AFFIRMATION/AFFIDAVIT OF SERVICE January 21, 2020 (2024)

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Ruling

Aug 21, 2024 |BC698301

Case Number: BC698301 Hearing Date: August 21, 2024 Dept: 34 Mozer v. Doll, Amir & Eley, LLP, et al. (BC698301) The Motion to Vacate Dismissal is DENIED. Background On March 15, 2018, Plaintiff Pamela A. Mozer filed her Complaint against Defendants Doll, Amir & Eley, LLP, Gregory Doll, and Ronald St. Marie (collectively, the Defendants) on causes of action for legal malpractice, breach of fiduciary duty, conspiracy to defraud, fraud, and negligent infliction of emotional distress. On August 27, 2018, the court granted Defendants motion to compel arbitration and stay action pending arbitration. On March 29, 2024, the court held an Order to Show Cause Re: Dismissal. At that proceeding, the court dismissed with prejudice the Complaint. On April 22, 2024, Defendants filed their Motion for Relief Pursuant to Code of Civil Procedure § 473(b) for an Order Vacating the Courts Order of Dismissal with Prejudice Entered on March 29, 2024 (Motion to Vacate Dismissal). In support of their Motion to Vacate Dismissal, Defendants concurrently filed: (1) Declaration of Desmond J. Hinds; (2) Declaration of Sara E. Franks; and (3) Proposed Order. On May 20, 2024, Plaintiff filed her Opposition to Motion for Relief Vacating Order of Dismissal (Opposition). On May 21, 2024, Defendants filed their Reply in support of their Motion to Vacate Dismissal (Reply). Legal Standard The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorneys sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorneys mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorneys affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310. (Code Civ. Proc., § 473, subd. (b) [emphasis added].) The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order. (Code Civ. Proc., § 473, subd. (d).) Discussion The Parties Arguments Defendants move the court to vacate the dismissal of the Complaint. (Motion to Vacate Dismissal, p. 10:2627.) Defendants argue: (1) that this relief is mandatory due to the excusable neglect of Defense Counsel; (2) that the motion is timely; (3) that the Complaint to be entered and the dismissal to be vacated is attached to the Declaration of Desmond J. Hinds; and (4) that separate from the relief requested pursuant to Code of Civil Procedure section 473, subdivision (b), the court did not have jurisdiction to order dismissal of the Complaint. (Motion to Vacate Dismissal, pp. 7:710, 7:25, 8:12, 8:1214, 9:20.) Plaintiff (who is continuing this litigation in propria persona) disagrees, arguing: (1) that Code of Civil Procedure section 473 is inapplicable under the present circ*mstances; (2) that the result would have been the same had Defense Counsel appeared at the hearing; and (3) that Defendants motivations are in conflict with one of the primary principles and bases for the use of arbitration. (Opposition, pp. 3:10, 4:1819, 5:12.) In their Reply, Defendants reiterate their prior arguments. They also argue: (1) that a party to an arbitration is permitted to file a petition to confirm an arbitration award irrespective of the content of the award; and (2) that Plaintiff has abandoned the jurisdictional issue by not disputing it in her opposition. (Reply, pp. 3:46, 6:1012.) Non-compliance with Statutory Framework As an initial matter, Defendants seek relief under Code of Civil Procedure section 473(b) only. (See Motion to Vacate Dismissal.) Under that section, the statute mandates the motion include the pleading to be filed if the relief is granted. It also provides relief when the resulting dismissal was based on an attorneys sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. (CCP § 473(b).) Defendants attorney admits he did not timely appear for the March 29, 2024 hearing and the case was dismissed with prejudice. (See Declaration of Desmond J. Hinds, ¶ 7.) Mr. Hinds further declares that had he been present at the hearing, he would have requested the court not dismiss the case because Defendants intended to file a Motion to Confirm the Final Arbitration Award as a Judgment after the requisite notice period for the Final Arbitration Award had passed. (Id., ¶ 14.)[1] The court finds that Mr. Hinds declaration supports a finding of inadvertence, error, mistake and/or excusable neglect. However, the Motion for Relief in this case does not attach that necessary pleading, i.e., the Motion to Confirm the Final Arbitration Award as a Judgment.[2] Presumably, the 10 day period before a Motion to Confirm could be filed passed months ago and it should have been attached to the instant motion. More importantly, however, the dismissal with prejudice entered into on March 29, 2004 and the requested relief in order to file a Motion to Confirm the Arbitration Award in which the hearing officer awarded nothing to either side is a distinction without a difference. On this basis alone, the court denies Defendants motion. The Courts Jurisdiction to Dismiss the Complaint Alternatively, even if the court were to look past the statutory mandate or determined that indeed the Complaint was the appropriate pleading filed, the court would nevertheless deny the motion because it has jurisdiction and discretion to dismiss the complaint. Under Code of Civil Procedure section 1281.4: . . . If an application has been made to a court of competent jurisdiction, whether in this State or not, for an order to arbitrate a controversy which is an issue involved in an action or proceeding pending before a court of this State and such application is undetermined, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until the application for an order to arbitrate is determined and, if arbitration of such controversy is ordered, until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies. . . . (Code Civ. Proc., § 1281.4.) The award shall be in writing and signed by the arbitrators concurring therein. It shall include a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy. (Code Civ. Proc., § 1283.4.) The award shall be made within the time fixed therefor by the agreement or, if not so fixed, within such time as the court orders on petition of a party to the arbitration. The parties to the arbitration may extend the time either before or after the expiration thereof. A party to the arbitration waives the objection that an award was not made within the time required unless he gives the arbitrators written notice of his objection prior to the service of a signed copy of the award on him. (Code