tentative rulings for december 6, 2017 departments 402 ... · 17cecg01087 cypress insurance v....
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Tentative Rulings for December 6, 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).)
16CECG03895 Guerrero v. Owens (Dept. 402)
17CECG01087 Cypress Insurance v. Owens (Dept. 402)
The court has continued the following cases. The deadlines for opposition and reply
papers will remain the same as for the original hearing date.
15CECG02629 Anderson v. The Bertelsman Living Trust is continued to Tuesday,
January 9, 2018, at 3:30 p.m. in Dept. 503.
17CECG01022 Richard Best Transfer, Inc. v. Archer Daniels Midland Company, et
al. is continued to Thursday, December 14, 2017, at 3:30 p.m. in
Dept. 503.
________________________________________________________________
(Tentative Rulings begin at the next page)
Tentative Rulings for Department 402
(2)
Tentative Ruling
Re: In re Juan Gonzalez, Jr.
Superior Court Number: 17CECG03576
Hearing Date: December 6, 2017 (Dept. 402)
Motion: Petition to Compromise Minor’s Claim
Tentative Ruling:
To grant. Order signed. Hearing off calendar.
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 12/05/17
(Judge’s initials) (Date)
(30)
Tentative Ruling
Re: M. Paul Humphreys v. Community Behavioral Health Center;
Marissa P. Dizon, R.N.; and Does 1 to 10, inclusive
Superior Court No. 17CECG01068
Hearing Date: December 6, 2017 (Dept. 402)
Motion: Defendant Marissa P. Dizon’s Demurrer and Motion to Strike to SAC
Tentative Ruling:
To Overrule demurrers to causes of action one and three.
To Sustain demurrer to cause of action two.
To Deny the motion to strike.
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. Changes must be made in bold typeface.
Explanation:
DEMURRER
COA 1: Violation of Civil Code section 56 et. seq.
California Civil Code section 56 et. seq., also referred to as the Confidentiality of
Medical Information Act (CMIA) protects private medical information from certain
disclosures by medical care providers. In part it states, "[a] provider of health care...
shall not disclose medical information regarding a patient of the provider of health
care... without first obtaining an authorization." (Cal. Civ. Code § 56.10, subd. (a).)
More, "[e]ach employer who receives medical information shall establish appropriate
procedures to ensure the confidentiality and protection from unauthorized use and
disclosure of that information." (Id. at § 56.20.) And CMIA defines “Medical information"
as "individually identifiable information, in electronic or physical form, in possession of or
derived from a provider of health care..." (Id. at § 56.05, subd. (j).)
Here, Plaintiff adequately alleges facts to support a cause of action. Plaintiff alleges
that Defendant orally communicated his private medical information without
authorization. (SAC p4 ¶¶3-4.) Defendant argues that Plaintiff fails in that he does not
allege that the information was in electronic or physical form. And in support thereof,
Defendant points to legislative history. However, Defendant ignores a vast body of
precedent which recognizes oral communications as qualifying events. (see e.g.
Regents of University of California v. Superior Court (2013) 220 Cal.App.4th 549; Oiye v.
Fox (2012) 211 Cal.App.4th 1036, 1068; Shaddox v. Bertani (2003) 110 Cal.App.4th 1406;
Maureen K. v. Tuschka (2013) 215 Cal.App.4th 519, 531; and Brown v. Mortensen (2011)
51 Cal.4th 1052, 1071.) Overruled.
COA 2: Invasion of privacy, intrusion into private affairs
An action for intrusion has two basic elements: (1) intrusion into a private place,
conversation or matter, and (2) in a manner highly offensive to a reasonable person.
(Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231.) Plaintiff may allege
element one by asserting the Defendant penetrated some zone of physical or sensory
privacy surrounding, or obtained unwanted access to data about Plaintiff. (Id. at 232.)
Here, Plaintiff fails to allege element one, intrusion. Though Plaintiff alleges that
Defendant accessed the private data (SAC, p4 ¶3), Plaintiff does not allege that the
access was “unwanted.” Plaintiff submits evidence of intrusion via Declaration (see
Moeck Dec., filed: 11/21/17 Ex. A), but a demurrer tests the pleading alone, not the
evidence or other extrinsic matters except that which is judicial noticeable. (Code Civ.
