Tentative Rulings for June 20, 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).)
14CECG02353 Acosta v. Ayala Inc. et al. (Dept. 501)
The court has continued the following cases. The deadlines for opposition and reply
papers will remain the same as for the original hearing date.
14CECG01472 Gill v. Fresno Community Regional Medical Center is continued to
Thursday, June 22, 2017, at 3:30 p.m. in Dept. 402.
13CECG03350 Old Republic General Insurance Corp. v. Financial Pacific
Insurance Co., et al. is continued to Tuesday, June 27, 2017, at 3:30
p.m. in Dept. 503
________________________________________________________________
(Tentative Rulings begin at the next page)
Tentative Rulings for Department 403
(28) Tentative Ruling
Re: Colorado Boat Broker, Inc. v. Brendel
Case No. 15CECG02252
Hearing Date: June 20, 2017 (Dept. 403)
Motion: Motion to Compel Verified Amended Responses to Form
Interrogatories, Special Interrogatories, and Responses to the
Requests for Production, to Compel the Production of Documents.
Tentative Ruling:
To take the motion off calendar.
NOTE – IF ORAL ARGUMENT IS REQUESTED, IT WILL BE HEARD ON THURSDAY, JUNE
22ND, 2017 AT 3:00 P.M. IN DEPARTMENT 403.
Explanation:
On March 1, 2017, Plaintiff filed a motion to compel further responses to the
discovery served on Defendant. According to the moving papers, Defendant, although
serving timely responses, served responses that were comprised only of objections. The
opposition filed noted that Plaintiff had not complied with Local Rule 2.1.17 requiring a
request for a pretrial discovery conference.
On April 12, 2017, Plaintiff filed a “Notice of Continuance” of the motion to
compel to June 20, 2017.
On that same date, Plaintiff filed a request for pre-trial discovery. No opposition
was filed. Therefore, on May 5, 2017, this Court issued an order on the request, ordering
Defendant to “supply verified responses to the form interrogatories, special
interrogatories and document requests without objections within 15 days of this order.
Should defendant fail to do so, plaintiff may file a motion to compel and for sanctions.”
This was sent by mail to the parties on May 5, 2017. To date, neither party has
filed any paperwork indicating whether Defendant complied with the order or sought
to file a motion to compel compliance with this Court’s May 5, 2017 order. Therefore,
absent such information from the parties, the Court takes the matter off calendar.
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: KCK on 06/19/17
(Judge’s initials) (Date)
(5)
Tentative Ruling
Re: Hernandez v. Diaz
Superior Court Case No: 14 CECG 02272
consolidated with 14 CECG 02289
Hearing Date: June 20, 2017 (Dept. 403)
Petitions: (1) Approval of Compromise of Claim of Minor Frances
Ortiz;
(2) Approval of Compromise of Claim of Minor Isaac
Ortiz, Jr.; and
(3) Approval of Compromise of Claim of Minor Maria
Guadalupe Ortiz
Tentative Ruling:
To deny each Petition without prejudice.
If oral argument is requested, it will be heard on Thursday, June 22, 2017 in Dept.
403 at 3:00 p.m.
Explanation:
First, the case caption is incorrect on each Petition. Case No. 14 CECG 02289
Ortiz v. Diaz was consolidated with Case No. 14 CECG 02272 Hernandez v. Diaz on
February 19, 2016. The latter case is the lead case. Also, the case number is incorrect
on the Petition of Frances Ortiz.
Second, David Hernandez and Jocelyn Hernandez were not listed in Item 6 of
the Petitions of Isaac Ortiz and Maria Guadalupe Ortiz as passengers in the vehicle
driven by Christine Ledesma.
Third, Item 9c. on the Petition of Frances Ortiz states that it is unknown whether
her limp is permanent or temporary. There must be a recent letter or note from her
doctor regarding her prognosis. In addition, Item 9 must be filled out in some manner
for Isaac Ortiz, Jr. and Maria Guadalupe Ortiz.
Fourth, the “litigation expenses” for each Petitioner must be identified.
Fifth, Martin Taleisnik is identified as the attorney for Frances Ortiz and Isaac Ortiz,
Jr. But, he did not submit a Declaration in support of the amount of attorney’s fees
requested. The Declaration of Burchfield cannot substitute in this manner and thus, is
insufficient. Also, Burchfield is listed as the attorney for Maria Guadalupe Ortiz but the
bar number is that of Taleisnik. This needs to be corrected and a declaration from the
attorney who handled her case must be submitted in support of the amount of
attorney’s fees sought.
