Vitale v. Morgan Stanley Smith Barney, · PDF fileVitale v. Morgan Stanley Smith ... Any...

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Vitale v. Morgan Stanley Smith Barney, LLC Superior Court of California. | September 17, 2012

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Jurisdiction:

California

Delivery Details Date:

December 7, 2013 at 8:46PM

Delivered By:

Client ID:

1111

Comment:

Lisa Schall Orders

Vitale v. Morgan Stanley Smith Barney, LLC, 2012 WL 4077383 (2012)

© 2013 Thomson Reuters. No claim to original U.S. Government Works. 2

2012 WL 4077383 (Cal.Super.) (Trial Order) Superior Court of California.

San Diego County

Todd G. VITALE and John P. Paladino, Petitioners, v.

MORGAN STANLEY SMITH BARNEY, LLC Respondent.; Morgan Stanley Smith Barney, LLC, Petitioner,

v. Todd G. Viatle and John P. Paladino Respondents.

No. 37-2012-00099813-CU-PA-CTL. September 17, 2012.

Consolidating Case Nos. 37-2012-00099813-CU-PA-CTL and 37-2012-00099937-CU-PA-CTL

Court’s Ruling Re Motion to Vacate Or Confirm Arbitration Award

Lisa C. Schall, Judge of the Superior Court.

The Court has re-examined all of the pleadings filed by the parties, lodgments, case authority, exhibits, and issues raised in their arguments: The Court notes that the FINRA Rule 13408 controls (emphasis added)here: (a) Before appointing arbitrators to a panel, the Director will notify the arbitrators of the nature of the dispute and the identity of the parties. Each potential arbitrator must make a reasonable effort to learn of, and must disclose to the Director, any circumstances which might preclude the arbitrator from rendering an objective and impartial determination in the proceeding, including: (1) Any direct or indirect financial or personal interest in the outcome of the arbitration; (2) Any existing or past financial, business, professional, family, social, or other relationships or circumstances with any party, any party’s representative, or anyone who the arbitrator is told may be a witness in the proceeding, that are likely to affect impartiality or might reasonably create an appearance of partiality or bias; (3) Any such relationship or circumstances involving members of the arbitrator’s family or the arbitrator’s current employers, partners, or business associates; and (4) Any existing or past service as a mediator for any of the parties in the case for which the arbitrator has been selected. (b) The obligation to disclose interests, relationships, or circumstances that might preclude an arbitrator from rendering an objective and impartial determination described in paragraph (a) is a continuing duty that requires an arbitrator who accepts appointment to an arbitration proceeding to disclose, at any stage of the proceeding, any such interests, relationships, or circumstances that arise, or are recalled or discovered. (c) The Director will inform the parties to the arbitration of any information disclosed to the Director under this rule unless the arbitrator who disclosed the information declines appointment or voluntarily withdraws from the panel as soon as the arbitrator learns of any interest, relationship or circumstance that might preclude the arbitrator from rendering an objective and impartial determination in the proceeding, or the Director removes the arbitrator.



