tentative rulings for august 2, 2017 departments 402, … · tentative rulings for august 2, 2017...

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Tentative Rulings for August 2, 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).)

17CECG01933 Westamerica Bank v. Porttoff (Dept. 501)

14CECG02013 Haron v. Beebe (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.

17CECG00045 Wickman v. The Jackson Estate (Dept. 402) [Hearing on demurrer

and motion to transfer to Los Angeles County is continued to August

10, 2017, at 3:30 p.m. in Dept. 402]

17CECG00303 Gutierrez v. Holden is continued to Wednesday, August 9, 2017, at

3:30 p.m. in Dept. 501.

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 402 2

Tentative Ruling

Re: In re Steven Lopez

Superior Court Case No. 17CECG01685

Hearing Date: NONE. Off calendar – see below

Motion: Petition to Compromise Minor’s Claim

Tentative Ruling:

To deny the petition without prejudice. Petitioner must file amended petitions,

with appropriate supporting papers and proposed orders, and obtain a new hearing

date for consideration of the amended petitions. (Super. Ct. Fresno County, Local Rules,

rule 2.8.4.)

Explanation:

The petitioner is required to provide a report of the minor’s current condition. The

most recent medical report provided is dated 8/18/15 and showed the minor being

discharged to acute rehab.

The attorney seeks fees in the amount of 25% of the gross settlement. Attorney is

entitled to 25% of the net settlement.

The petition is not signed by the petitioner.

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

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 07/31/17

(Judge’s initials) (Date)

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(30) Tentative Ruling

Re: Brad Hardie v. Rabisankar Sahu

Superior Court No. 17CECG01586

Hearing Date: Wednesday August 2, 2017 (Dept. 402)

Motion: Defendants: Rabisankar Sahu, Sarmila Kumari Sahu, Baidhar Das,

and Kalpana Mohapatra’s DEMURRER

Tentative Ruling:

To Sustain demurrers based upon Codes of Civil Procedure section 430.10, subdivisions

(g), (f), and (e) for failure to allege compliance with the statute of frauds.

To Overrule demurrer based upon Code of Civil Procedure section 430.10, subdivision

(e) for failure to assert a cause of action (e.g. failure to allege the elements to support

specific performance).

Plaintiff is granted ten days leave to amend. (Cal. Rules of Court, rule 3.1320, subd. (g).)

The time in which an amendment may be filed will run from service by the clerk of the

minute order.

Explanation:

Code Civil Procedure section 430.10, subdivision (g)

In an action founded upon a contract, a demurrer lies where it cannot be ascertained

from the pleading whether the contract is written, oral, or implied by conduct. (Code

Civ. Proc., § 430.10, subd. (g); Miles v. Deutsche Bank Nat'l Trust Co. (2015) 236

Cal.App.4th 394, 401.)

Here, it is unclear whether Plaintiff is alleging an oral or written agreement. First, Plaintiff

alleges that the contract was written. The complaint states, “plaintiff and defendant

entered into an agreement via text message.” (Complaint, ¶8.) Then, Plaintiff alleges

that the contract was oral. The complaint states, “[p]laintiff thereafter delivered a

written memorandum confirming the oral agreement.” (Ibid.) Sustained.

Code Civil Procedure section 430.10, subdivision (f)

A demurrer for uncertainty may lie if the failure to label the parties and claims renders

the complaint so confusing defendant cannot tell what he or she is supposed to

respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Here, Plaintiff uses the terms “defendant” and “defendants” interchangeably. This

makes it impossible for either of the six defendants to know what is being alleged

against them. Sustained.

Code Civil Procedure section 430.10, subdivisions (e), statute of frauds

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Where complaint seeks to enforce a contract subject to the statute of frauds, failure to

allege compliance is a legal issue properly decided on demurrer. (Rossberg v. Bank of

America, N.A. (2013) 219 Cal.App.4th 1481, 1503.) Related thereto, any agreement for

the sale of real property or any interest or estate therein must be in writing to be

enforceable, and the writing must be signed by the party against whom it is being

enforced. (Civ. Code, § 1624; see also § 1091; Code Civ. Proc., § 1971.) Moreover, an

electronic message of an ephemeral nature that is not designed to be retained or to

create a permanent record, including, but not limited to, a text message or instant

message format communication, is insufficient to constitute a contract to convey real

property, in the absence of a conforming written confirmation. (Civ. Code, § 1624,

subd. (d).)

Here, Plaintiff fails to allege compliance with the statute of frauds. If Plaintiff is alleging a

written contract (via text msg), an electronic signature as well as a signed

memorandum are required. (Civ. Codes §§ 1624, subds. (a) & (d); 1633.7, subd. (d).) If

Plaintiff is alleging an oral contract, a signed memorandum is also required. (Civ. Code

§ 1624, subd. (a).) Sustained.

Code Civil Procedure section 430.10, subdivisions (e), Civil Code section 1633.5

Generally specific performance requires Plaintiff to plead: (1) the parties entered into a

contract of a type that is specifically performable or enforceable; (2) the plaintiff has

complied in every respect with the terms of the contract; (3) the defendant has refused

to comply; and (4) the plaintiff has no adequate remedy at law. (see Civ. Codes §§

3384 -3395; Spector v. Pete (1958) 157 Cal.App.2d 432; Bartlett v. Rogers (1951) 103

Cal.App.2d 250; Smith v. Tristram (1933) 130 Cal.App. 750; see also Real Estate Analytics,

LLC v. Vallas (2008)160 Cal.App.4th 463.)

Here, Defendants argue that Plaintiff’s complaint does not properly allege element

one: that the parties entered into a contract. But contrary to Defendants’ assertions

(and assuming Plaintiff is alleging a written contract), an express agreement to enter

into an electronic contract is unnecessary; it can be implied from the parties’ conduct.

(Civ. Code § 1633.5, subd. (b); UETA Section 5, Comment 2.) In this situation then, intent

can be established by the fact that the parties conducted the transaction in question

electronically. Overruled.

Furthermore, Defendants’ “supporting declaration of Baidhar Das” (filed: 6/12/17)

cannot be considered because it is evidence extrinsic to the pleadings and to that

which is judicially noticeable. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868,

881.)

