EFILING

Pursuant to section 1010.6 of the Code of Civil Procedure, rule 2.253(b)(2) of the California Rules
of Court, Orange County Superior Court Local Rule 352, and Local Rule 601.01 all documents filed
by attorneys in probate, limited civil, unlimited civil, and complex civil actions, other than the original
documents specified below must be filed electronically unless the Court rules otherwise. Self-
represented parties are exempt from the mandatory electronic filing requirement set forth in Orange
County Superior Court Local Rule 352, and Local Rule 601.01 and but are strongly encouraged to
participate voluntarily in electronic filing and service.
Electronically filed documents subject to the mandatory electronic filing requirements in probate,
limited civil, unlimited civil, and complex civil actions can be filed until midnight on the day that the
filing is due, and will be considered timely pursuant to Code of Civil Procedure section 1010.6
subdivision (d)(1)(D). The document is “filed” at the date and time it is received by the court and the
confirmation of receipt is created. See Cal. Rules of Court, Rule 2.259(a)(1). Any electronically filed
document received by the Court on or a

fter midnight will be file stamped on the next court day.

DEPT C-20
June 23 2017
All counsel are notified that effective February 2, 2015, court reporters will no
longer be supplied by the Court for hearings on Law and Motion matters. If
counsel or the parties wish to have their particular proceeding reported they will
be required to supply their own reporter.

# Case Name Tentative

1 30-2015-795665 Status Conference
The Bishop of the
Protestant Episcopal
Church in Los Angeles Defendant’s Special Motion to Strike and Motion
VS Griffith Company for Attorney Fees

Defendant the Griffith Co. asks this court to enter an
order granting its special motion to strike the third
cause of action for slander of title from the Original
Complaint filed on 6/26/15 by Plaintiff The Bishop of
the Protestant Episcopal Church in Los
Angeles. Pursuant to the order of the Fourth District
Court of Appeal issued on 2/24/17, this court now
GRANTS the Griffith Co.’s anti-SLAPP special motion to
strike.

The court also GRANTS the Griffith Co.’s motion
seeking an award of costs and attorney’s fees totaling
$133,111.11, incurred in bringing its anti-SLAPP
motion and successfully pursuing the appeal from this
court’s prior denial of the motion.

Under Ketchum v. Moses (2001) 24 Cal.4th 1122,
1132, the trial court “must carefully review attorney
documentation of hours expended: ‘padding’ in the
form of inefficient or duplicative efforts is not subject
to compensation.”

In determining reasonable hours, counsels’ verified
time statements, as officers of the court, are entitled
to credence in the absence of a clear indication the
records are erroneous. (Horsford v. Board of
Trustees (2005) 132 Cal.App.4th 359, 396.)

Once counsel’s hours are documented, the burden
shifts to the opposing party to show that any specific
time is unreasonable. In challenging attorney’s fees
as excessive, the burden is on the challenging party to
point to the specific items challenged, with a sufficient
argument and citations to the evidence. (Premier
Medical Management Systems Inc. v. California Ins.
Guarantee Association (2008) 163 Cal.App.4th 550,
564.)

In Opposition, Plaintiff argues correctly that the hours
billed for the initial anti-SLAPP motion appear to be
excessive and that the 10% administrative fee of
$3,899.61 is improper because it is not itemized. The
request for $84,928.60 for law and motion work
relating to the anti-SLAPP motion is reduced by
$24,928.60 to $60,000.00

With regard to the request for $31,384.00 in appellate
fees, the court finds that the hours billed, hourly rate
charged, and fees incurred were reasonable in light of
the amount of work done, the experience level of the
attorneys, the complexity of the issues, the quality of
the work done, and the result achieved.

The court OVERRULES the Bishop’s objections 1-3 to
the Joens Declaration and 1-3 to the Pierce
Declaration presented by the Griffith Co. in support of
its motion.

In Reply, the Griffith Co. argues correctly that while
the court has discretion to disallow fees to the extent
they appear to be excessive, the burden is
nevertheless on the Bishop to show that the fees are
excessive or unreasonable, and not on the Griffith Co.
to prove that they are reasonable.

Accordingly, the court awards a reduced amount
of $108,182.51 ($133,111.11 - $24,928.60)

The Griffith Co.’s Objection to Entry of the
Bishop’s Proposed Judgment re: Summary
Adjudication in favor of the Bishop as to the First
and Second Causes of Action

On 5/19/17, the Griffith Co. filed its objection to the
proposed judgment submitted by Plaintiff the Bishop
of the Protestant Episcopal Church in Los Angeles.

