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This case was last updated from Los Angeles County Superior Courts on 07/08/2019 at 21:20:44 (UTC).

EXECUTIVE PERILS INC VS MARIA HALE

Case Summary

On 02/02/2015 EXECUTIVE PERILS INC filed a Labor - Other Labor lawsuit against MARIA HALE. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOLLY E. KENDIG and ELAINE LU. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1034

  • Filing Date:

    02/02/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

HOLLY E. KENDIG

ELAINE LU

 

Party Details

Plaintiffs and Cross Defendants

EXECUTIVE PERILS INC.

MAGNUSON MICHAEL D. DOE 1

R-T SPECIALTY INSURANCE SERVICE LLC DOE2

MAGNUSON MICHAEL

Defendants and Respondents

DOES 1 THROUGH 20

HALE MARIA

MAGNUSON MICHAEL D. DOE 1

R-T SPECIALTY INSURANCE SERVICE LLC DOE2

MAGNUSON MICHAEL

Defendants and Cross Plaintiffs

HALE MARIA

MORENO CRISTINA

Attorney/Law Firm Details

Plaintiff Attorneys

THE LAW OFFICE OF THOMAS M. FERLAUTO APC

MCGONIGLE TIMOTHY D

GUERRA JASON ERIC

Defendant and Respondent Attorneys

BOMAN CHRISTOPHER J. ESQ.

ASHKINDADZE REGINA ESQ.

BOMAN CHRISTOPHER J

SPURLEY REGINA ASHKINADZE

OLSEN AARON FRANKLIN ESQ.

Defendant and Cross Plaintiff Attorneys

ASHKINDADZE REGINA ESQ.

SPURLEY REGINA ASHKINADZE ESQ.

 

Court Documents

PLAINTIFF'S OPPOSITION TO R-T SPECIALTY INSURANCE SERVICES, LLC AND MICHAEL D. MAGNUSON'S EX PARTE REQUEST FOR THE COURT TO SUA SPONTE AND SUMMARILY CUT-OFF DISCOVERY

12/29/2017: PLAINTIFF'S OPPOSITION TO R-T SPECIALTY INSURANCE SERVICES, LLC AND MICHAEL D. MAGNUSON'S EX PARTE REQUEST FOR THE COURT TO SUA SPONTE AND SUMMARILY CUT-OFF DISCOVERY

CASE MANAGEMENT STATEMENT

4/9/2018: CASE MANAGEMENT STATEMENT

CASE MANAGEMENT ORDER

5/21/2018: CASE MANAGEMENT ORDER

DEFENDANT MARIA HALE'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS LL SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

6/19/2018: DEFENDANT MARIA HALE'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS LL SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Notice

2/20/2019: Notice

Separate Statement

2/20/2019: Separate Statement

Substitution of Attorney

6/6/2019: Substitution of Attorney

Motion in Limine

7/2/2019: Motion in Limine

DEFENDANT MARIA HALES' NOTICE UF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS ND AUTHORITIES

3/30/2015: DEFENDANT MARIA HALES' NOTICE UF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS ND AUTHORITIES

DEFENDANT MARIA HALES' NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

6/18/2015: DEFENDANT MARIA HALES' NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

DEFENDANT MICHAEL MAGNUSON'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

7/13/2015: DEFENDANT MICHAEL MAGNUSON'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

DEFENDANT MARIA HALES' NOTICE OF DEMURRER AND DEMURRER TO THE SECOND AMENDED COMPLAINT; ETC

9/24/2015: DEFENDANT MARIA HALES' NOTICE OF DEMURRER AND DEMURRER TO THE SECOND AMENDED COMPLAINT; ETC

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MARIA HALE'S DEMURRER TO THE SECOND AMENDED COMPLAINT

9/24/2015: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MARIA HALE'S DEMURRER TO THE SECOND AMENDED COMPLAINT

ANSWER OF CROSS-DEFENDANT EXECUTIVE PERILS, INC. TO CROSS-COMPLAINT

11/30/2015: ANSWER OF CROSS-DEFENDANT EXECUTIVE PERILS, INC. TO CROSS-COMPLAINT

CIVIL DEPOSIT

8/4/2016: CIVIL DEPOSIT

Minute Order

8/23/2016: Minute Order

Proof of Service

3/28/2017: Proof of Service

JOINT STIPULATION TO PROVIDE DEFENDANT MICHAEL D. MAGNUSON LEAVE TO FILE FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES

