Superior Court, State of California
DATE: Tuesday, 08 February 2022
TIME: 9:00 A.M.
This Department prefers that litigants use Zoom for Law and Motion and for Case Management Calendars. Court Call is also acceptable.
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.” If your client is with you, please inform the Court how your client would 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.
Tentative Rulings Are Continued Below. Full Orders Are On The Following Pages.
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 |RULING |
|LINE 1 |17CV313165 |Ivy Mei vs Renuer Incorporated et al |Order of Examination. |
| | | |Continued from 7 December 2021. There is no proof of service in the |
| | | |file. |
| | | |This Department has received a request to take the matter off |
| | | |calendar. |
| | | |OFF CALENDAR WITHOUT PREJUDICE. |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 2 |18CV324275 |Jane Doe v. Ali Kamarei |Motion of Cross-Defendant Fan Yang to Strike First Amended |
| | | |Cross-Complaint. |
| | | |Cross-defendant Yang’s special motion to strike the second through |
| | | |fifth and eighth through ninth causes of action in cross-complainant |
| | | |Kamarei’s FAXC pursuant to Code of Civil Procedure section 425.16 is |
| | | |GRANTED. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 3 |20CV373708 |AK Construction Enterprises, Inc. v. Vivienne Tran, et|Demurrer of Defendants to the Second Amended Complaint. |
| | |al. |The demurrer to the third, fourth, fifth, and sixth causes of action |
| | | |is SUSTAINED WITHOUT LEAVE TO AMEND for failure to state a claim. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 4 |17CV319984 |Ching-Yao Chu et al. v. Creative Habitat, Inc., et al.|Motion of Defendants to Compel Plaintiff to Provide Further Responses |
| | | |to Written Discovery and Request for Monetary Sanctions. |
| | | |OFF CALENDAR. The matter has been assigned to the Hon. Roberta Hayashi|
| | | |for Trial. |
|LINE 5 |17CV319984 |Ching-Yao Chu et al. v. Creative Habitat, Inc., et al.|Motion of Defendants for Appointment of a Discovery Referee and |
| | | |Request for Monetary Sanctions. |
| | | |OFF CALENDAR. The matter has been assigned to the Hon. Roberta Hayashi|
| | | |for Trial. |
|LINE 6 |21CV382019 |Teresita Bernardo et al. v. C3 Care LLC et al. |Motion of Plaintiffs to Compel Defendants to Produce Further Responses|
| | | |to Request for Production of Documents Number 56 and for Sanctions. |
| | | |The Court will GRANT and DENY the motion as set forth in this order. |
| | | |No sanctions will be awarded. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 7 |20CV374450 |Vladimir Sommer v. Mathew Enterprises, Inc.; FCA US |Motion of Plaintiff for Sanctions. |
| | |LLC |Code of Civil Procedure, § 128.5 provides in pertinent part: “A trial |
| | | |court may order a party, the party's attorney, or both, to pay the |
| | | |reasonable expenses, including attorney's fees, incurred by another |
| | | |party as a result of actions or tactics, made in bad faith, that are |
| | | |frivolous or solely intended to cause unnecessary delay…..” |
| | | |In the opposition papers, defendant contends that the settlement check|
| | | |had been mishandled in transit and arrived in a mangled and unusable |
| | | |condition. Plaintiff has not filed reply papers. |
| | | |Based on the information contained in the file, it is clear to this |
| | | |Court that the delay in payment was not a bad faith tactic which was |
| | | |either frivolous or solely intended to cause unnecessary delay, or for|
| | | |the sole purpose of harassing plaintiff or his learned counsel. |
| | | |The motion of plaintiff for sanctions pursuant to Code of Civil |
| | | |Procedure, § 128.5 is DENIED. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 8 |21CV377707 |Progressive Northern Insurance Company v. Kristan Mraz|Application of Progressive Northern Insurance Company for Writ of |
| | | |Possession and Temporary Restraining Order. |
| | | |The applications are GRANTED. Plaintiff is to prepare a proper |
| | | |judgment and presented to this Court through the e-filing queue for |
| | | |execution. Counsel for plaintiff should discuss with this Court the |
| | | |proper amount of any bond. |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 9 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 10 | | |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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|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.: 18CV324275 |Jane Doe v. Ali Kamarei, et al. |
|DATE: 8 February 2022 |TIME: 9:00 am |LINE NUMBER: 3 |
|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 07 February 2022. Please |
|specify the issue to be contested when calling the Court and Counsel. |
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|Order on Cross-Defendant Fan Yang’s |
|Special Anti-Slapp Motion To Strike First Amended Cross-Complaint. |
I. Statement of Facts.
A. Complaint.
Defendant Ali Kamarei (“Kamarei”) is in a romantic relationship with plaintiff Jane Doe’s mother. (Complaint, ¶5.) Because of this romantic relationship, defendant Kamarei is often left alone with plaintiff Jane Doe, a minor. (Complaint, ¶¶1 and 5.) On multiple occasions, beginning in or around January 2017, defendant Kamarei touched plaintiff Jane Doe’s sexual organs underneath her clothing. (Complaint, ¶6.)
On 29 March 2018[1], plaintiff Jane Doe, through her guardian ad litem John Doe, filed a complaint against defendant Kamarei asserting causes of action for:
(1) Sexual Battery
(2) Intentional Infliction of Emotional Distress
On 11 June 2018, defendant Kamarei filed a demurrer and motion to strike plaintiff Jane Doe’s complaint.
On 11 September 2018, the court overruled defendant Kamarei’s demurrer. Plaintiff did not oppose defendant Kamarei’s motion to strike the prayer for attorney’s fees. Accordingly, the court granted defendant Kamarei’s motion to strike without leave to amend.
On 21 September 2018, defendant Kamarei filed a general denial to plaintiff’s complaint.
B. The Cross-Complaint.
On 30 July 2018, Kamarei filed a cross-complaint against Bijan Dastmalchi (“Dastmalchi”). The cross-complaint alleges in March 2012, Dastmalchi separated from his wife, Tannaz Dastmalchi (“Mother”), with whom he had two daughters, Y.D. (7 years old at the time of the cross-complaint) and E.D. (10 years old at the time of the cross-complaint). (Cross-Complaint, ¶¶5 and 9.)
After separating from his own spouse in 2012, Kamarei met Mother and began dating her. (Cross-Complaint, ¶15.) In 2013, Dastmalchi learned of the relationship between Kamarei and Mother and became extremely jealous and angry. (Cross-Complaint, ¶16.)
On Wednesday, 11 January 2017, Kamarei, Mother, Y.D., and E.D. (collectively, Y.D. and E.D. are referred to as the “Minor Children”) had dinner together at PF Chang’s restaurant. (Cross-Complaint, ¶31.) Some time before 21 January 2017, Dastmalchi coached Y.D. to say that Mother and Kamarei sexually molested her even though this had not occurred. (Cross-Complaint, ¶34.) On 21 January 2017, Y.D. falsely said what Dastmalchi had coached her to say in the presence of E.D. and Dastmalchi: that Mother and Kamarei had molested her, touched her “inappropriately,” or words to that effect. (Cross-Complaint, ¶36.) E.D. did not believe Y.D. and told Dastmalchi that Y.D. was not telling the truth. (Cross-Complaint, ¶37.)
Dastmalchi called Mother and told her of Y.D.’s accusations of molestation. (Cross-Complaint, ¶38.) Dastmalchi called the Minor Children’s therapist who told Dastmalchi to call Child Protective Services (“CPS”) who told Dastmalchi to call the police. (Cross-Complaint, ¶¶40 – 41.) Dastmalchi called Mountain View police who instructed Dastmalchi to bring Y.D. in for questioning right away. (Cross-Complaint, ¶42.) Dastmalchi waited until two days later on 23 January 2017 to bring Y.D. to the police in order to further coach Y.D. and prepare her to make a false report of molestation against Mother and Kamarei. (Cross-Complaint, ¶¶42 – 43 and 45.)