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 07/31/17


https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000201&cite=CACPS1971&originatingDoc=I599bd4b70aa411da9faad650b81fda58&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.Category)

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Tentative Rulings for Department 403

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Tentative Ruling

Re: Lambeth v. City of Coalinga


Hearing Date: August 2, 2017 (Dept. 403)

Motion: Deem request for admissions, set one, admitted and sanctions

Tentative Ruling:

To grant defendant’s motion that the truth of the matters specified in the request

for admission, set one, be deemed admitted as to plaintiff Thomas Lambeth unless

plaintiff serves, before the hearing, a proposed response to the requests for admission

that is in substantial compliance with Code of Civil Procedure sections 2033.210,

2033.220 and 2033.240. Code of Civil Procedure §2033.280.

To grant defendant’s motion for sanctions. Thomas Lambeth is ordered to pay

$315 in sanctions to the law offices of Borton Petrini, LLP within 30 days after service of

this order.





Tentative Ruling

Issued By: KCK on 07/31/17


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Re: Colorado Boat Broker, Inc. v. Brendel

Case No. 15CECG02252


Motion: To compel verified responses to discovery and for sanctions.

Tentative Ruling:

To deny the motion as moot. To deny the request for sanctions.

Explanation:

[Note- As of July 31, 2017, a reply brief to the opposition does not appear in the Court’s

files.]

On June 21, 2017, Plaintiff filed a motion to compel verified responses to the Form

Interrogatories, Special Interrogatories, Requests for Production, to Compel the

Production of Documents, and for Sanctions for Defendant’s Misuse of the Discovery

Process and “Disobeyance [sic]” of a Court Order.

On July 20, 2017, Defendant served verified responses, without objections, to all

the outstanding discovery, as well as provided documents. As a result, the motion to

compel appears to be moot.

Plaintiff had asked for sanctions as a result of the need to bring the motion.

Defendant opposed the sanctions on the grounds of procedural issues with the timing

of the motion as well as on the grounds of a declaration filed by counsel for Defendant

attesting that the failure to file timely responses to the discovery, or the request for pre-

trial discovery order, was as a result of mistake, inadvertence, or excusable neglect.

The information contained in the opposition is sufficient for the Court to exercise

its discretion and deny the request for sanctions.

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



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Re: Martinez v. Owens

Court Case No. 17CECG01031


Motion: Defendants Nuestra Casa Real Estate and David Maclachlan’s

Demurrer to Complaint

Tentative Ruling:

To overrule the demurrer. To grant the motion to strike as to attorney fees, with

leave to amend as to the First, Second, Third, and Fourth causes of action, only. To

grant the motion to strike the requests for prejudgment interest, without leave to

amend. To deny the motion to strike the request for punitive damages on the Fifth

cause of action. Plaintiff is granted 10 days’ leave to file the First Amended Complaint,

which will run from service by the clerk of the minute order. New allegations/language

must be set in boldface type.

Explanation:

Demurrer

The demurrer will not be overruled merely because it was four days late in being

filed. There was no prejudice to plaintiffs due to this, and this is within the court’s

discretion. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750, relying on McAllister v.

County of Monterey (2007) 147 Cal.App.4th 253, 280.)

As for the meet and confer, defense counsel’s efforts were noncompliant since

he did not disclose he intended to raise objections to the complaint via a demurrer: the

statute requires the demurring party to “identify all of the specific causes of action that

it believes are subject to demurrer and identify with legal support the basis of the

deficiencies.” (Code Civ. Proc. § 430.41, subd. (a)(1).) This appears to require counsel to

disclose the intent to file a demurrer, and not just make a general observation that the

complaint “did not state a claim against the defendants,” chalk up plaintiff’s

disagreement with this observation to “agreeing to disagree,” and then file the motion.

The goal of the conversation is to avoid the motion, if possible. Clearly this is not possible

if plaintiff’s counsel does not even know a demurrer is being contemplated. However, it

seems clear from the Reply that defense counsel thought he was complying. The

demurrer will not be overruled on this basis; in fact, the statute does not allow the court

to make this the grounds to overrule or sustain a demurrer. (Id. at subd. (a)(4).)

However, in the future counsel must take better care on this issue before filing a

demurrer in this court, or the demurrer will be taken off calendar without a ruling and

proper meet and confer will be required.

On the merits, the complaint is sufficient against demurrer, on both the

negligence and fraud counts. The current statutory scheme establishing the duty of

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care for real estate licensees is derived from the case of Easton v. Strassburger (1984)

152 Cal.App.3d 90, 102. (Code Civ. Proc. § 2017.12, subd. (4)—Civil code sections 2079

to 2079.6 “should be construed as a definition of the duty of care found to exist by the

holding of Easton v. Strassburger, 152 Cal.App.3d 90, and the manner of its discharge,

and is declarative of the common law regarding this duty.”)

Easton established that the seller’s real estate broker has an “affirmative duty to

conduct a reasonably competent and diligent inspection of the residential property

listed for sale and to disclose to prospective purchasers all facts materially affecting the

value or desirability of the property that such an investigation would reveal.” (Easton,

supra, 162 Cal.App. 3d. at p. 102.) The court noted that a fraud claim can lie “only

where it is alleged that the broker either had actual knowledge of the material facts in

issue or that such facts were accessible only to him and his principal…so that the broker

may constructively be deemed to have had actual knowledge.” (Id. at p. 103, italics in

the original, underline added, internal quotes and citations omitted.) Where

negligence, as opposed to fraud, is alleged (and here, plaintiff brings both types of

claims), the Easton court noted that it “need not be alleged or proved that the broker

had actual knowledge of the material facts in issue nor that such facts were accessible

only to him or his principal and that he therefore had constructive knowledge thereof.”

(Id., emphasis in the original.) It is sufficient for a negligence count to simply allege the

failure to conduct a reasonably competent and diligent inspection, and/or the failure

to disclose material facts. (Id. at p. 104—Actual knowledge was unnecessary; jury

merely had to conclude “that a reasonably competent and diligent inspection of the

property would have uncovered” the problems (emphasis in the original).)