Proc., § 430.30; Atascadero v. Merrill Lynch (1998) 68 Cal.App.4th 445, 459.) The sole
issue on demurrer is whether the facts as pleaded state a valid cause of action. (Del E.
Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604; Berg & Berg
Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.) Sustained.
COA 3: Invasion of privacy, public disclosure of private facts
An action for public disclosure has four elements: “(1) public disclosure (2) of a private
fact (3) which would be offensive and objectionable to the reasonable person and (4)
which is not of legitimate public concern.” (Moreno v. Hanford Sentinel, Inc. (2009) 172
Cal.App.4th 1125, 1129-1130.) But the disclosure must be “be widely published and not
confined to a few persons or limited circumstances.” (Hill v. National Collegiate Athletic
Ass'n (1994) 7 Cal.4th 1, 27; Shulman, supra, 18 Cal.4th 200, 214.)
Here, Plaintiff fails to allege element one, public disclosure. Plaintiff only alleges that the
disclosure was to one person, Matthew Shelton. (SAC, p8 ¶3.) This is insufficient to meet
the requirements set forth by precedent.
COA 3: Invasion of privacy, Article I, § 1 of the California Constitution
Any valid cause of action overcomes demurrer. It is not necessary that the cause of
action be the one intended by plaintiff. The test is whether the complaint states any
valid claim entitling plaintiff to relief. Thus, plaintiff may be mistaken as to the nature of
the case, or the legal theory on which he or she can prevail. But if the essential facts of
some valid cause of action are alleged, the complaint is good against a general
demurrer. (Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38-39;
Adelman v. Associated Int'l Ins. Co. (2001) 90 Cal.App.4th 352, 359; Sheehan v. San
Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.)
Thus, the elements of a claim for invasion of privacy based on the California
Constitution are: "(1) a legally protected privacy interest; (2) a reasonable expectation
of privacy in the circumstances; and (3) conduct by defendant constituting a serious
invasion of privacy [citations]." (Pettus v. Cole (1996) 49 Cal.App.4th 402, 439.) More,
widespread public dissemination is not required. (Hill v. National Collegiate Athletic
Ass'n, supra, 7 Cal.4th at 27.)
Here, the facts asserted in support of cause of action three support a valid cause of
action based upon the California Constitution. Again, Plaintiff alleges that Defendant
orally communicated his private medical information to at least one person without
authorization. (SAC p4 ¶¶3-4; p8 ¶3.) More, as articulated above, this analysis is
permissible despite misnomer. Overruled.
MOTION TO STRIKE
Generally, a party filing a motion must serve and file a supporting memorandum. (Cal.
Rules of Court, rule 3.1113, subd. (a).) It must contain a statement of facts, a concise
statement of the law, evidence and arguments relied on, and a discussion of the
statutes, cases, and textbooks cited in support of the position advanced. (Id. at subd.
(b).) The Court may construe the absence of any such memorandum as an admission
that the motion is not meritorious and cause for its denial. (Id. at subd. (a).)
Here, Defendant calendared a motion to strike, but failed to file any supporting
memorandum. 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: JYH on 12/05/17
(Judge’s initials) (Date)
(28) Tentative Ruling
Re: Genthner v. First Health Medical Center of Fresno, Inc.
Case No. 16CECG01395
Hearing Date: December 6, 2017 (Dept. 402)
Motion: By Defendants Ryan Rustigan D.C., and Jeanette Harris, D.C.,
demurring to the Second Amended Complaint.
By defendants moving to strike portions of the same.
Tentative Ruling:
To sustain the demurrer in its entirety with leave to amend. Plaintiff shall have ten
(10) court days from the date of this order in which to file a Third Amended Complaint.
All new or changed allegations shall be set forth in boldface typeset.