Y.D. repeated to police what Dastmalchi had coached her to say, that Mother and Kamarei had molested her in the lobby of PF Chang’s restaurant on 11 January 2017 and at Mother’s house while watching television. (Cross-Complaint, ¶48.) Police later determined both to be false and unsupported by the evidence which included PF Chang’s surveillance video and an affidavit by the nanny who was present at Mother’s house during the time of the alleged molestation. (Id.)
On 24 January 2017, Mother and Kamarei voluntarily went to the Mountain View police department. (Cross-Complaint, ¶49.) Police cleared Mother as a suspect. (Cross-Complaint, ¶50.) However, police arrested Kamarei for lewd and lascivious acts and transported Kamarei to San Jose Main Jail for processing. (Cross-Complaint, ¶¶51 and 57 – 59.) Kamarei was released from jail the following day on 25 January 2017. (Cross-Complaint, ¶61.)
Even after police cleared Mother and Kamarei, Dastmalchi told Mother’s brother-in-law that Kamarei was a “child molester” and “child predator.” (Cross-Complaint, ¶62.) Dastmalchi made unprivileged communications to others that Kamarei allegedly sexually molested a minor child, that Y.D.’s accusations of molestation against Kamarei were determined to be true by CPS, that accusations of molestation against Kamarei have been consistent, and/or other defamatory publications. (Cross-Complaint, ¶¶78 – 80.)
On 25 January 2017, Dastmalchi filed an ex-parte application seeking full custody of the Minor Children and the Minor Children were taken from Mother. (Cross-Complaint, ¶¶63 and 65.)
After viewing the PF Chang surveillance video, police determined Y.D.’s accusations were not true and cleared Kamarei. (Cross-Complaint, ¶67.) No charges were filed against Kamarei by the Santa Clara County District Attorney who also determined on 16 February 2017 that charges against Kamarei were not warranted. (Cross-Complaint, ¶68.) The court-appointed Emergency Screener did not find Y.D.’s accusations against Kamarei to be credible and made no recommendation to keep Kamarei away from Y.D. (Cross-Complaint, ¶¶73 – 74.) Dastmalchi pressured Mother to stipulate that Kamarei stay away from Minor Children for 90 days by threatening to seek full custody of the Minor Children. (Cross-Complaint, ¶75.) Dastmalchi continued coaching Y.D. to make false statements about the alleged molestation. (Cross-Complaint, ¶76.)
Kamarei’s cross-complaint asserts the following causes of action against Dastmalchi:
(1) False Report of Child Abuse by Non-Mandatory Reporter (Violation of Penal Code §11172)
(2) Abuse of Process
(3) Intentional Infliction of Emotional Distress
(4) Negligent Infliction of Emotional Distress
(5) Intentional Interference with Prospective Economic Relations
(6) Negligent Interference with Prospective Economic Relations
(7) Defamation Per Se
(8) Defamation Per Quod
(9) Conspiracy [versus Doe cross-defendants]
(10) Aiding and Abetting [versus Doe cross-defendants]
On 12 September 2018, Dastmalchi filed an answer to Kamarei’s cross-complaint.
On 12 October 2018, Dastmalchi filed a motion to strike Kamarei’s cross-complaint pursuant to Code of Civil Procedure section 425.16. On 18 December 2018, the court issued an order denying Dastmalchi’s special motion to strike.
On 14 March 2019, plaintiff Jane Doe dismissed her complaint against defendant Kamarei without prejudice.
On 1 July 2020, Kamarei filed an amendment to the cross-complaint substituting cross-defendant Fan Yang (“Yang”) for Doe defendant number one “wherever it appears in the [cross-]complaint as it concerns: the Second Cause of Action (Abuse of Process)[,] the Third Cause of Action [Intentional Infliction of Emotional Distress), and the Fourth Cause of Action (Negligent Infliction of Emotional Distress).” Even prior to this amendment, the cross-complaint alleged Yang was cross-defendant Dastmalchi’s fiancé. (Cross-Complaint, ¶¶28 and 43.) Dastmalchi and Yang were trying to purchase a home together and were looking for ways to escape Dastmalchi’s financial obligations to Mother under their martial settlement agreement. (Id.) Yang is also alleged to have rehearsed with Y.D. prior to her interview with Mountain View police on 23 January 2017. (Cross-Complaint, ¶43.)
Following the Doe amendment, the cross-complaint asserts, with regard to the second cause of action for abuse of process, that Yang “intentionally used proceedings in the Family Action including, but not limited to, an ex parte application in the Family Action to attack [Kamarei] and Mother, punish them, separate them, cause difficulties for them, take away Minor Children from Mother, block [Kamarei] from being able to interact with Minor Children, seek unfair economic advantage over Mother, and other improper purposes which the legal procedures were not designed to achieve.” (Cross-Complaint, ¶94.)
The third and fourth causes of action for intentional and negligent infliction of emotional distress are premised on (and incorporate by reference) the same purported misconduct. (Cross-Complaint, ¶¶99 and 101.) The fourth cause of action alleges further, “Cross-Defendants reported fabricated claims of child abuse which they had insufficient reason to believe. Cross-Defendants had insufficient reason to believe that Cross-Complainant abused Y.D.” (Cross-Complaint, ¶103.)
On 11 August 2020, cross-defendant Yang filed a special motion to strike the cross-complaint. On 5 January 2021, the court issued an order denying cross-defendant Yang’s special motion to strike “without prejudice to renewing the motion after Kamarei has had sufficient opportunity to conduct some discovery into the allegations of conspiracy.”
C. First Amended Cross-Complaint.
On 4 October 2021, Kamarei filed a first amended cross-complaint (“FAXC”). The FAXC generally makes the same allegations as the original cross-complaint. With regard to cross-defendant Yang, the FAXC now alleges that prior to calling police on 21 January 2017, Dastmalchi called Yang and discussed the false allegations with her because of her specialized knowledge regarding custody of children in divorce proceedings as Yang was previously married and obtained sole custody of her son in divorce proceedings. (FAXC, ¶44.) Yang masterminded the idea and instructed Dastmalchi to resist, delay, and obstruct the Minor Children from being questioned by uniformed police officers. (Id.) Yang was the master mind behind Dastmalchi’s actions against Kamarei and Mother. (Id.)
Yang and Dastmalchi shared significant common financial goals. (FAXC, ¶45.) Yang and Dastmalchi unsuccessfully attempted to purchase a home from early 2016 through 2017. (Id.) In the months leading up to the false allegations of molestation and afterwards, Dastmalchi and Yang failed to obtain a loan large enough to purchase their desired home. (Id.) Yang knew their inability to qualify for a large loan was due to Dastmalchi’s child support payments to Mother. (Id.) Yang understood Dastmalchi stood to gain financially if Mother lost custody of the Minor Children and Yang too would benefit in being able to buy a home together with Dastmalchi. (Id.)
For the two days Dastmalchi did not permit Y.D. to be interviewed by police, Dastmalchi arranged for Y.D. to talk with others, including Yang, and rehearse. (FAXC, ¶46.) On the day of the interview, Dastmalchi insisted the officer identify himself as a counselor which was part of Yang and Dastmalchi’s plan in coaxing Y.D. who they knew would be too afraid to lie if she knew she would be talking to a police officer. (FAXC, ¶49.) Both Yang and Dastmalchi knew Y.D.’s accusations were false. (FAXC, ¶53.) In order to have Y.D. repeat the false allegations, Yang and Dastmalchi interfered with police investigation and protocol in order to have Y.D. make knowingly false accusations. (FAXC, ¶53.)
