1. law, govt and politics

SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 2, Honorable Patricia M. Lucas, Presiding
Naomi Matautia, Courtroom Clerk
Lisa Brown, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408. 882.2120
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW & MOTION TENTATIVE RULINGS
DATE: Tuesday, December 16, 2014 TIME: 9:00 A.M.
The prevailing party must prepare an order in compliance with Rule of Court 3.1312.
(SEE RULE OF COURT 3.1312)
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CASE #
CASE TITLE
RULING
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112CV223208 Kaiser v. Pixera Corp.
Order of examination: need proof of service
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112CV227748 Hoge, Fenton v. Tran
Off calendar
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112CV236916 A-L Financial v. Carballo Order of examination: need proof of service
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112CV237275 Carrillo v. OS Transport
Ctrl/click on Line 4 for tentative ruling
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114CV261926 Yee v. Bank of America
Ctrl/click on Line 5 for tentative ruling
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114CV265651 Barrie v. Intel Corp.
Ctrl/click on Line 6 for tentative ruling
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114CV268640 Jatco, Inc. v. Horton, et al Ctrl/click on Line 7 for tentative ruling
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114CV270264 Capital One Bk v. Moreno Off calendar
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112CV237529 Vaden v.Outfitter Ventures Reassigned to Dept. 5 and continued to
1/8/15
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113CV245098 Isherwood v. Specialized
Bicycle Components
Unopposed and granted
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113CV257686 Portfolio Recovery v.
Mendoza
Ctrl/click on Line 11 for tentative ruling
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112CV225926 SJPOA v. City of San Jose Ctrl/click on Line 12 for tentative ruling
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113CV247406 Kleidman v. Shah, et al
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114CV264065 Berg v. Metaview Whlsle Ctrl/click on Line 14 for tentative ruling
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114CV264333 Radonich Corp v.
Cupertino Electric, Inc.
Continued to 1/29/15
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114CV269958 Xian v. Ebay, Inc.
Ctrl/click on Line 16 for tentative ruling
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114CV270774 Levy v. Ross Stores
Unopposed and granted
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114CV272120 First Am. Title v. Sami
Off calendar
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113CV244165 FIA Card Svs. v. Mazor
Ctrl/click on Line 19 for tentative ruling
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112CV232456 My International Fund v.
Greentech Mining, Inc.
Off calendar
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114CV258827 Old Republic v. McNeil
Off calendar
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LINE 24
Ctrl/click on Line 13 for tentative ruling
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 2, Honorable Patricia M. Lucas, Presiding
Naomi Matautia, Courtroom Clerk
Lisa Brown, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408. 882.2120
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW & MOTION TENTATIVE RULINGS
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Case Name: Jose G. Carrillo v. OS Transport LLC, et al.
Case No.:
1-12-CV-237275
Motion by Defendant Oscar M. Sencion, Sr. to Strike Portions of the Fourth Amended
Complaint of Plaintiff Jose G. Carrillo Pursuant to Code of Civil Procedure §§435(b)(1) &
(2), 436(a) & (b), and 437(b), and Joinder Thereto
According to the allegations of the fourth amended complaint (“4AC”), defendants OS
Transport LLC, Oscar Sencion Sr. dba Sencion Trucking, HCA Management, Inc., and Hilda C.
Andrade (collectively, “Employer Defendants”) employed plaintiff Jose G. Carrillo beginning in
January 2002 and continuing until June 25, 2011. (4AC, ¶¶4 – 7 and 24.) The Employer
Defendants continued paying Carrillo as an independent contractor until June 2012. (4AC, ¶24.)
Carrillo alleges that he was required to work hours in excess of 8 hours per day and 40
hours per week but was not compensated with overtime pay as required by applicable wage
orders and provisions of the Labor Code. (4AC, ¶¶27 – 31.) Carrillo alleges that the Employer
Defendants failed to provide him with code-compliant itemized wage statements and failed to
provide him with the mandated meal and rest periods or appropriate compensation on lieu of
such breaks. (4AC, ¶¶32 – 38.) Carrillo further alleges the Employer Defendants misclassified
him as an independent contractor. (4AC, ¶¶39 – 40.) Defendant Charles Joseph Naegele,
attorney for the Employer Defendants, made false representations or omitted material facts in
advising Carrillo and other employees that it would be in their best interest to re-classify
themselves as independent contractors. (4AC, ¶41.) In reliance on Naegele’s advice, Carrillo
executed documents re-classifying himself as an independent contractor. (Id.)
Carrillo filed the original complaint against defendants on December 6, 2012.
On October 3, 2014, Carrillo filed the operative 4AC, asserting claims for:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Statutory Violations (Labor Code §§ 204, 226, 226.7, 510, 512, 1194; IWC Wage
Order No. 9, §§ 3, 11 and 12; and DLSE 45.2, 45.2.1, 45.2.2, 45.3, 45.3.2,
45.3.3);
Statutory Violations (Labor Code §§ 201 and 202)
Violation of Business & Professions Code § 17200
General Negligence
Fraud
Negligent Misrepresentation
Professional Negligence
On November 10, 2014, Sencion filed the motion now before the court: a motion to strike
portions of each cause of action based on the statute of limitations. On November 13, 2014,
defendants OS Transport, HCA, and Andrade filed a joinder to Sencion’s motion to strike.
Carrillo opposes.
DISCUSSION
I.
Sencion’s motion to strike is DENIED.
A.
Sencion’s request for judicial notice and the joinder request are GRANTED.
In support of his motion to strike, Sencion requests judicial notice of the original
complaint in this action filed on December 6, 2012. Evidence Code section 452, subdivision (d)
states that the court may take judicial notice of “[r]ecords of any court of this state.” This section
of the statute has been interpreted to mean that the trial court may take judicial notice of the
existence of the court’s own records. Evidence Code sections 452 and 453 permit the trial court
to “take judicial notice of the existence of judicial opinions and court documents, along with the
truth of the results reached—in the documents such as orders, statements of decision, and
judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in
decisions or court files, including pleadings, affidavits, testimony, or statements of fact.”
(People v. Woodell (1998) 17 Cal.4th 448, 455.)
Accordingly, Sencion’s request for judicial notice in support of motion to strike portions
of the third amended complaint is GRANTED. To the extent the request for judicial notice is
granted, the court takes judicial notice of the existence of the documents, not necessarily the
truth of any matters asserted therein. (See Evid. Code, §452, subd. (d); People v. Woodell (1998)
17 Cal.4th 448, 455.)
The joinder is not opposed and appears procedurally proper, and is therefore GRANTED.
B.
Legal standard
Under general rules of civil procedure, a motion to strike may be brought on the
following two grounds:
(a)
(b)
Strike out any irrelevant, false, or improper matter inserted in any pleading.