According to FINRA’S “Arbitrator’s Guide,” which is attached to the Folan Declaration as Exhibit D (moving papers), “[d]isclosure is the cornerstone of FINRA arbitration [and its guidelines specifically direct its arbitrators] to consider all aspects of their professional and personal lives and disclose all ties between the arbitrator, the parties and the matter in dispute, no matter how remote they may seem.” (Ex. D to Decl. of Folan, page 16) FINRA further admonishes that if there is even a need to “think about whether a disclosure is appropriate, then it is: make the disclosure.” (Id.) Based on the evidence submitted by Morgan Stanley, it is fairly clear that Mr. Kersh was not forthcoming in his disclosures generally or in his responses to the “Arbitrator Disclosure Report,” attached to Folan’s Declaration as Exhibit F. At the very minimum, when responding to Questions 8 and 17, Mr. Kersh failed to comply with Rule 13408: Question 8 - Have you, your spouse, or any member of your immediate family maintained an account individually, jointly or beneficially with a brokerage firm named in this proceeding? Question 17 - Has any member of your immediate family or household been employed by a brokerage firm? His daughter worked for a brokerage firm and maintains an account with Morgan Stanley. Mr. Vitale argues that Mr. Kersh has no obligation to inquire into in-laws’ circumstances. Even if that were true, his daughter is his immediate family. The mere failure to disclose reasonably creates the impression of partiality. (Schmitz v. Zilveti (9th Cir. 1994) 20 F.3d 1043, 1047-1048.) Interestingly, Mr. Vitale does not dispute that Mr. Kersh failed to disclose any of the above information, or argue that Mr. Kersh’s disclosures were complete or accurate, but instead argues Morgan Stanley was aware of it and/or Mr. Kersh was not required to disclose it. Under FINRA rules, the duty lies with the arbitrator to disclose - there is no duty on the part of the participants to Google matters or otherwise. Finally, Mr. Vitale’s efforts to impute knowledge of Mr. Kersh’s relationships to Morgan Stanley are unpersuasive and speculative. The only declarations filed in support of Mr. Vitale’s theory that Morgan Stanley could locate the relevant relationship information are those of former Morgan Stanley employees, whose testimony is questionable in terms of bias as former employees with a potential axe to grind against Morgan Stanley. While the arbitration was governed by FINRA rules, the decision to confirm or vacate the award is governed by CCP § 1286.2, the relevant portion of which provides that: ...the court shall vacate the award if the court determines any of the following: (6) An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision. However, this subdivision does not apply to arbitration proceedings conducted under a collective bargaining agreement between employers and employees or between their respective representatives. (Code Civ. Proc., § 1286.2(a)(6).) For the foregoing reasons, the Court hereby Grants Morgan Stanley’s motion to vacate the award based on Mr. Kersh’s violation of FINRA rules. Furthermore, based on the objections and the parties’ responses thereto, the Court overrules all objections. Dated: .................................................................................................................................................................................................................................................................. ................................................................................................................................................................................................................................................................................. LISA C. SCHALL JUDGE OF THE SUPERIOR COURT

End of Document © 2013 Thomson Reuters. No claim to original U.S. Government Works.


Petropoulos v. County of San Diego Superior Court of California. | June 6, 2012



Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:

Lisa Schall Orders

Petropoulos v. County of San Diego, 2012 WL 5188144 (2012)



San Diego County

George PETROPOULOS, an individual, Plaintiff, v.

COUNTY OF SAN DIEGO, Defendant.

No. 37-2011-00086866-CU-OE-CTL. June 6, 2012.

Judgment on Jury Verdict

Thomas E. Montgomery, County Counsel, Carra L. Rhamy, Senior Deputy, Attorneys for Defendant County of San Diego.

Joel C. Golden, Esq., Attorneys for Plaintiff George Petropoulos.

Lisa C. Schall, Judge of the Superior Court.

Action Filed: March 2, 2011 Dept: C-46 The above-entitled action came on regularly for trial on April 23, 2012, in Department 46 of the Superior Court, the Honorable Judge Lisa C. Schall presiding. Plaintiff appeared in person and through his attorney of record, Joel C. Golden; Defendant appeared through its attorney of record, Carra L. Rhamy. A jury of twelve persons was regularly impaneled and sworn. Witnesses were sworn and testified. After hearing the evidence and arguments of counsel, the jury was duly instructed by the Court and the cause was submitted to the jury (with directions to return a verdict on special issues). The jury deliberated and thereafter returned into court with its verdict as follows: We, the jury in the above entitled action, find the following special verdict on the questions submitted to us: 1. Did George Petropoulos disclose information to the County of San Diego that he reasonably believed disclosed a violation of state or federal law, or refuse to participate in an activity that would result in a violation of state or federal law? X Yes

___ No

If your answer to question 1 is YES, then answer question 2. If you answered NO, stop here, answer no further questions, and have the presiding juror sign and date this form. 2. Did the County of San Diego engage in conduct that, taken as a whole, materially and adversely affected the terms and conditions of George Petropoulos’ employment? X Yes