6/12/2017: JOINT STIPULATION TO PROVIDE DEFENDANT MICHAEL D. MAGNUSON LEAVE TO FILE FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES

95 More Documents Available

 

Docket Entries

  • 07/02/2019
  • Motion in Limine (B to Exclude Plaintiff from Presenting Any Evidence, Testimony, or Argument as to Evidentiary Determinations Made by the Court in Regards to Defendant Maria Hale's Motion for Summary Judgment); Filed by Michael Magnuson (Defendant); R-T Specialty Insurance Service, LLC DOE2 (Defendant)

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  • 07/02/2019
  • Joinder to Motion (in Limine No. D by Defendants R-T Specialty and Damien Magnuson); Filed by CRISTINA MORENO (Cross-Complainant); Maria Hale (Cross-Complainant)

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  • 07/02/2019
  • Motion in Limine (D to Exclude Expert Witness Testimony from Brad Maryman and Joseph Greenfield); Filed by Michael Magnuson (Defendant); R-T Specialty Insurance Service, LLC DOE2 (Defendant)

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  • 07/02/2019
  • Motion in Limine (C to Exclude Evidence of Defendant's Financial Condition Unless and Until Plaintiff Has Proven a Prima Facie Case for Punitive Damages); Filed by Michael Magnuson (Defendant); R-T Specialty Insurance Service, LLC DOE2 (Defendant)

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  • 07/02/2019
  • Motion in Limine (A to Preclude Plaintiff from Introducing to the Jury Previously Produced Bates Labeled Documents Designated "Confidential," "Highly Confidential," or "Attorneys Eyes Only" by the Parties During Discovery); Filed by Michael Magnuson (Defendant); R-T Specialty Insurance Service, LLC DOE2 (Defendant)

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  • 07/02/2019
  • Motion in Limine (No. AC to exclude the "One More" email); Filed by Maria Hale (Cross-Complainant)

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  • 07/02/2019
  • Motion in Limine (No. AB to exclude evidence related to dismissed claims); Filed by Maria Hale (Cross-Complainant)

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  • 07/02/2019
  • Motion in Limine (No. AA to exclude defenses based on overtime exemptions); Filed by Maria Hale (Cross-Complainant)

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  • 06/07/2019
  • Substitution of Attorney; Filed by Executive Perils, Inc. (Plaintiff)

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  • 06/06/2019
  • Substitution of Attorney; Filed by Executive Perils, Inc. (Plaintiff)

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194 More Docket Entries
  • 05/21/2015
  • AMENDMENT TO COMPLAINT

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  • 05/21/2015
  • Amendment to Complaint; Filed by Maria Hale (Defendant)

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  • 05/21/2015
  • Amendment to Complaint; Filed by Executive Perils, Inc. (Plaintiff)

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  • 03/30/2015
  • DEFENDANT MARIA HALES' NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

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  • 03/30/2015
  • DEFENDANT MARIA HALES' NOTICE UF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS ND AUTHORITIES

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  • 03/30/2015
  • Demurrer; Filed by Maria Hale (Defendant)

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  • 03/30/2015
  • Demurrer; Filed by Maria Hale (Defendant)

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  • 02/02/2015
  • Complaint; Filed by null

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  • 02/02/2015
  • COMPLAINT FOR: 1) MISAPPROPRIATION OF TRADE SECRETS (CC 3426, ET SEQ.); ETC

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  • 02/02/2015
  • SUMMONS

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Tentative Rulings

Case Number: BC571034    Hearing Date: March 9, 2021    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

EXECUTIVE PERILS, INC.,

Plaintiff,

v.