Strike out all or any part of any pleading not drawn or filed in conformity with the
laws of this state, a court rule, or an order of the court.
(Code Civ. Proc., §436.)
Irrelevant matter includes “immaterial allegations.” (Code Civ. Proc., §431.10, subd.
(c).) “An immaterial allegation in a pleading is any of the following: (1) An allegation that is not
essential to the statement of a claim or defense; (2) An allegation that is neither pertinent to nor
supported by an otherwise sufficient claim or defense; (3) A demand for judgment requesting
relief not supported by the allegations of the complaint or cross-complaint.” (Code Civ. Proc.,
§431.10, subd. (b).)
“As with demurrers, the grounds for a motion to strike must appear on the face of the
pleading under attack, or from matter which the court may judicially notice.” (Id. at ¶7:168, p. 764 citing Code Civ. Proc., §437.) “Thus, for example, defendant cannot base a motion to strike
the complaint on affidavits or declarations containing extrinsic evidence showing that the
allegations are ‘false’ or ‘sham.’ Such challenges lie only if these defects appear on the face of
the complaint, or from matters judicially noticeable.” (Id. at ¶7:169, p. 7-64.) “In passing on the
correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to the
motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v.
Superior Court (1998) 67 Cal.App.4th 1253, 1255 (Clauson).) “In ruling on a motion to strike,
courts do not read allegations in isolation.” (Clauson, supra, 67 Cal.App.4th at p. 1255.)
C.
Statute of Limitations
Throughout the 4AC, Carrillo alleges the applicable statutory period “is the time period
beginning four (4) years prior to the filing of this Complaint.” (See 4AC, ¶¶28 – 33, 35, 39, 40,
47.) These allegations are incorporated by reference into the first, second, and fourth causes of
action of the 4AC. (See 4AC, ¶¶45, 50, and 65.)
Sencion moves to strike these allegations on the basis that the applicable statute of
limitation for the first, second, and fourth causes of action is three years. “Actions for final
wages not paid as required by sections 201 and 202 are governed by Code of Civil Procedure
section 338, subdivision (a), which provides that a three-year statute of limitations applies to
‘[a]n action upon a liability created by statute, other than a penalty or forfeiture.’” (Pineda v.
Bank of America (2010) 50 Cal.4th 1389, 1395.)
In opposition, Carrillo cites to Cortez v. Purolator Air Filtration Products Co. (2000) 23
Cal.4th 163 (Cortez), where the court stated,
Section 17208 is clear. It provides that ‘[a]ny action to enforce any cause of
action under this chapter shall be commenced within four years after the cause of
action accrued.’ We recognize that any business act or practice that violates the
Labor Code through failure to pay wages is, by definition (§ 17200), an unfair
business practice. It follows that an action to recover wages that might be barred
if brought pursuant to Labor Code section 1194 still may be pursued as a UCL
action seeking restitution pursuant to section 17203 if the failure to pay
constitutes a business practice. Nonetheless, the language of section 17208
admits of no exceptions. Any action on any UCL cause of action is subject to the
four-year period of limitations created by that section. [Par.] When statutory
language is clear, judicial construction is neither necessary nor proper. We
therefore reject defendant’s claim that the shorter periods of limitation applicable
to contractual or statutory wage claims govern a UCL action based on failure to
pay wages.
(Cortez, supra, 23 Cal.4th at pp. 178- 179.)
Cortez does not change the statute of limitations for Labor Code violations but merely
indicates that the UCL provides another avenue for a plaintiff to recover unpaid wages where his
claim may be otherwise time-barred by the three-year statute of limitations applicable to Labor
Code violations. Sencion acknowledges a four year statute of limitations is applicable to the third
cause of action for violation of Business and Professions Code section 17200.
In opposition, Carrillo also points out that, in his prayer for judgment, he clearly delimits
his remedies “to the extent permissible within the applicable statutory period recoverable under
the state law.” Pursuant to Cortez, Carrillo is permitted to use the UCL as an alternative theory
to recover unpaid wages. Accordingly, the reference to a four-year statutory period throughout
the 4AC does not render it subject to a motion to strike.
D.
Penalties and Damages
Sencion also argues, apparently, that the third cause of action is subject to a motion to
strike insofar as it seeks Labor Code penalties or damages. However, the third cause of action
does not appear to seek Labor Code penalties or damages.
E.
Negligence
Finally, Sencion argues that the fourth cause of action entitled “Negligence” merely
reframes the same statutory violations asserted in the first and second causes of action so the
fourth cause of action is also subject to a three-year statute of limitations or even a one-year
statute of limitations to the extent the fourth cause of action is actually a claim for defamation.
Sencion interprets the fourth cause of action as possibly one for defamation because of the
allegation at paragraph 67, in relevant part, “Defendants’ actions … caused Plaintiff to incur
additional tax liability … as well as portraying Plaintiff in a bad character.”
Sencion’s notice of motion to strike does not specifically target the fourth cause of action,
but rather the earlier allegations which are incorporated by reference into the fourth cause of
action. As indicated above, Carrillo is permitted to use the UCL as an alternative theory to
recover unpaid wages. Accordingly, the reference to a four-year statutory period throughout the
4AC does not render it (or the fourth cause of action in particular) subject to a motion to strike.
CONCLUSION
Sencion’s request for judicial notice in support of motion to strike portions of the fourth
amended complaint is GRANTED. To the extent the request for judicial notice is granted, the
court takes judicial notice of the existence of the documents, not necessarily the truth of any
matters asserted therein. (See Evid. Code, §452, subd. (d); People v. Woodell (1998) 17 Cal.4th
448, 455.) The joinder request is GRANTED.
The motion to strike is DENIED.
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Case Name: Dolores Yee v. Bank of America, N.A., et al.
Case No.:
1-14-CV-261926
Demurrer of Defendants Bank of America, N.A., Specialized Loan Servicing LLC, and
Green Tree Servicing LLC to Plaintiff’s Third Amended Complaint
Plaintiff Dolores Yee (“Yee”) alleges she is the owner of real property located at 3339
Kuykendall Place (“Property”) in San Jose. (Third Amended Complaint (“TAC”), ¶¶1 and 33.)
Yee and her husband purchased the Property in 1986. (TAC, ¶34.) Yee refinanced the loan on
the Property in 2007. (Id.) Due to family medical expenses, Yee became delinquent in the
payment of her loan. (Id.) Plaintiff requested mortgage assistance from defendant Bank of
America, N.A. (“BANA”). (TAC, ¶35.) Over the course of two years, Yee submitted multiple
applications. (Id.) During this time, BANA employees represented and promised Yee that there
would be no foreclosure and that a reduced payment was being calculated. (Id.) BANA passed
off servicing of Yee’s loan to defendant Specialized Loan Servicing LLC (sued herein as SLS
Loan Servicing LLC; hereafter “Specialized”). (Id.)
