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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: March 18, 2021    Dept: O

Case Name: Workman v. Colichman

Case No.: SC127446

Complaint Filed: 4-27-17

Hearing Date: 3-18-21

Discovery C/O: 3-19-21

Calendar No.: 12

Discover Motion C/O: 4-5-21

POS: OK

Trial Date: 4-19-21

SUBJECT: MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Defendants Paul Colichman and David Millbern

RESP. PARTY: Plaintiff Donna Sue Workman

TENTATIVE RULING

Defendants Paul Colichman and David Millbern’s Motion for Summary Judgment is GRANTED as to David Millbern and DENIED as to Paul Colichman. Defendant Colichman’s Motion for Summary Adjudication is DENIED.

Plaintiff’s Evidentiary Objections: Objection Nos. 19-20, 41-44, 47-50 are not material to the disposition of this motion. CCP §437c(q). Objection. Nos. 1, 2, 5, 8, 10, 11, 16, 17,18 are SUSTAINED and the remaining are OVERRULED.

Defendants’ Request for judicial notice is GRANTED.

Defendants’ Evidentiary Objections: Objection Nos. 4, 9, 11, 13, 14, 17, 18, 20, 22 are SUSTAINED and the remaining are OVERRULED.

I. Millbern’s Motion for Summary Judgment—GRANT.

Complaint allegations. Plaintiff alleges that Colichman sent the 3-20-17 email that caused her damages. See FAC, ¶17. Plaintiff makes a general allegation of agency and employment with regard to all Defendants. Id. at ¶5. Apart from this general allegation of agency and employment, Plaintiff does not plead any other theory by which Millbern can be held liable for Colichman’s email.

Defendants argue that Millbern cannot be held personally liable for any of Plaintiff’s causes of action, because he did not author or send the 3-20-17 email and he was completely ignorant of its existence until after Plaintiff served him with the complaint and summons. See Defendants’ SSUMF No. 6; Defendants’ Appendix of Evid., vol. 1, Dec. of P. Colichman, ¶7; Defendants’ Appendix of Evid., vol. 4, Dec. of D. Millbern, ¶2. Colichman denies that he consulted Millbern prior to sending the email. See Defendants’ Appendix of Evid., vol. 1, Dec. of P. Colichman, ¶7. Millbern is not a listed recipient on the email. See Plaintiff’s Evidence, Dec. of K. Doner, Ex. 9. PDF pg. no. 68. Colichman is the owner of the property at 422 Bellagio Terrace, not Millbern. Defendants’ Appendix of Evid., vol. 1, Dec. of P. Colichman, ¶3; Defendants’ Appendix of Evid., vol. 4, Dec. of D. Millbern, ¶2.

Defendants’ evidence negates Plaintiff’s allegation that Colichman sent the email on behalf of himself and Millbern or that Millbern in any way authorized the email. In order to defeat Millbern’s summary judgment, Plaintiff must submit evidence raising a triable issue of fact as to whether Colichman sent the email on behalf of Millbern or that Millbern ratified the decision to send the email. Plaintiff fails to submit such evidence. The mere fact that the email referenced the decision of both Millbern and Colichman to build a second story with a rooftop deck is not evidence that Millbern authorized Colichman to send the email informing Plaintiff of that decision. See Defendants’ SSUMF Nos. 6-7; Plaintiff’s Response to SSUMF Nos. 6-7.

Defendants satisfy their burden of negating Millbern’s liability for the 3-20-17 email, which is the alleged communication that triggered Doner’s duty to disclose. Plaintiff fails to raise a triable issue of fact as to Millbern’s liability. Defendant Millbern’s Motion for Summary Judgment is GRANTED.

II. First cause of action for intentional interference with contract and intentional interference with prospective economic relations: elements of knowledge and intent—DENY

Elements. “It has long been held that a stranger to a contract may be liable in tort for intentionally interfering with the performance of the contract. The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.

Intentional interference with economic advantage requires plaintiff to allege (i) the existence of an economic relationship between the plaintiff and a third party which contained a reasonably probable future economic benefit or advantage to plaintiff and (ii) that defendant's intentional conduct interfered with plaintiff's relationship with that third party. See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153 (intentional interference).