As of 24 January 2017, Yang knew Mother was not a suspect and posed no danger to the Minor Children. (FAXC, ¶71.) Yang continued to encourage, aid, direct and instruct Dastmalchi to take the Minor Children away from Mother. (FAXC, ¶¶70 – 80.)
The now operative FAXC by Kamarei asserts the following causes of action:
1) False Report of Child Abuse by Non-Mandatory Reporter (Violation of Penal Code §11172)
2) Willfully Obstructing and Delaying a Public Peace Officer (Violation of Penal Code §148(a)(1))
3) Abuse of Process
4) Intentional Infliction of Emotional Distress
5) Negligent Infliction of Emotional Distress
6) Defamation Per Se
7) Defamation Per Quod
8) Conspiracy
9) Aiding and Abetting
On 19 October 2021, cross-defendant Dastmalchi filed an answer to cross-complainant Kamarei’s FAXC.
On 3 November 2021, cross-defendant Yang filed the motion now before the court, a special motion to strike cross-complainant Kamarei’s FAXC (claims against Yang in bold above).
II. Anti-SLAPP Motions in General.
Code of Civil Procedure, § 425.16 requires a court to engage in a two-step process when determining whether a defendant’s anti-SLAPP motion should be granted.
First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one “arising from” protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the defendant’s right of petition or free speech under the United States or California Constitution in connection with a public issue.
If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim. In making these determinations, the trial court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
III. Analysis.
A. Requests for judicial notice.
In support of her special motion to strike, cross-defendant Yang requests judicial notice of the FAXC; the Order denying Cross-Defendant Fan Yang’s Special Motion to Strike Cross-Complaint filed 5 January 2021; the Order denying Cross-Defendant Bijan Dastmalchi’s Special Motion to Strike Cross-Complaint filed 18 December 2018; and all moving, opposition, and reply papers submitted by the parties regarding Cross-Defendant Fan Yang’s Special Motion to Strike the Cross-Complaint that was heard by the Court on 3 November 2020.
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.” (People v. Woodell (1998) 17 Cal.4th 448, 455.) Accordingly, the request for judicial notice in support of cross-defendant Fan Yang’s special anti-SLAPP motion to strike first amended cross-complaint is GRANTED, insofar as the court takes judicial notice of the existence of the documents, not necessarily the truth of any matters asserted therein.
In opposition to the special motion to strike, cross-complainant Kamarei requests judicial notice of the Temporary Emergency (Ex-Parte) Orders issued 25 January 2017 in In Re Matter of Bijan Dastmalchi and Tannaz Dastmalchi, Case No. 2012-6-FL-007934 (“Family Action”); and an Order issued 18 December 2018 in the instant action denying Dastmalchi’s special motion to strike Kamarei’s cross-complaint.
Based on the same authorities cited above, the request for judicial notice in support of Ali Kamarei’s opposition to special motion to strike cross-complaint is GRANTED, insofar as the court takes judicial notice of the existence of the documents, not necessarily the truth of any matters asserted therein.
B. Timeliness.
Preliminarily, cross-complainant Kamarei contends, in opposition, cross-defendant Yang’s special motion to strike is, in part, untimely. Kamarei contends Yang previously filed a special motion to strike the second, third, and fourth causes of action in the original cross-complaint for abuse of process, intentional infliction of emotional distress, and negligent infliction of emotional distress, respectively. To the extent Yang’s present special motion to strike is directed at those same causes of action, Kamarei contends the motion is untimely because those causes of action existed in the original cross-complaint filed 30 July 2018 to which Yang became a cross-defendant on 1 July 2020. Kamarei relies, in part, upon Code of Civil Procedure section 425.16, subdivision (f) which states, in relevant part, “The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” (Emphasis added.)
Yet, in this court’s prior ruling on cross-defendant Yang’s special motion to strike the cross-complaint, the court specifically stated that the motion was “DENIED WITHOUT PREJUDICE to renewing the motion after Kamarei has had sufficient opportunity to conduct some discovery into the allegations of conspiracy.” Given this express pronouncement, the court does not find the present motion to be untimely. Cross-defendant Yang is merely “renewing” its special motion to strike as contemplated by the court’s prior order.
C. Cross-defendant Yang’s special motion to strike pursuant to Code of Civil Procedure section 425.16 is GRANTED.
1. Step one – threshold showing that the challenged causes of action arise from protected activity.
A defendant meets the burden of showing that a plaintiff’s action arises from a protected activity by showing that the acts underlying the plaintiff’s cause of action fall within one of the four categories of conduct described in section 425.16, subdivision (e). [Citation.] Those four categories are: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”
(Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569 (Siam).)
In Siam, the defendant father accused his ex-wife’s boyfriend of abusing his two sons. Those accusations subsequently proved to be unfounded. The plaintiff boyfriend brought an action against defendant father asserting causes of action, among others, for libel, slander, intentional infliction of emotional distress, making a knowingly false report of child abuse, malicious prosecution, and child abuse, among others. The court held that all of the acts underlying these causes of action, “fall into the first or second … categories [of conduct described in section 425.16, subdivision (e), i.e., ‘(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.]” (Siam, supra, 130 Cal.App.4th at pp. 1569 – 1570.)
As the Siam court explained, “The first five causes of action are based upon defendant’s reports of child abuse to “people who were legally required to report any child abuse allegations … in an attempt to manufacture corroboration” for his own false allegations. That is, the statements were designed to prompt action by law enforcement or child welfare agencies. Communications that are preparatory to or in anticipation of commencing official proceedings come within the protection of the anti-SLAPP statute. [Citations.] Thus, defendant’s reports of child abuse to persons who are bound by law to investigate the report or to transmit the report to the authorities are protected by the statute. (§ 425.16, subd. (e)(2).)
According to Yang, the gravamen of the conduct underlying the causes of action asserted against her in the FAXC consists of “communications pertaining to filing a declaration, or otherwise in connection with a custody matter pending in family court” and, thus, constitutes protected activity.[2] Unlike the original cross-complaint and Doe amendment thereto, the FAXC now includes three additional causes of action directed against Yang: Willfully Obstructing and Delaying a Public Peace Officer (Violation of Penal Code §148(a)(1)); Conspiracy; and Aiding and Abetting. However, each of these three additional causes of action all appear to be based upon Yang’s conduct in connection with, directly or indirectly, encouraging Y.D. to make false accusations and directing/instructing Dastmalchi to take the Minor Children from Mother in the Family Action.
Kamarei does not offer any opposition with regard to whether Yang has met her initial burden to demonstrate that the challenged causes of action arise from protected activity.
There being no opposition on this point, the court finds the second through fifth and eighth through ninth causes of action of the FAXC, as alleged against cross-defendant Yang, fall within the protection of Code of Civil Procedure section 425.16, subdivision (e)(1) and/or (e)(2).
2. Step two – demonstrating a probability of prevailing.
If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a “summary-judgment-like procedure.” (Id. at p. 714, 54 Cal.Rptr.3d 775, 151 P.3d 1185.) [Footnote omitted.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819–820, 124 Cal.Rptr.3d 256, 250 P.3d 1115 (Oasis).) “[C]laims with the requisite minimal merit may proceed.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 94, 124 Cal.Rptr.2d 530, 52 P.3d 703 (Navellier).)
(Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385 (Baral).)
