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Ruling
FENIX ENTREPRENUER INC. VS SUN DO HONG
Sep 06, 2024 |24STCV17180
Case Number: 24STCV17180 Hearing Date: September 6, 2024 Dept: 73 09/06/2024 Dept. 73 Hon. Rolf Treu, Judge presiding FENIX ENTREPRENEUR, INC. v. SUN DO HONG (24STCV17180) Counsel for Plaintiff/opposing party: Justin Rodriguez (Justice Law Partners, Inc.) Counsel for Defendant/moving party: Jacob Iloulian (Law Office of Jacob Illoulian) DEMURRER TO COMPLAINT (filed 8/06/2024) TENTATIVE RULING Defendants demurrer is sustained without leave to amend. I. BACKGROUND On June 11, 2024, Plaintiff Fenix Entrepreneur, Inc. (Plaintiff) filed the instant interpleader action against Defendant Sun Do Hong (Defendant). The Complaint for Interpleader alleges the following. Martin Fierro, in his capacity as officer of Fenix Entrepreneur, Inc., entered into a Purchase Agreement on or about January 20, 2023 to purchase one-half (1/2) interest in the subject property located at 6836 Crenshaw Blvd. Los Angeles, CA 90043. The property prior to acceptance of Plaintiffs offer to purchase one-half (1/2) interest subject property was vested as Joint Tenants between brother of Sun Do Hong and sister Sun Be Hong. Plaintiff deposited into Escrow a check for $5,000.00. Approximately 6 months after the opening of the Escrow, Sun Do Hong filed a Complaint to Partition the subject property with a corresponding Motion to have a Court Appoint a Referee to oversee the sale. Plaintiff is requesting the court to determine that it has a valid stake in the property based on their purchase agreement dated January 20, 2023. On August 5, 2024, the Court found that the following cases, Hong v. Hong Case No. 23STCV12280 and Fenix Entrepreneur, Inc. v. Hong Case No. 24STCV17180, are related within the meaning of California Rules of Court, rule 3.300(a). 23STCV12280 is the lead case. On August 6, 2024, Defendant filed the Demurrer to the Complaint, arguing: · Plaintiff fails to state a cause of action for interpleader: o Insufficient allegation of conflicting claims o Lack of proper stakeholder status o Failure to deposit property or money · The Complaint is also uncertain Plaintiff filed an opposition, arguing: · Defense counsel failed to meet and confer · Plaintiff is a stakeholder · The Court should reconsider its May 1, 2024 ruling establishing a court supervised partition Defendant did not file a reply. II.DISCUSSION A. Legal Standard for Demurrer A demurrer tests the sufficiency of whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in contextany defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleading alone, and not the evidence or facts alleged. (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaints properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn, supra, 147 Cal.App.4th at p. 747.) B. Meet and Confer Requirement Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41, subd. (a).) Here, counsel for Defendant submitted a declaration stating I have reached out to Plaintiff to meet and confer regarding this demurrer. At the time of the signing of this declaration, we have not been able to resolve the issues of the demurrer. (Iloulian Decl., ¶ 4.) Defendants counsel also filed a supplemental declaration attaching an email chain in which he and Plaintiffs counsel emailed regarding scheduling a time to meet and confer. (Iloulian Decl., ¶ 5, Ex. 1.) Plaintiff argues that Defendant failed to meet and confer. Since Defendants counsel failed to meet and confer in person or by telephone, the Court finds the moving party has not met its obligation to meet and confer. However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (See Code Civ. Proc., § 430.41(a)(4).) Thus, the Court continues its discussion on the merits of the motion. C. Demurrer to Complaint Defendant demurs to the Complaint for uncertainty and failure to state a cause of action. As a general matter, [d]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. (Lickiss v. Fin. Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) A demurrer for uncertainty does not address whether the pleading fails to incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations actually made. (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.) Rather, a demurrer is intended to address whether a pleading is so incomprehensible that a defendant cannot understand the allegations actually made. (Id. at p. 146.) Here, the Complaint is not incomprehensible because it generally alleges that Plaintiff has a stake in the subject property based on the purchase agreement dated January 20, 2023 between Plaintiff and Sun Be Hong. (Complaint, ¶¶ 1-8.) Defendants arguments largely pertain to failure to state sufficient facts. Thus, the demurrer for uncertainty is unsubstantiated and overruled. Next, Defendant asserts that Plaintiff fails to state a cause of action for interpleader. When a person may be subject to conflicting claims for money or property, the person may bring an interpleader action to compel the claimants to litigate their claims among themselves. (CCP § 386(b); City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1122.) Once the person admits liability and deposits the money with the court, he or she is discharged from liability and freed from the obligation of participating in the litigation between the claimants. (City of Morgan Hill, supra, 71 Cal.App.4th 1114, 1122.) C.C.P. § 386(b) requires only that the stakeholder file a verified pleading disclaiming any interest in the money or property claimed; it is the stakeholder's avowed disinterest in the interpleaded proceeds that gives him the right to interplead. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 873.) CCP § 386 provides in relevant part: (b) Any person, firm, corporation, association or other entity against whom double or multiple claims are made, or may be made, by two or more persons which are such that they may give rise to double or multiple liability, may bring an action against the claimants to compel them to interplead and litigate their several claims. When the person, firm, corporation, association or other entity against whom such claims are made, or may be made, is a defendant in an action brought upon one or more of such claims, it may either file a verified cross-complaint in interpleader, admitting that it has no interest in the money or property claimed, or in only a portion thereof, and alleging that all or such portion is demanded by parties to such action, and apply to the court upon notice to such parties for an order to deliver such money or property or such portion thereof to such person as the court shall direct; or may bring a separate action against the claimants to compel them to interplead and litigate their several claims. The action of interpleader may be maintained although the claims have not a common origin, are not identical but are adverse to and independent of one another, or the claims are unliquidated and no liability on the part of the party bringing the action or filing the cross-complaint has arisen. The applicant or interpleading party may deny liability in whole or in part to any or all of the claimants. The applicant or interpleading party may join as a defendant in such action any other party against whom claims are made by one or more of the claimants or such other party may interplead by cross-complaint; provided, however, that such claims arise out of the same transaction or occurrence. . . . (f) After any such complaint or cross-complaint in interpleader has been filed, the court in which it is filed may enter its order restraining all parties to the action from instituting or further prosecuting any other proceeding in any court in this state affecting the rights and obligations as between the parties to the interpleader until further order of the court The Court does not find that Plaintiff has properly set forth an interpleader claim. A claim for interpleader must be brought by a neutral party seeking to resolve multiple conflicting claims by other parties. C.C.P. § 386(b) requires that the stakeholder file a verified pleading disclaiming any interest in the money or property claimed. Here, Plaintiff has not filed a verified pleading disclaiming any interest in the property. Instead, Plaintiff alleges that it has a stake in the subject property pursuant to the purchase agreement dated January 20, 2023 between Plaintiff and Sun Be Hong. (Complaint, ¶¶ 7-8.) Thus, Plaintiff is not a neutral party and is not the proper party to bring an interpleader claim. Further, there is no indication in the Opposition that Plaintiff would be able to cure the defects of the Complaint. (Rakestraw v. California Physicians' Service (2000) 81 Cal. App. 4th 39, 43.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) There is no basis in law to grant leave to amend where, the facts are not in dispute and the nature of the claim is clear but no liability exists under substantive law. (Casterson v. Sup. Ct. (2002) 101 Cal.App.4th 177, 190.) Accordingly, Defendants demurrer is sustained without leave to amend. III. CONCLUSION Defendants demurrer is sustained without leave to amend.
Ruling
KEVIN ORTIZ, ET AL. VS PW PLACE LLC, A WYOMING LIMITED LIABILITY COMPANY, FORFEITED IN CALIFORNIA, ET AL.