___ No



If your answer to question 2 is YES, then answer question 3. If you answered NO, stop here, answer no further questions, and have the presiding juror sign and date this form. 3. Was George Petropoulos’ disclosure of information to the County of San Diego that he reasonably believed disclosed a violation of state or federal law, or refusal to participate in an activity that would result in a violation of state or federal law, a motivating factor for the County of San Diego’s conduct which adversely affected the terms and conditions of his employment? ___ Yes

X No

If your answer to question 3 is YES, then answer question 4. If you answered NO, stop here, answer no further questions, and have the presiding juror sign and date this form. Signed: Jason Buell Presiding Juror Dated: April 26, 2012 It appearing by reason of said verdict that: Defendant County of San Diego is entitled to judgment against Plaintiff George Petropoulos. NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that said Plaintiff take nothing from said Defendant and that Defendant shall receive costs in the amount of $ 2,225.27. IT IS SO ORDERED. DATED: 6/6/12 <<signature>> LISA C. SCHALL Judge of the Superior Court Submitted by: DATED: 4/30/12 THOMAS E. MONTGOMERY, County Counsel By <<signature>> CARRA L. RHAMY, Senior Deputy Attorneys for Defendant County of San Diego Approved as to form:



Dated: 5/3/12 By <<signature>> JOEL C. GOLDEN, Esq. Attorneys for Plaintiff George Petropoulos

End of Document



Pereyra v. Jimenez Superior Court of California | May 30, 2012



Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:

Lisa Schall Orders

Pereyra v. Jimenez, 2012 WL 5188148 (2012)


2012 WL 5188148 (Cal.Super.) (Trial Order) Superior Court of California,

Central Division. San Diego County

Oscar PEREYRA, Sr. and Linda Pereyra, Plaintiffs, v.

Aaron Fabian JIMENEZ, Juan Reyes, Vanessa Reyes, Tahje Jahari Hargrove, Kayla D. Rains as Trustee of the Roger J. Keily Living Trust and Does 1 to 100, Defendants.

No. 37-2011-00087407-CU-PO-CTL. May 30, 2012.

Judgment

Kenneth H. Stone, Esq., Attorney for Defendant, Marilyn Kriebel, Successor Trustee of the Roger J. Keily Living Trust.

Brian Dunn, Esq., Attorney for Plaintiffs, Oscar Pereyra, Sr. and Linda Pereyra.

Hon. Lisa C. Schall, Judge.

DEPT: SD-46 COMPLAINT FILED: March 10, 2011 TRIAL DATE: March 9, 2012 This action came on regularly for trial on March 22, 2012, March 26, 2012, March 27, 2012 and March 28, 2012 in department SD-46 of the above entitled court, the Honorable Lisa C. Schall presiding. Plaintiffs appeared through their attorney, Brian Dunn. Defendant MARILYN KRIEBEL, Successor Trustee of the ROGER J. KEILY LIVING TRUST appeared through her attorney, Kenneth H. Stone. VANESSA REYES appeared in pro per. The trial was a three and a half day court trial. Witnesses on behalf of all parties were sworn and testified. Prior to submission of the case, Plaintiffs dismissed the action as against VANESSA REYES. After hearing the evidence and arguments of counsel, including briefs submitted by the parties, and the court having rendered a Tentative Statement of Decision, IT IS ORDERED, ADJUDGED AND DECREED that:

1. Plaintiffs shall take nothing by their Complaint and judgment is entered in favor of Defendant MARILYN KRIEBEL, Successor Trustee of the ROGER J. KEILY LIVING TRUST.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that:

2. This judgment shall not preclude Plaintiffs from seeking entry of a default judgment against any party defendant whose default was previously taken in this action.

Dated: 5/30, 2012 <<signature>> JUDGE OF THE SUPERIOR COURT



APPROVED AS TO FORM: Dated: 5-30- 2012, <<signature>> KENNETH H. STONE, ESQ. Attorney for Defendant MARILYN KRIEBEL, Successor Trustee of the ROGER J. KEILY LIVING TRUST Dated: 5-24-, 2012 <<signature>> BRIAN DUNN, ESQ. Attorney for Plaintiffs OSCAR PEREYRA, SR. and LINDA PEREYRA

End of Document



Pereyra v. Jimenez Superior Court of California. | March 22, 2012



Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:

Lisa Schall Orders




San Diego County

PEREYRA, v.

