Judge Michael P. Linfield, Case 19STCV36480 2022-08-31 Tentative Ruling

Judge: Michael P. Linfield, Case: 19STCV36480, Date: 2022-08-31 Tentative Ruling

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SUBJECT: Motion of Defendants Big Bus Tours Los Angeles, Inc., and Open Top Sightseeing USA for Summary Adjudication

Moving Party: Defendants Big Bus Tours Los Angeles, Inc., and Open Top Sightseeing USA (collectively, “Big Bus”)

Defendants Big Bus Tours Los Angeles, Inc. and Open Top Sightseeing USA's Motion for Summary Adjudication is DENIED as to the First and Second Causes of Action and GRANTED as to the Third and Fourth Causes of Action.

On October 11, 2019, Plaintiffs Starline Tours of Hollywood, Inc. filed a complaint against Defendants Big Bus Tours Los Angeles, Inc., Open Top Sightseeing USA, and Chris Schlesinger alleging the following causes of action:

On June 3, 2022, Defendants Big Bus Tours Los Angeles, Inc., and Open Top Sightseeing USA moved for summary adjudication against Plaintiff Starline Tours of Hollywood, Inc. as follows:

1. “Issue 1: Summary adjudication in favor of Big Bus with respect to the fourth cause of action in Plaintiff’s complaint, for negligent interference with prospective economic relations, on the ground that there is no genuine issue as to any material fact relating to that cause of action, there is no merit to the cause of action, and Big Bus is entitled to summary adjudication as a matter of law.

2. Issue 2: Summary adjudication in favor of Big Bus with respect to the second cause of action in Plaintiff’s complaint, for intentional interference with contractual relations, on the ground that there is no genuine issue as to any material fact relating to that cause of action, there is no merit to the cause of action, and Big Bus is entitled to summary adjudication as a matter of law.

3. Issue 3: Summary adjudication in favor of Big Bus with respect to the third cause of action in Plaintiff’s complaint, for intentional interference with prospective economic advantage, on the ground that there is no genuine issue as to any material fact relating to that cause of action, there is no merit to the cause of action, and Big Bus is entitled to summary adjudication as a matter of law.

4. Issue 4: Summary adjudication in favor of Big Bus with respect to the first cause of action in Plaintiff’s complaint, for unfair competition, on the ground that there is no genuine issue as to any material fact relating to that cause of action, there is no merit to the cause of action, and Big Bus is entitled to summary adjudication as a matter of law.” (Motion for Summary Adjudication (“MSA”), p. 2:8-26.)

On August 5, 2022, Starline opposed Big Bus’s motion for summary adjudication.

On August 9, 2022, Big Bus moved the Court for “for Orders compelling the attendance at deposition of the Person(s) Most Qualified of Plaintiff Starline Tours of Hollywood, Inc. (“Starline” or “Plaintiff”) to testify on the matters designated in Big Bus’s Notice of Deposition of Plaintiff’s Person(s) Most Qualified (the “PMQ Depo Notice”), as well as the depositions of Starline officers and employees Kamrouz Farhadi, Shoeleh Sapir, and Gwendolyn Slaughter, as set forth in the notices of depositions of each of those individuals (collectively, the “Starline Officer Depo Notices”).” (Motion to Compel Depositions (“MTCD”), p. 2:5-11.) Big Bus further moved the Court “for monetary sanctions against plaintiff, Starline Tours of Hollywood, Inc., and its attorneys of record pursuant Code of Civil Procedure section 2025.450 in the amount of $8,625.” (MTCD, p. 2:19-20.)

On August 12, 2022, Big Bus replied to Starline’s opposition to its motion for summary adjudication.

On August 18, 2022, Starline opposed Big Bus’s motion to compel depositions and request for monetary sanctions.

On August 24, 2022, Big Bus replied to Starline’s opposition to its motion to compel depositions.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) When a plaintiff seeks summary judgment or adjudication, the plaintiff must produce admissible evidence on each element of each cause of action on which judgment is sought. (CCP § 437c(p)(1).) The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (CCP § 437c(p).)

"A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (CCP § 437c(f)(1).)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; CCP § 437c(c).)

“Declarations must show the declarant's personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion. The declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed.” (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779, quoting Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761; see also CCP § 437c(d).)

In analyzing motions for summary judgment, courts must apply a three-step analysis: "(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue." (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.)

“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (CCP § 437c(f)(1).) “If a cause of action is not shown to be barred in its entirety, no order for summary judgment — or adjudication — can be entered.” (McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 975; Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 476; Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1290.) “The purpose of the enactment of¿Code of Civil Procedure section 437c, subdivision (f)¿was to stop the practice of piecemeal adjudication of facts that did not completely dispose of a substantive area.” (Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97.)