Civ. Proc., § 1283.8.) The arbitrators, upon written application of a party to the arbitration, may correct the award upon any of the grounds set forth in subdivisions (a) and (c) of Section 1286.6 not later than 30 days after service of a signed copy of the award on the applicant. Application for such correction shall be made not later than 10 days after service of a signed copy of the award on the applicant. Upon or before making such application, the applicant shall deliver or mail a copy of the application to all of the other parties to the arbitration. Any party to the arbitration may make written objection to such application. The objection shall be made not later than 10 days after the application is delivered or mailed to the objector. Upon or before making such objection, the objector shall deliver or mail a copy of the objection to the applicant and all the other parties to the arbitration. The arbitrators shall either deny the application or correct the award. The denial of the application or the correction of the award shall be in writing and signed by the arbitrators concurring therein, and the neutral arbitrator shall serve a signed copy of such denial or correction on each party to the arbitration personally or by registered or certified mail or as provided in the agreement. If no denial of the application or correction of the award is served within the 30-day period provided in this section, the application for correction shall be deemed denied on the last day thereof. (Code Civ. Proc., § 1284.) If an application is made to the arbitrators for correction of the award, a petition may not be served and filed under this chapter until the determination of that application. (Code Civ. Proc., § 1288.6.) Defendants argue that the court did not have jurisdiction to order dismissal. (Motion to Vacate Dismissal, p. 9:20; Reply, p. 6:9.) Plaintiff does not address the jurisdictional argument. However, Plaintiffs failure to oppose the argument does not waive the courts past jurisdiction to dismiss the case, and it is Defendants burden to explain why the court acted beyond its authority. For the reasons stated below, the court disagrees with Defendants jurisdictional argument. On August 27, 2018, the court granted Defendants motion to compel arbitration and stay action pending arbitration. Pursuant to Code of Civil Procedure section 1281.4, the court is required to order the arbitration and stay the action until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies. Other sections specify timelines regarding when the arbitrator shall make their award (Code Civ. Proc., § 1283.8); when applications for correction to the award, objections to applications for correction to the award, and corrections to the award may be made to the arbitrator (Code Civ. Proc., § 1284); and when petitions to confirm, correct, or vacate the award may be made to trial courts (Code Civ. Proc., §§ 1288.4, 1288.6). However, no section explicitly discusses when the court is or is not allowed to dismiss a case. Defendants point to well-known case law in arguing that the court acted in excess of its jurisdiction by dismissing this case. (Motion to Vacate Dismissal, pp. 4:2325, 9:2126, 10:914.) Once a court grants the petition to compel arbitration and stays the action at law, the action at law sits in the twilight zone of abatement with the trial court retaining merely a vestigial jurisdiction over matters submitted to arbitration. This vestigial jurisdiction over the action at law consists solely of making the determination, upon conclusion of the arbitration proceedings, of whether there was an award on the merits (in which case the action at law should be dismissed because of the res judicata effects of the arbitration award or not (at which point the action at law may resume to determine the rights of the parties). The court also retains a separate, limited jurisdiction over the contractual arbitration which was the subject of the section 1281.2 petition . . . . (Brock v. Kaiser Found. Hosps. (1992) 10 Cal.App.4th 1790, 1796 [citations omitted].) The court does not dispute that it would have been inappropriate to dismiss the case while the arbitration was ongoing. Indeed, a recent panel of the Court of Appeal concluded that a trial court exceeded its jurisdiction when it dismissed [a case] for failure to prosecute, after compelling the claims to arbitration and staying the action . . . . (Lew-Williams v. Petrosian (2024) 101 Cal.App.5th 97, 107, citations omitted.) But Defendants seem to overlook a key detail: on March 25, 2024, three days before the court dismissed this case, the Arbitrator entered and served the Final Award in the arbitration and served the Parties with the Final Award. (Decl. Hinds, ¶ 4.) This detail is undisputed. (Oppn, p. 2:2327.) It is important to note that neither Defendants nor Plaintiff provide the court with a copy of the Arbitrators Final Award. According to Plaintiff, the Arbitrator: (1) dismissed her claims after ruling in Defendants favor on a motion for summary judgment; and (2) did not award either side fees or costs, even though Defendants moved for fees and costs. (Oppn, Decl. Mozer, ¶¶ 8, 1011.) Although in the court context this result might normally be called a dismissal and not an award, the term dismissal is not defined under Code of Civil Procedure title 9, whereas award is given a very broad definition that includes dismissals such as these. (Code Civ. Proc., § 1280, subd. (b) [Award includes, but is not limited to, an award made pursuant to an agreement not in writing.]; see also Cinel v. Christopher (2012) 203 Cal.App.4th 759, 767768.) Once the Arbitrator served the Final Award, there was nothing left for the Arbitrator to do. In line with the Court of Appeals guidance in Brock, the court determined at the hearing on March 28, 2024: (1) that the arbitration proceedings had concluded with an award on the merits; and (2) that dismissal with prejudice of the Complaint was warranted based on that award. Given the conclusion of the arbitration, the Court had fundamental jurisdiction to take these actions (which means the dismissal is not void), and the Court acted within its jurisdiction to dismiss the case (which means the dismissal is not voidable). Conclusion The Motion to Vacate Dismissal is DENIED with prejudice. [1] No petition may be served and filed under this chapter until at least 10 days after service of the signed copy of the award upon the petitioner. (Code Civ. Proc., § 1288.4.) [2] Mr. Hinds declaration attached only the dismissed Complaint.

