condemned as unethical. (See 1 Cal. Proc. (4th), Attorneys, §602).” ([§168] Reliance on Opposing Counsel. 8 Witkin, California Procedure (4th ed., 1996) Attack on Judgment in Trial Court, §168, p.673.])
B. Defendant’s Excusable Neglect judges.
The Court understands the common misperception that the month of March has only 30 days. Apparently defendant was laboring under this misapprehension, thus filing his answer on what he believed to be the 30th day after service.[20]
C. Failure to Present a Proposed Response.
Code of Civil Procedure, § 473(b) provides that "shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted. . . ." The purpose of this provision is to require the delinquent party seeking leave to contest on the merits to show his good faith and readiness to at once file a responsive pleading in the event that leave is granted. (See Job v. Farrington (1989) 209 Cal.App.3d 338, 341.) A party substantially complies with the "accompanied by" requirement by filing the proposed pleading sufficiently in advance of the hearing to permit the other party to prepare for the hearing. (County of Stanislaus v. Johnson (1996) 43 Cal.App.4th 832, 838.)
This Court will GRANT defendant’s motion for relief notwithstanding that he did not append a copy of a proposed answer.
IV. Tentative Ruling and Hearing.
The Tentative Ruling was duly posted.
V. Case Management.
This matter currently has a case management conference set for 09 August 2022 at 3:00 PM in this Department.
What is troubling to the court is that the parties appeared in front of Commissioner Copeland on 19 April and apparently the issue of the entry of default in this case was not presented to her while adjudicating the small claims action.
After taking time to look at both of the small claims actions identified in plaintiff’s complaint, this Court wonders why this action was filed in the first place, given that there was a pending small claims action which seem to encompass the same underlying issues as the present action.
Good cause appearing, this Court will VACATE the CMC above and RESET the CMC to the law and motion calendar for 10 January 2023 at 9:00 AM at which time this Court will consider granting on its own motion to dismiss this action on the ground of another action pending.
VI. Conclusion and Order.
The motion of defendant for relief from entry of default is GRANTED on condition that he file a RESPONSE within 10 days of the filing and service of this order.
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|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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[1] “For the sake of clarity, we refer to the [parties] by their first names. We mean no disrespect in doing so.” (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 551, fn. 2.)
[2] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).)
[3] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).
[4] As a licensed attorney, Respondent is duty-bound to know the rules of civil procedure. (See Ten Eyck v. Industrial Forklifts Co. (1989) 216 Cal.App.3d 540, 545.)
[5] “The trial court in this case stated that it had reviewed the 2011 case file. The trial court also expressed its belief that Bettinger's behavior was “concerning” and exercised its discretion to renew the order for the maximum of five years—and not for the lesser period of one year suggested by Bettinger. By doing so, the trial court implicitly found that any discretion it had should be exercised to grant the broadest protection possible to Cooper and such an exercise of discretion would have been supported by the record. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [¶] However, because the trial court incorrectly assumed it had no discretion to decide whether or not to renew the restraining order in the first place, we reverse. “All exercises of discretion must be guided by applicable legal principles, however, which are derived from the statute under which discretion is conferred. If the court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law. Therefore, a discretionary order based on an application of improper criteria or incorrect legal assumption is not an exercise of informed discretion and is subject to reversal. Accordingly, we reverse and remand to allow the trial court to make an informed exercise of its discretion whether to renew the restraining order in the first instance.” (Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 89-90.) (citations omitted, internal punctuation altered.)
[6] (See In re Steiner (1955) 134 Cal.App.2d 391, 399 [“A point which is merely suggested by appellant’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”] Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived.”] see also Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934 [trial court not required to “comb the record and the law for factual and legal support that a party has failed to identify or provide”] see Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 [undeveloped argument may be treated as abandoned] Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (stating that “[w]hen [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”) see also Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 (stating that “a point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”).)
[7] This Court has a question about plaintiff's first name. According to the complaint it is "Dylan" but elsewhere in the file are many documents referring to "Daylan.” The Court would appreciate a little bit of help here.
[8] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).
[9] According to Exhibit A in the cross-complaint, the project address is stated to be 2650 Klein Road, San José. Many other documents in the file referred to this address as well. Again, this Court would appreciate a little bit of help here.
[10] In the cross-complaint filed by Green Bay Construction, the contract price was $853,620. $53,620 of that some would be profit collected at the end of the project. Dylan Nguyen promised to refer more business to Green Bay construction if Green Bay construction agreed to build a residential dwelling at cost. As such, Green Bay construction agreed to waive that profit based on the representation of future referral of business. (Cross-complaint, ¶¶ 17-18.)