It is also required “that the undisclosed material facts be such as are not known

to or within the reach of the diligent attention and observation of the buyer.” (Id.,

internal quotes and citations omitted.) However, the court expressly declined to place

a duty of inspection on the buyer, since this might “diminish the broker's incentive to

conduct the reasonably competent and diligent inspection which the law seeks to

encourage.” (Id.)

Here, plaintiff has sufficiently alleged that initially the fire damage was known

only to the seller and his agents or employees. (Compl., ¶11.) The problem was then

not known to, or within reach of, plaintiff buyer’s diligent attention and observation.

Under the law as enunciated above, plaintiff was not under a duty to investigate the

condition of the property when the mold repairs were done, and plaintiff alleges that

neither he nor his agents were present when they were done. (Compl., ¶16 16.) And

since under the facts as alleged defendants had already affirmatively denied there

was any fire damage (Compl., ¶14) and the inspection had also not alerted plaintiff to

any such damage (Id., ¶15), there were no facts that would have put him on notice

that he should observe the repair for that damage when the mold repair was done.

Plaintiff has done more than speculate that the mold repair provided

defendants with an opportunity to obtain actual knowledge of the fire damage, as

defendants argue; he has alleged that this repair did provide them with notice.

(Compl., ¶16.) On demurrer, this fact is taken as true; whether plaintiff will be able to

prove this at trial is not considered. (Griffith v. Department of Public Works (1956) 141

9

Cal. App. 2d 376, 381.) Defendants did not even deal with the facts related to the mold

repair on their motion, when clearly this was a critical allegation. The fact that plaintiff

did not allege defendants had a duty to inspect the repair is immaterial.

Motion to Strike

Defendants move to strike the prayers for 1) attorney fees; 2) prejudgment

interest, and 3) punitive damages. Plaintiff did not file any opposition to this motion, but

addressed only the demurrer.

As for attorney fees, the complaint fails to set forth a statutory or contractual

basis for fees that would take this case out from under the American Rule requiring

each party to pay for its own legal fees and costs. (Code Civ. Proc. § 1021.) And even

if plaintiff is relying on a provision that may be in the real estate contract in question,

and can amend to so allege, attorney fees incurred by plaintiff in bringing a fraud

action are not recoverable. (Bezaire v. Fidelity & Deposit Co. (1970) 12 Cal.App.3d 888,

892.) Thus, the motion to strike must be granted, with leave to amend as to all but the

fraud-based causes of action (Fifth and Sixth), and as to those no leave to amend can

be granted.

As for prejudgment interest, plaintiff’s damages are not sufficiently certain to

allow for these, as any amount recoverable “cannot be computed except on

conflicting evidence . . . because of the absence of established or reasonably

ascertainable market prices or values.” (Chesapeake Industries, Inc. v. Togova

Enterprises, Inc. (1983) 149 Cal.App.3d 901, 908.) The motion must be granted, without

leave to amend.

As for the request for punitive damages, which are requested only on the Fifth

(Fraud) cause of action, plaintiff has alleged that moving defendants knowingly denied

the presence of fire damage in order to extract a higher price for the sale and thereby

increase their commissions. (Compl., ¶¶ 43-44.) The motion to strike the prayer for

punitive damages must be denied.



ruling will serve as the order of the court, and service by the clerk of the minute order


Tentative Ruling



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Tentative Rulings for Department 501 (17) Tentative Ruling

Re: Ali v. BNSF Railway Company

Court Case No. 17 CECG 0994


Motion: Special Demurrer to Complaint

Tentative Ruling:

To overrule the special demurrers to the complaint. Defendant shall file and serve

its answer within 10 days of the clerk’s service of this minute order.

Explanation:

“ ‘We treat the demurrer as admitting all material facts properly pleaded, but

not contentions, deductions or conclusions of fact or law. [Citation.] We also consider

matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a

reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]”

(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

First Cause of Action – Negligence

Defendant demurs specially to the first cause of action: “on the grounds that it is

uncertain, as there are no facts alleged regarding the date, time or location of the

incident, whether the negligence claim seeks damages for property damages only, nor

any facts alleged establishing plaintiff’s standing to seek damages. Code Civ. Proc. §

430.10(f).”

Section 430.10, subdivision (f) authorizes a party against whom a complaint has

been filed to object by special demurrer to the pleading on the ground that “[t]he

pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and

unintelligible.” Demurrers for uncertainty are disfavored. (Khoury v. Maly's of California,

Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty may be sustained when

the complaint is drafted in a manner that is so vague or uncertain that the defendant

cannot reasonably respond, e.g., the defendant cannot determine what issues must be

admitted or denied, or what causes of action are directed against the defendant.

(Ibid.) Demurrers for uncertainty are appropriately overruled where “ambiguities can

reasonably be clarified under modern rules of discovery.” (Ibid.)

Defendant can obtain the date, time, location of the incident, and precise

nature of the damages claimed in discovery. However, if dates are not essential to a

cause of action (Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15, 25), neither

are the time of day or location of an accident.

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Defendant further asserts that the complaint is deficient for failing to allege what

vehicle was involved, or how the other vehicle or driver is related to defendant. The

complaint describes the vehicle that hit him as “[d]efendant’s truck.” (Complaint 2:18.)

This adequately identifies the relationship between the instrumentality of the harm and

defendant. Moreover, these facts should already be within defendant’s knowledge, as

plaintiff alleges that defendant’s driver admitted fault and defendant has started the

claims process with plaintiff. A demurrer for uncertainty is unsustainable when the facts

in the pleading that are purportedly uncertain concern matters that are presumptively

within a defendant's own knowledge. (See Beeler v. West American Finance Co. (1962)

201 Cal.App.2d 702, 706 [citing cases].)

“Where the allegations of the complaint are sufficiently clear so as to apprise a

defendant of the issues he must meet, a special demurrer should not be sustained,

even though the allegations of the complaint may not be as clear or as detailed as

might be desired.” (Beeler v. West American Finance Co., supra, 201 Cal.App.2d at p.

706.) A complaint, with certain exceptions, need only contain a “statement of the facts

constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc.,

§ 425.10.) A complaint will be upheld “ ‘so long as it gives notice of the issues sufficient

to enable preparation of a defense.’ ” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531,

549–550.) The cause of action for negligence meets these criteria.