Ruling

ARMANDO MAY vs SANTA CRUZ BOARDWALK AMUsem*nT PARK

Aug 20, 2024 |24CV00369

24CV00369MAY v. SANTA CRUZ SEASIDE COMPANY (Incorrectly sued as Santa Cruz BoardwalkAmusem*nt Park) DEFENDANT SANTA CRUZ SEASIDE COMPANY’S DEMURRER TO AND MOTION TO STRIKE FIRST AMENDED COMPLAINT I. SUMMARY OF RULING As explained below, the court sustains the demurrer with leave to amend as to the causesof action for ADA violation, Unruh Civil Rights act violation, intentional infliction of emotionaldistress and unfair business practices. The demurrer is sustained without leave to amend as to thecauses of action for breach of contract, promissory estoppel, and breach of the implied duty ofgood faith and fair dealing. The motion to strike the prayer for punitive damages is granted without leave to amend. Page 2 of 10 II. BACKGROUND/COMPLAINT Plaintiff’s verified complaint, filed 2/6/24, lists causes of action for violation of Title IIIof the ADA, violation of the Unruh Civil Rights Act, intentional infliction of emotional distress,breach of contract, promissory estoppel, breach of the implied duty of good faith and fairdealing, and unfair business practices. The facts alleged are that plaintiff Armando May drove from his home in Novato on8/6/23 to the Boardwalk to celebrate his daughter’s 11th birthday. He had previously purchasedfive unlimited ride wristbands online for over $300. The family’s 4-year-old autistic son was alsowith them and the complaint alleges he easily exceeded the minimum 42-inch height requirementfor certain rides. When the family got in line for the Space Ride, the ride operator refused theson’s entry based on the height requirement but the sign was improperly placed too high,rendering it an inaccurate height assessment. Plaintiff asked the operator to use a tape measurewhich was unavailable. The operator asked a supervisor to assist the family and they wererequired to step out of the ride’s line and wait at the exit. During this time the child “cried andwhaled [sic].” The supervisor allegedly refused to use a tape measure and the family wasescorted to guest services, their wristbands were removed, and they were provided a partialrefund of $67. They were extremely upset and thereafter the general manager offered them a fullrefund. Plaintiff alleges extreme humiliation, discrimination based on their son’s disability, andemotional turmoil as a result. III. MOTIONS Defendant demurs on the grounds that the first amended complaint’s causes of action areimproperly pled. Defendant moves to strike the punitive damages allegations on the grounds that facts ofmalice, oppression or fraud are not properly pled or could possibly be pled related to these facts. No timely oppositions were filed; in fact, plaintiff’s oppositions were filed a full weeklate without leave of court or any demonstration of good cause for missing the filing deadline.“[A] trial court has broad discretion to accept or reject late-filed papers. (Cal. Rules of Court,rule 3.1300(d).)” (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2Cal.App.5th 252, 262.) The court declines to consider plaintiff’s opposition papers. Page 3 of 10 IV. LEGAL STANDARDS A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v.Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read theallegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power(2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all materialfacts properly pleaded, but not contentions, deductions or conclusions of fact or law ….”(Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In a demurrer proceeding, the defects mustbe apparent on the face of the pleading or via proper judicial notice. (Donabedian v. MercuryIns. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not theevidence or other extrinsic matters; therefore, it lies only where the defects appear on the face ofthe pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issueinvolved in a demurrer hearing is whether the complaint, as it stands, unconnected withextraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.) The general rule is that the plaintiff need only allege ultimate facts, not evidentiaryfacts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff,as a matter of pleading, even as against a special demurrer, is that his complaint set forth theessential facts of the case with reasonable precision and with sufficient particularity to acquaintthe defendant with the nature, source and extent of his cause of action.” (Rannard v. LockheedAircraft Corp. (1945) 26 Cal.2d 149, 156-157.) Demurrers do not lie as to only parts of causes ofaction, where some valid claim is alleged but “must dispose of an entire cause of action to besustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally, itis an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonablepossibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d335, 