First, the Griffith Co. argues that the hearing on the
summary adjudication motion should have been
stayed pending resolution of its appeal from the order
denying the special motion to strike the third cause of
action for slander of title. However, the court DENIES
the objection on this ground for the reasons previously
set forth in its prior minute order of 5/6/16.

As a general rule, the court is required to stay any
proceedings directly relating to or directly affected by
the issues upon which the Fourth District Court of
Appeal will be ruling. However, only the 3rd cause of
action for slander to title was before the Court of
Appeal, because that was the only cause of action
materially affected by the anti-SLAPP
motion. Accordingly, it was proper for the case to
proceed as to the 1st and 2nd causes of action.

Defendant previously argued that all three causes of
action were overlapping and inextricably intertwined
because they all involved the common question of
whether the Bishop holds good and exclusive title to
the land and whether the reversion interest or power
of termination asserted by the Griffith Company is
valid.

However, while this issue is common to all three
claims, the issue before the Court of Appeal was much
more narrow and was limited to the question of
whether Griffith’s letter was protected by the anti-
SLAPP law because it qualified as speech in connection
with a matter of public interest and in connection with
anticipated litigation. There is no showing that the
Court of Appeal decided the question of whether the
Church held good title to the land, or the question of
whether the Griffith Company holds a reversion
interest or an enforceable power of termination under
the 1945 deed.

The court notes that at page 8 of its opinion, the Court
of Appeal noted that in its prior ruling, this court “saw
no distinction between the Bishop’s cause of action for
slander of title and its cause of action seeking to quiet
title . . . “ Here, the court draws a clear distinction
between the slander of title claim and the quiet title
claim. The appeal from the anti-SLAPP ruling as to
the third cause of action is distinct from this court’s
ruling as to the first and second causes of action. The
Fourth District’s ruling appears to implicate only the
third cause of action for slander of title.

Second, the Griffith Co. also argues that the court’s
ruling on the summary adjudication motion was
incorrect for several reasons. However, the proper
vehicle for attacking that ruling is to bring a timely
motion for reconsideration or a timely appeal. The
Griffith Co. makes no showing that the Fourth
District’s ruling necessarily requires this court to
revisit or alter its ruling on the summary adjudication
motion.

2 30-2016-864364 Motion for Civil Contempt re: Enforcement of
Lyon VS Garcia Preliminary Injunction (CCP 1218)
The moving papers seem to misunderstand the nature
of a contempt proceeding. The Court cannot grant a
“motion for contempt” and issue penalties on a
motion. CCP §1217; Cedars-Sinai Imaging Medical
Group v. Superior Court (2000) 83 Cal.App.4th 1281,
1286-87; In re Koehler (2010) 181 Cal.App.4th1153,
1169. The movant is referred to CCP § 1211 et seq.
and case law for how contempt matters work. See In
re Marcus(2006) 138 Cal.App.4th 1009, 1014 (stating
elements of proof); Conn v. Superior Court (1987)
196 Cal.App.3d 774, 784.

Because of the strictness with which contempt
proceedings are reviewed, and their quasi-criminal
nature, the Court reviews the matter strictly. The
record of the action leaves a question regarding the
12/8/16 Order. On 10/31/16, the Court ordered the
parties to meet and confer and agree upon proposed
terms for a preliminary injunction. [10/31/16
Minutes]. The movant has not offered evidence to
show this occurred. Although the opposition does not
raise the issue, because of the strictness of review of
contempt proceedings, the record must be clear and
the movant has not demonstrated by evidence that
the process occurred.

Next, the record does not show that the order at-
issue, of 12/8/16, was even served. [See moving
Exhibit A and ROA 84, 85, 64]. Because of the
strictness with which contempt proceedings are
reviewed, the Court declines to issue an OSC based on
this order. [See Cal. Prac. Guide Civ. Pro. Before Trial
¶ 9:660].