“[I]f a court ruling on an anti-SLAPP motion concludes the challenged cause of action arises from protected petitioning, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. To satisfy this prong, the plaintiff must state and substantiate a legally sufficient claim. Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741; internal citations and punctuation omitted.) “The court does not weigh credibility or comparative strength of the evidence. The court considers defendant’s evidence only to determine if it defeats plaintiff’s showing as a matter of law.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)
a. Willfully Obstructing and Delaying a Public Peace Officer (Violation of Penal Code §148(a)(1)).
Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.
(Penal Code, §148, subd. (a)(1).)
Before determining whether Kamarei can make out a prima facie claim for a violation of Penal Code section 148, subdivision (a)(1), the court pauses to determine whether Kamarei can even assert the violation of this criminal statute as a private right of action. (Cf. American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1117–1118—“A defendant's motion for summary judgment necessarily includes a test of the sufficiency of the complaint. [Citation omitted.] When a motion for summary judgment is used to test whether the complaint states a cause of action, the court will apply the rule applicable to demurrers and accept the allegations of the complaint as true. [Citations omitted.]”)
A criminal statute can expressly or impliedly give rise to a private right of action for its violation; whether it did so there was a question of legislative intent. (Animal Legal Defense Fund v. California Exposition & State Fairs (2015) 239 Cal.App.4th 1286, 1296.) Here, the court found nothing in Penal Code section 148 or Chapter 7 (Other Offenses Against Public Justice) of which section 148 falls under which would expressly or impliedly give rise to a private right of action for its violation. The court also found no appellate decisions which hold that a violation of Penal Code, § 148 gives rise to a private right of action. As such, the court finds Kamarei cannot state a cause of action for violation of Penal Code, § 148.
b. False Report of Child Abuse[3]/ Abuse of Process/ Intentional Infliction of Emotional Distress - Conspiracy.
There are two main elements of a cause of action for abuse of process: “ ‘ “first, an ulterior purpose, and second, a wilful act in the use of the process not proper in the regular conduct of the proceeding.” ’ ” (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168, 232 Cal.Rptr. 567, 728 P.2d 1202.) “Process is action taken pursuant to judicial authority.... [¶] Merely obtaining or seeking process is not enough; there must be subsequent abuse, by a misuse of the judicial process for a purpose other than that which it was intended to serve. [Citations.] The gist of the tort is the improper use of the process after it is issued.” (Adams v. Superior Court (1992) 2 Cal.App.4th 521, 530–531, 3 Cal.Rptr.2d 49.)
(Siam, supra, 130 Cal.App.4th at p. 1579.)
“The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494; see also Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 744 – 745; see also CACI, Nos. 1600 and 1602.)
Unlike the original cross-complaint and Doe amendment, the FAXC now expressly alleges Yang’s liability under the first, third, and fourth causes of action under a conspiracy theory. “The elements of a civil conspiracy are (1) the formation and operation of the conspiracy; (2) the wrongful act or acts done pursuant thereto; and (3) the damage resulting.” (Mosier v. Southern California Physicians Insurance Exchange (1998) 63 Cal.App.4th 1022, 1048; see also CACI, No. 3600.) “The sine qua non of a conspiratorial agreement is the knowledge on the part of the alleged conspirators of its unlawful objective and their intent to aid in achieving that objective.” (Schick v. Lerner (1987) 193 Cal.App.3d 1321, 1328.)
“Because civil conspiracy is so easy to allege, plaintiffs have a weighty burden to prove it. [Citation.] They must sh6ow that each member of the conspiracy acted in concert and came to a mutual understanding to accomplish a common and unlawful plan, and that one or more of them committed an overt act to further it. [Citation.] It is not enough that the conspiring officers knew of an intended wrongful act, they had to agree—expressly or tacitly—to achieve it. Unless there is such a meeting of the minds, ‘the independent acts of two or more wrongdoers do not amount to a conspiracy.’” (Choate v. County of Orange (2000) 86 Cal.App.4th 312, 333.)
“It is a legal commonplace that the existence of a conspiracy may be inferred from circumstances, and that the conspiracy need not be the result of an express agreement but may rest upon tacit assent and acquiescence.” (Holder v. Home Savings & Loan Assn. of Los Angeles (1968) 267 Cal.App.2d 91, 108.) “Of course, the agreement between conspirators need not be proved by direct evidence, but may be shown by circumstantial evidence that tends to show a common intent. In fact, in the absence of a confession by one of the conspirators, it is usually very difficult to secure direct evidence of a conspiracy, so that in the usual case the ultimate fact of a conspiracy must be determined from those inferences naturally and properly to be drawn from those matters directly proved.” (Peterson v. Cruickshank (1956) 144 Cal.App.2d 148, 163.) “While knowledge and intent ‘may be inferred from the nature of the acts done, the relation of the parties, the interest of the alleged conspirators, and other circumstances’ [Citation], ‘[c]onspiracies cannot be established by suspicions. There must be some evidence. Mere association does not make a conspiracy. There must be evidence of some participation or interest in the commission of the offense.’ [Citation.] An inference must flow logically from other facts established in the action. [Citation.]” (Kidron, supra, 40 Cal.App.4th at p. 1582.)
Kamarei makes a number of factual assertions.[4] For instance, Kamarei asserts that on 21 January 2017, Dastmalchi heard the false allegation from his daughter and thereafter, Yang and Dastmalchi had several telephone calls regarding the allegations. Kamarei’s evidence, however, does not establish that Yang and Dastmalchi had telephone conversations regarding the allegations. The content of any conversations between Yang and Dastmalchi is entirely speculative. Kamarei further asserts Yang masterminded the idea and instructed Dastmalchi to resist, delay and obstruct Y.D. from being questioned by a uniformed police officer. Again, the evidence cited by Kamarei does not support such an assertion. Kamarei also asserts that it was Yang who directed Dastmalchi to seek an ex-parte emergency order in the Family Action to remove the Minor Children from Mother’s custody. Again, the evidence does not support such an assertion.
Kamarei also seems to place emphasis on the assertion that Yang and Dastmalchi jointly wiping their cell phones clean to give them to their children serves as evidence of their conspiracy to make a false report of child abuse. “In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party’s failure to explain or to deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case.” (Evidence Code, § 413.) However, Kamarei has not adequately demonstrated either Yang or Dastmalchi engaged in the “willful suppression of evidence.” Thus, the court will not draw any negative inference based merely on the fact that Yang and Dastmalchi erased their cell phones to give to their children.
As he did in opposing Yang’s prior special motion to strike, Kamarei places great weight on an email dated 23 February 2017 from Yang to Dastmalchi subsequent to the emergency screener’s determination that the claims of sexual molestation were unfounded. In that email, Yang wrote, in relevant part,
“My heart is heavy and disturbed after our phone call, in which you shared with me about the screener Lynn’s report. I was shocked and feel the screener’s report and detective Garcia’s statements to be unfair, injustice and unreasonable. Unfortunately, legal process can be manipulated by people and subject to poor judgment of the persons in charge. There are things that could be legitimate, but are wrong in moral values. In the midst of this very difficult time, please do remember that life goes on, and this is still an ongoing battle that is not finished yet. You have done your best for the girls throughout the entire process, and the best that any responsible dad could have done.”
Kamarei contends this highlighted language constituted “marching orders” from Yang to continue with abuse of process. The court finds such an assertion to be entirely speculative. Kamarei is correct that Yang does not have to be a direct actor to be liable under a conspiracy theory, but there must be evidence of her knowledge and agreement that Dastmalchi engage in wrongful conduct. Kamarei has not sufficiently presented such evidence.
c. Negligent Infliction of Emotional Distress.
“Negligent infliction of emotional distress [NIED] is not an independent tort in California, but is regarded simply as the tort of negligence. [Citations.] Whether plaintiffs can recover damages for NIED is dependent upon traditional tort analysis, and the elements of duty, breach of duty, causation and damages must exist to support the cause of action.” (Klein v. Children's Hosp. Medical Ctr. (1996) 46 Cal.App.4th 889, 894.)
