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SUPERIOR COURT, STATE OF CALIFORNIACOUNTY OF SANTA CLARA

Department 9, Honorable Mary E. ArandCatherine Pham, Courtroom Clerk

191 North First Street, San Jose, CA 95113

To contest the ruling, call (408) 808-6856 before 4:00 P.M.

LAW AND MOTION TENTATIVE RULINGSAMENDED

DATE: January 23, 2020 TIME: 9:00 A.M.PREVAILING PARTY SHALL PREPARE THE ORDER OR AS STATED

OTHERWISE BELOW. (SEE RULE OF COURT 3.1312 – PROPOSED ORDER MUST BE E-FILED BY

COUNSEL AND SUBMITTED PER 3.1312(C))

EFFECTIVE JULY 24, 2017, THE COURT WILL NO LONGER PROVIDE OFFICIAL COURT REPORTERS FOR CIVIL TRIALS OR LAW AND MOTION

HEARINGS. SEE COURT WEBSITE FOR POLICY AND FORMS.

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LINE # CASE # CASE TITLE RULINGLINE 1 19CV340879 Shauna Gutierrez et al vs

Regional Medical Center of San Jose et al

Ctrl/click on line 1 for Tentative Ruling

LINE 2 19CV340879 Shauna Gutierrez et al vs Regional Medical Center of San Jose et al

See line 1

LINE 3 19CV352764 Richard Daly et al vs Victor Garcia et al


LINE 4 17CV315411 John Park vs Peter Lunardi et al


LINE 5 17CV315411 John Park vs Peter Lunardi et al

See line 4

LINE 6 18CV333083 Minoo Sadri vs Shahriar Vaziritabar et al



See Line 6


See Line 6

http://www.courtinfo.ca.gov/rules/index.cfm?title=three&linkid=rule3_1312

SUPERIOR COURT, STATE OF CALIFORNIACOUNTY OF SANTA CLARA

Department 9, Honorable Mary E. ArandCatherine Pham, Courtroom Clerk

191 North First Street, San Jose, CA 95113

To contest the ruling, call (408) 808-6856 before 4:00 P.M.

LAW AND MOTION TENTATIVE RULINGSAMENDED

LINE # CASE # CASE TITLE RULINGLINE 9 18CV329214 Remedios Domondon et al

vs Fely Mabutas et alAppearance required.

LINE 10 18CV333764 James West vs Alma Place Associates, L.P et al


LINE 11 19CV351140 Luigi Cevola v Emad Saidawi

Motion to remove Mechanic’s Lien is DENIED.

LINE 12 2015-1-CV-288148 Linda Buckel et al vs Ravi Dronamraju et al

Hearing continued from January 9, 2019. Ctrl/click on line 12 for Tentative Ruling

LINE 13 2015-1-CV-280309 Unifund CCR, LLC vs V. Esquer

Appearance required on motion to transfer venue. The First Amended Complaint has not been served, the action was filed on May 7, 2015 (four and a half years ago), and the complaint has not been served. Accordingly, the 3 year mandatory time period to serve the complaint has expired, mandating that the complaint be dismissed. (Code of Civ. Proc., §583.210; 583.250.)

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Case Name: Shauna Renee Gutierrez, et al. v. Regional Medical Center of San Jose, et al.Case No.: 19CV340879

I. Background

This action arises from the alleged mishandling of human remains. According to the allegations in the first amended complaint (“FAC”), Steven Ruben Gutierrez, Jr. (“Decedent”) passed away on January 16, 2018, at Regional Medical Center of San Jose (“Hospital”). Decedent’s remains were mishandled and mutilated in the days after his death such that his family could not hold an open-casket ceremony and had to cremate his remains. And so, this action was commenced by Decedent’s surviving family members (collectively, “Plaintiffs”), namely: (1) Monica Renee Ruiz (his girlfriend and mother of his children); (2) Shauna Renee Gutierrez (Decedent’s child with Ms. Ruiz); (3) Steve Ruben Gutierrez, III (Decedent’s child with Ms. Ruiz); and (4) Raymond Ruiz (Ms. Ruiz’s brother).1 Plaintiffs assert causes of action against Hospital, providers of medical care2, and Martinez Family Funeral Home for: (1) negligence; (2) fraud; and (3) intentional infliction of emotional distress. Plaintiffs seek compensatory and punitive damages. Currently before the Court is Hospital’s demurrer and motion to strike.

II. Demurrer

Hospital demurs on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subds. (e)–(f).)

A. Uncertainty

Hospital demurs to the second and third causes of action on the ground of uncertainty.

A demurrer on the ground of uncertainty tests whether a pleading is ambiguous, uncertain, or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Reg. Authority (2012) 208 Cal.App.4th 1125, 1135; accord Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.) A demurrer on the ground of uncertainty “is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145–46.) “A demurrer for uncertainty should be overruled when the facts as to which the complaint is uncertain are presumptively within the defendant’s knowledge.” (Chen, supra, 33 Cal.App.5th at p. 822.)

Hospital argues the second and third causes of action are uncertain because Plaintiffs lump the defendants together such that it is unclear what allegedly tortious conduct is attributable to each defendant, including Hospital. While it is true that Plaintiffs refer to the

1 Decedent’s son—Steven Ruben Gutierrez, III—is a minor who is represented by his mother, Ms. Ruiz, as guardian ad litem.2 Plaintiffs’ claims are also asserted against defendants Good Samaritan Health System, Good Sam Health System, and HCA Health Services of California, Inc. (formerly Doe 1).

defendants collectively and could better specify what tortious conduct they attribute to each, the Court is not persuaded the pleading is so ambiguous and uncertain that Hospital cannot reasonably respond. (See, e.g., Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Plaintiffs allege Decedent passed away at Hospital’s facility and the timeframe in which the remains were allegedly mishandled. These allegations along with Hospital’s presumptive knowledge about its own procedures for handling a patient’s remains and collaborating with a mortuary or funeral home thereafter reflect that the pleading is not impermissibly ambiguous and uncertain. To be sure, Hospital does not cite and the Court is not aware of any authority supporting a contrary conclusion. Consequently, Hospital’s demurrer on the ground of uncertainty to the second and third causes of action is OVERRULED.

B. Failure to State Sufficient Facts

Hospital demurs to the first, second, and third causes of action on the ground of failure to state facts sufficient to constitute a cause of action.

In general, “a complaint must contain ‘[a] statement of the facts constituting the cause of action, in ordinary and concise language.’” (Davaloo v. State Farm Insurance Co. (2005) 135 Cal.App.4th 409, 415, quoting Code Civ. Proc., § 425.10, subd. (a)(1).) “This fact-pleading requirement obligates the plaintiff to allege ultimate facts that as a whole apprise[ ] the adversary of the factual basis of the claim.” (Davaloo, supra, 135 Cal.App.4th at p. 415 [internal quotation marks and citations omitted].) A plaintiff is not ordinarily required to allege “‘each evidentiary fact that might eventually form part of the plaintiff’s proof….’ [Citation.]” (Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341.)

1. First Cause of Action

Hospital argues Ms. Ruiz and her brother lack standing to assert a negligence claim based on the mishandling of remains because they do not qualify as close family members. Hospital asserts that only individuals with the right to control the disposition of remains may assert claims based on the mishandling of those remains. In advancing this argument, Hospital seems to suggest that an unmarried partner, like Ms. Ruiz, do not have the same rights as a spouse irrespective of the duration and familial or marital character of the relationship.