Finally, defendant attacks plaintiff’s prayer for damages, asserting insufficient

facts are pled to determine whether plaintiff is claiming personal injuries or property

damage only. The prayer indicates “general damages are sought,” but during the

meet and confer plaintiff claimed he was only seeking special, or property damage. A

demurrer only reaches matters pled and matters judicially noticeable. (Zelig v. County

of Los Angeles (2002) 27 Cal.4th 1112, 1126.) The court cannot consider counsel’s

discussions with plaintiff.

Finally, improper claims for damages must be addressed through a motion to

strike, not a demurrer. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.) For

this reason, defendant’s attacks on plaintiff’s claims for general damages, punitive

damages and attorney’s fees fail. These damage claims are not uncertain; they are

improper as pled. Defendant has chosen the wrong vehicle to address them.

Fourth Cause of Action – Breach of Written Contract

Defendant also demurs specially to the fourth cause of action: “on the grounds

that it is uncertain, as the essential terms of the contract are not alleged in the

Complaint, nor is the contract attached to the Complaint. Code Civ. Proc. § 430.10(f).”

Defendant does not argue the cause of action is so vague or uncertain that the

defendant cannot reasonably respond to it. (Khoury v. Maly's of California, Inc., supra,

14 Cal.App.4th at p. 616.) Rather, defendant argues that the complaint “is subject to

special demurrer based on the lack of required allegations relating to a written

contract,” i.e., fails to state all facts necessary to state a claim for breach of written

contract. This is the basis for a general demurrer under Code of Civil procedure section

430.10, subdivision (e) – which defendant has not made – not a special demurrer for

uncertainty.

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Defendant also challenges the prayer for emotional distress damages, punitive

damages and attorney’s fees. As set forth above, a demurrer is not the appropriate

vehicle for such an endeavor.

The special demurrers for uncertainty are overruled.

Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure




Tentative Ruling

Issued By: MWS on 08/01/17


13


Re: Sapraj v. Tiscareno



Motion: For Default Judgment by Court.

Tentative Ruling:

To deny entry of judgment. This ruling is without prejudice to Plaintiff seeking the

same relief on a more proper showing.

Explanation:

Plaintiffs seek entry of Court Judgment pursuant to defaults entered against

defendants on May 9th and 16th, 2017. The Proposed Judgement provides for Specific

Performance of the underlying agreement, among other provisions, as well as an

award of costs.

The Court cannot enter judgment for the following reasons:

1) Mandatory form CIV-100 has not been properly filled out; Item 6 has not

been signed under penalty of perjury.

2) The judgment seeks a conditional reformation of the agreement that is

the basis of the specific performance claim. Whatever the legal merits of a

conditional judgment, the relief is beyond that claimed in the Complaint.

Therefore, it cannot be part of the judgment. (Greenup v. Rodman (1986) 42

Cal.3d 822, 824 (In all default judgments, “the demand sets a ceiling on

recovery.”).)

3) The Doe Defendants have yet to be dismissed.

For all these reasons, the Court Judgment, as sought by the Plaintiff, cannot be

entered. Therefore, the Request is denied without prejudice to seeking entry of the

judgment at a later date after the submission of the proper paperwork.





Tentative Ruling

Issued By: MWS on 08/01/17


14

Tentative Rulings for Department 502

(2)

Tentative Ruling

Re: Soria et al. v. Mejia et al.



Motion: Petition to Compromise Minor’s Claim

Tentative Ruling:

To grant. Order signed. Hearing off calendar.





Tentative Ruling

Issued By: DSB on 07/25/17


15

(6)

Tentative Ruling

Re: Paul Evert’s RV v. Jones & Dyer

Superior Court Case No.: 17CECG01647


Motion: By Defendant Jones and Dyer, A Professional Corporation, to

change venue and for sanctions

Tentative Ruling:

To deny.

Explanation:

Generally for venue purposes, actions are classified as either “local” or

“transitory.” To determine whether an action is local or transitory, the court looks to the

“main relief” sought. Where the main relief sought is personal, the action is transitory.

Where the main relief relates to rights in real property, the action is local. (Brown v.

Superior Court (1984) 37 Cal.3d 477, 482.)

“Transitory” actions are those in which the claim may have arisen anywhere, and

are subject to the “general rule” of venue that the action be tried in the county of the

defendant’s residence. (Code Civ. Proc., § 395, subd. (a); Brown v. Superior Court,

supra, 37 Cal.3d 477, 483.)

“Local” actions are those dealing with land or certain other local relationships

that are deemed to require local adjudication, regardless of where the defendant

resides. (See Code Civ. Proc., § 392, subd. (a)(1) – action involving land in several

counties, venue proper in any of those counties.)

A “mixed” action is one which includes causes of action whose nature are both

local and transitory. In those instances, the transitory cause of action controls as to

venue. (Central Bank v. Superior Court (1973) 30 Cal.App.3d 913, 917-918.)

A mixed action can also be one in which “two or more defendants are named

who are subject to different venue standards. The identifying characteristic of mixed

actions is that two or more inconsistent venue provisions ... appear to be concurrently

applicable in the same case.” [Internal citation and quotation marks omitted.] (Brown

v. Superior Court, supra, 37 Cal.3d 477, 487.)

If venue is proper under the complaint as it stands at the time a motion for

change is made, it remains proper notwithstanding any later amendment to the

complaint. (Brown v. Superior Court, supra, 37 Cal.3d 477, 482.)

16

Here, at the outset of the action, the single cause of action for professional

negligence, a transitory cause of action, was alleged against a corporate defendant

and an individual defendant, thus creating a “mixed action” based on two sets of

venue rules. “In a mixed action, a plaintiff alleges two or more causes of action each of

which is governed by a different venue statute. Or, two or more defendants are named

who are subject to different venue standards. The identifying characteristic of mixed

actions is that two or more inconsistent venue provisions ... appear to be concurrently

applicable in the same case.” [Internal citation and quotation marks omitted.] (Brown

v. Superior Court, supra, 37 Cal.3d 477, 487.)

