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Case Name

Tentative

1

05CC10656

Barker

Off calendar at the request of moving party.

2

04CC12623

Condotta

(1)(2)(3)  Plaintiff Condotta’s motions to compel responses to form interrogatories, special interrogatories and requests for production of documents are granted.  Defendant Borcsok shall serve verified responses without objections within 10 days.  Borcsok and counsel of record (joint-and-several) shall pay Condotta $608.90 within 30 days.  No opposition filed. 

(4)(5)(6)  Condotta’s motions to compel responses to form interrogatories, special interrogatories and requests for production of documents are granted.  Defendant Abicom shall serve verified responses without objections within 10 days.  Abicom and counsel of record (joint-and-several) shall pay Condotta $608.90 within 30 days.  No opposition filed. 

(7)(8)(9)  Condotta’s motions to compel responses to form interrogatories, special interrogatories and requests for production of documents are granted.  Defendant X-Cel shall serve responses without objections within 10 days.  X-Cel and counsel of record (joint-and-several) shall pay Condotta $608.90 within 30 days.  No opposition filed.  Condotta to give notice.

3

05CC02478

Cooper

Plaintiff Cooper’s motion to compel further responses is (a) moot as to the form interrogatories, (b) granted as to special interrogatories 1-20, and (c) granted as to requests for production 10, 11, 12, 13, 14 and 16.  Wagner and Dimension defendants shall provide supplemental responses within 15 days.  No sanctions – imposition would be unjust because both parties failed to adequately meet-and-confer.  Cooper to give notice.

4

05CC02113

Darson

Henze defendants’ motion for terminating sanctions is granted for failure to comply with my 9-16-05 order.  Corns (1986) 181 CA3d 195.  No opposition filed.  Henzes to give notice.

5

04CC02896

Euperio

Euperio plaintiffs motion to tax costs is (a) granted as to witness fees [Item 8], and (b) denied as to all other challenged items.

• With respect to witness fees, under the facts of this case the CCP § 998 waiver of costs was not “reasonable.”  Wear (1981) 121 CA3d 818; Elrod (1987) 195 CA3d 692.  In any event, I exercise my discretion to not require the Euperio’s to pay these costs.  CCP § 998(c)(1); Thompson (2003) 112 CA4th 327; Wickware (1997) 53 CA4th 570.

• With respect to reporters fees [Item 12], these are per diem fees not transcript fees and are thus recoverable under CCP § 1033.5(a)(9). With respect to the other challenged items [deposition costs, travel/mileage expenses, and filing/motion fees], these costs are recoverable CCP § 1033.5(a)(1) and (a)(3), whether a 998 offer was made or not.  Euperios to give notice.

6

04CC12275

Pacific

Plaintiff Pacific’s motion for terminating sanctions, etc. is granted.  Defendant Bennett’s answer is stricken for failure to comply with my 9-23-05 order.  CCP § 2023.030(d)(1); Corns (1986) 181 CA3d 195.  Bennet shall pay Pacific $550 within 30 days.  CCP § 2023.030(a).  No opposition filed.  Pacific to give notice.  

7

04CC02564

PhotoMedex

(1) Plaintiff PhotoMedex’ motion for summary adjudication of liability on the implied covenant (2^nd) cause of action in the 2^nd amended complaint is denied for three reasons. 

• First, summary adjudication may not be granted as to liability alone (ie. without damages), because it would not completely dispose of the entire cause of action.  CCP § 437c(f)(1) 

• Second, PhotoMedex has failed to meet it’s initial burden under CCP § 437c(p)(1). The issue of whether the implied covenant has been breached is ordinarily a question of fact unless only one inference can be drawn from the evidence.  Hicks (2001) 89 CA 4th 496, 509.  PhotoMedix has failed to demonstrate only one inference can be drawn from the evidence. 

•Third, even if none of the foregoing were true, there are triable issues of material fact with respect to whether the implied covenant has been breached.  The essence of the good faith covenant is objectively reasonable conduct.  The covenant can be breached by objectively unreasonable conduct regardless of the actor’s motive.  Badie (1998) 67 CA 4th 779, 796.  Here, there are triable issues as to whether it was objectively unreasonable for the Edwards and Baxter defendants (collectively, “Defendants”) to cancel and defund the clinical trials, terminate the IDE protocol, transfer the rights to maintain the patent, and enter into the agreement with PCL.  (See: PhotoMedex Undisputed Fact Nos. 6, 8, 9, 11, 12, 15-19, 23-28, 30-40, 43-49, 51-59, 63- 65 and Exhibit “E” to the Inesta declaration; Defendants’ separate statement in opposition thereto; Defendants’ Additional Undisputed Fact Nos. 9, 10, 36-40, 46 and 47; all together with the evidence cited or referred to therein.) 

