On 01/05/2018 DANIEL MARSHALL filed a Labor - Wrongful Termination lawsuit against FILMON TV NETWORKS INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MALCOLM MACKEY, HOLLY E. KENDIG and ELAINE LU. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
HOLLY E. KENDIG
MARSHALL AN INDIVIDUAL DANIEL
FILMON.TV NETWORKS INC.
DOES 1 THROUGH 25
ALKI DAVID PRODUCTIONS INC.
B & D LAW GROUP APLC.
NATANZI OMID DAVID
NATANZI O. DAVID
DLA PIPER US LLP
GAROFALO ELLYN S
RILEY KATHRYN BRIDGET
2/5/2020: Reply - REPLY DEFENDANT, FILMON.TV NETWORKS, INC REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR JUDGMENT ON PLEADINGS
2/13/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR JUDGMENT ON THE PLEADINGS) OF 02/13/2020
2/13/2020: Stipulation - No Order - STIPULATION - NO ORDER TO CONTINUE TRIAL
2/6/2019: Case Management Order
2/6/2019: Notice - Notice of Trial Date and Final Status Conference (w Exhibit A)
2/1/2019: Case Management Statement
1/24/2019: Answer - Answer to Plaintiff's Complaint
1/23/2019: Notice Re: Continuance of Hearing and Order
1/17/2019: Objection - Objection to Plaintiff's Opposition to Defts Motion to Set Aside Default (w Exhibit A)
1/18/2019: Minute Order - Minute Order (Hearing on Motion to Set Aside/Vacate Default (CCP 473.5); Ca...)
2/8/2018: PROOF OF SERVICE SUMMONS -
4/30/2018: REQUEST FOR ENTRY OF DEFAULT -
5/17/2018: CASE MANAGEMENT STATEMENT -
5/22/2018: Minute Order -
7/9/2018: NOTICE OF MOTION AND MOTION OF DEFENDANTS FILMON.TV NETWORKS INC. AND ALKI DAVID PRODUCTIONS INC.TO SET ASIDE DEFAULT AND FOR LEAVE TO DEFEND ACTION, ETC
7/18/2018: Minute Order -
1/23/2018: NOTICE OF CASE MANAGEMENT CONFERENCE & OSC RE PROOF OF SERVICE
1/5/2018: PLALNTIFF'S COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL 1. DISABILITY DISCRIMINATION II VIOBTION OF FEHA ;ETC
Hearing07/20/2020 at 09:30 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing07/01/2020 at 09:00 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Jury Trial ((7 day est.)) - Not Held - Continued - StipulationRead MoreRead Less
Docket1st Amended Complaint; Filed by Daniel Marshall, an Individual (Plaintiff)Read MoreRead Less
DocketOrder (RE: DEFENDANT FILMON TV NETWORKS INC?S MOTION FOR JUDGMENT ON THE PLEADINGS); Filed by ClerkRead MoreRead Less
Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Ex Parte Application ( to Continue Trial) - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Final Status Conference ((JT 02/24/20)) - Not Held - Continued - StipulationRead MoreRead Less
Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion for Judgment on the Pleadings - HeldRead MoreRead Less
DocketMinute Order ( (Hearing on Motion for Judgment on the Pleadings)); Filed by ClerkRead MoreRead Less
DocketCertificate of Mailing for ((Hearing on Motion for Judgment on the Pleadings) of 02/13/2020); Filed by ClerkRead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCE & OSC RE PROOF OF SERVICERead MoreRead Less
Docketat 08:30 AM in Department 55; Unknown Event Type - Held - Motion GrantedRead MoreRead Less
DocketMinute OrderRead MoreRead Less
DocketMinute order entered: 2018-01-19 00:00:00; Filed by ClerkRead MoreRead Less
DocketPEREMPTORY CHALLENGE TO JUDICIAL OFFICER (CODE CIV. PROC., 170.6)Read MoreRead Less
DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by Daniel Marshall, an Individual (Plaintiff)Read MoreRead Less
DocketPLALNTIFF'S COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL 1. DISABILITY DISCRIMINATION II VIOBTION OF FEHA ;ETCRead MoreRead Less
DocketComplaint; Filed by Daniel Marshall, an Individual (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
Case Number: BC689248 Hearing Date: April 7, 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.
FILMON.TV NETWORKS INC, et al.,
Case No.: BC689248
Hearing Date: April 7, 2021
[TENTATIVE] order RE:
motion to be relieved as counsel
On February 24, 2021 and February 26, 2021, Amir Kaltgrad (“Counsel”), filed the instant motion to be relieved as counsel for defendant Alki David Productions, Inc. (“Client”).
Counsel has filed a form MC051 and MC-052 and has lodged with the Court a copy of the proposed order on form MC-053 pursuant to CRC Rule 3.1362.
The MC-052 form states that Counsel served Client via mail at Client’s last known mailing address which Counsel states he has confirmed as current within 30 days of the motion by reviewing the Secretary of State website for the address of the entity and current agent for service of process. Counsel states that “[Client] has been forfeited by the Franchise Tax Board and Secretary of State precluding its "exercise of the corporate powers, rights and privileges." Cal. Rev. & Tax Code Section 23301. Therefore, [Counsel] [is] unable to continue representation of the Defendant.” (MC-52 at ¶ 2.)