Regarding the merits, Defendant Garcia’s papers
argue that the 12/8 Order only applied to himself, and
did not include his wife or others residing at his
property, and that Plaintiff’s moving papers do not
show that it was he who placed items there. In
response, Plaintiff cites a principle that joint tenants of
property, can be liable as owners for conditions of the
property that they own or possess, per Alcaraz v.
Vece (1997) 14 Cal.4th 1149, 1162. But the issue
here is not liability for land ownership, it is for alleged
contempt of an order. A treatise notes, about drafting
preliminary injunctions that, “[I]t is common practice
and proper to enjoin not only the corporation or
association, but also its officers, employees and
agents. The whole effect of this is simply to make the
injunction effectual against all through whom the
enjoined party may act.” Cal. Prac. Guide Civ. Pro.
Before Trial ¶ 9:656.1 (Rutter Group 2016) (citing
cases). Here, the Order does not do so. Suffice it to
say it is an issue for another day and the Court does
not find it appropriate to proceed to a contempt at this
time.

Defendant Garcia also complains, seemingly correctly,
that some of plaintiff Lyon’s photographs are said to
be taken on January 7th(Lyon Decl. ¶2) and
this predates the undertaking posted on January
9th. It appears that could not support a finding of
contempt at least as to that portion of the concerns.

Plaintiff argues for contempt, partly on the ground
that Defendant violated paragraph 2(a) of the 12/8/16
Order, specifically regarding Defendant not being
allowed to load or unload commercial construction
material except between the hours of 9:00a.m. to
10:00 a.m on weekdays for up to five (5) minutes no
more than two (2) times per week. [Order ¶ 2(a), see
Moving Brief at 5:23 and Reply at p.2]. However, the
moving Lyon Declaration did not present testimony of
such timings, to substantiate the same. [Moving Lyon
Decl.]

Suffice it to say, that the parties’ evidence and
interpretations of the order are conflicting here. In
the opposition, Defendant Garcia avers that he has
taken specific steps apparently in response to this
“motion” and in response to the plaintiff’s
concerns: he is in the process of “disposing of the
remnants” of the 2015 demolition of the former sun
room and enclosed patio which are remaining at the
property, and has “ordered an extra trash dumpster
pickup for the Property for that purpose”, and further,
Defendant is removing the residential remnants and
trailers. (Opp. Garcia Declaration).

At this time, Defendant appears to be complying with
Plaintiff’s specific complaints and attempting to comply
with the Order of 12/8/16. There is a jury trial
scheduled very soon, on July 17th, at which time
Plaintiff’s claims against Defendant will be
tried. Under the circumstances, the Court does not
find it appropriate to issue an OSC re Contempt at this
time.

The Court notes that the opposition asks for attorney
fees under CCP 1218(a). The plain language of the
cited section says the Court can impose attorney fees
against the person who is adjudged guilty of contempt
for violating an order. This does not support any
award here.
Denied, without prejudice.

3 30-2016-858730 Pro Hac Vice Applications (x2)
CTS global Logistics
(Georgia) Inc. VS DJL This is a business fraud action. Before the Court this
Mining day are two defense requests for leave to admit two
Missouri attorneys pro hac vice. The applications must
be denied, without prejudice.

Pursuant to CRC 9.40, a person who is not a member
of the State Bar of California – but who is a member in
good standing of and eligible to practice before the bar
of any other court – may be permitted upon written
application to appear as counsel pro hac vice if the
following conditions are met:

1. Applicant is not (9.40(a)):
 a resident of California;
 regularly employed in California;
 engaged in substantial business, professional,
or other activities in California.
2. Applicant is associated with a licensed California
attorney;
3. Application is verified, and includes (9.40(d)):
 applicant’s residence and office addresses;
 courts to which applicant has been admitted
(and when);
 evidence that applicant is in good standing,
and not currently suspended or disbarred;
 details regarding past pro hac vice
applications over past two years (repeated
appearances can be grounds for denying –
9.40(b));
 proof that State Bar fee of $50 has been paid.
4. Moving papers served on all parties and State Bar
– 9.40(c)(1).

The application is substantively defective because
counsel failed to include a residence address, and
further failed to affirm that neither are engaged in
substantial business, professional, or other activities in
California.

Denied without prejudice.

4 30-2016-869388 Four Discovery Motions
Soldan VS High End
Development Group, The Court grants Plaintiff Christopher Soldan’s Motions
LLC to Compel defendant High End Development Group to
provide initial responses to discovery. No timely
written oppositions were found in the docket for these
four motions to compel.

Defendant High End Development Group shall provide
verified responses, without objections, to Plaintiff’s
Form Interrogatories Set one, to Plaintiff’s Special
Interrogatories Set one, and to Plaintiff’s Request for
Production of Documents Set One, within 14 days
after a notice of ruling is served.

