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Tentative Rulings for October 26, 2017
Departments 402, 403, 501, 502, 503
There are no tentative rulings for the following cases. The hearing will go forward on
these matters. If a person is under a court order to appear, he/she must do so.
Otherwise, parties should appear unless they have notified the court that they will
submit the matter without an appearance. (See California Rules of Court, rule 3.1304(c).)
16CECG00115 Montage Community Association v. Montage Attached Homes, LP
(Dept. 402)
The court has continued the following cases. The deadlines for opposition and reply
papers will remain the same as for the original hearing date.
16CECG03415 Arax v. Watershed Investments, Inc. is continued to November 2,
2017 at 3:30 p.m. in Department 402.
________________________________________________________________
(Tentative Rulings begin at the next page)
Tentative Rulings for Department 402
(5)
Tentative Ruling
Re: Taylor et al. v. West Hills Community College District et
al.
Fresno Superior Court Case No. 14 CECG 03586
Hearing Date: October 26, 2017 (Dept. 402)
Motion: By Plaintiff to transfer pending case in King’s County
and consolidate
Tentative Ruling:
To deny the motion.
Explanation:
On November 26, 2014, Plaintiffs filed the instant action alleging four FEHA based
causes of action, one labor code violation and one education code violation. On
March 30, 2015, the case was deemed provisionally complex. On November 4, 2016, a
joint stipulation and order was filed that continued trial. On February 21, 2017, a joint
stipulation and order was filed that continued trial.
On June 7, 2017, Plaintiff Shuntay Taylor dismissed the first cause of action for
racial harassment in violation of FEHA against Defendants West Hills College and
Charles Freeman. On June 14, 2017, the Court denied the Defendant’s motion for
judgment on the pleadings as to the third, fourth and fifth causes of action but granted
the motion as to the sixth cause of action. On July 3, 2017, a joint stipulation and order
was filed that continued trial to March 5, 2018.
In the interim, discovery had begun. Plaintiffs produced work-related recordings
that were allegedly recorded without permission of the other participants. As a result,
on June 8, 2017, Defendant filed a civil complaint against both Plaintiffs in Kings County
as Case No. 17C0159 alleging a violation of Penal Code § 632. On September 6, 2017,
Plaintiffs filed a motion seeking to transfer the latter case from Kings County to Fresno
County and consolidate it with the instant case.
Merits
CCP § 403 states:
A judge may, on motion, transfer an action or actions from another court
to that judge's court for coordination with an action involving a common
question of fact or law within the meaning of Section 404. The motion shall
be supported by a declaration stating facts showing that the actions
meet the standards specified in Section 404.1, are not complex as defined
by the Judicial Council and that the moving party has made a good faith
effort to obtain agreement to the transfer from all parties to each action.
Notice of the motion shall be served on all parties to each action and on
each court in which an action is pending. Any party to that action may
file papers opposing the motion within the time permitted by rule of the
Judicial Council. The court to which a case is transferred may order the
cases consolidated for trial pursuant to Section 1048 without any further
motion or hearing.
The Judicial Council may adopt rules to implement this section, including
rules prescribing procedures for preventing duplicative or conflicting
transfer orders issued by different courts.
The factors set forth in CCP § 404.1 are:
(1) Whether the “common question” of fact or law is predominating and significant to
the litigation;
(2) The convenience of parties, witnesses and counsel;
(3) The relative development of the actions and the work product of counsel;
(4) The efficient utilization of judicial facilities and manpower;
(5) The calendar of the respective courts;
(6) The disadvantages of duplicative and inconsistent rulings, orders or judgments; and
(7) The likelihood of settlement of the actions without further litigation should
coordination be denied. [CCP § 404.1; see McGhan Med. Corp. v. Sup.Ct.
(Hogan) (1992) 11 Cal.App.4th 804, 812]
Here, the Declaration of Amador did not address all of the factors set forth in
CCP § 404.1. She did not address factors 3, 5, 6 and 7. She only “touched” upon
factors 2 and 4. This is required. See CCP § 403.
Importantly, as stated supra, the “common question” of fact or law must be
predominating and significant to the case at bench. Whether these recordings were
made in violation of Penal Code § 632 appears to be tangential to the issues
concerning promotion and discrimination in this action. More importantly, on June 25,
2016, the parties filed a 19-page Joint Status Conference Report. In it, Plaintiffs listed
eight issues that they assert mandate the deeming of this case as complex. See pages
8 and 9. Now, Plaintiffs appear to argue that the instant case is not complex.
Finally, the Court observes that the dismissal of Defendant Charles Freeman
removes the sole Defendant whose residence permitted the case to be filed in Fresno
County. On October 18, 2017, a joint stipulation was submitted with a proposed First
Amended Complaint. Notably, ¶ 8 “Venue and Jurisdiction” of the proposed First
Amended Complaint states: “The acts and omissions which are the subject of this
Complaint occurred in Kings County, California.” Accordingly, it appears questionable
whether yet another action properly venued in Kings County should be transferred to
this court.
In the end, the instant case has been deemed provisionally complex and the
factors set forth in CCP § 404.1 mitigate in favor of denial. If the cases were
consolidated, trial would likely be continued yet another time given the state of
discovery in the Kings County action. Therefore, the motion will be denied.
Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure
section 1019.5, subd. (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: JYH on 10/25/17
(Judge’s initials) (Date)
(24) Tentative Ruling
Re: Maldonado v. Fresno Community Hospital and Medical Center
Court Case No. 15CECG01565
Hearing Date: October 26, 2017 (Dept. 402)
Motion: Plaintiffs’ Motion for Leave to Amend Complaint
Tentative Ruling:
To grant in part and deny in part. Plaintiffs are given leave to amend the
complaint to add the new causes of action as to Fresno Community Hospital and
Medical Center, dba Community Regional Medical Center and Community Medical
Centers, and Community Hospitals of Central California (“Hospital defendants”) and as
to Pervaiz A. Chaudhry, M.D., Robert Stewart, M.D., Valley Cardiac Surgery Medical
Group, and Chaudhry Medical, Inc. (“Chaudhry defendants”), but not as to Ramesh B.
Pamula, M.D. Plaintiffs are given leave to amend the complaint to add punitive
damage allegations and prayers as to the Hospital defendants and the Chaudhry
defendants, but not as to Dr. Pamula.
Rulings on evidentiary objections are as follows: To sustain objections to the
depositions taken in other cases based only on Evidence Code section 1291-1292. To
overrule all objections to the Declaration of Charles Pietrafesa, M.D. To sustain the
Chaudhry defendants’ Objections 14 (hearsay), 28 (authentication), and 58 (hearsay).
To overrule all other objections by the Chaudhry defendants. To grant the Request for
Judicial Notice.
