Judge Gary Y. Tanaka, Case 21TRCV00225 2023-01-12 Tentative Ruling

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Thursday, January 12, 2023

Department B Calendar No. 4

2. Christa Haggai Ramey and John F. Ramey’s Demurrer to Third Amended Complaint

5. Sanford Jossen, et al.’s Motion to Compel Responses to Special Interrogatories, Set One (Last 4 of Res. ID # 9957)

6. Sanford Jossen, et al.’s Motion to Compel Further Responses to Request for Production of Documents, Set Two (3859)

7. Sanford Jossen, et al.’s Motion to Deem Admissions Propounded to Christa Ramey Admitted (2967)

Christa Haggai Ramey and John F. Ramey’s Demurrer to Third Amended Complaint is sustained without leave to amend.

Ramey Law, P.C.’s Motion for Protective Order is granted, in part, and denied, in part.

Sanford Jossen, et al.’s Motion to Compel Responses to Special Interrogatories, Set One, and Motion to Compel Further Responses to Request for Production of Documents, Set Two, are granted, in part, and denied, in part.

Sanford Jossen, et al.’s Motion to Deem Admissions Propounded to Christa Ramey Admitted is denied, in part, and granted, in part.

Plaintiffs’ Complaint was filed on March 24, 2021. Plaintiffs’ Third Amended Complaint was filed on May 9, 2022. Plaintiffs allege the following facts. Plaintiffs referred a legal action to Defendants. Defendants agreed to pay Plaintiffs 40 percent of all attorneys’ fees. Defendants settled the case for $380,000.00 and received $128,666.67 in attorneys’ fees. However, Defendants failed to pay Plaintiffs the referral fee. Plaintiffs allege the following causes of action: 1. Breach of Written Contract; 2. Common Counts.

Defendants set forth meet and confer declarations in sufficient compliance with CCP § 430.41. (Decls., Brooke L. Bove.)

Plaintiffs’ objection to Defendants’ purported Request for Judicial Notice is moot. The Court is not aware of, and the Court’s file does not indicate that a request for judicial notice was filed in connection with the Demurrers.

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.) Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Defendants demur as follows: “This Demurrer is made on the grounds that the defects, as set forth below, appear on the face of Plaintiffs’ Third Amended Complaint and that the causes of action in this operative Complaint are inappropriate as a matter of law and/or are otherwise uncertain. (See C.C.P. §430.10 and 430.30).” (Notices of Demurrers, page ii). Uncertainty is a ground for demurrer pursuant to CCP § 430.10(f). However, the Court notes that “inappropriateness” is not a ground for demurrer. However, the Court does note that in the body of the memorandum of points and authorities Defendants do refer to CCP § 430.10(e) – failure to state sufficient facts to state a cause of action.

Defendant’s demurrer to the first cause of action is overruled. Plaintiff states sufficient facts to constitute a cause of action and the cause of action is not uncertain.

“The elements of a cause of action for breach of contract are: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.” Coles v. Glaser (2016) 2 Cal.App.5th 384, 391.

The cause of action is not uncertain. The identity of the Plaintiff or Plaintiffs is adequately explained. While two Plaintiffs are named and asserted in the caption – Sanford Jossen and Law Offices of Sanford Jossen, Plaintiff has adequately alleged that there is only one Plaintiff – Sanford Jossen, an individual doing business as Law Offices of Sanford Jossen. (TAC, ¶ 2.) The attached agreements indicated a signature line for Law Offices of Sanford Jossen. Further, the parties have explained and appear to agree that the reference in Exhibit C to a completely different party – Omega Law Group, P.C. – was merely a typographical error.

Plaintiff states sufficient facts to meet the elements of the cause of action for Breach of Contract – the formation and existence of the contract, Plaintiff’s performance or excuse for non-performance, Defendant’s breach, and resulting damages. (TAC, ¶¶ 29-47.) Defendant’s arguments on demurrer rely on factual matters outside the scope of the pleadings.