Sixth, each Petition lists settlement amounts for the other Plaintiffs that are slightly
different from each other and do not match up with the breakdown set forth in
Attachment 12. These amounts should be the same on each Petition. Therefore, each
Petition 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: KCK on 06/19/17
(Judge’s initials) (Date)
Tentative Rulings for Department 501 (6)
Tentative Ruling
Re: CACH, LLC v. Aboelreich
Superior Court Case No.: 15CECG01483
Hearing Date: June 20, 2017 (Dept. 501)
Motions: (1) Default prove up;
(2) Court’s statutory dismissal hearing
Tentative Ruling:
Plaintiff CACH, LLC, must bring the items noted below to the hearing to prove-up
the default judgment; otherwise, the Court will dismiss the case, without prejudice, at
the hearing.
Explanation:
Plaintiff must prove-up the default either by bringing to the hearing, a
declaration of someone with personal knowledge of how the original creditor, Bank of
America, N.A., prepares its business records, or Plaintiff may bring one of its own
business records showing the assignment or purchase of the debtor’s account and
testifying that the writing was made in the regular course of its business purchasing or
being assigned debts; that the business record was made at or near the time of the
purchase or assignment; the custodian or other qualified witness testifies as to its identity
and the mode of its preparation; and the sources of information and method and time
of preparation are such as to indicate the trustworthiness of the business records. (Evid.
Code, § 1271.) In either scenario, Plaintiff must also attach to the declaration a copy of
the business records so authenticated. (See Garibay v. Hammat (2008) 161 Cal.App.4th
735, 742-743.)
Plaintiff must also bring to the hearing a completely filled out Judicial Council
form CIV-100. On box 1d on the front page, the name of Defendant Nefez A.
Aboeireich (“Defendant”) must be entered, and Plaintiff must not check box 1e. The
remainder of the Judicial Council form CIV-100 should be filled out exactly as it was on
the previous form CIV-100 filed on April 5, 2017.
Concerning the dismissal of the case for failure to bring the case to trial within
two years, the Court has reviewed the case file and found the following:
This action was filed on April 24, 2015.
Defendant was served by substitute service on August 8, 2015. A proof of service
showing such service was filed on August 19, 2015.
On August 24, 2015, Plaintiff did not appear at the case management
conference.
On October 13, 2015, Plaintiff filed a request for entry of default and a clerk’s
judgment. The default was entered that day; however, the application for clerk’s
judgment was denied.
On October 29, 2015, an attorney made a special appearance on Plaintiff’s
behalf in response to an order to show cause hearing. The hearing was continued to
January 28, 2016.
On October 30, 2015, Plaintiff again applied for a clerk’s judgment. It was denied
again.
On November 30, 2015, Plaintiff filed for a court judgment on declarations. (Cal.
Rules of Court, rule 3.1800.)
On January 28, 2016, the court denied the application, noting the following
defects: (1) box 1d of the Form CIV-100 had not been filled out [listing Defendant’s
name]; no declaration pursuant to Code of Civil Procedure § 585(d) by someone with
personal knowledge had been submitted; no clear copy of the signed contract had
been submitted.
Also on January 28, 2016, another default packet seeking a court judgment was
filed. It was denied on April 14, 2016, with the same reasons as the January 28, 2016,
denial.
On April 28, 2016, there was another order to show cause hearing; the hearing
was continued to June 30, 2016.
On June 30, 2016, there was another order to show cause hearing; the hearing
was continued to September 1, 2016.
On September 1, 2016, there was another order to show cause hearing; the
hearing was continued to October 13, 2016.
There is no minute order from any hearing on October 13, 2016. Instead, a
“notice of calendar setting” was mailed on October 7, 2016, setting an order to show
cause hearing for January 19, 2017.
On October 17, 2016, a “notice of documents returned” document was entered
noting that as of July 1, 2016, documents filed by represented parties were required to
be filed electronically.
On January 5, 2017, a “notice of documents returned” document was entered
noting that as of July 1, 2016, documents filed by represented parties were required to
be filed electronically.
On January 11, 2017, a “notice of calendar setting” was mailed, setting an order
to show cause hearing for March 30, 2017.
On February 6, 2017, a “notice of documents returned” document was entered
noting that as of July 1, 2016, documents filed by represented parties were required to
be filed electronically.
On March 30, 2017, the minute order from the order to show cause hearing
stated that “judgment submitted to the court on 3/29/17” and continued the OSC
hearing to May 4, 2017.
On April 5, 2017, Plaintiff filed a new application for court judgment on CIV-100,
along with a proposed judgment. No other papers were filed.