Knowledge of this contract. “The act of inducing the breach must be an intentional one. If the actor had no knowledge of the existence of the contract or his actions were not intended to induce a breach, he cannot be held liable though an actual breach results from his lawful and proper acts.” Kasparian v. County of Los Angeles (1995) 38 Cal.App.4th 242, 261 (quoting Imperial Ice Co. v. Rossier (1941) 18 Cal.2d 33, 37 discussion regarding intentional inducement of breach of contract). Knowledge of the injured party’s specific identity or name is not a prerequisite to recovery for intentional interference with contract or prospective economic advantage. See Ramona Manor Convalescent Hospital v. Care Enterprises (1986) 177 Cal.App.3d 1120, 1133.

Colichman’s evidence fails to negate either the element of knowledge or intent. Defendant Colichman’s declaration fails to establish Colichman was entirely ignorant of a valid contract or a prospective economic relationship between Plaintiff and potential purchasers of the property. Colichman admits that in March 2017, during an open house at the property, Plaintiff’s agent informed both Colichman and Millbern that “many of those interested in the home were contemplating adding a second story, which prompted me to inform her that my partner David Millbern and I were planning on building a second story over my home.” See Defendants’ Appendix of Evidence, Ex. A, Dec. of Colichman, ¶5, 4:17-19. Colichman then indicated that he believed Plaintiff’s agent should disclose this fact to purchasers. Id. at 4:23-26. While Plaintiff admits that there was no valid contract for sale of the property when Defendants spoke with her agent during the open house on 3-11-17, Plaintiff and Prochelo entered into a purchase agreement with a settled purchase price by 3-18-17, two days before Defendants sent the 3-20-17 email disclosing their intent to build a second story. See Defendants’ SSUMF Nos. 11-13.

Colichman’s testimony confirms his knowledge that Plaintiff was entertaining specific offers from potential purchasers prior to sending the email on 3-20-17. Id. at ¶¶5, 4:17-19 and 23-26. Colichman’s testimony also confirms that he knew his purported intent to add a second story to Defendants’ home would negatively impact potential purchasers. Id. at ¶6, 5:7-13. Based on the facts and reasoning of Ramona Manor Convalescent Hospital, Colichman’s testimony that he was ignorant of a specific agreement with a specific purchaser does not establish complete ignorance of Plaintiff’s business relationship with potential purchasers or Plaintiff’s engagement in negotiations with potential purchasers. See Ramona, supra, 177 Cal.App.3d at 1132; Sebastian Intern., Inc., supra, 162 F.Supp.2d at 1203–1204.

In addition, specific intent is not required. “Instead, the plaintiff need only show interference is certain or substantially certain to occur as a result of the defendant’s action.”

Jenni Rivera Enterprises, LLC v. Latin World Entertainment Holdings, Inc. (2019) 36 Cal.App.5th 766, 788. As discussed above, Colichman’s testimony supports a finding he knew that building a second story on his home would negatively effect Plaintiff’s marketing and sale of the home, which he testifies expounded the scenic views from Plaintiff’s property. See Defendants’ Appendix of Evidence, Ex. A, Dec. of Colichman, ¶6, 5:7-13. Given this knowledge, a trier of fact could reasonably infer that Colichman was certain or substantially certain that his 3-20-17 email and his instruction that Plaintiff’s agent disclose it to buyers would interfere with Plaintiff’s negotiations and contract for sale of the home.

Plaintiff’s evidence. Plaintiff also submits evidence that raises a triable issue of fact regarding Colichman’s knowledge and intent for purposes of the 1st cause of action for intentional interference with contract and prospective economic advantage. Plaintiff points to the contents of the 3-20-17 email, in which Colichman stated he was sure Plaintiff was fielding offers and advised her to disclose he and Millbern’s intent to add a “second story and deck (on the rook of that second story).” See Plaintiff’s Evidence, Dec. of K. Doner, PDF p. 20-25, Ex. 4; Defendants’ RJN, Ex. 4, Doner Decl. dated 9-28-17, Ex. 7; Ex. 6, FAC, Ex. 2.

Plaintiff also submits evidence that Colichman was closely tracking the sale of the property through his real estate agent, Michael Libow, and a trier of fact could reasonably infer that Colichman knew that Plaintiff had concrete offers, that Plaintiff had made concrete counteroffers and she was in the process of negotiating a sale agreement to new owners. See Plaintiff’s Evidence, Exs. 4, 13-15. Libow emailed Defendants to inform them of the open house. See Plaintiff’s Evidence, Ex. 14. Libow inquired on 3-17-17 on behalf of “his clients” whether the property was still available. Id. at Ex. 4. In response, Plaintiff indicated that “we got 4 offers and sent counters out last night. Everyone’s best and final is due back to us tomorrow by 5pm.” Id. Colichman forwarded his 3-20-17 email to Libow to apprise him of the status of the situation. Id. at Ex. 13.

