Re:  Daljit Singh v. State of California Board of Equalization, et al.   

Case No.:  247076

Date:  May 23, 2013     Time: 8:30 A.M. 

Dept. 2 – The Honorable Lloyd Hicks

Motion: Motion for an Order Compelling Answers to Deposition Questions and Production of Documents by Defendant State of California Board of Equalization

Tentative Ruling: To Deny the Motion for an Order Compelling Answers to Deposition Questions and Production of Documents by Defendant State of California Board of Equalization

Defendant acknowledges that the timeliness of its Motion for an Order Compelling Answers to Deposition Questions and Production of Documents is an issue pursuant to Code of Civil Procedure section 2024.020, stating that parties are entitled to have motions concerning discovery heard on or before the fifteenth day before the original trial date, which both parties appear to acknowledge as being April 15, 2013.  Defendant filed this motion on May 1, 2013, making it untimely.  Furthermore, Defendant has not filed a motion for leave to complete discovery closer to trial date or to reopen discovery after new trial date is set pursuant to Code of Civil Procedure section 2024.050.  Defendant did not argue that discovery was reopened by the court relating to this discovery request.  Instead, Defendant argues that the court should consider its current motion as a de facto motion under Code of Civil Procedure section 2024.050 because, among other things, Plaintiff’s counsel failed to bring up the deadline in the “meet and confer” telephone conversations with Defendant’s counsel.

Defendant’s motion is untimely pursuant to Code of Civil Procedure section 2024.020, and Defendant has not followed the appropriate procedures under the Code of Civil Procedure that would allow the court to consider the current motion.  As a result, the court denies Defendant’s Motion for an Order Compelling Answers to Deposition Questions and Production of Documents.  The court does not grant sanctions to either party.   

If no one requests oral argument, under Code of Civil Procedure section 1019.5, subdivision (a), and California Rules of Court, rule 3.1312(a), no further written order is necessary.  The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:  George Stieb v. American Medical Response, Inc.   

Case No.:  250200

Date:  May 23, 2013     Time: 8:30 A.M. 

Dept. 2 – The Honorable Lloyd Hicks

Motion: Defendant’s Demurrer to Complaint

Tentative Ruling: To Sustain Defendant’s Demurrer to Complaint as to the First, Second, and Third Causes of Action, with leave to amend

Defendant argues that the court should sustain Defendant’s demurrer because Plaintiff’s claims are barred by the statute of limitations under Code of Civil Procedure section 340.5, which states that “[i]n an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”  In Plaintiff’s moving papers, Plaintiff then argues that Plaintiff's causes of action did not accrue at the time of Defendant’s allegedly wrongful act, but at the time that Plaintiff, exercising reasonable diligence, discovered Defendant’s acts to be the cause of Plaintiff's injury, which Plaintiff argues is within the statute of limitations period.

However, even though this is alleged in the moving papers, Plaintiff’s complaint fails to state facts sufficient to constitute a cause of action for negligence or negligent infliction of emotional distress against Defendant because there is no factual allegation of any delayed discovery or accrual of the cause of action.  As a result, Defendant’s demurrer to Plaintiff’s complaint is sustained as to the first and second causes of action.  As to the third cause of action for breach of an implied contract, the court sustains Defendant’s demurrer because the complaint fails to state facts establishing the terms of the contract or any facts describing the alleged breach.  However, since leave to amend is liberally granted, the court will give Plaintiff the opportunity for leave to amend, even though Plaintiff failed to request such relief.  (Klopstock v. Superior Court of San Francisco (1941) 17 Cal.2d 13.)

If no one requests oral argument, under Code of Civil Procedure section 1019.5, subdivision (a), and California Rules of Court, rule 3.1312(a), no further written order is necessary.  The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:    Hernandez v. Halopoff & Sons, Inc.

Case No.:   224032

Date:   May 23, 2013      Time: 8:30 A.M. 

Dept. 2 – The Honorable Lloyd Hicks    

Motion:   Plaintiff’s Motion for Judgment Pursuant to Settlement

Tentative Ruling:    To Grant Plaintiff’s Motion for Judgment Pursuant to Settlement and to Order that Plaintiff, Jose Herndandez, recover from Defendants Halopoff & Sons, Inc. and John Halopoff, Sr. judgment for the principal sum of $50,000.00.  No pre-judgment interest, costs, or attorneys’ fees are awarded.