On August 5, 2022, Starline submitted evidentiary objections to the Declaration of Creswell Templeton III filed in support of Big Bus’s Motion of Summary Adjudication and requested that the Court strike certain paragraphs of the declaration. The following constitutes the Court’s rulings on these objections.

Objection
1		OVERRULED
2		OVERRULED
3		OVERRULED
4		OVERRULED
5		OVERRULED
6		OVERRULED
7		OVERRULED
8		OVERRULED
9		OVERRULED
10		OVERRULED
11		OVERRULED
12		OVERRULED
13		OVERRULED

On August 5, 2022, Starline submitted evidentiary objections to the Declaration of Julia Conway filed in support of Big Bus’s Motion of Summary Adjudication and requested that the Court strike certain paragraphs of the declaration. The following constitutes the Court’s rulings on these objections.

On August 12, 2022, Big Bus submitted evidentiary objections to the Declarations of Kamrouz Farhadi and Mohammed K. Ghods filed by Starline in opposition to Big Bus’s Motion of Summary Adjudication. The following constitutes the Court’s rulings on these objections.

Objection	SUSTAINED	OVERRULED
1	SUSTAINED
2	SUSTAINED
3		OVERRULED
4		OVERRULED
5		OVERRULED
6		OVERRULED
7	SUSTAINED
8		OVERRULED
9	SUSTAINED
10	SUSTAINED
11		OVERRULED
12		OVERRULED
13		OVERRULED
14		OVERRULED
15	SUSTAINED
16	SUSTAINED
17		OVERRULED
18		OVERRULED
19		OVERRULED
20		OVERRULED
21		OVERRULED
22	SUSTAINED
23	SUSTAINED
24		OVERRULED
25		OVERRULED
26		OVERRULED
27		OVERRULED
28		OVERRULED
29		OVERRULED
30		OVERRULED
31		OVERRULED
32		OVERRULED
33	SUSTAINED
34		OVERRULED
35		OVERRULED
36		OVERRULED
37		OVERRULED
38		OVERRULED
39		OVERRULED
40		OVERRULED
41		OVERRULED
42		OVERRULED

1. Fourth Cause of Action for Negligent Interference with Prospective Economic Advantage

“The tort of negligent interference with prospective economic advantage is established where a plaintiff demonstrates that (1) an economic relationship existed between the plaintiff and a third party which contained a reasonably probable future economic benefit or advantage to plaintiff; (2) the defendant knew of the existence of the relationship and was aware or should have been aware that if it did not act with due care its actions would interfere with this relationship and cause plaintiff to lose in whole or in part the probable future economic benefit or advantage of the relationship; (3) the defendant was negligent; and (4) such negligence caused damage to plaintiff in that the relationship was actually interfered with or disrupted and plaintiff lost in whole or in part the economic benefits or advantage reasonably expected from the relationship.” (Venhaus v. Shultz (2007) 155 Cal.App.4th 1072, 1078.)

The parties agree that Starline and Big Bus were competitors. (Defendant Big Bus’s Separate Statement of Undisputed Material Facts (“BBSS”), Nos. 1-3; Plaintiff Starline’s Response to Big Bus’s Separate Statement (“SRSS”), Nos. 1-3.) The Court finds the alleged confidentiality agreement to which Starline and Big Bus entered during acquisition talks insufficient to alter the basic nature of the parties’ relationship. No duty of care may exist between competitors sufficient to allow a negligent interference with prospective economic advantage tort cause of action. (Stolz v. Wong Communications Limited Partnership (1994) 25 Cal.App.4th 1811, 1825; see also Spice Jazz LLC v. Youngevity International, Inc. (S.D. Cal., Sept. 19, 2019, No. 19-CV-583-BAS-WVG) 2019 WL 4573705, p. 6.)

There are no triable issues of material fact as to the required elements of Negligent Interference with Prospective Economic Advantage. The Motion for Summary Adjudication as to the Fourth Cause of Action for Negligent Interference with Prospective Economic Advantage is GRANTED.

2. Third Cause of Action for Intentional Interference with Prospective Economic Advantage

“For intentional interference, the plaintiff must plead and prove: (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship. With respect to the type of intentional disruptive acts that are actionable, they must be wrongful by some independent legal measure, beyond interference.

“Next, an intentional interference claim requires setting forth facts of (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant. A proximate cause showing is required for a plaintiff to recover for harm that is closely connected to the defendant's alleged wrongful conduct.” (Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Assn. (2018) 19 Cal.App.5th 399, 429–430 (cleaned up); see also San Jose Construction, Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1544-1545.)