To grant the motion to strike the claims for punitive damages without prejudice
to Plaintiff’s ability to seek leave to amend to add a claim for punitive damages
pursuant to Code of Civil Procedure §425.13, assuming all other procedural
requirements are met. To grant the motion to strike the Second, Third, and Fourth
Causes of Action in the Second Amended Complaint without prejudice to Plaintiff’s
ability to seek leave to amend to add these causes of action, assuming all other
procedural requirements are met.
Explanation:
(Note-as of December 4, 2017, no opposition to the Demurrer and Motion to
Strike appears in the Court’s files.)
Defendants Ryan Rustigan D.C., and Jeanette Harris, D.C., have filed a demurrer
to the Second Amended Complaint (SAC) and seek to strike portions of the same.
Demurrer
First, it should be noted that the demurrer violates California Rule of Court 3.1320
insofar that the grounds for the demurrer are not set forth in a separate paragraph or
state whether each ground applies to the entire complaint. (CRC 3.1320, subd.(a).)
As to the merits, a general demurrer admits the truth of all material allegations
and a Court will “give the complaint a reasonable interpretation by reading it as a
whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996)
14 Cal.4th 294, 300.) The standard of pleading is very liberal and a plaintiff need only
plead “ultimate facts.” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) However,
a plaintiff must still plead facts giving some indication of the nature, source, and extent
of the cause of action. (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 719.)
Defendant contends that the statute of limitations for medical malpractice
applies to this case. This statute is “three years after the date of injury or one year after
the plaintiff discovers, or through the use of reasonable diligence should have
discovered, the injury, whichever occurs first.” (Code Civ.Proc. §340.5.) Unlike most
other limitations periods, this statute is generally not tolled or extended. (Gutierrez v.
Mofid (1985) 39 Cal.3d 892, 896.)
Although Plaintiff did not file an opposition, she did allege in her Second
Amended Complaint that the statute of limitations for personal injury is two years. (SAC
¶9.) Plaintiff is correct about this, but the personal injury statute does not apply to this
case. In determining whether a claim is barred by the statute of limitations, the court
must look to the “gravamen of the complaint.” (Carter v. Prime Healthcare Paradise
Valley, LLC (2011) 198 Cal.App.4th 396, 411.) Here, even though the claims are for
breach of fiduciary duty and negligence, it is clear that the allegations describe injuries
“arising out of the professional negligence of a health care provider,” and so the
medical malpractice statute of limitations applies, not the personal injury or negligence
statutes. (E.g., Central Pathology Service Medical Center (1992) 3 Cal.4th 181, 191-92
(concerning claims for punitive damages); see also Carter, supra, 198 Cal.App.4th at
412-13 (claim presented as “willful misconduct” analyzed as medical malpractice for
statute of limitations purposes); Bellamy v. Appellate Department (1996) 50 Cal.App.4th
797, 805-06 (medical malpractice statute, not personal injury statute, applied when
patient injured in fall from gurney because injury related to medical care). Section 340.5
applies to this case, and, in order to be timely, the complaint would have had to be
filed within one year after discovery of the injury or three years after the injury caused
by Defendants.
Defendants are chiropractic doctor who is alleged to have worked on Plaintiff
between January 16, 2014 and March 25, 2014. Moreover, the First Amended
Complaint stated that a “foreign body” was discovered on October 7, 2014 which
Plaintiff alleges the scans conducted by Defendant should have discovered. Therefore,
from Plaintiff’s previous pleading, Plaintiff had knowledge of injury as of October, 2014,
rendering the complaint untimely, as it was filed on April 25, 2016.
In the Second Amended Complaint, Plaintiff makes several references to a
“foreign body” as the source for the injury. Plaintiff thereby appears to be relying on the
“foreign body” tolling exception to Section 340.5. Under this provision, the statute is
delayed until patient discovers or through reasonable diligence should have
discovered a foreign body as the negligent cause of injuries, even where there was
suspicion that the injuries resulted from other forms of malpractice. (Ashworth v.
Memorial Hospital (1988) 206 Cal.App.3d 1046, 1057.) But Plaintiff’s Second Amended
Complaint says that this body was found by the X-rays in January, 2014. (SAC ¶17.)
Therefore, the statute of limitations would have expired before the complaint was filed.