349.) Cal Code Civ Proc § 436, Improper matter or nonconforming pleading; Discretion ofcourt provides: “The court may, upon a motion made pursuant to Section 435, or at any time inits discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or impropermatter inserted in any pleading.” V. DISCUSSION A. Demurrer As explained below, it appears that each cause of action fails to state facts sufficient toallege a cause of action. Page 4 of 10 1. Violation of the ADA “To establish a violation [of Title III of the ADA], a plaintiff must show: (1) a covereddisability; (2) ‘the defendant is a private entity that owns, leases, or operates a place of publicaccommodation; and (3) the plaintiff was denied public accommodations by the defendantbecause of [the] disability.’ [Citations.]” (Martinez v. San Diego County Credit Union (2020) 50Cal.App.5th 1048, 1060.) Plaintiff’s cause of action under the ADA is insufficiently pledbecause defendant did not deny plaintiff any public accommodation and did not take actionbecause of plaintiff’s son’s disability. Plaintiff’s son was measured by the Space Ride operator and assessed to be too short togo on the ride. (Complaint ¶¶ 14-15.) Plaintiff’s son became very upset, a supervisor came tohelp, and plaintiff and his family were ultimately directed to guest services. (Complaint ¶¶ 19-21.) The general manager thereafter agreed to provide plaintiff with a full refund for theirwristband purchases, and plaintiff and his family left the premises. (Complaint ¶ 23.) Plaintiffalleges that the Boardwalk amusem*nt park is a public accommodation. (Complaint ¶ 31.) Healleges that his son has autism, a condition which significantly impairs the child’s major lifeactivities. (Complaint ¶¶ 32, 40.) The park denied plaintiff’s son access to the Space Ridebecause he was one inch short of the posted height requirement (Complaint ¶¶ 15, 18) anddefendant did not measure plaintiff’s son with a tape measure upon request. (Complaint ¶ 17.)Plaintiff alleges denying his son access to the ride was arbitrary, based solely on the son’sdisability, and in direct contravention of the ADA. (Complaint ¶ 32.) The complaint shows that defendant did not deny access to a place of publicaccommodation. Plaintiff and his family visited the Boardwalk, rode rides, and were deniedaccess to a single ride based on a non-discriminatory reason – the child’s height. The demurrer is sustained with leave to amend. 2. Unruh Act To establish a violation of the Unruh Civil Rights Act a plaintiff must show thatdefendant either violated the ADA, or denied access to a business establishment based onintentional discrimination. (Cal. Civ. Code § 51(f); Martinez v. San Diego County Credit Union,supra, 50 Cal.App.5th at 1060.) Here, the complaint does not support a cause of action forviolation of the ADA or that any intentional discrimination occurred. Instead, the plaintiff’s sonwas denied access to a single ride based on his height. The demurrer is sustained with leave to amend. Page 5 of 10 3. Intentional infliction of emotional distress A cause of action for intentional infliction of emotional distress exists when there is (1)extreme and outrageous conduct by the defendant with the intention of causing, or recklessdisregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe orextreme emotional distress; and (3) actual and proximate causation of the emotional distress bythe defendant's outrageous conduct. In order for conduct to be considered outrageous for thepurpose of tort liability, it must be so extreme as to exceed all bounds of that usually tolerated ina civilized society. (Moncada v. West Coast Quartz Corp. (2013) 221 Cal. App. 4th 768, 769.) Plaintiff alleges his child was not allowed on a Boardwalk ride due to a dispute as to thechild’s height, the child and the family were upset, defendant did not actually measure the child’sheight when requested, and then gave them a full refund when they expressed displeasure.(Complaint ¶¶ 46-47.) Plaintiff’s conclusory allegations of discrimination fail to amount tooutrageous conduct; there are no allegations of inappropriate comments or conduct by theBoardwalk staff. The allegations do not describe outrageous conduct supporting a claim forintentional infliction of emotional distress. The demurrer is sustained with leave to amend. 4. Breach of contract The elements of breach of contract: (1) existence of the contract; (2) plaintiff’sperformance or excuse of nonperformance; (3) defendant’s breach; (4) damages to plaintiff as aresult of the breach. (CDC Firefighter v. Maldonado (2008) Cal.App.4th 1226, 1239.) The complaint fails to plead facts supporting a breach or damages. Plaintiff admits thatthe wristband provided access to the park and its rides, and that the only family member whocould not access a single ride was the child due to his height. Further, plaintiff was not damaged;plaintiff received a full refund of his park tickets. The demurrer is sustained without leave to amend. 