Explanation:
Motion to Amend to Add Causes of Action
Judicial policy favors resolution of all disputed issues between parties in the same
lawsuit, therefore the court’s discretion will usually be exercised liberally to permit
amendment of the pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.)
Plaintiffs have complied with the technical requirements under California Rules of Court,
Rule 3.1324 for a motion to amend. The policy of liberal allowance of amendment is in
favor of granting this motion. Therefore, the request to add causes of action for willful
misconduct, fraud, negligent misrepresentation, concealment, aiding and abetting,
and violation of the Consumer Legal Remedies Act (“CLRA”) is granted.
Motion to Amend Pursuant to CCP § 425.13
Objections and Request for Judicial Notice:
Request for Judicial Notice
The request for judicial notice is granted solely for the purposes of authenticating
the April 19, 2012 letter from Bipin K. Josh, M.D. to Dr. Chaudhry and not for considering
its truth: in attaching the letter as an exhibit to his complaint in Case #12CECG03112, Dr.
Chaudhry authenticated it as being what it purports to be. This letter was considered by
Dr. Pietrafesa in forming his opinion (Pietrafesa Decl., p. 3:7-10), and to the extent this
may constitute a “medical record,” it is appropriate to admit it into evidence. (Garibay
v. Hemmat (2008) 161 Cal.App.4th 735, 742.) Defendants’ evidentiary objection to it is
overruled (see below) as this constitutes a business record. This evidence also cannot
be found to violate the peer review privilege, since the privilege was clearly waived by
Dr. Chaudhry himself in attaching it to his complaint.
Depositions from other cases
All objections to the deposition testimony taken in other cases filed against
defendants are sustained as inadmissible hearsay, since plaintiffs failed to establish the
predicate fact that the deponents were unavailable as witnesses in this action, as
required by Evidence Code section 1291. That section requires that two elements be
established: 1) that the declarant is unavailable; and 2) the party against whom the
former testimony is offered was a party to the earlier action and had the right and
opportunity to cross-examine the declarant with an interest and motive similar to that
which he has at this hearing. While the second element is clearly established for all
depositions, no attempt was made to establish the first element, unavailability.
Declaration of Dr. Pietrafesa
Dr. Pietrafesa’s declaration is admissible, so all evidentiary objections to it are
overruled. His qualification as established by his declaration and the attached
Curriculum Vitae is appropriate to support his opinions. (Pietrafesa Decl., ¶2.) He is
experienced with the oversight of patient care, which would encompass determining
what conduct of medical staff would meet a hospital’s standard of care regarding,
inter alia, patient safety, quality of medical staff services and governance,
credentialing and privileging. The fact that he is not a thoracic surgeon does not render
him unequipped to opine. The authenticated medical records on which he relied were
submitted into evidence. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742-743.) He
states his findings (i.e., supporting facts) and opinions together (Decl., ¶8, p. 3:12-13),
but in the end, his opinion is adequately supported and is not conclusory.
The court has considered Dr. Pietrafesa’s opinions related to information from the
depositions from other cases, even though objections to them were sustained, since this
was based only on plaintiffs not establishing witness availability. At trial, these witness will
either be unavailable (so the testimony would be admissible), or they will be testifying in
person.
Pertinent law:
A plaintiff making a motion to amend to claim punitive damages under Code of
Civil Procedure section 425.13 (“section 425.13”) must make a sufficient prima facie
showing of facts to sustain a favorable decision if the evidence is credited. (Aquino v.
Superior Court (1993) 21 Cal.App.4th at p. 853; Looney v. Superior Court (1993) 16
Cal.App.4th 521, 538-539.) The trial court should not make any factual determination or
“become involved in any weighing process beyond that necessarily involved in
deciding whether a prima facie case for punitive damages exists.” (Looney at p. 539.)
In considering the opposing parties’ evidence and affidavits, the court’s “consideration
of the defendant's opposing affidavits does not permit a weighing of them against the
plaintiff's supporting evidence, but only a determination that they do or do not, as a
matter of law, defeat that evidence.” (Id., emphasis in the original.) Nevertheless, in
reviewing the declarations and supporting evidence, the trial court must be mindful
that the evidence and all inferences that can be drawn from it must meet the higher
“clear and convincing” standard. (Id.) “The court must also take care to distinguish
between evidentiary facts and argument or hyperbole presented by counsel.” (Aquino,
supra, at p. 856.) Thus, Plaintiffs must produce evidence sufficient to show, by a clear
and convincing amount, that it could make a prima facie case that defendants are
guilty of “oppression, fraud, or malice.”
Analysis:
The Chaudhry defendants provide no authority for the proposition that a motion
to amend under section 425.13 requires plaintiffs to “substantiate their claim for
damages” (i.e., present evidence of breach and causation) by way of expert testimony
in addition to presenting evidence of oppression, fraud or malice to support punitive
damages. They cited no case dealing with a section 425.13 motion which supports this
proposition. Instead, this motion requires plaintiffs to produce evidence that, if
accepted by the trier of fact, would establish a prima facie showing of “malice,
oppression or fraud,” bearing in mind the “clear and convincing” standard of proof
required at trial. (Looney v. Superior Court, supra, 16 Cal.App.4th at p. 539.) Plaintiff is
not required to show proof of breach and causation at this juncture.
Plaintiffs have provided sufficient evidence to establish a prima facie showing of
malice, oppression or fraud in order to sustain a favorable decision if the evidence is
credited by the jury, at least as to the Hospital defendants and the Chaudhry
defendants. However, the evidence is insufficient to establish such a showing as to
defendant Pamula, and plaintiffs’ arguments that they may be able to gather facts to
support such a showing at Dr. Pamula’s deposition are unpersuasive. They admit they
have not yet taken his deposition and the fact they have requested it “on multiple
occasions, but he has not yet been produced” is immaterial, since they could have
forced his attendance by court order, if necessary.
The evidence of the Hospital defendants’ corrective measures which predated
Ms. Maldonado’s surgery is opposing evidence which the court will not weigh, which
would be required in order to determine whether those measures were sufficient.
Furthermore, their reliance on Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034
for the proposition that even an incomplete peer review will defeat a claim for punitive
damages is misplaced. (Id. at p. 1048, including fn 14.) There, the court found that
punitive damages were not appropriate because the evidence at trial was insufficient
to show the Hospital had sufficient facts in front of it to know it needed to do further
investigation (i.e., beyond their negligent one) to prevent harm to its patients. (Id. at p.
1048—finding that the facts were “insufficient to impute knowledge to the Hospital that
renewal of [the doctor’s] staff privileges without further investigation would pose a very
probable risk of serious harm” (emphasis in the original).) Plaintiffs have presented
sufficient evidence on this motion to impute knowledge to the Hospital about Dr.