Kamarei apparently argues that a violation of Penal Code, § 148, subdivision (a)(1), also serves to support a finding of breach of Yang’s duty not to violate laws. In light of the court’s finding above that a violation of Penal Code, § 148 does not give rise to a private right of action, the Court finds Kamarei has not met his burden of demonstrating a probability of prevailing on a claim for negligent infliction of emotional distress.
d. Aiding and Abetting.
“Liability may … be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person.” (Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 574; see also Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 879; see also Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1325 – 1326.) “[W]hile aiding and abetting may not require a defendant to agree to join the wrongful conduct, it necessarily requires a defendant to reach a conscious decision to participate in tortious activity for the purpose of assisting another in performing a wrongful act.” (Howard v. Superior Court (1992) 2 Cal.App.4th 745, 749, superseded by statute on other grounds.)
As with conspiracy, Kamarei has not presented this court with sufficient evidence, direct or circumstantial, that Yang had knowledge that Dastmalchi was engaging in or going to engage in an abuse of process and gave Dastmalchi substantial assistance or encouragement to so act.
Accordingly, cross-defendant Yang’s special motion to strike the second through fifth and eighth through ninth causes of action in cross-complainant Kamarei’s FAXC pursuant to Code of Civil Procedure, § 425.16 is GRANTED.
IV. Tentative Ruling.
The tentative ruling was duly posted.
V. Case Management.
Cross-defendant Dastmalchi’s Motion for Judgment on the Pleadings is calendared for 22 February 2022 at 9:00 AM in this Department.
The Mandatory Settlement Conference of 20 April 2022 at 9:00 AM and the Jury Trial currently set for 25 April 2022 at 8:45 AM will REMAIN AS SET.
VI. Conclusion and Order.
Cross-defendant Yang’s special motion to strike the second through fifth and eighth through ninth causes of action in cross-complainant Kamarei’s FAXC pursuant to Code of Civil Procedure section 425.16 is GRANTED.
|___________________________ |______________________________________________ |
|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) | |
|smanoukian@ | |
| |(For Clerk's Use Only) |
|CASE NO.: |20CV373708 |AK Construction Enterprises, Inc. v. Vivienne Tran, et al. |
|DATE: 8 February 2022 |TIME: 9:00 am |LINE NUMBER: 3 |
|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 07 February 2022. Please |
|specify the issue to be contested when calling the Court and Counsel. |
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|Order on Defendants’ Demurrer |
|to the Second Amended Complaint. |
I. Statement of Facts.
This is an action for foreclosure on a mechanics lien and other claims.
According to the second amended complaint (“SAC”), plaintiff AK Construction Enterprises, Inc. (“AKC”) is a licensed contractor and California corporation with its principal place of business located at 385 Woodview Avenue in Morgan Hill. (SAC at ¶ 1.) Defendants Trung Phan[5] (“Trung”) and Vivienne Tran (“Vivienne”) (collectively, at times, the “Project Defendants”), husband and wife respectively, reside at 580 Minnesota Avenue in San Jose. (Id. at ¶ 2.) Defendants Hieu Van Tran (“Hieu”) and Thu Trung Pham (“Thu”) (collectively, at times, the “Doe Defendants”), husband and wife respectively, also reside at the same address as the Project Defendants.[6] (Id. at ¶ 3.) Defendant Hieu is also the father of defendant Vivienne and father-in-law to defendant Trung. (Ibid.)
The real property referenced in the SAC is located at 15401 Via Colina Drive in Saratoga, California (the “Project”). (SAC at ¶ 14, Ex. A.) Defendants Vivienne, Hieu and Thu claim legal title to this real property. (Id. at ¶ 4.)
On 25 October 2018, plaintiff AKC and the Project Defendants entered into a written construction contract (“Contract”) by which plaintiff AKC agreed to furnish certain labor, services, equipment, and materials for a work of improvement on the Project, for an agreed contract price, plus those additional sums as the parties would determine as the price for extra work. (SAC at ¶ 15.)
From the date of the Contract up until 20 July 2020, pursuant to the Contract and at defendants’ special request, plaintiff AKC furnished labor, services, equipment, and materials used and intended to be used in the work of improvement on the Project, including extra work having an agreed price and reasonable value. (SAC at ¶ 16.)
From the date of the Contract up until the parties mutually terminated the Contract and entered into an accord and satisfaction, defendant Hieu tendered the progress payment, pursuant to the terms of the Contract. (SAC at ¶ 17.) Defendant Vivienne tendered payments for all draws and was in charge, along with her husband, in approving all materials and designs. (Ibid.)
On 20 June 2020, the parties mutually agreed to terminate the Contract. (SAC at ¶ 18.) Defendants agreed to pay for work completed, and plaintiff AKC and defendants agreed to cease additional work, terminating the Contract. (Ibid.)
Plaintiff AKC performed all conditions and covenants to be performed on its part under the Contract. (SAC at ¶ 19.) The labor, services, equipment, and materials plaintiff AKC furnished has a reasonable value of $37,062.00, for work completed and for which defendants agreed to pay. (Ibid.)
As of 20 July 2020, defendants breached the Contract by failing to pay the outstanding sum of $37,062.00, for work completed, the agreed payment as part of an accord and satisfaction, and mutual termination of the Contract. (SAC at ¶ 20.)
On 20 August 2020, plaintiff AKC duly recorded a verified Mechanic’s Lien Claim, describing the Project and the labor, services, equipment and materials to be furnished on the work of improvement, at the Project, in accordance with the provisions of Civil Code section 8416. (SAC at ¶ 21, Ex. B.)
Thereafter, defendants paid $8,000 for HVAC services. (SAC at ¶ 23.) The defendants paid the HVAC sub-contractor directly and the date of payment is unknown, leaving an unpaid balance of $29,062.00. (Ibid.)
The balance due and owed to plaintiff AKC is currently $29,062.00, plus costs and interest on the outstanding principal. (SAC at ¶ 25, Ex. E.)
Defendants claim some right, title, or interest in or to the Project, each of which claim is junior and inferior to plaintiff AKC’s claim. (SAC at ¶ 26.)
On 18 November 2020, plaintiff AKC filed a verified complaint against the Project Defendants alleging a single claim for foreclosure on a mechanics lien. [7]
On 18 December 2020, the Project Defendants filed their verified answer admitting and denying allegations of the complaint and alleging various affirmative defenses. On the same day, they filed a cross-complaint against plaintiff AKC alleging causes of action for: (1) breach of written contract; (2) breach of oral contracts; and (3) negligence.
On 22 January 2021, plaintiff AKC filed its answer to the cross-complaint alleging a general denial and various affirmative defenses. A second answer was filed on 9 February 2021.
On 5 March 2021, the Project Defendants filed motions to expunge the lis pendens and mechanic’s lien and to award attorney’s fees and costs. Plaintiff AKC opposed the motions.
On 28 April 2021, the parties stipulated to the filing of plaintiff AKC’s operative first amended complaint (“FAC”) which alleges causes of action for:
1) Foreclosure on Mechanic’s Lien;
2) Breach of Contract;
3) Fraud;
4) Quantum Meruit.
On 29 April 2021, plaintiff AKC amended the FAC to add defendants Hieu and Thu as Doe Defendants one and two, respectively.
The motions to expunge the lis pendens and mechanic’s lien came on for hearing on 3 June 2020. Both sides appeared to argue the motions and the court submitted the matters. The court thereafter filed and served a written order denying the motions.