JIMENEZ.

No. 37-2011-00087407-CU-PO-CTL. March 22, 2012.

Minute Order

Lisa C. Schall, Judge.

DATE: 03/22/2012 JUDICIAL OFFICER PRESIDING: Lisa C. Schall TIME: 01:30:00 PM DEPT: C-46 CLERK: Shellie Marshburn REPORTER/ERM: Pamela Berry CSR# 9982 BAILIFF/COURT ATTENDANT: I. Escobedo CASE INIT.DATE: 03/10/2011 CASE CATEGORY: Civil - Unlimited CASE TYPE: PI/PD/WD - Other EVENT TYPE: Civil Jury Trial

APPEARANCES

Brian J Dunn, counsel, present for Plaintiff(s). Rebecca Reed, Co-Counsel to Kenneth Stone, on behalf of Marilyn Kriebel, As Successor Trustee of the Roger J. Keily Trust (Defendant) 1:36 p.m. This being the time set for Jury Trial in the above-entitled cause, having been assigned to this department, all parties and counsel appear as noted above and trial commences. The Court notes the complaint in the matter now before the court was filed on March 10, 2011, and that all named defendants have been defaulted except for Marilyn Kriebel as Successor Trustee of the Roger J. Keily Trust; who shall hereafter be



referred to as The Keily Trust. The Court further notes that a noticed motion was heard on December 2, 2011, and the Trust was permitted to file a second amended answer. The Court orders the parties to have ready on March 26, 2012, the final jury instructions and the joint statement of the case The parties are also to have all exhibit issues resolved. The plaintiff requests to amend the complaint to include vehicular negligence, negligent entrustment, and general negligence. The Court hears oral argument on the plaintiff’s request to amend the complaint. The Court GRANTS the plaintiff’s motion to amend the complaint with the following clarification: The Court finds in Klein Vs.. U.S., 50 Cal 4th U.S., the act of negligent driving of a vehicle is an exception to Civil Code §846; however, general negligence and negligent entrustment are subject to Civil Code §846. The Court makes the following rulings on the Plaintiff’s Motions In Limine: 1 of 5 To exclude proffered evidence regarding characteristics or specifications of Pee Wee Motorbike is GRANTED in part and DENIED in part; 2 of 5 To exclude proffered evidence of putative owner’s manual for motorbike is DENIED; 3 of 5 To exclude proffered evidence regarding wearing a helmet by decedent is DENIED, subject to reconsideration by the Court; 4 of 5 To exclude proffered evidence regarding alleged “racing” by decedent is DENIED; 5 of 5 To exclude proffered evidence regarding purported repair records for motorbike is GRANTED. The Court makes the following rulings on the Defendant’s Motions In Limine: 1 of 6 To bifurcate the affirmative defense of Civil Code §846 or for an order altering the proof to allow the trial of the defense first is DENIED; 2 of 6 To exclude evidence contrary to plaintiffs’ Judicial Admission is GRANTED; 3 of 6 To exclude hearsay evidence (regarding out-of-court statements made by percipient witness Cheryl Johnson) is GRANTED; i.e., any hearsay evidence showing agency must fall within the hearsay rule; 4 of 6 To exclude (introduction of a) Taylor utility cart is GRANTED, subject to reconsideration by the Court; 5 of 6 To exclude photographs of the decedent while he was alive is RESERVED, To exclude CHP photographs of the accident is RESERVED, To exclude photographs of the decedent after his death is RESERVED, To be addressed on 3/26/2012 prior to jury selection; 6 of 6 To exclude evidence related to the removal of Kala Rains as Trustee of the Roger J. Keily Trust is WITHDRAWN. 3:45 p.m. Court is adjourned until 03/26/2012 at 09:00AM in Department 46.



End of Document



SHIRLEY PRESKITT, Plaintiff/Petitioner, W.E. BEDDING CORP., Defendant/Respondent. Superior Court of California. | March 4, 2005



Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:

Lisa Schall Orders

SHIRLEY PRESKITT, Plaintiff/Petitioner, W.E. BEDDING..., 2005 WL 5704927...