On April 25, 2017, the Court again denied the application for default judgment,
noting the same errors as in previous orders: (1) a declaration of someone with personal
knowledge and business records properly authenticated pursuant to Evidence Code §
1271; (2) requesting a default judgment packet to be filed 10 days before today’s
hearing; (3) entering Defendant’s name at box 1d on the front page of the CIV-100
form, and not checking box 1e; (4) alerting Plaintiff to the fact that if it cannot prove up
the judgment at today’s hearing, the court would dismiss the action for delay in
prosecution because it had not been brought to trial or “conditionally settled” within
two years after the action was commenced. (Code Civ. Proc., §§ 583.410, 583.420,
subd. (a)(2); Cal. Rules of Court, rule 3.1340; Tate v. Superior Court (1975) 45 Cal.App.3d
925, 929.) A plaintiff has a duty to exercise reasonable diligence to insure that a case is
brought to trial or other conclusion within statutory time constraints, and that duty
includes a duty to exercise reasonable diligence in obtaining a default judgment after
a clerk’s entry of default. (Hughes v. Kimble (1992) 5 Cal.App.4th 59, 70-71.) The default
judgment procedure is “designed to clear the court’s calendar and files of those cases
which have no adversarial quality.” (Jones v. Interstate Recovery Service (1984) 160
Cal.App.3d 925, 928.)
If Plaintiff fails to prove-up the default judgment at today’s hearing based on the
same failures as before, the Court will dismiss the case, without prejudice, for failure to
obtain a default judgment within two years after the action was commenced, despite
Defendant having been in default for over 18 months.
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 06/19/17
(Judge’s initials) (Date)
(5)
Tentative Ruling
Re: Haas et al. v. ZLZR Corporation et al.
Superior Court Case No. Case No: 17 CECG 00404
Hearing Date: June 20, 2017 (Dept. 501)
Motion: Leave to file First Amended Complaint
Tentative Ruling:
To strike the First Amended Complaint filed on May 18, 2017 pursuant to CCP §
436 on the grounds that it was filed without leave.
To deny the motion seeking leave to file a First Amended Complaint without
prejudice as stated infra.
Explanation:
Plaintiffs Thomas A. Haas, Donna Haas and Jayna Haas have filed a motion
seeking leave to file a First Amended Complaint pursuant to CCP §§ 426.50, 473, 576
and CRC Rule 3.1324. See Notice of Motion at page 2 lines 1-3. But, CCP § 426.50
applies to compulsory cross-complaints. This is not the scenario at bench. More
importantly, Thomas A. Haas is deceased and a separate motion seeking leave to
substitute decedent’s representative or successor in interest pursuant to CCP §§ 377.31,
377.32 and 377.33 should have been filed.
CCP § 377.31. Pending action or proceeding; continuance states:
On motion after the death of a person who commenced an action or
proceeding, the court shall allow a pending action or proceeding that
does not abate to be continued by the decedent's personal
representative or, if none, by the decedent's successor in interest.
CCP § 377.32. Statement from successor in interest; information required states:
(a) The person who seeks to commence an action or proceeding or to
continue a pending action or proceeding as the decedent's successor in
interest under this article, shall execute and file an affidavit or a
declaration under penalty of perjury under the laws of this state stating all
of the following:
(1) The decedent's name.
(2) The date and place of the decedent's death.
(3) “No proceeding is now pending in California for administration of the
decedent's estate.”
(4) If the decedent's estate was administered, a copy of the final order
showing the distribution of the decedent's cause of action to the
successor in interest.
(5) Either of the following, as appropriate, with facts in support thereof:
(A) “The affiant or declarant is the decedent's successor in interest (as
defined in Section 377.11 of the California Code of Civil Procedure) and
succeeds to the decedent's interest in the action or proceeding.”
(B) “The affiant or declarant is authorized to act on behalf of the
decedent's successor in interest (as defined in Section 377.11 of the
California Code of Civil Procedure) with respect to the decedent's interest
in the action or proceeding.”
(6) “No other person has a superior right to commence the action or
proceeding or to be substituted for the decedent in the pending action or
proceeding.”
(7) “The affiant or declarant affirms or declares under penalty of perjury
under the laws of the State of California that the foregoing is true and
correct.”
(b) Where more than one person executes the affidavit or declaration
under this section, the statements required by subdivision (a) shall be
modified as appropriate to reflect that fact.
(c) A certified copy of the decedent's death certificate shall be attached
to the affidavit or declaration.
CCP § 377.33. Court orders states:
The court in which an action is commenced or continued under this
article may make any order concerning parties that is appropriate to
ensure proper administration of justice in the case, including appointment
of the decedent's successor in interest as a special administrator or
guardian ad litem.
Here, the Plaintiffs assume that Donna Haas can be substituted and amend the
decedent’s causes of action in a single motion. This is incorrect. She lacks standing to
do so until an order of substitution is filed. Importantly, she neglected to file the
mandatory declaration required by CCP § 377.32. Therefore, the motion 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: MWS on 06/19/17
(Judge’s initials) (Date)
(17) Tentative Ruling
Re: Sanchez v. Tang, M.D., et al.