MARIE HALE, et al.

Defendants.

Case No.: BC571034

Hearing Date: March 9, 2021

[TENTATIVE] order RE:

Plaintiff’s motion to tax costs

Background

On February 2, 2015, Plaintiff Executive Perils, Inc. (“Plaintiff”) filed the instant action against its former employee Maria Hale. On May 21, 2015, Plaintiff filed a Doe amendment and First Amended Complaint adding defendants Michael Magnuson (“Magnuson”) and R-T Specialty Insurance Services, LLC (“R-T Specialty”). On August 21, 2015, Plaintiff filed a Second Amended Complaint. Of the claims asserted, only the following claims proceeded to trial; (1) Misappropriation of Trade Secrets against Magnuson and R-T Specialty, (2) Breach of Contract against Magnuson, (3) Breach of Fiduciary Duty against Magnuson, and (4) Unfair Business Practices against Magnuson and R-T Specialty Insurance. [1]

Following an eight-day jury trial, the jury rendered a special verdict on March 10, 2020 finding nominal damages of $1.00 for Plaintiff. On August 20, 2020, the court entered judgment in favor of Defendants Magnuson and R-T Specialty as the prevailing parties. On September 3, 2020, Magnuson and R-T Specialty (jointly “Defendants”) filed a memorandum of costs as prevailing parties.

On September 21, 2020, Plaintiff filed the instant motion to tax costs. On February 24, 2021, Defendants filed an opposition. On March 2, 2021, Plaintiff filed a reply.

Legal Standard

Code of Civil Procedure section 1033.5 sets forth the costs recoverable by the prevailing party. To recover a cost, it must be reasonably necessary to the litigation and reasonable in amount. (Perko’s Enterprises, Inc. v. RRNS Enterprises (l992) 4 Cal.App.4th 238, 244.) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-74.) On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Id.)

California Rule of Court, Rule 3.1700 requires that “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended” by up to 20 days. (Cal. Rules of Court, Rule 3.1700(b)(1).) Additionally, “[T]he court may extend the times for serving and filing the cost memorandum or the notice of motion or tax costs for a period not to exceed 30 days.” (Cal. Rules of Court, Rule 3.1700(b)(3).)

Discussion

Plaintiff seeks to strike (1) Item Number 4 for Travel Fees For Depositions in the amount of $1,671.27, (2) Item Number 5 (a)-(c). for Service of Process fees in the amount of $521.75, (3) Item Number 16 (Other - E-Discovery Hosting) in amount of $11,473.65, (4) Item Number 16 (Other - For Travel To Final Status Conference Hearings) in the amount of $1,733.72, and (5) Item Number 16 (Other For Mileage To Trial).

Travel Expenses for Depositions

Under item 4 of the memorandum of costs, Defendants claim $25,777.88 in deposition costs, Plaintiff seeks to tax $1,671.27 claimed in travel costs for the deposition. Specifically, Plaintiff contends that the travel costs were not reasonably necessary because Defense Counsel has offices in Los Angeles and San Diego, and “[t]he depositions of Damien Magnuson Vol. 1, Kevin Gigler, Maria Hale, Peter Taffae, Peter Taffae PMK, Alfonso Navarro, Cristina Moreno and Maria Hale were all taken locally (i.e. in the Los Angeles and/or San Diego areas).” (Motion p.6:8-11.)

“If items on a memorandum of costs appear to be proper charges on their face, those items are prima facie evidence that the costs, expenses, and services are proper and necessarily incurred. [Citation.] The burden then shifts to the objecting party to show them to be unnecessary or unreasonable.” (Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 693.)

Code of Civil Procedure section 1033.5 expressly provides that travel expenses to attend depositions are recoverable. (CCP § 1033.5(a)(3)(C).) Thus, the travel expenses claimed in costs appear to be proper charges on their face. Accordingly, the burden is on Plaintiff to show them unnecessary or unreasonable.