Code of Civil Procedure section 395.5 provides: “A corporation or association

may be sued in the county where the contract is made or is to be performed, or where

the obligation or liability arises, or the breach occurs; or in the county where the

principal place of business of such corporation is situated, subject to the power of the

court to change the place of trial as in other cases.” Section 395.5 was enacted in 1972

when section 16 of article XII of the California Constitution upon which it is based, was

repealed. (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, §849.)

Where a corporation was sued in Sutter County for a wrongful attachment

arising out of a levy on a bank account in Sutter County, it was not entitled to change

of venue to San Francisco in which it was claimed to have a principal place of business

because of the then-constitutional provision, now replaced by Code of Civil Procedure

section 395.5, that the corporation was amenable to suit in the county where liability

arose. (United Pacific Insurance Co. v. Superior Court (1967) 254 Cal.App.2d 897, 899.)

The liability here arose in Fresno County, where the underlying case giving rise to

the claims for professional negligence was litigated. (Complaint, ¶8.) Consequently,

venue was proper as to the Defendant Jones and Dyer, a Professional Corporation,

which could be sued here in Fresno County because that is where liability arose. (Code

Civ. Proc., § 395.5; United Pacific Insurance Co. v. Superior Court, supra, 254 Cal.App.2d

897, 899.) The motion is denied.





Tentative Ruling

Issued By: RTM on 07/31/17


17

(6)

Tentative Ruling

Re: Quicken Loans Inc. v. Tang

Superior Court Case No.: 17CECG00797


Motion: Default prove up

Tentative Ruling:

To deny, without prejudice. Any new hearing date must be obtained pursuant to

The Superior Court of Fresno County, Local Rules, rule 2.2.1.

Explanation:

Judicial foreclosure

The complaint does not contain a well-pleaded cause of action for judicial

foreclosure because it does not allege the interests of those other than the mortgagor

or that there are no such recorded interests on the property. (5 Witkin, Cal. Procedure

(5th ed. 2008) Pleading, § 675.) A defendant who defaults admits only facts well

pleaded in the complaint. Thus, if the complaint fails to state a cause of action, a

default judgment is erroneous and will be set aside on appeal. (Molen v. Friedman

(1998) 64 Cal.App.4th 1149, 1153-1154.)

No notice of lis pendens has been filed with the court in this action.

In a non-judicial foreclosure, the following procedures apply:

On the filing of a complaint, a notice that the action is pending (lis pendens)

should be recorded in each county where the property or any part of it is located. The

recordation of the lis pendens gives notices of the proceedings to all persons who

subsequently acquire an interest in or a lien upon the encumbered premises, and all

persons who acquire an interest or lien after the lis pendens is recorded take subject to

any foreclosure judgment rendered. (Dobbins v. Economic Gas Co. (1920) 182 Cal. 616,

622; Hibernia Savings & Loan Society v. Cochran (1904) 141 Cal. 653, 656; Johnson v.

Friant (1903) 140 Cal. 260, 262.) If a notice is not recorded, a subsequent purchaser or

encumbrancer for value who has no notice of the proceedings is not bound by any

judicial decree that may be rendered. (Carpenter v. Lewis (1897) 119 Cal. 18, 22.)

When the beneficiary establishes it is entitled to foreclose, the court first orders

that the encumbered property, or as much of it as may be necessary to satisfy the

obligation, be sold and the proceeds applied to the payment of the secured debt.

(Code Civ. Proc., § 726, subd. (a).)

18

The decree of sale must establish the amount of the secured indebtedness, and

unless a deficiency is prohibited because the debt is a purchase-money obligation, or

because the creditor has waived a deficiency, it must also determine the personal

liability of any defendant. When a deficiency is prohibited or waived, the decree must

state affirmatively that there is no personal liability of a defendant for a deficiency.

(Code Civ. Proc., § 726, subd. (b).)

Prior to the decree of foreclosure, the amount of attorney’s fees that can be

recovered is limited by statute. (Civ. Code, §§ 2924c, subd. (d) [before notice of sale is

deposited in the mail or prior to decree of foreclosure]; 2924d, subd. (a) [after notice of

sale is deposited in the mail and until the property is sold by the power of sale].) After

the decree of foreclosure has been entered, there is no statutory maximum fee that

may be recovered, except the fee must be “reasonable” as found by the court. (Code

Civ. Proc., § 726, subd. (a).) After the sale and the determination of any deficiency, in a

default situation such as here, the principal amount would be subject to an award of

attorney’s fees pursuant to The Superior Court of Fresno County, Local Rules, Appendix

A.

The beneficiary under the deed of trust may recover the fees that may be

necessary to enforce the secured obligation and to protect the property security, but

not fees expended pursuing collateral matters.

The complaint should name all persons who have a recorded interest in the

property at the time the action is filed, and whose interests will be affected by the

decree of foreclosure. (Code Civ. Proc., §726, subd. (c).)

The judgment that orders the sale of the property securing the deed of trust is

enforced by a writ of sale. (Code Civ. Proc., §716.010, subd. (a); 712.010, 716.010, subd.

(c).) After entry of the judgment, a writ of sale must be issued by the clerk upon

application of the judgment creditor that is directed to the levying officer in the county

where the property is located and delivered to the levying officer together with a

certified copy of the judgment for sale. (Code Civ. Proc., §§716.020, subd. (a); 712.030,

subd. (a); 712.040, subd. (a).)

The requirements for the contents of the notice of the writ are contained in Code

of Civil Procedure sections 712.020 and 716.010, subdivision (b). The writ of sale is levied

on the property described in the writ pursuant to the instructions of the judgment

creditor in the same manner as a writ of sale. (Code Civ. Proc., §§716.020, subd. (a);

712.030, subd. (a); 712.040, subd. (a).) The levying officer may not levy on or otherwise

seize the property after the expiration of 180 days from the date the writ was issued.

(Code Civ. Proc., §712.030, subd. (b).) The levy is made by recordation of the writ of

execution and a notice of levy, and by a mailing of the notice to the owner and

service on any occupant. (Code Civ. Proc., § 716.020, subd. (b).)