When Plaintiff’s agent, Doner, informed Libow that the Prochelo sale had been cancelled, Libow forwarded that email to Colichman with the statement “Oops” on 4-11-17. Id. at Ex. 15. Defendants’ acquaintances, the Samuelsons, then made an offer on the property eight days later on 4-19-17. Id. at Ex. 10. The Samuelsons then sent an email to Colichman on 4-23-17 indicating that the sale did not “look promising” because the sellers were “delusional.” Id. at Ex. 17. The Samuelsons’ specifically referenced the impact of Colichman’s 3-20-17 email: “Then with commendable ethics, you let them know about your second floor. After we met, last week we offered them in writing $2.2…thinking the loss of view and construction hassles had to be worth around $500k.” Id.

A trier of fact could reasonably conclude from these email exchanges that Colichman knew of Plaintiff’s existing business relationships and/or sale contracts for purposes of the 1st cause of action and that he sent the 3-20-17 email with the intent to disrupt these transactions. Even if Colichman met his burden on summary judgment as to the elements of knowledge and intent, Plaintiff’s evidence raises a triable issue of fact.

III. First cause of action intentional interference with prospective economic advantage and third cause of action for fraud: elements of independently wrongful conduct and intentional misrepresentation—DENY

Wrongful conduct required for negligent and intentional interference. For purposes of intentional and negligent interference with prospective economic advantage, “the plaintiff must allege the conduct constituting the interference was itself wrongful by some other measure beyond the fact it amounted to interference. It is insufficient to allege the defendant engaged in tortious conduct distinct from or only tangentially related to the conduct constituting the actual interference.” LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 340-341. "[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard." See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159.

Fraud. The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. See Civil Code §1709.

Alleged Misrepresentation. The specific misrepresentation contained in the 3-20-17 email is as follows: “I wanted to let you know that David and I have decided to proceed with adding a second story and deck (on the roof of that second story) to our home at 422 Bellagio Terrace.” See Plaintiff’s Evidence, Dec. of K. Doner, Ex. 7, PDF pg. 68. Plaintiff alleges Colichman’s 3-20-17 email was sent with the intent to disrupt the pending sale of the property. See FAC, ¶18. Plaintiff alleges Colichman had no intent to and/or any right to build up their Property. Id. at ¶¶19 and 45.

Colichman’s Evidence. Colichman asserts his 3-20-17 email was not fraudulent. Colichman asserts that, “Prior to March 2017, Paul Colichman and David Millbern had taken actions to add a second story to the Colichman Residence.” See Defendants’ SSUMF No. 15. Colichman’s evidence does not negate the allegation that the statement in the 3-20-17 email was false, i.e. that they had “decided” by that date to proceed with addition of “a second story and deck (on the roof of that second story).” See Plaintiff’s Evidence, Dec. of K. Doner, Ex. 7, PDF pg. 68. Colichman submits evidence that he and Millbern were contemplating an addition or remodel of their property in 2015 and 2016 and that they were taking steps after the 3-20-17 email to perform construction on the house, including addition of a second story. See Defendants’ SSUMF Nos. 15 and 16; Defendants’ Appendix of Exs., v. 1, Dec. of P. Colichman, ¶¶18-19, Ex. D, G-I; Defendants’ Appendix of Exs., vol. 3, Dec. of P. Colichman, Exs. J-N; Defendants’ Appendix of Exs., vol. 4, Ex. D, Dec. of D. Millbern, ¶¶4-11; Defendants’ Appendix of Exs., vol. 4., Ex. Decl. of Kolodziej Deel, Ex. F, Exs. A-C.

Colichman fails to negate Plaintiff’s allegation that the 3-20-17 email misrepresented their decision regarding construction on Defendants’ residence. Colichman fails to satisfy their burden as moving parties as to this element, and triable issues of fact remain on the issue of whether Colichman’s 3-20-17 email was a fraudulent misrepresentation.