Chaudhry’s conduct which posed a risk of serious harm to its patients if not addressed,
which is sufficient to establish a prima facie claim of a willful and conscious disregard for
its patients, including Ms. Maldonado.
The Hospital defendants’ argument that Dr. Chaudhry’s various contracts with
the hospital do not tend to prove incentive to ignore his conduct, since they were set at
fair market value and were a small fraction of the contracts it had with other personnel,
does not establish that other personnel had the multiple roles at the hospital that Dr.
Chaudhry did, i.e., giving him the level of power which provided the economic
incentive in contrast to other personnel; this is the point of plaintiffs’ contention.
Defendants argue that plaintiffs have not established Dr. Chaudhry went beyond
the scope of consent because they did not provide evidence the tricuspid valve repair
was a “substantially different” surgery than the LVAD implantation. They maintain this is
required to establish that lack of consent to that procedure constituted a battery, citing
to and quoting Cobbs v. Grant (1972) 8 Cal.3d 229, 239. The court cannot agree. The
focus on the phrase “substantially different” is essentially focusing on a defense they
might be able to make to the charge of lack of consent; i.e., that the consent given to
the LVAD impliedly encompassed the tricuspid valve repair. The case law on the
subject of medical battery does not appear to make proving “substantial difference” a
part of a plaintiff’s prima facie showing where the doctor performs a procedure not
expressly consented to. California decisional law is clear that a surgeon who operates
without the patient’s consent commits a battery. (Id. at p. 240—“The battery theory
should be reserved for those circumstances when a doctor performs an operation to
which the patient has not consented.” See also Nelson v. Gaunt (1981) 125 Cal.App.3d
623, 634; Rainer v. Buena Community Memorial Hosp. (1971) 18 Cal.App.3d 240, 255—
finding this to be “well settled” in California; Valdez v. Percy (1939) 35 Cal.App.2d 485,
491—“It is firmly established as the law that where a person has been subjected to an
operation without his consent such an operation constitutes technical assault and
battery.”) Clearly, the LVAD implantation was one procedure, and the tricuspid valve
repair was another; Dr. Chaudhry took care to mention the latter as a separate
procedure in one of his notes. The consent form Ms. Maldonado signed did not give
consent for the tricuspid valve repair. That is sufficient to establish prima facie evidence
of a battery on this motion. The fact that there is also evidence that a note of Dr.
Chaudhry’s states he discussed the valve repair with Ms. Maldonado and obtained her
consent merely conflicts with the consent form evidence, which cannot be weighed on
this motion.
Plaintiffs provide admissible opinion evidence establishing that Ms. Maldonado
was abandoned post-operatively (see, e.g., Pietrafesa Decl., p. 10:1-10.) He opines that
based on his review of the records and in light of his education, training and
experience, the Hospital defendants were aware of this (p. 9:10-15) and failed to
provide proper oversight and failed to intervene to address the misconduct. He also
opines after his review of the evidence that Dr. Chaudhry omitted, underrepresented,
or misrepresented information regarding Ms. Maldonado’s surgical blood loss, which
adversely impacted her subsequent care. (Pietrafesa Decl., p. 9:24-26.)
Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure
section 1019.5(a), no further written order is necessary. The minute order adopting this
ruling will serve as the order of the court, and service by the clerk of the minute order
will constitute notice of the order.
Tentative Ruling
Issued By: JYH on 10/25/17
(Judge’s initials) (Date)
(30)
Tentative Ruling
Re: Maryerie Berrios v. Heather Renee Holding
Superior Court No. 17CECG00995
Hearing Date: Thursday October 26, 2017 (Dept. 402)
Motion: Defendants EAN Holdings, LLC and Enterprise Rent-A-Car
Company, LLC’s DEMURRER
Tentative Ruling:
To Overrule the Demurrer
Explanation:
Code of Civil Procedure section 430.10, subdivision (e) – Negligence
Negligence may be alleged in general terms; it is sufficient to allege an act was
negligently done without stating the particular omission which rendered it negligent.
(McMillan v. Western Pac. R.R. Co. (1960) 54 Cal.2d 841, 845; Brooks v. E.J. Willig Truck
Transp. Co. (1953) 40 Cal.2d 669, 680.) “[T]here is no requirement that [the plaintiff]
identify and allege the precise moment of the injury, or the exact nature of the
wrongful act.” (Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97.)
Defendants argue that the complaint fails to state a cause of action because it
is pled in general terms. Defendant cites to several cases including People ex. Rel.
Dep’t of Transp. v. Superior Court (1992) 5 Cal.App.4th 1480, 1484 to support the
proposition that more specificity is needed. (Memo, filed: 9/13/17 pp 2-3.) However,
specificity is not required when pleading negligence causes of action. All that is
required is that Plaintiff allege that Defendant was negligent, which Plaintiff has done.
(see FAC filed: 8/2/17.) Overruled.
Judicial Notice
A trial court must take judicial notice of facts and propositions of generalized
knowledge that are so universally known that they cannot reasonably be the subject of
dispute. (Evid. Code § 451 subd. (f).) A trial court may take notice of facts and
propositions that are of such common knowledge within its territorial jurisdiction that
they cannot reasonably be the subject of dispute. (Id. at § 452, subd. (g).) (Comings v.
State Bd. of Education (1972) 23 Cal.App.3d 94, 102 a request for judicial notice may be
defeated simply by showing a “reasonable” dispute exists, in which event the matter
must be resolved by the jury through the customary adversarial process.)
Defendants request This Court take judicial notice of two items: (1) that
Defendant Enterprise Rent-A-Car is in the business of renting vehicles; and (2) that
Defendant EAN Holdings is an affiliate of Defendant Enterprise Rent-A-Car. (RJN filed:
9/13/17.) Item one is common knowledge beyond any reasonable dispute. Item two is
not. Request is granted as to item one, but denied as to item two.
Code of Civil Procedure section 430.10, subdivision (e) – Graves Amendment
A general demurrer can be used where a plaintiff has included allegations that
clearly disclose some defense or bar to recovery (Cryolife, Inc. v. Sup.Ct. (Minvielle)
(2003) 110 Cal.App.4th 1145, 1152; Casterson v. Sup.Ct. (Cardoso) (2002) 101
Cal.App.4th 177, 183; Holiday Matinee, Inc. v. Rambus (2004) 118 Cal.App.4th 1413,
1421.) But, a demurrer can be used only to challenge defects that appear on the face
of the pleading under attack or from matters outside the pleading that are judicially
noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e.,
no “speaking demurrers”). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881—
error for court to consider facts asserted in memorandum supporting demurrer; Afuso v.
United States Fid. & Guar. Co., Inc. (1985) 169 Cal.App.3d 859, 862 [disapproved on
other grounds in Moradi-Shalal v. Fireman's Fund Ins. Cos. (1988) 46 Cal.3d 287.)