In August 2012, Specialized informed Yee that it had no record or knowledge of any
pending loan modification. (TAC, ¶36.) Specialized employees instructed Yee to send a new
and updated Request for Mortgage Assistance (“RMA”). (Id.) In late 2013, Specialized
determined Yee qualified for mortgage assistance and represented that a modification agreement
would be delivered to her. (TAC, ¶37.) However, Specialized did not send Yee a modification
agreement and, instead, transferred her loan to a new servicer, defendant Green Tree Servicing
LLC (“Green Tree”). (Id.) Green Tree refused to acknowledge the modification approved by
Specialized or BANA. (Id.) Yee also alleges discrepancies in the amount alleged to be owed on
the loan and that defendants lack standing to foreclose. (TAC, ¶¶34, 38, and 39.)
Yee commenced this action by filing a complaint on March 11, 2014. Yee filed a first
amended complaint on May 9, 2014, and, on August 4, 2014, a second amended complaint.
Following a demurrer, Yee filed the operative TAC on October 24, 2014 which asserts causes of
action for:
(1)
(2)
(3)
(4)
(5)
Fraud and Deceit
Promissory Estoppel
Aiding and Abetting
Negligent Misrepresentation
Violation of Business and Professions Code Sections 17200 et seq.
On November 17, 2014, BANA, Specialized, and Green Tree filed the motion now
before the court: a demurrer to the TAC. Yee opposes.
DISCUSSION
Defendants’ request for judicial notice in support of demurrer to plaintiff’s third amended
complaint is GRANTED. “[A] court may take judicial notice of the fact of a document’s
recordation, the date the document was recorded and executed, the parties to the transaction
reflected in a recorded document, and the document’s legally operative language, assuming there
is no genuine dispute regarding the document’s authenticity. From this, the court may deduce
and rely upon the legal effect of the recorded document, when that effect is clear from its face.”
(Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265.)
The demurrer to the first and fourth causes of action on the ground that the pleading does
not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for
fraud and negligent misrepresentation, respectively, is SUSTAINED WITHOUT LEAVE TO
AMEND. “A plaintiff’s burden in asserting a claim against a corporate employer is even greater.
In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly
fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote,
and when it was said or written.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Yee has
not stated a claim for fraud / negligent misrepresentation with the requisite specificity.
The demurrer to the second cause of action on the ground that the pleading does not state
facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for
promissory estoppel is SUSTAINED WITHOUT LEAVE TO AMEND. “The required elements
for promissory estoppel in California are … (1) a promise clear and unambiguous in its terms;
(2) reliance by the party to whom the promise is made; (3) his reliance must be both reasonable
and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” (Laks
v. Coast Fed. Sav. & Loan Assn. (1976) 60 Cal.App.3d 885, 890; see also US Ecology, Inc. v.
State of California (2005) 129 Cal.App.4th 887, 901 (US Ecology),) “[P]romissory estoppel
claims are aimed solely at allowing recovery in equity where a contractual claim fails for a lack
of consideration, and in all other respects the claim is akin to one for breach of contract.” (US
Ecology, supra, 129 Cal.App.4th at p. 904; cf. Weddington Productions, Inc. v. Flick (1998) 60
Cal.App.4th 793, 811 – 812—“a contract is not specifically enforceable unless the terms are
‘sufficiently certain to make the precise act which is to be done clearly ascertainable.’”) Yee
fails to allege a promise clear and unambiguous in its terms.
The demurrer to the third cause of action on the ground that the pleading does not state
facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for aiding and
abetting is SUSTAINED WITHOUT LEAVE TO AMEND. “‘Liability may … be imposed on
one who aids and abets the commission of an intentional tort if the person (a) knows the other’s
conduct constitutes a breach of duty and gives substantial assistance or encouragement to the
other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result
and the person’s own conduct, separately considered, constitutes a breach of duty to the third
person.’ [Citation.]” (Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 574; see
also Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 879.) In light of the
court’s rulings that Yee has not sufficiently alleged causes of action for fraud or negligent
misrepresentation, she is unable to state a claim for aiding and abetting.
The demurrer to the fifth cause of action on the ground that the pleading does not state
facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for violation
of Business & Professions Code section 17200 et seq. is SUSTAINED WITHOUT LEAVE TO
AMEND. A claim for “relief under the unfair competition law (Bus. & Prof. Code, §17200 et
seq.) stand[s] or fall[s] depending on the fate of the antecedent substantive causes of action.”
(Krantz v. BT Visual Images, LLC (2001) 89 Cal.App.4th 164, 178.)
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Case Name: Matthew Barrie, et al. v. Intel Corporation, et al.
Case No.:
1-14-CV-265651
Motion by plaintiffs Matthew Barrie, Nathan Davis, Nicholas De Jong, David Harrison,
Alan Liddle, and Darren Williams for an Order Sealing the Unredacted Version of the
First Amended and Restated Complaint; Demurrer by defendant Intel Corporation to
Plaintiffs’ First Amended and Restated Complaint for Breach of Contract; Motion by
defendant Intel Corporation for an Order Sealing Exhibit 1 to the Declaration of Katherine
M. Turner and Portions of Pleadings Referencing Contents of Exhibit 1
I. Motion by plaintiffs Matthew Barrie, Nathan Davis, Nicholas De Jong, David Harrison,
Alan Liddle, and Darren Williams for an Order Sealing the Unredacted Version of the
First Amended and Restated Complaint
Plaintiffs’ request for judicial notice in support of motion to seal is GRANTED, in part,
and DENIED, in part. Plaintiffs’ request for judicial notice in support of motion to seal, exhibits
A – B, is GRANTED. (See Evid. Code, §452, subd. (d); see also People v. Woodell (1998) 17
Cal.4th 448, 455.) Plaintiffs’ request for judicial notice in support of motion to seal, exhibit C, is
DENIED. “We deny the request for judicial notice because the materials in question are either
irrelevant or unnecessary to our resolution of the issues.” (Coastside Fishing Club v. California
Fish & Game Com. (2013) 215 Cal.App.4th 397, 429.)
Plaintiffs oppose their own motion. The First Amended and Restated Complaint (FARC)
contains several quoted excerpts from the Agreement and Plan of Merger (APM), a document
which has already been the subject of a sealing order on September 19, 2014, based in part on the
September 8, 2014 Declaration of Li-Chung Anthony Lin.
