Judge William A. Crowfoot, Case Number: BC695119, Date: 2024-04-16 Tentative Ruling

On February 26, 2018, plaintiff Yuka Tamura (“Plaintiff”) filed this action against defendants Estelle Campbell (“Campbell”) and Studios at Walnut, LLC (“LLC”) (collectively, “Defendants”). On January 18, 2019, Plaintiff filed the operative Third Amended Complaint (“TAC”) asserting causes of action for: (1) breach of implied warranty of habitability, (2) nuisance, (3) breach of contract, (4) negligence, (5) fraud/concealment, (6) negligent misrepresentation, (7) intentional infliction of emotional distress (“IIED”), (8) bad faith retention of security deposit, and (9) constructive eviction.

On April 26, 2019, the Honorable Curtis A. Kin sustained Defendants’ demurrer as to the eighth cause of action for bad faith retention of security deposit.

On January 30, 2024, Defendants filed this motion for summary adjudication of Plaintiff’s third cause of action for breach of contract, fifth cause of action for fraud/concealment, seventh cause of action for IIED, and Plaintiff’s claim for punitive damages. The motion is based on the following:

- Defendants argue that Plaintiff’s Third Cause of Action for breach of contract action fails because: (1) she is not a party to the lease, which was a commercial lease (“Lease”) entered into between Defendants and ModSage, Inc. (“ModSage”) for Studio 4; Studio 4 is one of several units located on the property at 2888 E. Walnut Street in Pasadena, California (the “Property); (2) even if she were a third-party beneficiary of the Lease, she cannot prosecute an action on behalf of ModSage because it is a suspended corporation; (3) Plaintiff was residing in Studio 4 in violation of the Lease, the Work/Live Ordinance, and the Conditional Use Permit for the property; and (4) Plaintiff was in material breach of the Lease because her maintenance of Studio 4 was a fire hazard and contributed to the rodent problems. (Notice, Issues 1 through 4.)

- Defendants move for summary adjudication of the Fifth Cause of Action for fraud/concealment on the ground that Defendants made no misrepresentations and did not have either actual or constructive knowledge of the alleged water leaks/mold or rodent infestation at the time of the leasing.

- Defendants move for summary adjudication of the Seventh cause of Action for IIED on the ground that Campbell’s conduct was not intentional and was not so outrageous or extreme as to exceed all bounds of that usually tolerated in a civilized community to impose liability on her or vicarious liability on LLC.

- Defendants move for summary adjudication of Plaintiff’s claim for punitive damages on the grounds that Plaintiff cannot establish by clear and convincing evidence that Campbell’s conduct was done with intent to cause injury or that it was despicable and done with a willful and knowing disregard of the rights or safety of another.

“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 that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . 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.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Id., subd. (f)(2).)

A defendant moving for 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).) To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) A moving defendant need not conclusively negate an element of plaintiff’s cause of action, but it is insufficient for the defendant to merely point out the absence of evidence. (Id. at p. 854; Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.) “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., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “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.)

Defendants’ request the Court to take judicial notice of the TAC, the stipulated judgment in the UD Action, City of Pasadena Code section 17.50.370 (the “Work/Live Units Ordinance”), and ModSage’s certificate of status on file with the California Secretary of State. The request is GRANTED pursuant to Evidence Code sections 452(b)-(d).

The Court rules on Defendants’ evidentiary objections to evidence material to the disposition of this motion as follows:

Objection Nos. 2, 4, 5, 6: Sustained in part as to Campbell’s awareness and the admissibility of the text messages, overruled as to the fact of Campbell’s correspondence with Plaintiff and her husband and Campbell’s acceptance of rent.

Objection No. 7: Sustained as speculative with regard to Campbell’s knowledge, sustained as legal conclusion with respect “taking over the rights and responsibilities under the Lease”; overruled as to Campbell’s collection of rent.

Objection No. 17: Sustained as Plaintiff’s speculations about Defendants’ subjective beliefs.

Objection Nos. 23-30: Sustained in part as to legal conclusions about Defendant’s intentions, overruled insofar as Defendant’s statements and any inferences available from them.

Objection Nos. 33-36: Sustained in part as to Defendant’s motivations, overruled insofar as the testimony describes Plaintiff’s actions or the conditions at the Studio.