When the right to a deficiency judgment is not waived and the decree or

foreclosure provides for a deficiency judgment, the property is sold subject to the right

of redemption, except when the property is a leasehold estate with an unexpired term

of less than two years. (Code Civ. Proc., §§ 726, subd, (e); 729.010, subd. (a).)

19

Notice of sale must be given in the same manner as a writ of execution. (Code

Civ. Proc., §§ 701.540, 716.020, subd. (b).) The contents of the notice of sale are the

same as the notice for a trustee’s sale (Code Civ. Proc., § 701.540, subd. (a)), except

that when the judgment provides for a deficiency judgment, the notice of sale must

state that the sale is subject to the right of redemption and state the amount of the

secured debt with interests and costs. (Code Civ. Proc., § 729.010, subd. (b)(1).)

At least 20 days before the date of sale, the notice of sale must be served on the

trustor and persons who have liens on the property, personally or by mail (Code Civ.

Proc., §§701.540, subd. (d), 729.010, subd. (b)(3)), posted in a public place in the city

where the property is located and at a conspicuous place on the property, and served

on one occupant of the property at the time it is posed on the property. (Code Civ.

Proc., §§ 701.540, subds. (b)-(e).) The notice must also be published for three successive

weeks in a newspaper of general circulation in the city where the property is located,

with the first publication at least 20 days before the date of sale. (Code Civ. Proc.,

§701.540, subd. (g).) At least 30 days after the levy, the creditor must determine the

names of all persons who hold a lien on the property on the date of the levy and

whether such liens are senior to or junior to the foreclosed lien. A notice of sale must be

mailed to such persons at least 20 days before the date of sale at the addresses shown

in the recorder’s office. (Code Civ. Proc., §§ 701.540, subd. (h); 729.010.)

The sale then proceeds by way of auction to the highest bidder at the date,

time, and place specified in the county where the property is located. The sale must be

conducted between the hours of 9:00 a.m. and 5:00 p.m. on a business day. (Code Civ.

Proc., §701.570, subds. (a), (b).)

The proceeds of sales are paid in the following order of priority: (1) preferred

labor claims; (2) senior state tax liens; (3) the deposit by the beneficiary (if the

beneficiary is not the purchaser); (4) costs of sale; (5) to the beneficiary in the amount

to satisfy the lien being foreclosed; (6) to any judgment creditors who have delivered

writs to the levying officer and known junior lienors; and (7) the remaining balance to

the trustor. (Code Civ. Proc., § 701.810.)

Declaratory relief and reformation

The causes of action for declaratory relief and reformation are well-pleaded.

However, Plaintiff has submitted no proof in the prove-up documents, such as by

submission of a current title report, that show that Plaintiff’s deed of trust is senior to any

interest claimed by any subsequent lienholder, encumbrancer or creditor, as alleged in

¶35b of the complaint. Further, if the cause of action for judicial foreclosure were

properly alleged, the cause of action for declaratory relief would be unnecessary

because the judicial foreclosure action would give Plaintiff the relief it seeks, as

explained below.

The cause of action for declaratory relief is adequately alleged; however, the

court may refuse to exercise the power to grant declaratory relief in any case where its

declaration or determination is not necessary or proper at the time under all the

20

circumstances. (Code Civ. Proc., §1061.) “The availability of another form of relief that is

adequate will usually justify refusal to grant declaratory relief. The refusal to exercise the

power is within the court's legal discretion and will not be disturbed on appeal except

for abuse of discretion.” (Allstate Insurance Company v. Fisher (1973) 31 Cal.App.3d

391, 395.)

To obtain reformation of a written instrument, a party must generally allege and

show the following: (1) The true intention of the parties (Civ. Code §3399; American

Home Ins. Co. v. Travelers Indemnity Co. (1981) 122 Cal.App.3d 951, 961. The party

seeking relief must show the instrument as it was truly intended to be (Auerbach v.

Healy (1916) 174 Cal. 60, 62; Totten v. Underwriters At Lloyd's London (1959) 176 Cal.

App. 2d 440, 448]; (2) The agreement as it was, in fact, written (Civ. Code § 3399;

Holmes v. Anderson (1928) 90 Cal. App. 276, 282; and (3) that the failure of the writing to

reflect the true agreement resulted from a mutual mistake of fact, a unilateral mistake

of fact when the other party knew of the mistake or suspected it at the time, or fraud.

(Civ. Code § 3399.) The reformation cause of action is adequately pleaded.

Plaintiff Quicken Loans Inc. may either dismiss the cause of action for judicial

foreclosure and obtain a judgment of reformation or, in the alternative, amend the

complaint to allege the interests of others that may have recorded interests in the

property or that there are none, re-serve, and start over. (5 Witkin, supra, § 675.)

Costs

The memorandum of costs seeks costs in the amount of $1,468.13, when Plaintiff

paid $435.00 for a first appearance fee and $20.00 for a stipulation fee. The remaining

$1,013.13 in costs needs to be substantiated or removed from the memorandum of

costs, keeping in mind that permissible costs are those in Code of Civil Procedure

section 1033.5.





Tentative Ruling

Issued By: RTM on 08/01/17


21

Tentative Rulings for Department 503 (5)

Tentative Ruling

Re: NGC Construction, Inc. et al. v. Tri-Valley Plastering et al.

Consolidated Superior Court Case No. 16 CECG 03110 (Lead

Case)

Tri-Manufacturing, Inc. et al. v. NGC Construction, Inc.et al.

Superior Court Case No. 16 CECG 03114


Motion: Demurrer to the Second Amended Complaint of the non-

lead case in the Consolidated Action by Defendants Foam

Design, LLC and Reliable Building Supplies, Inc. and

Rekenthaler

Tentative Ruling:

To sustain the general demurrer to the seventh cause of action without leave to

amend.