Court Case No. 14 CECG 00823
Hearing Date: June 20, 2017 (Dept. 501)
Motion: Community Regional Medical Center’s Motion for Summary
Judgment/Adjudication
Tentative Ruling:
To deny.
Explanation:
Burden on Summary Judgment
In ruling on a motion for summary judgment or summary adjudication, the court
must “consider all of the evidence' and all of the 'inferences' reasonably drawn there
from and must view such evidence and such inferences 'in the light most favorable to
the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In
making this determination, courts usually follow a three-prong analysis: identifying the
issues as framed by the pleadings; determining whether the moving party has
established facts negating the opposing party's claims and justifying judgment in the
movant's favor; and determining whether the opposition demonstrates the existence of
a triable issue of material fact. (Lease & Rental Management Corp. v. Arrowhead
Central Credit Union (2005) 126 Cal.App.4th 1052, 1057-1058.)
The moving party bears the burden of showing the court that the plaintiff 'has not
established, and cannot reasonably expect to establish, a prima facie case ... .'
[Citation.]" (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) A
defendant who seeks a summary judgment must define all of the theories of liability
alleged in the complaint and challenge each factually. (Lopez v. Superior Court (1996)
45 Cal.App.4th 705, 714.) Here there are two theories of liability raised by the complaint
direct liability under a theory of medical negligence for the staff and employees of
CRMC, (FAC, pg. 4, ¶ 1) and vicarious liability for the acts of Dr. Minh Tang, alleged to
be “an agent or employee” of CRMC. (FAC, pg. 4, ¶ 2.)
Medical Negligence
Medical providers must exercise that degree of skill, knowledge, and care
ordinarily possessed and exercised by members of their profession under similar
circumstances. (Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108, fn. 1.) Thus,
in “‘any medical malpractice action, the plaintiff must establish: “(1) the duty of the
professional to use such skill, prudence, and diligence as other members of his
profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate
causal connection between the negligent conduct and the resulting injury; and (4)
actual loss or damage resulting from the professional's negligence.” [Citation.]’”
(Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.)
When defendant in a medical malpractice action moves for summary judgment
and supports motion with an expert declaration opining that his conduct fell within the
community standard of care, he is entitled to summary judgment unless plaintiff comes
forward with conflicting expert evidence. (Munro v. Regents of Univ. of Cal. (1989) 215
Cal.App.3d 977, 983-985.)
CRMC’s Notice of Motion states: “[t]his motion will be made on the grounds
there is no triable issue of material facts as to whether all agents and employees of
Community Regional Medical Center complied with the standard of care in caring for
plaintiff Grecia Sanchez and her infant, Jayden Prudente.” This expansive statement is
not supported by admissible facts.
CRMC has submitted the declaration of Dr. Michael Ross, an
obstetrician/gynecologist who specializes in maternal-fetal medicine. He was asked to
“evaluate the standard of care with respect to Ms. Sanchez’s treatment at CRMC as
well as the cause of the infant’s demise.” (Ross Decl. ¶ 2.) He has opined that “all
nursing care was within the standard of care, including but not limited to the CRMC’s
staff beginning on December 21, 2012.” (Ross Decl. ¶ 6 (emphasis added.)) He is of the
opinion that “CRMC’s staff were not negligent and did not act below the standard of
care in their care and interactions with Ms. Sanchez based upon her symptoms,
examinations, vital signs, course during labor/delivery and Jayden’s fetal heart tracing
results.” (Ibid. (Emphasis added.).) Staff is not defined. He further opined the CRMC
staff appropriately assessed, treated, and communicated their findings to the
physicians. (Ross Decl. ¶ 7.) Accordingly, staff are not physicians. Thus, only the staff
correctly provided the necessary and appropriate medical care to Ms. Sanchez at all
relevant times. In addition, the staff properly assessed and monitored Ms. Sanchez and
her infant and performed the appropriate assessments and procedures throughout the
course of treatment. (Ross Decl. ¶ 7.) Fresno Community Hospital has met its initial
burden for its nurses and staff on summary judgment on this claim, but not its agents
such as Dr. Tang.
Where a defendant in a medical malpractice action presents expert testimony
in support of a summary judgment motion showing that the defendant’s care and
treatment did not fall below the standard of care, the burden shifts to plaintiff to offer
contrary expert testimony demonstrating that the defendant’s care and treatment did
not fall below the standard of care. (Willard v. Hagemeister (1981) 121 Cal.App.3d 406,
412; Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.) CRMC would have met its
burden on summary adjudication, had its separate statement complied with California
Rule of Court, rule 3.1350 (b) & (d), by identifying the claims it sought summary
adjudication of. However, summary adjudication may not be granted.