Based on that Declaration and the September 19, 2014 Order, the court makes the
following findings with respect to the unredacted version of the FARC: 1) there exists an
overriding interest that overcomes the right of public access to the record; 2) the overriding
interest supports sealing the record; 2) 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. Accordingly, the motion for an
order sealing the unredacted version of the FARC is GRANTED. The clerk's office is directed to
seal the unredacted version of the FARC, filed on October 15, 2014. When Intel prepares a form
of order, it must list by page and line number the references to be redacted. Plaintiff has ten days
leave to file a redacted version of the FARC which removes the quotations from the APM.
II. Demurrer by defendant Intel Corporation to Plaintiffs’ First Amended and Restated
Complaint for Breach of Contract
Defendant Intel Corporation’s request for judicial notice in support of demurrer is
GRANTED. (See Evid. Code, §452, subd. (h); see also Align Technology, Inc. v. Tran (2009)
179 Cal.App.4th 949, 956, fn. 3; cf. Gould v. Maryland Sound Industries, Inc. (1995) 31
Cal.App.4th 1137, 1145.)
Intel argues first that Plaintiffs’ complaint is barred by Corporations Code section 1300 et
seq. which sets forth the exclusive remedy for dissenting shareholders to a merger. “The
Corporations Code provides that the holder of shares in certain types of corporations may require
the corporation to purchase his shares for fair market value if the corporation merges with
another, and the shareholder dissents from the merger.” (Steinberg v. Amplica, Inc. (1986) 42
Cal.3d 1198, 1201 (Steinberg).) Plaintiffs concede, at paragraph 38 of the FARC, that, “No
PLAINTIFF perfected dissenters rights.” Corporations Code section 1312, subdivision (a) goes
on to state:
No shareholder of a corporation who has a right under this chapter to demand
payment of cash for the shares held by the shareholder shall have any right at law
or in equity to attack the validity of the reorganization or short-form merger, or to
have the reorganization or short-form merger set aside or rescinded, except in an
action to test whether the number of shares required to authorize or approve the
reorganization have been legally voted in favor thereof; but any holder of shares
of a class whose terms and provisions specifically set forth the amount to be paid
in respect to them in the event of a reorganization or short-form merger is entitled
to payment in accordance with those terms and provisions or, if the principal
terms of the reorganization are approved pursuant to subdivision (b) of Section
1202, is entitled to payment in accordance with the terms and provisions of the
approved reorganization.
According to Intel, the FARC falls within the scope of section 1312’s bar against suits at
law or in equity because Plaintiffs seek “to attack the validity” of the APM. Intel contends that
its position is supported by the decision in Steinberg, supra, 42 Cal.3d 1198. In Steinberg,
Amplica, a privately held corporation, announced on October 9, 1981 that it would merge with a
wholly owned subsidiary of defendant Comsat, paying Amplica shareholders $13.50 per share.
Plaintiff had purchased 75 shares of Amplica on July 22, 1981 for $10 each. At the time of the
merger, plaintiff still held 50 shares of Amplica. Plaintiff expressed no opposition to the merger,
turned in his shares, and received $13.50 per share. In January 1982, plaintiff then filed a class
action on behalf of Amplica shareholders, alleging fraud and breach of fiduciary duty.
Specifically, plaintiff alleged that defendants failed to disclose in the public stock offering that
Amplica was in the process of seeking a merger partner. Plaintiff also alleged the officers and
directors obtained substantial financial benefits from the merger that class members did not. The
trial court overruled a demurrer, but granted summary judgment on the basis that appraisal under
the Corporations Code was plaintiff’s exclusive remedy. The appellate court and California
Supreme Court affirmed. In doing so, the California Supreme Court rejected the plaintiff’s
argument that section 1312, subdivision (a) “only proscribes an action to set aside or rescind” the
merger. “While the scope of the prohibition stated in the section is not clear, it must mean at the
very least that a minority shareholder may not seek damages which result from the fact that he no
longer has an interest in the merged corporation because a merger has been consummated.”
(Steinberg, supra, 42 Cal.3d at pp. 1205 – 1206.)
Intel acknowledges that there are no reported decisions which address the precise factual
scenario presented here. Section 1312, subdivision (a), goes on to state: “any holder of shares of
a class whose terms and provisions specifically set forth the amount to be paid in respect to them
in the event of a reorganization or short-form merger is entitled to payment in accordance with
those terms and provisions.” Here, as Plaintiffs point out in opposition, they do not seek “to
attack the validity” of the merger. On the contrary, Plaintiffs seek to enforce the terms of the
APM. More specifically, Plaintiffs assert that they are “entitled to payment in accordance with
those terms and provisions,” which section 1312, subdivision (a) specifically allows.
As a second basis for demurrer, Intel argues that Plaintiffs have not and cannot truthfully
allege their own performance or excuse from performance. “A complaint for the breach of
contract must include the following: (1) the existence of a contract, (2) plaintiff’s performance or
excuse for non-performance, (3) defendant’s breach, and (4) damages to plaintiff therefrom.”
(Acoustics, Inc. v. Trepte Construction Co. (1971) 14 Cal.App.3d 887, 913.) Plaintiffs’
performance is an element of a breach of contract claim. “The plaintiff cannot enforce the
defendant’s obligation unless the plaintiff has performed the conditions precedent imposed on
him. [Citation.] Accordingly, the allegation of performance is an essential part of his cause of
action. [Citation.]” (4 Witkin, California Procedure (4th ed. 1997) Pleading, §491, pp. 581 –
582.) See also Civil Code section 1439—“Before any party to an obligation can require another
party to perform any act under it, he must fulfill all conditions precedent thereto imposed upon
himself.”
At paragraph 42 of the FARC, Plaintiffs allege: “All conditions which Intel believes may
have been required to be fulfilled by the Plaintiffs to receive consideration due them under the
[APM] have been satisfied or waived.”
In demurring, Intel requests judicial notice of the APM to overcome the Plaintiffs’
allegation. “[A] demurrer may be sustained where judicially noticeable facts render the pleading
defective [citation], and allegations in the pleading may be disregarded if they are contrary to
facts judicially noticed. [Citation.]” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214
Cal.App.4th 743, 751 (Scott).) Intel relies on section 1.8, subsection (b) of the APM which
states, in relevant part: “Upon surrender of a Company Stock Certificate for cancellation to the
Payment Agent, together with the Letter of Transmittal, duly completed, not substantially
altered, and validly executed in accordance with the instructions thereto, (i) the holder of such
Company Stock Certificate shall be entitled to receive in exchange for each Share formerly
represented by such Company Stock Certificate an amount that such holder has the right to
receive therefore pursuant to the provisions of Section 1.6.” Based on this contract language,
Intel contends that the execution of the Letter of Transmittal (including the Release and
Uncapped Liability provisions) is a condition precedent to Plaintiffs’ receipt of the consideration.
