Judge: Maurice A. Leiter, Case: 19STCV17195, Date: 2023-08-24 Tentative Ruling

Case Number: 19STCV17195    Hearing Date: October 26, 2023    Dept: 54

Hearing Date: October 26, 2023

Department 54, Judge Maurice A. Leiter

Demurrer to Cross-Complaint and Motion to Strike

Moving Party: Plaintiff/Cross-Defendant Nicolle DeSanto

Responding Party: Defendants/Cross-Complainants Lynda Medof Levin, et al.

T/R:      CROSS-DEFENDANT’S DEMURRER IS OVERRULED.

CROSS-DEFENDANT'S MOTION TO STRIKE IS DENIED.

CROSS-DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On May 17, 2019, Plaintiff Nicolle DeSanto sued Defendants, alleging that since she moved into the unit owned and/or managed by Defendants in 1994, the unit has been uninhabitable, and Defendants have failed to repair several issues, such as water damage, mold, and gas leaks.

On August 25, 2023, Defendants filed a cross-complaint against Plaintiff for specific performance of a settlement agreement allegedly executed by the parties during this litigation.

ANALYSIS

A. Demurrer to Cross-Complaint

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

Plaintiff/Cross-Defendant demurs to the cross-complaint for specific performance on the ground that Cross-Complainants have failed to allege breach of contract. Cross-Defendant argues she did not breach the agreement and Cross-Complainants have not performed their obligations under the agreement. As stated, the Court must treat the allegation in the cross-complaint as true. Cross-Complainants allege the parties entered into a settlement agreement, Cross-Complainants performed or were excused from performance, Cross-Defendant breached the agreement and Cross-Complainants were damaged as a result. This is sufficient to state a cause of action for breach of contract.

Cross-Defendant's demurrer is OVERRULED.

B. Motion to Strike

“Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part" of that pleading. (CCP § 435(b)(1).) “The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter asserted in any pleading; (b) Strike out 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.)

Cross-Defendant moves to strike various allegations that purportedly conflict with the exhibits attached to the cross-complaint and to strike the prayer for attorney’s fees because Cross-Defendant did not breach the agreement. This is not grounds to strike these allegations.

 Cross-Defendant also moves to strike references to the mediation on the ground that they are privileged. Evid. Code § 1119(a) provides, “No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.”

Cross-Complainants assert the privilege does not apply because the agreement is in writing and states that it is binding and/or enforceable. Evid. Code § 1123 provides, “A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if the agreement is signed by the settling parties and any of the following conditions are satisfied: ... (b) The agreement provides that it is enforceable or binding or words to that effect.”

The portions of the Cross Complaint Cross-Defendant seeks to strike merely refer to the existence of the agreement and the fact that it was reached through mediation. The Court will address at trial any objections to communications made during the mediation that may be privileged under Evidence Code § 1119(a).

Hearing Date: October 26, 2023

Department 54, Judge Maurice A. Leiter

Motion to Enforce Subpoena for Business Records

Moving Party: Plaintiff Nicolle DeSanto

Responding Party: Third-Party Monterey Insurance Company

T/R:      PLAINTIFF’S MOTION IS DENIED.

PLAINTIFF TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On May 17, 2019, Plaintiff Nicolle DeSanto sued Defendants, alleging that since she moved into the unit owned and/or managed by Defendants in 1994, the unit has been uninhabitable, and Defendants have failed to repair several issues, such as water damage, mold, and gas leaks.

On August 25, 2023, Defendants filed a cross-complaint against Plaintiff for specific performance of a settlement agreement allegedly executed by the parties during this litigation.

ANALYSIS

CCP § 1987.1 provides, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.”

Plaintiff moves to enforce a subpoena served on third-party Monterey Insurance Company seeking documents relating to Defendant’s insurance policy with Monterey. In response, Monterey provided declarations discussing the general nature and policy limits of its policy with Defendant. Monterey objected to providing additional documents on the grounds of privacy, relevance, and inadmissibility of insurance information at trial.

Plaintiff asserts the documents are relevant to show Defendants withheld information in discovery because Defendants did not disclose the Monterey policy until later in litigation. The Court sees no need for any additional documents to show this. Monterey has provided the basic information regarding the policy. Plaintiff has not shown the relevance of additional documents.

Plaintiff’s motion is DENIED.