June 26, 2017
Law & Motion Department Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 261-5019
  • Other Judges' tentatives: please reference the appropriate Case Number and Case Caption below and contact the appropriate department.

Telephonic Appearances (CourtCall): If an appearance is required or if a party has provided timely notice of intent to appear by 4:00 p.m. to the court and all parties, any party may appear telephonically through CourtCall. To do so, you must contact CourtCall at (888) 882-6878 no later than 4:30 p.m. on the court day prior to the hearing. Notifying CourtCall with your intent to appear is not an alternative to notifying the court. Please visit their website for more information. Please also see California Rule of Court No. 3.670.

 

In the Superior Court of the State of California

In and for the County of San Mateo

 

Law and Motion Calendar

Judge: Honorable RICHARD H. DuBOIS

Department 16

 

400 County Center, Redwood City

Courtroom 7A

 

Monday, June 26, 2017

 

NOTICE TO ALL COUNSEL

 

Until further order of the Court, no endorsed-filed “courtesy copy” of pleadings is required to be provided to the Law and Motion Department.

 

 

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING:

 

1. YOU MUST CALL (650) 261-5019 BEFORE 4:00 P.M. TO INFORM THE COURT OF YOUR INTENT TO APPEAR.

2. You must give notice before 4:00 P.M. to all parties of your intent to appear pursuant to California Rules of Court 3.1308(a)(1).

 

Failure to do both items 1 and 2 will result in no oral presentation.

 

Notifying CourtCall with your intent to appear is not an alternative to notifying the court.

 

All Counsel are reminded to comply with California Rule of Court 3.1110.  The Court will expect all exhibits to be tabbed accordingly. 

 

    Case                  Title / Nature of Case

 

 

 

 

 

 

 

 

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16-CIV-01174     STEPHEN BOURQUE vs. CHRISTOPHER C. HALL

 

 

STEPHEN BOURQUE                        PrO/PER

CHRISTOPHER C. HALL                    JASON FELLNER

 

 

MOTION TO STAY TO RENEW STAY PROCEEDINGS

TENTATIVE RULING:

 

The Court DENIES, without prejudice, Plaintiff's Motion to Renew the Stay of Proceedings.  Plaintiff failed to timely serve his motion and supporting papers on Defendant. 

Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court. However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California.  Code Civ. Proc. § 1005, subd. (b). See Bahlert Dec., ¶ 20.) 

 

Furthermore, Plaintiff failed to timely file proof of service. " Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing." (Cal. Rules of Court, rule 3.1300(c).)

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 

 



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17-CIV-02320     IN RE D. SPENCER

 

 

BOISE HEIGHTS CORPORATION              EUGENE A. AHTIRSKI

 

 

PETITION FOR APPROVAL FOR TRANSFER OF STRUCTURED SETTLEMENT payment rights pursuant to ca insurance code §10134, ET SEQ

TENTATIVE RULING:

 

The Court DENIES Petitioner Boise Heights Corporation's unopposed Petition for Approval of Structured Settlement Payment Rights.

 

As an initial matter, the case name, In re: D. Spencer, and other references to the payee in the Petition do not accurately reflect the payee's legal name, David Spencer, as identified in the exhibits attached to the Petition.

 

Pursuant to Insurance Code section 10139.5, the Court must find that the transfer is in the best interests of the payee. Although referenced in both the Notice of Hearing (p. 3:19) and Petition (p. 8:1-8), filed on May 26, 2017, no declaration of the payee is attached to the Petition. The declaration executed on June 16, 2017 and filed on June 20, 2017, is not part of the Petition and if it was intended to supplement the omission from the Petition, it is untimely. (Ins. Code § 10139.5, subd. (f)(2).)

 

Furthermore, that declaration contradicts the Petition as to the number of payments to be transferred. In the Petition, Petitioner asserts that Mr. Spencer will transfer 60 monthly payments. (Petition, ¶ 2.) However, in his declaration, Mr. Spencer states he will transfer 65 monthly payments. (Spencer Dec., ¶ 4.)

 

Also, in that declaration, the declarant is erroneously identified as "David Spender" and not David Spencer. (Spencer Dec., p. 1:5.) 