Negligence – Vicarious Liability for Physicians
A physician providing services in a hospital may generally be found to be an
ostensible agent of the hospital for purposes of imposing liability on the hospital where
there is (1) conduct by the hospital that would cause a reasonable person to believe
that the physician was an agent of the hospital, and (2) reliance on that apparent
agency relationship by the plaintiff. (Mejia v. Community Hospital of San Bernardino
(2002) 99 Cal.App.4th 1448, 1453.) “Regarding the first element, courts generally
conclude that it is satisfied when the hospital "holds itself out" to the public as a provider
of care.” (Ibid.) “The second element, reliance, is established when the plaintiff ‘looks
to’ the hospital for services, rather than to an individual physician.” (Id. at p. 1454.)
“Thus, unless the patient had some reason to know of the true relationship between the
hospital and the physician--i.e., because the hospital gave the patient actual notice or
because the patient was treated by his or her personal physician--ostensible agency is
readily inferred.” (Id. at pp. 1454-1455.)
Here, CRMC never negated any of these facts with respect to Dr. Tang. Plaintiff’s
contention in the complaint that Dr. Tang acted as CRMC’s agent is uncontradicted.
(See FAC, pg. 4, ¶ 2.)
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 06/19/17
(Judge’s initials) (Date)
Tentative Rulings for Department 502 (6)
Tentative Ruling
Re: Central Valley GMC v. Richie Iest Farms, Inc.
Superior Court Case No.: 15CECG03828
Hearing Date: June 20, 2017 (Dept. 502)
Motions: (1) By Plaintiff Central Valley GMC dba Central Valley Truck
Center for summary judgment or, in the alternative,
summary adjudication;
(2) By Plaintiff Central Valley GMC dba Central Valley Truck
Center for summary adjudication of first, third, fourth, sixth,
eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth,
sixteenth, seventeenth, eighteenth, nineteenth, and
twentieth affirmative defenses
Tentative Ruling:
To deny both motions.
Explanation:
First motion—summary judgment on the complaint
Plaintiff has not met its burden on the motion for summary adjudication of the
complaint. “A plaintiff or cross-complainant has met his or her burden of showing that
there is no defense to a cause of action if that party has proved each element of the
cause of action entitling the party to judgment on the cause of action.” (Code Civ.
Proc., § 437c, subd. (p)(1).)
The moving party must address the material facts of the complaint. The moving
party’s declarations must state facts sufficient to establish each element necessary to
sustain a judgment in its favor and unless it does so, summary judgment should be
denied, even though the opposing party files no declarations at all. (Teselle v.
McLoughlin (2009) 173 Cal.App.4th 156, 169.) Here, the complaint seeks $317,141.57 in
the body, and the prayer $319,641.57.
A party’s papers on a motion for summary judgment can raise a triable issue on
their face; that is what Plaintiff Central Valley GMC (“Plaintiff”) here has done. (Mamou
v. Trendwest Resorts (2008) 165 Cal.App.4th 686, 695 [fn. 7]; Conn v. National Can
Corporation (1981) 124 Cal.App.3d 630, 637.)
Here, for the breach of contract cause of action, Plaintiff seeks $467,223.84 (Fact
#13); for the account stated cause of action, Plaintiff seeks $291,909.43 (Fact #23); for
the open book account, Plaintiff seeks both or either, by incorporating facts #13 and 31
(Fact #30 and 31), raising a triable issue on its face. (Mamou v. Trendwest Resorts, supra,
165 Cal.App.4th 686, 695 [fn. 7]; Conn v. National Can Corporation, supra, 124
Cal.App.3d 630, 637.)
Further, the evidence relied upon in the form of the declaration of Teresa Dodd,
a rental manager/leasing administrator with Plaintiff, is inadequate because no business
records are attached to her declaration. (See Garibay v. Hemmat (2008) 161
Cal.App.4th 735, 742-743.) Ms. Dodd specifically states that she is relying on Plaintiff’s
business records upon which her statements are based. (Decl. of Teresa Dodd, ¶¶2-3.)
Her declaration of the amount due at ¶¶14-15 is thus not supported by Plaintiff’s
business records, because they are not attached to her declaration.
Plaintiff’s own papers submitted in support of the motion raise a triable issue of
material fact as to the amount of damages, an element of each of the three causes of
action, requiring the motion to be denied. (Mamou v. Trendwest Resorts, supra, 165
Cal.App.4th 686, 695 [fn. 7]; Conn v. National Can Corporation, supra, 124 Cal.App.3d
630, 637.)
Second motion—summary adjudication of affirmative defenses
Plaintiff Central Valley GMC (“Plaintiff”) has not met its burden on the motion for
summary adjudication of the affirmative defenses. (Code Civ. Proc., § 437c, subd.
(p)(1).) A party moving for summary judgment need no longer disprove affirmative
defenses as part of its burden. (Code Civ. Proc., § 437c, subd. (p)(1); Oldcastle Precast,
Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 565.)