IV. 1st cause of action for intentional interference and 2nd cause of action for negligent interference: element of causation—DENY

Causation is generally a question of fact. “Because the facts do not make absence of causation the only reasonable conclusion, causation is a question of fact for the jury.” City of Carlsbad v. Rudvalis (2003) 109 Cal.App.4th 667, 681. “Causation is a question of fact unless the issue is so clear that reasonable minds could not differ.” Smith v. Workers' Comp. Appeals Bd. (1981) 123 Cal.App.3d 763, 773.

Colichman argues he cannot be held responsible for the cancellation of the Prochelo contract or the loss of any existing prospective buyers, because he did not inform Prochelo or other buyers of the 3-20-17 email. Colichman argues it is undisputed that Doner informed Prochelo and other prospective buyers of his email.

Colichman’s argument fails to establish as an issue of law that his email was not the proximate cause of Plaintiff’s damage. Defendant Colichman sent the email with the intent that the information be disclosed to potential buyers and the belief that Plaintiff was obligated to disclose Defendants’ decision to build the second story described in the 3-20-17 email. See Defendants’ Appendix of Exhibits, vol.1, Dec. of P. Colichman, ¶¶6-9. Colichman testifies that he sent the email, because he believed without disclosure of his right to build a second story, Doner was “misleading” potential buyers by marketing the views from Plaintiff’s property. Id. at ¶6. In addition, Doner testifies that she was legally obligated to disclose Colichman’s email precisely. See Plaintiffs’ Evidence, Dec. of K. Doner, ¶10, 22:9-11. Her failure to do so would be misleading and potentially would have exposed her and Plaintiff to liability from a potential buyer.

Colichman’s evidence fails to negate causation as an issue of law. Moreover, Plaintiff’s evidence raises a triable issue of material fact as to whether Colichman caused her damage. Colichman’s MSJ/A based on causation is DENIED.

V. Third cause of action for fraud: element of justifiable reliance—DENY

Generally, the question of whether reliance is justifiable is one of fact. But the issue may be decided as a matter of law if reasonable minds can come to only one conclusion based on the facts. Thus, in such instances where the absence of justifiable reliance is one of law, summary judgment or summary adjudication is an appropriate vehicle.” Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1194 [175 Cal.Rptr.3d 820, 834], as modified on denial of reh'g (Aug. 13, 2014).

Colichman argues Plaintiff could not have justifiably relied on the 3-20-17 email. Colichman argues (1) the misrepresentation was insufficiently specific; and (2) Doner stated to Prochelo’s agent that she believed Defendants were joking or did not have the right to build as second story.

Colichman’s representation was sufficiently specific that a trier of fact could reasonably conclude that Plaintiff’s reliance on its truth was justifiable. Colichman stated (1) that as of 3-20-17 they had “decided” to proceed with (2) addition of a second story and a deck on top of the roof of the second story. Colichman therefore made a representation regarding a specific existing fact, i.e. that they made a decision as of 3-20-17 to proceed with a very particular remodel. This is sufficient to state a claim for fraud.

Doner’s opinions regarding the truth of the 3-20-17 email do not establish as an issue of law that Plaintiff’s reliance was unjustifiable. In her 3-22-17 email to Prochelo’s agent, Fierros, Doner stated she “thought” Defendants were “joking” regarding plans to build a second story when they were speaking to her at the 3-11-17 open house, nine days before the 3-20-17 email. See Defendants’ Appendix of Exhibits, vol. 4, Ex. B, Dec. of M. Fierros, ¶9. Fierros testifies that Doner expressed her opinion that Defendants did not have a right to build a second story and that she did not believe Colichman’s 3-20-17 email was “sincere.” Id. Doner’s opinion regarding these issues does not negate justifiable reliance as an issue of law. Even if Doner doubted that Colichman would or could build a second story and a rooftop deck on top of the second story, reasonable jurors could determine that she justifiably relied on the truth of Colichman’s statements for purposes of her duty of disclosure to potential buyers. Based on the language of the contents of the 3-20-17, Colichman and Millbern had in fact decided to build a second story with a rooftop deck on top of that second story, such that Plaintiff was required to disclose that fact to potential buyers. See Plaintiff’s Evidence, Dec. of K. Doner, PDF p. 20-25, Ex. 4; Defendants’ RJN, Ex. 4, Doner Decl. dated 9-28-17, Ex. 7; Ex. 6, FAC, Ex. 2. Finally, Doner testifies that subjectively she believed the 3-20-17 sufficient to trigger her duty of disclosure. See Plaintiffs’ Evidence, Dec. of K. Doner, ¶10, 22:9-11.