 

Lastly, Petitioner failed to comply with Insurance Code section 10139.5, subdivision (c)(1) and (6), by failing to provide the payee's name, address and sufficient information regarding his previous transfer from 2011 in the Petition. (Petition, p. 6:13, 6:20-22.)  

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.



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CIV513706     R JAMES KOCH VS. SCIENTIFIC IMAGE CENTER ET AL.

 

 

R. JAMES KOCH                          J. PHILLIP MARTIN

BEVERLY HILLS PLASTIC SURGERY CENTER    CORTNEY L. MCDEVITT

 

 

3. MOTION FOR SUMMARY ADJUDICATION OF ISSUES

TENTATIVE RULING:

 

The motion for summary adjudication of issues is DENIED.

 

The grounds for the motion are that (a) “Plaintiff has failed to allege that Defendants are ‘health facilities’ as defined by Health and Safety Code section 1278.5,” and (b) “none of the Defendants are in fact a ‘health facility.’” (Notice of Motion at 1:10-12.)

 

The failure to plead an element of a cause of action is a ground for demurrer or motion for judgment on the pleadings. Since it is a pleading defect, it is not a ground for summary judgment, which is a motion intended to address facts and evidence. Regardless, when a motion for summary judgment is defective, the Court may opt to treat the motion as for judgment on the pleadings.

 

As a motion for judgment on the pleadings, the motion fails. The motion correctly points out that the complaint fails to allege that any Defendant is a “health facility.”  However, a demurrer (and likewise, motion for judgment on the pleadings), admits not only the pleaded facts, but also all reasonable inferences drawn from the pleaded facts. The complaint must be “liberally construed, with a view to substantial justice between the parties.” [Code of Civ. Proc. § 452; see Perez v. Golden Empire Transit Dist. (2012) 209 CA4th 1228, 1238 [where allegations are subject to different reasonable interpretations, court must draw “inferences favorable to the plaintiff, not the defendant”].)

 

A.   Failure to Plead “Health Facility”

 

The Complaint omits any express allegation that Defendants are health facilities. The pleading omission, however, does not establish the fact that no Defendant is a health facility. The omission also does not render the pleading deficient. A demurrer and motion for judgment on the pleadings admits not only the pleaded facts, but also all reasonable inferences drawn from the pleaded facts. (See Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238 [where allegations are subject to different reasonable interpretations, court must draw “inferences favorable to the plaintiff, not the defendant”].)

 

The allegation that Defendants violated Health and Safety Code section 1278.5 by retaliating against Plaintiff reasonably implies that Defendants are health facilities, since only health facilities are subject to that statute. Nothing in the complaint implies a contrary fact, that Defendants are not health facilities. Therefore, the failure to expressly allege that Defendants are health facilities is not fatal to the pleading.

 

B.   Whether Any Defendant is a “Health Facility.”  

 

“Health facility,” for purposes of Health and Safety Code section 1278.5, is defined by section 1250. The only moving evidence is that no Defendant holds a license as a health facility. That fact, however, establishes only that no Defendant holds a license. It does not establish that, as a matter of law, Defendants do not meet the definition of health facility under section 1250.

 

C.   The Court Disregards Defendants’ Improper Reply Arguments.

 

Defendants raise new evidence in their Reply. The Court disregards both arguments for lack of notice and due process.

 

     1.   Whether Defendants Are “Clinics.”

 

Defendants’ Reply offers deposition testimony of Plaintiff Koch that Defendants are “clinics,” rather than “health facilities.” This is a new argument that appears nowhere in the moving papers. As a non-noticed issue, the Court does not consider it. (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) In the context of a summary judgment motion, “the inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case." (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.) The present case is not exceptional.

 

By withholding the argument until the Reply papers, Defendants failed to provide Plaintiff with notice and an opportunity to be heard. None of the related evidence was part of the moving papers. The testimony about “clinics” is from the third session of deposition of Plaintiff Koch, which occurred two months after Defendants filed this motion. Defendants do not explain, however, why they were unable to secure Koch’s deposition before moving for summary adjudication. Even without Koch’s deposition testimony, Defendants presumably would have other evidence to support that their own facilities were clinics.