5. Promissory estoppel “The elements of a promissory estoppel claim are ‘(1) a promise clear and unambiguousin its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must beboth reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by hisreliance.’” (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 901.)Promissory estoppel binds a promissor “‘when he should reasonably expect a substantial change Page 6 of 10of position, either by act or forbearance, in reliance on his promise, if injustice can be avoidedonly by its enforcement.’” (Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1041.) The purpose of this doctrine is to make a promise binding, under certain circ*mstances,without consideration in the usual sense of something bargained for and given in exchange. Ifactual consideration was given by the promisee, promissory estoppel does not apply. (Youngmanv. Nevada Irrigation District (1969) 70 Cal.2d 240, 250; Raedeke v. Gibraltar Sav. & LoanAss'n (1974) 10 Cal.3d 665, 672-673; Avidity Partners, LLC v. State of California (2013) 221Cal.App.4th 1180, 1209.) Here, since plaintiff paid consideration – the ticket prices – promissory estoppel cannotbe stated. The demurrer is sustained without leave to amend. 6. Good faith and fair dealing The covenant of good faith and fair dealing is implied by law in every contract, and itacts “as a supplement to the express contractual covenants, to prevent a contracting party fromengaging in conduct which (while not technically transgressing the express covenants) frustratesthe other party's rights to the benefits of the contract.” (Racine & Laramie, Ltd. v. Department ofParks & Recreation (1992) 11 Cal.App.4th 1026, 1031-1032.) When the allegations for breachof the implied covenant “do not go beyond the statement of a mere contract breach,” thenthe demurrer to the implied covenant claim may be sustained on the grounds that it is duplicativeof, and entirely contained within, the corresponding breach of contract claim. (Careau & Co. v.Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 139.) Plaintiff alleges that defendant breached this duty when Boardwalk staff denied access tothe Space Ride to plaintiff’s son and asked the family to remove their wristbands and leave thepark. (Complaint ¶ 68.) These allegations are the same as plaintiff’s breach of contractallegations and therefore are duplicative. The demurrer is sustained without leave to amend. 7. Unfair business practices “Business and Professions Code section 17200 (“UCL”) is written in the disjunctive[and] establishes three varieties of unfair competition—acts or practices which are unlawful, orunfair, or fraudulent.” (Podolsky v. First Healthcare Corp. (1996) 50 Cal.App.4th 632, 647.) Thethree prongs of the law have different thresholds. A “fraudulent” business act or practice is onein which members of the public are likely to be deceived. (Olsen v. Breeze, Inc. (1996) 48Cal.App.4th 608, 618 (“Fraudulent,” as used in the statute, does not refer to the common law tort Page 7 of 10of fraud but only requires a showing members of the public “are likely to be deceived”);Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211 (inorder to state a cause of action based on a fraudulent business act or practice, the plaintiff mustallege that consumers are likely to be deceived by the defendant’s conduct).) Plaintiff alleges fraudulent practices – “making a false representation (unlimited access torides and attractions) with the likely intention of deceiving the plaintiffs, leading them to actupon this misrepresentation to their detriment.” (Complaint ¶ 75.) Plaintiff has made noallegations that consumers are likely to be deceived, and therefore the demurrer is sustained withleave to amend. B. Motion to strike Under Civil Code section 3294, punitive damages may be awarded only when a plaintiffproves by clear and convincing evidence that a defendant has acted with “oppression, fraud, ormalice.” A motion to strike a request for punitive damages in a complaint may be granted whenthe facts alleged in the complaint, if proven, would still not support a finding of malice, fraud oroppression. (Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.) Plaintiff’s allegations fail to support any wrongful, malicious, oppressive or wantonconduct by defendant; instead, the complaint alleges that the family was assisted by multiplelevels of Boardwalk staff and were offered a partial and then a full refund. Even if proven, thesefacts fail to support any finding of malice, fraud or oppression. The motion to strike is granted without leave to amend.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 8 of 10 LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 14, 2024 TIME: 8:30 A.M.