Here, Plaintiff does not meet its burden. The mere fact that the Defense firm has an office in both San Diego and in Los Angeles and that the depositions occurred in Los Angeles does not make travel costs unnecessary or unreasonable. There is no evidence of which attorneys attended the deposition or that the cost was excessive. Nor does Plaintiff cite any authority to support its contention that there is a requirement in the cost statute that the lead counsel in an action cannot claim travel expenses if there is nearby office for the same firm.

Accordingly, Plaintiff’s motion to tax the $1,671.27 claimed in travel costs for the deposition is DENIED.

Service of Process Fees

Plaintiff contends that the $521.75 in process server fees was unnecessary and unreasonable because there was no reason to have a process server serve Plaintiff’s counsel’s office and that the designated expert was already required to appear at the deposition.

Here, Defendants incurred expenses of $136.25 for a registered process server to serve Plaintiff’s expert witness and the remaining $385.50 to serve Plaintiff’s counsel. Under Code of Civil Procedure section 1033.5(a)(4), costs for service of process are expressly recoverable. Plaintiff states that “[t]hese costs were not reasonably necessary in that Rosen was a designated expert and was already required to appear at the deposition. Further, there was no reason to have a process server serve Plaintiff’s counsel’s office.” (Motion p. 6:17-19.) However, Plaintiff fails to explain why these services were unnecessary or unreasonable.

Accordingly, Plaintiff’s motion to tax the $521.75 in process server fees is DENIED.

E-Discovery Hosting

Plaintiff seeks to tax the $11,473.65 for the e-discovery hosting fees claimed by Defendants.

Under Code of Civil Procedure section 1033.5, e-discovery hosting is expressly permitted only if the court orders such fees. (CCP § 1033.5(a)(15).) Here, there is no such order for such fees. However, e-discovery hosting fees are not expressly forbidden under Code of Civil Procedure section 1033.5(b) and are permissible at the discretion of the trial court. (CCP § 1033.5(c)(4).) Regardless, “the objecting party has the burden to show that a cost item is unrecoverable because it was not necessary to the litigation.” (Hooked Media Group, Inc. v. Apple Inc. (2020) 55 Cal.App.5th 323, 338.)

Here, the e-discovery hosting section lists monthly recurring charges starting from March 31, 2016 to February 29, 2020 totaling $11,473.65. In Hooked Media Group, Inc., the Court of Appeal upheld the denial of a motion to tax e-discovery costs noting that “[the objecting party] makes valid arguments that the e-discovery costs may have been incurred more out of convenience than necessity. But given our deferential standard of review, reversal is not warranted. The trial court, having closely observed the litigation as it progressed over several years, was in a much better position than we are to decide whether expenses associated with managing electronic data were necessarily incurred.” (Hooked Media Group, Inc., supra, 55 Cal.App.5th at pp.338–339.) Here, hundreds of exhibits were presented over the course of an eight-day jury trial. Moreover, the case involved numerous discovery disputes since 2016 of numerous electronic files. Thus, the court finds that the e-discovery hosting cost was reasonably necessary and permitted under Code of Civil Procedure 1033.5(c)(4).

Travel Expenses for Final Status Conference Hearing

Plaintiff seeks to tax the $1,733.72 of travel expenses for the final status conference hearing. Specifically, Plaintiff argues that because Defendant’s counsel has offices in both Los Angeles and San Diego, the costs were not reasonable in amount. Here, the Court finds that the having lead counsel attend the final status conference hearing is reasonably necessary and a recoverable expense. However, the Court agrees that the costs incurred are excessive and unreasonable. Here, the costs four nights of hotel expenses in Los Angeles on February 2, 10, 13, and 18, 2020 with each cost at over $400 a night. This nightly hotel cost is excessive therefore the court finds that of this amount $300.00 should be taxed as unreasonable.