Objection No. 37: Sustained for lack of foundation/personal knowledge with respect to “attempted to try to fix the root cause of it.”

Plaintiff alleges that on June 15, 2007, she, through her former corporation, ModSage entered into the Lease with the LLC, “which obligated Defendants to allow [Plaintiff] to reside at, exclusively possess and occupy [Studio 4].” (TAC, ¶ 22.) Plaintiff alleges Studio 4 was approved by the City of Pasadena as a live-work space allowing up to 2 residential occupants and given Conditional Use Permit #2024. (TAC, ¶ 23.) During the first two years of her lease, Plaintiff operated an import-export business at the Property through ModSage; after the two years, the business ceased operations and Plaintiff continued to use the Property as her residence for approximately 11 years. (TAC, ¶¶ 24-25.) Plaintiff alleges that during her tenancy, there was a rodent infestation, water leaks, and mold growth and that Defendants breached the Lease by failing to address these issues. (TAC, § 86.) Plaintiff also alleges that Defendants breached the Lease by retaliating against her for requesting remediation and repair and filing an unlawful detainer action. (Ibid.)

For Issue No. 1 Defendants argue that Plaintiff’s breach of contract action fails because it is undisputed that she did not sign the Lease. Defendants argue that Plaintiff cannot assert the breach of contract claim because she does not expressly allege that she is a third-party beneficiary to the Lease.

Civil Code §1559 provides: “A contract, made expressly for the benefit of a third person, may be enforced by him [or her] at any time before the parties thereto rescind it.” Defendants cite to Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal.App.4th 949, 957, in which the court of appeal found that a plaintiff had standing as a third-party beneficiary of a sales contract between her former husband and a jewelry store to enforce a breach of express warranty claim for an engagement ring. The Schauer court reversed the trial court’s order sustaining the demurrer and stated that the plaintiff had standing “under the allegation” that the defendant entered into a written contract with the plaintiff’s fiancée to purchase the ring “for the sole and stated purpose of giving it [to] her.” (Schauer, 125 Cal.App.4th at p. 957.) The Schauer court emphasized that the defendant jeweler must have understood the fiancée’s intent to enter into the sales contract for the plaintiff’s benefit because the alleged stated purpose of the purchase was to give the ring to the plaintiff. (Id. at p. 958.)

Schauer also cited to California Emergency Physicians Medical Group v. PacifiCare of California (2003) 111 Cal.App.4th 1127, 1138, in which the court of appeal found that a trial court properly sustained a demurrer after noting that the plaintiff, a medical group that provided emergency medical services, was not a third-party beneficiary of the health insurance policies issued by the defendant health care service plan to its enrollees. The court stated that the policies did not show an intention to benefit noncontracting providers such as plaintiff, who are not mentioned in the contract. (Ibid.)

Here, the Lease states that it is between ModSage and the LLC and states that “[t]he space is to be occupied by no more than two persons.” (TAC, Ex. 1, p. 1.) The Lease is attached to the TAC and its language is incorporated into the TAC’s allegations. Like in California Emergency Physicians Medical Group, the Lease does not mention Plaintiff.

Plaintiff argues in her opposition that she sufficiently alleges third-party beneficiary status because the TAC states that she resided at Studio 4 because the Lease “obligated [Defendants] to allow Plaintiff to [do so].” (TAC, ¶ 22.) However, this conclusory statement is insufficient. In Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 836-837, in which the court stated that interpreting a contract to construe third-party beneficiary status required an examination of the “motivating purpose” of the contracting parties, the “objectives of the contract”, and the “reasonable expectations of the contracting parties.” The Goonewardene court held that a contract between an employer and a payroll company did not confer standing upon an employee to sue the payroll company, even if the employee generally received a benefit from the contract because “providing a benefit to employees is not ordinarily the motivating purpose” of such a contract. (Id. at p.837.) Rather, the “motivating purpose” would be to benefit the employer to assist with the cost and efficiency of payroll tasks, not to provide a benefit to its employees. (Id. at pp. 835-836.) The Goonewardene court also explained that conferring a right to sue upon the employees was unnecessary to effectuate the objectives of the contract because the employer was fully capable of pursuing such a breach of contract action against the payroll administrator if it breached its contractual obligations. (Id. at p. 836.)