For the RFAs, if Defendant has not served
substantially-compliant responses to Plaintiff’s Request
for Admissions Set One, by the time of this hearing,
the Court will grant that motion too, and deem the
matters in the RFAs admitted.

If Defendant has indeed served substantially-
compliant responses to the RFAs before this hearing,
then the motion to deem RFAs admitted must be
denied. See CCP §2033.280(a)(1); St. Mary v.
Superior Court (2014) 223 Cal.App.4th 762, 776, 780,
782-84; Tobin v. Oris (1992) 3 Cal.App.4th 814,
827, disapproved of on other grounds by Wilcox v.
Birtwhistle (1999) 21 Cal.4th 973.

The Court awards the Plaintiff reasonable monetary
sanctions totaling $1,890. The amount of sanctions
has been reduced to reflect the reasonable hours for
the work as presented. The Court notes that these
are routine motions, largely duplicative, and there is
no opposition.

Plaintiff shall give notice.

5 30-2016-850703 Off Calendar per Dismissal
Nelson VS Nguyen

6 30-2017-907858 Motion to Strike Answer
Wells Fargo Bank VS
Montero When a complaint is verified, defendant must verify
the answer. “In all cases of a verification of a
pleading, the affidavit of the party shall state that the
same is true of his own knowledge, except as to the
matters which are therein stated on his or her
information or belief, and as to those matters that he
or she believes it to be true; and where a pleading is
verified, it shall be by the affidavit of a party, unless
the parties are absent from the country where the
attorney has his or her office….” Code Civ. Proc. §
446(a).

When a defendant files an unverified answer to a
verified complaint, the plaintiff may seek a default
judgment in his favor by filing a motion to strike the
answer, or alternatively, asserting a motion for
judgment on the pleadings with respect to the
defective motion. Hearst v. Hart (1900) 128 Cal. 327,
328.

In this case, Defendant filed an unverified answer to
Plaintiff’s verified complaint and Plaintiff has elected to
bring a motion to strike the answer. The motion is
well-taken and is Granted. Defendant, however, is
given leave to amend his answer. Defendant has 10
days in which to file an amended answer to the
complaint.

Plaintiff to give notice.

7 30-2017-904240 Case Management Conference
RF Technology
Americas, Inc. VS Demurrer to Cross Complaint – Off Calendar
Westnet
8 30-2017-916030 Demurrer to FAC
Raskulinecz VS Fay
Servicing, LLC The Defendant, Fay Servicing, LLC’s Demurrer to the
Plaintiff Adrian Raskulinecz, Jr. First Amended
Complaint is SUSTAINED WITH 15 DAYS LEAVE TO
AMEND. The Defendant Fay Servicing, LLC’s request
that the Court take judicial notice of documents 1 - 16
is GRANTED.

With respect to the second and third causes of action,
the plaintiff concedes that defects argued in the
demurrer exist and seeks leave to amend. The first,
fourth and fifth causes of action fail to allege that the
plaintiff submitted a complete loan modification
package. Such allegation is needed to support a
violation of Ca Civ. Code § 29323.6, a duty of care to
plaintiff as a borrower by defendant as a loan servicer
or a finding of “dual tracking” such as to require
postponement of the foreclosure of the plaintiff’s
home.

First Cause of Action for Wrongful Foreclosure

The plaintiff alleges that Defendant Fay conducted a
trustee’s auction while a loan modification review was
still pending in violation of Ca. Civ. Code §
2923.6(c). However, the plaintiff has not alleged that
a complete application was submitted such as to make
Ca Civ. Code § 29323.6 applicable.

Ca Civ. Code § 29323.6 provides that “[i]f a borrower
submits a complete application for a first lien loan
modification offered by, or through, the borrower s
mortgage servicer, a mortgage servicer, mortgagee,
trustee, beneficiary, or authorized agent shall not
record a notice of default or notice of sale, or conduct
a trustee s sale, while the complete first lien loan
modification application is pending. A mortgage
servicer, mortgagee, trustee, beneficiary, or
authorized agent shall not record a notice of default or
notice of sale or conduct a trustee s sale until any of
the following occurs: (1) The mortgage servicer makes
a written determination that the borrower is not
eligible for a first lien loan modification, and any
appeal period pursuant to subdivision (d) has expired.
(2) The borrower does not accept an offered first lien
loan modification within 14 days of the offer. (3) The
borrower accepts a written first lien loan modification,
but defaults on, or otherwise breaches the borrower s
obligations under, the first lien loan modification.”