  

     2.   Lifestyle Florida East P.C.

 

The argument that Defendant Lifestyle Florida East P.C. operates only outside of California is beyond the scope of the motion. The issue of whether Lifestyle Florida East operates in California is not one of the grounds for this motion. 

 

D.   The Court Disregards Plaintiff’s Surreply and Other Improperly Filed Documents.

 

Motions for summary adjudication are governed by statute. Nothing in the Code of Civil Procedure or Rules of Court permit or recognize the filing of a “surreply,” or any other papers after a Reply. 

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 

 

4. MOTION RE: FOR JUDGMENT ON PLEADINGS (STATUTE OF LIMITATIONS)

TENTATIVE RULING:

 

Defendants’ Motion for Judgment on the Pleadings is DENIED.

 

CCP sec. 438(b)(1) permits a party to an action to make a motion for judgment on the pleadings. A defendant may make such a motion on the grounds that a complaint, or any cause of action, does not state facts sufficient to constitute a cause of action against the defendant. CCP sec. 438(c)(1)(B)(ii).

 

The rules for demurrers apply: the grounds for a motion must appear on the face of the pleading or be based on judicially noticeable facts. Cloud v. Northrop Grumman Corp., 67 Cal. 4th 995, 999 (1998).

 

On demurrer, the factual allegations in the complaint, together with all reasonable inferences, must be accepted as true. Wolfe v. State Farm Fire & Casualty Ins. Co. (1996) 46 Cal. App. 4th 554, 559-560. The demurrer must be overruled if the factual allegations, together with any matters subject to judicial notice, state a cause of action under any possible legal theory, regardless of the causes of action set forth in the complaint itself. Brousseau v. Jarrett (1977) 73 Cal. App. 3d 864. Moreover, all facts are to be construed in the light most favorable to the Plaintiff. Perdue v. Crocker Nat’l. Bank (1985) 38 Cal. 3d 913, 922.

 

Under California law, failure to raise a statute of limitations defense constitutes a waiver of that defense. Getz v. Wallace, 236 Cal. App. 2d 212, 213 (1965). The court refused to allow the defendant to assert statute of limitations noting, “In civil actions, the statute of limitations is a personal defense which is waived by failure to plead it.” Id.  In Defendant’s Answer, there is no mention of the affirmative defense of Statute of Limitations, nor was there any mention of Statute of Limitations in response to discovery over the course of the five years this case has been pending.

 

However, Plaintiff’s claim for compensatory damages of lost wages and legal costs under Health & Safety Code § 1278.5(g) is governed by the three-year SOL in CCP § 338(a), not the one-year statute in CCP § 340(a). Plaintiff does not seek penalty damages in the Complaint, but only compensatory statutory damages under Health & Safety Code § 1278.5(g). Because this right to compensatory damages is specifically created by statute, it is governed by CCP § 338.

 

Furthermore, the Defendants’ statute of limitations argument would not dispose of the entire cause of action, because the claim for damages under sec. 1278.5(g) is not time- barred. The motion for judgment on the pleadings is denied because it does not dispose of the entire cause of action. A motion for judgment on the pleadings (just like a demurrer) ordinarily does not lie with respect to only part of a cause of action. Kong v. City of Hawaiian Gardens Redevelop. Agency (2003) 108 Cal. App. 4th 1028, 1046.

 

Finally, Defendants’ reply argues for leave to amend the Answer. This request was not in the Notice of Motion, nor the memorandum of points and authorities, therefore it is denied. 

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 

 

5. MOTION TO STRIKE PRAYER FOR ATTORNEY’S FEES

TENTATIVE RULING:

 

Defendants’ Motion to Strike Prayer for Attorney’s Fees is GRANTED.

 

“The court may, upon a motion made pursuant to Section 453, or at any time in its discretion, and upon terms it deems proper: (1) Strike out any irrelevant, false, or improper matter inserted in any pleading.” CCP § 436.

 

A court may strike a prayer for attorney’s fees where the complaint contains no potential basis for their recovery. Agricultural Ins. Co. v. Superior Court (1999) 70 Cal. App. 4th 385, 404.