• I have chosen to exercise my discretion and refused to consider the O’Donnell and Berg declarations filed 11-23-05 in support of the reply papers.  San Diego Watercrafts (2002) 102 CA4th 308.  Defendants to prepare formal order and give notice.

(2) Defendants’ motion for summary judgment/adjudication on the 2^nd, 3^rd, 4^th and 5^th (implied covenant, money had, unjust enrichment and constructive trust) causes of action in the 2^nd amended complaint is denied for the following reasons: 

• With respect to the implied covenant cause of action, Defendants have failed to meet their initial burden under CCP § 437c(o)(1) and (p)(2).  Defendants’ contention that the implied covenant claim fails as a matter of law was rejected when raised by demurrer and must be rejected here as well.  This renewed contention probably constitutes an improper request for reconsideration because it fails to comply with CCP § 1008.  In any event, it is undisputed and irrelevant that Defendants have never given the formal notice required to terminate the MTA.  Instead the gravamen of the implied covenant claim is that Defendants have effectively terminated the MTA without giving the formal notice and granting the exclusive license as required.  There is no inconsistency between these alleged breaches of the implied covenant and the express covenants of the MTA.  The Carma, Storek, Gerdlund and Third Story cases cited by Defendants are therefore distinguishable.  The implied covenant can be used to keep one party from engaging in conduct which, while not technically transgressing the express covenants, frustrates the other party’s rights to the benefits of the contract.  Racine (1992) 11 CA 4th 1026.  Furthermore, discretionary powers vested in one party to take (or not take) action which affects the interests of the other party, must be exercised in good faith, and not arbitrarily or in disregard of the purposes of the contract and the interests of the other party.   Id.; Hicks (2001) 89 CA 4th 496.

•  With respect to the money had, unjust enrichment and constructive trust causes of action, Defendants’ renewed contentions that these claims fail as a matter of law were also previously raised by demurrer and appear to constitute an improper request for reconsideration that fails to comply with CCP § 1008.  In any event, these causes of action are founded upon the implied covenant cause of action.  It follows Defendants have failed to meet their initial burden here under CCP § 437c(o)(1) and (p)(2) for all of the reasons set forth above.   

• I have chosen to exercise my discretion and refused to consider the Defendants “reply to the separate statement” filed 11-23-05 in support of their reply papers.  I am aware of no case, statute or rule which authorizes or even permits the filing of a reply separate statement.  To the extent it presents additional evidence it is improper.  San Diego Watercrafts (2002) 102 CA4th 308.  To the extent it contains additional argument, it is improper because when combined with the reply points and authorities it exceeds the applicable page limitations.  CRC Rule 313(d).  PhotoMedex to prepare formal order and give notice. 

All requests for judicial notice are granted.  Insofar as the rulings described in (1) and (2) above are based upon evidence, I have relied only upon admissible evidence.  Biljac (1990) 218 CA3d 1410.  If the parties want detailed rulings on their objections to the specific evidence which forms the basis for my rulings, each objecting party shall submit prior to the hearing a proposed order setting forth each such individual item of evidence objected to verbatim, the grounds for that objection without argument, followed by the words "sustained" and "overruled", each with a box for the Court to check. 

8

05CC06660

Productos

Plaintiff and cross-defendant Productos’ demurrers to the cross-complaint are (a) sustained with 10 days leave to amend as to the 1^st, 2^nd, 3^rd, 4^th and 5^th (conversion, 17200, accounting, interference and fiduciary duty) causes of action, on failure to state grounds, and (b) overruled as to the 7^th (contract) cause of action.  Productos to give notice.

9

05CC03311

Ruelas

Cashman defendants’ demurrer to and motion to strike portions of the complaint are denied without prejudice for lack of proper service.  The proofs show mail service 10-27-05 on attorney Nguyen who withdrew on 6-17-05.  It appears plaintiff is in pro per and must be served at 225 East Florence, Anaheim CA 92805.  No opposition filed.  Cashman to give notice.