Here, Plaintiff does not allege any facts showing that Defendants understood that the Lease was intended to benefit her specifically (as opposed to two unidentified persons), even if Plaintiff was an employee of ModSage. Also, Defendants argue in Issue No. 2 that even if Plaintiff alleged that ModSage and Defendants intended her to be a third-party beneficiary, Plaintiff cannot enforce the Lease because ModSage is a suspended corporation which cannot prosecute or defend an action. (Motion, pp. 7-8.) Defendants cite to Casiopea Bovet LLC v. Chiang (2017) 12 Cal.App.5th 656, 663-664 (Casiopea) in their moving papers and Beltran v. Capitol Records, LLC (N.D. Cal. 2013) 2013 WL 968248. In Beltran, the district court held that the plaintiff could not enforce a recording agreement even as a third-party beneficiary because the corporation that was a party to the agreement was suspended with no capacity to sue on the contract or otherwise. The defendant argued, and the district court agreed, that allowing the plaintiff to sue would be contrary to Revenue and Tax Code section 23301 (“Section 23301”) because the plaintiff was “the sole shareholder and officer” of the suspended corporation and allowing the action to proceed would allow plaintiff to “[use] the corporate entity to contract, yet [] retain the right to sue as an individual third party beneficiary even when the corporation could not on account of its failure to comply with its corporate obligations and tax liabilities.” (Beltran at *4.) The Beltran court emphasized that the plaintiff “was directly responsible” for the suspended status of the corporation and “[held] sole authority to revive it.”

Here, it is undisputed that ModSage is a suspended corporation. (Defendants’ Undisputed Material Fact (“UMF”) No. 2.2.) In Goonewardene, the California Supreme Court noted that conferring a right to sue upon the employee was “unnecessary” to the contract because the employer was capable of bringing suit on its own behalf; here, ModSage is unable to bring suit on its own behalf because of its suspended status. But, Plaintiff is no mere employee. Instead, Plaintiff admits in her own declaration that she is the chief executive officer of ModSage and that ModSage was “mostly [her] business”. (Tamura Decl. ¶ 2; Plaintiff’s Ex. 2 at 26:5-14, 36:5-8.) Therefore, she is, as the Beltran court described, a “person standing in close relation to the suspended corporation.” (2013 WL 968248 at p. * 3.) Allowing her to sue on the contract that ModSage entered into as a third-party beneficiary would create an end-run around section 23301.

Lastly, Plaintiff alleges that after ModSage ceased its operations, “Defendants continued to rent the [Studio] to [her] as her individual residence and no longer as a live-work space” and that she used the Studio as her residence for approximately 11 years. (TAC, ¶ 25.) Plaintiff also alleges that Defendants breached the contract “by failing and refusing to take proper and adequate steps to remediate the mold and wet/damp conditions at the [Studio], by failing to repair the defective condition of the [Studio], and ensure that the [Studio] was, at all times during Plaintiffs’ occupancy, habitable.” (TAC, ¶ 86.)

Defendants briefly argue in their memorandum of points and authorities that any alleged oral lease violated the statute of frauds but submit no evidence in support of this claim. Furthermore, Defendants assert that they had valid grounds for terminating the lease and pursuing an unlawful detainer action because Plaintiff was in default of the alleged lease, but do not explain how evidence of Plaintiff’s default excused their alleged failure to ensure Studio 4 was habitable.

Therefore, because Defendants fail to address all of Plaintiff’s theories of liability in the TAC, their motion for summary adjudication of the Third Cause of Action is denied. (See Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.)

“[T]he elements of an action for fraud and deceit based on concealment [or nondisclosure] are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.”¿ (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 748.)¿¿¿

Plaintiff alleges as part of her Fifth Cause of Action that “Defendants concealed or suppressed material facts” about “the true condition of the Property”, such as the fact that it had “previously been used a rubber factory” and that Plaintiff “needed a work permit before the Property could be rented to [her].” (TAC, ¶ 103.) Plaintiff claims Campbell had knowledge that “the Property had a history of leaks and moisture intrusion, none of which had been properly repaired, and no remediation had been performed.” (Ibid.) Plaintiff also alleges that Campbell knew that based on these earlier leaks, “there was toxic mold growing within the Property.” (Ibid.)