California Rules of Court Rule 3.1362 requires that Counsel confirm Client’s address “within 30 days before the filing of the motion to be relieved.” Rule 3.1362 further provides that “[m]erely demonstrating that the notice was sent to the client's last known address and was not returned or no electronic delivery failure message was received is not, by itself, sufficient to demonstrate that the address is current.”
Here, the MC-052 form states that Counsel served Client via mail at Client’s last known mailing address which Counsel states Counsel has confirmed as current within 30 days of the motion. However, Counsel does not assert that Counsel confirmed that the address is current by the traditional means of “mail, return receipt requested,” “telephone,” or “conversation” on Form MC-052. Instead, Counsel states that Counsel has confirmed that the address is current by reviewing the Secretary of State website. Counsel does not state the date of the Secretary of State filing that Counsel used to confirm Client’s address. Nor does Counsel provide a copy of the Secretary of State filing itself. Indeed, there is good reason to believe that the address on file according to the Secretary of State’s website is not a current address for Client, given that Counsel declares that Client “has been forfeited by the Franchise Tax Board and Secretary of State.” Accordingly, Counsel has failed to demonstrate that the address listed on the Secretary of State filing is indeed current as of 30 days prior to the filing of Counsel’s motion to be relieved.
Rule 3.1362’s requirement that Client’s address be confirmed as current within 30 days of Counsel’s motion to be relieved is not a mere technicality without a purpose. If the Court grants Counsel’s motion to be relieved without requiring a current, working address for Client, neither the Court nor the other parties will have the ability to serve Client with pleadings, motions, and orders, which implicates due process concerns.
Merely checking the Secretary of State website is insufficient verification of Client’s current mailing address. Because Counsel has failed to confirm within 30 days of the motion that Client’s address is current, Counsel’s motion to be relieved is denied without prejudice. Before renewing this motion to be relieved, Counsel must make diligent and reasonable efforts to obtain a current address for Client, by a combination of the following means: mailing the motion papers to Client’s last known address, return receipt requested; calling Client’s last known telephone numbers; contacting persons familiar with Client; and conducting searches via Lexis, a private investigator, or other means. If after making these reasonable and diligent efforts, Counsel is still unable to locate a current address for Client, Counsel may renew the motion to be relieved by filing new moving papers, and properly completing item 3(b)(2) of Form MC-052 to identify all diligent and reasonable efforts made to attempt to locate a current address for Client.
CONCLUSION AND ORDER
Amir Kaltgrad’s motion to be relieved as counsel for defendant Alki David Productions, Inc. is DENIED WITHOUT PREJUDICE.
Moving Counsel is ordered to serve a copy of this signed order on all parties, including Alki David Productions, Inc., and file proof of service of such within 10 days.
DATED: April 7, 2021 ___________________________
Judge of the Superior Court
Case Number: BC689248 Hearing Date: February 13, 2020 Dept: 26
FILMON TV NETWORKS INC, et al.,
Case No.: BC689248
Hearing Date: February 13, 2020
[TENTATIVE] order RE:
DEFENDANT Filmon tv networks inc’s motion for judgment on the pleadings
This is a wrongful termination action in which Plaintiff Daniel Marshall (“Plaintiff”) alleges that he was terminated because of his disability and/or medical condition by defendants Filmon TV Networks Inc (“Moving Defendant”) and Alki David Productions Inc. Plaintiff alleges thirteen causes of action: (1) disability discrimination in violation of the Fair Employment and Housing Act (“FEHA”), (2) failure to prevent harassment and discrimination in violation of FEHA, (3) failure to engage in the interactive process in violation of FEHA, (4) failure to accommodate in violation of FEHA, (5) retaliation in violation of public policy, (6) wrongful termination in violation of public policy, (7) intention infliction of emotional distress, (8) failure to pay minimum wages, (9) failure to pay overtime wages, (10) failure to provide accurate itemized wage statements, (11) failure to provide mandated meal and rest periods, (12) failure to pay compensation due upon separation of employment, and (13) unfair, unlawful, and fraudulent business practices.
On January 14, 2020 -- on the eve of trial -- Moving Defendant filed the instant motion for judgment on the pleadings as to the first four causes of action (the FEHA claims) and the fifth cause of action for retaliation in violation of public policy. On January 29, 2020, Plaintiff filed an opposition. On February 5, 2020, Moving Defendant filed a reply.
A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. (CCP § 438(f).) Except as provided by statute, the rules governing demurrers apply. (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1012.) “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Id. at 1013.) In ruling on a motion for judgment on the pleadings, “[a]ll allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true.” (Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.)
CCP § 438(c)(1) provides a motion for judgment on the pleading may only made on one of the following grounds:
(A) “[i]f the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint;
(B) If the moving party is a defendant, that either of the following conditions exist:
i. The court has no jurisdiction of the subject of the cause of action alleged in the complaint;
ii. The complaint does not state facts sufficient to constitute a cause of action against that defendant.