Sep 05, 2024 |23STCV07650
Case Number: 23STCV07650 Hearing Date: September 5, 2024 Dept: 31 Tentative Ruling Judge Kerry Bensinger, Department 31 HEARING DATE: September 5, 2024 TRIAL DATE: Not set CASE: Kevin Ortiz, et al. v. PW Place LLC, et al. CASE NO.: 23STCV07650 MOTION TO STRIKE ANSWER MOVING PARTY: Plaintiffs Kevin Ortiz and Andrew Davis RESPONDING PARTY: No opposition I. BACKGROUND This is a landlord-tenant habitability case. Plaintiffs Kevin Ortiz and Andrew Davis are neighbors in the building located at 4118 Palmwood Drive, Los Angeles, California 90008 (the Property). The property is owned by PW Place LLC and is managed by PW Place LLCs managing member Robert Franklin (Franklin) as the landlord of the Property. Plaintiffs allege the Property is severely substandard and unsafe. Rates and roaches infest the Propertys units, sewer leaks through the ceilings, and huge holes in walls and floors go unabated. On April 5, 2023, Plaintiffs commenced this action against Defendants PW Place LLC and Robert Franklin. On January 9, 2024, default was entered against PW Place LLC and Franklin.[1] On March 29, 2024, while in default, PW Place LLC filed an Answer to the Complaint Plaintiffs now move to strike PW Place LLCs Answer. The motion is unopposed. II. DISCUSSION Plaintiffs are entitled to an order striking Defendant PW Place LLCs Answer. [T]he entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385; see also Brooks v. Nelson (1928) 95 Cal.App. 144, 147-48 (stating the rule that a defendant against whom a default has been entered is out of court, and is not entitled to take any further steps in the cause affecting plaintiff's right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.).) Here, Defendant PW Place LLC was in default when it filed its Answer. Accordingly, PW Place LLC was not entitled to take any further steps against Plaintiffs causes of action until first setting aside the default. The motion to strike is meritorious for the further reason that Defendant PW Place LLC, as a corporation, cannot appear in an action without counsel. Under a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director, or other employee who is not an attorney.¿ It must be represented by licensed counsel in proceedings before courts of record. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.)¿ As a corporation, Defendant PW Place LLC may not appear in this action except through licensed counsel. III. CONCLUSION The motion to strike Defendant PW Place LLCs Answer is GRANTED. Defendant PW Place LLCs Answer, filed on March 29, 2024, is stricken. Plaintiffs may purse default proceedings against Defendant. Moving party to give notice, unless waived. Dated: September 5, 2024 ¿ ¿¿¿ ¿ ¿ Kerry Bensinger¿¿ ¿ Judge of the Superior Court¿ [1] Default was also previously entered against PW Place LLC on August 3, 2023, and September 25, 2023.
Ruling
EAGLE CREEK RANCH VS. HOUSER, ET AL.
Sep 04, 2024 |CVCV21-0197760
EAGLE CREEK RANCH VS. HOUSER, ET AL.Case Number: CVCV21-0197760This matter is on calendar for review regarding status of dismissal. No Request for Dismissal has been filed. Noupdated information has been provided to the Court. An appearance is necessary on today’s calendar toprovide the Court with a status of the case and the status of the dismissal.
Ruling
Evans vs. Nicholson, et al.
Sep 05, 2024 |23CV-0203519
EVANS VS. NICHOLSON, ET AL.Case Number: 23CV-0203519This matter is on calendar for review regarding status of default judgment. Defendants were defaulted January22, 2024. No Request for Entry of Default Judgment has been submitted. An appearance is necessary ontoday’s calendar to provide the Court with a status of the Request for Entry of Default Judgment.
Ruling
LEONTYNE R TAYLOR VS ERIC E BURL, ET AL.
Sep 10, 2024 |21STCV28753
Case Number: 21STCV28753 Hearing Date: September 10, 2024 Dept: 48 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT LEONTYNE R. TAYLOR, Plaintiff, vs. ERIC E. BURL, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 21STCV28753 [TENTATIVE] ORDER CONTINUING MOTION FOR ATTORNEY FEES AND COSTS; SETTING ORDER TO SHOW CAUSE Dept. 48 8:30 a.m. September 10, 2024 On June 18, 2024, the Court signed an order confirming the sale of the disputed real property in this action. On August 29, 2024, the parties filed a stipulation and proposed order to discharge the Partition Referee and deposit the sale proceeds with the Clerk until the Court enters a final judgment directing payment of the proceeds. The Court has signed the order. On August 27, 2024, counsel for Plaintiff Leontyne R. Taylor filed a declaration with a proposed distribution of the sale proceeds. No other briefing has been ordered or filed. An Order to Show Cause Re: Whether the Court Should Adopt Plaintiffs Proposed Distribution of Proceeds is scheduled for December 12, 2024 at 8:30 a.m. The parties are ordered to file their briefs no later than December 2, 2024. The Hearing on Motion for Attorney Fees and Costs is CONTINUED to December 12, 2024 at 8:30 a.m. The Hearing on Motion for Order by Partition Referee for Discharge and for Instructions Regarding Disposition of Remaining Money scheduled for October 8, 2024 at 8:30 a.m. is taken off calendar. Moving party to give notice. Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar. Dated this 10th day of September 2024 Hon. Thomas D. Long Judge of the Superior Court
Ruling
Las Posas Valley Water Rights Coalition et al vs Fox Canyon Groundwater Management Agency et al
Sep 04, 2024 |Judge Thomas P. Anderle |VENCI00509700
For Plaintiffs Las Posas Basin Water Rights Coalition, et al.: Peter A. Goldenring, Mark R. Pachowicz, Pachowicz Goldenring; Kevin M. O’Brien, Kelly M. Breen, Brian E. Hamilton, Downey Brand LLP For Defendant Fox Canyon Groundwater Management Agency: Elizabeth P. Ewens, Michael B. Brown, Timothy M. Taylor, Janelle S.H. Krattiger, Stoel Rives LLP; Tiffany N. North, Jason T. Canger, Office of the Ventura County Counsel For Defendant Calleguas Municipal Water District: Eric L. Garner, Jeffrey V. Dunn, Wendy Y. Wang, Alison K. Toivola, Best Best & Krieger LLP For Defendants Leavens Ranches, LLC, et al. (Las Posas Farming Group): Matt Kline, Barton (Buzz) Thompson, Russell McGlothlin, Heather Welles, O’Melveny & Meyers LLP For Defendants Berylwood Heights Mutual Water Company, et al.: Keith Lemieux, Aleshire & Wynder, LLP For Defendant Zone Mutual Water Company: R. Jeffrey Warren, Klein, Denatale Goldner LLP For Defendants Samuel and Sylvia Alvarez Family Revocable Trust etc., et al.: Robert N. Kwong, Nossaman LLP For Defendants Culbert Farms LLC, et al.: Steven R. Hagemann, The Ventura Legacy Group, APC For Defendants Wonderful Citrus, LLC, and Lemon 500 LLC: Robert J. Saperstein, Brownstein Hyatt Farber Schreck, LLP For Defendants Broadway Road Moorpark, LLC, et al.: Robert Kuhs, Lebeau Thelen, LLP For Defendants Milligan Ranch Partnership LP and D&D Coastal LLC: Julia Graeser Mata, Barg Coffin Lewis & Trapp, LLP For Defendants Mahan Ranch, LLC, et al.: James Q. McDermott, Neal P. Maguire, Jessica M. Wan, Shane M. Maguire, Ferguson Case Orr Paterson LLP (For other appearances see list)RULINGAs set forth herein, the motion of defendant Fox Canyon Groundwater Management Agency to amend the Judgment is denied as framed, without prejudice to a later motion to amend upon issuance of all remittiturs in pending appellate matters. The court deems the motion as a motion to confirm the delay of deadlines by the Watermaster pursuant to section 5.2.8 of the Judgment. The court confirms the delay of deadlines set forth in sections 2.7.10 and 2.11 of the Watermaster Rules (exhibit A to the Judgment) to conform to the proposed amendments to those sections as set forth in exhibit 4 to the declaration of Arne Anslem submitted in support of the motion.BackgroundOn July 10, 2023, the court entered its final judgment in this comprehensive groundwater adjudication action (the Judgment). The judgment consists of 72 pages of principal text. The judgment appoints defendant Fox Canyon Groundwater Management Agency (FCGMA) as Watermaster to administer the Judgment. (Judgment, § 5.1.) The Judgment further provides:“5.2.1. Powers and Duties. Watermaster has the duty and authority toperform the tasks assigned to it by this Judgment consistent with the terms herein.“5.2.2. Watermaster Contracting. Watermaster may enter into contracts andagreements as necessary, appropriate, and in furtherance of the Physical Solution, provided that Watermaster maintains full oversight of the exercise of such powers. Watermaster shall have the discretion and authority to employ or contract with such administrative personnel, engineering, legal, accounting, or other specialty services and consulting assistants as may be deemed appropriate in carrying out the terms of the Judgment, including to employ or contract for its general manager, general counsel, or staff. Further, nothing in this Agreement modifies or amends existing authority for the FCGMA to contract for services it considers appropriate for Groundwater management, including under SGMA and/or deriving from the FCGMA’s enabling legislation.“5.2.3. Annual Report. The FCGMA shall prepare a draft of the Annual Report and refer it for Committee Consultation as provided in the Watermaster Rules. The Annual Report shall include the information set forth in Water Code section 10728, California Code of Regulations title 23, section 356.2, and all additional information required by the Watermaster Rules. The FCGMA shall, after considering any Recommendation Report issued by the PAC or TAC and issuing a Response Report, submit the Annual Report to DWR and file it with the Court no later than April 1 of each Water Year.“5.2.4. Watermaster Records Keeping. Watermaster shall annually prepare and publish on its website and in the Annual Report the following: “5.2.4.1. An updated Groundwater Allocation Schedule, which will include and present all necessary information to properly account for Permanent Transfers of Allocation Basis; “5.2.4.2. The Annual Allocations Calculation, which will accurately describe the amount of Allocated Groundwater each Water Right Holder is authorized to Use during the ensuing Water Year inclusive of all bases of Use (e.g., Annual Allocation, Leased Annual Allocation, and Carryover subtracting any cure for Overuse during the prior Water Year);and “5.2.4.3. The Annual Allocations Accounting which will accurately describe for each Water Right Holder the amount of Allocated Groundwater the Water Rights Holder was authorized to Use during the preceding Water Year, the amount of Allocated Groundwater the Water Rights Holder Used, and whether the Water Right Holder established Carryover as a result of under-Use (and the amount thereof) or incurred Overuse (and the amount thereof). “5.2.5. Basin Boundary Modification. If Watermaster determines that amodification of the boundaries of the Basin as defined by DWR’s Bulletin 118 is appropriate to further Sustainable Management of the Basin, then consistent with Code of Civil Procedure section 841, Watermaster shall file a motion for an order from the Court pursuant to the Court’s continuing jurisdiction under Section 9.1 directing the Watermaster to submit a request to DWR pursuant to Water Code section 10722.2 to revise the Basin’s boundaries.