“A condition is a fact, the happening or nonhappening of which creates (condition
precedent) or extinguishes (condition subsequent) a duty on the part of the promisor. If the
promisor makes an absolute or unconditional promise, he or she is bound to perform when the
time arrives; but if the promisor makes a conditional promise, he or she is bound to perform only
if the condition precedent occurs, or is relieved from the duty if the condition subsequent occurs.
The condition may be the happening of an event, or an act of a party.” (1 Witkin, Summary of
California Law (10th ed. 2010) Contracts, §776.)
In the FARC, Plaintiffs admit that they did not submit the Letter of Transmittal which
was “not substantially altered.” To the contrary, Plaintiffs allege, at paragraph 37: “All
PLAINTIFFS returned a document entitled ‘Replacement Letter of Transmittal’ striking out the
Release and Uncapped Liability provisions or refused to return their so called Letters of
Transmittal due to the additional terms.” (Emphasis added.) To plead around this allegation,
Plaintiffs allege that Intel waived the requirement that Plaintiffs return a complete, unaltered, and
executed Letter of Transmittal. At paragraph 29 of the FARC, Plaintiffs allege, “Prior to
Closing, Intel failed to enforce the rights it believed it had against the Plaintiffs to require them
to submit a Transaction Document labeled ‘Letter of Transmittal’ pursuant to Section 6.1(j) of
the [APM].” At paragraph 30 of the FARC, Plaintiffs allege, “By proceeding to Closing without
requiring Plaintiffs to submit the Transaction Document labeled ‘Letter of Transmittal,’ Intel
waived its right to enforce that requirement at a later date.”
Section 6.1 of the APM, however, does not establish an obligation upon Intel to provide
Plaintiffs with the consideration specified in section 1.6. Instead, section 6.1 of the APM states,
at its outset: “The obligations of Purchaser [Intel] and Merger Sub [15 Corporation] to
consummate the Closing are subject to the satisfaction or waiver of each of the following
conditions… (j) Each of the Company and the Sellers shall have executed and delivered to
Purchaser all Transaction Documents (including the Letter of Transmittal) to which it is a party.”
This language creates an obligation upon Intel to complete the closing of the merger; it does not
create an obligation upon Intel to pay Plaintiffs the consideration set forth in section 1.6 of the
APM.
Moreover, as Intel points out, section 9.13 of the APM specifies, “No failure or delay of a
party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such right or power, or any course of conduct, preclude any other or further
exercise thereof or the exercise of any right or power. … Any agreement on the part of any
party to any such waiver shall be valid only if set forth in a written instrument executed and
delivered by such party.” (Emphasis added.)
In opposition, Plaintiffs contend that Intel’s waiver of the Letter of Transmittal is further
demonstrated by the Merger Agreement’s omission of the requirement. However, Plaintiffs’
reliance on the Merger Agreement is unpersuasive. As the court noted in its prior ruling, the
Merger Agreement is the document filed with the California Secretary of State pursuant to
Corporations Code section 1103. That statute provides: “After approval of a merger by the board
and any approval of the outstanding shares (Section 152) required by Chapter 12 (commencing
with Section 1200), the surviving corporation shall file a copy of the agreement of merger with
an officers' certificate of each constituent corporation attached stating the total number of
outstanding shares of each class entitled to vote on the merger, that the principal terms of the
agreement in the form attached were approved by that corporation by a vote of a number of
shares of each class which equaled or exceeded the vote required, specifying each class entitled
to vote and the percentage vote required of each class, or that the merger agreement was entitled
to be and was approved by the board alone under the provisions of Section 1201. If equity
securities of a parent of a constituent corporation are to be issued in the merger, the officers'
certificate of that constituent corporation shall state either that no vote of the shareholders of the
parent was required or that the required vote was obtained. The merger and any amendment of
the articles of the surviving corporation contained in the merger agreement shall thereupon be
effective (subject to subdivision (c) of Section 110 and subject to the provisions of Section 1108)
and the several parties thereto shall be one corporation. The Secretary of State may certify a
copy of the merger agreement separate from the officers' certificates attached thereto.”
“The ‘agreement of merger’ is not necessarily the same merger agreement that is
executed by the parties and presented to the shareholders. To avoid public disclosure of the full
merger agreement, practitioners customarily file a separate agreement of merger containing only
the information required by Corps.C. §1101.” (Friedman, Fotenos & Rybka, CAL. PRAC.
GUIDE: CORPORATIONS (The Rutter Group 2014) ¶8:189.2, p. 8-58.) On its face, the Merger
Agreement is based “upon the terms and subject to the conditions set forth in the” APM.
Plaintiffs argue further in opposition that this court must accept its interpretation of the
contract terms. “If a contract set out in the complaint (or attached as an exhibit) is ambiguous,
plaintiff’s interpretation must be accepted as correct in testing the sufficiency of the complaint:
‘A general demurrer to the complaint admits not only the contents of the instrument but also any
pleaded meaning to which the instrument is reasonably susceptible.’” (Weil & Brown, CAL.
PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2014) ¶7:48.25, p. 7(I)-29
citing Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 239
(Aragon).) In Aragon, the court wrote, “Where an ambiguous contract is the basis of an action, it
is proper, if not essential, for a plaintiff to allege its own construction of the agreement. So long
as the pleading does not place a clearly erroneous construction upon the provisions of the
contract, in passing upon the sufficiency of the complaint, we must accept as correct plaintiff’s
allegations as to the meaning of the agreement.” (Aragon, supra, 231 Cal.App.3d at p. 239.)
“Where a complaint is based on a written contract which it sets out in full, a general demurrer to
the complaint admits not only the contents of the instrument but also any pleaded meaning to
which the instrument is reasonably susceptible. While plaintiff’s interpretation of the contract
ultimately may prove invalid, it was improper to resolve the issue against her solely on her own
pleading. In ruling on a demurrer, the likelihood that the pleader will be able to prove his
allegations is not the question.” (Id.; internal quotations removed.)
In view of the plain language of the APM, the language of section 6.1 is not reasonably
susceptible to the interpretation proffered by Plaintiffs. Plaintiffs also contend section 9.13 is, by
its own terms, inapplicable because Plaintiffs allege waiver based on Intel’s affirmative conduct,
i.e., proceeding to close on the merger, and section 9.13 applies only to omissions, i.e., “failure
or delay of a party in exercising any right or remedy hereunder.” However, Plaintiffs’ assertion
of waiver is based on an alleged omission, “Intel failed to enforce the rights it believed it had
against the Plaintiffs to require them to submit a … Letter of Transmittal.” (See FAC, ¶29.)