Colichman fails to negate the element of justifiable reliance. Plaintiff’s evidence also raises a triable issue of fact on the issue of justifiable reliance. Colichman’s MSJ/A on grounds of justifiable reliance is DENIED.

VI. Second cause of action for negligent interference with prospective economic advantage: element of duty—DENY

Colichman argues the negligent interference claim fails because the facts do not support imposition of a duty of care. Colichman relies on LiMandri v. Jenkins (1997) 52 Cal.App. 4th 326, Lange v. TIG Insurance Co. (1999) 68 Cal.App.4th 1179, 1187 and CACI No. 2204 for the proposition that a duty of care is required to establish negligent interference with prospective economic advantage.

CACI No. 2204 lists the elements of a negligent interference with economic advantage tort as: (1) plaintiff and a third party were in an economic relationship that probably would have resulted in a future economic benefit to plaintiff; (2) that defendant knew or should have known of its relationship; (3) that defendant knew or should known that this relationship would be disrupted if defendant knew or should have known that this relationship would be disrupted if defendant failed to act with reasonable care; (4) that defendant failed to act with reasonable care; (5) that defendant engaged in wrongful conduct through, e.g. misrepresentation or fraud; (6) the relationship was disrupted; (7) that plaintiff was harmed; and (8) that defendant’s wrongful conduct was a substantial factor in causing plaintiff’s harm.

Based on the evidence discussed above, (1) Colichman was Plaintiff’s neighbor; (2) Plaintiff was attempting to sell her property; (3) Colichman knew that Plaintiff was marketing the view from Plaintiff’s property to buyers; (4) Colichman knew that how they used their property could negatively impact the views from Plaintiff’s property, which would therefore negatively impact Plaintiff’s marketing of her property; and (5) Colichman knew that Plaintiff would have to disclose such use of Defendants’ use of property if Colichman informed Plaintiff of such use.

Unlike the relationship between the plaintiff and defendant in LiMandri, Plaintiff and Colichman were not strangers to one other, nor did Colichman owe some duty of loyalty arising from an attorney-client relationship to some third party that would preclude finding a duty of care from defendant to plaintiff. Plaintiff and Colichman were neighbors, and Colichman’s use of his property could foreseeably negatively impact Plaintiff’s ability to sell her property. As such, it was likewise foreseeable that a false representation to Plaintiff’s agent regarding Colichman’s decision to construct a second story with a rooftop deck would negatively impact Plaintiff’s ability to sell the property.

Unlike the defendant in Lange, where the evidence at trial supported a finding that defendant did not engage in independently wrongful conduct, triable issues of fact remain as to whether Colichman’s independently wrongful conduct interfered with Plaintiff’s economic relationship. Here, the wrongful conduct is clearly identified by Plaintiff as fraud. Because there is a triable issue of fact as to whether Colichman engaged in fraud, the Court cannot find on summary judgment that Colichman did not owe Plaintiff a duty of care based on a complete lack of blameworthiness.

Colichman fails to negate the existence of a duty of care for purposes of the second cause of action for negligent interference with prospective economic advantage. Colichman’s MSJ/A of the second cause of action based on lack of duty of care is DENIED.

VII. Affirmative defense based on CACI 2210

Colichman argues he has a complete defense to the intentional interference torts under CACI 2210, “Privilege to Protect Economic Interest.” A defendant has a complete defense to a claim of intentional interference with contractual relations where the defendant “acted only to protect its legitimate economic interests.” CACI 2210. To establish the defense, defendant must prove: (1) that defendant had a legitimate economic interest in the contractual relations, identifying the specific existing economic interest; (2) that defendant acted only to protect defendant’s own economic interest; (3) that defendant acted reasonably and in good faith to protect it; and (4) that defendant used appropriate means to protect it.

Defendant fails to present evidence as to each element of the affirmative defense. Defendant fails to specify the economic interest that he had in the sale contract between Prochelo and Plaintiff. Defendant argues in footnote 2 to the MSJ that he had an economic interest in the sale agreement, because he had the right and intent to build a second story and wanted to avoid any future litigation. Defendant fails to articulate a coherent legal argument that the sale agreement between Prochelo and Plaintiff would have implicated his right to build a second story.