2005 WL 5704927 (Cal.Superior) (Trial Order) Superior Court of California.

San Diego County

SHIRLEY PRESKITT, Plaintiff/Petitioner, W.E. BEDDING CORP., Defendant/Respondent.

No. GIN034288. March 4, 2005.

Attorney for Plaintiff/Petitioner Joshua D. Gruenberg.

Attorney for Defendant/Respondent Christopher John Irvin (1).

Hon. Lisa Guy-Schall, Judge/Commissioner.

COMPLAINT DATE 11-25-03 HEARING DATE 03/04/05 HEARING TIME 01:30PM DEPT 31 CLERK M. GARLAND REPORTER ANGELKA SCOFIDIO P.O.BOX 120128, SAN DIEGO, CA 92112-0128

1. DEFENDANT W.E. BEDDING CORP’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

THIS MATTER HAVING COME BEFORE THE COURT THIS DATE, THE COURT ORDERS: □ PRIOR TO CALENDAR CALL

□ OFF-CALENDAR

□ GRANTED

□ BONDS $ ...................................................

□ DENIED

□ WITH/WITHOUT PREJUDICE

□ PRIOR TO CALENDAR CALL □ CONT. TO __________ IN DEPT _____ AT _____ □ TRO □ CONTINUED □ VACATED □ ALL PREVIOUS ORDERS REMAIN IN FULL FORCE AND EFFECT. X ORAL ARGUMENT TENTATIVE DATED March 3, 2005, X CONFIRMED □ MODIFIED □ DISPOSES OF ENTIRE ACTION □ DOES NOT DISPOSE OF ENTIRE ACTION

SHIRLEY PRESKITT, Plaintiff/Petitioner, W.E. BEDDING..., 2005 WL 5704927...


□ PREVAILING PARTY TO PREPARE AND FILE FORMAL ORDER PURSUANT TO CRC 391. □ OTHER Defendant W.E. Bedding Corp., aka Ortho Mattresses evidentiary objections to the Declaration of Angelo Pellerito on the grounds the declarant lacks personal knowledge of the facts stated therein and in violation of Evidence Code Section 702, are sustained. The Court notes that the Declaration of Angelo Pellerito is not signed “under penalty of Perjury,” as required by CCP Section 2015.5 Defendant W.E. Bedding Corp, aka Ortho Mattresses evidentiary objections to Plaintiffs Additional Disputed/Undisputed Facts Numbers 1 through 46 inclusively and individually, are overruled in their entirety. Defendant has failed to substantiate it’s evidentiary objections by specific cites to the evidence objected to. Plaintiff supports her Additional Disputed/Undisputed Facts by specific cites to her deposition testimony, which has been lodged with the Court by Plaintiff. Defendant W.E. Bedding Corp., aka Ortho Mattresses Motion for Summary Judgment and Alternative Motion for Summary Adjudication of Issues is ruled on as follows: Defendant’s Motion for Summary Judgment on the grounds that: (1) Plaintiffs eight causes of action fail to state facts sufficient to constitute a cause of action against this defendant; (2) there are no triable issues of material fact as the Plaintiff is not the real party in interest t for pursuing the claims alleged in the First Amended Complaint, and (3) that each of the causes of action is barred by the applicable statute of limitations, is denied in its entirety. Defendant has failed to meet his burden on this Motion for Summary Judgment of showing that that Plaintiffs eight causes of action have no merit because one or more elements of the causes of action, even if not separately pleaded, cannot be established, or that there is a complete defense to Plaintiff’s eight causes of action. The evidence provided demonstrates that triable issues of material fact exist as to whether there was a customer sharing agreement between Simmons Mattress Gallery and Ortho and whether Defendants engaged in unfair competition by resorting to age and gender harassment and intimidation to deny Plaintiff equal access to potential customers in order to further their own financial interests and whether Defendants conduct defamed Plaintiff causing her emotional distress. [Deposition of Shirley Preskitt at pages 188, 192-193, 197 through 203; pages 230, 232, 236-236, 248, 252, 308-328, 341, 342, 346, 349, 369, 375-376, 385-386, 394, 401-402, 416-417, 440-446, 452-455; Plaintiffs Lodged Exhibits 1, 2, 3, 4, and 6.] Defendant Ortho Mattresses Alternative Motion for Summary Adjudication is ordered off calendar for failure to comply with California Rules of Court, Rule 342, Subdivisions (b) and (d). DATED: 03/04/05 <<signature>> JUDGE OF THE SUPERIOR COURT

