Judge Peter A. Hernandez, Case 19PSCV00178 2022-10-06 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

Defendant Duane Cooper’s Motion for Summary Judgment is DENIED. Defendant Duane Cooper’s alternate Motion for Summary Adjudication is GRANTED in part (i.e., as to Issues Nos. 1 and 5) and DENIED in part (i.e., as to Issues Nos. 2-4.)

Plaintiff Derek Siri (“Plaintiff”) alleges as follows: On February 16, 2018, Plaintiff was injured during an altercation with Dwayne Cooper aka Duane Cooper (“Cooper”), a Fire Inspector for the Los Angeles County Fire Department (“LACFD”), after he discovered Cooper engaged in sexual conduct with Plaintiff’s wife. Plaintiff thereafter went to LACFD Station #32 in Azusa to file a complaint against Cooper, but John Doe Fire Captain ended up making a false police report in which he blamed Plaintiff for the disturbance.

On March 11, 2020, Plaintiff filed a Second Amended Complaint (“SAC”), asserting causes of action against Cooper, County of Los Angeles (“County”), LACFD, John Doe Fire Captain and Does 1-50 for:

On November 24, 2020, the court sustained County’s demurrer to the Second through Fourth, and Seven through Eighth Causes of Action, without leave to amend; the court also sustained Cooper’s demurrer to the Second and Third, and Seventh and Eighth Causes of Action, without leave to amend.

On January 4, 2021, an “Order Re: Stipulation Concerning Stricken Language of Nonconsensual Actions in Plaintiff’s Second Amended Complaint” was filed. On January 6, 2021, a “Court Order Re: Stricken Language in the Second Amended Complaint” was filed, wherein portions of Paragraphs 19, 46, 49 and 52 were stricken from the SAC.

On June 30, 2022, the court granted County’s Motion for Summary Judgment. On July 1, 2022, “Judgment on Defendant County of Los Angeles’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication” was filed.

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 a judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4^th 1110, 1119 [emphasis theirs].)

“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.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“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.” (Id. at 467; Code Civ. Proc., § 437c, subd. (c).)

Cooper moves the court for summary judgment in its favor and against Plaintiff on Plaintiff’s SAC; in the alternative, Cooper seeks adjudication of the following issues:

Issue #1: Plaintiff’s first cause of action (i.e., for Intentional Interference with Prospective Economic Relations) fails, because Plaintiff did not own the business and had no right to any economic benefit. Cooper did not intentionally interfere with an economic relationship between Plaintiff and some third party that probably would have resulted in an economic benefit to Plaintiff;

Issue #2: Plaintiff’s fourth cause of action (i.e., for Negligence) fails, because Cooper did not undertake any duty toward Plaintiff. Cooper is immune under Civil Code § 50 since he was acting in self-defense;

Issue #4: Plaintiff’s sixth cause of action (i.e., for Assault) fails, for the same reason as Issue #3; and

Issue #5: Plaintiff’s tenth cause of action (i.e., for False Imprisonment) fails, because Cooper did not confine Plaintiff at any time nor was Plaintiff confined for any appreciable length of time.

The instant motion was originally scheduled for hearing on June 23, 2022; on that date, the court determined that Plaintiff had shown good cause warranting a continuance of the hearing to afford Plaintiff the opportunity to complete Nary Sivilay’s (“Sivilay”) deposition. The court further advised at that time that the parties would be permitted to file supplemental briefing limited to Sivilay’s continued deposition testimony and that such briefing was to be simultaneously filed and served no later than August 1, 2022. Supplemental briefs were filed and exchanged and have been considered by the court.

The hearing on the instant motion was rescheduled for
September 14, 2022; on that date, the court issued the following tentative
ruling:

“The court is in receipt of
Plaintiff’s ‘Response to—Separate Statement of

the alternative, Summary
Adjudication, the court notes that Plaintiff’s response

evidence as set forth in CRC
3.1350, subdivision (f)(2) [i.e., ‘[o]n the right side

‘disputed’ or ‘undisputed.’ An
opposing party who contends that a fact is

disputed must state, . . . the
nature of the dispute and describe the evidence that

supports the position that the fact
is controverted. Citation to the evidence in

support of the position that a fact
is controverted must include reference to the

Procedure § 437c, subdivision
(b)(3) [i.e., ‘[t]he opposition papers shall include

a separate statement that responds
to each of the material facts contended by the

disagrees that those facts are
undisputed. . . Each material fact contended by the

opposing party to be disputed shall
be followed by a reference to the supporting

further briefing is permitted. The
hearing is continued to October 6, 2022 at 9:00

On September 14, 2022, the court adopted its tentative
ruling continuing the mater to October 6, 2022.

On September 21, 2022, Plaintiff filed an “Amended Response
to—Separate Statement of Duane Cooper,” along with an 81-page document entitled
“Declaration of Timothy Donahue” and an “Amended Separate Statement of Disputed
Facts to Cooper’s Motion for Summary Judgment or, in the Alternative, Summary
Adjudication of Issues.” The latter two filings exceed the court’s September
14, 2022 express directive that “[n]o further briefing is permitted.” The court
orders these filings stricken and they are not considered. Plaintiff “Amended
Response to—Separate Statement of Duane Cooper” continues to reflect CRC
3.1350, subdivision (f)(2) deficiencies.