The Second Amended Complaint is devoid of claims involving fraud or intentional
concealment as well. There is, simply, no other ground appearing in the Second
Amended Complaint that would toll the statute of limitations.
Defendants make arguments in their memorandum of points and authorities
that the second and third causes of action do not state facts sufficient to support the
causes of action. However, the Demurrer did not actually individually contest those
causes of action in accordance with California Rule of Court 3.1320, subdivision (a),
and there is no argument on these grounds with respect to the first or fourth causes of
action. As a result, the demurrer cannot be sustained on those grounds.
Defendants also argue that the causes of action are uncertain and ambiguous
under Code of Civil Procedure §430.10, subdivision (f). However, the argument contains
no legal citation (other than to the statute) and, while the individual allegations may be
extraneous or unnecessary, there is no basis for granting a demurrer; the complaint,
while not a model of clarity or efficiency, is, at least, understandable. (Khoury v. Maly’s
of California, Inc. (1993) 14 Cal.App.4th 612, 616 (demurrer for uncertainty granted only
where a defendant cannot reasonably respond because they cannot determine what
issues must be admitted or denied). Therefore, the demurrer cannot be sustained on
these grounds.
Nevertheless, for the reasons stated above, the demurrer is sustained with leave
to amend to allege some grounds for tolling or delayed discovery of the injury such that
it would fall within the applicable statute of limitations.
Motion to Strike
Defendant moves to strike the punitive damages allegations as well as the
Second, Third and Fourth Causes of Action.
Defendant notes that, because it is a health care provider, Plaintiff must first
comply with Code of Civil Procedure §425.13 before validly alleging a claim for punitive
damages. As noted by Defendants, all the claims derive from treatment of Plaintiff by a
medical provider and are all covered by the requirements, even though some are
styled as intentional torts. (See Central Pathology Service Medical Clinic, Inc. v. Superior
Court (1991) 3 Cal.4th 181, 192.) Therefore, the motion to strike should be granted until
such time as Plaintiff complies with Section 425.13.
Defendants also move to strike the Second, Third, and Fourth causes of action
because Plaintiff did not seek permission to amend the complaint to add these new
causes of action. A plaintiff may not add new causes of action unless they have first
obtained permission. (Harris v. Wachovia Mortg. (2010) 185 Cal.App.4th 1018, 1023.)
Here, Plaintiff did not seek leave of the Court before alleging the new causes of action.
Therefore, the motion to strike should be granted without prejudice to Plaintiff’s ability to
seek leave to amend to allege these claims.
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: JYH on 12/05/17
(Judge’s initials) (Date)
Tentative Rulings for Department 403
03
Tentative Ruling
Re: Silvas Oil Company, Inc. v. Orange Grove Industrial Park, LLC
Case No. 16 CE CG 03101
Hearing Date: December 6th, 2017 (Dept. 403)
Motion: Intervenor FMC Corporation’s Motion for Order Entering
Stipulated Final Judgment and Permanent Injunction
Tentative Ruling:
To grant the motion for an order entering the stipulated final judgment and
permanent injunction. (Code Civ. Proc. § 664.6.)
Explanation:
FMC moves to enforce the settlement agreement under Code of Civil Procedure
section 664.6, which states, “If parties to pending litigation stipulate, in a writing signed
by the parties outside the presence of the court or orally before the court, for
settlement of the case, or part thereof, the court, upon motion, may enter judgment
pursuant to the terms of the settlement. If requested by the parties, the court may
retain jurisdiction over the parties to enforce the settlement until performance in full of
the terms of the settlement.”
Here, the parties have entered into a settlement agreement in writing outside
the presence of the court, and they all signed the agreement. (Exhibit 1 to Cornwell
decl.) The agreement also expressly states that the court retains jurisdiction to enforce
the settlement. (Id. at ¶ 5.) In addition, the parties signed a stipulated final judgment
and permanent injunction. (Exhibit 2 to Cornwell decl.) Therefore, the court intends to
grant the requested relief and enter judgment pursuant to the terms of the settlement.1
Pursuant to CRC 3.1312 and CCP §1019.5(a), no further written order is necessary.