“5.2.6. Enforcement. Watermaster will have the authority to enforce the terms of the Judgment, which authority will include at a minimum, the investigation andenforcement authority granted to a GSA under Water Code section 10732 and authorities granted to the FCGMA under its enabling legislation. This includes but is not limited to the ability to enforce timely reporting of Extractions and Use and enforcement of penalties for failure to report or Overuse, and the ability to conduct site inspections to confirm compliance with metering requirements. Watermaster may petition the Court to issue enforcement orders, upon a motion and hearing, as necessary to remedy any non-compliance with the Judgment terms, including: (i)to seek a judgment lien from the Court pursuant to Code of Civil Procedure section 697.310 et seq.; or (ii) to foreclose an Allocation to be Transferred to Watermaster to either be retired or Transferred to another Party to satisfy any delinquent Basin Assessments, Overuse Assessments, or any associated fees related to the Allocation, as is necessary and equitable under the circ*mstances. Any Party may also petition the Court to issue enforcement orders, upon a motion and hearing, as necessary upon Watermaster’s failure or refusal to enforce the terms of the Judgment. The Watermaster may seek injunctive and monetary relief against any Party or Personviolating the Judgment.“5.2.7. Emergency and Injunctive Relief. Watermaster may petition the Court for emergency or injunctive relief to prevent imminent harm to the Basin.“5.2.8. Deadlines for Exigent Circ*mstances. Watermaster may shorten or extend any deadline set forth in this Judgment where appropriate for exigent circ*mstances.“5.2.9. Watermaster Rules. Watermaster shall implement the Judgment consistent with the Watermaster Rules attached to this Judgment as Exhibit A. Watermastermay, following Committee Consultation, file a noticed motion with the Court to amend Watermaster Rules, which shall be granted upon a showing of good cause.” (Judgment, §§ 5.2.1–5.2.9, bolding and underscoring omitted.)“9.1 Jurisdiction Reserved. Consistent with Code of Civil Procedure section 852, the Court will retain full jurisdiction, power, and authority to oversee and address matters relating to the implementation of the Judgment. This includes the authority to review Basin Management Actions, and to make such further or supplemental orders or directives as may be necessary or appropriate, upon the motion of any Party or Watermaster, or sua sponte, to address inter se disputes concerning rights and obligations arising from the Judgment, and achieve Sustainable Groundwater Management, including: (i) the operation of the Physical Solution established by the Judgment; (ii) interpretation, enforcement, or carrying out of the Judgment; (iii) the modification or amendment of the Judgment; and (iv) rights to utilize available storage in the Basin (other than Carryover and the Calleguas ASR Project as provided herein). The Court shall construe its authority to review Basin Management Actions broadly, consistent with its authority and duty to impose and oversee a physical solution where necessary and consistent with Article X, section 2 of the California Constitution. The Court shall exercise its continuing jurisdiction in this action in the manner it deems necessary and appropriate to ensure Adaptive Management to achieve Sustainable Groundwater Management consistent with the law and the rights adjudicated herein. The Court orders that this Judgment govern all aspects of the FCGMA’s management of theBasin, whether undertaken by the FCGMA in its role as a special act water management agency, the GSA under SGMA, or as Watermaster. The Court may appoint such other independent special masters or referees to advise the Court with respect to any dispute as the Court deems necessary or advisable.” (Judgment, § 9.1, bolding and underscoring omitted.)“9.4 Modification or Amendment of Judgment. Consistent with Code of Civil Procedure sections 851 and 852, any Party, landowner, or other persons claiming the right to Extract Groundwater from the Basin, whose claims have not been exempted and are covered by the notice provided in the Comprehensive Adjudication, may file a motion to modify or amend the Judgment in response to new information, changed circ*mstances, the interests of justice, or to ensure that the criteria of Code of Civil Procedure section 850, subdivision (a), are met. Absent a strong showing of good cause, the Court will not consider reopening this proceeding to account for new claims. Code of Civil Procedure section 851 and 852 are summarized here for the convenience of the Parties, and nothing in this Section is intended to modify, amend, or expand Code of Civil Procedure sections 851 and 852.” (Judgment, § 9.4, bolding and underscoring omitted.)The Watermaster Rules are attached as exhibit A to the Judgment and are part of the Judgment. (Judgment, § 12.7.)On August 7, 2023, defendants Mahan Ranch, LLC, Mahan Development Corporation, Ralph D. Mahan, trustee of the Ralph D. Mahan Separate Property Trust of June 12, 2003, Ralph D. Mahan and Georgia A. Mahan, as trustees of the Mahan Family Trust of June 12, 2003, Oro Del Norte, LLC, Leon Scott Stevens, Trustee of the Leon O. Stevens Trust dated November 19, 1997, RBV 2+5 LLC, RBV-Vanoni, LLC, Debra A. Whitson, Thomas E. Olson, and Thomas K. Strain, Trustees of the McGonigle Ranch Trust dated April 1, 2021, and US Horticulture Farmland, LLC (collectively, the Mahan Ranch Defendants) filed their notice of appeal of the Judgment.On August 10, 2023, FCGMA filed a motion to confirm stay pending appeal.On August 14, 2023, FCGMA filed its notice of appeal of the Judgment.On August 28, 2023, defendants Leavens Ranches, LLC, et al. (the Las Posas Farming Group), plaintiffs Las Posas Valley Water Rights Coalition, et al. (plaintiffs), defendants Wonderful Citrus LLC and Lemon 500 LLC, defendant Zone Mutual Water Company, defendants Berylwood Heights Mutual Water Company, et al., defendants Broadway Road Moorpark, LLC, et al., defendants D&D Coastal, LLC, et al., defendants Rancho Canada Water Company, LLC, et al., and defendants Culbert Farms LLC, et al., (collectively, the Settling Parties) filed their joint opposition to FCGMA’s motion to confirm stay pending appeal.On August 30, 2023, defendant Solano Verde Mutual Water Company (Solano Verde MWC) filed its notice of appeal of the Judgment. Also on August 30, the Mahan Ranch Defendants filed their joinder to FCGMA’s motion to confirm stay pending appeal.On September 1, 2023, defendant Del Norte Water Company (Del Norte WC) filed its notice of appeal of the Judgment. On September 5, Del Norte WC filed its joinder to FCGMA’s motion to confirm stay pending appeal.On September 13, 2023, the court issued its order denying FCGMA’s motion to confirm stay pending appeal. FCGMA filed a petition for writ of supersedeas in the Court of Appeal, which petition was denied on November 2, 2023. (Las Posas Valley Water Rights Coalition et al. v. Fox Canyon Groundwater Management Agency et al. (B330837) app. pending.)On July 15, 2024, FCGMA filed this motion to amend the Judgment and Watermaster Rules. The requested amendments are discussed below.On July 19, 2024, the Settling Parties filed their partial joinder to FCGMA’s motion to amend the Judgment. The Settling Parties support the requested relief in FCGMA’s motion, request that the court hold a status conference at the time of the hearing on the motion, and request that the court set a status conference for December 4, 2024. The Settling Parties disagree with certain claims made in the motion apart from the relief sought.On July 22, 2024, based on the unopposed motion of FCGMA filed on July 3, the Court of Appeal issued its order dismissing the appeal of FCGMA, and issued its partial remittitur as to FCGMA. (Las Posas Valley Water Rights Coalition et al. v. Fox Canyon Groundwater Management Agency et al. (B330837) app. pending.) The appeal remains pending as to all other parties who filed notices of appeal. (Ibid.) Also on July 22, the court set a status conference for this hearing date and set a second status conference for December 4, 2024.On July 25, 2024, defendant Calleguas Municipal Water District (Calleguas MWD) filed its joinder to FCGMA’s motion to amend the Judgment.On August 16, 2024, the Mahan Ranch Defendants filed opposition to FCGMA’s motion to amend the Judgment. The opposition is discussed below.Analysis(1) Requested Amendments to the JudgmentThe amendments sought by the motion are identified in the redlined version of the Watermaster Rules as exhibit 4 and in the redlined version of the principal text of the Judgment as exhibit 6, both attached to the declaration of Arne Anselm in support of the motion. (Anselm decl., ¶¶ 9, 10.) With respect to the proposed amendments to the Watermaster Rules, there are a number of minor procedural changes and corrections, such as filling in blanks with actual dates and clarifying language. (E.g., Anselm decl., exhibit 4, §§ 1.1, 1.2, 2.1, 2.5.5.) There are also numerous changes to “important dates” when tasks as to be completed or approved. The proposed changes to these dates delay the dates set forth in the Watermaster Rules. For example, the deadline for referral of the GSP Update is June 7, 2024, but the deadline for the PAC and TAC Recommendation Reports discussed by Watermaster is changed from September 6, 2024, to “77 Days from Receipt of Draft.” (Anselm decl., exhibit 4, § 2.11.) It is explained that complying with the original dates is infeasible because of various factors outside of the Watermaster’s control. (Anselm decl., ¶ 5.)The proposed changes were the result of consultation pursuant to the procedures of the Judgment for amendment. (Anselm decl., ¶¶ 5-9; Settling Parties’ Partial Joinder, at p. 1.) There are no objections specific to any particular proposal. (See generally Opposition, at p. 2.)(2) Opposition and ReplyThe Mahan Ranch Defendants oppose the motion on procedural grounds as follows:“The Mahan Ranch Parties do not dispute the practical difficulties of the Judgment’s current scheduling demands, and therefore understand the basis for the Fox Canyon Groundwater Management Agency’s request for proposed scheduling modifications to the Judgment. As Fox Canyon informed the Court last year, the proposed schedules were unrealistic. (6/6/2023 Fox Canyon Groundwater Management Agency’s Opposition to Proposed Watermaster Rules.) The Settling Parties dismissed Fox Canyon’s concerns, and as a result so did this Court. (Phase 3 Statement of Decision at 101-03 [‘The FCGMA details its concerns in a brief filed in the last moments of trial. None is persuasive. ].’) Since last year, Fox Canyon’s concerns have been validated.