Proof of service in the file indicates that notice of the motion was adequate.  No response to the motion has been filed.  This action was filed on June 7, 2007.  On June 12, 2012, Plaintiff’s counsel filed a notice of settlement of the entire action.  Plaintiff asserts that Defendants Halopoff & Sons, Inc. and John Halopoff, Sr. have not complied with the terms of a written settlement agreement.

The copy of the settlement agreement attached to the moving papers was not signed by Defendant Rhett Mason and Plaintiff does not seek enforcement against this defendant.  More than 5 years having elapsed since the filing of the Complaint, it does not appear that Plaintiff has authority to pursue this action against Defendant Rhett Mason.  Dismissal of Defendant Mason is required before the court will consider entry of judgment against the other defendants.

The settlement agreement appears to have been executed by the Halopoff Defendants (but does not appear to have been signed by Plaintiff, only by his attorney).  The agreement is dated “July__, 2012.”   The Halopoff Defendants have not filed any objection to the settlement agreement and have not asserted that the agreement is not enforceable against them.  The terms of the agreement require the Halopoff Defendants to pay to Plaintiff the sum of $50,000.00 within 21 days of the date of the agreement.  Plaintiff asserts that no portion of the agreed amount has been paid.  Although Plaintiff asserts that the settlement agreement contains, at paragraph 15, a provision specifying the agreement enforceable under CCP 664.6 and providing for recovery of attorneys’ fees incurred for enforcing the judgment, no such language appears in the copy of the agreement submitted to the court.  There is no provision in the settlement agreement for recovery of attorneys’ fees, costs, or interest in the event of delay in payment or in the event enforcement proceedings are required.

If no one requests oral argument, under Code of Civil Procedure section 1019.5, subdivision (a), and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:  Corona v. Guerra   

Case No.:   248876

Date:  May 23, 2013      Time: 8:30 A.M. 

Dept.  2 – The Honorable Lloyd Hicks    

Motion:   (1) Defendants’ Motion for Continuance of Trial Date and All Related Pre-Trial Events and Discovery Cut-Off Dates; and (2) Defendants’ Motion to Compel Plaintiffs, Veronica Corona and Michael Carson Corona’s Responses to Form Interrogatories, Set One, Request for Production of Documents, Set One, and Request for Sanctions.

Tentative Ruling:  (1) There is no tentative ruling on Defendants’ Motion for Continuance of Trial.  The parties are directed to appear.

(2) To Grant Defendants’ Motion to Compel Plaintiffs, Veronica Corona and Michael Carson Corona’s Responses to Form Interrogatories, Set One, Request for Production of Documents, Set One; to Order Plaintiffs to provide written verified responses, without objections, to Defendants Form Interrogatories, Set One and to Defendants Request for Production of Documents, Set One within fourteen (14) days of service of this order.  Plaintiffs Veronica Corona and Michael Carson Corona shall pay to Defendants a monetary sanction in the total sum of $450.00.  Sanctions are payable within ten (10) days of service of this order.

Plaintiffs’ counsel responded to the motion indicating that counsel has not been able to contact Plaintiffs recently.  There appears to be no dispute that Plaintiffs have failed to respond to Defendants’ properly propounded written discovery.  Plaintiffs have failed to comply with their obligations under the Discovery Act.  No justification having been shown for Plaintiffs’ failure to respond to discovery, a monetary sanction is appropriate.

If no one requests oral argument, under Code of Civil Procedure section 1019.5, subdivision (a), and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:     

Boggan, et al. v. Centex Homes

Case No.:    246258

Travelers Property Casualty Company of America v. Centex Homes

Case No.:  250337

and Related Cross-Actions

Date:   May 23, 2013        Time: 8:30 A.M. 

Dept. 2 – The Honorable Lloyd Hicks  

Motion:   Motion by Defendants and Cross-Complainants Centex Homes and Centex Real Estate Corporation to Consolidate

Tentative Ruling:  To Deny the Motion by Defendants and Cross-Complainants Centex Homes and Centex Real Estate Corporation to Consolidate.

The Boggan Plaintiffs seek damages for alleged construction defects in homes built by Centex.  Centex has cross-complained against its sub-contractors including claims for recovery of fees and costs necessary to defend against the Boggan Plaintiffs’ claims. 