Meet and Confer
Per CCP section 439(a), before filing a judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion for judgment on the pleadings...” (CCP § 439(a).) The moving party shall file and serve with the motion for judgment on the pleadings a declaration concerning the parties meet and confer efforts. (CCP § 439(a)(3).)
Defendant has satisfied this requirement. (Kaltgard Decl. ¶ 2, Ex. A.)
Failure to Exhaust Administrative Remedies for FEHA Claims
Moving Defendant contends that the FEHA causes of action are barred because Plaintiff has failed to exhaust administrative remedies with respect to Moving Defendant.
“In order to bring a civil action under FEHA, the aggrieved person must exhaust the administrative remedies provided by law.” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1121; accord Romano v. Rockwell Int'l, Inc. (1996) 14 Cal.4th 479, 492.) Exhaustion in this context requires filing a written charge with DFEH within one year of the alleged unlawful employment discrimination and obtaining notice from DFEH of the right to sue. (Romano, supra, 14 Cal.4th at 492; Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613; Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.) The scope of the written administrative charge defines the permissible scope of the subsequent civil action. (Yurick, supra, 209 Cal.App.3d at 1121–23.) These procedural requirements, as with all provisions of FEHA, are to “be construed liberally for the accomplishment of the purposes [of FEHA].” (Cal. Gov't Code § 12993(a).)
No judicial notice has been requested. Therefore, the Court must look solely to the complaint as to whether it alleges on its face that Plaintiff has satisfied the exhaustion of remedies against Moving Defendant. (See Cloud v. Northrop Grumman Corp. In doing so the Court must “accept as true the factual allegations that the plaintiff makes.” (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515.) Further, the Court must give the pleadings “a liberal construction.” (Ibid.)
The only part of the complaint that refers to exhaustion of administrative remedies states that: “Plaintiff exhausted his administrative remedies by filing complaints with the California Department of Fair Employment and Housing, and thereafter, received a ‘right to sue’ letter. A true and correct copy of such right to sue letter is attached hereto as Exhibit ‘A.’ Plaintiff has duly exhausted all of the required administrative proceedings and now properly files this Complaint for Damages in this Court”. (Complaint ¶ 13.)
Moving Defendant contends that the right to sue letter attached to the complaint is defective as it refers to Filmon.TV Inc. rather than Filmon.TV Network Inc., the moving defendant. (Id., Ex. A.) However, in reviewing the complaint, it is not clear on the face of the complaint that Filmon.TV Inc. is not the same as Filmon.TV Network, Inc. In liberally reviewing the complaint, the court finds that the complaint implies that Filmon.TV Inc. may just be incorporated as Filmon.TV Network, Inc. or that they are one and the same.
Further, under rules of equity, Moving Defendant may be liable under possible alter-ego theories despite the issue Moving Defendant raises. (See Carr v. Barnabey's Hotel Corp. (1994) 23 Cal.App.4th 14, as modified (Mar. 22, 1994) [holding that although there was insufficient evidence that named defendant was the alter ego of employment discrimination plaintiff's true employer, equitable principles warranted amendment of judgment to add true employer as judgment debtor on ground that it was alter ego of named defendant despite argument that true identity of employer was ascertainable from employee's W–2 forms; named defendants conducted themselves as though they were the proper defendants and sought to use plaintiff's mistake to shield entity which should have been named.]; see also Mayberry v. Coca Cola Bottling Co. (1966) 244 Cal.App.2d 350; Cuadros v. Superior Court (1992) 6 Cal.App.4th 671.)
Accordingly, Moving Defendant’s motion for judgment on the pleadings is DENIED as to the FEHA causes of actions.
Fifth Cause of Action: Retaliation in Violation of Public Policy
Moving Defendant contends that the common law claim for Retaliation in Violation of Public Policy does not state a cause of action as there is no common law cause of action for retaliation. The Court agrees.
“[T]he Legislature has made clear its intent to ‘occupy the field of regulation of [discrimination] in employment” by virtue of the FEHA.’” (Ficalora v. Lockheed Corp. (1987) 193 Cal.App.3d 489, 492, [Holding that there is no common law claim for retaliation as FEHA preempts it.].) Plaintiff’s opposition does not address this issue. Accordingly, the Court grants Moving Defendants motion on the pleading as to this cause of action.
Leave to Amend
Leave to amend must be allowed where there is a reasonable possibility of a successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the responding party to show the court that a pleading can be amended successfully. (Goodman v. Kennedy, supra, 18 Cal.3d at p. 348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.)
Here it is clear that the fifth cause of action can be amended to state a cause of action under the statutory claim for retaliation under FEHA. Accordingly, leave to amend is granted.
Moving Defendant Filmon TV Networks Inc.’s motion for judgment on the pleading is GRANTED WITH TWO DAYS LEAVE TO AMEND as to the fifth cause of action. Defendant Filmon TV Network Inc.’s motion for judgment on the pleadings is otherwise DENIED.
Plaintiff is to file an amended complaint as to the fifth cause of action within 2 court days.
Moving Parties are ordered to provide notice of this order and file proof of service of such.
DATED: February 13, 2020 ___________________________
Judge of the Superior Court
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