This case was last updated from Los Angeles County Superior Courts on 05/26/2019 at 04:34:24 (UTC).

DONNA SUE WORKMAN VS PAUL COLICHMAN

Case Summary

On 04/27/2017 DONNA SUE WORKMAN filed a Contract - Business lawsuit against PAUL COLICHMAN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are NANCY L. NEWMAN, MARC D. GROSS and GERALD ROSENBERG. The case status is Pending - Other Pending.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****7446

  • Filing Date:

    04/27/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Business

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

NANCY L. NEWMAN

MARC D. GROSS

GERALD ROSENBERG

 

Party Details

Plaintiff

WORKMAN DONNA SUE

Defendants

MILLBERN DAVID

COLICHMAN PAUL

Attorney/Law Firm Details

Plaintiff Attorney

GOLDBERG ALAN N.

Defendant Attorneys

EAGAN TODD S.

WOLF BRIAN GERALD

DE CASTRO WEST CHODOROW GLICKFELD&NASS

WOLF BRIAN G.

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 05/13/2019
  • at 08:30 AM in Department R, Marc D. Gross, Presiding; Case Management Conference - Not Held - Vacated by Court

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  • 05/13/2019
  • Notice (of: (1) Reassignment of Action; and (2) Continuance of Case Management Conference); Filed by PAUL COLICHMAN (Defendant); DAVID MILLBERN (Defendant)

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  • 05/09/2019
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 05/08/2019
  • at 4:00 PM in Department R, Marc D. Gross, Presiding; Court Order

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  • 05/08/2019
  • Challenge To Judicial Officer - Peremptory (170.6); Filed by PAUL COLICHMAN (Defendant); DAVID MILLBERN (Defendant)

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  • 05/08/2019
  • Certificate of Mailing for (Minute Order (Court Order Re Peremptory Challenge to Judicial Officer) of 05/08/2019); Filed by Clerk

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  • 05/08/2019
  • Minute Order ( (Court Order Re Peremptory Challenge to Judicial Officer)); Filed by Clerk

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  • 04/26/2019
  • Notice (Notice of Reassignment of Action); Filed by DONNA SUE WORKMAN (Plaintiff)

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  • 04/22/2019
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 12/10/2018
  • at 08:30 AM in Department K; Case Management Conference - Held - Continued

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111 More Docket Entries
  • 05/26/2017
  • at 01:30 pm in Department WEP, Nancy L. Newman, Presiding; Affidavit of Prejudice - Motion Granted

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  • 05/26/2017
  • Minute order entered: 2017-05-26 00:00:00; Filed by Clerk

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  • 05/22/2017
  • Proof of Service of Summons & Com; Filed by Attorney for Plaintiff

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  • 05/22/2017
  • Proof of Service of Summons and Complaint; Filed by DONNA SUE WORKMAN (Plaintiff)

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  • 05/11/2017
  • Affidavit of Prejudice - Challange (170.6 ); Filed by Attorney for Plaintiff

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  • 05/11/2017
  • Affidavit of Prejudice - Challenge; Filed by DONNA SUE WORKMAN (Plaintiff)

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  • 04/27/2017
  • Summons Filed; Filed by Attorney for Plaintiff

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  • 04/27/2017
  • Complaint; Filed by DONNA SUE WORKMAN (Plaintiff)

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  • 04/27/2017
  • Summons; Filed by Plaintiff

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  • 04/27/2017
  • Complaint Filed

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Tentative Rulings

Case Number: SC127446    Hearing Date: June 23, 2020    Dept: O

Case Name: Workman v. Colichman

Case No.: SC127446

Complaint Filed: 4-27-17

Hearing Date: 6-23-20

Discovery C/O: None

Calendar No.: 3

Discover Motion C/O: None

POS: OK

Trial Date: None

SUBJECT: MOTION FOR SUMMARY JUDGMENT OF X-COMPLAINT

MOVING PARTY: X-Complainant Paul Colichman

RESP. PARTY: X-Defendant Donna Sue Workman

TENTATIVE RULING

X-Complainant Paul Colichman’s MSJ of his Cross-Complaint is DENIED. Colichman fails to satisfy his burden as moving party on the sole c/a for declaratory relief alleged in his x-complaint.

I. Burden on Summary Judgment

Where plaintiff (or cross-complainant) seeks summary judgment, the burden is to produce admissible evidence on each element of a “cause of action” entitling him or her to judgment. CCP § 437c(p)(1). This means that plaintiffs who bear the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not. “[O]therwise, he would not be entitled to judgment as a matter of law.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851. At that point, the burden shifts to defendant (or cross-defendant) “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” CCP §437c(p)(1).