On 19 July 2021, Defendants filed special motions to strike the third cause of action and a demurrer to the FAC. Plaintiff AKC filed written oppositions. The motions were scheduled for hearing on 16 September 2021. Following oral argument, the court adopted its tentative ruling denying the special motions to strike and overruling in part and sustaining the demurrer in part with leave to amend.
On 6 October 2021, plaintiff AKC filed the operative SAC which alleges causes of action for:
1) Foreclosure on Mechanic’s Lien;
2) Breach of Contract;
3) Breach of Implied In Fact Contract;
4) Fraud – Intentional Misrepresentation;
5) Fraud – Concealment;
6) Quantum Meruit.
On 2 November 2021, Defendants filed the motion presently before the court, a demurrer to the SAC. Defendants submitted a request for judicial notice in conjunction with the motion. Plaintiff AKC filed written opposition. Defendants filed reply papers.
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.”)
III. Analysis.
Defendants argue the third, fourth, fifth, and sixth causes of action are subject to demurrer for failure to state a claim. (Code of Civil Procedure, § 430.10, subdivision (e).)
1. Request for Judicial Notice.
In support of the demurrer, Defendants request judicial notice of the following:
1) AKC’s FAC;
2) Court’s Order on Defendants’ Demurrer to the FAC;
3) Declaration of Andy Kwitowski in Opposition to Defendants’ Motion to Expunge Plaintiff’s Mechanic’s Lien.
(See Request for Judicial Notice [“RJN”] at Exs. A-C.)
The court may take judicial notice of the FAC and the court’s order on demurrer as they constitute records of the superior court under Evidence Code section 452, subdivision (d). (See Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file].)
As to the declaration, “[t]he court will take judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like, when considering a demurrer, only where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court.” (Del. E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605.) According to the declaration, Andy Kwitowski is the principal of plaintiff AKC. (Kwitowski Decl at ¶ 1.) Since the declaration is being offered for the purpose of challenging inconsistent allegations in the SAC, the request for judicial notice is proper.
Therefore, the request for judicial notice is GRANTED.
2. Legal Standard.
“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’ ” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)
“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)
3. Third Cause of Action: Breach of Implied In Fact Contract.
“[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
“A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor’s conduct.” (Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172, 183.)
“An implied contract ‘consists of obligations arising from a mutual agreement and intent to promise where the agreement and promise have not been expressed in words.’ [Citations.] In order to plead a cause of action for implied contract, ‘the facts from which the promise is implied must be alleged.’ [Citation.]” (California Emergency Physicians Medical Group v. PacifiCare of California (2003) 111 Cal.App.4th 1127, 1134.)
“An implied contact ‘ “… in no less degree than an express contract, must be founded upon an ascertained agreement of the parties to perform it, the substantial difference between the two being the mere mode of proof by which they are to be respectively.” ’ [Citation.] It is thus an actual agreement between the parties, ‘the existence and terms of which are manifested by conduct.’ [Citation.] Although an implied in fact contract may be inferred from the ‘conduct, situation or mutual relation of the parties, the very heart of this kind of agreement is an intent to promise.’ [Citation.]” (Friedman v. Friedman (1993) 20 Cal.App.4th 876, 887.)
The court previously sustained the demurrer to the breach of contract claim because the Doe Defendants did not allege facts demonstrating they entered into an implied contract with plaintiff AKC. (See RJN at Ex. B.) In the SAC, plaintiff AKC has now added a separate claim for breach of implied in fact contract. In particular, paragraph 40 alleges the following:
¶ 40: Throughout the course of the Project, Defendants and legal title owners, Defendants Hieu Van Tran and Thu Trung Pham consented to and agreed to pay for the work by AKC through various actions:
a) Defendants Hieu Van Tran and Thu Trung Pham tendered progress payments as required by the terms of the Contract from the beginning of the construction through 20 June 2020;
b) Defendants Hieu Van Tran and Thu Trung Pham inspected the progress of the work through visits to the Project; and
c) At no time during the more than two years of construction did Defendants Hieu Van Tran and Thu Trung Pham object to AKC’s work or inform AKC that it would not pay for the completed work, and in fact, recommended and requested certain changes to the work.
Despite these allegations, Defendants persuasively argue there are no facts showing the parties intended, by their conduct, to enter into an implied in fact contract. For example, plaintiff AKC admits, by way of a declaration by Andy Kwitowski, principal for AKC, who contends he has no idea why defendant Hieu made progress payments toward the Project. (See RJN at Ex. C [Kwitowski Decl. at ¶ 13].) Such testimony is inconsistent with the idea that the parties entered into an implied contract. Nor are there any other allegations (or attached exhibits) showing a meeting of the minds between the Doe Defendants and plaintiff AKC to form an implied contract. (See Donovan v. Rrl Corp. (2001) 26 Cal.4th 261, 270-271 [An essential element of any contract is the consent of the parties, or mutual assent. Mutual assent is usually manifested by an offer communicated to the offeree and an acceptance communicated to the offeror.].) In fact, the underlying facts of the SAC are addressed to the written contract entered into between the Project Defendants and plaintiff AKC. (See SAC at ¶¶ 15-20.)
Accordingly, the demurrer to the third cause of action is SUSTAINED for failure to state a claim.
4. Fourth Cause of Action: Fraud by Intentional Misrepresentation.
“The elements of intentional misrepresentation, or actual fraud, are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., induce reliance); (4) justifiable reliance; and (5) resulting damage.” (Anderson v. Deloitte & Touche (1997) 56 Cal.App.4th 1468, 1474.)
“Fraud must be pleaded with specificity rather than with general and conclusory allegations. The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793 (West), citation and quotation marks omitted.)
Courts enforce the specificity requirement in consideration of its two purposes. (West, supra, 214 Cal.App.4th at p. 793.) The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. (Ibid.) The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, the pleading should be sufficient to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud. (Ibid.)
The court previously sustained the demurrer to the fraud cause of action as the claim had not been pled with the required specificity. (See RJN at Ex. B.) Again, Defendants take issue with the fraud claim for lack of specificity. The fraud allegations are primarily set forth in paragraphs 49 through 60. Like the prior pleading, plaintiff AKC alleges the Project Defendants knowingly held themselves out as the owners of the real property and in fact, did so by executing the Contract and change orders as the owners of the real property to later claim that they are not responsible for payment for material, labor and services which they ordered and received. (See SAC at ¶ 50.) And, like before, plaintiff AKC does not allege facts with the required specificity to state a valid fraud cause of action.
Consequently, the demurrer to the fourth cause of action is SUSTAINED for failure to state a claim.
5. Fifth Cause of Action: Fraud by Concealment.
The elements of fraudulent concealment are: (1) concealment or suppression of material fact, (2) duty to disclose the fact, (3) intent to conceal or suppress with intent to defraud, (4) plaintiff must have been unaware of the fact and would not have acted in such a manner had the plaintiff known of the concealment or suppression, and (5) resulting damage. (Jones v. ConocoPhillips (2011) 198 Cal.App.4th 1187, 1198; Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613.)
“To maintain a cause of action for fraud through nondisclosure or concealment of facts, there must be allegations demonstrating that the defendant was under a legal duty to disclose those facts.” (Los Angeles Memorial Coliseum Commission, et al. v. Insomniac, Inc., et al. (2015) 233 Cal.App.4th 803, 831.)
Without a fiduciary relationship, the duty to disclose generally presupposes a relationship grounded in some sort of transaction between the parties. (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336-337.) “Thus, a duty to disclose may arise from the relationship between seller and buyer … or parties entering into any kind of contractual agreement.” (Id. at p. 337.) In transactions which do not involve fiduciary or confidential relations, a cause of action for non-disclosure of material facts may arise in at least three instances: “(1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; [or] (3) the defendant actively conceals discovery from the plaintiff.” (Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294.)