Second, Defendant’s arguments assume elements (2) to (4) have been established. As discussed above, triable issues of fact remain as to whether Defendant Colichman sent the 3-20-17 email for the purpose of protecting an economic interest in the Prochelo sale agreement “alone,” as opposed to other motives. Triable issues of fact remain as to whether Defendant Colichman acted reasonably and in food faith to protected and whether Colichman used “appropriate means to protect it.” Triable issues of fact remain as to whether the 3-20-17 was a fraudulent misrepresentation.

Case Number: SC127446    Hearing Date: January 19, 2021    Dept: O

Case Name: Workman v. Colichman

Case No.: SC127446

Complaint Filed: 4-27-17

Hearing Date: 1-19-21

Discovery C/O: 3-19-21

Calendar No.: 12

Discover Motion C/O: 4-5-21

POS: OK

Trial Date: 4-19-21

SUBJECT: (1) MOTION TO COMPEL COMPLIANCE WITH REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE)

(2) MOTION TO COMPEL FURTHER RESPONSES TO AND COMPLIANCE WITH REQUESTS FOR PRODUCTION OF DOCUMENTS (SET TWO) BY PLAINTIFF DONNA SUE WORKMAN

MOVING PARTY: Defendant Paul Colichman

RESP. PARTY: Plaintiff Donna Sue Workman

TENTATIVE RULING

Defendant Paul Colichman’s Motion to Compel Compliance with Requests for Production of Documents(RFP) (set one) is DENIED. Defendant Paul Colichman’s Motion to Compel Further Responses to RFPs (set two) is GRANTED in part and DENIED in part.

Motion to Compel Compliance with RFPs (set one)—DENY

“If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance, the demanding party may move for an order compelling compliance.” CCP §2031.320(a).

“Although an actual refusal to produce the items promised may lead to a motion to compel compliance under subdivision (m), this cannot be substituted for the motion to compel a further response under subdivision (l).” Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 903 (discussing predecessor to CCP §2031.320 and CCP §2031.310).

Defendant fails to establish Plaintiff’s noncompliance with her responses to Defendant’s RFPs (set one). Defendant admits Plaintiff produced documents in response to RFPs (set one) numbered 1 through 381. See Motion to Compel Compliance, Dec. of M. Share, ¶8. Plaintiff’s response indicated she would produce responsive documents that were not privileged, “if any,” and which are not already in possession, custody or control of Defendant. Id. at ¶8. The absence of documents responsive to certain RFPs does not establish noncompliance, given Plaintiff’s agreement to only produce non-privileged, responsive documents, “if any,” that were not already in Defendant’s possession. Defendant fails to present any evidence indicating that the 381 document production did not comply with Plaintiff’s statement of compliance.

Defendant still argues Plaintiff’s production did not produce all responsive documents as agreed, because Plaintiff failed to produce a crucial email between Manuel Fierros and Kimberly Donner dated 3-22-17. See Reply, Dec. of M. Share, ¶3. Plaintiff’s counsel explained Plaintiff was not responsible for producing documents in Donner’s possession. Id. at ¶4. Defendant fails to present any facts that would call Plaintiff’s counsel’s explanation into question.

Defendant’s requests for further responses are outside the narrow scope of CCP §2031.320. Defendant is only entitled to compel Plaintiff’s compliance with her agreement to produce. Defendant was required to move for further responses under CCP §2031.310. A motion to compel compliance is distinct from a motion to compel further, which is subject to a 45-day deadline, a meet and confer requirement and a separate statement requirement. CCP §2031.310(b) and CRC Rule 3.1345. While in some circumstances it may be proper for Court to order the production of a privilege log in connection with a motion to compel compliance, counsel agreed that communications between counsel and their client and internal attorney office communications need not be included on any privilege log. Because Defendants have not provided any privilege log, it is apparent that Defendants are not withholding the production of any other documents based on the attorney client privilege objection.

Motion to Compel Further Responses to RFPs (set two)

(1) Defendant’s Motion to Compel Further Responses to the following RFPs (set two) is DENIED, because they are duplicative of RFPs (set one). Plaintiff already responded to these requests in the first set of RFPs on 8-1-19. The time to compel further responses to these responses has already expired (45-days or later date as memorialized in writing by the parties). The time limit is mandatory and jurisdictional “in the sense that it renders the court without authority to rule on motions to compel other than to deny them.” See Sexton v. Supr. Ct. (1997) 58 Cal.App.4th 1403, 1410. Defendant cannot circumvent the deadline by re-propounding the discovery in a later set. Id. at 1409.