In its separate action, Travelers, Centex’s insurer, seeks declaratory relief with regard to the provisions a number policies of insurance which relate to the subject construction defect claims.  Travelers asserts that it has, subject to a reservation of rights, tendered a complete defense to Centex of the claims asserted in the Boggan Plaintiffs’ action.  Travelers seeks a court determination that it, rather than Centex, has authority to retain counsel to defend Centrex under the policy terms.  Travelers also asserts that Centex has breached the policies by failing to cooperate with Travelers’ choice of counsel.  Centex has filed a Cross-Complaint in the Travelers action.

Centex seeks to consolidate both actions asserting that allocation of its recoverable defense fees and costs would be potentially subject to conflicting orders and/or would cause delay in any efforts at settlement of the underlying defect claims if the cases are heard separately.  Plaintiffs have not objected to consolidation.  No sub-contractor defendant has filed an opposition to the request for consolidation. 

Travelers opposes consolidation asserting that its action is an insurance coverage dispute and is thus unrelated to the liability claims asserted in the construction defects action.  Travelers contends its obligation to pay defense costs under the insurance policies is based on different contracts and different legal authorities than the obligations of Centex’s sub-contractors under their individual contracts with Centex.  Finally, Travelers contends that the issues to be determined in the coverage dispute should not be subject to the discovery limitations regularly imposed in construction defects litigation.  In Travelers’ view, it is consolidation which would result in confusion and delay in resolving the underlying defect claims.

While both of these actions relate to the construction defect claims, the issues in each differ substantially.  The only intersection would appear to relate to how much of Centex’s costs are to be recovered from sub-contractors.  Presumably, Travelers would want to maximize the contribution from sub-contractors while Centex may give such claims a lessor priority as its costs are, in theory, recoverable in any event, either from its sub-contractors or from its insurer under the various policies.  Centex has attempted to raise this issue in Travelers’ action by way of its Cross-Complaint.  Travelers has demurred to the Cross-Complaint.

Consolidation is available where the issues in each case are essentially the same and consolidation would serve policies of economy and convenience.  Jud Whitehead Heater Co. v. Obler (1952) 111 Cal.App.2d 861, 867.  The court concludes that consolidation has a greater potential of creating rather than avoiding delay in resolving the defect claims asserted by the Boggan Plaintiffs.  The dispute between Centex and its insurance carrier over coverage and policy interpretation would create a significant distraction involving issues in which neither the Boggan Plaintiffs nor the numerous sub-contractor defendants have any interest.  Consolidation would create a significant possibility that resolution of the defect claims would be unreasonably delayed.

If no one requests oral argument, under Code of Civil Procedure section 1019.5, subdivision (a), and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:    Bush v. Farmers Financial Solutions, LLC

Case No.:   250067

Date:  May 23, 2013      Time: 8:30 A.M. 

Dept. 2 – The Honorable Lloyd Hicks    

Motion:  Demurrer by Defendant Dianne A. Lady-Bliss to Plaintiffs’ Complaint  

Tentative Ruling:   To Overrule Defendant’s Demurrer to Plaintiffs’ Complaint.  Defendant shall file her answer to the Complaint within ten (10) days of service of this order.

Plaintiffs’ Complaint sufficiently identifies the transactions which Plaintiffs claims are defective and the interest of the various Plaintiffs in each individual transaction.  Plaintiffs’ causes of action against the demurring Defendant contains sufficient factual allegations to support claims that Defendant owed a fiduciary duty to Plaintiffs as a financial adviser and sufficiently allege a breach of that duty to Plaintiffs  and are sufficient to enable Defendant to determine and defend the claims asserted against her.  Plaintiff Cynthia Bush has sufficiently alleged that she is the surviving spouse of Charles Bush, deceased.  The Complaint is sufficient to assert that Plaintiff Cynthia Bush is the successor to Charles Bush.  Plaintiffs’ Complaint asserts sufficient facts to state a claim of aiding and abetting against the Demurring Defendant.  That other parties who participated in the alleged scheme aren’t named as Defendants is not fatal to Plaintiffs’ claims.

If no one requests oral argument, under Code of Civil Procedure section 1019.5, subdivision (a), and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.