The minute order adopting this tentative ruling will serve as the order of the court and
service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: KCK on 12/04/17
(Judge’s initials) (Date)
1 There does not appear to be any reason the parties could not have simply submitted the stipulated judgment for the
court’s signature without setting a motion to enforce the settlement agreement. Such motions are usually only necessary
when one of the parties to the settlement refuses to cooperate in enforcing the agreement. Here, all the parties are in
agreement, so a motion to enforce is not required. Nevertheless, there does not appear to be any reason why the court
should not enter the requested judgment.
(30)
Tentative Ruling
Re: Jesse Emmett v. Pholy Tuon
Superior Court No. 17CECG01566
Hearing Date: December 6, 2017 (Dept. 403)
Motion: Cross-Defendant Lenden Webb and Webb Law Group’s Demurrer
to Cross-Complaint
Tentative Ruling:
To Overrule all demurrers on behalf of Cross-Defendant Attorney Webb, except that
directed at cause of action seven. Plaintiff is granted ten days leave to amend cause
of action seven only. (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. All
amendments must be in bold type-face.
To Sustain all demurrers on behalf of Cross-Defendant Webb Law Group, no leave to
amend is granted.
Explanation:
Civil Conspiracy
The elements of a civil conspiracy are (1) formation and operation of the conspiracy,
(2) damage resulting to plaintiff, and (3) from an act done in furtherance of the
common design. (I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th
257, fn.2; Prakashpalan v. Engstrom, Lipscomb and Lack (2014) 223 Cal.App.4th 1105,
1136.) But the essence of a civil conspiracy claim is that it is merely a mechanism for
imposing vicarious liability; it is not itself a substantive basis for liability. So there is no civil
action for conspiracy to commit a recognized tort unless the wrongful act itself is
committed and damage results therefrom. (Favila v. Katten Munchin (2010) 188
Cal.App.4th at 206; City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 211-
212.)
Here, Cross-Complainant adequately supports her civil conspiracy claim with the
following allegations of direct involvement and self-help by Cross-Defendants: After
unilaterally deciding that the operative deed was a fraud, Cross-Defendant Webb
accompanied Plaintiff Emmett and the police to a partnership property and informed
tenants that Cross-Complainant was no longer entitled to rents. (XC, ¶¶ 15-16.) Cross-
Defendant Webb then sent tenants a follow-up letter which included a copy of the
outdated deed and reiterated misrepresentations made during the earlier encounter.
(Ibid.) These allegations provide the foundation for her civil conspiracy claim by
supporting: cause of action two (intentional misrepresentation), cause of action five
(intentional interference with contractual relations), and cause of action eight (slander
of title). Overruled.
COA 2: Intentional Misrepresentation
Intentional misrepresentation requires: a misrepresentation, knowledge of falsity, intent
to induce reliance, justifiable reliance, and resulting damages. (Robinson Helicopter
Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990; Lazar v. Sup.Ct. (1996) 12 Cal.4th 631,
638; Behnke v. State Farm Gen. Ins. Co. (2011) 196 Cal.App.4th 1443, 1452-1453.) Also, it
must be pled specifically; general and conclusory allegations do not suffice. This
requirement necessitates pleading facts which show how, when, where, to whom, and
by what means the representations were tendered. (Morgan v. AT &T Wireless Services,
Inc. (2009) 177 Cal.App.4th 1235, 1261-1262; see also Lazar, supra, 12 Cal.4th at 645.)
Moreover, an attorney may not, with impunity, either conspire with a client to defraud
or injure a third person, or engage in intentional tortious conduct toward a third person.
(Panoutsopoulos v. Chambliss (2007) 157 Cal.App.4th 297 holding that an attorney may
be held liable for conspiring with his or her client to commit actual fraud; see also
Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 109; Bus. & Prof. §
6068, subd. (d).)
Here, Cross-Complainant alleges adequate facts to plead intentional
misrepresentation. She alleges that in April 2017, Plaintiff Emmett along with Cross-
Defendant Webb knowingly misrepresented the ownership of certain partnership
properties so that they could freeze her out of the rents and profits resulting therefrom.