Ruling

Janet Mlynar vs California Earthquake Authority, et al

Aug 19, 2024 |19CV03844

19CV03844MLYNAR v. CALIFORNIA EARTHQUAKE AUTHORITY et al PLAINTIFF’S MOTION FOR PROTECTIVE ORDER Plaintiff’s motion for a protective order is denied. “Where a party must resort to thecourts, ‘the burden is on the party seeking the protective order to show good cause for whateverorder is sought.’ [Citation.]” (Nativi v. Deutsche Bank National Trust Co. (2016) 223Cal.App.4th 261, 318.) Plaintiff has not demonstrated good cause for a protective order to haltthe deposition of David Bonowitz. I. BACKGROUND AND MOTION This case stems from the 2014 Napa earthquake. Plaintiff Janet Mlynar’s (“Mlynar”)home was insured for earthquake damage by CEA and CSAA. CEA issued a homeowner’spolicy to Mlynar thought its participating insurer, CSAA. After the earthquake, Mlynarsubmitted an earthquake claim under the CEA policy. Defendant Ronald Cook is an attorneyretained by CSAA to assist regarding the earthquake claim. The claim, for a variety of contestedreasons, was not resolved right away but instead there were numerous inspections regarding thescope and extent of the alleged damage to the home. Checks were issued to Mlynar but nevernegotiated by her, and again, the reasons why are in dispute. The claim also went through anappraisal process. In March 2023, defendant CEA subpoenaed certain documents of Mr. Bonowitz, astructural engineer who was previously hired by Mlynar in 2016; a copy of the subpoena wasserved on plaintiff’s counsel. Mr. Bonowitz produced the documents requested. Mlynar did notobject. (Dec. of Amato ¶ 3.) CEA then noticed his deposition, serving the notice on April 24,2024. Mlynar did not object. (Dec. of Amato at ¶ 5, Ex. 4.) The deposition began on May 10,2024, and lasted about an hour before Mr. Dobrin, Mlynar’s counsel, halted the deposition,stating Mlynar’s former counsel, Mr. Greenburg, may have intended Mr. Bonowitz to beconsidered a retained expert and that his [Mr. Bonowitz’s] prior work on the case was part ofconfidential settlement negotiations. He indicated his intention to move for a protective order.Mlynar filed this motion on July 18, 2024. Mlynar moves for a protective order pursuant to Code of Civil Procedure section2025.420, subd. (a)-(b), seeking an order that the deposition of Mr. Bonowitz, not take placeunless Mlynar discloses him as an expert witness for trial. Mlynar asserts a protective order is Page 1 of 6necessary to protect her from “unwarranted annoyance”, “oppression”, or “undue burden”. Shecontends Mr. Bonowitz was her expert consultant for the sole purpose of confidential settlementcommunications with CEA and CSAA. According to Mlynar, during the claim’s adjustmentprocess, the parties’ experts attempted to agree upon a “repair protocol” so that she could receiveCEA funds to start repairs on her home. The parties could not reach an agreement and proceededthrough the JAMS appraisal process. Mr. Dobrin attaches the following in support of Mlynar’s motion, along with requests forjudicial notice: • Exhibit A is an 11/22/16 email from Mr. Greenburg to defendant Cook which states “Confidential Settlement Communication” and enclosed Mr. Bonowitz’s schematic for removal of plaster walls at the property. • Exhibit B is a recent email chain concerning the deposition of Mr. Bonowitz. • Exhibit C is an email dated 9/26/17, with the subject line “Confidential Settlement Communication.” • Exhibit D are two emails dated 10/4/17 between defendant Cook and Greenburg with the subject line “Confidential Settlement Communication.” • Exhibit E is an email dated 8/8/18 from Mr. Greenburg to CSAA adjustor Vicki Miller with the subject line “Confidential Settlement Communication”, attaching Mlynar’s contractor/architect’s [Avelar] repair estimate and scope of work. • Exhibit F is a partial copy of the subpoena served on Mr. Bonowitz in 2023 by CEA. • Exhibit G is a letter dated 8/7/18 from Mr. Greenburg to CSAA. II. OPPOSITION BY CEA The opposition sets out four arguments: (1) Mr. Bonowitz was Mlynar’s engineeringconsultant during the presentation of the earthquake claim – not during the lawsuit and he wasnot retained in anticipation of the appraisal proceeding; (2) Mr. Bonowitz’s testimony is notrelated to a settlement offer or demand. He is expected to confirm his 2018 writing in which headvised Mlynar there was no structural damage to her property due to the earthquake; (3) theresults of Mr. Bonowitz’s destructive testing of the framing beneath the plaster walls at Mlynar’sproperty was intended to be shared with CSAA, which was adjusting the claim; and (4) to theextent there was an