Defendant’s demurrer to the second cause of action is overruled. Plaintiff states facts sufficient to state a cause of action.

“A common count is not a specific cause of action ...; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory.” Avidor v. Sutter's Place, Inc. (2013) 212 Cal.App.4th 1439, 1454 (internal citations and quotations omitted).

“The averment of an indebtedness not by stating the actual ultimate facts in each particular case, but by using one of a series of generalized forms consisting in part of legal conclusions, is directly opposed to a basic principle of code pleading. Nevertheless, when the codes were adopted the familiarity of lawyers with the form, and its simplicity and convenience, were sufficient to overcome this objection. And today in nearly all code states and in the federal practice the common counts are permissible and widely used. In California, it is settled that they are good against special as well as general demurrers.” Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 707, fn. 2 (internal quotation and citation omitted).

“When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” McBride v. Boughton (2004) 123 Cal.App.4th 379, 394. Plaintiff has alleged facts to indicate that Defendant became indebted to Plaintiff the sum of $51,466.68. (TAC, ¶¶ 48-50.)

Defendant Ramey Law, P.C. is ordered to file and serve an Answer within 10 days of this date.

Defendants’ demurrer is sustained without leave to amend. Plaintiff fails to state sufficient facts to state a cause of action against individual Defendants Christa Haggai Ramey and John F. Ramey. The plain face of the agreements that were attached indicates that the party to the contract was solely Ramey Law, P.C. Plaintiffs argue that the individual Defendants were alter egos of Ramey Law, P.C.

“In California, two conditions must be met before the alter ego doctrine will be invoked. First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist. Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone.” Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538.

Among the factors to be considered in applying the alter ego doctrine are commingling of funds and other assets of the two entities, the holding out by one entity that it is liable for the debts of the other, identical equitable ownership in the two entities, use of the same offices and employees, and use of one as a mere shell or conduit for the affairs of the other. See, Id. at 538-539. Other factors include inadequate capitalization, disregard of corporate formalities, lack of segregation of corporate records, and identical directors and officers. See, Id. at 539. No one characteristic governs. The courts must look at the totality of the circumstances to determine whether the doctrine should be applied. See, Id.

“It is well recognized that the law permits the incorporation of businesses for the very purpose of isolating liabilities among separate entities. Since society recognizes the benefits of allowing persons and organizations to limit their business risks through incorporation, sound public policy dictates that disregard of those separate corporate entities be approached with caution.” Pacific Landmark Hotel, Ltd. v. Marriott Hotels, Inc. (1993) 19 Cal.App.4th 615, 628 (internal citation omitted). “It is the plaintiff's burden to overcome the presumption of the separate existence of the corporate entity.” Mid-Century Ins. Co. v. Gardner (1992) 9 Cal.App.4th 1205, 1212.

“[P]laintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true and thus a pleading made on information and belief is insufficient if it merely assert[s] the facts so alleged without alleging such information that lead[s] [the plaintiff] to believe that the allegations are true.” Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158–1159 (internal citations and quotations are omitted; emphasis in original.)

Here, Plaintiff has only pled conclusions and matters upon information and belief to support the alter ego allegations. (TAC, ¶¶ 15-20.) Plaintiff has failed to plead facts to demonstrate why he believes that the matters set forth under information and belief are true. No factual allegations were pled to support Plaintiff’s belief and alleged information that Defendants are alter egos. Therefore, Plaintiff’s alter ego allegations against the individual Defendants are lacking in facts to support a theory of liability based on alter ego liability.

The demurrer to the first and second causes of action is sustained without leave to amend. The Court notes that only Christa Ramey was named as a party to the second cause of action despite the fact that both individual Defendants were named in the first cause of action.

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP § 437.

Plaintiff moves to strike the Demurrers based on Plaintiff’s belief that Defendants are conducting abusive discovery tactics. Plaintiff has not identified any irrelevant, false, or improper matter with respect to the Demurrers themselves, and have failed to specify any authority to show that a party may strike another party’s Demurrer based on Plaintiff’s belief that the other party has been conducting discovery in an improper manner.