Defendants contend they are immune based upon the Graves Amendment (49
U.S.C. § 30106). This argument fails for two reasons: First, it depends upon this Court
judicially noticing both items one and two. Second, it requires this Court to consider
several facts outside of the pleadings. The Graves Amendment holds that rental car
companies cannot be held vicariously liable for the acts/omissions of its renters.
However, it is unclear from the pleadings whether Plaintiff is alleging vicarious liability or
liability based upon Defendants’ own negligence. Overruled.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: JYH on 10/25/17
(Judge’s initials) (Date)
Tentative Rulings for Department 403
Tentative Rulings for Department 501 (30)
Tentative Ruling
Re: Dustin Callison v. Corizon Health, Inc.
Superior Court No. 16CECG01663
Hearing Date: Thursday October 26, 2017 (Dept. 501)
Motion: Defendants’ Motion to Compel Plaintiff’s deposition
Tentative Ruling:
To Order Motion to Compel off calendar for failure to comply with Fresno Superior Court Rule
2.1.17.
Explanation:
Fresno Superior Court Rule 2.1.17
Fresno Superior Court Rule 2.1.17. states: “Except for motions to compel initial responses to
interrogatories, requests for production and requests for admissions, no motion under sections
2016.010 through 2036.050, inclusive, of the California Code of Civil Procedure shall be heard in
a civil unlimited case unless the moving party has first requested an informal Pretrial Discovery
Conference with the Court and such request for a Conference has either been denied and
permission to file the motion is expressly granted via court order or the discovery dispute has
not been resolved as a consequence of such a conference and permission to file the motion
is expressly granted after the conference.”
Here, Defendants’ motion to compel is filed pursuant to Code of Civil Procedure section
2025.450. (Notice filed: 9/18/17, p21 ln 25.) This sections is controlled by Local Rule 2.1.17, but
there is no evidence that Defendants made a request for a pretrial discovery conference.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: MWS on 10/25/17
(Judge’s initials) (Date)
(20) Tentative Ruling
Re: Johnson et al. v. Luster et al., Superior Court Case No.
17CECG00784
Hearing Date: October 26, 2017 (Dept. 501)
Motion: Defendant Claude Luster III’s Demurrer and Motion to Strike
Complaint
Tentative Ruling:
To grant the motion to strike. (Code Civ. Proc. § 436(b).) To take the demurrer
off calendar as moot in light of the motion to strike. If plaintiffs choose to attempt to
amend the complaint, the amended pleading shall be filed within 10 days of service of
the order by the clerk. All new allegations shall be placed in boldface type, and any
deletions denoted by strikethrough.
Explanation:
The court may “[s]trike out all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ.
Proc. § 436(b).)
Defendant Luster demurs to and moves to strike the Complaint on the ground
that plaintiffs failed to comply with Code of Civil Procedure section 425.15 prior to filing
the Complaint.
Plaintiffs are “Concerned Members of The Second Baptist Church” and sue
multiple “Administrative Officers” of the Church. (Complaint ¶ 4.2.)
Section 425.15(a) provides:
No cause of action against a person serving without compensation as a
director or officer of a nonprofit corporation described in this section, on
account of any negligent act or omission by that person within the scope
of that person's duties as a director acting in the capacity of a board
member, or as an officer acting in the capacity of, and within the scope
of the duties of, an officer, shall be included in a complaint or other
pleading unless the court enters an order allowing the pleading that
includes that claim to be filed after the court determines that the party
seeking to file the pleading has established evidence that substantiates
the claim. The court may allow the filing of a pleading that includes that
claim following the filing of a verified petition therefor accompanied by
the proposed pleading and supporting affidavits stating the facts upon
which the liability is based. The court shall order service of the petition
upon the party against whom the action is proposed to be filed and
permit that party to submit opposing affidavits prior to making its
determination. The filing of the petition, proposed pleading, and
accompanying affidavits shall toll the running of any applicable statute of
limitations until the final determination of the matter, which ruling, if
favorable to the petitioning party, shall permit the proposed pleading to
be filed.
Luster points out that plaintiffs did not seek or obtain the court order required
under section 425.15 before filing the Complaint. Plaintiffs dispute the applicability of
section 425.15.
According to the Complaint, the defendants are current or past members of the
administrative leadership of the Second Baptist Church of Fresno. (Complaint ¶ 1.2.)
The Complaint also alleges that defendants are “Administrative Officers” of the Church.
(Complaint ¶ 4.2.) Accordingly, that defendants fall under the category of persons
covered by section 425.15 – “director or officer”. Plaintiffs do not dispute this point.
The next question is whether the Second Baptist Church is a “nonprofit
corporation described in this section …” Section 425.15, subdivision (e)(1) provides that
the statute applies to officers and directors that are subject to “Part 4 (commencing
with section 9110) of the Corporations Code,” which deals with nonprofit religious
corporations. The Complaint alleges that “The Church is also regulated as a Religious
Non-Profit Corporation, under the laws of the State of California. (Complaint ¶ 1.1.) The
Church is clearly a “nonprofit corporation described in this section …”
The main question is whether the claims and allegations bring the Complaint
within the scope of section 425.15. Initially, the court notes that plaintiffs improperly cite
to and rely on an unpublished opinion in violation of Cal. Rules of Court, Rule 8.1115.
The court will not discuss the case.
There does not appear to be any relevant published caselaw. On this issue, the
relevant language of section 425.15 is “No cause of action … on account of any
negligent act or omission … shall be included in a complaint … unless …” The
Complaint does not assert a cause of action for negligence, but the language of the
statute is broad enough to encompass causes of action with other labels, so long as the
cause of action is premised at least in part on negligent acts or omissions.
The sole cause of action is for an accounting, but in addition to alleging that
defendants breached their fiduciary duty to the Church, plaintiffs “ask the Court to
have the expenses defrayed by the Defendants if any are found to have been
negligent or have used the missing and unaccounted for funds for their own purposes.”
(Complaint ¶ 3.4, emphasis added.) Plaintiffs seek not just an accounting, but to
compel defendants to pay over the “the amounts found to be due” as a result of the
irregularities (Complaint, Prayer 2), which plaintiffs allege were the result of negligence.
Accordingly, the court concludes that the Complaint does include a cause of action
that based on alleged negligent acts or omissions.
As plaintiffs did not comply with section 425.15, the Complaint will be stricken.
Plaintiffs have the option of either filing a petition pursuant to section 425.15, or attempt
to amend the Complaint to take it outside the scope of the statute.
Pursuant to Cal. Rules of Court, Rule 3.1312(a) and Code Civ. Proc. § 1019.5(a),
no further written order is necessary. The minute order adopting this tentative ruling will
serve as the order of the court and service by the clerk will constitute notice of the
order.