Travel Expenses- For Mileage To Trial

Plaintiff moves to tax $776.28 claimed by Defendants for trial related mileage costs on the ground that the mileage costs for Defendants’ counsel traveling from San Diego is duplicative of the paralegal mileage from San Diego to Los Angeles.

However, Plaintiff fails to explain how the costs are duplicative as both the Defense counsel and paralegal may have traveled separately and at different times. Thus, Plaintiff fails to meet its burden in showing that the costs are unreasonable or unnecessary.

CONCLUSION AND ORDER

For the foregoing reasons, Plaintiff Executive Perils, Inc.’s motion to tax is granted in part in the amount of $300.00 for travel expenses for the final status conference. Plaintiff’s motion is otherwise DENIED.

Moving Party is ordered to provide notice of this order and file proof of service of such.

DATED: March 9, 2021 ___________________________

Elaine Lu

Judge of the Superior Court


[1] The Unfair Business Practice claim was dismissed on June 22, 2020.

Case Number: BC571034    Hearing Date: October 26, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

EXECUTIVE PERILS, INC.,

Plaintiff,

v.

MARIE HALE, et al.

Defendants.

Case No.: BC571034

Hearing Date: October 26, 2020

[TENTATIVE] order RE:

Plaintiff’s motion for new trial

Background

On February 2, 2015, Plaintiff Executive Perils, Inc. (“Plaintiff”) filed the instant action against a former employee Maria Hale. On May 21, 2015, Plaintiff filed a Doe amendment and First Amended Complaint adding defendants Michael Magnuson (“Magnuson”) and R-T Specialty Insurance Services, LLC (“R-T Specialty”). On August 21, 2015, Plaintiff filed a , Amended Complaint was filed. Of the claims asserted, only the following claims proceeded to trial; (1) Misappropriation of Trade Secrets against Magnuson and R-T Specialty, (2) Breach of Contract against Magnuson, (3) Breach of Fiduciary Duty against Magnuson, and (4) Unfair Business Practices against Magnuson and R-T Specialty Insurance. [1]

Following an eight-day jury trial, the jury rendered a special verdict on March 10, 2020 finding nominal damages of $1.00 for Plaintiff.

On August 20, 2020, the court entered judgment. On September 15, 2020, Plaintiff filed notice of intent to move for a new trial. On September 25, 2020, Plaintiff filed the memorandum for the motion for new trial. On October 13, 2020, R-T Specialty and Magnuson filed an opposition. On October 19, 2020, Plaintiff filed a reply.

Timeliness

A motion for new trial must be filed and served “within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest.” (CCP § 659(a)(2). Within ten days of filing notice of intention to move for a new trial, the moving party must serve and file the memorandum in support. (Cal. Rules of Court, rule 3.1600(a).)

Here, the court entered judgment on August 20, 2020. No notice of entry of judgment was filed or served at that time. Accordingly, the notice of intent to move for new trial filed September 15, 2020 was filed within 180 days of entry of judgment and is timely. Within ten days of filing the notice, on September 25, 2020, Plaintiff filed the memorandum in support of its motion for new trial.

Legal Standard

A motion for new trial is governed by Code of Civil Procedure section 657, which states in relevant part:

The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

3. Accident or surprise, which ordinary prudence could not have guarded against.

4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

5. Excessive or inadequate damages.

6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

7. Error in law, occurring at the trial and excepted to by the party making the application.

The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. (Romero v. Riggs (1994) 24 Cal.App.4th 117, 121-122.) However, “[t]he right to a new trial is purely statutory, and a motion for a new trial can be granted only on one of the grounds enumerated in the statute.” (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166.) “As the motion for a new trial finds both its source and its limitations in the statutes [Citation], the procedural steps prescribed by law for making and determining such a motion are mandatory and must be strictly followed [Citations]. Applying this rule, it has uniformly been held that an order granting a new trial is in excess of jurisdiction and void if, for example, it is made in a proceeding in which the remedy of new trial is not available [Citations.] (Mercer v. Perez (1968) 68 Cal.2d 104, 118.)