The defendant argues that the plaintiff does not allege
that a complete loan modification application was
submitted. Plaintiff argues that he does allege that a
complete loan modification application was submitted
and that no determination was rendered by Fay while
the loan modification was pending. (citing FAC ¶ 14).
Plaintiff also seeks leave to amend to plead additional
facts supporting Defendant’s conduct of dual tracking.

The question is whether the plaintiff has alleged
sufficient facts to support a finding that a complete
application was submitted by the plaintiff to the
defendant. The court finds that the plaintiff has not.

The plaintiff alleges only that plaintiff began seeking
loss mitigation assistance since early February 2016,
that defendant instructed plaintiff to submit an
application, that defendant asked for more papers
which plaintiff provided, that defendant refused to
provide updates regarding modification and that while
the loan modification pending, the defendant
foreclosed on the plaintiff’s home without making a
decision or denial on the modification. FAC ¶¶10 -
14.

None of these allegations actually allege that a
complete loan modification application was submitted
by the plaintiff.
Second Cause of Action for Quiet Title:

Plaintiff concedes that its claim for quiet title has
procedural errors and seeks leave to amend the
allegations regarding the legal description and prayer
for relief.

This is the first challenge to the sufficiency of the
plaintiff’s pleading in this case. The court grants the
plaintiff leave to amend as requested.

Third cause of action for violation of the
Homeowners’ Bill of Rights (HBOR):

Plaintiff concedes that the third cause of action for
violation of the Homeowners’ Bill of Rights (HBOR)
combines violations of several sections of the
California Civil Code into a single cause of action.
Plaintiff requests leave to further amend its complaint
to plead factual support for the allegations.

This is the first challenge to the sufficiency of the
plaintiff’s pleading in this case. The court grants the
plaintiff leave to amend as requested.

Fourth Cause of Action for Negligence:

Plaintiff alleges that Defendant Fay had a duty to
review Plaintiff’s loan modification once it accepted
it. However, the plaintiff has not alleged that a
complete application was submitted such as to create
a duty from the defendant to the plaintiff.

To allege a cause of action for negligence, Plaintiff
must allege that (1) Defendant had a legal duty to
conform to a standard of conduct to protect Plaintiff,
(2) Defendant failed to meet this standard of conduct,
(3) Defendant's failure was the proximate or legal
cause of the resulting injury, and that (4) Plaintiff was
damaged. Ladd v. County of San Mateo (1996) 12
Ca1.4th 913, 917.

If a lender or servicer agrees to review an application
for a loan modification, then it may have a duty to
process that application with reasonable care, even
though the activity falls within its traditional
role. Alvarez v. BAC Home Loan Servicing, L.P.
(2014) 941, 948.

The defendant argues that the Plaintiff does not allege
the existence of facts which establish a legal duty
owed by Defendant as a servicer to Plaintiff as a
borrower. As addressed above, the plaintiff has only
alleged that a loan modification was being sought and
was pending but does not allege that a complete
modification application had been submitted. Without
such submission, there is no duty by the defendant as
a loan servicer alleged.

Fifth Cause of Action for Violation of B&P
§17200:

Plaintiff alleges that Defendant violated the
Homeowners’ Bill of Rights by “dual-tracking” the loan
modification review and foreclosure process which also
resulted in: 1) instituted and imposed improper
foreclosure proceedings, fees and costs; 2) recorded
false filings as the foreclosure was wrongful; 3)
attempted foreclosure without legal authority to do so;
and 4) made material misrepresentations.

Plaintiff does not allege facts which support a cause
for unfair business practices or damages under such
cause for the same reasons that the first cause of
action fails. The plaintiff has not alleged that he
submitted a complete loan modification application.
Such allegation is needed to support a finding that the
defendant was “dual tracking” and require
postponement of the foreclosure of the plaintiff’s
home.

9 30-2017- 903460 Motion for Sanctions under CCP 128.7 and 128.5
Kobe House Sushi &
Steak, LLC VS Danica The Court denies the Motion for Sanctions filed by
Capital Corp. Defendants Danica Capital Corp, Leslie Nguyen and
Danh Steve Nguyen.