“Putting aside whether the schedules should be adjusted at some point, Fox Canyon’s motion should still be denied. As this Court is aware, there are pending appeals from the Judgment in this matter. While this Court opted not to stay the Judgment based on the appeals (9/13/2023 Amended Order Denying Fox Canyon Groundwater Management Agency’s Motion To Confirm Stay Pending Appeal), Fox Canyon’s motion now goes even further and seeks to have the Court amend the Judgment despite the pending appeals. This Court has no jurisdiction to amend the Judgment. (Code Civ. Proc., § 916, subd. (a); Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 198 (‘Varian’); Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629 [‘The trial court’s power to enforce, vacate or modify an appealed judgment or order is suspended while the appeal is pending.’].) ‘This is true even if the subsequent proceedings cure any purported defect in the judgment or order appealed from.’ (Varian, supra, 35 Cal.4th at 198 [citing Sacks v. Sup. Ct. (1948) 31 Cal.2d 537,20 541].)”FCGMA replies to this opposition by arguing that the court has already determined, and the Court of Appeal has impliedly agreed, that there is no automatic stay by virtue of the appeal and that opposition improperly seeks reconsideration of the court’s determination.As discussed below, the procedural situation is unfortunately not simple.(3) Amendments and Enforcement OrdersThere is a distinction between the jurisdiction of a trial court to amend a judgment on appeal and the jurisdiction of a trial court to make orders enforcing a judgment on appeal.“Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ. Proc., § 916, subd. (a)“The purpose of the automatic stay provision of section 916, subdivision (a) ‘is to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’ [Citation.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189 (Varian).)“In general, ‘[t]imely filing of the notice of appeal vests jurisdiction in the appellate court and, subject to certain exceptions ..., terminates the lower court’s jurisdiction.’ [Citations.] As a result, a trial court has no jurisdiction to vacate, modify or otherwise change an order that is the subject of a pending appeal.” (Royals v. Lu (2022) 81 Cal.App.5th 328, 342.)“To accomplish this purpose, section 916, subdivision (a) stays all further trial court proceedings ‘upon the matters embraced’ in or ‘affected’ by the appeal. In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results. ‘[W]hether a matter is “embraced” in or “affected” by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the “effectiveness” of the appeal.’ [Citation.] ‘If so, the proceedings are stayed; if not, the proceedings are permitted.’ [Citation.]” (Varian, supra, 35 Cal.4th at p. 189.)These principles are addressed in the context of a groundwater adjudication in City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266 (Santa Maria). In Santa Maria, a water conservation district sued two cities, a water company, and Doe defendants to adjudicate rights in a groundwater basin. (Id. at pp. 281-282.) Subsequent complaints and cross-complaints bought in other public entities, water producers, and landowners who claimed a right to groundwater in the basin. (Id. at p. 282.) The matter was tried in five phases. (Ibid.) Before the phase IV trial commenced, the public water producers and most of the landowners entered into a stipulation as to certain of their respective water rights and contains a physical solution for the basin. (Ibid.) In light of the stipulation, the phase IV and phase V trial addressed only the rights and physical solution as between non-stipulating landowners and the public water producers. (Id. at pp. 283-284.) The trial court ultimately approved the terms of the stipulation as applying the non-stipulating landowners, which was incorporated into the judgment. (Id. at pp. 293-285.) Although the stipulation was not binding on the non-stipulating landowners, the judgment independently required the non-stipulating landowners to participate and be bound by the applicable monitoring program set forth in the stipulation. (Id. at pp. 285-286.) Each non-stipulating party was required by the judgment to monitor their water production, maintain records, and make the data available to the court or its designee as may be required by subsequent court order. (Id. at p. 286.) The judgment also provided that the trial court retained jurisdiction to make further or supplemental orders as may be necessary or appropriate regarding interpretation and enforcement of the judgment, as well as clarifications or amendments to the judgment consistent with law. (Ibid.)The non-stipulating landowners appealed. (Santa Maria, supra, 211 Cal.App.4th at p. 286.) After the notice of appeal was filed, the trial court approved certain groundwater monitoring plans and a water shortage and response plan submitted by Nipomo. (Id. at p. 310.) The non-stipulating landowners objected, arguing that the entire action was stayed pending resolution of the appeal. (Ibid.) The trial court rejected this argument, and the Santa Maria court denied their petition for writ of supersedeas to prevent the trial court from ruling on those motions for approval. (Ibid.) On appeal, the non-stipulating landowners argued that the trial court orders were void because the matter was stayed. (Ibid.)After stating the above standards regarding the scope of an automatic stay, the Santa Maria court rejected the non-stipulating landowners’ argument: “None of the possible outcomes of this appeal would have any effect upon the challenged postjudgment orders nor would those postjudgment orders make the appeal itself ineffective. Each of the postjudgment rulings would have or could have occurred regardless of the outcome here. The trial court made it quite clear that its orders approving the monitoring programs concerned only ‘those who have adopted’ those plans. The [non-stipulating landowners] do not challenge respondents’ right to establish monitoring programs. At best they argue that it was unnecessary for the trial court to make those programs part of this judgment. But even if we were to agree with that argument, the stipulating parties could nevertheless have sought judicial enforcement of the agreement as among themselves either via Code of Civil Procedure section 664.6 or a common law contract action. And as to the management plan submitted by Nipomo, the [non-stipulating landowners] have not contested any aspect of the Stipulation that applies to the Nipomo water management area. Whatever we were to decide about prescriptive rights, the Twitchell Yield, return flows, or the authority of the [Twitchell Management Authority], it would not have affected or been affected by approval of Nipomo’s Water Shortage Condition and Response Plan.” (Santa Maria, supra, 211 Cal.App.4th at p. 311.)Here, FCGMA does not merely seek orders approving plans or otherwise implementing the Judgment, but seek to amend the Judgment. As noted above, a trial court generally does not have jurisdiction to amend a judgment that is the subject of an appeal. There is therefore a substantial reason to believe that this court is without jurisdiction to amend the Judgment as requested. Moreover, the record with respect to this motion is not sufficient for this court to conclude authoritatively that the textual amendments sought, in whole or in part, could not have an effect upon the appeal. So, to avoid issues as to whether an order amending the Judgment would be void as outside the court’s jurisdiction, the better course now is not to disturb the Judgment by amending its text.This, however, does not fully resolve the issue because, as is conceded even by the Mahan Ranch Defendants, the deadlines included in the Judgment are not now workable. This court, as well as the Court of Appeal, has previously denied a stay of the Judgment. It is therefore incumbent upon the parties to implement the Judgment to the extent practicable in a manner that does not affect the matters on appeal and is otherwise consistent with law. The Judgment itself provides the solution, but not strictly in the manner argued by FCGMA.FCGMA points out that the Judgment, “[c]onsistent with Code of Civil Procedure section 851 and 852,” authorizes the court to modify or amend the Judgment “in response to new information, changed circ*mstances, the interests of justice, or to ensure that the criteria of Code of Civil Procedure section 850, subdivision (a), are met.” (Judgment, § 9.4.)However, neither sections 851 or 852 nor this provision of the Judgment authorize amending the Judgment while on appeal.“The judgment in a comprehensive adjudication conducted pursuant to this chapter shall be binding on the parties to the comprehensive adjudication and all their successors in interest, including, but not limited to, heirs, executors, administrators, assigns, lessees, licensees, the agents and employees of the parties to the comprehensive adjudication and all their successors in interest, and all landowners or other persons claiming rights to extract groundwater from the basin whose claims have not been exempted and are covered by the notice provided in the comprehensive adjudication.” (Code Civ. Proc., § 851.)“The court shall have continuing jurisdiction to modify or amend a final judgment in a comprehensive adjudication in response to new information, changed circ*mstances, the interests of justice, or to ensure that the criteria of subdivision (a) of Section 850 are met. If feasible, the judge who heard the original comprehensive adjudication shall preside over actions or motions to modify or amend the final judgment.” (Code Civ. Proc., § 852.)As a textual matter, the “final judgment” is final only as to non-appealing parties and, as to the appealing parties, only as to this court. The “final judgment” is not final for all purposes. “A judgment is the final determination of the rights of the parties [citation] ‘ “when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.” ’ [Citation.]” (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5.) Here, the litigation continues in the Court of Appeal, leaving an open textual question as to whether the trial court has jurisdiction to modify or amend the judgment that is final for some purposes but not others. Given the jurisdictional transfer that occurs between a trial court and an appellate court by the filing of a notice of appeal, it would be peculiar that a trial court would have jurisdiction to modify a judgment so as to interfere with appellate review. Consequently, in the absence of clear statutory language, section 852 cannot reasonably be read to provide general authority for modification of judgments pending appeal.These provisions are best understood by analogy to an appeal of a preliminary injunction. The grant or denial of a preliminary injunction by a trial court is appealable. (Code Civ. Proc., § 904.1, subd. (a)(6).) “In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.” (Code Civ. Proc., § 533.) Notwithstanding the statutory authority to modify or dissolve a preliminary injunction, a trial court does not have jurisdiction to modify or dissolve a preliminary injunction that is the subject of an appeal. (Varian, supra, 35 Cal.4th 180, 190, fn. 6; Environmental Coalition of Orange County, Inc. v. Avco Community Developers, Inc. (1974) 40 Cal.App.3d 513, 525.) Thus, as in the case of a preliminary injunction, although a trial court has statutory authority to modify an order, that authority is limited by the court’s jurisdiction to make such orders pending appeal.As discussed in Santa Maria, the court may nonetheless make implementing collateral orders that are not subject to an appellate stay. The requested amendments with respect to proposed deadlines can be framed as such orders separate and apart from amendments to the text of the Judgment.The Judgment itself provides that the “Watermaster may shorten or extend any deadline set forth in this Judgment where appropriate for exigent circ*mstances.” (Judgment, § 5.2.8.) “The rule has always been that ‘[i]f the judgment is self-executing and requires no process for enforcement, there is no statutory stay, and, as a general rule, supersedeas is equally inappropriate. [Citations.]’ [Citation.]” (Veyna v. Orange County Nursery, Inc. (2009) 170 Cal.App.4th 146, 156.) As noted above, there is no factual dispute that FCGMA cannot reasonably comply with the deadlines as they now exist in the Judgment and that extending the deadlines as requested in this motion is appropriate under the circ*mstances. The court confirms that that the present circ*mstances are “exigent circ*mstances” by which the Watermaster may extend the deadlines to the extent requested in this motion. This confirmation is sufficient to permit compliance with the Judgment without the textual amendment of the Judgment and without its attendant jurisdictional questions.Accordingly, the court will confirm that the deadlines are properly delayed under the unamended terms of the Judgment. Until the appeals are resolved, the court will otherwise deny the motion to amend, but such denial is without prejudice to the filing of a motion to amend to include conforming amendments after the issuance of all remittiturs.
Ruling
P.J. McAuliffe Family Partnership, L.P. vs. The Testate or Intestate Successors of Nora McAuliffe, et al.
Sep 03, 2024 |23CV-0202994
SUCCESSORS OF NORA MCAULIFFE, ET AL.Case Number: 23CV-0202994Tentative Ruling on Motion for Judgment on the Pleadings: This is an action to quiet title todormant mineral rights. Plaintiff P.J. McAuliffe Family Partnership, LP brings this motion forjudgment on the pleadings against Defendant John P. “Jack” McAuliffe pursuant to Code of CivilProcedure section 43(c)(1)(A). Plaintiff argues that the First Amended Complaint (FAC) statesfacts sufficient to constitute a cause or causes of action against the Defendant and the Answer doesnot state facts sufficient to constitute a defense to the complaint. The motion is unopposed.Meet and Confer: “The moving party shall file and serve with the motion for judgment on thepleadings a declaration stating” the attempts made to meet and confer. CCP § 439(a)(3). TheDeclaration of Michael Ricks provides sufficient evidence of Plaintiff’s meet and confer efforts.Request for Judicial Notice: The Court GRANTS Plaintiff’s request for judicial notice of the priorOrders in this case, and that certain requests were deemed admitted pursuant to this Court’s Order,pursuant to Evid. Code § 452(d) and 453.Merits of Motion: CCP § 438(c)(1)(A) provides a plaintiff may move for judgment on thepleadings if the complaint states sufficient facts to constitute a cause of action and the answer doesnot state facts sufficient to constitute a defense to the complaint. The grounds for the motion shallappear on the face of the challenged pleading or from any other matter of which the court may takejudicial notice. CCP § 438(d). The Court may take judicial notice of responses to discoveryrecords pursuant to Evidence Code §§ 452(d) and 453. Arce v. Kaiser Foundation Health Plan,Inc. (2010) 181 Cal.App.4th 471, 485. A motion for judgment on the pleadings has the samefunction as a general demurrer but is made after the time for demurrer has expired. Except asprovided by CCP § 438, the rules governing demurrers apply. Cloud v. Northrop Grumman Corp.(1998) 67 CA4th 995, 999.Plaintiff’s First Amended Complaint is the operative pleading. It alleges causes of action for: 1)Quiet Title Against or Termination of Dormant Mineral rights Pursuant to Civ. Code 883.110, etseq., 2) Common Law Abandonment of Mineral Rights, 3) Declaratory Relief.First Cause of Action: Quiet Title or Termination of Dormant Mineral Rights. The owner of realproperty subject to a mineral right may bring an action to terminate the mineral right pursuant tothis article if the mineral right is dormant. Cal. Civ. Code § 883.210. A mineral right is dormantif all of the following conditions are satisfied for a period of 20 years immediately precedingcommencement of the action to terminate the mineral right: (a) There is no production of theminerals and no exploration, drilling, mining, development, or other operations that affect theminerals, whether on or below the surface of the real property or on other property, whether or notunitized or pooled with the real property; (b) No separate property tax assessment is made of themineral right or, if made, no taxes are paid on the assessment; (c) No instrument creating,reserving, transferring, or otherwise evidencing the mineral right is recorded. Cal. Civ. Code §883.220. Plaintiff’s FAC alleges the required conditions have been satisfied. (FAC ¶¶2, 36-39.)Defendant filed a document entitled “Request for Dismissal” on September 20, 2023. The partiesstipulated orally before the Court on March 24, 2024, that this document is deemed the Answerfor both the Original Complaint and the First Amended Complaint. The Answer acknowledgeselement Cal. Civ. Code § 883.220(a) is true and does not address elements (b) or (c). No defensehas been raised. Plaintiff is therefore entitled to judgment on the pleadings as to the First Causeof Action.Second Cause of Action: Common Law Abandonment of Mineral Rights. “Actions to quiet title,like true declaratory relief actions, are generally equitable in nature. A quiet title action is astatutory action that seeks to declare the rights of the parties in realty. The object of the action isto finally settle and determine, as between the parties, all conflicting claims to the property incontroversy, and to decree to each such interest or estate therein as he may be entitled to. Thepurpose of a quiet title action is to determine any adverse claim to the property that the defendantmay assert, and to declare and define any interest held by the defendant, so that the plaintiff mayhave a decree finally adjudicating the extent of his own interest in the property in controversy.”Weeden v. Hoffman (2021) 70 Cal. App. 5th 269, 291 (internal citations omitted).The Supreme Court of California has held that mineral rights are a type of perpetual profit aprendre, which, like easem*nts, are subject to abandonment. Gerhard v. Stephens (1968) 68 Cal.2d 864, 880. “If interests in real property can be and are abandoned, they do not become, as in thecase of personal property, the property of the first appropriator, but instead return to the estate outof which they were carved. The abandonment of a profit a prendre, therefore, because the profitin essence is an easem*nt, does not become subject to the void in ownership that the common lawof land title sought to avoid. If a perpetual right of way or other easem*nt is abandoned, theproperty interest reverts to the servient estate. Similarly, a perpetual right to remove oil and gaswould ordinarily revert to the surface estate, thereby freeing that estate of its burden and permittingits owner more complete utilization and enjoyment of his property.” Id. at 887 (internal citationsomitted).Plaintiff’s FAC alleges Defendants have not produced or attempted to produce the mineral rightsor recorded any instrument evidencing their intention to retain the rights since the 1972 Deed wasrecorded. (FAC ¶ 41.) Plaintiff’s FAC alleges that due to the nonuse and failure to evidence anyintention of retaining the mineral rights, Defendants intended to abandon them. (FAC ¶ 42.)Defendant’s Answer indicates an intent to maintain the mineral rights. (Answer ln.16-18.)However, in its January 25, 2024 Order, this Court deemed admitted Plaintiffs Requests forAdmission, Set One. These admissions establish that Plaintiff conveyed any rights or interestsincluding but not limited to mineral rights in the real property at issue on April 4, 2012. Theadmissions further establish that since April 4, 2012, Defendant has not acquired any rights orinterests, including but not limited to mineral rights, to the real property at issue. These admissionsestablish that Defendant has conveyed any claimed interest in the disputed mineral rights at issue.This does not squarely establish a claim for common law abandonment. Nonetheless, theadmissions do establish that the equitable relief sought by Plaintiff is appropriate.Third Cause of Action: Declaratory Relief. Plaintiffs allege a cause of action for declaratory relief.Declaratory relief is an equitable remedy, not a cause of action. Faunce v. Cate (2013) 222 Cal.App. 4th 166, 173. Plaintiff seeks this Court’s determination that Defendant’s mineral rights inthe subject property have terminated, and have been abandoned, and have therefore merged withthe fee interest in the Property. Based on the foregoing discussion of Plaintiff’s First Cause ofAction for Termination of Dormant Mineral Rights, as well as the Second Cause of Action forAbandonment, the Court finds that Plaintiff is entitled to the relief sought. Additionally, the Courtnotes that its prior Order, dated July 8, 2024, imposed an issue sanction establishing that Defendantindividually and as Trustee of the Leonore McAuliffe 1993 Trust, has no interest in any mineralrights in the Property identified in ¶ 2 of the First Amended Complaint.Where a motion for judgment on the pleadings is granted as to the complaint, the Court normallygrants the opposing side leave to amend its answer unless it appears from the pleadings thatamendment is incapable of otherwise affecting the outcome. Given not just the deficiencies ofMcAuliffe’s answer, but also the Court’s judicially noticed prior orders confirming McAuliffe hasno mineral rights in the property, the Court finds that no amendment will affect the Court’s rulingon this Motion for Judgment on the Pleadings. Leave to amend is therefore not indicated.Plaintiff’s Motion for Judgment on the pleadings is GRANTED without leave to amend. Aproposed order has been lodged with the Court and will be executed.