Discussion

Plaintiff moves for a new trial based on statutory grounds of inadequate damages.

Inadequate Damages

Plaintiff contends that the nominal damage awarded for Magnuson’s conduct is improper and against the weight of the evidence.

“A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (CCP § 657.)

In its special verdict rendered on March 10, 2020, the jury found that Magnuson breached the contract between himself and Plaintiff but that Plaintiff was not harmed by Magnuson’s breach of the contract. With respect to Plaintiff’s misappropriation of trade secrets claim, the jury found that Plaintiff owned and made reasonable efforts to keep secret its spreadsheet, library, or comparison of different insurance policies, which had actual or potential independent economic value by virtue of its secrecy. However, the jury found that neither Magnuson nor R-T Specialty Insurance Services used or disclosed the trade secret by improper means. With respect to Plaintiff’s breach of fiduciary duty claim, the jury found that Magnuson was a corporate officer of Plaintiff and failed to act as a reasonably careful corporate officer would have acted under the same circumstances with respect to handling confidential information, but that Plaintiff was not harmed by Magnuson’s failure to act as a reasonably careful corporate officer would have acted under the same circumstances. The jury further found that Magnuson did not knowingly act during his employment with Plaintiff against Plaintiff’s interests by soliciting and poaching Plaintiff’s customers for Plaintiff’s competitors. Finally, the jury found that Plaintiff’s economic damages totaled one dollar.

Because the jury found neither Magnuson nor R-T Specialty Insurance Services liable for misappropriation of trade secrets, the two causes of action that are relevant here are the breach of contract and breach of fiduciary duty claims, each of which was asserted against Magnuson only.

Plaintiff contends that “that the jury improperly failed to do its job and simply took the easy way out, finding liability, but merely awarding nominal damages despite the copious evidence that [Plaintiff] was damaged by Magnuson’s misconduct.” (Motion pp.1:27-2-2.) In support of this argument, Plaintiff presents the transcript of Michael Rosen who testified as to damages incurred by Plaintiff and as to Rosen’s analysis of damages. (McGonigle Decl. Exs. 2-3.)

In opposition, Defendants assert that “[d]espite having the burden to prove causation, Plaintiff was unable to establish through admissible evidence at trial that any breach of contract and/or breach of the duty of care caused any damages.” (Opposition p.1:13-15.)

In reply, Plaintiff contends that the jury must have found causation as “[t]he jury awarded $1 in ‘nominal’ damages on both of the claims upon which it found Defendant liable. Thus, according to the jury’s own verdict, the jury must have found causation and actual damages, since causation is a predicate element of the cause of action for breach of fiduciary duty in the first place[.]” Reply p.2:22-26.)

Defendants correctly note that the jury’s special verdict clearly demonstrates that there was no finding of causation. Specifically, the jury found as follows:

Question No. 4: Was Executive Perils, Inc., harmed by Damien Magnuson’s breach of the contract?

____ Yes __X__ No

Question No. 16: Was Executive Perils, Inc. harmed by Damien Magnuson’s failure to act as a reasonably careful corporate officer would have acted under the same or similar circumstances?

Yes _____ No ___X__

(Judgment Entered 8/20/20; Special Verdict entered 3/10/20.)

As mentioned above, the jury found that Magnuson did not breach his duty of undivided loyalty. (Id. at Question No. 18.) Thus, Plaintiff could not have suffered any harm that resulted from a breach of undivided loyalty.

Plaintiff’s argument as to the breach of fiduciary duty claim is unavailing. Plaintiff was not the prevailing party on the breach of fiduciary duty claim. As Plaintiff notes, “[t]he elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.” (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 932 [italics added].) Here, the jury found no damage proximately caused by Magnuson’s failure to use reasonable care. (Special Verdict Question No. 14.) Thus, the jury found no liability as to the claim for breach of fiduciary duty.