Further, Plaintiff’s “Amended Response to—Separate
Statement of Duane Cooper,” and Cooper’s response to Plaintiff’s additional separate
statement both impermissibly include objections. “[A] separate statement
is not evidence;
it refers to evidence submitted in support of or
opposition to a summary judgment motion. (Jackson v. County of Los
Angeles (1997) 60 Cal.App.4^th 171, 178, fn. 4 [emphasis
theirs].) The aforesaid evidentiary objections are summarily overruled on this
basis. Plaintiff’s blanket statement purporting to “object[] to all declarations” (Opposition, 7:7-8) is also summarily overruled
for non-compliance with CRC rule 3.1352.

The court rules on Cooper’s Request for Judicial Notice (“RJN”) as follows:

2. Granted as to Exhibit 5 (i.e., “Order Sustaining Demurrer in Part Without Leave to Amend and Overruling in Part Defendants’ Demurrers to the Second Amended Complaint” filed November 24, 2020);

3. Granted as to Exhibit 6 (i.e., (Penal Code § 269a, amended by Stats.1911, c. 242) and,

1. Granted, to the extent that the court will take judicial notice of the existence and filing date of Plaintiff’s opposition to County’s motion for summary judgment and County’s motion for summary judgment.

The court will not, however, take judicial notice of the contents of same. Cooper’s evidentiary objection to same is overruled as moot.

On September 7, 2022, Cooper filed an “Objection and Motion to Strike the Response to Separate Statement, the Declaration of Donahue and the Attached Declaration of Nary Sivilay Filed August 1, 2022 by Plaintiff’s Counsel.” The court sustains Cooper’s objection to Plaintiff’s Response to Separate Statement and to Exhibit 2 to the Declaration of Timothy Donahue filed August 1, 2022. Both documents were filed in excess of this court’s June 23, 2022 order. The purported declaration from Sivilay, moreover, is in English and is unaccompanied by a certified translation; this despite the fact that Sivilay was apparently deposed through a Lao interpreter.

Plaintiff and his wife, Nary Sivilay (“Sivilay”), own a Thai restaurant known as Thai Nary BBQ. (SAC, ¶ 15.) On February 16, 2018, Plaintiff went to Thai Nary BBQ because no one was answering the phone there. (Id., ¶ 16.) When Plaintiff entered the restaurant’s kitchen, he found Cooper and Sivilay engaged in sexual conduct. (Id., ¶ 20.) Plaintiff said, "What’s going on, here?” and Cooper and Sivilay pulled apart. (Id., ¶¶ 21 and 22.) On seeing Plaintiff, Cooper looked up angrily and rushed toward Plaintiff. (Id., ¶ 23.) Plaintiff was still in the doorway when Cooper grabbed Plaintiff by both shoulders and slung him first on the left side against the door jamb. (Id., ¶ 24.) Cooper grabbed Plaintiff’s right arm in his hands, twisted Plaintiff’s right arm and slammed Plaintiff into the right side of the doorjamb, injuring Plaintiff's shoulder. (Id., ¶ 25.) Cooper let go of Plaintiff and ran as through the dining room and out the front door. (Id.)

1. Intentional Interference with Prospective Economic Relations (i.e., First Cause of Action)

“Intentional interference with prospective economic advantage has five elements: (1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant's action.” (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512.)

Plaintiff has alleged, with respect to this cause of action, that Cooper “knew and/or should have known that Plaintiff was a business owner operating a restaurant, open to customers for the purpose of making a profit,” that Cooper “interfered with Plaintiff’s business and closed the business, by having sexual intercourse in the kitchen, thereby disrupting Plaintiff’s business and causing loss of income” and that Cooper’s conduct was done without Plaintiff’s consent or agreement. (SAC, ¶ 46.)

Cooper contends that there is no evidence of any economic relationship between Plaintiff and Thai Nary BBQ, no evidence of any probability of any future economic benefit to Plaintiff, no evidence of disruption in the restaurant due to the events alleged in the SAC and no evidence of independently wrongful conduct. Cooper has proffered the following evidence: Plaintiff has never had any ownership interest in Thai Nary BBQ. (Defendant’s Fact [“DF”] No. 1.) On February 16, 2018, Plaintiff’s daughter, Julie Sivilay, was the owner of the restaurant. (DF No. 2.) Plaintiff did handman work for Thai Nary BBQ. (DF No. 3.) Plaintiff was paid for his handyman jobs for Thai Nary BBQ. (DF No. 4.) Plaintiff never took any portion of Thai Nary BBQ’s profits. (DF No. 5.) When Cooper arrived at the restaurant on the day of the incident, the sign on the outside said the restaurant was closed. (DF No. 6.) Sivilay cooked for Cooper because no other employees were working. (DF No. 7.) Sivilay’s plan was to close the restaurant after Cooper was done eating. (DF No. 8.)