There are assertions of fact in the moving papers that
raised some questions. For example, the Moving Brief
stated that Danica Capital entered into an agreement
with Kobe House USA Inc. to buy the restaurant
(Moving Brief at 3:17). The cited evidence is the
moving RJN, Ex. 1, which is the Cecilia Le declaration
previously filed in the case, at exhibit A thereof, which
is the apparent written contract for the sale of the
restaurant. However, Danica Capital is not listed as
selling the restaurant under the document, as the
moving brief asserts here. (Moving Brief at 3:17).

The moving papers also rely heavily on the
declarations provided in the moving RJN, such as the
declaration of Martin Nguyen and others. That
declaration was cited in the Moving brief for the notion
that the Le’s were minority shareholders in Kobe Inc.
and they only managed the restaurant while the sale
was pending from Danica to Kobe Inc. (Moving Brief
at 3:21). The Court notes that, in the referenced
declaration, Martin Nguyen said he was not informed
about the Le’s setting up Kobe LLC or “converting” or
somehow transforming the “Inc.” to the LLC. (Moving
RJN, Ex. 3 ¶5-6). That said, however, Mr. Nguyen
also averred that the contract for sale, is attached to
his declaration as exhibit A (Moving RJN Ex. 3, ¶2-3
and ex. A). At the end of that exhibit A is a “minute
meeting”. (Id., at “minute meeting”). The minutes
say that Cecilia and Phong Le are assigned to operate
the restaurant for Martin and they have “the right to
retain and change name of Kobe House USA in order
to comply with all the legal licenses”. (Moving RJN,
Ex. 3, at ex. a, at minute meeting). The Court cannot
say that the notion that Kobe Inc. could be converted
to Kobe LLC is entirely precluded or inconsistent with
that language, at least not at this stage. (See Compl.
¶ 10). Some kind of change appears to have been
authorized by the language.

The litigation reflects some conflicting statements of
the different parties involved, as well as vagueness of
the transaction(s) involved, and the looseness of the
parties’ assertion of “facts” to the Court. (Compl. ¶
10). The Court cannot determine at this time that the
complaint is totally frivolous or lacking in evidentiary
support or brought for an improper purpose. There
are many questions left open about the transaction
and the persons involved based on the declarations
that are before the Court.

The Moving Parties rely heavily on the declarations in
the RJN. The Court noted that these declarants
sometimes even seem to contradict each other. For
example, Khanh Nguyen averred in his declaration,
that he is the CEO of Kobe Inc., and that the “Inc.” is
owned by himself (40%), by a Mr. Do (30%) and by a
trust called Kobe US Holding and Trust (30%) and that
the trust has investors that included Phong Le, but
that did not include Cecilia Le. (See Moving RJN at K.
Nguyen Decl. ¶ 4).

However, the next declarant, Martin Nguyen averred
that “Phong Le” and “Cecilia Le” were both minority
members of Kobe Inc. (not of the trust). (Moving RJN
at Martin Nguyen Decl. ¶ 3). This looks to be
different from what Khanh testified to. Moreover, the
written agreement, in the moving RJN Ex. 1, at exhibit
a, seems to conflict with these oral statements in that
the Trust is not identified as an owner of Kobe Inc.,
but rather, it says the Trust and Kobe Inc. were
together investors in the restaurant, K2 (RJN Ex. 1, at
exhibit a, at recitals ¶1-3).

The “facts” cannot be ascertained by the Court at this
stage. It is accepting one side’s version of the events
vs. other’s. The evidence before the Court suggests
that there could be “more than the eye sees” and
many aspects of these transactions are unclear and
may require development.

The Moving Parties did not persuade the Court of the
necessity or reasonableness of imposing sanctions
here, under the principles of CCP 128.5 or 128.7.

Next, the Opposition seems to highlight the
concerns. Martin Nguyen has apparently been
deposed for this case and at the deposition, he
seemed to testify that he did not in fact read the
declaration before signing it and that the contents
were not correct. He testified that the Le’s were in
effect buying the restaurant and he was acting as a
middleman for them, as they were making the
required payments. Such testimony tends to support
the position of the Plaintiff here. (See Oppn., Exhibits
A and B).

Danica Capital argues, that it has no contract with the
Plaintiff LLC. However, Danica seems to accept that it
had a contract to sell the restaurant to Kobe Inc. (see
Danica Cross Complaint of 3/27/17 herein at ¶ 9 and
see Moving Brief at 3:13, referring to moving RJN, Ex.
1 at exhibit a thereof). Plaintiff claims it is some sort
of successor of Kobe Inc. in some fashion (Compl. ¶
10). There is a written agreement in which Kobe Inc.
seems to be potentially giving up its rights to the
restaurant to Martin Nguyen (moving RJN Ex. 1, at ex.
a) who himself apparently testifies that he was acting
like a straw buyer for the Le’s (Opp. Ex. A and B) who
says they are behind the LLC.