Of course, there is authority for a party to move for terminating sanctions under the Discovery Act in situations involving egregious and willfully abusive discovery practices. The Court notes that the only legal authority referenced by Plaintiff refers to a motion for terminating sanctions. Plaintiff is upset because he has “been forced to file ten Motions to compel.” (Motion, page 4, lines 25-26.) However, Plaintiff has not definitively established that Defendants have engaged in a willful misuse of discovery which warrants the imposition of terminating sanctions.

The Court is authorized to limit discovery through a protective order. The order may be granted on motion of any party or other person affected by the discovery sought. CCP §§ 2017.020(a), 2019.020(b), 2019.030(a). A protective order may be obtained to limit the frequency or extent of use of any discovery method on any of the following grounds: (1) “The discovery sought is unreasonably cumulative or duplicative …; (2) “(The information) is obtainable from some other source that is more convenient, less burdensome or less expensive; (3) “The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.” CCP § 2019.030(a)(1)-(2).

“(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(3) That a video recording of the deposition testimony of a treating or consulting physician or of any expert witness, intended for possible use at trial under subdivision (d) of Section 2025.620, be postponed until the moving party has had an adequate opportunity to prepare, by discovery deposition of the deponent, or other means, for cross-examination.

(4) That the deposition be taken at a place other than that specified in the deposition notice, if it is within a distance permitted by Sections 2025.250 and 2025.260.

(5) That the deposition be taken only on certain specified terms and conditions.

(6) That the deponent's testimony be taken by written, instead of oral, examination.

(7) That the method of discovery be interrogatories to a party instead of an oral deposition.

(8) That the testimony be recorded in a manner different from that specified in the deposition notice.

(11) That all or certain of the writings or tangible things designated in the deposition notice not be produced, inspected, copied, tested, or sampled, or that conditions be set for the production of electronically stored information designated in the deposition notice.

(12) That designated persons, other than the parties to the action and their officers and counsel, be excluded from attending the deposition.

(13) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only to specified persons or only in a specified way.

(14) That the parties simultaneously file specified documents enclosed in sealed envelopes to be opened as directed by the court.

(15) That the deposition be sealed and thereafter opened only on order of the court.

(16) That examination of the deponent be terminated. If an order terminates the examination, the deposition shall not thereafter be resumed, except on order of the court.”

Defendants set forth a meet and confer declaration in substantial compliance with CCP § 2025.420(a). (Declaration, John F. Ramey, ¶¶ 16-17.)

Defendants move for a protective order to limit the timing and scope of the depositions of Christa Ramey and John Ramey. The Notice of Motion is not specific as to the specific type of order that is requested. However, pages 16 and 17 of the Memorandum of Points and Authorities appear to provide more specificity: “[I]t is respectfully requested that the Court issue Protective Order, in substantially the following regards: 1. Limiting the scope of the deposition to the matters directly related to the fee dispute between the parties. 2. Limiting the scope of the production of documents and questions related to those requests as set forth in the Separate Statement served concurrently herewith. 3. Awarding sanctions in the amount of $7,860.00 payable to Defendants for having to bring this motion.” (Motion, pages 16-17.)

As to item number 1, the Court declines to issue a blanket order with the language requested above. Discovery extends to any information that may reasonably lead to evidence that may be admissible at trial. The test is whether the information sought might reasonably lead to other evidence that would be admissible at trial. CCP § 2017.010; Davies v. Superior Court (1984) 36 Cal.3d 291, 301. Thus, the Court cannot make an order that the scope of discovery must be directly related to the “fee dispute” because, in theory, discovery is permissible so long as the inquiry may lead to admissible evidence. The Court’s ruling, herein, however does not foreclose the possibility that specific discovery methods or questions and requests for production may be subject to proper objections based on well-established privileges such as attorney/client, work product, and/or right of privacy, or on other grounds.