As a threshold matter, Hospital inaptly frames its argument as an argument about the concept of standing. In California, “[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” (Code Civ. Proc., § 367.) Of course, Ms. Ruiz and her brother have the right to assert claims on their own behalf. They do not purport to vindicate rights belonging to someone else.3 And so, the issue is not truly whether they have standing. Rather, the issue is simply whether they suffered any injury and, thus, state any claim against Hospital.

Because Plaintiffs assert a negligence claim—and as reflected in a number of cases cited by Hospital—the real issue raised by the demurrer is whether Hospital owed Ms. Ruiz and her brother a legal duty. (See, e.g., Catsouras v. Dept. of Cal. Highway Patrol (2010) 181 3 To be clear, under Code of Civil Procedure section 372, subdivision (a), when a minor is a party to the action, the minor lacks capacity to proceed and must appear through a guardian ad litem. The guardian ad litem is not a party, but merely a representative of the real party in interest, namely the minor. (McClintock v. West (2013) 219 Cal.App.4th 540, 549.) Ms. Ruiz’s representation of her son, the real party in interest, does not pose a standing issue.

Cal.App.4th 856, 881–82.) At this juncture, Hospital does not provide sufficient analysis of applicable legal principles and misapplies existing precedent such that it fails establish it did not owe Ms. Ruiz and her brother a duty of care.

In the foundational case of Christensen v. Superior Court (1991) 54 Cal.3d 868, the California Supreme Court held that the class of persons who may recover for emotional distress negligently caused by the mishandling or mutilation of human remains was not limited to individuals with a statutory right to control the disposition of the remains (Health & Saf. Code, § 7100) or those who contract with a mortuary or funeral home. Instead, the Court in Christensen focused on the foreseeability of harm and a number of the Rowland factors4 to conclude that a legal duty was owed to “close family members who were aware that funeral and/or crematory services were being performed, and on whose behalf or for whose benefit the services were rendered.” (Christensen, supra, 54 Cal.3d at p. 875, 885–86, 894–98; see also Quesada v. Oak Hill Improvement Co. (1989) 213 Cal.App.3d 596, 605–610.) Despite acknowledging this precedent, Hospital ultimately argues that Ms. Ruiz and her brother cannot assert a negligence claim because they have no statutory right to control the disposition of remains under Health and Safety Code section 7100. Because Hospital’s argument rests on an inaccurate legal premise (notwithstanding its initially accurate summary of Christensen), its argument lacks merit. Hospital does not otherwise analyze the Rowland factors as necessary to establish no duty was owed based on the applicable standard. Also, Hospital does not explain and it is not otherwise apparent how Christensen—a case that still stands—is distinguishable in a meaningful and legally-significant way. (Compare Catsouras, supra, 181 Cal.App.4th at pp. 881–84; Saari v. Jongordon Corp. (1992) 5 Cal.App.4th 797 [companion of decedent] with Aguirre-Alvarez v. Regents of the University of Cal. (1998) 67 Cal.App.4th 1058, 1066; Melican v. Regents of the University of Cal. (2007) 151 Cal.App.4th 168, 177–180.) Finally, it is not necessarily obvious that Hospital’s narrow definition of family is correct under these particular circumstances in light of the approach the California Supreme Court has taken when evaluating other rights of unmarried individuals in relationships of a marital or familial character. (See, e.g., Marvin v. Marvin (1976) 18 Cal.3d 660.)

For all of these reasons, Hospital does not substantiate its argument that Ms. Ruiz and her brother Raymond Ruiz cannot assert a negligence claim against it. Hospital’s demurrer to the first cause of action as asserted by Ms. Ruiz and her brother is, therefore, OVERRULED.

2. Second Cause of Action

Hospital argues the second cause of action for fraud is not properly pleaded.

The essential elements of a fraud claim are: “(1) the defendant made a false representation as to a past or existing material fact; (2) the defendant knew the representation was false at the time it was made; (3) in making the representation, the defendant intended to deceive the plaintiff; (4) the plaintiff justifiably relied on the representation; and (5) the plaintiff suffered resulting damages.”5 (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792, citing Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 638.) A plaintiff must 4 The Rowland factors are those factors derived from Rowland v. Christian (1968) 69 Cal. 2d 108.5 A “false promise is actionable on the theory that a promise implies an intention to perform, that intention to perform or not to perform is a state of mind, and that misrepresentation of such a state of mind is a misrepresentation of fact.” (Tarmann v. State Farm Mutual Auto. Insurance Co. (1991) 2 Cal.App.4th 153, 158–59.) “The allegation of a promise (which implies a representation of intention to perform) is the equivalent of the ordinary allegation of a representation of fact.” (Id. at p. 159.)

plead these elements with specificity. (Lazar, supra, 12 Cal.4th at pp. 644–45.) “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, supra, 214 Cal.App.4th at p. 793.)

Hospital argues Plaintiffs fail to allege all of the essential elements of their fraud claim with specificity. The Court agrees. Plaintiffs’ claim rests on a general allegation that they were led to believe Decedent’s remains would be properly preserved and able to be viewed at an open-casket ceremony. This is insufficient. Plaintiffs must allege the specific facts described above to state a viable claim.

Hospital also cites Civil Code section 3294 and asserts Plaintiffs do not adequately allege ratification by an officer, director, or managing agent. But Civil Code section 3294 sets the standard for pleading and proving entitlement to punitive damages, not the standard for stating a fraud claim. As Hospital otherwise appears to acknowledge, a demurrer is not the proper procedural vehicle for challenging the sufficiency of punitive damages allegations; such allegations may be tested by motion to strike. (Grieves v. Super. Ct. (1984) 157 Cal.App.3d 159, 163; see also Caliber Bodyworks, Inc. v. Super. Ct. (2005) 134 Cal.App.4th 365, 385, disapproved on another ground in ZB, N.A. v. Super. Ct. (2019) 8 Cal.5th 175, 196, fn. 8.) Thus, Hospital’s argument based on Civil Code section 3294 does not provide additional justification for sustaining the demurrer.

In conclusion, Hospital’s demurrer to the second cause of action is SUSTAINED with 20 days’ leave to amend after service of the signed order.

3. Third Cause of Action

Hospital argues Plaintiffs do not allege sufficient facts to state a claim for intentional infliction of emotional distress.

“The elements of the tort of intentional infliction of emotional distress are: 1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.... Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Christensen, supra, 54 Cal.3d at p. 903 [internal quotation marks and citations omitted].)

Here, Hospital seems to focus on whether Plaintiffs adequately allege it intentionally engaged in extreme and outrageous conduct directed at them. In presenting this argument, Hospital repeatedly italicizes the word “facts.” And so, the Court understands its argument to be that Plaintiffs do not plead facts with sufficient particularity or specificity to state a claim for intentional infliction of emotional distress. But Hospital does not: clearly articulate what degree of specificity it believes is required; cite authority establishing its proffered pleading standard is correct; and provide a fair and reasoned analysis of the facts pleaded to support its position. It is not the case that the pleading is devoid of facts. And, it is not self-evident that the facts alleged here are comparable to those deemed to be insufficient in Christensen. (See

Christensen, supra, 54 Cal.3d at pp. 903–906.) In the absence of a well-reasoned discussion, Hospital does not establish the facts pleaded are insufficient.