“Summary judgment law in this state … continues to require a defendant moving
for summary judgment to present evidence, and not simply point out that the plaintiff
does not possess, and cannot reasonably obtain, needed evidence. … The defendant
may, but need not, present evidence that conclusively negates an element of the
plaintiff's cause of action. The defendant may also present evidence that the plaintiff
does not possess, and cannot reasonably obtain, needed evidence—as through
admissions by the plaintiff following extensive discovery to the effect that he has
discovered nothing.” (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 854–
855, fn. omitted.) The reason is that the statutory language requires that the motion be
“supported” by evidence. (Ibid.)
A party does not satisfy its burden of proof by producing discovery responses
that do not exclude the possibility that the other party may possess or may reasonably
obtain evidence to submit their claim or defense. (Weber v. John Crane, Inc. (2006) 143
Cal.App.4th 1433, 1441-1442 [Evidence that worker with asbestos was unfamiliar with
defendant’s name, but not showing that worker was unable to recognize its products,
packaging, or logo, did not shift burden.]) “A motion for summary judgment is not a
mechanism for rewarding limited discovery; it is a mechanism allowing the early
disposition of cases where there is no reason to believe that a party will be able to
prove its case.” [Emphasis added.] (Id. at p. 1442.)
Plaintiff did not meet its burden, and the motion must be denied.
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: DSB on 06/19/17
(Judge’s initials) (Date)
(28) Tentative Ruling
Re: Cervantes v. Fuel Delivery Servs., Inc.
Cervantes v. Fuel Delivery Servs., Inc.
Case No. 15CECG01927
16CECG03130
Hearing Date: June 20, 2017 (Dept. 502)
Motion: Motion to Consolidate.
Tentative Ruling:
To grant the motion. Case number 15CECG01927 is to be consolidated with case
number 16CECG03130 for all purposes.
Explanation:
[Note- as of June 16, 2017, no opposition has been filed in this case.]
On June 15, 2015, Plaintiffs in the present case (15CECG01927 (Cervantes I)) filed
a complaint for the wrongful death of Antonio Cervantes from a January 28, 2015
motor vehicle accident. They are heirs of the decedent. Adamary Cervantes, a minor,
was named as a nominal defendant in this case.
On September 26, 2016, Adamary Cervantes filed a lawsuit (16CECG03130
(Cervantes II)) alleging the wrongful death of Antonio Cervantes from the same
accident.
By this motion, Plaintiffs in Cervantes I seek to consolidate the two cases.
Consolidation allows a Court to combine two actions when they involve
common questions of fact or law pending before the same Court. (Code Civ.Proc.
§1048, subd.(a).) The Court “may order a joint hearing or trial of any or all the matters in
issue in the actions, it may order all the actions consolidated and it may make such
orders concerning proceedings therein as may tend to avoid unnecessary costs or
delay.” (Id.) The purpose is to enhance trial court efficiency and to avoid the substantial
danger of inconsistent adjudications. (Todd-Stenberg v. Dalkon Shield Claimants Trust
(1996) 48 Cal.App.4th 976, 978-79.)
There are generally, two types of consolidation, complete and for trial only.
(Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1396.)
Plaintiff here seeks a “complete consolidation” which may be ordered where the
parties are identical and the causes of action could have been joined; the pleadings
are regarded as merged, one set of findings is made, and one judgment is rendered.
(Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147-48.)
Here, the motion does not comport with the California Rules of Court concerning
consolidation, which requires that the noticed motion must list all named parties in each
case, the names of those who have appeared and the names of their respective
attorneys of record. (Cal. Rules of Court 3.350, subd.(a).)
Nevertheless, the motion should be granted. The granting or denial of a motion
to consolidate rests in the sound discretion of the court. (Feliner v. Steinbaum (1955) 132
Cal.App.2d 509, 511.) Among the issues to be considered whether to consolidate
actions is whether the cases involve significant common issues, whether the common
issues predominate over individual issues, or whether the risks of jury confusion or the
prejudice to a party outweighed the reduction in time and expense that would result
from consolidation. (Todd-Stenberg v. Dalkon Shields Claimants Trust (1996) 48
Cal.App.4th 976, 970.)
Here, the two cases derive from the same set of facts, have mostly the same
parties (all the parties in the Cervantes II case are parties in the Cervantes I case), and it
appears likely that the individual issues, such as they are, would be identical in the two
cases. There does not appear to be any prejudice that might happen to any party, due
to the lack of any scheduled trial date in either case.
No opposition to the motion has been filed by any party in either case, and it
appears that all the parties in both cases have been served with this motion.
As a result, it appears that the motion should be granted and the cases
consolidated.
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: DSB on 06/19/17
(Judge’s initials) (Date)
Tentative Rulings for Department 503
(20) Tentative Ruling
Re: Soares et al. v. Sidhu et al., Superior Court Case No.