10

05CC06973

Tuma

(1) Dyson and Phillippi defendants’ motion contesting the good faith settlement application filed by defendants Prudential, Lagrow and Mansur-Brown is denied.  Moving parties have failed to sustain their burden of proof under CCP § 877.6(d).

(2) Dyson and Philippi’s motion for leave to file cross-complaint is therefore denied.  Prudential to give notice.

11

05CC10991

Ultimate

Off calendar at the request of moving party.

12

03CC14551

Proview

(1) Plaintiff Proview’s demurrers to defendant Tiger Direct’s 1^st amended cross-complaint are overruled.  The fraud claim is now adequately stated.  The remaining arguments either lack merit or raise factual issues which can not be resolved by demurrer.

(2) Proview’s motion to strike (punitive damage) portions of the 1^st amended cross-complaint is therefore denied.  Proview to answer within 10 days.  Tiger Direct to give notice.    

13

03CC07378

Salmacia

NOTICE: HEARING WILL COMMENCE AT 11:00 A.M.

The Court, sitting in equity on the 2nd (accounting) cause of action in plaintiff Salmacia’s first amended complaint, and the 4th (accounting) cause of action in the Ahrens defendants’ cross-complaint (collectively, the “Accounting Claims”), and having considered all of the briefs submitted by the parties, together with all of the evidence and arguments presented at trial, as well as the accountings proposed by the parties, tentatively rules as follows:

• The Accounting Claims are no longer viable, for at least two reasons.  First, to the extent the Accounting Claims seek to compel production and inspection of the financial books and records, the Accounting Claims are moot.  All of the relevant financial books and records have already been produced for inspection – either during discovery or during trial.

• Second, to the extent the Accounting Claims seek money damages, the Accounting Claims are necessarily inconsistent with and therefore barred by the jury’s verdict on the legal claims and the express or implied findings embodied therein.  To find otherwise would be to afford the parties a second bite at the apple which is neither required nor warranted in equity or in law under these circumstances.

• Alternatively, assuming arguendo the Accounting Claims are still viable (a) I approve and adopt the proposed accounting submitted by Ahrens as my own, and (b) I disapprove and reject the proposed accounting submitted by Salmacia.  The accounting submitted by Ahrens is supported by the evidence and the terms of the subject Agreement to Liquidate Partnership.  The accounting submitted by Salmacia is not.

• Ahrens shall file and serve a proposed judgment reflecting my tentative rulings above and the jury’s verdict.  At the time of filing, Ahrens shall also lodge with the Court an electronic copy (flash drive or e-mail MSWord document) of his proposed accounting and proposed judgment.  Ahrens to give notice.

14

02CC11310

LA Sound

NOTICE: HEARING WILL COMMENCE AT 1:30 P.M.

The following is not a tentative ruling per se and is offered only to help the parties prepare for argument.  Preliminarily, I commend and thank the parties for their outstanding work on the various post-trial memoranda and pleadings – all of which I have read more than once.  That being said, I am leaning towards adopting the proposed Statement of Decision as my own in most if not all respects.  The parties should therefore feel free to argue whatever issues raised by the proposed Statement of Decision they feel are important.  However, I would ask that you consider limiting your arguments to issues that are truly material.  Perhaps a “Top 3” or “Top 5” issues approach would be helpful.  Sometimes less is more.  I am particularly interested to hear argument on these issues:

(1)  The Andreini “agency” issue – Statement of Decision ¶ 1.

(2)  The “Callahan” issues – Statement of Decision ¶¶’s 12-15.  Do I really need to reach these issues at all if the primary basis for my ruling is misrepresentation/omission in the application ?

(3)  The “affirmative relief” and “personal liability” issues – Statement of Decision ¶¶’s 16-18.

(4)  The relevance, if any, of the following policy provisions:

• “Fraud and Misrepresentation” – General Rules, page 2 of 3.

• “Fraud or misrepresentation” and “Change in the risk” – California Required Endorsement, page 1 of 2, ¶¶’s 2 and 7.

(5)  The relevance, if any, of the apparent failure of LA Sound to disclose it’s activities with Hollywood Sound under the prior policy (VP09400230), since that policy was “automatically replaced” by the disputed policy (TE06102242) – Introduction, page 5.