For these reasons, Hospital’s demurrer to the third cause of action is OVERRULED.

III. Motion to Strike

Hospital moves to strike Plaintiffs’ prayer for punitive damages and related allegations. It argues the claim for punitive damages is improper because Plaintiffs failed to seek leave to include the prayer in their complaint under Code of Civil Procedure section 425.13. Code of Civil Procedure section 425.13, subdivision (a) states: “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” When a plaintiff fails to seek leave to assert a claim for punitive damages under Section 425.13, the prayer and related allegations may be stricken. (Cryolife, Inc. v. Super. Ct. (2003) 110 Cal.App.4th 1145, 1150–51.) Here, although Hospital asserts Plaintiffs must comply with Section 425.13 because it is a healthcare provider within the meaning of the statute as a licensee under Health and Safety Code section 1200, it does not identify facts before the Court to establish the same. Nevertheless, the Court has no reason to doubt Hospital’s representation particularly because Plaintiffs filed no opposition to the motion to strike. In other words, although Plaintiffs opposed Hospital’s demurrer, they have not opposed the motion to strike such that they appear to concede it is meritorious. Accordingly, Hospital’s motion to strike is GRANTED. Plaintiffs must comply with Section 425.13 in the event they wish to seek punitive damages.

The Court will prepare the order.

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Lead Case Name: Richard Daly, et al. v. Victor Garcia, et al.Lead Case No.: 19CV352764Subsidiary Case: Michael Kee, et al. v. Victor Garcia, et al., Case No. 19CV353498

This consolidated action arises out of a multi-vehicle collision on Highway 101.6 Defendant Maria Isabel Andino allegedly entrusted her vehicle to defendant and driver Victor Garcia, who was intoxicated and under the influence of alcohol. When the heavy traffic ahead of Garcia and Andino came to a stop, Garcia failed to stop in time and rear-ended one or more cars in front of him, including cars with plaintiffs Richard and Shannon Daly as well as plaintiffs Michael Kee, Luis Moran, and Oscar Carcamo. Richard and Shannon Daly filed a complaint asserting claims for negligence and loss of consortium. Kee, Moran, and Carcamo (collectively, “Plaintiffs”) filed a complaint asserting a claim for negligence and seeking punitive damages in connection therewith. Currently before the Court is Garcia’s motion to strike Plaintiffs’ claim for punitive damages.7

A party may move to strike out improper allegations in a pleading. (Code Civ. Proc., §§ 435, subd. (b)(1), 436.) If a claim for punitive damages is not properly pleaded, the claim and related allegations may be stricken. (See Grieves v. Super. Ct. (1984) 157 Cal.App.3d 159, 164.) In order to plead a claim for punitive damages, a plaintiff must allege the defendant was guilty of malice, oppression, or fraud and the ultimate facts underlying such allegations. (Civ. Code, § 3294, subd. (a); Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.) “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) Absent an allegation of intent to harm, a plaintiff must allege the defendant was aware of the probable dangerous consequences of his or her despicable conduct and willfully and deliberately failed to avoid those consequences. (Taylor v. Super. Ct. (1979) 24 Cal.3d 890, 895–96.) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) As relevant to the definitions of both malice and oppression, despicable conduct is defined as being “‘so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.’ [Citation.]” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.)

“In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint.” (Monge v. Super. Ct. (1986) 176 Cal.App.3d 503, 510.) “Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to [a defendant’s] conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (Ibid.)

6 Michael Kee, Luis Moran, and Oscar Carcamo initially commenced a separate action against Victor Garcia and Maria Isabel Andino. That action—Case No. 19CV353498—was originally proceeding in Department 19 but has since been consolidated with the lead action commenced by Richard and Shannon Daly and assigned to Department 9, namely Case No. 19CV352764.7 The Court notes for clarity that the motion to strike was filed prior to the consolidation of these actions and while Case No. 19CV353498 was still assigned to and proceeding in Department 19. The actions were consolidated thereafter.

Garcia takes the position that the allegations about drunk driving here are insufficient to rise to the level of malice or oppression necessary to properly plead entitlement to punitive damages. Garcia seeks to establish his position by attempting to analogize this action to cases in which punitive damages were not recoverable and to distinguish cases in which a claim for punitive damages arising out of intoxicated driving was allowed to proceed. Although there is nothing improper about this approach as a general matter, it is unavailing here. First, the cases Garcia attempts to analogize concern entirely distinct conduct—such as ski racing or battery by a physician—and many cases concern the sufficiency of evidence at later stages of litigation. (See, e.g., Lackner v. North (2006) 135 Cal.App.4th 1188 [claim for punitive damages arising from skier-snowboarder collision subject to summary adjudication].) Second, Garcia does not effectively and persuasively distinguish cases involving claims for punitive damages arising from intoxicated driving, such as Taylor v. Superior Court (1979) 24 Cal.3d 890 and Dawes v. Superior Court (1980) 111 Cal.App.3d 82.8 This is because Garcia does not fairly grapple with the facts pleaded in the complaint, which allegations closely resemble the facts at issue in Taylor and Dawes. Garcia’s analysis on this particular point consists of italicizing the word “facts” and then concluding without explanation that Plaintiffs’ allegations are too conclusory; he tacitly suggests but does not actually explain how Taylor and Dawes are distinguishable. This insufficient analysis is an adequate basis for refusing to accept his conclusion. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.) And, the Court also finds that the facts pleaded here are sufficient. (See, e.g., Peterson v. Super. Ct. (1982) 31 Cal.3d 147, 162–63.) Plaintiffs do not simply allege Garcia was driving under the influence. They allege many details about the circumstances of Garcia’s conduct, including his knowledge of the risks of his behavior, history of driving under the influence, the manner of his consumption of alcohol prior to the collision, and level of intoxication at the time. (Compl., ¶¶ 25–37.) Accordingly, Plaintiffs’ claim for punitive damages is adequately pleaded.

In consideration of the foregoing, Garcia’s motion to strike is DENIED.


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8 Garcia also cites a more recent case involving driving under the influence of methamphetamine, namely Sumpter v. Matteson (2008) 158 Cal.App.4th 928. Sumpter is not particularly helpful and, if anything, undercuts Garcia’s position. In Sumpter, the trial court allowed the claim for punitive damages to go to the jury and the appellate court held that, while the evidence in the record could conceivably support an award of punitive damages, the law did not require a direction to the jury mandating an award upon certain findings because it was up to the jury, in its discretion, to decide whether to award such damages. (Sumpter, supra, 158 Cal.App.4th at pp. 935–37.)

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Case Name: Park v. Lunardi, et al.Case No.: 17CV315411

This is an action for breach of contract. According to the allegations of the second amended complaint (“SAC”), since approximately 2008, plaintiff John Park (“Plaintiff” or “Park”), has owned and operated various gambling establishments or “cardrooms” in California. (See SAC, ¶ 19.) Garden City, Inc. dba Casino M8trix (“Garden City”) is a cardroom in San Jose. (See SAC, ¶¶ 1, 20.) Prior to June 9, 2017, defendant Eric Swallow (“Swallow”) owned a 50 % share in Garden City and defendants Peter Lunardi (“Peter”) and Jeanine Lunardi (“Jeanine”) (collectively, “the Lunardis”) owned the other 50%. (See SAC, ¶¶ 1, 20.) In 2014, the Bureau of Gambling Control (“Bureau”) began prosecuting an accusation against Garden City, Swallow and the Lunardis. (See SAC, ¶ 21.) The Bureau entered into stipulated settlement with Garden City and the Lunardis; however, it did not settle the accusation with Swallow. (Id.) Ultimately, the California Gambling Control Commission (“Commission”) revoked Swallow’s license to own Garden City, thereby requiring him to sell his shares in Garden City. (Id.)