The court previously sustained the demurrer to the concealment cause of action (included as part of the fraud claim) as plaintiff AKC did not plead facts establishing a duty to disclose. (See RJN at Ex. B.) Again, Defendants contend the concealment claim fails as there are no facts supporting any duty to disclose. The concealment allegations are contained in paragraphs 61 through 72. None of these paragraphs include facts establishing a duty to disclose to support a concealment cause of action.
Accordingly, the demurrer to the fifth cause of action is SUSTAINED for failure to state a claim.
6. Sixth Cause of Action: Quantum Meruit.
“A quantum meruit or quasi-contractual recovery rests upon the equitable theory that a contract to pay for services rendered is implied by law for reasons of justice.” (Hedging Concepts, Inc. v. First Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1419.)
“[I]n order to recover under a quantum meruit theory, a plaintiff must establish both that he or she was acting pursuant to either an express or implied request for such services from the defendant and that the services rendered were intended to and did benefit the defendant.” (Day v. Alta Bates Medical Ctr. (2002) 98 Cal.App.4th 243, 248.) “The theory of quasi-contractual recovery is that one party has accepted and retained a benefit with full appreciation of the facts, under circumstances making it inequitable for him to retain the benefit without payment of its reasonable value.” (Truestone, Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 724.)
As a threshold matter, the quantum meruit claim is alleged against all Defendants. But, for purposes of this demurrer, the challenge is only as to the Doe Defendants, not the Project Defendants.
The court previously sustained the demurrer to the quantum meruit cause of action as plaintiff AKC did not allege whether any such request for services was express or implied with respect to the Doe Defendants. That same deficiency exists here with respect to this claim in the SAC. Nor does plaintiff AKC address this defect in its opposition.
Therefore, the demurrer to the sixth cause of action by the Doe Defendants is SUSTAINED for failure to state a claim.
7. Leave to Amend.
Should the court sustain the demurrer, plaintiff AKC requests further leave to amend.
“The plaintiff bears the burden of proving there is a reasonable possibility of amendment.” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43 (Rakestraw).) To satisfy this burden, a plaintiff “must show in what manner he (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.)
The court here has already afforded plaintiff AKC an opportunity to amend and it has not yet been able to state a valid cause of action to overcome a pleading challenge on demurrer. Nor does plaintiff AKC explain how any such amendment will change the legal effect of its pleading. As a consequence, the court finds no basis for further amendment.
Accordingly, leave to amend is DENIED. (See Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1145 [“The onus is on the plaintiff to articulate the ‘specifi[c] ways’ to cure the identified defect, and absent such an articulation, a trial or appellate court may grant leave to amend ‘only if a potentially effective amendment [is] both apparent and consistent with the plaintiff’s theory of the case. [Citation.]’ ”].)
IV. Tentative Ruling.
The tentative ruling was duly posted.
V. Case Management.
A further Case Management Conference is set for 8 February 2022. Should the tentative ruling be contested, the CMC will be heard following the hearing on the demurrer.
VI. Conclusion and Order.
The demurrer to the third, fourth, fifth, and sixth causes of action is SUSTAINED WITHOUT LEAVE TO AMEND for failure to state a claim.
|___________________________ |______________________________________________ |
|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) | |
|smanoukian@ | |
| | |
| |(For Clerk's Use Only) |
|CASE NO.: |21CV382019 |Teresita Bernardo, et al., v. C3 Care LLC; Jaime Marcial; Jericho Marcial |
|DATE: 08 February 2022 |TIME: 9:00 am |LINE NUMBER: 4 |
|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 07 February 2022. Please |
|specify the issue to be contested when calling the Court and Counsel. |
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|Order On Motion of Plaintiffs to |
|Compel Further Responses to |
|Request for Production of Documents. |
I. Statement of Facts.
Defendant C3 Care LLC (“C3”) is a self-described “family owned non-medical domestic referral agency that provides home care referral services to the elderly and other adults who wish to continue living in their own homes.” (Complaint, ¶¶9 and 24.) Defendants Jaime Rafael C Marcial and Jericho Marcial (collectively, “Marcials”) own and operate defendant C3 and are partners/ managers for defendant C3. (Complaint, ¶¶1, 10 – 11, and 16 – 18.) Defendants employed plaintiffs Teresita Bernardo, Angelita (Helen) Cabanlit, Nilo Campos Tengson, Herminia Autajay, and Herman Tabudlong (collectively, “Plaintiffs”). (Complaint, ¶¶1, 4 – 8, 12, and 25.)
Plaintiffs regularly worked more than nine hours in a day and more than 45 hours in a week without being properly compensated for overtime. (Complaint, ¶26.) Due to the nature of their work, Plaintiffs were not relieved of all duty and thus, denied the opportunity to take compliant meal and rest breaks. (Complaint, ¶27.)
Plaintiffs were never provided code-complaint paystubs which reflected, among other things, an accurate itemization of total hours worked, all rates at which pay should have been paid, and paid sick leave accrued. (Complaint, ¶28.) Plaintiffs were discharged between July 2020 and September 2020. (Complaint, ¶29.)
At the time of their discharge, Plaintiffs were owed but not paid for all hours worked. (Complaint, ¶30.) Defendants have not paid Plaintiffs all earned compensation. (Id.)
On 27 April 2021[8], Plaintiffs filed a complaint against defendants C3, asserting causes of action for:
1) Failure to Pay Minimum Wage
2) Failure to Pay Overtime
3) Failure to Provide Meal Periods
4) Failure to Provide Rest Periods
5) Failure to Pay All Wages Upon Discharge
6) Failure to Provide Accurate Itemized Wage Statements
7) Unlawful Business Practices
8) Breach of Contract
9) Violation of Healthy Workplace Act
On 4 January 2022, the demurrer and motion to strike of defendants C3 and Marcials were overruled and denied, respectively.
II. Motion of Plaintiff to Compel Further Responses and for Sanctions.
This motion was filed on 26 October 2021.
Plaintiffs propounded written discovery to defendants on 6 August 2021. Among the request propounded was Request for Production Number 56. This request asked for “All DOCUMENTS reflecting YOUR policies or procedures in effect during the RELEVANT TIME PERIOD.” The relevant time period is elsewhere defined as December 2016 through September 2020.
Defendants objected to the request is unintelligible because it failed to describe the documents requested was impossible to know what was being asked to be produced. The request was vague and ambiguous because it failed to describe the documents requested with reasonable particularity. Defense counsel invited counsel for plaintiffs to amend the request to indicate the subject matter or category of policies and procedures the plaintiffs were seeking.
III. Analysis.
A. “Meet & Confer.”
The parties exchanged a couple of emails as noted in the moving and opposing papers. Plaintiffs apparently emailed this Department on 19 October 2021 seeking an Informal Discovery Conference without effect.[9]
For purposes of this motion the meet and confer appears to be satisfactory.
B. Discovery Responses in General.
“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property.” (Code of Civil Procedure, § 2017.010.)
Discovery is allowed for any matters that are relevant to the subject matter of the action, not privileged, and reasonably calculated to lead to the discovery of admissible evidence. (See Code of Civil Procedure, § 2017.010; Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223.) Information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (See Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) These relevance standards are applied liberally with any doubt generally resolved in favor of discovery. (See Colonial Life & Acc. Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.)
In responding to discovery, the responding party is to make a good faith effort to determine if it is able to provide meaningful responses to the various discovery requests. This Court frowns upon a party’s “deliberate indifference to responsibility in discovery” and has “no time for such antics.” (See Collisson & Kaplan v. Hartunian, 21 Cal.App.4th 1611, 1618 (1994).)
C. Request for Production Number 56.
Request for Production Number 56 seeks documents concerning the policies of the defendants over a three-year nine month period of time.