 

Regardless of how a pleading is labeled or a prayer is framed, a court may grant any relief consistent with the case made by the petitioner and embraced within the issue. Lee v. Blue Shield of California (2007) 154 Cal. App. 4th 1369, 1378.

 

Staying with the literal meaning of the code section, and presented with no more authority, Plaintiff’s argument for attorney’s fees under § 1278.5 must fail. The statute reads “legal costs” and does not define it. There are no reported cases making “legal costs” into attorney fees. There are parallel protection statutes for whistleblowers, however some of those include attorney fees and some do not. Thus, there is no legislative intent, or demonstrable public policy, that attorney fees should always be awarded to a prevailing party.

 

Therefore, even if the Court were to consider that the Plaintiff’s prayer for attorney’s fees is being made under Health & Safety Code sec. 1278.5, the phrase from that section, “legal costs,” does not include attorney’s fees. There is no support for this argument, neither in the statute, nor in the case law, therefore this Court cannot read attorney’s fees into a phrase that does not contain it.

 

In light of the above ruling, Plaintiff’s motion to amend his pleadings is denied.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 

 

6. MOTION TO BIFURCATE

TENTATIVE RULING:

  

The motion to bifurcate trial on the issue of punitive damages is moot in light of the above ruling and the motion to bifurcate the trial of the claim under H&S Code section 1278.5 is DENIED without prejudice to either party’s bringing the motion before the judge who eventually is assigned for trial.

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 



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CIV530285     RENEE GLOVER CHANTLER VS. FARIN NAMDARAN YEGANEH

 

 

RENEE GLOVER CHANTLER                  RENEE GLOVER CHANTLER

RAMIN YEGANEH                          WILLIAM E. GILG

 

 

MOTION TO QUASH SUBPOENA TO ORANGE COAST TITLE company

TENTATIVE RULING:

 

Plaintiff Renee Glover Chantler’s Motion to Quash or Modify Subpoena to Orange Coast Title Company is GRANTED in its entirety.  As the subpoenaing party had done in the past, Mr. Yeganeh filed and served his Opposition to the motion to quash several days late, in violation of Code Civ. Proc. Sect. 1005(b).  The Court considers this failure to timely oppose the motion as a concession of its merits.   

 

Further, even when considering the Opposition and its supporting papers, the Court finds adequate grounds to quash subpoena.  Because the subpoena seeks personal financial documents pertaining to Plaintiff Chantler and third parties (who incidentally were not served with a Notice to Consumer), which are protected by Constitutionally-based privacy rights, the normally liberal discovery rules do not apply. Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652; Harris v. Sup. Ct. (1992) 3 Cal.App.4th 661, 664-5.  The Court is required to balance these privacy rights against the need for the discovery.  Id.  In this case, Mr. Yeganeh has the burden of making a threshold showing the evidence sought is “directly relevant” to a claim or defense.  Id.  He has not met this burden.  Yeganeh argues he needs “all escrow files” involving Plaintiff Chantler in order to defend himself in contempt proceedings alleging he violated two preliminary injunctions barring him from attempting to transfer title to, or otherwise encumber, the properties his parents recently conveyed to Chantler and DLA Piper.  Specifically, he argues the Orange Coast documents are relevant because if he can show Chantler was able to transfer these properties to others “without difficulty,” it will help him prove he “could not have transferred any interest in these properties” in 2016.  This relevance argument is hard to grasp, and is questionable at best.  Further, Mr. Yeganeh’s claimed purpose in seeking these documents appears pretextual.  See Gilg Decl. in Opp. to Mot. to Quash, Ex. A (5-25-17 meet and confer letter, stating to Plaintiff Chantler: “We know that you have sold at least 22 of the 47 properties at a fraction of their market value.”).  The requested escrow file for the Deerfield Terrace property is not even mentioned in the contempt motion.  As to the other properties, whether or not Chantler was able to sell them to third parties in late 2016 and 2017 has no bearing on whether Mr. Yeganeh attempted to convey or otherwise encumber any of those properties in 2016, in violation of the Court’s injunction(s).  To the extent the subpoenaed Orange Coast escrow files have any relevance to the contempt proceedings at all, Mr. Yeganeh has not met his burden of showing direct relevance, or that the “need” outweighs privacy concerns.    