Explanation:

Seventh Cause of Action—Breach of Fiduciary Duty

“A fiduciary relationship is ‘any relation existing between parties to a transaction

wherein one of the parties is in duty bound to act with the utmost good faith for the

benefit of the other party. Such a relation ordinarily arises where a confidence is

reposed by one person in the integrity of another, and in such a relation the party in

whom the confidence is reposed, if he voluntarily accepts or assumes to accept the

confidence, can take no advantage from his acts relating to the interest of the other

party without the latter's knowledge or consent. …’” [Wolf v. Superior Court (2003) 107

Cal.App.4th 25, 29 (internal citations omitted).] “[B]efore a person can be charged with

a fiduciary obligation, he must either knowingly undertake to act on behalf and for the

benefit of another, or must enter into a relationship which imposes that undertaking as

a matter of law.” [Citation.]’ ” (Cleveland v. Johnson (2012) 209 Cal.App.4th 1315, 1338

[147 Cal.Rptr.3d 772].) A defendant can be liable for aiding and abetting breach of

fiduciary duty without owing the plaintiff a fiduciary duty citing American Master Lease

LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451 See also Berg & Berg

Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802.

22

Alter Ego Doctrine

A creditor may seek to disregard the corporate entity, and hold individuals liable

on obligations of a corporation, where the corporate form is used to accomplish a

fraudulent object. This is not an action based on fraud, for the cause of action and

remedy sought may have nothing to do with fraud. The complaint merely sets forth

additional facts of improper domination of the corporation as a basis for judgment

against the individuals. [See Hennessey's Tavern v. American Air Filter Co. (1988) 204

Cal.App.3d 1351, 1359]) In other words, the doctrine is used to hold individuals liable for

the obligations of the corporation.

In the case at bench, the demurring Defendants are NGC Construction, Inc.,

dba NGC Drywall; Foam Design, LLC; Reliable Building Supplies, Inc. and Brian

Rekenthaler. There are no allegations that the corporate entities or Rekenthaler

participated in any of the alleged wrongdoing undertaken by the individual

Defendants with respect to “aiding and abetting” Gibson in her breach of her fiduciary

duties. See ¶¶ 75-84 of the Second Amended Complaint. In opposition, Plaintiffs seek

to use the alter ego doctrine to hold the corporate entitles liable for the alleged “aiding

and abetting” of the individuals. This makes no sense. Therefore, the general demurrer

will be sustained without leave to amend.

Pursuant to California Rules of Court, Rule 391(a) and Code of Civil Procedure §

1019.5, subd. (a), no further written order is necessary. The minute order adopting this



Tentative Ruling

Issued By: A.M. Simpson on 07/28/17


23


Re: Soto v. Saint Agnes Medical Center



Motion: Motion for Leave to Amend Complaint.

Tentative Ruling:

To grant the motion for leave to file a Second Amended Complaint containing

additional causes of action.

To grant the motion for leave to file punitive damages against Defendants

Pervaiz Chaudhry, M.D., Valley Cardiac Surgery Medical Group, and Chaudhry

Medical, Inc. To deny the motion as to all other defendants.

To deny the motion with respect to proposed Defendant Ramesh Pamula, M.D.

in accordance with the concession by Plaintiffs in the Additional Declaration of Ricardo

Echevarria, Esq.

Plaintiff shall file a Second Amended Complaint in conformity with this ruling

within five (5) court days of issuance of this order.

Explanation:

Here, by one motion, Plaintiffs seek to do two separate, but related, things. First,

Plaintiffs seek to amend their complaint to add several causes of action. Second, they

seek to amend the complaint to add punitive damages claims for damages arising out

of the professional negligence of a health care provider pursuant to Code of Civil

Procedure §425.13, subd.(a).

Motion for Leave to Amend to Add New Claims

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.) The Court will not

normally consider whether the cause of action is legally sufficient on a motion to

amend, leaving that for challenge by a subsequent demurrer. (Kittredge Sports Co. v.

Superior Court (1989) 213 Cal.App.3d 1045, 1048.)

In supporting a motion for leave to amend a moving party must also attach a

declaration specifying “(1) the effect of the amendment; (2) why the amendment is

necessary and proper; (3) when the facts giving rise to the amended allegations were

discovered; and (4) the reasons why the request for amendment was not made

earlier.” (Cal. Rule of Ct. 3.1324, subdivision (b).).

24

The declaration provided with Plaintiff’s initial motion was insufficient. The Court

asked for further briefing and for a declaration meeting the standards of Rule of Court

3.1324.

According to the new declaration, Plaintiff’s motion is based on evidence that

appears to have been available to Plaintiff beginning in 2015. The reasons proffered for

the delay do not entirely address a reason for the delay.

However, denial of a motion for leave to amend is rarely justified, especially

where there is no prejudice to the other side. (Bettancourt v. Hennessy Indus., Inc. (2012)

205 Cal.App.4th 1103, 1111; Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.)

The objections to the declaration are overruled as going to the weight of the evidence

and not to their admissibility.

Therefore, the motion for leave to amend, to add the new causes of action, is

granted.

The Court notes that Plaintiffs have conceded that the opposition of proposed

Defendant Ramesh Pamula, M.D. is well-taken, and, therefore, they do not proceed

with their motion to add Dr. Pamula as a defendant. Therefore, the motion is denied

with respect to Dr. Pamula.

Motion for Leave to Allege Punitive Damages

The motion for leave to allege punitive damages is, however, subject to different

legal standards.

No claim for punitive damages may be included in an original complaint in any

action “for damages arising out of the professional negligence of a health care

provider.” (Code Civ.Proc. §425.13, subd.(a).) The parties appear to concede that the

Defendants meet the definition of “health care provider.”

To assert a claim for punitive damages, a plaintiff must file a motion to amend

the complaint within two years after the original complaint was filed or 9 months before

the date the matter is first set for trial, whichever is earlier. (Code Civ.Proc. §425.13,

subd.(a).)

The motion must be supported by affidavits (or declarations) stating facts

sufficient to support a finding that there is a substantial probability plaintiff will prevail on

the claim. (Pomona Valley Hosp. Med. Ctr. v. Superior Court (2013) 213 Cal.App.4th 828,

836-37.)

A “substantial probability” means that the plaintiff must show: (1) a legally

sufficient claim; and (2) a claim that is substantiated by competent, admissible

evidence. (Id. at 836.) The burden is on the plaintiff to produce clear and convincing

evidence that, if accepted by the trier of fact, would establish a prima facie showing of

“malice, oppression or fraud.”) (Looney v. Superior Court (1993) 16 Cal.App.4th 521,

25

538.) The Court does not weigh conflicting evidence or predict the likely outcome.