While the line may not be clear or straight, the Court
cannot say at this stage that the plaintiff’s claims are
frivolous or lacking in any evidentiary support or
brought for an improper purpose, to assess the
sanctions.

Case law has instructed that an extremely high proof
is required for such awards with its applicability lying
with “truly egregious behaviors.” San Diegans for
Open Government v. City of San Diego (2016) 247
Cal.App.4th 1306, 1318-19; Wallis, 168 Cal.App.4th
882, 893. “The award of sanctions for a frivolous
action [or tactic] under Code of Civil Procedure section
128.5 is within the sound discretion of the trial
court.” Wallis v. PHL Assocs., Inc. (2008) 168 Cal.
App. 4th 882, 893. The Court is not required to
impose any sanction at all. Kojababian v. Genuine
Home Loans, Inc. (2009) 174 Cal.App.4th 408,
422. Because our adversary system requires that
attorneys and litigants be provided substantial
breathing room to develop and assert factual and legal
arguments, sanctions should not be routinely or easily
awarded even for a claim that is arguably frivolous.
Courts must carefully consider the circumstances
before awarding sanctions. Peake v.
Underwood (2014) 227 Cal.App.4th 428, 448.

Here, it is not shown that sanctions must be imposed.

A few procedural issues were also noted. To
underscore the seriousness of the motion, the moving
party must strictly comply with the safe-harbor
requirements in §128.7(c)(1). Hart v.
Avetoom (2002) 95 Cal.App.4th 410, 414;
accord Interstate Specialty Marketing, Inc. v. ICRA
Sapphire, Inc. (2013) 217 Cal.App.4th 708,
716. Thus, the motion that was first served on the
opponent to start the safe-harbor period must be the
same motion that is filed with the Court, and it must
have identified a hearing date and time in the notice
of motion, to have been effective when sent. See
Galleria Plus v. Hanmi Bank (2009) 179
Cal.App.4th 535, 538. Here, the Court cannot tell if
this occurred as the movant did not supply the
triggering papers to the Court. (See Moving Brief at
5:21 and Reply Exs. 1 to 3). Also, a motion for
sanctions under § 128.7 is required to be separate
from any other requested relief [see §128.7(c)(1)
(stating “A motion for sanctions under this section
shall be made separately from other motions or
requests”); Civ. Proc Before Trial ¶ 9:1191 (“It also
prevents the moving party from seeking sanctions
both under § 128.7 and some other source of
sanctions power (e.g., sanctions for contempt or
violation of court orders) in the “same motion.””)
(Rutter Group 2016)]. It is unclear here if the two
sets of sanctions requests can be combined.

That said, the Court rejects some of Plaintiff’s
argument in the opposition brief, e.g. that
under Mediterranean Exports Inc. v. Sup. Ct. 119
Cal.App.3d 605, this matter had to be presented as a
summary judgment motion. That case was about a
party who was trying to strike the
corporation’s pleading, under CCP §435-36, on the
ground that the corporation had not qualified to do
business in California and could not maintain a
lawsuit. That court held, it was not proper to use
a pleading motion, because it required evidence. The
case is not applicable because this is not
a pleading motion under section 435. It is an
evidentiary motion under sections 128.7 and
128.5. Motions under the latter sections are
evidentiary motions. Civ. Pro. Before Trial ¶ 9:1104,
9:113 (noting they require supporting
declarations); Wallis, 168 Cal.App.4th 882, 893 (the
court receives evidence); Optimal Markets, Inc. v.
Salant (2013) 221 Cal.App.4th 912, 925.

Plaintiff shall give notice.

10 30-2014-713846
Lam VS Tran
Demurrer to Complaint in Intervention

On 4/18/17, Tom and Linh Tran filed a Complaint in
Intervention alleging 5 causes of action against J.
Scott Russo and Russo & Duckworth LLP. The Russo
parties now demur to the entire Complaint in
Intervention on the ground that the Trans lack
standing to sue because they are not real parties in
interest.

The court SUSTAINS the Demurrer with leave to
amend, on the first two grounds below. The Demurrer
is OVERRULED on all other remaining grounds.