Tentative Ruling
Issued By: MWS on 10/25/17
(Judge’s initials) (Date)
(5)
Tentative Ruling
Re: Wally Ali v. Old Navy, Inc.
Superior Court Case No. 16 CECG 01573
Hearing Date: October 26, 2017 (Dept. 501)
Motion: Summary Judgment or in the alternative, summary
Adjudication by Defendant
Tentative Ruling:
To grant the motion for summary judgment. The Defendant has met its burden of
proof pursuant to CCP § 437c(p)(2). The Declaration of Ryan Eddings and the exhibits
attached thereto establish that the Plaintiff has admitted that the Complaint has no
merit and the elements of the causes of action cannot be established. No opposition
was filed.
The prevailing party is directed to submit to this court, within 5 days of service of
the minute order, a proposed judgment consistent with the court's summary judgment
order.
Explanation:
The underlying facts are not well pleaded. Plaintiff is self-represented. He alleges
that he attempted to garnish the wages of one of the Defendant’s employees in New
Mexico but was “given the run around.” As a result, he filed a complaint on May 17,
2016 alleging negligence, breach of the covenant of good faith and fair dealing, and
a violation of Bus. & Prof. Code § 17200 et seq. Defendant filed an Answer.
On July 13, 2016, Defendant by and through its counsel of record propounded
and served Requests for Admission Set One upon the Plaintiff. No responses were
received. See Exhibit B attached to the Declaration of Eddings consisting of the RFAs
served.
On September 21, 2016 Defendant filed and served a motion seeking an order
that the genuineness of any documents and the truth of any matter specified in the
requests be deemed admitted pursuant to CCP § 2033.280(b). See Exhibit C attached
to the Declaration of Eddings in support of the motion for summary judgment. No
opposition was filed. Accordingly, the motion seeking an order deeming the truth of
matters specified in Requests for Admissions (Set One) deemed established was
granted pursuant to CCP § 2033.280(b). See Exhibits D and E attached to the
Declaration of Eddings.
On June 28, 2017, the Defendant filed a motion for summary judgment or in the
alternative, summary adjudication. No opposition was filed.
Admissions in response to RFAs are treated in effect as stipulations to the
truthfulness of the matters admitted. Therefore, no other evidence is necessary to
establish the point at trial and no contrary evidence is admissible unless leave of court is
obtained to withdraw or amend the response. [CCP §§ 2033.300-2033.410; see Murillo v.
Sup.Ct. (People) (2006) 143 Cal.App.4th 730 at 736; Scalf v. D.B. Log Homes, Inc. (2005)
128 Cal.App.4th 1510, 1522; People v. $2,709 United States Currency (2014) 231
Cal.App.4th 1278, 1286]
In the case at bench, RFA admissions bind the admitting party on a summary
judgment motion. [CCP § 2033.410] Therefore, the moving party has met its burden of
proof pursuant to CCP § 437c(p)(2). No opposition was filed and as a result, the Plaintiff
has not met his burden of proof pursuant to CCP § 437c(p)(2). Therefore, the motion
will be granted.
Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure
section 1019.5, subd. (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: MWS on 10/25/17
(Judge’s initials) (Date)
(17) Tentative Ruling
Re: Wasatch Pool Holdings, LLC v. Nichols
Court Case No. 17 CECL 04502
Hearing Date: October 26, 2017 (Dept. 501)
Motion: Plaintiff’s motion for Attorney’s Fees
Tentative Ruling:
To grant in the amount of $2,500.
Explanation:
"Except as attorney's fees are specifically provided for by statute, the measure
and mode of compensation of attorneys and counselors at law is left to the
agreement, express or implied, of the parties . . ..” (Code Civ. Proc., § 1021.) Here there
was one claim unlawful detainer arising from breach of the lease, based on one
contract: the lease. It provides as follows:
In the event either Owner or Resident shall institute any action or
proceeding against the other relating to the occupancy of the premises,
construing the provisions of this Agreement or because of any default
hereunder, then the prevailing party shall be entitled to the payment of
reasonable costs, expenses and attorney's fees, which shall be deemed to
have accrued on the commencement of such action or proceeding, and
shall be enforceable whether or not such action is prosecuted to
judgment. Attorney's fees will not exceed $2,500.00 unless otherwise
provided by law.
Code of Civil Procedure section 1033.5 provides, in subdivision (a)(10), that attorney
fees are "allowable as costs under Section 1032" when they are "authorized by" either
"Contract," "Statute," or "Law."
Civil Code section 1717 provides, in relevant part:
In any action on a contract, where the contract specifically provides that
attorney's fees and costs, which are incurred to enforce that contract,
shall be awarded either to one of the parties or to the prevailing party,
then the party who is determined to be the party prevailing on the
contract, whether he or she is the party specified in the contract or not,
shall be entitled to reasonable attorney's fees in addition to other costs.
(Civ. Code § 1717, subd. (a).)
“[T]he party prevailing on the contract shall be the party who recovered a
greater relief in the action on the contract. The court may also determine that there is
no party prevailing on the contract for purposes of this section.” (Civ. Code, § 1717,
subd. (b).) Where the judgment is a “simple, unqualified win” on the only contract
claim, a trial court has no discretion to deny an attorney fee award to that prevailing
party under Civil Code section 1717. Thus, a party “whose litigation success is not fairly
disputable” can claim attorney fees as a matter of right. (Hsu v. Abbara (1995) 9 Cal.4th
863, 876 (Hsu).) Here, Wasatch recovers its attorney’s fees as a matter of right because
it was awarded possession of the leased premises and money damages, and Ms.
Nichols recovered nothing.
The Lease caps attorney’s fees at $2,500 “unless otherwise provided by law.”
Wasatch contends that the equitable doctrine of waiver applies to the attorney fee
cap. It cites no law directly on point and the court could find no case waiving an
attorney’s fee cap based on bad faith litigation conduct by a party litigant. Instead,
Wasatch cites and analogizes to cases where courts have found waivers of arbitration
clauses. These cases are distinguishable, and even if they were not, there are no facts
upon which to imply a waiver.
Wasatch cites Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951,
for the proposition that a party's ability to claim a contractual right or benefit can be
waived by that party's bad faith or unreasonable conduct that touches on the exercise
of that contractual right or benefit. (Id. at pp. 982-984.) In Engalla, the high court cited
Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, for the general proposition that
“[g]enerally, 'waiver' denotes the voluntary relinquishment of a known right. But it can
also mean the loss of an opportunity or a right as a result of a party's failure to perform
an act it is required to perform, regardless of the party's intent to ... relinquish the right.”
(Id. at p. 315.) Here, it cannot be said that Ms. Nichols’ ordinary litigation of her unlawful
detainer action was the “voluntary relinquishment” of the known right of the attorney’s
fees cap. Moreover, the Supreme Court observed that “varied meanings of the term
‘waiver’ are reflected in the case law on the enforcement of arbitration agreements.”