(XC, ¶¶ 15, 28-36.) Tenants reasonably relied on those representations and stopped
sending Cross-Complainant their payments. (Id. at ¶35.) Cross-Complainant’s damages
(as a result thereof) are in the form of lost profits. (Id. at ¶¶ 35-36.) Overruled.
COA 5: Intentional Interference with Contractual Relations
Intentional interference with contractual relations requires: a valid contract between
plaintiff and a third party; defendant’s knowledge of this contract; defendant’s
intentional acts designed to induce a breach or disruption of the contractual
relationship; actual breach or disruption of the contractual relationship; and resulting
damage. (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.)
And again, an attorney may not, with impunity, conspire with a client to engage in
intentional tortious conduct toward a third person. (Panoutsopoulos, supra, 157
Cal.App.4th 297; Roberts, supra, 57 Cal.App.3d at 109.)
Here, Cross-Complainant alleges adequate facts to plead intentional interference with
contractual relations. First, she alleges valid lease agreements between herself and
tenants. (XC, ¶¶ 48-50.) Next, she alleges knowledge of the agreements on behalf of
Plaintiff Emmett as well as Cross-Defendant Webb. (Id. at ¶¶ 15-16 [Attorney Webb
instructed tenants to “destroy their old leases,” which admits knowledge]; see also ¶ 50.)
Third, Cross-Complainant alleges intent: when Plaintiff Emmett and Cross-Defendant
Webb informed tenants that the partnership properties were exclusively owned by
Plaintiff Emmett, they intended to disrupt the performance of the lease agreements. (Id.
at ¶¶ 15, 51.) Finally, actual disruption and damages resulted when the tenants stopped
paying rent. (Id. at ¶¶ 52-53.) Overruled.
COA 7: Business and Professions Code section 17200
“The UCL [Unfair Competition Law] prohibits, and provides civil remedies for, unfair
competition, which it defines as ‘any unlawful, unfair, or fraudulent business act or
practice.’” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 320 [quoting Bus. &
Prof. Code, § 17200].) More specifically, the UCL aims to prevent both anticompetitive
business practices as well as fraud, deceit, and unlawful conduct directed towards
consumers. (Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499; see also Bank
of the West v. Sup.Ct. (1992) 2 Cal.4th 1254, 1266-1267.) To state a claim based on an
“unlawful” business act or practice, the complaint must allege: the specific unlawful
conduct; that the unlawful conduct is a business practice; and that as a result of this
practice, defendant has received ill-gotten gains, including plaintiff’s money or
property. (Bus. & Prof. Code, §§ 17200; 17204.)
Here, Cross-Complainant fails to adequately allege a violation of the UCL. There are no
facts to support a finding of unlawful business practices because there is no unfair
competition or consumer fraud (e.g. there are no allegations of misrepresentations to
consumers with the intent to unfairly compete). Sustained.
COA 8: Slander of Title
The elements of slander of title are: a publication, which is without privilege or
justification, which is false, and which causes direct and immediate pecuniary loss.
(Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1050; Truck
Ins. Exchange v. Bennett (1997) 53 Cal.App.4th 75, 84.) And again, an attorney may not,
with impunity, conspire with a client to defraud or injure a third person, or engage in
intentional tortious conduct toward a third person. (Panoutsopoulos, supra, 157
Cal.App.4th 297; Roberts, supra, 57 Cal.App.3d at 109; Bus. & Prof. § 6068, subd. (d).)
Here, Cross-Complainant alleges adequate facts to plead slander of title. She alleges
that Plaintiff and Cross-Defendant Webb falsely published to tenants and police that
she no longer had an interest in the partnership properties by direct misrepresentation
as well as by sending copies of outdated deeds. (XC, ¶¶ 15, 63-64.) Damages resulted
when the tenants stopped paying rent. (Id., at ¶¶ 35, 67.) Overruled.