16CECG02999
Hearing Date: June 20, 2017 (Dept. 503)
Motion: Demurrer to Second Amended Complaint and Motion to
Strike
Tentative Ruling:
To overrule the demurrer to the second cause of action of the Second Amended
Complaint (“SAC”). (Code Civ. Proc. § 430.10(e).) To deny the motion to strike. (Code
Civ. Proc. § 436.)
Explanation:
Defendant Sidhu demurs to the second cause of action for elder abuse on the
ground that the SAC fails to allege the element of custodial care.
The Elder and Dependent Adult Civil Protection Act (Welfare & Institutions Code
§15600 et. seq.) was enacted by the California Legislature to protect elderly citizens
from egregious acts of abuse and custodial neglect. (Covenant Care v. Superior Court
(2004) 32 Cal.4th 771, 787; Delaney v. Baker (1999) 20 Cal.4th 23, 32-33.)
A claim of neglect under the Elder Abuse Act requires a caretaking or custodial
relationship with the elder. Custodial care means the physician had significant and
ongoing responsibility for attending to one or more of the basic needs of the elder.
(Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 155; Welf. & Inst. Code §
15610.57.) In Winn, the court found that physicians who treated the patient at
outpatient clinics did not have “care or custody” required for “neglect” of a patient
under the Elder Abuse Act.
Beyond the assertion that defendants treated Mrs. Cox at outpatient
“clinics” operated by defendants, plaintiffs offer no other explanation for
why defendants' intermittent, outpatient medical treatment forged a
caretaking or custodial relationship between Mrs. Cox and defendants.
No allegations in the complaint support an inference that Mrs. Cox relied
on defendants in any way distinct from an able-bodied and fully
competent adult's reliance on the advice and care of his or her medical
providers. Accordingly, we hold that defendants lacked the needed
caretaking or custodial relationship with the decedent.
(Winn, supra, at p. 165.)
Neglect based on the “failure to provide medical care for physical and mental
health needs” (Welf. & Instit. Code § 15610.57(b)(2)) assumes that the defendant is in a
position to deprive an elder of medical care. “[I]t is the defendant's relationship with an
elder or a dependent adult – not the defendant's professional standing or expertise –
that makes the defendant potentially liable for neglect.” (Id. at p. 158.)
The mere fact that Dr. Sidhu was decedent's treating physician is not sufficient to
allege a caretaking or custodial relationship. (See Winn, supra, 63 Cal.4th at p. 155.)
The SAC sufficiently alleges a custodial relationship. SAC alleges that Dr. Sidhu had
primary and ongoing responsibility to provide medical care to and to supervise the
nursing care provided to Decedent at Palm Village (SAC ¶ 5), that Dr. Sidhu accepted
responsibility for attending to Decedent’s medical needs, (SAC ¶ 6) and that as
Decedent’s attending physician, Dr. Sidhu had assumed the responsibility of ensuring
Decedent’s care plan was followed (SAC ¶¶ 11-12). The SAC alleges that Decedent
was dependent upon and relied upon Dr. Sidhu for the provision of his ongoing medical
care, medical treatment, medical evaluation, and medical diagnosis and that
Decedent was not physically able to care for his own medical needs as would an able-
bodied, fully competent, non-dependent individual, by reason of the fact Decedent
was a patient confined Palm Village. (SAC ¶ 8.) Plaintiffs allege that by reason of the
relationship between Dr. SIDHU, Palm Village and Decedent, Dr. Sidhu had a continuing
obligation to provide medical care to Decedent and had assumed a substantial care-
taking or custodial role over Decedent. (SAC ¶ 8.)
The court finds these allegations sufficient to allege the element of custodial
care.
Sidhu also moves to strike the punitive damages and heightened remedy
allegations.
“In order to obtain the remedies available in section 15657, a plaintiff must
demonstrate by clear and convincing evidence that defendant is guilty
of something more than negligence; he must show reckless, oppressive,
fraudulent or malicious conduct. The later three categories involve
'intentional’, 'willful', or 'conscious', wrongdoing of a 'despicable' or
'injurious' nature.
'Recklessness' refers to a subjective state of culpability greater than simple
negligence, which has been described as a 'deliberate disregard of a
'high degree of probability' that an injury will occur. Recklessness, unlike
negligence, involves more than mere 'inadvertence, incompetence,
unskillfulness, or failure to take precautions', but rather rises to the level of a
conscious choice of a course of action with knowledge of the serious
danger to others involved in it."
Section 15657.2 can therefore be read as making clear that the acts
proscribed by section 15657 do not include acts of simple professional
negligence, but refer to forms of abuse or neglect performed with some
state of culpability greater than mere negligence."
(Delaney, supra, 20 Cal.4th at pp. 31-32.)