Starline’s Complaint alleges that a Big Bus Operations Manager distributed flyers designed to entice Starline drivers to abandon Starline and join Big Bus. (Complaint, ¶ 53.) Big Bus argues that Starline “failed to identify or produce any contracts between it and its drivers, despite Big Bus’s request for them.” (MSA, MPA, p. 19:9-10.) Further, Big Bus argues that it lacked knowledge of any contracts between Starline and its drivers. (MSA, MPA, p. 19:19-20.) Starline later identified during discovery former Starline drivers and tour guides “who were induced by Big Bus to breach an employment relationship with Starline.” (SRSS No. 9.)

Employment in the State of California “having no specified term, may be terminated at the will of either party on notice to the other.” (Labor Code § 2022.) Though Starline notes that Big Bus employment applications “show that at least some Starline employees left Starline around the same time as Big Bus was trespassing on Starline's property in the Spring of 2019 and completed employment applications with Big Bus,” Starline produces no authority to suggest that these former employees lacked the right to terminate their employment relationship with Starline and enter an employment relationship with Big Bus. (SRSS No. 20; Ghods Decl., ¶ 8.)

Starline notes that (1) “Big Bus obtained Starline’s confidential information, including business, financial, employment, and trade secret information during negotiations for Big Bus’s purchase of Starline.” (Starline’s Additional Material Facts (“SAMF”), No. 4.) Further, “Big Bus agents trespassed on Starline’s property in Spring 2019 in an effort to steal Starline employees and harm Starline’s business.” (SAMF, No. 19.)

Starline argues that Big Bus knew or had reason to know of the employment relationship between Starline and its drivers and solicited those drivers by trespassing on Starline property to distribute flyers that advertised employment with Big Bus. However, the Court has no evidence that any of the drivers Starline identifies left Starline to work for Big Bus as a direct result of Big Bus’s alleged interference. Starline has not produced declarations from any former Starline drivers or tour guides who attests that Big Bus’s interference precipitated their move from Starline to Big Bus.

Even if Starline identified drivers who would attest to switching employment based on Big Bus’s flyer, the Court might well still deny summary adjudication on this issue. Starline did not identify any employment contracts with its drivers or tour guides. (BBSS No. 8; SRSS No. 8.) Should a Starline employee learn of possible employment with Big Bus because of written material advertising such employment, that employee has the right to terminate their employment with Starline and apply for employment with Big Bus. (See Labor Code § 2922.) Starline has not meet its evidentiary burden to identify the contract to which Big Bus allegedly interfered.

There are no triable issues of material fact as to the required elements of Intentional Interference with Prospective Economic Advantage. Summary adjudication as to the Third Cause of Action is GRANTED.

To prevail on a cause of action for intentional interference with contractual relations, a plaintiff must plead and prove (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. To establish the claim, the plaintiff need not prove that a defendant acted with the primary purpose of disrupting the contract but must show the defendant's knowledge that the interference was certain or substantially certain to occur as a result of his or her action. (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.)

Starline notes that Big Bus’s motion “did not address Starline’s contracts with Vector, Hollywood & Highland mall, Chinese Theater, etc.”, an oversight that renders summary adjudication of the Second Cause of Action inappropriate because a summary adjudication motion may only be granted if it completely disposes of a cause of action. (CCP § 437c, subd. (f)(1); McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 975; Opposition, p. 16:8-10.) Big Bus notes that these other named third-party entities that have contracts with Starline were not referenced in the Complaint, and only emerged in Starline’s May 15, 2020 discovery responses. (Reply, p. 9:8—10:18.)

“The complaint circumscribes the claims and theories the defendants must meet on a motion for summary judgment.” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 n. 7.) A summary judgment motion may not be granted or denied on issues not raised in the pleadings. (Laabs, 163 Cal.App.4th at 1258.) However, Starline’s complaint referred to Starline’s “valid and enforceable contracts with its employees and vendors, including but not limited to LPG through its Go Card system.” (Complaint, ¶ 36.) Starline did not originally circumscribe its Intentional Interference with Contract claim to the Leisure Pass Group, and as Big Bus notes, given discovery Big Bus has been aware of Starline’s contract interference concerns as they relate to other vendors since May 15, 2020.

“Though often said, it appears necessary to again reiterate that a summary judgment is a drastic measure which deprives the losing party of a trial on the merits.” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395, quoting Bunzel v. American Academy of Orthopaedic Surgeons (1980) 107 Cal.App.3d 165, 169.) The Court recognizes the clear impropriety when a party is allowed to raise unpled issues in opposition to a summary adjudication motion. However, Starline’s Complaint did not suggest that Big Bus intentionally interfered with its contract with Leisure Pass Group only, and the Court does not find it likely that Big Bus would be prejudiced by a trial on the merits that addressed all Starline’s third-party vendor contracts referenced during discovery.

Triable issues of material fact persist as to allegations of contract interference by Big Bus against Starline’s third-party vendor contracts. The Motion for Summary adjudication as to the Second Cause of Action is DENIED.