(Engalla, supra, 15 Cal.4th at p. 983.) Here, unlike arbitration clauses in Engalla, there is
no case law on waiver of caps on attorney’s fees.
To the contrary, there is one Appellate panel decision 511 S. Park View Inc. v.
Tsantis (2015) 240 Cal.App.4th Supp. 44 (Tsantis), which uphold a cap on attorney’s fees
in the unlawful detainer context. In Tsantis, the lease between the parties provided a
cap on attorney’s fees of $750. After a bench trial, the trial court awarded attorney’s
fees in the amount of $12,375 on defendant’s motion as the prevailing party under Civil
Code section 1717, arguing the provision for reasonable attorney’s fees could not be
reconciled with the cap on fees. The appellate reversed, explaining:
Here, there is but one interpretation based on the plain meaning of the
terms. The attorney fees provision imposes two conditions on the recovery
of fees—they must be reasonable and must be no more than $750. The
measure and mode of compensation of attorneys are left to the
agreement of the parties (Code Civ. Proc., § 1021; see Reynolds Metals
Co. v. Alperson (1979) 25 Cal.3d 124, 130, 158 Ca1.Rptr. 1, 599 P.2d 83
[holding trial court was bound by provision of two promissory notes limiting
award of fees]), and here the parties expressly agreed that in an action to
enforce the lease agreement, the prevailing party would be entitled to no
more than $750 in attorney fees.
(Tsantis, supra, 240 Ca1.App.4th Supp. at p. 48.)
Even assuming the doctrine of waiver applies to attorney’s fee caps, there are
no facts in the instant case that would support the application of that doctrine.
Although “'bad faith' or 'willful misconduct' of a party may constitute a waiver and thus
justify a refusal to compel arbitration” “a waiver of arbitration is not to be lightly
inferred” and “[w]hether there has been a waiver of a right to arbitrate is ordinarily a
question of fact.” (Ibid.) Wasatch contends that given Ms. Nichols’ answer, it was bad
faith frivolous conduct to have requested a jury trial and served discovery, which
merely served to run up Wasatch’s attorney’s fee in what should have been a routine
case.
However review of Ms. Nichols’ answer reveals she did not admit that that only
issue to be tried was the legal issue of the effect of a credit card charge back – she
disputed there was a genuine or legitimate chargeback at all. Thus, there were factual
issues to be tried at least at the time of her answer. (See also Declaration of Ms.
Nichol’s counsel, Ryan Bowler ¶ 9 “Only on the morning of trial was Defendant informed
that the credit card payments in question were completely and finally “charged
back.”)
As for the jury demand, Ms. Nichols’ counsel admits it was not proper, but directs
Wasatch’s counsel to section XVII of the Lease wherein the parties waive their rights to a
jury. (Bowler Decl. at ¶ 13.) Thus, Wasatch unreasonably incurred the costs of
preparation for a jury trial, because Wasatch could have stricken the request for a jury
trial based this provision of the contract. Accordingly, the demand for a jury did not
require the preparation of jury instructions, trial briefs, a neutral statement of the case, a
general verdict form, judgment forms, a voir dire outline, a witness list and an exhibit list.
Moreover, Wasatch’s counsel had far exceeded the cap on attorney’s fees prior to
incurring the fees for jury trial preparation. (Bowler Decl. ¶¶ 14-16.)
As for the first $2,500 in Wasatch’s counsel’s fees, the court finds they were
reasonably incurred.
Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: MWS on 10/25/17
(Judge’s initials) (Date)
Tentative Rulings for Department 502 03
Tentative Ruling
Re: Moreno v. Allstate Insurance Co.
Case No. 16 CE CG 02598
Hearing Date: October 26th, 2017 (Dept. 502)
Motion: Defendant Allstate’s Demurrer to Complaint and Motion to
Strike Punitive Damages Claim
Tentative Ruling:
To sustain Allstate’s demurrer to the entire complaint, with leave to amend, for
uncertainty and failure to state facts sufficient to constitute a cause of action. (Code
Civ. Proc. § 430.10, subd. (e), (f).) To grant the motion to strike punitive damages,
without leave to amend. (Code Civ. Proc. § 435, 436.) Plaintiff shall serve and file his
first amended complaint within 10 days of the date of service of this order. All new
allegations shall be in boldface.
Explanation:
Demurrer: Plaintiff attempts to state claims for premises liability and general
negligence against all of the defendants, including Allstate. Plaintiff alleges that “A
tree had fallen down on the fence at my mother’s residence at 2676 S. Eleventh Street,
Fresno CA 93725, when I went to remove the tree from the fence it fell and broke my
arm.” (Complaint, p. 4, Prem. L-1.) He alleges that the Fidela Moreno Irrevocable Living
Trust and Steve Chavez, the trustee for the Trust, negligently owned, maintained,
managed and operated the premises. (Id. at Prem. L-2.) However, plaintiff alleges no
facts to support his claim as to Allstate, which he admits is an insurance company. He
never alleges that Allstate had any duty as a landowner, possessor, or controller of the
premises.
Generally, in order to state a claim for premises liability, the plaintiff must allege
that the defendant owned, possessed, or controlled the premises on which the
dangerous condition existed. (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.) “In most
instances, where there is no control over the premises, there is no duty to exercise
reasonable care to prevent injury. Generally, ‘a landowner has no right to control and
manage premises owned by another.’” (Annocki v. Peterson Enterprises, LLC (2014) 232
Cal.App.4th 32, 37, internal citations omitted.)
Here, plaintiff only alleges that the Fidela Moreno Irrevocable Living Trust and
Steve Chavez, the trustee, were the defendants who negligently owned, maintained,
managed and operated the premises where the dangerous condition existed.
(Complaint, p. 4, Prem. L-2.) Plaintiff alleges no facts at all that would indicate that
Allstate had any duty to warn of or remove the dangerous condition caused by the
fallen tree. He does allege that “Defendants, and all of them failed to take care of the
fallen tree causing plaintiff’s damage.” (Id. at Prem. L-5 b.) He also alleges that
Allstate, Chavez, and the Trust were all agents and employees of each other. (Id. at
Prem. L-5 a.) However, he never alleges any facts that would tend to show that Allstate
was the type of agent or employee of Chavez or the Trust that would have had a duty
to remove or warn of the fallen tree. The mere conclusory allegation that Allstate was
an employee or agent of Chavez and the Trust, without more, does not support
imposing premises liability against Allstate, especially where plaintiff has not alleged
that Allstate owned, possessed, managed, or controlled the property and thus might
have had a duty to maintain the property in a reasonable safe condition.