attorney-work product protection of Mr. Bonowitz’s testimony, Mlynarwaived such protections when her attorneys did not object to the production of his entire file inresponse to a subpoena. III. DISCUSSION Page 2 of 6 Code of Civil Procedure section 2025.420, subdivision (a) states, “[b]efore, during, orafter a deposition, any party, any deponent, or any other affected natural person or organizationmay promptly move for a protective order. The motion shall be accompanied by a meet andconfer declaration under Section 2016.040.” Subdivision (b) states, in part, “[t]he court, for goodcause shown, may make any order that justice requires to protect any party, deponent, or othernatural person or organization from unwarranted annoyance, embarrassment, or oppression, orundue burden and expense.” California Evidence Code section 1152, Admissibility of Evidence subdivision (a) states,in part, that “[e]vidence that a person has, in compromise or from humanitarian motives,furnished or offered or promised to furnish money or any other thing, act, or service to anotherwho has sustained or will sustain or claims that he or she has sustained or will sustain loss ordamage, as well as any conduct or statements made in negotiation thereof, is inadmissible toprove his or her liability for the loss or damage or any part of it.” First, the emails referenced by Mlynar, though titled “Confidential SettlementCommunications” do not appear to include any specific offers to settle her claim. Second, CEApoints out that this section of the Evidence Code pertains to the admissibility of evidence, anddoes not reference limiting the scope of a deposition. Mlynar has not provided a basis for herassertion that Evidence Code section 1152 insulates the deposition testimony of a third-partywitness. Further, even assuming any protections existed for Mr. Bonowitz’s work and testimony,there have been multiple instances of waiver. “[T]he attorney work product privilege is subject tothe same waiver principles applied to the attorney-client privilege. ‘Waiver of work productprotection, though not expressly defined by statute, is generally found under the same set ofcirc*mstances as waiver of the attorney-client privilege—by failing to assert the protection, bytendering certain issues, and by conduct inconsistent with claiming the protection. Waiveralso occurs by an attorney's voluntary disclosure or consent to disclosure of the writing to aperson other than the client who has no interest in maintaining the confidentiality of the contentsof the writing.’[Citations.] Thus disclosure to a third party will waive the work product privilegeunless the disclosure was coerced.” (Regents of University of California v. Superior Court (2008)165 Cal. App. 4th 672, 678-679.) (Emphasis added.) In March 2023, CEA subpoenaed Mr. Bonowitz’s files related to his work at Mlynar’sproperty and a copy of the subpoena was served on her counsel. Mr. Bonowitz produced thedocuments requested. Mlynar did not object. (Dec. of Amato ¶ 3.) His deposition was noticed forApril 24, 2024, with all counsel, including Mlynar’s attorney, copied and again, Mlynar did notobject. (Dec. of Amato at ¶ 5, Ex. 4.) Finally, Mr. Bonowitz’s site visit notes were already Page 3 of 6disseminated as exhibits to a deposition of plaintiff’s contractor and as an exhibit to CEA’smotion for summary judgment. The motion is denied. The court declines to award sanctions. PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE FILED 7/18/24 1. Order on Motion for Summary Judgment in this case. Denied. The court need not take judicial notice of records in its own case file. 2. Declaration of Janet Mlynar in support of her Responses to Separate Statement of Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. 3. Declaration of Jon-Marc Dobrin in Support of Plaintiff’s Responses to Separate Statement of Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. 4. Plaintiff Janet Mlynar’s Response to Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. PLAINTIFF JANET MLYNAR’S ADDENDUM TO REQUEST FOR JUDICIAL NOTICE FILED 7/30/24 Ex. UU Redacted emails and report of defendants’ appraiser, Thad Eaton. Denied. PLAINTIFF JANET MLYNAR’S SECOND ADDENDUM REQUEST FOR JUDICIAL NOTICE FILED 8/9/24 Ex. A copies of CSAA’s claim file produced in this action regarding CSAA’s redacted communications with its contractors Shaun Piazza and its engineer Peter Shandlin and the “Confidential Settlement Communication” from Mlynar’s attorney Greenburg with CSAA adjustor Vikki Miller. Denied.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if the Page 4 of 6prevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.