As to item number 2, the Court rules as follows with respect to the requests for production of documents identified in the deposition notice that were specifically identified in the separate statement.

As to Requests 1, 7, 8, 10, 11, 13 to 16, and 34 to 58, the motion for protective order is granted. The requests are overly broad, not designed to lead to the discovery of admissible evidence, and/or directly implicate privileged matters such as attorney/client, attorney work product, and/or right of privacy.

As to Requests 2, 4, 22 to 26, 28 to 30, and 32, the motion for protective order is denied. The Court’s order of denial is simply based on the fact that, from the matters set forth in the motion and evidence supported thereof, an entitlement to a blanket protective order with respect to these requests has not been established. The ruling, however, does not preclude the ability to object to specific requests based on proper objections such as the privileges noted above. Instead, the ruling simply notes that the Court cannot rule, for purposes of a protective order, that all inquiries and/or requests for production of documents in the categories listed above are subject to a protective order.

Sanford Jossen, et al.’s Motion to Compel Responses to Special Interrogatories, Set One and Motion to Compel Further Responses to Request for Production of Documents, Set Two

CCP § 2030.290 states: “If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply…The party propounding the interrogatories may move for an order compelling response to the interrogatories.” (CCP § 2030.290(b).)

CCP § 2031.300 states: “If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: The party making the demand may move for an order compelling response to the demand.” (CCP § 2031.300(b)).

Plaintiff moves to compel initial responses from Defendant Ramey Law Group to Special Interrogatories, Set One, and Request for Production of Documents, Set Two. The Court notes that while the word “further” is included in the latter motion, a review of the motion itself shows that this is a motion to compel initial responses.

Plaintiff states that he served Special Interrogatories, Set One, by email on March 11, 2022, and that he served Request for Production of Documents, Set Two, by email on March 14, 2022. (Decls., Jossen). However, the Court notes that as to the former motion, the proof of service attached appears to indicate that the document was served by mail on March 4, 2022. As to the latter document, the Court notes that the proof of service indicates that the document was served by mail on March 14, 2022.

This discrepancy is important because Defendant denies ever being served with the subject discovery requests noted above. With the Reply, Plaintiff attaches the emails that purportedly served Defendant with the subject discovery requests. Thus, it appears that Plaintiff is acknowledging that the proofs of service which indicated that the discovery requests were served by regular mail were incorrect. However, also attached with the Reply was Exhibit 1 which appears to indicate that the discovery requests were served by email and received by Defendants but were sent to the spam folder of Defendant’s former counsel. There is no showing, even at this time, that Defendant has served any responses to these discovery requests.

Thus, the motions to compel responses are granted. Defendant is ordered to serve responses, without objections, within 10 days of this date.

CCP § 2033.280(b) states: “The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010).” (CCP § 2033.280(b))

On June 23, 2022, Plaintiff Sanford Jossen served Requests for Admissions, Set One, upon Defendant John Ramey. On July 28, 2022, Defendant served unverified responses. (Declaration, Sanford Jossen, ¶¶ 3-5). Unverified responses are tantamount to no responses at all. See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.

Defendant filed a written opposition which shows that the verification was served on September 22, 2022. (Exhibits D-E).

Thus, Plaintiff’s Motion to Deem Requests for Admissions Admitted is denied because the responses are in sufficient compliance with Section 2033.220. Code Civ. Proc., § 2033.280(c).

Plaintiff’s request for monetary sanctions is granted. Verified responses were only served after the motion was filed. Cal. Rules of Court, Rule 3.1348(a). Further, as to a Motion to Deem Requests for Admissions Admitted, it is mandatory to impose monetary sanctions on a party and/or attorney whose failure to serve a timely response necessitated the filing of the motion. CCP § 2033.280(c).

Sanctions are awarded in favor of Plaintiff and against Defendant in the total amount of $510.00. The hourly rate sought of $450 is a reasonable rate. The time allotted for preparation and appearance was 1 hour. Plaintiff was also awarded $60 in filing fees. Sanctions are payable within 30 days of this date