End of Document



Joseph MORRIS, Plaintiff/Petitioner, COUNTY OF SAN DIEGO, Defendant/Respondent. Superior Court of California. | May 13, 1996



Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:

Lisa Schall Orders

Joseph MORRIS, Plaintiff/Petitioner, COUNTY OF SAN..., 1996 WL 34389112...


1996 WL 34389112 (Cal.Superior) (Trial Order) Superior Court of California.

San Diego County

Joseph MORRIS, Plaintiff/Petitioner, COUNTY OF SAN DIEGO, Defendant/Respondent.

No. N70400. May 13, 1996.

Donald Mitchell Decamara, Attorney for Plaintiff/Petitioner.

George W. Brewster, Jr. (1), Attorney for Defendant/Respondent.

Judge Hon. Lisa Guy-Schall.

CLERK KARYN STOKKE REPORTER TELEPHONIC P.O.BOX 128, SAN DIEGO, CA 92112-4104 DATE OF HEARING 05/13/96 TIME OF MEARING 02:00PM DATE COMPLAINT FILED 03-31-95 DEPT H 1. DEFENDANT SUMMARY JUDGMENT THIS MATTER HAVING COME BEFORE THE COURT THIS DATE, THE COURT ORDERS: □ PRIOR TO CALENDAR CALL

□ OFF-CALENDAR

□ GRANTED

□ BONDS __________

□ DENIED

□ WITH/WITHOUT PREJUDICE

□ PRIOR TO CALENDAR CALL □ CONT. TO __________ IN DEPT _____ AT _____ □ TRO □ CONTINUED □ VACATED □ ALL PREVIOUS ORDERS REMAIN IN FULL FORCE AND EFFECT. □ TELEPHONIC □ CONTINUED FOR ORAL ARGUMENT ON __________ □ ORAL ARGUMENT □ TELEPHONIC DATED __________ CONF IRMED □ MODIFIED □ DISPOSES OF ENTIRE ACTION □ DOES NOT DISPOSE OF ENTIRE ACTION

Joseph MORRIS, Plaintiff/Petitioner, COUNTY OF SAN..., 1996 WL 34389112...


□ PREVAILING PARTY TO PREPARE AND FILE FORMAL ORDER PURSUANT TO CRC 391. □ OTHER AS A PRELIMINARY MATTER, THE EVIDENTIARY OBJECTIONS SUBMITTED BY PLAINTIFF WERE CONSIDERED BY THE COURT. THE COURT DISREGARDED ALL THOSE PORTIONS OF THE EVIDENCE IT CONSIDERED TO BE INCOMPETENT AND INADMISSIBLE AND, THEREFORE, DECLINES TO GIVE A WRITTEN RULING ON THESE EVIDENTIARY OBJECTIONS PURSUANT TO THE HOLDING IN BILJAC ASSOCIATES V. FIRST INTERSTATE BANK (1990) 218 CAL. APP. 3D 1410, 1419. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IS DENIED. THE COURT FINDS THERE IS A TRIABLE ISSUE OF MATERIAL FACT AS TO WHETHER DEPUTY PRICE WAS MERELY FOLLOWING DEFENDANT JASSO OR WHETHER HE WAS PURSUING/CHASING HIM. SEE DECLARATION OF DEPUTY PRICE PAGES 36-37 AND PAGES 100-101. IF DEPUTY PRICE WAS PURSUING DEFENDANT JASSO, DEPUTY PRICE OWED PLAINTIFF A STATUTORY DUTY TO EXERCISE REASONABLE CARE IN HIS PURSUIT. SEE VEHICLE

RULING CONTINUED

Dated: 05/13/96

............................................................................................................................................

JUDGE OF THE SUPERIOR COURT

End of Document


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