Plaintiffs’ assertion of waiver is not supported by the plain language of the APM of which this
court takes judicial notice.
Plaintiffs argue further that since they are asserting breach of contract as third party
beneficiaries and not signatories, Intel cannot enforce contractual obligations against them.
Plaintiffs cite Civil Code section 1559 which states, “A contract, made expressly for the benefit
of a third person, may be enforced by him at any time before the parties thereto rescind it.”
Plaintiffs argue they can enforce a contract as a third party beneficiary, but contract obligations
cannot be enforced against them. Plaintiffs’ logic is not compelling.
Finally, Plaintiffs contend that the Letter of Transmittal amounts to a contract of
adhesion. The concept comes up most often in discussions regarding unconscionability which
serves as a defense to a claim for breach of contract. (See Civil Code §1670.5, subd. (a)—“If the
court as a matter of law finds the contract or any clause of the contract to have been
unconscionable at the time it was made the court may refuse to enforce the contract, or it may
enforce the remainder of the contract without the unconscionable clause, or it may so limit the
application of any unconscionable clause as to avoid any unconscionable result.”)
Unconscionability is not the basis for an affirmative claim.
Accordingly, defendant Intel Corporation’s demurrer to Plaintiffs’ first amended
complaint on the ground that the pleading does not state facts sufficient to constitute a cause of
action [Code Civ. Proc., §430.10, subd. (e)] for breach of contract is SUSTAINED with 10 days’
leave to amend.
III. Motion by defendant Intel Corporation for an Order Sealing Exhibit 1 to the
Declaration of Katherine M. Turner in Support of Defendant Intel Corporation’s Request
for Judicial Notice, filed November 17, 2014, and All References to the Contents of Exhibit
1 in Intel’s Memorandum of Points and Authorities in Support of Demurrer, filed
November 17, 2014
Based on paragraph 3.6 and the stated intent of the parties that the terms of their
agreement remain confidential, the court makes the following findings only with respect to the
portion of Exhibit A to the Shlesinger Declaration after the first nine pages: 1) there exists an
overriding interest that overcomes the right of public access to the record; 2) the overriding
interest supports sealing the record; 2) 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. Accordingly, the Declaration of
Amir Shlesinger in Support of the Petition to Compel Arbitration is sealed, provided that within
ten days, Plaintiff files a redacted version of Exhibit A omitting only the material after the first
nine pages.
Accordingly, Defendant Intel Corporation’s motion for an order sealing exhibit 1 to the
Declaration of Katherine M. Turner in Support of Defendant Intel Corporation’s Request for
Judicial Notice, filed November 17, 2014, and the unredacted version of Intel’s Memorandum of
Points and Authorities in Support of Demurrer, filed November 17, 2014, is GRANTED. The
clerk's office is directed to seal exhibit 1 to the Declaration of Katherine M. Turner in Support of
Defendant Intel Corporation’s Request for Judicial Notice, filed November 17, 2014, and the
unredacted version of Intel’s Memorandum of Points and Authorities in Support of Demurrer,
filed November 17, 2014.
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Case Name: Jatco, Inc. v. Fenn C. Horton, III, et al.
Case No.:
1-14-CV-268640
Demurrer by Defendants Fenn C. Horton, III and Pahl & McCay to the Second Amended
Complaint of Plaintiff Jatco, Inc.
Defendants demur to the Second Amended Complaint (SAC) in its entirety and to the
first and second causes of action on the ground that they fail to allege sufficient facts to
constitute a cause of action. (See Code Civ. Proc., § 430.10, subd (e).)
Defendants’ request for judicial notice is GRANTED because the prior order on
Defendants’ demurrer to the FAC is a court record relevant to the pending matter. (See Evid.
Code, § 452, subd. (d); see also Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may
take judicial notice of its own file]; see Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [only
relevant matters are subject to judicial notice].)
I. FIRST CAUSE OF ACTION FOR LEGAL MALPRACTICE
The SAC alleges sufficient facts to support the elements of causation and damages. (See
SAC, ¶¶ 13-15, 18-27, 32-34; see also Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1621
[stating that a proximate causal connection between the breach and the resulting injury, and
actual loss or damage are necessary elements of a cause of action for attorney malpractice].)
Jatco does not need to demonstrate that it will be able to prove the allegations in the SAC as “the
question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such
proof does not concern the reviewing court” on demurrer. (Committee on Children’s Television,
Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.) Moreover, Jatco only needs to
allege ultimate facts, not evidentiary facts, “establishing that, ‘but for the alleged malpractice, it
is more likely than not [it] would have obtained a more favorable result,’” and the SAC alleges
sufficient facts establishing the same. (See Charnay v. Cobert (2006) 145 Cal.App.4th 170, 179
quoting Viner v. Sweet (2003) 30 Cal.4th 1232; see also C.A. v. William S. Hart Union High
School Dist. (2012) 53 Cal. 4th 861, 872; see also Doe v. City of Los Angeles (2007) 42 Cal.4th
531, 550 [a pleading must allege ultimate facts].)
Additionally, Jatco persuasively argues that the cases cited by Defendants for the
proposition that the court should sustain this demurrer because “settle and sue” cases, such as
Jatco’s, are disfavored and/or inherently speculative, are inapposite because they concern cases
decided after summary judgment and/or trial and do not address whether the allegations of the
pleading were sufficient for purposes of demurrer. (See Filbin v. Fitzgerald (2012) 211
Cal.App.4th 154, 162 [appeal from judgment after a 6-day bench trial]; Thompson v. Halvonik
(1995) 36 Cal.App.4th 657, 659 [appeal from decision on summary judgment motion]; Marshak
v. Ballesteros (1999) 72 Cal.App.4th 1514, 1516 [appeal from decision on summary judgment
motion]; Barnard v. Langer (2003) 109 Cal.App.4th 1453, 1458 [appeal from judgment on
motion for nonsuit made during a bench trial]; Jalali v. Root (2003) 109 Cal.App.4th 1768, 1773
[appeal from a judgment in the plaintiff’s favor]; and Namikas v. Miller (2014) 225 Cal.App.4th
1574, 1578 [appeal from decision on summary judgment motion].)
Lastly, Jatco persuasively argues that Defendants cannot establish that they are immune
from liability under the “judgmental immunity doctrine” on demurrer because the determination
as to whether the doctrine applies involves a question of fact and a demurrer tests only the legal
sufficiency of the compliant. (See Committee on Children’s Television, Inc. v. General Foods
Corp. (1983) 35 Cal.3d 197, 213–214; see also Blanks v. Seyfarth Shaw LLP (2009) 171
Cal.App.4th 336, 378-379 [“[W]hen courts discuss what has come to be called the ‘judgmental
immunity doctrine,’ they are actually addressing the factual issue as to whether an attorney
breached the standard of care.”]; see also Crookall v. Davis, Punelli, Keathley & Willard (1998)
65 Cal.App.4th 1048, 1067 [noting that a breach of duty is a question of fact and attorneys in a
malpractice action must show that in making tactical decisions they did not breach the standard
of care].)