This leaves the breach of contract claim as the only potential basis for nominal damages. As noted above, the jury found that Magnuson’s breach of the contract caused no harm to Plaintiff. (Special Verdict Question No. 4.) However, the breach of contract claim provided a basis for awarding nominal damages. The Court instructed the jury on CACI No. 360 as follows: “If you decide that Damien Magnuson breached the contract but also that Executive Perils, Inc. was not harmed by the breach, you may still award it nominal damages such as one dollar.” Thus, it is clear from the record that the nominal damage awarded by the jury was for the breach of contract that caused no harm.

Moreover, though Plaintiff does not challenge the sufficiency of evidence supporting the jury’s finding of lack of causation, the court notes that there is more than ample evidence in the record supporting the jury’s finding that Plaintiff suffered no harm from Magnuson’s breach of contract or breach of fiduciary duty.

For instance, numerous retail agents testified at trial as to the reasons they chose to move their business to Magnuson’s new company after he left Plaintiff, none of which related to Magnuson’s breach of contract or breach of fiduciary duty. For example, when John Roquiero placed a call to Executive Perils after Magnuson left, someone pretended to be Mr. Magnuson, which diminished his trust in Executive Perils. Joe Binsfeld needed help with his brother’s account, which was complicated, and was not satisfied with Plaintiff’s employee who had been assigned to the account after Magnuson left. Due to her loyalty to Magnuson, Joan Schiewe began preparing to move her company’s accounts to Magnuson’s new company as soon as Plaintiff informed her that Magnuson had resigned (even before she even with Magnuson). Kevin Gigler was dissatisfied with the response by and service from Plaintiff’s employee for an account that he was working on. As set forth in great detail in Defendants’ opposition, Defendants introduced numerous exhibits and ample testimony at trial that demonstrated that the accounts that transferred to Magnuson’s new employer following his departure did so for reasons unrelated to Magnuson’s breach of contract or breach of fiduciary duty.

Thus the weight of the evidence amply supports the jury’s finding of a lack of causation as to any damages suffered.

CONCLUSION AND ORDER

For the foregoing reasons, Plaintiff’s motion for a new trial is DENIED.

Moving Party is ordered to provide notice of this order and file proof of service of such.

DATED: October 26, 2020 ___________________________

Elaine Lu

Judge of the Superior Court


[1] The Unfair Business Practice claim was dismissed on June 22, 2020.

Case Number: BC571034    Hearing Date: February 25, 2020    Dept: 26

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE county OF LOS ANGELES

EXECUTIVE PERILS, INC.,

Plaintiff,

v.

MARIA HALE; and DOES 1 through 20, inclusive,

Defendants.

CASE NO.: BC571034

RULINGS ON OBJECTIONS TO DEPOSITION TRANSCRIPT DESIGNATIONS FOR JOE BINSFELD AND JON ROQUIERO

Judge: Hon. Elaine Lu

Dept.: 26

Complaint Filed : 02/02/2015

FAC Filed : 05/21/2015

SAC Filed : 08/21/2015

Trial Date : 02/25/2020

MARIA HALE, an individual; CRISTINA MORENO, an individual;

Cross-Complainant,

vs.

EXECUTIVE PERILS, INC., a California corporation; MICHAEL D. MAGNUSON, an individual; R-T SPECIALTY INSURANCE SERVICES, LLC; a California limited liability company; and ROES 1 through 20, inclusive,

Cross-Defendants.

The Court hereby rules as follows on the objections to the deposition transcript designations for Joe Binsfeld and Jon Roquiero:

JOE BINSFELD, VOL. 1

Excerpt No.