RFP No. 1 (set two) seeks the same information as RFP No. 7 (set one).

RFP No. 3 (set two) seeks the same information as RFP No. 4 (set one).

RFP No. 6 (set two) seeks the same information as RFP No. 12 (set one).

RFP No. 8 (set two) seeks the same information as RFP No. 12 (set one).

RFP No. 13 (set two) seeks the same information as RFP No. 18 (set one).

RFP No. 14 (set two) seeks the same information as RFP No. 6 (set one).

RFP No. 18 (set two) seeks the same information as RFP No. 16 (set one).

RFP No. 20 (set two) seeks the same information as RFP No. 17 (set one).

RFP No. 21 (set two) seeks the same information as RFP Nos. 14, 21 and 23 (set one).

RFP No. 22 (set two) seeks the same information as RFP Nos. 11, 21 and 23 (set one).

RFP No. 23 (set two) seeks the same information as RFP Nos. 21 and 23 (set one).

RFP No. 24 (set two) seeks the same information as RFP No. 5 (set one).

(2) Defendant’s Motion to Compel Further Responses to the following RFPs is GRANTED.

Where a party moves to compel further responses to requests for production, the moving party must demonstrate good cause, i.e. relevance to the subject matter and specific facts justifying discovery. See CCP §2031.310(b)(1); see also Kirkland v. Sup.Ct. (Guess?, Inc.) (2002) 95 Cal.App.4th 92, 98. “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224 (disapproved of on other grounds in Williams v. Supr. Ct. (2017) 3 Cal.5th 531, 557, fn 8).

Defendant only addressed good cause on reply and failed to discuss the issue at all in the opening brief. Defendant argues on reply that the RFPs sought directly relevant information to the sale of the property and Plaintiff’s communications with prospective buyers.

Plaintiff produced a few additional documents in response to RFPs (set two), which consisted of pictures of Colichman’s property demonstrating nothing had changed or been built in the interim. Id. at ¶6. Plaintiff’s responses contain boilerplate objections. Plaintiff’s further response should eliminate boilerplate objections. Plaintiff should also provide a privilege log in accordance with CCP §2031.240(c)(2). See see Catalina Island Yacht Club v. Sup.Ct. (Beatty) (2015) 242 CA4th 1116, 1130, fn. 5. The privilege log need not include any communications between counsel and their client and internal attorney office communications, as parties agreed. See Opposition, Dec. of A. Goldberg, ¶9.

The following RFPs (set two) do not seek the same information as RFPs (set one) and the motion is GRANTED as to these RFPs:

RFP No. 2 (set two) does not seek the same information as RFP No. 7 (set one). RFP No. 2 (set two) seeks Plaintiff’s notes on the communications sought in RFP No. 7.

RFP No. 5 (set two) does not seek the same information as RFP No. 4 (set one). RFP No. 5 (set two) seeks Plaintiff’s notes on the communications sought in RFP No. 4.

RFP No. 9 (set two) does not seek the same information as RFP No. 12 (set one). RFP No. 9 (set two) seeks Plaintiff’s notes on the communications sought by RFP No. 12 (set one).

RFP No. 10 (set two) does not seek the same information as RFP No. 14 (set one). RFP No. 10 (set two) is broader than the information sought in RFP No. 14 (set one).

RFP No. 12 (set two) does not seek the same information as RFP No. 14 (set one). RFP No. 12 (set two) is broader than the information sought in RFP No. 14 (set one).

RFP No. 15 (set two) does not seek the same information as RFP No. 6 (set one). RFP No. 15 (set two) seeks Plaintiff’s notes on the correspondence sought in RFP No. 6 (set one).

RFP Nos. 16 and 17 (set two) do not seek the same information as RFP No. 6 (set one). RFP Nos. 16 and 17 (set two) seek different categories of correspondence from RFP No. 6.

RFP No. 19 (set two) does not seek the same information as RFP No. 16 (set one). RFP No. 19 seeks Plaintiff’s notes on the information sought in RFP No. 16 (set one).

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

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