“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general.” (Code of Civil Procedure, § 2031.310(a).)
“A representation of an inability to comply with the particular demand shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code of Civil Procedure, § 2031.230.)
D. Defendants’ Objections.
Defendants raised objections on the bases that the request is unintelligible, vague and ambiguous because the request fails to describe the documents requested with reasonable particularity (Code of Civil Procedure, § 2031.030(c)(1).)
E. Discussion.
“In short, as Justice Murphy said for the court in Hickman v. Taylor, 329 U.S. 495, 507, ‘discovery, like all matters of procedure, has ultimate and necessary boundaries.’” (Columbia Broadcasting System, Inc. v. Superior Court of Los Angeles County (1968) 263 Cal.App.2d 12, 19.)
Code of Civil Procedure, § 2017.020(a) states: “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”
The request of plaintiffs calls for the defendants to produce every policy on every subject maintained for a period of four years. The request is irrelevant on its face and should be more narrowly tailored to seek documents pertaining to policies related to the cause of action in the complaint.
The Court will GRANT and DENY the motion as follows: defendants are to produce policies maintained during the “relevant time period” pertaining to:
1. minimum wage and IWC Wage Orders;
2. overtime;
3. Provision and authorization for meal periods;
4. rest periods;
5. payment of all wages upon discharge;
6. provision of itemized wage statements; and
7. compliance with the Healthy Workplace Act.
The defendants are to produce code compliance responses to the foregoing within 20 days of the filing and service of this order. No sanctions will be awarded.
IV. Tentative Ruling and Hearing.
The Tentative Ruling was duly posted.
V. Case Management.
The Case Management Conference currently set for 12 April 2022 at 10:00 AM in Department 20 shall REMAIN AS SET.
VI. Conclusion and Order.
The Court will GRANT and DENY the motion as set forth in this order. No sanctions will be awarded.
|____________________________________ |_________________________________________________________ |
|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.: |21CV377707 |Progressive Northern Insurance Company v. Kristan Mraz |
|DATE: 08 February 2022 |TIME: 9:00 am |LINE NUMBER: 8 |
|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 07 February 2022. Please |
|specify the issue to be contested when calling the Court and Counsel. |
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|Order on Application of Progressive Northern Insurance Company |
|for Writ of Possession and Temporary Restraining Order. |
I. Statement of Facts.
Plaintiff filed this complaint alleging causes of action for Replevin and Claim and Delivery on 16 February 2021.[10] The following facts are found in complaint:
As of 27 August 2020, defendant owned subject to a lease a 2018 Kia Sportage with vehicle identification number “KNDPNCACXJ7476243.” Plaintiff issued a personal automobile insurance policy to defendant to insure the Kia.
On that date, the Kia was reported as stolen. After the theft, defendant presented a claim for insurance benefits arising out of the theft of the Kia. Plaintiff accepted the claim and took possession of the vehicle on permission from the defendant, processing the car as a “total loss” under the policy of insurance. Plaintiff paid HCA Exchange, Inc., the lessor of the vehicle, the sum of $19,578.05 to satisfy it as the “loss payee.” The lessor agreed to release all claims of right, title, and interest in exchange for the payment that plaintiff made pursuant to the policy of insurance issued to defendant.
After processing the insurance claim, defendant convinced the salvage yard which was storing the Kia to give it to her and thus wrongfully regained possession of the vehicle.
On 6 June 2021, plaintiff’s investigator Tim Schmolder of Timeline Investigation Services saw the vehicle parked in the driveway of defendant’s residence with signage of her cleaning business. Plaintiff agreed to reimburse defendant for some of the fees and costs pertaining to the return of the vehicle, including but not limited to fees and costs pertaining to the towing and detailing of the Kia to facilitate the return of the Kia to plaintiff.
Defendant continues to refuse to return the Kia to plaintiff.
Plaintiff therefore files this application for a Writ of Possession and Temporary Restraining Order for return of the vehicle.
II. Motion For Writ of Possession and Temporary Restraining Order.
Pursuant to Code of Civil Procedure, § 512.010, plaintiff has filed this application for the writ of possession.
Claim and delivery is a remedy by which a party with a superior right to a specific item of personal property (created, most commonly, by a contractual lien) may recover possession of that specific property before judgment. (Waffer Internat. Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261, 1271.)
It is elementary that the primary purpose of a claim and delivery action is to obtain possession of personal property, and the bond required by section 512 of the Code of Civil Procedure is one to indemnify the defendant against the consequence of a taking that may later be adjudged to be wrongful. (Symes Cadillac, Inc. v. Insurance company of North America (1977) 66 Cal.App.3d 905, 909.)
“At the time of applying for a right to attach order under Chapter 4 (commencing with Section 484.010), the plaintiff may apply pursuant to this chapter for a temporary protective order by filing an application for the order with the court in which the action is brought.” (Code of Civil Procedure, § 486.010(a).)
“The application shall state what relief is requested and shall be supported by an affidavit, which may be based on information and belief, showing that the plaintiff would suffer great or irreparable injury (within the meaning of Section 485.010) if the temporary protective order were not issued.” (Code of Civil Procedure, § 486.010(b).)
Unless this court finds that the defendant has no interest in the property, this court cannot issue a temporary restraining order or a writ of possession until the plaintiff has filed an undertaking with the court which provides that the sureties are bound to the defendant for the return of the property if return of the property is ordered and for the payment o to the defendant of any sum recovered against the plaintiff. The undertaking shall be in an amount of not less than twice the value of the defendants interest in the property or in a greater amount. (See Code of Civil Procedure, § 515.010.)
III. Analysis.
The application shows the basis of the claim that plaintiff is entitled to possession of the vehicle.
The declaration of the investigator hired by plaintiff indicates that the property is wrongfully detained by the defendant and is currently in her possession.
The petition describes the property and its value as well as its current location.
Plaintiff has declared that the property was not taken for a tax, assessment, or find pursuant to a statute, or seized under an execution against the property of the plaintiff, or any other bases.
The applications are GRANTED. Plaintiff is to prepare a proper judgment and presented to this Court through the e-filing queue for execution.
Counsel for plaintiff should discuss with this Court the proper amount of any bond.
IV. Tentative Ruling and Hearing.
The Tentative Ruling was duly posted.
V. Case Management.
The matter is also set for a Case Management Conference at 10:00 AM but will be heard at 9:00 AM should this matter be contested.
VI. Conclusion and Order.
The applications are GRANTED. Plaintiff is to prepare a proper judgment and presented to this Court through the e-filing queue for execution.
Counsel for plaintiff should discuss with this Court the proper amount of any bond.
|____________________________________ |_________________________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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[1] 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).
[2] See page 11, lines 5 – 6 of the Memorandum of Points and Authorities in Support of Cross-Defendant Fan Yang’s Special Anti-SLAPP Motion to Strike First Amended Cross-Complaint.
[3] Cross-defendant Yang is not specifically named as a cross-defendant to the first cause of action. Instead, Yang’s liability on the first cause of action appears to be under a conspiracy theory. (See FAXC, ¶¶153 – 161.)
[4] Kamarei apparently relies upon a number of the allegations made in his unverified FAXC to meet his burden. While there is some authority stating verified pleadings may be considered, the Sixth District Court of Appeal has ruled, “The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.” (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1017.) Consequently, this Court did not consider Kamarei’s evidentiary citations to his own FAXC.
[5] At times, the court refers to the defendants by their first names for purposes of clarity. No disrespect is intended. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
[6] The Project Defendants and Doe Defendants are collectively identified as “Defendants”.
[7] 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).
[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] A review of the mailbox was unable to locate the email.
[10] 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).
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