Defendants argue that they made no misrepresentations and did not have either actual or constructive knowledge of the alleged water leaks, mold, or rodent infestation at the time of leasing. Campbell declares that she replaced the roof on Studio 4 in 2001 because it had exceeded its life expectancy, not because of any leaks, and she has no recollection of and has never seen any evidence of roof leaks in the building where Studio 4 is located before ModSage moved in; she never received complaints from former tenants of Studio 4 as to flooding, water damage, mold or fungal contamination, or rodent problems. (Campbell Decl., ¶¶ 11, 28.) Campbell also states that when she first received notice of mold in Studio 4 through an order to correct on January 10, 2018, she immediately contacted West Coast Precision to repair the flashing around the A/C unit which was the apparent source of the alleged moisture and potential mold noted by the city inspector. (Campbell Decl., ¶¶ 46-47.) This repair was performed on January 23, 2018. (Ibid.) Campbell also contacted a mold remediation company and arrange to have them (along with Don’s Pest Control Services) come out to the Property on January 17, 2018, but Plaintiff would not cooperate with her to allow the repair contractors to enter Studio 4 to perform corrections. (Campbell Decl., ¶¶ 48-52.)

Campbell also addresses Plaintiff’s claims about the rodent issues and states that the first notice she received about any pest issue was in August of 2012. (Campbell Decl., ¶ 56.) She states that she never ignored Plaintiff’s complaints and responded either by: (1) giving Plaintiff the phone number of the pest control service, (2) sending the pest control service directly, or (3) sending the property manager to Studio 4. (Id., ¶ 57.) Campbell states that she was informed that the rodents were field mice and may have been coming from the abandoned 13-acre property across the street. (Id., ¶ 58.) Campbell also states that the rodent infestation was caused by ModSage’s cardboard boxes and that she observed rodent blood and hairs where these boxes were stacked, suggesting that the mice were nesting in them. (Id., ¶ 69-60.)

Campbell additionally describes the steps she took to respond to Plaintiff’s reports of leaks in Studio 4 in the spring and summer of 2013, as well as leaks reported in February, August, and December of 2014. (Campbell Decl., ¶¶ 61-71.) Campbell states that roofers came out to complete emergency repairs in 2013 and 2014 from West Coast Roofing (in or about May 27, 2014 and August 2014) and Aloha Roofing around December 6, 2014 and attaches copies of a proposal from West Coast Roofing and an invoice from Aloha Roofing. (Ibid.) Then, in November 2016, Campbell decided to install a new roofing system, which was completed in December 106 by West Coast Precision Roofing. (Campbell Decl., ¶¶ 69-70.) Plaintiff’s last reported water leak was in January 2017 and Campbell states the leak was immediately repaired. (Campbell Decl., ¶ 71.)

Based on Campbell’s declaration, the Court finds that Defendants have met their moving burden to show that Plaintiff cannot establish a cause of action for fraud. The burden thus shifts to Plaintiff to raise a triable issue of material fact.

In opposition, Plaintiff argues that Defendants only focus on representations made at the time the Lease was signed and do not address Plaintiff’s allegation of misrepresentations that occurred after she moved in. In particular, Plaintiff emphasizes her allegation that she “reasonably relied on [Defendants’] assurances that the Property defects had been properly addressed even though Defendants knew that they had not been properly addressed.” (TAC, ¶ 109.) The Court disagrees. Campbell’s detailed declaration provides prima facie evidence that efforts to address the reported defects were taken.

Plaintiff claims Campbell knew that the rat catchers that she had hired were ineffective because Campbell texted her on November 22, 2013, and said, “We have to get [sic] real exterminator.” (Tamura Decl., Ex. 5, TAM000400.) On November 23, 2013, Campbell texted: “When can we talk tomorrow? I will get an exterminator but there are bigger concerns to address regarding the studio that I think will require clean up and closing gaps at kitchen.” (Ex. 5, TAM000403.) Plaintiff states that Defendants’ pest control service never did a full fumigation of the building without any evidence that a fumigation was the correct response. (Tamura Decl. ¶ 42.) Plaintiff’s statement that Defendants never “attempted to try to fix the root cause of it” is conclusory, especially when Plaintiff does not introduce admissible evidence showing that the rats were in fact coming in through the roof, only that Campbell stated that a pest control worker “thinks it’s the roof.” (Tamura Decl., Ex. 5, TAM000373.) Notably, the only other evidence that Plaintiff submits which reflects issues with a rodent infestation is a text message from Campbell who states that “the cardboard is really a problem especially with the problem we have had lately with rodents. It has to be removed.” (TAM000048.) The factfinder could infer from this text message, which was sent on October 13, 2016, Plaintiff’s complaints in 2013 were resolved and there was no other issue with rodents until 2016 because of ModSage’s cardboard boxes.