In early 2015, Swallow and Park negotiated a sale of Swallow’s shares to Park for $55 million. (See SAC, ¶ 22.) Subsequently, in March 2015, the Lunardis sent their own offer to purchase Swallow’s share in Garden City for $29 million, an offer that Park refused. (See SAC, ¶ 23.) Thereafter, the Lunardis also attempted to exercise a purported right of first refusal pursuant to a separate July 17, 2008 buy-sell agreement that they had entered into with Swallow, which the Lunardis contended allowed them to match any offer to purchase Swallow’s shares. (See SAC, ¶¶ 3, 25.) However, the Lunardis’ attempt to exercise the purported right of first refusal and purchase was void because it was not approved by the Commission, and the Lunardis’ offer also failed to match the $55 million offer and did not specifically exclude Swallow’s retained distributions from the purchase price. (See SAC, ¶¶ 4, 27-32.) Swallow and the Lunardis then became parties to arbitration proceedings arising from the Lunardis’ attempt to exercise the purported right of first refusal, and Park attempted to intervene. (See SAC, ¶¶ 6, 32-33, 36.) In February 2017, after Park’s attempts to intervene in the arbitration proceedings were denied, Park brought this action for declaratory relief against Swallow and the Lunardis. (See SAC, ¶¶ 7, 37.) While this action was pending, the arbitrator determined that the Lunardis had the right to purchase Swallow’s shares pursuant to the Buy-Sell Agreement, but did not consider whether Park had the right to purchase Swallow’s shares, and is thus not bound by the decision. (See SAC, ¶¶ 8, 38.) Following the arbitrator’s decision, Swallow and the Lunardis entered into a new stock purchase agreement, under which Swallow agreed to sell his shares in Garden City to the Lunardis, and, on June 9, 2017, Swallow transferred his shares to the Lunardis. (See SAC, ¶¶ 9, 39-40.) On December 6, 2017, Park filed the SAC against Swallow and the Lunardis individually and as trustees of the Lunardi Family Living Trust (“Trust”), asserting causes of action for breach of contract (against Swallow), promissory estoppel (against Swallow) and intentional interference with contractual relations (against the Lunardis). On April 8, 2019, Peter died, leaving Jeanine as the sole trustee of the Trust. Jeanine was also appointed as Peter’s personal representative.

On November 4, 2019, the Lunardis filed a second amended cross-complaint (“SAXC”) against Park and Swallow, asserting causes of action for declaratory relief and intentional interference with contract.

Park moves for summary judgment of the Lunardis’ cross-complaint and for summary adjudication of the Lunardis’ twelfth and fourteenth affirmative defenses.

The Lunardis move for summary judgment on the SAC.

Defendants’ burden on summary judgment

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted; emphasis added.)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) “The moving party’s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to avoid unjustly depriving the plaintiff of a trial.’” (Id. at § 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion.) Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id. at ¶ 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

I. LUNARDIS’ MOTION FOR SUMMARY JUDGMENT

The sole cause of action alleged against the Lunardis by the SAC is for intentional interference with contract. “The elements of a cause of action for intentional interference with contractual relations are ‘(1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant’s knowledge of that contract; (3) the defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.’” (Redfearn v. Trader Joe’s Co. (2018) 20 Cal.App.5th 989, 997, quoting Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.) The Lunardis argue that: there is no valid contract between Plaintiff and Swallow because the contract expressly states that the non-exercise of the Lunardis’ right of first refusal was a condition precedent for that contract, or, if it is construed as a condition subsequent, the amended agreement was extinguished by the Lunardis’ exercise of that right of first refusal;

there was no breach of any contractual relationship because the Lunardis’ exercise of the right of first refusal excused Swallow from performance; the arbitration award is binding on Plaintiff even though he was not a party, and thus the intentional interference with contractual relations cause of action is barred; the Lunardis are not strangers to the amended agreement between Swallow and Park and thus, a tortious interference cause of action is barred; and, if Park has standing to relitigate the second arbitration award, the undisputed facts defeat his claim.

The Court did not consider the evidence filed in reply.

The Lunardis submitted evidence in connection with their reply brief. The Court did not consider this evidence. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (stating that evidence submitted with a reply is not generally allowed); see also San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 (stating that considering evidence in connection with a reply violated the opposing parties due process rights because the opposing party was “not informed what issues it was to meet in order to oppose the motion”).)

The arbitration award does not have collateral estoppel effect against Plaintiff

The Lunardis argue that Plaintiff is bound by the arbitration decision because res judicata is “conclusively determined as against the parties thereto or their privies in a subsequent lawsuit on a different cause of action” and Plaintiff is in privity with Swallow as to the arbitration. (See Lunardis’ memorandum of points and authorities in support of Lunardis’ motion for summary judgment (“Lunardis’ memo”), pp.18:11-27, 19:1-27, 20:1-2.) The Lunardis quote Vandenberg v. Super. Ct. (Centennial Ins. Co.) (1999) 21 Cal.4th 815, to support their position. However, the California Supreme Court specifically stated that “a particular danger of injustice arises when collateral estoppel is invoked by a nonparty to the prior litigation.” (Id. at p.829.) In fact, the Vandenberg court explicitly concluded that the collateral estoppel doctrine does not apply as to an arbitration award on a nonparty to that arbitration: “while the informal and imprecise nature of private arbitration, and its insulation from judicial interference, are ‘the very advantages the ... parties [seek] to achieve’ in arbitrating their own claims[citation], these same features can be serious, unexpected disadvantages if issues decided by the arbitrator are given leveraged effect in favor of strangers to the arbitration…. the public policy reasons against applying the collateral estoppel doctrine [citation] well outweigh those in favor of doing so…. Accordingly, we are compelled to conclude that a private arbitration award, even if judicially confirmed, can have no collateral estoppel effect in favor of third persons unless the arbitral parties agreed, in the particular case, that such a consequence should apply.” (Id. at pp.832-834.) When considering that Plaintiff was precluded from the arbitration, it is clear that this argument lacks merit. Summary judgment may not be granted in favor of the Lunardis on this basis.

The Lunardis fail to demonstrate that they are not strangers to the agreement between Plaintiff and Swallow

Citing Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, the Lunardis also argue that they are not strangers to the amended agreement between Plaintiff and Swallow, and thus cannot be liable for tortious interference with contractual relations. In Applied Equipment Corp., supra, the California Supreme Court stated that:

California recognizes a cause of action against noncontracting parties who interfere with the performance of a contract. “It has long been held that a stranger to a contract may be liable in tort for intentionally interfering with the performance of the contract.” [Citation.]

However, consistent with its underlying policy of protecting the expectations of contracting parties against frustration by outsiders who have no legitimate social or economic interest in the contractual relationship, the tort cause of action for interference with a contract does not lie against a party to the contract.

(Id. at pp.513-514.)