First, the Russo parties argue correctly that it appears
that Tom and Linh Tran technically lack standing to
sue. Under PacLink Communications International
Inc. v. Superior Court (2001) 90 Cal.App.4th 958, 964-
965, only the LLC has standing to sue as the real
party in interest, because its individual members
cannot sue individually for the wrongs of others that
have damaged the LLC’s property rights. An individual
member of an LLC does not have an ownership
interest in the property or the profits. (Nelson v.
Anderson (1999) 72 Cal.App.4th 111, 126.)
Second, the Russo parties appear to argue correctly
that Linh Tran has failed to allege facts which would
show she has standing to sue based solely on her
alleged community property interest in her husband
Kevin Tran’s LLC memberships. There is no allegation
that she is a member of the LLC or is otherwise
authorized to sue on behalf of the LLC. The fact that
she may have a community property interest in her
husband’s membership interest in the LLC does not
confer on her a right to maintain a cause of action on
behalf of the LLC, if she has not membership interest
therein. (Franklin v. Franklin (1945) 67 Cal.App.2d
717, 725.)

In Opposition, the Trans have not adequately
addressed these first two arguments.

Third, the Russo parties argue that a receiver owes no
fiduciary duty to the judgment debtors, but this
appears to be incorrect in light of Morand v. Superior
Court (1974) 38 Cal.App.3d 347, 350: “The receiver is
not, except in a technical sense, an officer or
instrumentality of the court, but represents and is an
agent of the judgment debtor, the judgment creditor
at whose instance he was appointed, and such
other judgment debtors (sic) as may have caused the
receivership to be extended to their claims.”

Fourth, while it may be true that Tom Tran did not
object to or appeal from the court’s order appointing a
receiver, this point is irrelevant because there is no
showing that Tran consented to the alleged
misconduct of the Receiver.

The court GRANTS the Russo parties’ request for
judicial notice in support of their Reply.

11 30-2017-908347 Demurrer to Complaint
Hughes Cione, APLC VS
Staley
This case involves an attorney fee dispute. Before the
Court this day is a demurrer to the Complaint. The
demurrer must be continued.

Pursuant to CCP §430.41(a), before filing a demurrer:
 the parties shall meet and confer in person or by
telephone to resolve the dispute;
 the parties shall in good faith exchange legal
support for their respective positions;
 the moving party shall file and serve with the
demurrer a declaration demonstrating
compliance herewith.

Review of the Court file herein fails to reveal any
declaration describing any meet and confer effort
either before or since the demurrer was
filed. Although the parties have fully briefed their
legal positions, the meet and confer requirement is
not lip service – it is intended to facilitate resolution
between the parties. In this instance, resolution
appears feasible. As such, the parties are ordered to
do what they should have done in the first place: meet
and confer.

Demurrer continued to 07/21/17 at 9:30am here in
C20. Moving party to file/serve a Code-complaint
§430.41 declaration on or before 07/10/17.

12 30-2016-873986 Motion for Summary Judgment
Choi VS Winston

Defendants’ Motion for Summary Judgment Is
GRANTED.

The Declaration of John D. Hofbauer, M.D. includes
the following unrefuted expert opinions:

 Based upon my review of plaintiff YOUNG
CHOI’s medical records, it is my medical
opinion that defendants JEFFREY V. WINSTON,
M.C., JEFFREY V. WINSTON, M.D., INC. and
WINSTON EYE CARE acted within the standard
of care in the community for ophthalmologists,
and ophthalmology practices. Specifically he
correctly diagnosed plaintiff with cataracts,
gave him informed consent, performed the
subject surgery without complications and
provided proper post-op care. ¶ 18.

 Based upon my review of plaintiff YOUNG
CHOI’s medical records, it is my medical
opinion that defendants JEFFREY V. WINSTON,
M.C., JEFFREY V. WINSTON, M.D., INC. and
WINSTON EYE CARE did not cause, or
contribute to, plaintiff’s alleged injuries. ¶ 19.

Based on the declaration, Defendants have met their
burden of negating causation. The burden then
shifted to Plaintiff to show a triable issue of material
fact, but Plaintiff elected not to oppose the
motion. Under CCP §437c(b), Plaintiff’s failure to
oppose is sufficient to warrant granting the
motion. Thus, both substantively and procedurally,
Defendants are entitled to judgment.

Defendants to give notice.