[11] In opposition to the motion of Tarrar for a determination good faith settlement, defendants/cross-complainants contend it is really unclear on the date the construction of the project was to commence because there are at least four different dates attributed on the alleged contract, (4/2/2017, 4/6/2017, 6/18/2017 and 6/19/2017). Plaintiffs allege the date the parties entered into the contract was on June 18, 2017.
[12] After a hearing on 16 January 2020, Judge Kirwan overruled the defendants’ demurrers to and motion to strike the first amended complaint.
[13] “Liability has been imposed, in the absence of privity, upon suppliers of goods and services which, if negligently made or rendered, are reasonably certain to place life and limb in peril. There is also authority for the imposition of liability where there is no privity and where the only foreseeable risk is of damage to tangible property.” (Biakanja v. Irving (1958) 49 Cal.2d 647, 649.)
[14] “There was no evidentiary basis permitting the court to determine whether the settlement satisfied the requirement that it be in good faith and fair to nonsettling parties. By apparently accepting the hearsay statement as to the evaluation of the settlement by retired Judge Leonard Goldstein, the court appears to have improperly delegated its authority. The court could have appointed Judge Goldstein as a referee to advise it under section 639, subdivision (a)(3). However, such a special reference would require that the referee issue a report (§ 643), and the decision of the referee would not be binding on the court. The court would consider the report as advisory and exercise its independent judgment. (Aetna Life Ins. Co. v. Superior Court (1986) 182 Cal. App. 3d 431, 436.)” (Ibid.)
[15] “As Oliver Wendell Holmes explained: ‘The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding.’ (Holmes, The Path of the Law (1897) 10 Harv. L.Rev. 457, 465-466.)” (Id.)
[16] The attorneys gave the guaranty a value of $250,000 in their settlement agreement. Estimating the subcontractor’s damages at $39 million, which was the figure used in the attorneys’ moving papers (a figure subsequently borne out by the $42 million verdict the subcontractor obtained against the accounting firm), the subcontractor settled with the attorneys for less than 1 percent of the subcontractor’s damages. Thus, the accounting firm met its burden in attacking the settlement on the ground that it lacked good faith.
[17] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).
[18] Simin Farzanpour v. Phillip Erkenbach, filed on 30 December 2021. Plaintiff claims that defendant owes plaintiff $2,500 zero cents by doing "a disservice by giving improper and incomplete legal advice on a case we sought his assistance [sic].” On 14 March 2022, the matter settled in of Commissioner Johnson as follows: Parties have agreed to settlement agreement. Plaintiff is to pay Defendant $300.00 in cash. Plaintiff will then dismiss her Small Claims case with prejudice, and Defendant will dismiss his Civil case with prejudice. Parties will return to finalize settlement agreement once Defendant has withdrawn $300.00 from the ATM." (Electronic recording time: apparently started at 2:11 PM.)
[19] Reuben Sekarchi v. Phillip Erkenbach, filed on 30 December 2021. Plaintiff claims that the defendant owes plaintiff $2,000.00 by "continually and systematically refusing to reimburse me for a judgment he collected on my behalf, and manipulating me by aggressive and hostile attitude and giving improper and incomplete legal advice." A trial was scheduled for 10 February 2022. Plaintiff asked for a postponement until March because he tested positive for Covid. On 14 March 2022 defendant asked that the small claims case be transferred to Superior Court to be heard with the instant matter. Defendant declared that the parties entered into a payoff/settlement agreement which included the release pertaining to an earlier judgment obtained by plaintiff against the third-party and assigned to defendant to collect. Commissioner Copeland heard the matter on that date. Defendant at 2:18 PM requested the transfer to Superior Court. Plaintiff refused to exchange evidence and was ordered by the court to do so. The parties were ordered into the hallway to discuss settlement. At 3:03 PM the matter was not settled and was continued to April 19 at 1:00 PM pending settlement. On 19 April 2022 the matter was again in front of Commissioner Copeland. The case was continued to 24 October 2022 at 1:00 PM for Case Status Review. Plaintiff asked the court to dismiss 22CV395498. Defendant asked that plaintiff be order to answer 22CV395498 [in which plaintiff was already defaulted] and again asked at the small claims matter be transferred to general jurisdiction court to be heard with 22CV395498.
[20] This Court wonders why anyone would wait until the last minute to file an answer to a complaint, keeping in mind the Golden Nugget Of Jurisprudence: "leave time for trouble."
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