Here, the Lunardis are not parties to the agreement between Plaintiff and Swallow. Nevertheless, the Lunardis argue that “given the RoFR is an express condition to the enforceability of the Amended Park Agreement, to denote the Lunardis as strangers is contrary to logic and applicable law.” (Lunardis’ memo, p.22:2-4.) In support of their argument, the Lunardis cite to a federal case, Fresno Motors, LLC v. Mercedes Benz USA, LLC (9th Cir. 2014) 771 F.3d 1119; however, the Ninth Circuit explicitly stated that “[t]his court need not reach the issue... [of whether] Applied Equip. [was limited] to its specific holding that only parties to a contract are immune from claims of intentional interference with existing contractual relations.” (Id. at p.1127.) Indeed, Fresno Motors states that recent cases have limited “strangers” to non-parties. (Id. at pp.1126-1127, citing Woods v. Fox Broadcasting Sub., Inc. (2005) 129 Cal.App.4th 344, 353 (stating that “Applied Equipment did use the term ‘stranger to a contract,’ it did so interchangeably with the terms ‘noncontracting parties’ and ‘third parties’… we find it highly unlikely that Applied Equipment intended to hold, or should be construed as holding, that persons or entities with an ownership interest in a corporation are automatically immune from liability for interfering with their corporation’s contractual obligations”); see also Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013) 221 Cal. App.4th 867, 884 (stating that “[n]o published California case has disagreed with Woods or expanded the scope of Applied Equipment”).) The Lunardis fail to demonstrate that they are not strangers to the agreement between Plaintiff and Swallow.

A tortious interference with contract cause of action is separate from a breach of contract cause of action.

The Lunardis argue that “Mr. Park is attempting to invalidate or abrogate the Lunardis’ contractual rights in a collateral attack. It is well established that only parties, third party beneficiaries and assignees have standing to bring actions on a contract.” (Lunardis’ memo, p.17:17-23; id. at p.15:15-21 (stating that “Mr. Park has no standing to attack that contract as a non-party”).) However, this argument ignores that a tortious interference cause of action is a separate cause of action from a breach of contract cause of action.

As for the remainder of the arguments, there are triable issues of material fact.

The remainder of the arguments hinge on the propriety of the exercise of the right of first refusal. There are a number of reasons why the arbitrators made the conclusions that were

made, but, despite the volumes of evidence submitted by the Lunardis, many of these reasons are not advanced by the Lunardis and the supporting facts are neither detailed in the separate statement nor explained in the supporting memorandum. As stated in the Lunardis’ opposition (see the Lunardis’ opposition to Pl.’s motion for summary judgment, p.19:20-25, citing North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30), “when the ‘fact’ is not mentioned in the separate statement, it is irrelevant that such fact might be buried in the mound of paperwork filed with the court, because the statutory purposes are not furthered by unhighlighted facts.” (North Coast Business Park, supra, 17 Cal.App.4th at pp. 30-31 (also stating that “[w]e construe the statutory mandate for a separate statement as requiring a party to specify within that document any facts he deems to be disputed facts material to the issue presented… ‘if it is not set forth in the separate statement, it does not exist’”).) Regardless, even if the Lunardis submitted that evidence and elaborated its argument by providing proper citation to that evidence, there are triable issues of material fact as to whether such exercise was proper, as it is unclear whether the Lunardis’ exercise of their right of first refusal was timely or proper. (See evidence cited by Pl.’s separate statement of undisputed material facts, nos. 4-6, 10, 13, 18-21, 22-33, 37-47, additional material facts (“ADFs”) nos. 1-25.) The Lunardis’ motion for summary judgment is DENIED.

The Lunardis’ objections to Plaintiff’s evidence in opposition to the Lunardis’ motion are OVERRULED.

The Court did not rely on Plaintiffs’ objections for its ruling.

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Plaintiff moves for summary judgment of the second amended cross-complaint (“SAXC”), or, in the alternative, for summary adjudication of each cause of action of the SAXC, and for summary adjudication of the twelfth and fourteenth affirmative defenses.

The separate statement substantially complies with Rule of Court 3.1350, subdivision (b).

In opposition, the Lunardis first argue that the alternative motion for summary adjudication must be denied because the notice of motion and separate statement do not match because the notice lists four issues for summary adjudication which are not restated verbatim in the separate statement, as required by Rule of Court 3.1350, subdivision (b). Subdivision (b) states:

If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.

(Rule of Court 3.1350, subd. (b).)

Here, although the notice of motion states that “Park’s alternative request for summary adjudication is made as to the following two issues” (Pl.’s notice of motion, p.1:13-14, 2:3-5), it also states that “Park moves for summary adjudication on the Lunardis’ first cause of action for declaratory relief and second cause of action for intentional interference. In addition, Park moves for summary adjudication on the Lunardis’ twelfth affirmative defense and fourteenth affirmative defense.” (Pl.’s notice of motion, p.1:6-9.) Here, it is clear that Plaintiff moves for summary adjudication as to specific causes of action and affirmative defenses rather than issues of duty. The separate statement also reflects that it seeks summary adjudication of these causes of action and affirmative defenses. Plaintiff’s notice of motion and separate statement substantially comply with Rule of Court 3.1350, subdivision (b).

First cause of action of the SAXC for declaratory relief

The first cause of action of the SAXC alleges that “The Lunardis pray for a declaratory judgment that Mr. Park is bound by the 2016 Award and judgment thereon and that Mr. Park is bound by the 2017 Award and judgment thereon.” (SAXC, ¶ 29.) Here, the facts are primarily undisputed (see Lunardis’ separate statement in opposition to Pl.’s motion, undisputed material facts nos. 1-10), and the arguments are largely identical. (See Pl.’s memorandum of points and authorities in support of motion for summary judgment or adjudication, pp.10:21-28, 11:1-28, 12:1-28, 13:1-28, 14:1-6; see also Lunardis’ opposition to Pl.’s motion for summary judgment or adjudication, pp.11:23-26, 12:1-26, 13:1-27, 14:1-22, 15:1-23, 16:1-25, 17:1-24, 18:1-22, 19:1-18.) The Lunardis argue that because Judge Herlihy ruled in the arbitration that “Park will be adequately represented by Swallow,” Plaintiff is thus bound by the arbitration award through the application of collateral estoppel. For reasons already stated, the Lunardis are incorrect. (See Vandenberg v. Super. Ct. (Centennial Ins. Co.) (1999) 21 Cal.4th 815, 822-834.) Additionally, an arbitration award cannot have collateral estoppel effect on a nonparty to the arbitration because of a ruling made in that arbitration award; the Lunardis fail to demonstrate a triable issue of material fact as to privity.

Second cause of action of the SAXC for intentional interference with contractual relations

“On summary judgment motions, the pleadings always define the issues.” (Hejmadi v. Amfac, Inc. (1988) 202 Cal.App.3d 525, 536; see also Nieto v. Blue Shield of Cal. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74 (stating that “the pleadings determine the scope of relevant issues on a summary judgment motion”).) The second cause of action of the SAXC is for intentional interference with contractual relations and appears to be premised on: the first notice of the agreement was drafted by Park’s counsel and failed to disclose Park’s identity (see SAXC, ¶ 13); Park’s disruption of mediation through Park’s counsel’s attendance although they were not invited and there was no contractual agreement to mediate with Park (see SAXC, ¶ 14); Park’s statement at the mediation that he would sue Swallow if he sold his shares to the Lunardis (see SAXC, ¶ 14); Park’s filing of a motion to intervene in the first arbitration (see SAXC, ¶ 15); Park showing up to a second mediation session (see SAXC, ¶ 22); Park’s filing of a second motion to intervene in the second arbitration (see SAXC, ¶ 23); and, Park’s commencement of the instant action (see SAXC, ¶ 25).