Plaintiff also argues that Campbell only made “quick fixes” to the roof because she did not have enough money. (Exhibit 5, TAM000381-TAM000383.) points to a roofing proposal Campbell received in 2014 from West Coast Roofing with a quoted cost of $12,275 and claims Campbell did not hire them to perform this work. (Response to UMF No. 5.5.) But Plaintiff relies on Paragraph 20 of her declaration, which does not address anything about roof repairs in 2014. Also, Plaintiff’s characterization of Campbell’s responses as “quick fixes” are baseless without additional evidence or expert opinion. Plaintiff claims Campbell “admitted” in a text message sent on April 16, 2013, that the roof needed “a real fixing” but the text message reveals no such admission. (Tamura Decl., Ex. 5, TAM000382.) Instead, Campbell only reported “the roofer found some openings in the roof which we will repair when I have a hundred dollars I do not think it will rain again soon.” (Ibid.)

Accordingly, Defendants are entitled to summary adjudication of Plaintiff’s Fifth Cause of Action for Fraud/Concealment.

The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To satisfy the element of extreme and outrageous conduct, a defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Moncada, supra, 221 Cal.App.4th at 780 [quoting Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883].) “Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (McDaniel v. Gile (1991) 230 Cal.App.3d 363, 372.)

Plaintiff alleges that Defendants engaged in extreme and outrageous acts to cause her severe emotional and mental distress. (TAC, ¶¶ 123-125.) Defendants cite to Campbell’s declaration as evidence that Plaintiff cannot show that they acted intentionally to cause her emotional distress because Campbell made efforts to repair isolated leaks and address rodent sightings, hired a property management company from 2014 to 2015, and hired an on-site maintenance handyman who moved into a vacant unit in order to respond immediately to any maintenance or repair issues. If the handyman informed Campbell that he was unable to address the issue, Defendants would hire a licensed contractor to perform the maintenance or repair. (Campbell Decl. ¶¶ 22-24.) Campbell further declares that she had a “cordial relationship” with Plaintiff until she moved to evict her. (Id., ¶ 73.)

In opposition, Plaintiff argues that Defendants acted outrageously and claims that Defendants failed to fix the “real issue” with the roof and rodents by only approving quick fixes and placing traps. Plaintiff accuses Defendants of inaction with respect to the roof and rodents; however, absent an intent to injure, inaction is insufficient to constitute extreme and outrageous behavior for intentional infliction of emotional distress liability. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210.) Just as the Court is unable to see how a reasonable factfinder would infer any intent to misrepresent or conceal facts, the Court also finds that no reasonable factfinder would be able to infer an intent to cause Plaintiff emotional distress. Plaintiff also complains about Campbell’s response to her complaint about gas tanks in front of her door; however, Plaintiff only complains that Defendant informed her that they were empty. Plaintiff does not dispute that they were empty or that they actually posed any danger.

Lastly, Plaintiff alleges that Defendants acted outrageously by serving her a notice to move out. But this is insufficient to provide a basis for liability for IIED because filing of a notice to move out and initiation of an unlawful detainer action is privileged conduct. (See Kenne v. Stennis (2014) 230 Cal.App.4th 953, 971 [finding that plaintiff cannot prevail on an intentional infliction of emotional distress claim when it is based upon privileged conduct that had some logical relationship to lawsuits between the parties].)

Therefore, summary adjudication of Plaintiff’s Seventh Cause of Action for IIED is appropriate.

Last, Defendants move for summary adjudication of Plaintiff’s claim for punitive damages. Plaintiff only prays for punitive damages in connection with her Fifth and Seventh Causes of Action. The Court grants Defendants’ motion for summary adjudication on those causes of action. Accordingly, the motion for summary adjudication is moot with respect to the punitive damages claim.

In light of the foregoing, the motion for summary adjudication is DENIED as to the Third Cause of Action and GRANTED with respect to the Fifth and Seventh Causes of Action.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.