Ruling

S. C. vs COUNTY OF SANTA CRUZ

Aug 21, 2024 |22CV02216

Ruling

COLLETTI vs SCHAAF

Aug 20, 2024 |CVSW2302225

MOTION TO SEAL SETTLEMENTCVSW2302225 COLLETTI VS SCHAAF AMOUNT BY NISSAN NORTHAMERICA, INC.Tentative Ruling:Hearing

Ruling

DAMARIZ RUTH JUAREZ, ET AL. VS MAR VISTA FUND, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.

Aug 20, 2024 |21STCV13193

Case Number: 21STCV13193 Hearing Date: August 20, 2024 Dept: 53 Superior Court of California County of Los Angeles Central District Department 53 damariz ruth juarez, et al ; Plaintiffs, vs. mar vista fund, llc , et al.; Defendants. Case No.: 21STCV13193 Hearing Date: August 20, 2024 Time: 10:00 a.m. [tentative] Order RE: petition for approval of compromise of claim for minor claimant yareth de la o MOVING PARTY: Petitioner Ana De La O RESPONDING PARTY: Unopposed Petition for Approval of Compromise of Claim for Minor Claimant Yareth De La O The court considered the moving papers filed in connection with this petition. No opposition papers were filed. DISCUSSION Petitioner Ana De La O (Petitioner) seeks court approval of the settlement made on behalf of minor claimant Yareth De La O (Minor Claimant) in this action. The compromise of a minors disputed claim for damages is valid only after it has been approved, upon the filing of a petition, by the court.¿ (Prob. Code, § 3500.)¿ The petition must be verified by the petitioner, must contain a full disclosure of all information that has any bearing upon the reasonableness of the compromise, and must be prepared on Judicial Council form MC-350.¿ (Cal. Rules of Court, rule 7.950.)¿¿¿¿ Defendants Mar Vista Fund, LLC, Mar Vista Entitlement Fund, LLC, Manuel Cara Edralin, Jr., individually and as trustee of the Edralin Manuel C 2005 Trust, J&S Properties Enterprises, Inc., and Beach City Capital Management, LLC have agreed to pay a total of $2,000,000 to settle this action, of which $50,670.61 is allocated to Minor Claimant. (MC-350, ¶¶ 10-11.) Of the $50,671.61 allocated to Minor Claimant, $12,667.65 will be paid to counsel for attorneys fees, and $974.34 will be paid to counsel for litigation costs. (MC-350, ¶¶ 13, 16.) The remaining $37,028.62 will be invested in a single-premium deferred annuity, subject to withdrawal only on authorization of the court. (MC-350, ¶¶ 16, 18, subd. (b)(3).) The court has reviewed the petition and finds the settlement to be fair, reasonable, and in the best interest of Minor Claimant. The court also finds that the declaration of David Campbell Smith is sufficient to support the request for $12,667.65 in attorneys fees, which represents 25 percent of the settlement. (Smith Decl., ¶¶ 1, 3, 8-9.) The court therefore grants Petitioners petition. ORDER The court grants petitioner Ana De La Os petition for approval of compromise of claim on behalf of minor claimant Yareth De La O. The court sets an Order to Show Cause re: proof of purchase of annuity (as to minor claimant Yareth De La O) for hearing on October 24, 2024, at 8:30 a.m., in Department 53.¿ The court orders petitioner Ana De La O to give notice of this ruling. IT IS SO ORDERED. DATED: August 20, 2024 _____________________________ Robert B. Broadbelt III Judge of the Superior Court

Ruling

BRIAN RAMIREZ VS. AIRBNB, INC. ET AL

Aug 20, 2024 |CGC21590076

Matter on the Law & Motion calendar for Tuesday, August 20, 2024, Line 10. 3 - DEFENDANT ANNETA REALTY, LLC's Motion For Mandatory Entry Of Dismissal Of Action. Ordered off calendar as untimely filed. (CCP 1005.) May be re-set for Mon.-Thur. after September 5. Papers shall bear new hearing date. =(302/RBU)

Ruling

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Aug 20, 2024 |23CV-0201716

HUNTER, ET AL. VS. ELO, ET AL.Case Number: 23CV-0201716This matter is on calendar for review regarding status of the case. The Court has reviewed the Status ConferenceStatement filed by Plaintiffs which requests that this hearing be continued due to Defendant Allison Marie Elo’spossible bankruptcy filing. The Court notes that Notice of Bankruptcy has not been filed with the Court. Thematter is continued to Monday, December 16, 2024 at 9:00 a.m. in Department 63 for review regarding statusof the case. No appearance is necessary on today’s calendar.

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