Plaintiff argues that: the contract with which Park is alleged to have interfered was not legally valid; any evidence that Park intimidated Swallow at the mediation, disrupted the mediation, or filed motions at the arbitration are subject to mediation and litigation privileges;

the Lunardis cannot show a causal connection between Park’s conduct at the mediation and Swallow’s decision not to settle; and, the Lunardis cannot show a causal connection between the authorship of the April 2015 notices and Swallow’s initiation of the arbitrations.

As previously stated in the Lunardis’ motion, there is a triable issue as to the validity of the Lunardis’ exercise of the right of first refusal; thus, summary adjudication of the second cause of action of the SAXC will not be granted on this basis.

However, as Plaintiff argues, the mediation privilege applies to “not only parties but also the mediator and other nonparties attending the mediation.” (Eisendrath v. Super. Ct. (Rogers) (2003) 109 Cal.App.4th 351, 359; see also Travelers Casualty & Surety Co. v. Super. Ct. (Plaintiffs and Defendants in the Clergy Cases I) (2005) 126 Cal.App.4th 1131, 1146, fn.18 (stating that the mediation privilege applies to “not only parties but also ... nonparties attending the mediation”); see also Simmons v. Ghaderi (2008) 44 Cal.4th 570, 580-587 (concluding that there is no implied waiver of the mediation privilege, as waiver can occur “only upon [express] agreement of all participants, including not only parties but also the mediator and other nonparties attending the mediation”; also stating that “the Legislature intended to apply confidentiality broadly and to limit any exceptions to confidentiality to narrowly prescribed statutory exemptions”); see also Cassel v. Super. Ct. (Wasserman, Comden, Casselman & Pearson, L.L.P.) (2011) 51 Cal.4th 113, 131 (stating that waiver of the mediation privilege can occur “only upon agreement of all participants, including not only parties but also the mediator and other nonparties attending the mediation” (emphasis original); also stating that “no reason appears why other persons attending and assisting in the mediation on behalf of the disputants, such as their counsel, are not themselves distinct ‘participants’ who must agree to the disclosure of confidential mediation-related communications they made or received”).) Here, the alleged wrongful conduct by Park that is the subject of the interference cause of action are made by nonparty Park who is alleged to have attended the mediation. (See SAC, ¶ 14 (alleging that “the mediation was a failure since it was attended by Mr. Park’s counsel and his associate, Mr. Vasey”).)

In opposition, the Lunardis apparently concede that Park or his proxies attended the mediation. (See Lunardis’ opposition to Pl.’s motion, p.24:3-10 (arguing that “Mr. Park does not dispute that he attended or sent his proxies, nor does he claim the Lunardis agreed to mediate with him… Mr. Park’s unauthorized attendance at the mediation is akin to the reportable failure to attend mediation, which is not subject to the mediation privilege”), citing Campagnone v. Enjoyable Pools & Spas Service & Repairs, Inc. (2008) 163 Cal.App.4th 566, 572.)

However, whether characterized as authorized or unauthorized, as stated above, the mediation privilege extends to nonparties who attend the mediation. Campagnone, supra, cited by the Lunardis neither contradicts that nor stands for the proposition stated in its opposition; rather, the Campagnone court concluded that “the unauthorized failure of a party, the party’s attorney, or a representative of the party’s insurance carrier, to attend a court-ordered appellate mediation necessarily constitutes conduct that is an unreasonable violation of local rule 1(d)(9), warranting imposition of sanctions (local rule 1(g)).” (Id. at p.572.) The cited page by the Lunardis does not concern the mediation privilege whatsoever. The Lunardis also argue, without citation to any authority, that “[s]ince there was no agreement to mediate [between the Lunardis and Park], there could be no agreement to confidentiality.” (Id. at p.24:6-7.) However, Evidence Code section 1119 states that “[n]o evidence of anything said or any

admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible….” (Evid. Code § 1119, subd. (a).) Section 1119 does not require an agreement between a party to the mediation and a nonparty, and the Lunardis do not cite to any case to the contrary. Rather, the alleged conduct, made by an alleged nonparty attending a mediation, in the course of that mediation fall within the scope of the mediation privilege. Likewise, the filing of motions to intervene cannot form a basis for a cause of action as they are covered by the litigation privilege. (See Flatley v. Mauro (2006) 39 Cal.4th 299, 325 (stating that “[t]he privileges of Civil Code section 47… operate as limitations upon liability”); see also Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 5 (stating that “a communication is absolutely immune from any tort liability if it has ‘some relation’ to judicial proceedings”); see also Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 341-343 (concluding that cause of action for intentional infliction of emotional distress was barred by litigation privilege, stating that the argument “that the litigation privilege is inapplicable because she was never made a party to the arbitration proceeding… is untenable… [a]n exception to the litigation privilege for all suits brought by parties who were not involved in the underlying litigation would be antithetical to the privilege’s purpose”).) The Lunardis do not address the litigation privilege in their opposition. Here, it is clear that the alleged conduct by Park is within the scope of the mediation and/or litigation privileges and, in opposition, the Lunardis fail to demonstrate a triable issue of material fact as to such application of the privileges. It is unnecessary to address Plaintiff’s causation arguments.

As Park has met his burden to demonstrate that the causes of action against him lack merit, and, in opposition, the Lunardis fail to demonstrate the existence of a triable issue of material fact, the motion for summary judgment as to the SAXC is GRANTED.

Park’s objections to the Lunardis’ evidence in opposition are not the basis for the Court’s order.

Twelfth affirmative defense to the SAC

The Lunardis’ twelfth affirmative defense states that “[a]s a twelfth, separate and affirmative defense, Defendants assert that Park lacks standing to assert the claims alleged in the Complaint pursuant to Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 514.” As discussed in the Lunardis’ motion for summary judgment, Applied Equip. Corp. stated:

California recognizes a cause of action against noncontracting parties who interfere with the performance of a contract. “It has long been held that a stranger to a contract may be liable in tort for intentionally interfering with the performance of the contract.” (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.)

However, consistent with its underlying policy of protecting the expectations of contracting parties against frustration by outsiders who have no legitimate social or economic interest in the contractual relationship, the tort cause of

action for interference with a contract does not lie against a party to the contract. [Citations.]

(Applied Equipment Corp., supra, 7 Cal.4th at pp.513-514.)