Ruling
PLENITUDE HOLDINGS, LLC, A WYOMING LIMITED LIABILITY COMPANY VS COUNTY OF LOS ANGELES, A POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA
Sep 05, 2024 |23CMCV01624
Case Number: 23CMCV01624 Hearing Date: September 5, 2024 Dept: A 23CMCV01624 Plenitude Holdings, LLC v. County of Los Angeles Thursday, September 5, 2024, at 8:30 a.m. [TENTATIVE] ORDER GRANTING PLAINTIFFS THREE MOTIONS TO COMPEL FURTHER RESPONSES TO: 1) SPECIAL INTERROGATORIES NOS. 6 AND 13-15 (GRANTED IN PART/DENIED IN PART) 2) REQUEST FOR PRODUCTION OF DOCUMENTS (GRANTED IN FULL) 3) REQUESTS FOR ADMISSION (GRANTED IN FULL) [TENTATIVE] ORDER DENYING DEFENDANTS MOTION TO QUASH DEPOSITION SUBPOENA SERVED BY PLAINTIFF, OR ALTERNATIVELY, FOR A PROTECTIVE ORDER I. BACKGROUND This action arises from the County of Los Angeles (County) alleged breach of a 2021 Ground Lease agreement (Ground Lease) and a 2022 Amendment, wherein Plaintiff agreed to redevelop real property into a multi-use, multi-tenant, sports and entertainment complex. Plaintiff, Plenitude Holdings, LLC, (Plenitude or Plaintiff) alleges that the County breached its obligation to consider in good faith Plaintiffs second request for a six-month extension to commence construction of the Redevelopment Plan (Plan) and Plaintiffs proposal to approach the redevelopment in phases. Plaintiff alleges claims for breach of two separate provisions of the ground lease and breach of the implied covenant of good faith and fair dealing. On April 8, 2024, the County filed a cross-complaint against Plenitude for breach of contract of the 2021 Ground Lease and amendments thereto and for declaratory relief. II. ARGUMENTS On January 17, 2024, Plaintiff propounded the first document request on County, who responded on March 21, 2024. Plaintiff also served set one of special interrogatories and requests admission on County on January 23, 2024. The County served responses on March 26, 2024. After the parties met and conferred, County served supplemental responses on July 26, 2024. Plaintiff argues the responses remain incomplete, not Code compliant, and asserts that Countys objections are without merit. In opposition, the County maintains that the supplemental responses are complete as the requests are irrelevant and/or overbroad in scope. Plaintiff reiterates in reply that the supplemental responses remain defective. III. LEGAL STANDARDS A motion to compel further responses to special interrogatories, document request, and requests for admission is proper where the requesting party believes the statement of compliance is incomplete, or a representation of inability to comply is inadequate, incomplete, or evasive and/or an objection in the response is without merit or too general. (Code Civ. Proc., sections 2030.300 subd. (a); 2031.310 subd. (a).) Additionally, a party may move for an order compelling further responses to requests for admission. (Code Civ. Proc., § 2033.290 subd. (a).) All motions require the parties to meet and confer prior to filing the motion. IV. DISCUSSION A. Special Interrogatories 1) Request to compel further responses to special interrogatories Nos. 6 and 13 is DENIED. Plaintiff asked the County to identify the Countys processes in determining whether to grant Plenitude additional time to commence the project as reflected in the First Amended Lease as well as the Countys processes for determining that Plaintiff was in default of the amended lease and the processes by which the County determined that Plaintiff was in default. The interrogatories are relevant to Plaintiffs contention that Section 17.6 of the Ground Lease provides for a general reasonableness standard whenever consent or approval is sought from the County. (Complaint, ¶ 7.) Plaintiff contends the Countys responses to both interrogatories are not specific enough as it does not provide identifying information or details concerning the who, what, where, when, and how called for by the request. (OSS[1]. 3:19-24.) Neither interrogatory 6 nor 13 requests these specifics; Plaintiff generally asked Defendant to describe its processes, to which the County responded, [t]he processes included but were not limited to the following: Representatives of the Department of Parks and Recreation, the Second District, and the County CEO conferred with Plenitude and internally regarding whether to grant PLENITUDEs request for a six-month extension [or to determine Plaintiffs default]. County counsel and private counsel were consulted. Thereafter a decision was made.(PSS 2:23-26; 5:7-10.) The Court finds that a further response is not required given the general nature of the request. 2) Request to compel further response to Special Interrogatory 14 and 15 is GRANTED. Plaintiff asks for the names of persons acting on the Countys and the Kimmelman Foundations (Foundation) behalf with respect to the Foundations proposed redevelopment of any portion of the Victoria Golf Course. (OSS 6:25-26.) Defendant contends the question is irrelevant and vague and ambiguous with respect to the phrase involved in the negotiations. (OSS 7:4-9.) Plaintiff explains that the Foundation is a third-party, a charitable entity who sought to redevelop the northern portion of the property. Despite extensive negotiations, the Foundations project did not come to fruition because of environmental challenges imposed by the County (among other issues). (OSS 7:18-22.) Plaintiff contends that the Countys negotiations with the Foundation are relevant because the Foundations redevelopment efforts related to the same landfill involved in Plaintiffs redevelopment project; involved a comparable size, scope, and purpose; and was affected by the same economic conditions. (OSS 8:10-16.) Plaintiff concedes the Foundations negotiations did not result in a lease agreement, and the project was officially dead by 2021. (OSS 7:15-17.) Whether the County exercised commercial reasonableness in deciding whether to sign a lease agreement with the Foundation is not relevant to Plaintiffs complaint, which alleges that County breached by failing to act reasonably in denying Plaintiffs request for a six-month extension (among other things) as allegedly required by an existing lease agreement and amendment thereto. The Countys argument, however, depends on a narrow construction of the Complaint. The complaint also asserts that the Countys 2017 decision to assign to the Foundation development rights to the north parcel of the golf course impacted Plaintiffs expectations to redevelop the entire site pursuant to its own 2017 Exclusive Negotiating Agreement with the County and impacted Plaintiffs development plans. (Complaint, ¶ 3, 37.) County sought to amend its agreement with Plenitude based on its negotiations with the Foundation. (Complaint ¶ 38.) Plaintiff alleges that Countys negotiations with the Foundation served as an impetus for subsequent amendments to Plaintiffs lease agreements. The complaint is replete with allegations of the Foundations development rights, its involvement with the County, the effects on Plaintiffs redevelopment plans, and how these negotiations affected the Seventh Amendment to Plenitudes lease agreement and subsequent amendments thereto. (Complaint ¶ 29-31, 33 [Seventh amendment to the lease agreement contemplating Plaintiffs duties in the event of an agreement between County and the Foundation and the drastic effect on Plaintiffs plans], ¶¶ 34-35, 38-41.) Accordingly, Plaintiff has demonstrated the relevance of Countys negotiations with the Foundation, which provides material factual context for the Countys and Plenitudes negotiations and amendments to the lease as expressly alleged in the Complaint. In short, Plaintiff contends that the Countys and Plenitudes dispute and there intentions cannot be fully understood without discovery of information pertaining to the Foundations simultaneous negotiations with the County, given the Foundations impact on Plaintiffs plans which appears in part to contradict Plaintiffs rights according to its own Lease Agreement with the County. B. Request to compel further response to requests for admission 5, 7, 8 is GRANTED. Request 5 asks Defendant to admit or deny that Plaintiff was allowed to propose modifications, request extensions for development and construction, and to propose modifications of the plan and the time frame pursuant to the amended lease. Defendants response must: (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. (2) Deny so much of the matter involved in the request as is untrue. (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge. (c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter." (Code Civ. Proc., § 2033.290.) Defendants responses to Request 5, 7, and 8 do not comply. Instead, Defendant provides a narrative to justify its conduct, which is non-responsive and evasive. (RFA OSS, 4:21-5:20.) Contrary to Defendants objection, Plaintiff is not asking for a legal conclusion, rather, Plaintiff is attempting to dispense of those contentions which are no longer at issue, identify those that remain at issue, or whether Defendant does not have sufficient facts to admit or deny, which is the point of such requests as the County concedes. (Id. 6:23-28.) The request is neither vague nor ambiguous. Defendant contends Plaintiff should have identified the reference to the contractual provision at issue. The RFA attempts to narrow defenses, which is permissible. Plaintiff is not obligated to identify portions of the Amended Agreement which may or may not assist it in substantiating its claims. Defendant is free to propound discovery seeking the bases for Plaintiffs claims. C. Request for further response and production of documents is GRANTED. 1) Countys objections to 25-30; 33-35; 79; 82, 87-88 (Kimmelman Foundation discovery) County objected to production of documents and communications relating to the Countys desire to allow the Kimmelman Foundations project for redevelopment. As explained in paragraph B.2. above, Plaintiff has demonstrated that such documents are material to Plaintiffs claims. The relevant time frame involving the Foundations involvement is expressly alleged as Defendant acknowledges [between 2017 and 2020]. (Opp. RFA 7:7-8.) Regardless, the requests are not objectionable on grounds of relevance. Defendants dispute of Plaintiffs factual contentions is not dispositive as to discovery of information relating to Plaintiffs alleged claims, whether or not Defendant believes Plaintiffs assertions are false or unlikely to lead to discoverable information. (Opp. RFA). Plaintiff is entitled to discover facts relevant to its material allegations as previously explained. Defendant has not established that production will result in undue burden or expense. An objection based on burden requires evidence showing the quantum of work required. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417.) An objection based on oppression requires a showing of either an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought. (Id.) None of these assertions are established by the three declarations of Robert J. Catalano. While Defendant asserted objections based on various privileges, none are discussed in Defendants opposition. Moreover, refusing to produce documents based on a privilege does not warrant refusal to disclose. Defendant must provide information sufficient to evaluate the merits of the privilege including a privilege log specifically identifying with particularity the documents affected by the privilege, including the common-interest privilege [2] which the County now asserts. (Code Civ. Proc., § 2031.240 subd. (b), (c).) 2) Requests 78, 80-83. (Mark Ridley-Thomas discovery). Plaintiff requests documents and communications between former County Supervisor, Mark Ridley-Thomas, and Plaintiffs consultant, Cynthia McClain-Hill, relating to the redevelopment project. Defendant has not substantiated its claim that production will result in undue burden and expense. Defendants belief that the discovery is unlikely to produce relevant information given the termination of the former supervisors term which occurred before the parties signed the Lease agreement on September 24, 2021, does not support the refusal to produce relevant information that Plaintiff is otherwise entitled to discover. (Opp. RFA 10:1-5.) Defendant concedes that the documents are of limited relevance. (Id. 10:15.) The degree of relevance does not warrant limiting Plaintiffs ability to discover information that fall within the wide scope of discovery. Nor is it permissible for Defendant to unilaterally determine what documents are relevant (communications with Supervisor Holly Mitchell.) (Id. 10:11-14.) This avoids Defendants obligation to produce relevant information not otherwise privileged. Additionally, Plaintiffs request is more specific than the documents Defendant agrees to produce (documents between County and Plaintiffs consultant.) This also avoids the specific request propounded by Plaintiff. 3) Request to compel further response to 60-63, 66-67, 72 and 74 is GRANTED. These documents relate to the economic feasibility and community impact of redeveloping the golf course and south parcel at issue. Defendant asserted numerous objections based on privilege, undue burden, overbreadth, among other objections, but ultimately agreed to produce all non-privileged responsive documents from January 16, 2018 forward. Defendant improperly imposes a time limitation. Plaintiff argues the County considered redevelopment in 2015. (Complaint ¶¶ 2, 24-25.) Plaintiff has established the relevance of pre-2018 documents, and Defendant is required to provide a privilege log to the extent disclosure is not permitted based on privilege. Defendant has not established undue burden and expense with evidence. 4) Request to compel further responses to 14, 20 is GRANTED. Plaintiff requests documents and communications between the parties relating to Countys consideration of Plenitudes request for additional time to commence construction and to modify the timeframe for redevelopment work. Defendants response impermissibly limits production to documents... constituting communications between the parties. (Opp. SS RFP 14:15-18.) The request specifically asks for documents and communications. This response is not Code-Complaint. Defendants contention that Plaintiffs arguments to support compelling the discovery are formal and non-substantive and completely unnecessary is without merit. (Opp. SS RFP 16:2-4.) Unilateral limitations are improper absent a protective order. Whether Defendant produced responsive documents in response to other RFPs is not a Code-compliant response. 5) Request to compel further responses to 10-11, 13 is GRANTED. Plaintiff requests documents and communications relating to Countys interpretation of the reasonableness standard identified in Section 17.6 of the Amended Lease, any instance when County exercised reasonableness standard as it related to Plaintiff, and documents and communications evidencing what consideration County gave to Plaintiff relating to Plaintiffs request for additional time to commence construction. Defendant asserts objections based on privilege, work product doctrine, immunity, vagueness and ambiguity. Defendant agreed to produce all non-privileged responsive documents evidencing the Countys consideration of Plentitudes request for extension of construction deadlines as set out by the Amended and 1st Amended lease. (Opp SS 9:10-14). The response is not Code-compliant, impermissibly imposes limitations by tying the documents within the context of the Amended and 1st Amended lease, and limits production to communications between the County and Plentitude. Countys consideration of Plaintiffs requests for extension may include Countys communications with others concerning the exercise of their obligation which Plaintiff contends was unreasonable. None of the Countys objections based on privilege, vagueness and ambiguity, or overbreadth have merit for reasons previously discussed. V. CONCLUSION Based on the foregoing, Plaintiffs motion to compel further responses to special interrogatories is GRANTED IN PART. Defendant is ordered to provide further verified and Code-compliant responses, without objection to Nos. 14 and 15 within 10 days. The request for further responses to Nos. 6 and 13 is DENIED. Plaintiffs motions to compel further responses to request for production of documents and requests for admission are granted in full with respect to the specific requests at issue. Defendant is ordered to provide further verified and Code-compliant responses and production of documents without objection to the particular requests outlined in Plaintiffs separate statement within 10 days. [TENTATIVE] ORDER DENYING DEFENDANTS MOTION TO QUASH DEPOSITION SUBPOENA SERVED BY PLAINTIFF, OR ALTERNATIVELY, FOR A PROTECTIVE ORDER I. BACKGROUND AND ARGUMENTS Defendant argues that Plaintiff served a subpoena on Latham & Watkins (Latham), counsel for the Kimmelman Foundation (Foundation) for five categories of documents and communications between the County and the Foundation relating specifically to (1) the negotiations of terms of the Countys and the Foundations lease, (2) Memorandum of Agreement (MOA), (3) the Exclusive Negotiating Agreement ( ENA), (4) documents relating generally to the Foundation and the Victoria Golf Course and (5) specifically the Foundations Option to Lease (Option) including drafts of such documents. Plaintiff limits production to exclude documents protected from disclosure by the attorney-client and work product privilege. Defendant moves for an order quashing the subpoena, or alternatively, for a protective order on grounds the documents are not relevant and are protected from disclosure by the common-interest privilege which shields information exchanged between the County and the Foundation. At minimum, the County requests an opportunity to review any disclosures made by Latham prior to production to ensure that privileges held by the County are preserved. The burden of producing such documents outweighs any negligible likelihood that the documents will lead to the discovery of admissible evidence. (Mot. 4:8-10.) In opposition, Plaintiff argues that the subpoenaed documents fall within the broad scope of discovery. Plaintiff argues that the Countys negotiations with the Foundation occurred in parallel to negotiations with Plaintiff. There is no evidence to substantiate undue burden. Lathams counsel informed Plaintiffs counsel that it amassed a database of 2,000 hits for the requested information and is expected to review those documents in one week. County failed to meet and confer. Countys reply argues that Plaintiff is attempting to reframe the issues as on concerning the Countys expectations concerning the redevelopment project. The Countys expectations are derived from the lease agreement between County and Plaintiff, who admits that the Foundation abandoned its project before Plaintiff made its second extension request for the projects commencement date. The Countys dealings with Kimmelman has no bearing on the Countys and Plaintiffs obligations pursuant to their lease agreement and amendments thereto. II. LEGAL STANDARDS The court can quash a subpoena to protect the Plaintiff from unreasonable or oppressive demands including unreasonable violations of the right of privacy by motion reasonably made. The court has discretion to quash the subpoena upon such terms or conditions as the court shall declare, including issuing protective orders. (Code Civ. Proc., § 1987.1.) III. DISCUSSION County makes an alternative motion for protective order, which requires a declaration that the parties met and conferred. (Code Civ. Proc., § 2017.020 subd (a).) Defendant does not provide the required declaration. (Robert J. Catalano decl.) However, section 1987.1 does not impose a meet and confer requirement. Therefore, the court will consider the merits of the motion. A. Plaintiff has established the relevance of documents pertinent to Countys negotiations with the Foundation. The relevance of documents pertaining to the Countys negotiations with the Foundation has been addressed in the courts ruling regarding Plaintiffs motion to compel Defendants further responses to special interrogatories. The ruling applies equally here and is incorporated for ease of reference. As Plaintiff explained in its motion to compel further responses to special interrogatories, the Foundation is a third-party, charitable entity who sought to redevelop the northern portion of the property. Despite extensive negotiations, the Foundations project did not come to fruition because of environmental challenges imposed by the County. (OSS 7:18-22.) Plaintiff contends that the Countys negotiations with the Foundation are relevant because the Foundations redevelopment efforts related to the same landfill involved in Plaintiffs