Therefore, the court intends to sustain the demurrer to the first cause of action for
premises liability against Allstate, for uncertainty and failure to state facts sufficient to
state a cause of action. The court does, however, intend to grant leave to amend, as it
is possible that plaintiff might be able to allege more facts to support imposing liability
against Allstate.1
Likewise, the second cause of action for general negligence also fails to state a
claim against Allstate. The general negligence claim appears to be duplicative of the
premises liability claim, as it again alleges that Chavez and the Trust failed to properly
take care of the property, and that, when a tree fell onto a fence on the property and
plaintiff tried to remove it, he was injured after the tree fell on him and broke his arm.
(Complaint, p. 5, GN-1.) He also alleges that “Defendans [sic] and all of them failed to
remove a tree that had fallen on the fence in the back yard of the residence of Fidela
Moreno.” (Ibid.)
However, plaintiff never alleges any facts that would tend to show that Allstate
had a duty to maintain the property in a reasonably safe condition. Again, plaintiff
never alleges that Allstate owned, controlled, managed or possessed the property at
the time of the incident, or that it was responsible for keeping the property in a safe
condition. While he claims that “defendants” failed to remove the tree from the
property, he does not allege any facts showing that Allstate had a duty to remove the
tree or otherwise maintain the property in a safe condition. Given the lack of
allegations showing that Allstate had any ownership, control, or possession of the
property, there is nothing in the complaint to support imposing a duty to maintain the
property in a reasonably safe condition. Therefore, the court intends to sustain the
demurrer to the second cause of action as to Allstate, with leave to amend.
Motion to Strike: Plaintiff seeks $100,000 in punitive damages. However, other
than checking the box in the complaint for punitive damages, he has not alleged any
facts showing that defendants acted with malice, fraud, or oppression when they failed
to “take care” of the tree that fell on the property. (Civil Code § 3294.) It is not enough
that plaintiff allege facts showing that defendants acted negligently, or even with gross
1 Allstate also contends that it did not issue an insurance policy for the property, and that, even if
it did, plaintiff cannot state a claim against it for simply issuing a policy covering the property
because he was not the policy holder. However, these facts are not evident from the face of
the complaint, and thus the court will not consider them on demurrer.
negligence, order to recover punitive damages. (Johns-Manville Sales Corp. v.
Workers’ Comp. Appeals Bd. (1979) 96 Cal. App. 3d 923, 931.) “[P]unitive damages
require both an intent to act and malice. The malice in Civil Code section 3294 is
defined as intent to vex, injure, or annoy, or as criminal indifference toward an
obligation owed another. Mere negligence or recklessness will not suffice.” (Ibid,
internal citations omitted.)
Here, plaintiff alleges no facts at all that would show that Allstate acted with
malice, fraud or oppression toward plaintiff, or even that Allstate was negligent.
Indeed, plaintiff alleges no specific wrongful conduct with regard to Allstate, other than
a general allegation that it failed to “take care” of the property and remove the tree,
despite the fact that it is never alleged to be an owner, possessor, or controller of the
property. Even assuming that Allstate did have a duty to maintain the property in a
safe condition and that it breached this duty, which is never actually alleged in the
complaint, such facts would show, at the most, negligence by Allstate. There are no
facts to support a finding that Allstate acted with malice, oppression, or fraud in failing
to maintain the property in a safe condition. Nor has plaintiff filed opposition or made
any attempt to explain how he could truthfully allege that Allstate acted with malice,
fraud or oppression. Therefore, the court intends to grant the motion to strike the
punitive damages claim, without leave to amend.
Pursuant to CRC 3.1312 and CCP §1019.5(a), no further written order is necessary.
The minute order adopting this tentative ruling will serve as the order of the court and
service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: ________RTM______ on 10/24/17
(Judge’s Initials) (Date)
(28) Tentative Ruling
Re: Chuor v. McMillin Rustic Oaks, LLC
Case No. 17CECG00678
Hearing Date: October 26, 2017 (Dept. 502)
Motion: Motion by Proposed party in intervention Financial Pacific
Insurance Company on behalf of Royce Nalls & Sons Masonry, Inc.,
for leave to file a complaint in intervention.
Tentative Ruling:
To continue the motion to November 16, 2017 at 3:30 p.m. in Department 502.
Proposed intervenor shall file evidence of coverage and that the covered entity is a
suspended corporation on or before November 8, 2017. Any objection to this evidence
should be filed with the Court on or before November 14, 2017.
Explanation:
[Note- as of October 24, 2017, no opposition, reply brief or objection appears in the
Court’s files.]
California Code of Civil Procedure §387, subdivision (a) states, in pertinent part:
Upon timely application, any person, who has an interest in the matter in
litigation, or in the success of either of the parties, or an interest against
both, may intervene in the action or proceeding. An intervention takes
place when a third person is permitted to become a party to an action or
proceeding between other persons, either by joining the plaintiff in
claiming what is sought by the complaint, or by uniting with the
defendant in resisting the claims of the plaintiff, or by demanding
anything adversely to both the plaintiff and the defendant, and is made
by complaint, setting forth the grounds upon which the intervention rests,
filed by leave of the court and served upon the parties to the action or
proceeding who have not appeared in the same manner as upon the
commencement of an original action, and upon the attorneys of the
parties who have appeared, or upon the party if he has appeared
without an attorney.
It appears that the proposed party-in-intervention may have a right to intervene
in this matter. (Code of Civ.Proc. §387, subd.(b).) Financial Pacific Insurance Company
(“FPIC”) has asserted that it is the insurer for cross-complainant Royce Nalls & Sons
Masonry, Inc. pursuant to a commercial general liability policy and that Royce Nalls is a
suspended corporation. If this is the case, then FPIC has an interest in the transaction
and is so situated that any judgment rendered in its absence “may as a practical
matter impair or impede that person’s ability to protect that interest.” (Id.)
Furthermore, even if intervention of right were not available, the proposed
intervenor could participate under permissive intervention. (Kuperstein v. Superior Court
(1988) 204 Cal.App.3d 598, 600.) The proposed intervenor appears to be able to show
that it has a direct interest in the litigation, that participating will not substantially
enlarge the issues, and that intervention will not tread on the rights of other parties. (Id.)
In the proposed Complaint in Intervention, FPIC has alleged the policy number
and policy that would give rise to coverage. However, nowhere in the papers does
FPIC provide copy of the insurance policy that would cover Royce Nalls & Sons nor is
there any evidence before the court that Royce Nalls & Sons is a suspended
corporation. As a result, the proposed intervenor has not borne its burden on this motion
to show that it is entitled to the intervention requested.
Therefore, the Court will continue the hearing three weeks, to 3:30 p.m. on
November 16, 2017 in Department 502. Proposed intervenor shall submit on or before
November 8, 2017, evidence of both coverage and the suspension of the covered
corporation.