As discussed above, the Lunardis are not parties to the agreement between Plaintiff and Swallow. In opposition, the Lunardis argue that “the contracts between Park and Swallow could not be performed without the Lunardis’ waiver of their RoFR rights and that removes them from the category of ‘strangers.’” (Lunardis’ opposition to Pl.’s motion for summary judgment or adjudication, pp.24:24-26, 25:1-21.) However, cases—including those from the Sixth District—have “conclude[d] that the ‘stranger to a contract language [citation]—which immediately follows the high court’s statement that noncontracting parties may be held liable for interference with a contract—is used as a synonym for ‘noncontracting party.’” (Popescu v. Apple Inc. (2016) 1 Cal.App.5th 39, 53; see also Woods, supra, 129 Cal.App.4th 344, 353 (stating that “[w]hen Applied Equipment did use the term ‘stranger to a contract,’ it did so interchangeably with the terms ‘noncontracting parties’ [citation] and ‘third parties’… we find it highly unlikely that Applied Equipment intended to hold, or should be construed as holding, that persons or entities with an ownership interest in a corporation are automatically immune from liability for interfering with their corporation’s contractual obligations”); see also Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013) 221 Cal. App.4th 867, 884 (stating that “[n]o published California case has disagreed with Woods or expanded the scope of Applied Equipment”).) Plaintiff demonstrates that he has standing for his intentional interference with contractual relations cause of action against the Lunardis as the Lunardis are not parties to the contract between Plaintiff and Swallow—in other words, they are strangers to that contract as defined by Applied Equipment, supra, as cited in the twelfth affirmative defense, and thus meets his initial burden to demonstrate that the twelfth affirmative defense lacks merit.

In opposition, the Lunardis argue that PM Group, Inc. v. Stewart (2007) 154 Cal.App.4th 55 supports their position. However, PM Group is factually distinguishable as “the cause of action failed as a matter of law, not because Stewart was not a ‘stranger’ to the contracts between the promoter and its subpromoters, but because his decision not to perform, without more, was not tortious.” (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 1001-1002, citing PM Group, supra, 154 Cal.App.4th at p.1148.) To the extent that the Lunardis are arguing that there is a split of authority, this Court must follow the Sixth District’s opinion. The Lunardis also argue that “[t]here is also the question of whether Mr. Park has standing to challenge the Lunardis’ performance of a judgment, which here, required them to purchase Swallow’s shares. (Lunardis’ opposition to Pl.’s motion for summary judgment or adjudication, p.25:21-25.) However, the Lunardis misunderstand the standing requirement for an intentional interference with contractual relations cause of action. As such, the Lunardis fail to demonstrate the existence of a triable issue of material fact as to the twelfth affirmative defense to the SAC and the motion for summary adjudication of the twelfth affirmative defense to the SAC is GRANTED.


Fourteenth affirmative defense to the SAC

The Lunardis’ fourteenth affirmative defense to the SAC states that “[a]s a fourteenth, separate and affirmative defense, Defendants assert that the claims asserted against them are barred by the doctrines of res judicata and/or collateral estoppel.”

For reasons already articulated above in Plaintiff’s motion for summary adjudication of

the first cause of action of the SAXC, Plaintiff has demonstrated that the fourteenth affirmative defense lacks merit as to the arbitration awards, and in opposition, the Lunardis fail to demonstrate a triable issue of material fact. Accordingly, Plaintiff’s motion for summary adjudication of the fourteenth affirmative defense is GRANTED to the extent that it may have any preclusive effect of evidence that are the subject of the arbitration awards.

However, as the Lunardis argue, Plaintiff’s separate statement fails to cite to any evidence regarding the Buck-Walsh Sonoma action or the Commission’s approval of the Lunardis’ purchase of Swallow’s shares. Plaintiff admits as such in his reply brief, stating that “[i]t is true that the separate statement does not include ‘facts’ in response to these identified allegations,” but instead contends that “[t]hat is because they are purely legal arguments, such as the scope of the rulings in Park’s cases against Tracey Buck-Walsh, the effect of the common interest doctrine, and whether a Commission decision is a final judgment on the merits (which it is not).” (Pl.’s reply brief in support of motion for summary judgment or adjudication, p.9:1-4.) However, as stated above, Plaintiff is required to cite to and present the evidence upon which he relies for his assertions. He has not done so in his separate statement, and as such, he fails to meet his initial burden as to the Buck-Walsh Sonoma action or the Commission’s approval. Accordingly, Plaintiff’s motion for summary adjudication of the fourteenth affirmative defense is DENIED to the extent it pertains to the Buck-Walsh Sonoma action or the Commission’s approval of the Lunardis’ purchase of Swallow’s shares.


The Court shall prepare the Order.

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Case Name: Minoo Sadri vs Shahriar Vaziritabar et alCase No.: 18CV333083

On calendar are Plaintiff’s motions to compel Defendant Shahriar Vaziritabar (“Defendant”) Damien Carter to serve responses to Form Interrogatories Set One (“FI”), to serve responses to Request for Production of Documents, Set One, to deem requests for admissions admitted, and for monetary sanctions. The motion was timely served, and is unopposed. No responses were served to these discovery requests.

Contrary to what Plaintiff claims in the moving parties, as to discovery motions “[t]he failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.” Rule of Court 3.1348(b).

Motion to Compel Responses to Form Interrogatories, Set One

Although the motion is unopposed, the Court finds that certain of the FIs are hopelessly vague in the context of what is essentially a contract dispute, are clearly intended for use in personal injury types of cases, appear intended to harass, and will not lead to the discovery of admissible evidence in the context of this case. As this case involves a series if loan transactions, the Court sees no relevance or reason to ask about whether the Defendant had consumed alcohol before the “incident”, or had any medical, emotional or mental disability, or if Defendant had ever had a workers compensation claim, when no personal injury is involved. The Court finds that it is likely impossible to provide an appropriate definition of “Incident” in a contract case alleging multiple transactions, and multiple causes of action. The Court finds that the use of “Incident” Form Interrogatories are not appropriate in the context of this case. (See California Practice Guide, Civil Procedure Before Trial, §8:933.8.) Accordingly, the motion to compel responses to the following FIs is DENIED: 2.3, 2.4, 2.11, 2.12, 2.13, 11.1, 11.2, 12.1., 12.2, 12.3, 14.1, and 14.2.

The motion to compel Defendant to serve verified responses to FIs1.1, 2.1, 2.2, 2.5, 2.6. 2.7, 2.8, 2.9, 2.10, 15.0, and 50.1 through 50.6 is GRANTED.

Defendant shall serve complete, code-compliant, verified responses to the referenced FIs without objections within 20 days of service of the signed order.

Motion to Compel Responses to Request for Production of Documents Set One

The motion to compel verified responses to request for production of documents was timely served, is unopposed and is GRANTED. Defendant shall serve complete, code-compliant, verified responses to Request for Production of Documents Set One, within 20 days of service of the signed order.

Motion to Deem Requests for Admissions Admitted

Plaintiff’s motion against Defendant for an order to deem Requests for Admissions, Set One, admitted, is unopposed and is GRANTED. The order shall be separately stated from the

other discovery orders, shall not include any attachments, and shall repeat the text of each request to be admitted.

Sanctions

For each very basic, and unopposed motion to compel where no responses were served to the discovery, Plaintiff seeks an identical amount of sanctions, $2,925, which in the moving papers included time to review oppositions to the motions and to prepare replies. In the amended reply, Plaintiff continues to seek the identical amount for each motion, including claimed time to review opposition and prepare replies, time which was not spent because no oppositions or substantive replies were filed. The Court finds Plaintiff’s attempt to obtain sanctions for time never spent to be inappropriate, and such time is DENIED.

The Court finds that sanctions in the total amount of $700 per motion is an amount reasonably and necessarily incurred for purposes of these three unopposed motions. Accordingly, the Court will require Defendant to pay to Plaintiff’s counsel the total sum of $2,100, as a combined amount for monetary sanctions for preparation of the three motions.