 

Mr. Yeganeh’s purported need for the documents is also undermined by his contention that “[t]he only effect of the [subpoena] will be to confirm matters of public record.” Opp. at 9:7-8.  If that is true, the subpoena is unnecessary, and by admission, far less intrusive means of obtaining the information exists. 

 

Plaintiff Chantler’s Request for Judicial Notice of the Court’s April 4, 2017 Minute Order is GRANTED.  Evid. Code Sect. 452(d).

 

Defendant Ramin Yeganeh’s Request for Judicial Notice is DENIED on grounds the documents at issue are not attached to the Request.   

 

Plaintiff Chantler’s Objections to the Decl. of William Gilg are ruled upon as follows:

 

  • No. 1 (entire Decl.).  OVERRULED.
  • No. 2 (p. 1:25-2:1).  OVERRULED. 
  • No. 3 (p. 2:9.5).  SUSTAINED.  Lacks foundation.  Evid. Code Sect. 402, 403, 814. 
  • No. 4 (p. 2:11-2).  SUSTAINED.   Lacks foundation; competency; improper opinion.  Evid. Code Sect. 402, 403, 310(a).
  • No. 5 (p. 2:12-13).  OVERRULED. 
  • No. 6 (p. 2:14.5-15.5).  SUSTAINED.  Lacks foundation; competency; improper opinion.  Evid. Code Sect. 402, 403, 813.
  • No. 7 (p. 3:24-25.5).  SUSTAINED.  Lacks foundation.  Evid. Code Sect. 402, 403.
  • No. 8 (p. 3:26.6-p. 4:7).  SUSTAINED.  Lacks foundation.  Evid. Code Sect. 402, 403.
  • No. 9-11 (p. 4:2).  SUSTAINED.  Lacks foundation.  Evid. Code Sect. 402, 403.
  • No. 12 (Ex. A).  OVERRULED. 

 

Plaintiff Chantler’s request for sanctions is DENIED.  She argues Mr. Yeganeh issued the subpoena and opposed this motion in bad faith without a legitimate basis, and intentionally served the subpoena while Chantler was known to be unavailable.  In its discretion, the Court declines to issue sanctions in this instance.  

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 



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CIV537546     MARIE HATCH VS. DAVID KANTZ

 

 

MARIE HATCH                            NANCY L. FINEMAN

DAVID KANTZ                            MICHAEL D. LIBERTY

KEVIN FAGAN (NON-PARTY)                THOMAS BURKE

 

MOTION TO QUASH NON-PARTY DEPOSITION SUBPOENE

TENTATIVE RULING:

 

The Motion of Non-Party Journalist Kevin Fagan (“Fagan”) to Quash Deposition Subpoena of Defendant David Kantz (“Defendant”) is GRANTED IN PART as to the documents requested in the Amended Deposition Subpoena, but DENIED as to the deposition.

 

Fagan has not established that the California shield law applies such that Defendant’s deposition subpoena must be quashed.  The shield law provides that a newsperson “shall not be adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed ... or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.”  (Cal. Const., Art. 1, §2(b).)  In a civil action, the shield law provides an absolute immunity, not a qualified immunity, and protects against disclosure of unpublished information that was not obtained by a newsperson in confidence.  (See New York Times Co. v. Sup. Ct. (1990) 51 Cal.3d 453, 461-462.) The shield law only provides immunity from contempt though, and is not a privilege.  (Id. at 462.)  A privilege would prohibit all sanctions, not just contempt.  (Id.)  Thus, a newsperson is shielded only from contempt and not other sanctions, even though contempt is generally the only effective remedy against a nonparty newsperson witness.  (Id. at 463.)  Accordingly, the shield law does not preclude Kantz from taking Fagan’s deposition and requesting documents, even if the documents are ultimately protected from disclosure by the shield law in a contempt proceeding.