To state facts sufficient to recover punitive damages, a complaint must contain
facts that would indicate evil motive and intent to injure on the part of defendant.
(Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894-95.) Claims for punitive damages must
be specifically pled. (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.2d 22, 29.) It
is not enough to simply plead in a conclusory fashion that defendants acted with
recklessness, oppression, fraud, or malice. (Cyrus v. Haveson (1976) 65 Cal.App.3d 306,
316-17.) Rather, a plaintiff must specifically illustrating malice on the part of the
defendant. (G.D. Searle, supra, 49 Cal.App.2d 29.)
In Sababin v. Superior Court (2006) 144 Cal.App.4th 81, the plaintiffs were
permitted to maintain their claim for elder abuse when the care facility failed to follow
the patient’s care plan, which resulted in the patient’s injuries and death. The care
plan required checking the patient’s skin condition on a daily basis and notifying the
physician of any problems.
While defendant Sidhu in this case apparently is not an employee of the care
facility, plaintiffs have alleged that the requisite custodial care relationship. As noted
above, the SAC alleges that Sidhu had primary and ongoing responsibility to provide
medical care to and to supervise the nursing care provided to Decedent at Palm
Village (SAC ¶ 5), that Sidhu accepted responsibility for attending to Decedent’s
medical needs, (SAC ¶ 6) and that as Decedent’s attending physician, Sidhu had
assumed the responsibility of ensuring Decedent’s care plan was followed (SAC ¶¶ 11-
12).
Plaintiffs further allege in paragraph 29:
a. Dr. Sidhu had specific knowledge both as to Decedent’s medical
conditions described above and knowledge as to the care plan
developed for Decedent which specifically required checks of his skin
for redness, discoloration and breakdown “every shift” as a result of his
documented “high” risk for skin break down, pain and injury. Dr. Sidhu
also had knowledge of the care plan’s specific requirement that
Defendant’s pain be regularly assessed by “listening to resident’s
description” of his pain, as Decedent was at risk for experiencing
physical pain due to his medical conditions and his risk for skin
breakdown and related injuries;
b. Notwithstanding this knowledge, Dr. Sidhu engaged in a significant
pattern of deliberately ignoring this care plan and withholding medical
care to Decadent by failing and refusing to assess the integrity of his
skin for open wounds and evidence of serious medical conditions as
specifically required by the care plan. Decedent’s chart from Palm
Village contains not a single notation from Dr. Sidhu that reflects any
physical examination of Plaintiff’s feet, nor does it reflect any
description of the medical conditions discovered on April 24, 2015 by
Dr. Javid and documented by Kaweah Delta Hospital nor the
numerous areas of bruising, redness and discoloration on Decedent’s
body found on April 24, 2015 at Kaweah Delta Hospital. All of these
conditions developed while a patient at Palm Village and while
Decedent was under the “continuing care” of Dr. Sidhu. Instead, Dr.
Sidhu engaged in a significant pattern of ignoring, minimizing or
medicating over, Decedent’s continued complaints of pain, without
performing any physical exam or assessment to determine the origin of
such complaints. This repeated pattern and practice by Dr. Sidhu, demonstrates it was the result of a conscious choice of action not to
provide the required medical care to Decedent and/or demonstrates
deliberate indifference by Dr. Sidhu as to Decedent’s medical needs;
Plaintiffs allege that Decedent entered Palm Village and was assigned to Dr.
Sidhu for his ongoing medical needs. At the time of his admission into Palm Village,
Decedent had a physical examination including an examination of the condition of his
skin. The medical records from Palm Village note the presence of bruising on both arms
and abrasions on Decedent’s shins. No other bruise, abrasion, wound, sore or skin
condition existed at the time of his admission to Palm Village. (SAC ¶ 10.) Three weeks
later, Decadent was taken outside of the facility and it was dis covered that Decedent
had an open wound on his heel; bluish/purplish color toes, indicating the potential
development of schemic necrosis (gangrene); and significantly dry and scaley skin on
his feet. The Decedent also had a bluish middle finger and significant bruising on his
coccyx, scrotal region, hands and fingertips. None of these conditions were there prior
to his admission to Palm Village. (SAC ¶ 17.) Decedent’s condition continued to
deteriorate and he ultimately died less than two months later. (SAC ¶ 20.)
Decadent had a care plan that required that his skin be assessed for redness,
discoloration and breakdown “every shift.” It further required that Decedent’s
complaints of pain be assessed by “listening to resident’s description” of his pain. This
care plan was developed as a result of Decedent’s “impaired physical mobility,” and
his high risk for pressure ulcers and pain with his activities of daily living that could
interfere with his comfort. (See SAC ¶ 11.)
In total, the court finds the allegations sufficient to seek the heightened remedies
for elder abuse and punitive damages.
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: A.M. Simpson on 06/19/17
(Judge’s initials) (Date)