“Summary judgment procedure includes declaratory relief actions in a proper case. The propriety of the application of summary judgment to declaratory relief lies in the trial court’s function to render such a judgment when only legal issues are presented for its determination.” Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1401–1402. “If justiciable issues are presented which can be disposed of as a matter of law, they should be resolved by summary judgment with an express declaration of the rights of the parties.” City of Tiburon v. Northwestern Pac. R. Co. (1970) 4 Cal.App.3d 160, 172, fn 5.

II. Elements of Declaratory Relief Claim

“Any person interested under a written instrument ... or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property ... may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time....” (Code Civ. Proc., § 1060.)

Moreover, under Code of Civil Procedure section 1061, “[t]he court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.” “This is a discretionary determination, subject to reversal only if that discretion is abused. The courts do not issue advisory opinions about the rights and duties of the parties under particular agreements, if no actual, justiciable controversy has yet developed.” Otay Land Co. v. Royal Indemnity Co. (2008) 169 Cal.App.4th 556, 563.

“The purpose of a declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation. Another purpose is to liquidate doubts with respect to uncertainties or controversies which might otherwise result in subsequent litigation. One test of the right to institute proceedings for declaratory judgment is the necessity of present adjudication as a guide for plaintiff's future conduct in order to preserve his legal rights.” Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 364–365.

In Osseous, the Court of Appeals created a conceptual framework classifying declaratory relief into three types for the purpose of determining whether the trial court erred by dismissing a declaratory relief cause of action. In a “ ‘Type 1’ declaratory relief cause of action, the complaint alleges only a past breach of contract, a breach of contract remedy is available, and declaratory relief is unnecessary to guide future conduct. Id. at pp. 365, 366–368. The court must dismiss the Type 1 type of declaratory relief claims. Id.

A “Type 2” declaratory relief cause of action alleges an actual and ongoing controversy,

such as a continuing contractual relationship, and future consequences that depend on the court's

interpretation of the contract. Id. at pp. 369–371. A trial court must not dismiss a Type 2

declaratory relief cause of action. Id. at p. 365.

A “Type 3” declaratory relief cause of action alleges a current controversy over a past

breach of contract and the potential a declaration of the parties' rights under a contract might be

necessary to guide the parties' future conduct in a continuing contractual relationship. Id. at pp.

374–376. A trial court has discretion to dismiss a Type 3 declaratory relief cause of action. Id.

at p. 365.

III. X-Complainant fails to allege or provide evidence of an actual, justiciable controversy subject to declaratory relief

Declaratory relief is improper where “the rights of the complaining party have crystallized into a cause of action for past wrongs, all relationship between the parties has ceased to exist and there is no conduct of the parties subject to regulation by the court.” Osseous Technologies of America, Inc., supra, 191 Cal.App.4th at 364–365. Colichman fails to allege or submit evidence of an actual, justiciable controversy with Workman regarding Colichman’s right to build a second story onto his home.

Colichman alleges in his x-complaint that Workman no longer owns the property next door. See X-Complaint, ¶7. Workman submits evidence establishing that she sold the property next door to Colichman’s on 7-24-19. Workman is therefore no longer Colichman’s neighbor, nor is she subject to or a beneficiary of any CC&Rs governing Colichman’s property and her former property. Workman therefore does not have any standing to enforce any limitation on Colichman’s right to build a second story on his home.

The only current connection between these parties is the instant litigation. Workman’s complaint is based specifically on Colichman’s assertion in a 3-20-17 email that he intended to build a second story to his home. Workman contends Colichman sent the email to interfere with her ability to sell her property before 7-24-19. As such, Colichman’s right to build that second story is only relevant for the period prior to 7-24-19. Workman’s complaint is seeks entirely to redress past wrongs. The outcome of Workman’s complaint will have no impact on Colichman’s present or future legal rights to build a second story on his home.

As such, resolution of the controversy alleged in the X-Complaint would be a purely theoretical exercise that would have no “practical end in quieting or stabilizing an uncertain or disputed jural relation,” nor would it “liquidate doubts with respect to uncertainties or controversies which might otherwise result in subsequent litigation.” Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC, supra, 191 Cal.App.4th at 364–365. The alleged dispute does not have any effect on Colichman’s future conduct, nor is resolution of the controversy necessary to preserve Colichman’s legal rights. Id. Neither Workman’s nor Colichman’s conduct in connection with this controversy would be subject to regulation by the Court if a declaratory relief order were issued.

Under these undisputed facts, there is no actual, justiciable controversy appropriate for declaratory relief alleged in the x-complaint or established by the evidence. For this reason, Cross-Complainant’s motion for summary judgment of his cross-complaint is DENIED.

IV. Workman’s Evidentiary Objections—SUSTAINED as to Objection A.6 to Colichman declaration and OVERRULED as to remaining