Moreover, Defendants cannot establish that they are not liable under the “judgmental
immunity doctrine” on demurrer because the SAC does not contain any allegations regarding the
state of the relevant law at the time Defendants’ conduct occurred or whether Defendants
performed adequate research to make an informed decision as to a course of conduct. (See
Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 378-379 citing Smith v. Lewis (1975)
13 Cal.3d 349, 359 and Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 37–38
[“[i]n order to prevail on this theory and escape a negligence finding, an attorney must show that
there were unsettled or debatable areas of the law that were the subject of the legal advice
rendered and this advice was based upon ‘reasonable research in an effort to ascertain relevant
legal principles and to make an informed decision as to a course of conduct based upon an
intelligent assessment of the problem.’”].)
Defendants’ demurrer to the first cause of action for legal malpractice, and to the entire
complaint, is OVERRULED.
II. SECOND CAUSE OF ACTION FOR BREACH OF CONTRACT
Defendants argue in a conclusory manner that “Jatco’s second cause of action for breach
of contract is based on the same allegations as the legal malpractice claim and therefore, is
subject to the same analysis” that they set forth with respect to the first cause of action “and [the
second cause of action] should be dismissed accordingly.” (Mem. Ps & As., 12:9-11.)
Notably, some of the arguments that Defendants asserted with respect to the first cause of
action, specifically their argument regarding the “judgmental immunity doctrine”, apply only to
actions for legal malpractice and do not apply to the second cause of action for breach of
contract. Moreover, as articulated above, Defendants’ arguments regarding the elements of
causation and damages lacked merit.
Furthermore, the second cause of action alleges sufficient facts to state a claim for breach
of contract because it alleges that: Jatco and Defendants entered into a written contract whereby
Defendants agreed to provide Jatco with competent legal advice; Defendants breached the
contract by failing to provide competent legal advice; as a result of the breach, Jatco “suffered
actual damages in the amount of the difference between the amount of the settlement and the
amount that the settlement would have been absent Defendants’ negligence,” which is “currently
estimated to be as much as $500,000;” and as a result of the breach, “Jatco … suffered actual
damages in the amount of attorneys’ fees incurred as a result of having to seek bankruptcy
protection.” (SAC, ¶¶ 36-40; see also Bushell v. JPMorgan Chase Bank, N.A. (2013) 220
Cal.App.4th 915, 921 [stating that the elements of breach of contract are (1) the existence of a
contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and
(4) resulting damage to plaintiff].)
Defendants’ demurrer to the second cause of action for breach of contract is
OVERRULED.
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Case Name: Portfolio Recovery Associates, LLC v. George Mendoza, et al.
Case No.:
1-13-CV-257686
Motion for Summary Judgment by Defendant Elva C. Mendoza
This is a debt collection action arising out of an alleged failure by defendants George
Mendoza and Elva C. Mendoza aka Elva C. Carreon Moody (collectively “Defendants”) to make
timely payments pursuant to a Loan Agreement and Disclosure (the “Loan”) made with First
Interstate Bank on April 8, 1991. (See Complaint, ¶ 6; see also Ms. Moody’s Separate Statement
of Undisputed Material Facts (“UMF”) No. 1.) Wells Fargo later acquired First Interstate Bank
and the Loan and, subsequently, sold the Loan to Plaintiff Portfolio Recovery Associates, LLC.
(See Complaint, ¶ 6; see also UMF Nos. 3, 28.)
Plaintiff filed the operative complaint against Defendants, alleging a single cause of
action for account stated. The complaint alleges that “[t]he Account(s) was stated in writing by
and between [Wells Fargo] and [Defendants] and on such statements a balance was ultimately
stated as due and owing,” but Defendants have “not paid the amount of $38,021.06 as agreed.”
(Complaint, ¶ 15.)
Moody moves for summary judgment on the ground that Plaintiff cannot establish the
elements of the cause of action for account stated. Moody concedes that in 1991, when she and
Mendoza were married, they obtained the Loan to purchase a mobilehome. Their marriage was
subsequently dissolved in 1996. In July 2007, Wells Fargo granted a two-month deferral of
payments. Moody claims that because she was not a part of the discussions leading up to the
deferral, her liability on the Loan terminated.
Moody’s request for judicial notice is GRANTED IN PART and DENIED IN PART.
The request is GRANTED as to the complaint, the “First Amended General Denial,” and 15
USC § 1692g. (See Evid. Code § 452, subds. (a), (d); see also People ex rel. Lockyer v.
Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters are subject to
judicial notice].) The request is DENIED as to the website printout from Wikipedia. (See Evid.
Code § 452, subds. (g), (h); see also Searles Valley Minerals Operations, Inc. v. State Bd. of
Equalization (2008) 160 Cal.App.4th 514, 519 [refusing to take judicial notice of web site pages
of the American Coal Foundation and the United States Department of Energy]; see also
Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 737 [refusing to take judicial notice of
information contained on the California Board of Registered Nursing web site].)
Plaintiff’s evidentiary objections are OVERRULED because they do not comply with
California Rules of Court, rule 3.1354(b) and (c). Moody’s evidentiary objections are
OVERRULED because the evidence subject to Objection Nos. 1-26 is not the basis for the ruling
set forth below and Objections Nos. 27-32 pertain to documents that Moody herself offered into
evidence as part of exhibits 18 and 21.
“A motion for summary judgment shall be granted when ‘all the papers submitted show
that there is no triable issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.’” (Hartline v. Kaiser Foundation Hospitals (2005) 132
Cal.App.4th 458, 464 citing Code Civ. Proc., § 437c, subd. (c).) A defendant moving for
summary judgment bears the initial burden of showing that a necessary element of the plaintiff’s
case cannot be established, or that the defendant has a complete defense to the action. (See
Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1132; see also Madden v. Summit View,
Inc. (2008) 165 Cal.App.4th 1267, 1272; see also Weil & Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2007) ¶¶ 10:241, 10:242, 10:246.) “If the defendant
fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence
and the motion must be denied.” (Intrieri v. Super. Ct. (2004) 117 Cal.App.4th 72, 82.)
Moody has not met her initial burden. As a matter of law, the two-month deferral of
payments was not material. (Mayers v. Alexander (1946) 73 Cal. App. 2d 752,760 (addressing
materiality of change sufficient to relieve nonconsenting party.)