redevelopment project; involved a comparable size, scope, and purpose; and was affected by the same economic conditions. (OSS 8:10-16.) Plaintiff concedes the Foundations negotiations did not result in a lease agreement, and the project was officially dead by 2021. (OSS 7:15-17.) Whether the County exercised commercial reasonableness in deciding whether to sign a lease agreement with the Foundation is not relevant to Plaintiffs complaint, which alleges that County breached by failing to act reasonably in denying Plaintiffs request for a six-month extension (among other things) as allegedly required by an existing lease agreement and amendment thereto. However, Plaintiff also alleges that the Countys 2017 decision to assign to the Foundation development rights to the north parcel of the golf course impacted Plaintiffs expectations to redevelop the entire site pursuant to its own 2017 Exclusive Negotiating Agreement with the County and impacted Plaintiffs development plans. (Complaint, ¶ 3, 37.) County sought to amend its agreement with Plenitude based on its negotiations with the Foundation. (Complaint ¶ 38.) Plaintiff alleges that Countys negotiations with the Foundation served as an impetus for subsequent amendments to Plaintiffs lease agreement. The complaint is replete with allegations of the Foundations development rights, its involvement with the County, the effects on Plaintiffs redevelopment plans, and how these negotiations affected the Seventh Amendment to Plenitudes lease agreement and subsequent amendments thereto. (Complaint ¶ 29-31, 33 [Seventh amendment to the lease agreement contemplating Plaintiffs duties in the event of an agreement between County and the Foundation and the drastic effect on Plaintiffs plans], ¶¶ 34-35, 38-41.) Accordingly, Plaintiff has demonstrated the relevance for documents relating to the Countys negotiations with the Foundation which provides material factual context for the Countys and Plenitudes negotiations and amendments to the lease as expressly alleged in the Complaint. In short, Plaintiff contends that the Countys and Plenitudes dispute cannot be fully understood without discovery of information pertaining to the Foundations simultaneous negotiations with the County, given the Foundations impact on Plaintiffs plans which appears in part to contradict Plaintiffs rights according to its own Lease Agreement with the County. Accordingly, the Countys objection based on relevance is without merit. Defendant has not established that production will result in undue burden or expense. An objection based on burden requires evidence showing the quantum of work required. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417.) An objection based on oppression requires a showing of either an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought. (Id.) None of these assertions are established by the County. Moreover, any claim of undue burden and expense is undermined by emails from Rob Ellison of Latham, who has already completed a search for documents responsive to the subpoena, and who needed a week for review of those documents. (Opp. Ex. 1.) Although Defendant argues the documents are marginally relevant, the Complaints allegations make clear that the Foundations involvement is material to Plaintiffs allegations that Defendant failed to exercise reasonableness in denying approval of Plaintiffs request for an extension to commence the project or a modification to the redevelopment plan. B) County has not established that the common-interest privilege (CIP") precludes disclosure of the subpoenaed documents. County asserts that it has a common interest agreement with the Foundation that shields disclosure of information exchanged between the County and the Foundation, and the Foundations counsel. The agreement was allegedly intended to insure that information disclosed for purposes of sharing (as opposed to obtaining legal advice) will remain confidential and subject to the attorney-client privilege. (Mot 10: 15-21.) County conflates the privilege with its confidential agreement with the Foundation. The common-interest privilege is a qualified privilege that shields disclosure of attorney-client communications or attorney work product. Where such documents are disclosed to a third party (County) with a common interest, such disclosure does not constitute a waiver of the attorney-client or work product privilege. (Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, 914.) Here, the documents are requested of Latham, Foundations counsel, neither of whom has asserted the attorney-client privilege or work product doctrine to bar disclosure of documents contemplated by the subpoena. The CIP "allows disclosure between parties, without waiver of privileges, of communications protected by the attorney-client privilege or the attorney work-product doctrine where the disclosure is necessary to accomplish the purpose for which the legal advice was sought [citation omitted]. The doctrine is not an independent privilege but a doctrine specifying circ*mstances under which disclosure to a third party does not waive privileges [citation omitted]. It does not mean there is an expanded attorney-client relationship encompassing all parties and counsel who share a common interest. (Ceres at 914.) Application of the CIP requires proof of the following: "that participants in an exchange have a reasonable expectation that information disclosed will remain confidential. If a disclosing party does not have a reasonable expectation that a third party will preserve the confidentiality of the information, then any applicable privileges are waived. An expectation of confidentiality, however, is not enough to avoid waiver. In addition, disclosure of the information must be reasonably necessary for the accomplishment of the purpose for which the lawyer was consulted. [Citation.] Thus, [f]or the common interest doctrine to attach, most courts seem to insist that the two parties have in common an interest in securing legal advice related to the same matterand that the communications be made to advance their shared interest in securing legal advice on that common matter. (Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, 915.) The privilege is limited to the following situations: [P]arties with common interests disclose privileged communications to each other. The privilege survives disclosure to a party with a common interest only if it is necessary to accomplish the privilege holder's purpose in seeking legal advice. The doctrine extends no further than this because in California there is no independent statutory joint defense or common interest privilege, and California courts are not authorized to establish one. The Federal Rules of Evidence provide that principles of common law govern rules of privilege and, consequently, the Ninth Circuit, for example, has recognized a joint defense privilege as an extension of the attorney-client privilege since at least 1964." (Citizens at 916917.) County argues that pursuant to its agreement with Foundation, it had a reasonable expectation that information shared with the Foundation and Latham would remain confidential and that any existing privilege would remain intact, and therefore, not subject to discovery by Plaintiff. (Mot. 9:11:13.) It is not enough for County to establish an agreement with the Foundation that general information shared with Latham would remain confidential; rather, "the party seeking to invoke the doctrine must first establish that the communicated information would otherwise be protected from disclosure by a claim of privilege. For example, the content of the communication may comprise information shared in confidence by a client with his or her attorney, a legal opinion formed, and advice given by the lawyer in the course of the attorney-client relationship, or a writing reflecting an attorney's impressions, conclusions, or theories. (See Evid.Code, § 952; Code Civ. Proc., § 2018, subd. (c).) The next step in the analysis is to determine whether disclosing the information to a party outside the attorney-client relationship waived any applicable privileges." (OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 890.) Here, Plaintiff has expressly excluded production of documents protected by the attorney-client or attorney work product privilege. There is no evidence that the Foundation objects to the disclosure, indeed, Latham has conducted its preliminary review of documents contemplated by the subpoena. The County has not established that the non-privileged documents sought are protected from disclosure because "the disclosure [is] wholly inconsistent with the purpose of the privilege, which is to safeguard the attorney's work product and trial preparation. (OXY at 891.) It bears repeating that the subpoena, by its express terms, does not implicate production of attorney-client communication or Lathams work product. There is no evidence that County provided Foundation with the documents to advance their [Countys and the Foundations] shared interest in securing legal advice on that common matter. (Id.) County has not demonstrated with any authority that its confidentiality agreement with the Foundation, alone permits application of the CIP. Nor has the County offered any authority for an order that the court permit a preliminary review of the potentially disclosed documents by County, in camera or otherwise, before disclosure to Plaintiff. Plaintiff requests documents outside the scope of the attorney-client and work-product privilege. The court can require in camera review where the party asserts a qualified privilege against disclosure. (Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, 912.) Here, County has not established the proper application of any privilege. IV. CONCLUSION Based on the foregoing, Defendants motion to quash the subpoena on Latham and Watkins, or alternatively for a protective order, is DENIED. [1] OSS refers to Opposing Separate Statement filed by the County. [2] The common interest privilege, which is a qualified privilege is recognized in situations where the "communicator and the recipient have a common interest and the communication is of a kind reasonably calculated to protect or further that interest." (Klem v. Access Ins. Co. (2017) 17 Cal.App.5th 595, 617.) It is more fully discussed in reference to Countys motion to quash.
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