Cooper further argues that, even if there was evidence of Cooper having consensual sex with Sivilay in the kitchen, this is not an “independently wrongful” act as required for this cause of action. Indeed, “[w]ith respect to the third element, a plaintiff must show that the defendant engaged in an independently wrongful act.” (San Jose Construction, Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1544.) “[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159.) Penal Code § 269a, which prohibited living “in a state of cohabitation and adultery,” was repealed by Statutes of 1975, Chapter 71, effective January 1, 1976. (Cooper’s RJN, Exhs. 6 and 7.)

Additionally, there is no cause of action for “(a) Alienation of affection[,] (b) Criminal conversation[,] (c) Seduction of a person over the age of legal consent[, and] (d) Breach of promise of marriage.” (Civ. Code § 43.5.) “[C]onduct which constitutes alienation of affection or criminal conversation is not immune from tort liability if it breaches a duty of care independent of those old causes of action. (Smith v. Pust (1993) 19 Cal.App.4th 263, 269 [quotation marks and citation omitted].) With that said, there are “two requirements for such an independent duty of care: (1) a genuine professional relationship must exist between the plaintiff and the defendant, and (2) the wrongful conduct must have a meaningful connection to the purpose of that professional relationship.” (Id. at 270.) Here, there was no such relationship between Plaintiff and Cooper.

Cooper has met his initial burden. Plaintiff has failed to meet his burden to show a triable issue of material fact. Accordingly, the court finds that Cooper is entitled to adjudication of the first cause of action.

2. Negligence, Assault and Battery (i.e., Fourth, Fifth and Sixth Causes of Action, Respectively)

“To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff's damages or injuries.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.)

“The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant's conduct; (4) plaintiff was harmed; and (5) defendant's conduct was a substantial factor in causing plaintiff's harm.” (So v. Shin (2013) 212 Cal.App.4^th 652, 668-669.)

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant's conduct; and (4) a reasonable person in plaintiff's position would have been offended by the touching. (Id. at 668-669.)

Cooper seeks adjudication of the fourth through sixth causes of action on the basis that he “is immune under Civil Code § 50 since he was acting in self-defense.” (Notice, 2:16-23.) Cooper seeks adjudication on the fourth cause of action on the foregoing basis coupled with the assertion that he did not undertake any duty toward Plaintiff.” (Id., 2:15-16.)

Under Civil Code § 50, “[a]ny necessary force may be used to protect from wrongful injury the person or property of oneself . . .” “The degree of force which may be used by a person in defense of himself, his family or his property must be limited to such force as would have appeared to be necessary to a reasonable man in all of the circumstances, knowing what the defendant knew, and facing the facts which presented themselves at the time to the defendant.” (Boyer v. Waples (1962) 206 Cal.App.2d 725, 727.) “The question of what force [is] reasonable and justified [is] peculiarly one for determination by the trier of fact.” (Id. at 730.)

On February 16, 2018, Plaintiff went to Thai Nary BBQ. (DF No. 15.) He walked from the dining room area to the doorway of the kitchen, where he saw Cooper and Sivilay engaged in sexual conduct. (DF Nos. 16 and 17.) Plaintiff said something along the lines of, “That’s my wife.” (DF No. 18.) Cooper walked toward the doorway, where Plaintiff was standing. (DF No. 19.) Plaintiff said something along the lines of, “I’m going to report you.” (DF No. 20.) Cooper then covered his nametag with his hand. (DF No. 21.) Plaintiff wanted to know Cooper’s name. (DF No. 22.) Plaintiff reached out, grabbed Cooper’s wrist, and pulled Cooper’s hand off the nametag. (DF No. 23.) Cooper twisted Plaintiff’s arm off the nametag, pushed Plaintiff into the right side and then left side of the doorframe, and when Plaintiff tried to get up after falling on some boxes, Cooper pushed him back down and then exited the restaurant. (DF No. 24.)

The court finds that Cooper’s own proffered evidence reflect that there are triable issues of material fact as to whether Cooper acted beyond the scope of reasonable self-defense.

The court denies Cooper’s request for adjudication of the fourth through sixth causes of action.

“The elements of a tortious claim of false imprisonment are: (1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief.” (Easton v. Sutter Coast Hospital (2000) 80 Cal.App.4th 485, 496.)

Cooper contends that there is no evidence of intentional confinement, restraint or deprivation of liberty, nor of an appreciable length of time. Cooper has proffered the following evidence: Five to ten seconds passed from Plaintiff saying, “That’s my wife” to Cooper exiting the restaurant. (DF No. 47.) During the subject incident, Plaintiff did not feel that he was not free to leave the restaurant. (DF No. 48.)

[1] The motion was filed (and electronically served) on April 6, 2022 and set for hearing on June 23, 2022. On June 23, 2022, the court adopted its tentative ruling and continued the hearing to September 14, 2022; notice was waived. On August 30, 2022, Cooper filed (and electronically served) a “Notice of Continuance of the Motion for Summary Judgment Hearing,” advising therein of the rescheduled September 14, 2022 hearing date.