(College Hosp. v. Superior Court (1994) 8 Cal.4th 704, 709.)

Here, the initial First Amended Complaint, as well as the allegations contained in

the proposed Second Amended Complaint, do contain causes of action that would

support punitive damages in the abstract; that is to say, the various claims are the sort

for which punitive damages can be available as a legal matter, and it does not appear

that Defendants dispute this.

The individual sets of Defendants oppose the motion on various grounds, but

their arguments can be summarized as: 1) the actions pleaded in the proposed Second

Amended Complaint does not arise to a legally sufficient claim; and 2) the evidence

presented by Plaintiffs in support of this motion does not satisfy the requirements to show

a prima facie case.

Punitive damages are governed by Civil Code §3294:

(a) In an action for the breach of an obligation not arising from contract, where

it is proven by clear and convincing evidence that the defendant has been

guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual

damages, may recover damages for the sake of example and by way of

punishing the defendant.

(b) An employer shall not be liable for damages pursuant to subdivision (a),

based upon acts of an employee of the employer, unless the employer had

advance knowledge of the unfitness of the employee and employed him or her

with a conscious disregard of the rights or safety of others or authorized or ratified

the wrongful conduct for which the damages are awarded or was personally

guilty of oppression, fraud, or malice. With respect to a corporate employer, the

advance knowledge and conscious disregard, authorization, ratification or act

of oppression, fraud, or malice must be on the part of an officer, director, or

managing agent of the corporation.

(c) As used in this section, the following definitions shall apply:

(1) “Malice” means conduct which is intended by the defendant to

cause injury to the plaintiff or despicable conduct which is carried on by

the defendant with a willful and conscious disregard of the rights or safety

of others.

(2) “Oppression” means despicable conduct that subjects a person to

cruel and unjust hardship in conscious disregard of that person's rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or

concealment of a material fact known to the defendant with the

intention on the part of the defendant of thereby depriving a person of

property or legal rights or otherwise causing injury.

Whether the Allegations Are Legally Sufficient

The allegations in the Second Amended Complaint allege that the defendants

failed to inform decedent of various material facts related to the surgery, including the

risks associated with the surgery (SAC ¶27) and the surgeon’s relative lack of expertise in

26

invasive surgery (SAC¶ 29). Plaintiffs also allege that the behavior of the surgeon

(Defendant Chaudhry) with respect to the surgery was part of a pattern of misconduct

and that this pattern was known to Saint Agnes Medical Center. (SAC ¶33.) Plaintiffs

also allege that Defendants engaged in surgery without consent, thus constituting a

battery (SAC ¶¶ 82-96) and “wanton and reckless misconduct” (SAC ¶¶ 98-102).

Plaintiffs allege that the Defendants concealed material information, specifically, who

would be performing the surgery and what the risks of the surgery were. (SAC ¶¶ 104-

124.) Throughout, Plaintiffs allege that the various corporate entities knew or should

have known of the risks of the issues encompassed by the actions alleged in the

Second Amended Complaint. Therefore, it does appear that the allegations of the

proposed Second Amended Complaint rise to the level of “oppression, fraud, or

malice” required to obtain punitive damages.

Whether Plaintiffs Have Provided Sufficient Evidence of a Prima Facie Case.

Plaintiffs have provided a wealth of documentary evidence in support of their

motion. They have submitted transcripts and paperwork from other cases involving

Defendant Chaudhry. Much of this evidence is, as pointed out by Defendants,

extraneous; the evidence of wrong-doing in other cases is irrelevant to the present one

except insofar as Plaintiffs can show that this put the corporate defendants on notice

with respect to Defendant Chaudhry’s fitness to perform surgery. However, it does not

appear from the evidence presented that there is evidence of this in the materials

provided.

The motion should therefore be denied for the following reasons as to the

following defendants:

As to defendant Dr. Cohler: The evidence provided with respect to his behavior

does not affirmatively show that Dr. Choler performed surgery without consent.

Moreover, even if he had, it is probably incumbent on Plaintiffs to make some showing

that the obvious emergency defense was inapplicable. In short, the evidence does not

show that Dr. Cohler engaged in a malicious, fraudulent, or oppressive manner.

As to defendant Saint Agnes Medical Center: The evidence provided does not

appear to show that, as of the time of the surgery, Defendant Saint Agnes was on

notice as to Dr. Chaudhry’s alleged unfitness to perform surgery. There are allegations

that Saint Agnes should have performed a more thorough background check on

Chaudhry, but there is nothing in the evidence to support the conclusion that had Saint

Agnes performed that more thorough search, any evidence would have been found.

As such, there is insufficient evidence to charge Saint Agnes with the knowledge or

ratification of Dr. Chaudhry’s actions.

As to Defendants Pervaiz Chaudhry, M.D., Valley Cardiac Surgery Medical

Group, and Chaudhry Medical, Inc. (“Chaudhry”): As noted by Chaudhry, there is no

evidence presented by Plaintiffs to show that Chaudhry’s leaving decedent’s bedside

constituted “abandonment” or that such abandonment caused decedent’s death.

Moreover, there appears to be no evidence that Dr. Chaudhry handed the surgery to

27

an assistant, as such, when the evidence appears to show that those assisting Dr.

Chaudhry were also all qualified surgeons.

However, there is evidence that Dr. Chaudhry did not give the decedent

sufficient information relating to the risks inherent in this surgery in the form of evidence

given by decedent’s wife, who has testified that no such warnings were given.

Chaudhry contends that these warnings were given and cites to evidence of this

assertion, but in this procedural posture, such evidence cannot be considered.

Engaging in surgery without providing a patient of the full knowledge of the rises would

constitute despicable conduct sufficient to support punitive damages. Therefore, the

motion for leave to file punitive damages claim against the Chaudhry defendants is

granted.

Plaintiff shall file a Second Amended Complaint containing allegations in

conformity with this ruling within five (5) court days of issuance of this order.





Tentative Ruling

Issued By: A.M. Simpson on 07/31/17
