Motion for judgment on the pleadings
Plaintiff moves, under CCP section 483.010, for the issuance of a writ of attachment against Defendant in the amount of $100,000.00. Defendant proffers evidence that Debenture No. 2 includes an arbitration provision, which provides, in relevant part, that “any claim, dispute, or controversy of whatever nature arising out of or relating to this Debenture, including, without limitation, any action or claim based on tort, contract, or statute . . . shall be resolved by final and binding arbitration ... before a single arbitrator ... selected from and administered by JAMS Inc.” (ROA 85—Ye Decl. at ¶ 3, Exh. 1 [Debenture No. 2 at § 15].) Additionally, Defendant has filed a motion to compel arbitration and to stay proceedings. (ROA 67.) Defendant contends Plaintiff has failed to meet the standard required for obtaining provisional relief when a dispute is subject to arbitration.
CCP section 1281.8 provides, in relevant part, that: “A party to an arbitration agreement may file in the court in the county in which an arbitration proceeding is pending, or if an arbitration proceeding has not commenced, in any proper court, an application for a provisional remedy in connection with an arbitrable controversy, but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without provisional relief.” (Code Civ. Proc., § 1281.8, subd. (a), emphasis added.)
There is no dispute that Defendant is in the process of selling certain real property in Texas and intends to use the proceeds to repay its creditors. Plaintiff has not shown that the arbitration award to which it may be entitled would be “rendered ineffectual” without provisional relief. The application is denied without prejudice to Plaintiff seeking renewal if such facts can be stated.
Defendant shall give notice of the ruling.
3. 2021-1231301 The Court grants Cross-Defendant Yama Gulham’s unopposed Gulham vs. Motion for judgment on the pleadings as to the third cause of action Younge for malicious prosecution in Cross-Complainants Michael A. Younge and Amany Simmonds’ Cross-Complaint.
Younge and Simmonds have 15 days leave to amend.
Younge and Simmonds take issue with the lack of any meet and confer effort. But the statute contains no provision for compelling compliance with the meet and confer requirement, unlike the meet and confer requirement in the discovery process. Additionally, the failure to sufficiently meet and confer is not grounds to grant a motion for judgment on the pleadings. (
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judgment on the pleadings.”) The Court admonishes Gulham to comply with the applicable meet and confer rules.
The Court notes that a First Amended Cross-Complaint was filed on 3/6/23. (ROA 97.) But this was filed while an Anti-SLAPP motion was pending. A plaintiff (or cross-complaint) is not permitted to amend the complaint before the hearing on the anti-SLAPP motion. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1280.) Thus, the First Amended Cross-Complaint is improper and stricken.
Moving to the merits, a motion by defendant (or cross-defendant) be made on the grounds that the complaint (or any cause of action therein) “does not state facts sufficient to constitute a cause of action against that defendant.” (CCP § 438(c).)
The Cross-Complaint alleges in relevant part that the Complaint in this case was maliciously prosecuted.
“To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor; (2) was brought without probable cause; and (3) was initiated with malice.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50, internal citations omitted.) “A claim for malicious prosecution need not be addressed to an entire lawsuit; it may ... be based upon only some of the causes of action alleged in the underlying lawsuit.” (Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 333.)
“[F]avorable termination requires favorable resolution of the underlying action in its entirety, not merely a single cause of action. ‘[I]f the defendant in the underlying action prevails on all of the plaintiff’s claims, he or she may successfully sue for malicious prosecution if any one of those claims was subjectively malicious and objectively unreasonable. But if the underlying plaintiff succeeds on any of his or her claims, the favorable termination requirement is unsatisfied and the malicious prosecution action cannot be maintained.’” (Citizens of Humanity, LLC v.
Ramirez (2021) 63 Cal.App.5th 117, 128, internal citation omitted; Ray v. First Federal Bank (1998) 61 Cal.App.4th 315, 319, favorable termination may depend on appellate proceedings after initial decision in the trial court has been recognized in other cases; see e.g. Daon Corp. v. Place Homeowners’ Ass’n (1989) 207 Cal.App.3d 1449, 1456—order dismissing cross-complaint against third party not appealable “final judgment” because third party still remained in action in same and different capacities.)
Here, the Cross-Complaint fails to allege all elements of the malicious prosecution claim.
Gulham is ordered to serve notice.
5. 2025-1484192 Plaintiff Patricia Wallick’s unopposed motion to be appointed Mucatel vs. personal representative for Decedent Victor Mucatel is granted. Arbor Palms of Anaheim Code Civ. Proc., § 377.31 states: “On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, but the decedent’s successor-in-interest.”
Here, Plaintiff submitted a declaration, confirming that she is the deceased plaintiff’s successor-interest, which complies with Code Civ. Proc., § 377.32. She states that the only other heirs at law and successors in interest aside from herself are her siblings Daniel Mucatel, Marc Mucatel and Joseph Mucatel (also Plaintiffs). (Wallick Decl., ¶¶ 2-3, Ex. A.) Plaintiff included consents signed by her siblings for her to be appointed representative of Decedent’s claims.
Plaintiff shall give notice.
6. 2023-1339526 The motion of plaintiff Melanee Huerta, by and through her Huerta vs. guardian ad litem, Wendy Mariona, substituting herself in as Cedar Fair, LP plaintiff in place of her guardian ad litem now that she has reached the age of majority is granted. Code Civ. Proc. §372(a)(1);
Facts When this action was filed Plaintiff was a minor and a guardian ad litem was appointed. [Complaint (ROA #2), ¶ 3; second amended complaint “SAC”), ¶ 3; Application and Order filed 8/7/23 (ROA #8; Kruse Decl. (ROA # 136), ¶ 3.]
Plaintiff was born on 10/11/2006. [Application and Order, ¶ 4.a; Kruse Decl., ¶ 4.] She is therefore now over 18. [Id.]
Discussion
Code of Civil Procedure section 372 provides that a minor must appear in an action through a guardian ad litem. Code Civ. Proc. §372(a)(1) (“When a minor, a person who lacks legal capacity to make decisions . . . .).
Once the minor reaches her majority, she no longer lacks legal capacity. As a result, the statutory authorization for appointment of