Accordingly, the motion for summary judgment is DENIED.
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Case Name: San Jose Police Officers’ Association v. City of San Jose, et al., and consolidated
cases
Case No.:
1-12-CV-225926
Given the other matters on this calendar, it appears unlikely that the court will be able to
afford more than a few minutes of oral argument on this matter. Because of the importance of
these motions, the court continues these motions to a special set on Tuesday, January 6, 2015, at
1:30 p.m. A tentative ruling will be published on January 5, 2015, to which Local Rule 7E shall
apply.
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Case Name: Kleidman v. Shah, et al.
Case No.:
1-13-CV-247406
Plaintiff moves to stay the entire action pending appeal of an order denying his motion to
deem that Kaufhold Gaskin LLP does not represent Defendant Feeva Technology, Inc. Plaintiff
contends that the order is appealable because an order denying a motion to disqualify counsel
would be appealable, even though Plaintiff chose not to seek disqualification and the stated
grounds for the motion were not the same as they would have been for disqualification.
With the point in mind raised in reply (“citing a case is of no use unless it is shown how
the case applies to the instant set of circumstances.” (Reply, at 3:20-21.)), the court has reviewed
the three cases cited in support of the argument that the court should stay this entire case pending
appeal. (Memorandum in Support, at 11:5-8.) None of these cases informs in any way the
question of whether the court in this case should exercise its inherent power to impose a stay. In
Freiberg v. City of Mission Viejo (1995) 33 Cal. App. 4th 1484, in dismissing an appeal as
untimely, the appellate court found that the trial court did not have jurisdiction to enter a threemonth stay after a new trial motion was denied. In Lamps Plus Overtime Cases (2012) 209 Cal.
App. 4th 35, the appellate court found that an order which is the opposite of what Plaintiff is
asking this court to do, was not an abuse of discretion: the trial court’s order denying plaintiff’s
request for stay was affirmed. In Koch-Ash v. Superior Court (1986) 180 Cal. App. 3d 689, the
appellate court found that the trial court had erred in issuing a stay of trial because a party was
entitled to a preference pursuant to Code of Civil Procedure section 36(a).
The motion is denied.
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Case Name: Berg, et al. v. Metaview Wholesale Investments, LLC, et al.
Case No.:
1-14-CV-264065
Defendants, Cross-complainants and Cross-defendants MetaView Wholesale Investments
LLC and Terry Houghton, and Cross-complainant and Cross-defendant Valerie Houghton
(“Moving Parties”) seek an order “enjoining the parties exercising control over MetaView
Wholesale Investments LP (MetaView LP) and MetaView LP itself from removing, disbursing,
or otherwise transferring any assets from MetaView LP until this case is resolved on its merits.”
(Notice of Motion and Motion, at 3:4-6.) The stated basis for this relief is that Moving Parties
have a contractual right to be indemnified by MetaView LP and that that right will become
worthless if MetaView LP is allow to transfer its assets. (Id., at 3:7-11.)
Plaintiffs Clyde Berg, Christopher Ellis, Richard Jay and Dorothy Jay oppose. They first
argue that MetaView LLC has no capacity to bring this motion because it has been suspended by
the Franchise Tax Board. In reply, Moving Parties provide evidence that an application for
revivor has been filed but present no proof that MetaView LLC is not currently suspended.
Plaintiffs next argue that Terry Houghton and Valerie Houghton have no standing to
bring this motion because they are not contractually entitled to indemnity, as the only parties to
the indemnification provision are the Partnership and the General Partner and neither individual
is or has ever been the General Partner. Plaintiffs do not dispute that Terry Houghton and
Valerie Houghton own 80% of MetaView LLC.
Plaintiffs contend that, in any event, the indemnification provision excludes fraud, gross
negligence, willful misconduct or violation of the agreement, and that therefore the
indemnification provision will not benefit Moving Parties. Moving Parties have not met their
burden to show that they are likely to prevail on indemnified claims.
Plaintiffs argue that the motion must be denied because Moving Parties have not pled
injunctive relief and “[a] preliminary injunction is warranted only if there is on file a complaint
which states a sufficient cause of action for injunctive relief of the character embraced in the
preliminary injunction. (Moreno Mut. Irrigation Co. v. Beaumont Irrigation Dist. (1949) 94 Cal.
App. 2d 766, 778.) In reply, Moving Parties have not disputed or addressed this point.
Plaintiffs also point out that the relief sought by injunction is effectively the same as a
writ of attachment, and yet Moving Parties have not satisfied the statutory requirements for such
relief. Moving Parties do not address this point.
Moving Parties purport to be confused why Plaintiffs oppose the motion and yet argue
that there is no irreparable harm. (Reply, at 4:18-26.) Plaintiffs have effectively negated
irreparable harm.
The motion is denied.
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Case Name: Xian v. eBay, Inc.
Case No.:
1-14-CV-269958
Defendant eBay, Inc. moves to compel arbitration of Plaintiff Tom Xian’s claims
pursuant to an Offer Letter and a separate Arbitration Agreement.
In opposition, Plaintiff does not contest that agreements were made for arbitration and
that his claims are within the scope of the agreements. He contends that the agreements are
unconscionable and therefore cannot be enforced. For the reasons set forth in the reply,
Plaintiff’s arguments are not well taken.
The motion is granted. Plaintiff is ordered to arbitrate his claims, and the case is stayed
pending arbitration. The case management conference set for December 23, 2014 is vacated, and
an arbitration review conference is set for June 25, 2015, at 10:30 a.m. in Department 2.
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Case Name: FIA Card Services, N.A. v. Eli Mazor
Case No.:
1-13-CV-244165
Defendant/judgment debtor Eli Mazor claims exemption following an Earnings Withholding
Order. Plaintiff/judgment creditor FIA Card Services, N.A., opposes.
Judgment was entered on January 3, 2014, in the amount of $13,185.85.
Judgment debtor claims that he is paid every two weeks and that his gross monthly pay of
$8,800. The court will assume that this number is correct, but if that amount represents two
biweekly pay periods rather than one month, then the gross monthly pay is recalculated at
$9,533.
The financial statement shows that $884 is deducted for 401k contribution. (If recalculated as
above, the contribution is $957.66.) Judgment creditor is correct that this is a voluntary
contribution, not a necessary expense.
The financial statement also shows that judgment debtor is paying $1,000 on credit card debt not
reduced to judgment. Judgment creditor is correct that this obligation does not have priority over
this judgment.
The claim of exemption is denied. Withholding is set at $475 per biweekly pay period. The
$863.52 presently held by the Sheriff should be disbursed to the judgment creditor.
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