Pursuant to California Rules of Court, rule 3.1312, subdivision (a), and Code of
Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The
minute order adopting this tentative ruling will serve as the order of the court and
service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: ________RTM______ on 10/24/17
(Judge’s Initials) (Date)
(5)
Tentative Ruling
Re: Michael Roberts Trust v. Max Melchor dba No Limit
Fitness
Superior Court Case No. 17 CECG 01598
Hearing Date: October 26, 2017 (Dept. 502)
Application: Default Judgment
Tentative Ruling:
To deny without prejudice as stated infra.
Explanation:
Background
Plaintiff owns real property located at 5322 W. Spruce Avenue, #102 in Fresno,
CA. On or about February 1, 2017, Plaintiff and Defendant entered into a lease of the
property in order for the Defendant to operate a gym/fitness center. The monthly rent
was $2968.50 for a four year term.
On May 9, 2017, Plaintiff filed a complaint alleging breach of contract and a
common count based upon an account in writing. The amount owed is alleged to be
$136,955.86 plus $404.96 in unpaid utilities. Plaintiff alleges that Defendant breached
the contract on April 1, 2017 by “abandoning the premises and failure to make monthly
lease payments and utilities owing pursuant to the lease.” See Complaint at ¶ BC.2.
The Complaint was served via substituted service on the manager of a gym
located at 4368 Brawley, #102, Fresno CA on June 7, 2017. The summons, complaint,
etc. were mailed the same day. On August 3, 2017, Plaintiff filed an application seeking
the entry of default and a clerk’s judgment. In addition, the Declaration of Pinion in
support of the request, a request for the dismissal of the Doe Defendants and a
proposed judgment were filed.
Ultimately, the request for a court judgment was denied. But, the default of the
Defendant was entered on August 3, 2017. Thereafter, Plaintiff calendared a hearing
for a default judgment by the court.
Merits
The Plaintiff failed to re-file the application seeking a default judgment from the
court. See CRC 3.1800(a). This is a mandatory Judicial Council Form and thus, it must
be filled out properly. [Holloway v Quetel (2015) 242 Cal.App.4th 1425, 1432; Simke,
Chodos, Silberfeld & Anteau, Inc. v Athans (2011) 195 Cal.App.4th 1275, 1287] The form
requesting a clerk’s judgment cannot be substituted.
Second, the common count for account stated appears invalid. A common
count on an “account stated” must be based on a separate agreement and not an
express written contract. See Martini E Ricci Iamino S.P.A.--Consortile Societa Agricola
v. Western Fresh Marketing Services, Inc. (E.D. Cal. 2014) 54 F.Supp.3d 1094, 1108 citing
inter alia Gleason v. Klamer (1980) 103 Cal.App.3d 782.
In addition, Plaintiff failed to file the necessary documents in support of the
default judgment as required by CRC Rule 3.1800. Finally, Plaintiff failed to comply with
Local Rule 2.1.14 regarding the submission of the default packet at least 10 days before
the scheduled hearing date. Accordingly, the application will be denied without
prejudice.
Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure
section 1019.5, subd. (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: ________RTM______ on 10/24/17
(Judge’s Initials) (Date)
Tentative Rulings for Department 503 03
Tentative Ruling
Re: BMO Harris Bank, N.A. v. Aulakh
Case No. 17 CE CG 01720
Hearing Date: October 26th, 2017 (Dept. 503)
Motion: Plaintiff’s Motion for Summary Judgment
Tentative Ruling:
To deny plaintiff’s motion for summary judgment. (Code Civ. Proc. § 437c.)
Explanation:
While plaintiff has met its burden of presenting evidence to support its claim for
breach of contract, including the existence of the contract, plaintiff’s performance,
defendant’s breach of the agreement, and resulting damages (Acoustics, Inc. v. Trepte
Construction Co. (1971) 14 Cal.App.3d 887, 913), it has not presented any evidence at
all to support its second cause of action for replevin. In fact, the notice of motion and
supporting points and authorities do not even mention the replevin cause of action,
and the separate statement does not point to any facts related to that claim. Plaintiff’s
notice of motion only seeks summary judgment of the entire complaint, not summary
adjudication of the individual causes of action.
Thus, even though plaintiff has submitted evidence that might entitle it to
summary adjudication of the breach of contract claim, it cannot obtain adjudication
of this cause of action alone. (See Gonzales v. Superior Court (1987) 189 Cal.App.3d
1542, 1545; Maryland Casualty Co. v. Reader (1990) 221 Cal.App.3d 961, 974, fn. 4: no
summary adjudication of individual causes of action where notice of motion only seeks
summary judgment.) Nor can plaintiff obtain summary judgment of the entire
complaint without presenting evidence, authorities, and argument regarding the
replevin claim.
Also, plaintiff has not dismissed the replevin cause of action, or indicated that it is
electing to pursue only the breach of contract claim. Given that replevin is an
alternative remedy that would result in a mitigation of plaintiff’s damages, plaintiff must
elect to pursue either the breach of contract or the replevin claim, but not both.
Indeed, plaintiff never states whether it has attempted to repossess the truck, and if it
was able to do so, whether it sold the truck at auction and thus reduced the total
amount owed on the loan. Obviously, repossession and sale of the truck would affect
the total damages that can ultimately be imposed on defendant, yet plaintiff never
addresses this issue in its motion. Therefore, the court intends to deny the motion for
summary judgment.
Pursuant to CRC 3.1312 and CCP §1019.5(a), no further written order is necessary.
The minute order adopting this tentative ruling will serve as the order of the court and
service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: __ A.M. Simpson__ on 10/19/17
(Judge’s Initials) (Date)
(28) Tentative Ruling
Re: Sucilla v. Puentes
Case No. 17CECG02408
Hearing Date: October 26, 2017 (Dept. 503)
Motion: By Defendant Francisco Puentes Demurrer and Motion to Strike
Request for Attorney’s Fees and Improper Matter from Complaint.
Tentative Ruling:
To overrule the demurrer and deny the motion to strike as moot.
Explanation:
On September 5, 2017, Defendant filed a demurrer and a motion to strike
portions of Plaintiff’s initial complaint. On October 13, 2017, Plaintiff filed a First
Amended Complaint.
Because an amended pleading supersedes the previous pleadings, the
demurrer must be overruled and the motion to strike must be denied on the grounds
that they are moot. (See, e.g., JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477 (when
plaintiff files an amended complaint after a demurrer is filed, but before it is decided,
the demurrer must be overruled as moot). Therefore, the demurrer is overruled and the
motion to strike is denied.
Pursuant to California Rules of Court, rule 3.1312, subdivision (a), and Code of
Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The
minute order adopting this tentative ruling will serve as the order of the court and
service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: __ A.M. Simpson__ on 10/24/17
(Judge’s Initials) (Date)
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