“As used in this chapter, unfair competition shall mean and include any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” (Bus. & Prof. Code, § 17200.)

The Court finds that triable issues of material fact persist as to allegations of contract interference with Starline’s third-party vendors. (SAMF Nos. 7-11.) The Motion for Summary Adjudication as to the First Cause of Action is DENIED.

SUBJECT: Defendants Motion to Compel Depositions of: (1) Plaintiff’s Person(s) Most Qualified, (2) Kamrouz Farhadi, (3) Shoeleh Sapir, and (4) Gwendolyn Slaughter; Request for Monetary Sanctions of $8,625.00

Moving Party: Defendants Big Bus Tours Los Angeles, Inc., and Open Top Sightseeing USA

Defendants Big Bus Tours Los Angeles, Inc., and Open Top Sightseeing USA’s Motions to Compel Depositions of Plaintiff Starline Tours of Hollywood, Inc.’s Person(s) Most Qualified, and employees Kamrouz Farhadi, Shoeleh Sapir, and Gwendolyn Slaughter are all GRANTED.

Defendants Big Bus Tours Los Angeles, Inc., and Open Top Sightseeing USA’s Request for Monetary Sanctions is DENIED.

On August 18, 2022, Starline opposed Big Bus’s motion to compel depositions and request for monetary sanctions.

On August 24, 2022, Big Bus replied to Starline’s opposition to its motion to compel depositions.

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.¿(CCP § 2025.010.)¿A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.¿(CCP § 2025.280, subd. (a).)

“If, after service of a deposition notice, a party . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”¿¿(CCP § 2025.450, subd. (a).)¿The motion must set forth both facts showing good cause justifying the demand for any documents and a meet and confer declaration.¿(CCP § 2025.450, subds. (b)(1), (b)(2).) “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue,” including by rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal.App.4th 1109, 1124.)

Good cause is construed liberally; discovery justification is found where specific facts show the documents are necessary for effective trial preparation or to prevent surprise at trial. (Associated Brewers Distributing Co. v. Superior Court of Los Angeles County (1967) 65 Cal.2d 583, 587; [8:787] Motion to Compel Answers, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8E-15.) A lack of an alternative source for the sought information is an important "good cause" factor, but it is not essential. (Id. at 587-88.) A meet and confer declaration under CCP § 2016.040 “shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP § 2016.040.)

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP § 2023.030(a).)

On June 17, 2022, Big Bus served Starline with deposition notices for Starline employees Kamrouz Farhadi, Shoeleh Sapir, and Gwendolyn Slaughter (the “Starline Officer Depo Notices”). (Templeton Decl., ¶ 3, Ex. A.) On June 24, 2022, Big Bus served a deposition notice to Starline’s Person Most Qualified (the “PMQ Depo Notice”) (Templeton Decl., ¶ 4, Ex. B.) On July 13, 2022, Starline served objections to each of the Starline Officer Depo Notices, and on July 18, 2022, Starline served objections to the PMQ Depo Notice. (Templeton Decl., ¶ 3, Exs. C, D.) The following chart lists the scheduled deposition appointments for the requested witnesses. (Templeton Decl., Exs. A, B.)

The Parties engaged in extensive meet-and-confer efforts but did not reschedule these duly noticed and properly served deposition appointments. The Parties allowed a conflict over Starline’s deposition notices to affect Big Bus’s deposition notices as well. (Rhyne Decl., ¶¶ 2, 4, 5, 8-13, 15-18, Exs. A-H; Templeton Decl., ¶¶ 6-11, Exs. E-G.) “It is the collective experience of lawyers and judges that too often the ego and emotions of counsel and client are involved” in discovery disputes. (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1436.) “‘Like Hotspur on the field of battle, counsel can become blinded by the combative nature of the proceeding and be rendered incapable of informally resolving a disagreement.’ . . . [T]he ‘informal resolution’ of discovery disputes ‘entails something more than bickering with [opposing counsel].’ Rather, the [Discovery] statute ‘requires that there be a serious effort at negotiation and informal resolution.’” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1281, quoting Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1438, 1439.)

The annoyance over an opposing party’s failure to produce witnesses for deposition is no excuse for a party’s own failure to produce witnesses for the opposing party’s depositions. “A reasonable and good faith attempt at informal resolution entails something more than bickering with deponent's counsel . . . . Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1439.)

Defendants Big Bus Tours Los Angeles, Inc., and Open Top Sightseeing USA’s Request for Monetary Sanctions is DENIED.

Name	Scheduled Deposition
Gwendolyn Slaughter	July 19, 2022 at 10:00 AM
Person(s) Most Qualified	July 27, 2022 at 10:00 AM
Kamrouz Farhadi	July 28, 2022 at 10:00 AM
Shoeleh Sapir	July 29, 2022 at 10:00 AM