 

Fagan also asserts though, that the First Amendment provides an independent qualified privilege that precludes Defendant from taking his deposition and producing the requested documents.  Based on the First Amendment, a qualified privilege exists for journalists against compelled disclosure of information gather in the course of their work.  (Shoen v. Shoen (9th Cir. 1995) 48 F.3d 412, 416 (Shoen II), citing Shoen v. Shoen (9th Cir. 1993) 5 F.3d 1289, 1292 (Shoen I).)  Such protection includes nonconfidential sources and materials.  (Shoen I, supra at 1293.)  “[W]here information sought is not confidential, a civil litigant is entitled to requested discovery notwithstanding a valid assertion of the journalist’s privilege by a nonparty only upon a showing that the requested material is: (1) unavailable despite exhaustion of all reasonable alternative sources, (2) noncumulative, and (3) clearly relevant to an important issue in the case.”  (Shoen II, supra at 416.)

 

The court cannot determine at this point whether the First Amendment privilege would apply to all of the questions asked at Fagan’s deposition, and on that basis, denies Fagan’s motion to quash his deposition.  For example, questions about the purported conversation between Fagan and Kantz as represented in the news article appears beyond the First Amendment Privilege yet other areas of inquiry surrounding the 53 requests for documents appear to fall within that privilege.   This does not preclude Fagan from asserting the First Amendment privilege in response to any deposition question.

 

As to the document requests though, the 53 requests seek information gathered in the course of Fagan’s work, and a qualified privilege exists with respect to these documents under the First Amendment.  The burden is therefore on Kantz to establish that he is still entitled to the requested documents.  (See Shoen II, supra at 416.)  Kantz fails to meet that burden as to each individual requests.  Accordingly, the motion is granted as to the document requests.  The request for documents is QUASHED.

 

Fagan is to appear for deposition at a date and time mutually agreed to by the parties within 30 days of the order. 

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 



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CIV538897     DBP INVESTMENTS VS. KING PLAZA CENTER, llc

 

 

DBP INVESTMENTS                        STEVEN B. PISER

KING PLAZA CENTER, LLC                 JAMES M. BARRETT

 

 

MOTION TO COMPEL FURTHER response to interrogatory #5 and for sanctions

TENTATIVE RULING:

 

Plaintiff’s Motion to Compel Further Response to Special Interrogatory 5 is GRANTED.  Responding party’s objection to the interrogatory lacks merit and its response is not code complaint.  CCP §2030.220(b) states that if the responding party does not have personal knowledge sufficient to respond fully, that party shall so state but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.

 

To the extent KPC has responded to the interrogatory despite its objection, its response is not code compliant.  The interrogatory 5 asks whether KPC contends that the ordinance does not apply to Manila Market’s use of the parking lot.  Its answer essentially indicates that it lacks the information necessary to respond.  This contention has merit as the ordinance states that property owners shall comply with and enforce a Parking Management Plan approved by the City which shall be an appendix to and recorded as part of the Shopping Center CC&R’s.  Consequently, the existence of an approved, recorded plan appears to be condition precedent to enforcement. 

 

However, CCP §2030.220(b) imposes an obligation on KPC to make a reasonable effort to obtain the information necessary to respond.  There is no indication that it has made any attempt to determine whether a plan was ever approved and recorded.  At best it argues that the ordinance was enacted 19 years ago and it has no way of independently confirming whether DBP did the necessary things.  There is no indication that it has made any effort to obtain the necessary information.  While it argues that the information is exclusively in the control of DBP, a recorded document would be a matter of public record.  Moreover, even if the information necessary for KPC to determine its position is within DBP’s control, the interrogatory seeks KPC’s contention.  That information is not within DBP’s control. 

 

Moreover, KPC indicates a belief that there is no approved plan as it states that the only one produced in discovery predates the ordinance.  This suggests that KPC does contend, based on the lack of evidence of an approved plan, that the ordinance does not apply to Manila’s use of the parking lot.  If so, it can respond to the interrogatory.

 

Responding party shall serve a further response on or before July 17, 2017. 

 

The request for sanctions is denied. 

 

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

 


 

 

 

 

 


POSTED:  3:00 PM

 

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