Moving party shall prepare the order.

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Case Name: James West vs Alma Place Associates, L.P et al.Case No.: 18CV333764

Plaintiff James West brought this Motion to File Documents Under Seal. The Motion originally came before the Court (Judge Peter Kirwan) on April 18, 2019 and the Court advised the moving party that the request to seal was overbroad and that Plaintiff failed to address the legal standards for sealing as to the specific documents referenced in the moving papers. The Court requested further briefing to identify exactly which documents met the standards for sealing pursuant to the California Rules of Court, Rule 2.550. The Court indicated that the documents submitted by the Plaintiff were to remain conditionally under seal, but that additional information was needed to support the current motion. The Court further indicated that Judge Yew’s Jan. 26, 2015 Order would be sealed as it met the requisite requirements for sealing. The matter was continued to June 30, 2019 for further hearing and at the subsequent request of Plaintiff, the matter was again continued to July 25, 2019. On that date, the Court gave Plaintiff one last opportunity to submit additional information in support of his motion to seal, and continued the hearing to August 29, 2019. Before that hearing, Plaintiff filed a 170.6 peremptory challenge, and the case was reassigned to Department 9. The Court continued the matter to November 14, 2019, and a deadline of October 31, 2019 to file supplemental pleadings was set. Plaintiff filed an ex parte application to continue the hearing because he had jury duty. The hearing has now been set on January 23, 2019.

Plaintiff has failed, despite multiple opportunities and a delay of over nine months from April 18, 2019 to today, to file any supplemental information to support his motion to seal.

A court has the authority to order that a record be filed under seal only if it expressly finds facts that establish:

1. there exists an overriding interest that overcomes the right of public access to the record; 2. the overriding interest supports sealing the record; 3. a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; 4. the proposed sealing is narrowly tailored; and 5. no less restrictive means exist to achieve the overriding interest.

(Cal. Rules of Court, Rule 2.550.)

The California Rules of Court do not define what constitutes an “overriding interest.” Instead, this has been left to case law. Different “[c]ourts have found that, under appropriate circumstances, various statutory privileges, trade secrets, and privacy interests, when properly asserted and not waived, may constitute overriding interests.” (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298, fn.3 (quoting Judicial Council advisory committee comment to [former] Rule 243.1) (affirming lower court order unsealing certain records over defendants’ objection that the materials contained proprietary trade secrets); see also NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1222, fn.46 (overriding interests found in various cases include: protection of minor victims of sex crimes from further trauma and embarrassment, privacy interests of a prospective juror during individual voir dire,

protection of witnesses from embarrassment or intimidation so extreme that it would traumatize them or render them unable to testify, protection of trade secrets, protection of information within the attorney-client privilege, and enforcement of binding contractual obligations not to disclose, safeguarding national security, ensuring the anonymity of juvenile offenders in juvenile court, ensuring the fair administration of justice, and preservation of confidential investigative information).)

A declaration supporting a motion to seal should be specific, not conclusory, as to the facts supporting the overriding interest. If the court finds that the supporting declarations are conclusory or otherwise unpersuasive, it may conclude that the moving party has failed to demonstrate an overriding interest that overcomes the right of public access. (In re Providian Credit Card Cases, supra, 96 Cal.App.4th at pp. 301, 305.)

Further, where some material within a document warrants sealing but other material does not, the document should be edited or redacted if possible, to accommodate the moving party’s overriding interest and the strong presumption in favor of public access. (Cal. Rules of Court, Rule 2.550, subd. (e)(1)(B); see In re Providian Credit Card Cases, supra, 96 Cal.App.4th at p. 309.) In such a case, the moving party should take a line-by-line approach to the information in the document, rather than framing the issue to the court on an all-or-nothing basis. (In re Providian Credit Card Cases, supra, 96 Cal.App.4th at p. 309.)

As noted above, the motion has been continued multiple times to allow Plaintiff to submit supplemental briefing or evidence to support the request for sealing that would address the legal standards for sealing as set forth above. Plaintiff has not submitted any further briefing or declaration as the Court allowed. Accordingly, the Court finds that except for Judge Yew’s Order of Jan. 26, 2015, which is ordered sealed by this Court, the motion to seal is otherwise DENIED.

The Court will prepare the Order.

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Case Name: Linda Buckel et al vs Ravi Dronamraju et alCase No.: 2015-1-CV-288148

On October 11, 2019, Plaintiff dismissed her complaint. Defendants also dismissed their cross-complaint. Despite the dismissal of her complaint, Plaintiff has refused to withdraw her lis pendens, and accordingly, Defendants have filed a motion to expunge.

This hearing has been continued several times, for service issues. The Court has now concluded that the motion was properly served, and is unopposed. As noted below, the motion has merit and is GRANTED.

A lis pendens is properly expunged without a bond if the court finds either: that Plaintiffs’ complaint does not contain a “real property claim” (i.e., one affecting title or possession of specific real property or use of an easement, etc.; CCP § 405.4; CCP § 405.31); or, the claimant “has not established by a preponderance of the evidence the probable validity of the real property claim.” (CCP § 405.32; BGJ Associates LLC v. Superior Court (1999) 75 Cal.App.4th 952, 972.)

The burden of proof on is on the lis pendens claimant: unlike most other motions, the burden of proof is on the party opposing the motion to expunge. The lis pendens claimants (Plaintiffs) bear the burden of establishing the existence of a “real property claim” and that it is “probably valid.” (CCP § 405.32.)

The allegations of the complaint determine whether a “real property claim” is involved; no independent evidence is required. (Urez Corp. v. Sup.Ct. (Keefer) (1987) 190 Cal.App.3d 1141, 1149.) A “real property claim” is any cause of action which, if meritorious, would affect the title to, or the right to possession of, specific real property.

In this instance, as the Complaint has been dismissed, there is no real property claim asserted in this case. As a result, the Court does not need to consider if any real property claim is valid.

Expungement of an improper lis pendens is mandatory, not discretionary. Thus, if the court finds the underlying claim is not a “real property claim” or that its “probable validity” has not been established “by a preponderance of the evidence,” it must order the lis pendens expunged. (CCP §§ 405.31, 405.32.) Here, there is no real property claim left in any complaint.

IT IS HEREBY ORDERED that the Lis Pendens described above be expunged. Defendants shall immediately submit a separate order in paper form appropriate for recording that only includes the order to expunge Lis Pendens without the legal analysis.

Pursuant to Code of Civil Procedure section 405.35, this Order shall not become effective and shall not be recorded until 20 days after service of written notice of this Order signed by the Court, or upon the final adjudication of any petition for writ of mandate timely filed pursuant to Code of Civil Procedure section 405.39.

Attorney fees are mandatory to a successful party on a motion to expunge lis pendens, unless the other party acted with substantial justification. The Court finds no legitimate rationale for refusing to withdraw a lis pendens after the Plaintiff has dismissed her complaint.

Defendants seek an award of attorney fees and costs of $3,310.00 to pursue the ex parte application to set the hearing date and to prepare the motion to expunge. The Court finds that the hourly rate charged was within the market rate, and the hours spent were reasonably and necessarily incurred. Accordingly, the Court will award to Defendants the sum of $3,310.00 in fees and costs.


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