Page-Line Designation

Time Designation

Objections

Counter-Designation

Objections

Ruling

1

8:6-13

10:33:17 – 10:33:33

1

2

8:23-9:7

10:34:01-10:34:27

1

9:8 to 14

1

3

10:14-10:22

10:36:02-10:36:37

1

11:4-9

1

4

12:1-13:3

10:38:01-10:39:25

1

5

15:16-23

10:42:40-10:43:00

1

15:9-11

1

6

16:12-13

10:43:38-10:43:45

1

7

16:20-17:6

10:44:08-10:45:09

1

8

17:11-18:8

10:45:16-10:46:29

1

9

18:18-19:18

10:46:56-10:48:25

18:18-19:18 (NR, R, N, 352)

Overruled

10

20:15-20

10:49:19-10:49:36

1

11

21:8-21:14

10:50:11-10:50:30

21:8-14 (R, NR, 352)

Overruled

12

21:17-22:6

10:50:51-10:51:42

1

13

22:24-23:16

10:52:50-10:54:01

1

14

23:18- 24:6

10:54:04-10:54:39

1

15

24:16-25:7

10:55:04-10:55:49

25: 2-7 (R, 352)

Overruled

16

25:14-25:21

10:56:09-10:56:37

1

17

29:10-29:13

11:02:20-11:02:24

1

18

31:23-33:19

11:05:36-11:08:46

1

19

33:25-34:9

11:09:26-11:09:59

32:23-33:19 (R. 352); 33:25-34:20) (R, 352)

Overruled; Overruled

20

34:11-34:20

11:10:05-11:10:29

1

21

35:4-35:6

11:11:26-11:11:53

1

22

35:15-36:25

11:12:34-11:14:37

1

23

37:8-37:10

11:15:26-11:15:31

1

24

38:9-39:3

11:16:50-11:17:56

38:9-39:3 (R. 352)

Overruled

25

39:8-16

11:18:15-11:18:39

39:8-16 (L, R)

47:18-48:5; 59:25-60:11

Sustained as to 39:8-12; Overruled as to 39:13-16

26

59:1-23

12:13:26-12:14:54

1

27

64:7-16

12:21:29-12:22:02

1

28

65:1-65:18

12:23:25-12:24:48

1

65:19-66:2

1

29

68:11-13

12:30:44-12:30:51

1

JON ROQUIERO, VOL. 1

Excerpt No.

Page-Line Designation

Time Designation

Objections

Counter-Designation

Objections

Ruling

1

6:6-24

09:43:50-09:44:37

1

2

7:5-8:13

09:44:55-09:47:19

1

3

10:12-11:11

09:49:48-09:51:56

1

9:12 -10:11

11:12-12:9

1

4

12:11-13:25

09:52:56-09:54:57

12:12-13:10

(F, S , 352)

Overruled

5

14:1-20

09:54:57-09:56:00

13:22-16:2 (S. H, R, 352)

Sustained as to 14:11-14:13 (“It’s weird. Somebody answered Damien’s phone pretending to be Damien. I don’t know who it is, but”); Sustained as to 15:1-15:3 (“I mean, Dave, he was, you know, as surprised as I was that somebody would be pretending to be Damien.”); Sustained as to 15:4-15:5 (“He let me know that he had left Executive Perils at that time.”) Otherwise overruled as to the balance.

6

14:21-15:9

09:56:00-09:56:48

1

7

15:10-16:2

09:56:48-09:58:50

1

8

16:3-17:8

09:59:32-09:59:57

1

9

17:9-18:2

09:59:43-10:01:01

17:9-21 (R. S. 352

Overruled

10

18:22-20:5

10:03:47-10:06:04

1

11

21:14-20

10:07:58-10:08:28

22:2-8

(L) (S)

Overruled

12

23:24-24:19

10:11:54-10:13:01

1

13

24:20-27:2

10:13:01-10:16:56

26:13 to 23 (L)

Overruled

14

28:15-29:5

10:18:45-10:19:28

28:15- 29:5 (R. 352)

Overruled

15

29:14-33:5

10:19:51-10:24:34

29:14-31:24 (R. N)

32:8 – 33:5 (S,H,R,352)

Overruled; Overruled

16

36:10-39:4

10:30:21-10:34:09

37:4-38:3 (R)

Overruled

DATED: February 22, 2020 ___________________________

Elaine Lu

Judge of the Superior Court

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