Code of Civil Procedure section 430.10, subdivision (f) – uncertainty
A special demurrer is a disfavored ground, and will be sustained only where the
complaint is so bad that the defendant cannot reasonably determine what issues must
be admitted or denied, or what counts or claims are directed against him or her. (Code
Civ. Proc., §430.10, subd. (f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612,
616.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some
respects uncertain, because ambiguities can be clarified under modern discovery
procedures.” (Khoury, supra, 14 Cal.App.4th at 616.) Moreover, where a demurrer is
made upon this ground, it must distinctly specify exactly how or why the pleading is
uncertain, and where such uncertainty appears (by reference to page and line
numbers of the complaint). (Fenton v. Groveland Community Services Dist. (1982) 135
Cal.App.3d 797, 809 disapproved on other grounds in Katzberg v. Regents of Univ. of
Calif. (2002) 29 Cal.4th 300, 328.)
Here, Cross-Defendants fail to articulate exactly how or where the Cross-Complaint is
uncertain. Overruled.
Agent Immunity
Under the agent's immunity rule, an agent is not liable for conspiring with the principal
when the agent is acting in an official capacity on behalf of the principal. (Pavicich v.
Santucci (2000) 85 Cal.App.4th 382, 394.) Moreover, (generally) the only viable claims
for an attorney's civil conspiracy with a client, are claims that an attorney, conspiring to
cause a client to violate a statutory duty peculiar to the client, acted not only in the
performance of a professional duty to serve the client but also in furtherance of the
attorney's financial gain or claims that the attorney violated the attorney‘s own duty to
the plaintiff. (Doctors’ Co. v. SuperiorCourt (1989) 49 Cal.3d 39, 46 - 47; Panoutsopoulas,
supra, 157 Cal.App.4th at 304.) However, engaging in self-help tactics forecloses the
application of agent immunity because “self-help is not the practice of law.” (Burtscher
v. Burtscher (1994) 26 Cal.App.4th 720, 727.)
Here, Cross-Defendant Webb asserts agent’s immunity. But as noted previously (see
Ten., adopted 9/5/17), agent’s immunity does not apply because Cross-Defendant
Webb engaged in self-help, which is “not the practice of law.” (Burtscher, supra, 26
Cal.App.4th 720.) Instead of bringing an ex parte for a temporary restraining order and
seeking appointment of a receiver during the pendency of this action, Cross-Defendant
Webb unilaterally decided that the operative deed was fraudulent. He then informed
tenants that Cross-Complainant was no longer entitled to rents, and he furnished deeds
he knew to be outdated in support of his misrepresentations. Overruled.
Litigation Privilege
A general demurrer lies where the pleaded facts make clear that actions were made in
the course of a judicial proceeding and that no exception to the litigation privilege
applies. (Civ. Code § 47, subd. (b); Holland v. Jones (2012) 210 Cal.App.4th 378, 381-
382.) Section 47, subdivision (b) thus provides a defense to intentional infliction of
emotional distress, fraud, invasion of privacy, false imprisonment, abuse of process,
intentional interference with contract or prospective economic advantage, unfair
competition (Bus. & Prof. Code § 17000 et seq.), negligence and even deprivation of
civil rights. (Silberg v. Anderson (1990) 50 Cal.3d 205, 215-216; Jacob B. v. County of
Shasta (2007) 40 Cal.4th 948, 955-956; Rubin v. Green (1993) 4 Cal.4th 1187, 1193-1194;
Heller v. Norcal Mut. Ins. Co. (1994) 8 Cal.4th 30, 45.) The privilege is absolute and
applies to litigants or other participants authorized by law, as long as they are acting to
achieve the objects of the litigation. (Silberg, supra, 50 Cal.3d at 212; Makaeff v. Trump
Univ., LLC, (2013) 715 F.3d 254, 264 [applying Calif. law].)
Here, Cross-Defendant Webb also asserts litigation privilege. But again, it does not apply
because Cross-Defendant Webb engaged in self-help, which is “not the practice of
law.” (Burtscher, supra, 26 Cal.App.4th 720; see also Ten., adopted: 9/5/17.) So by
definition then, he was not acting to achieve the objects of the litigation. Overruled.
Evans v. Pillsbury, Madison & Sutro (1998) 65 Cal.App.4th 599
Cross-Defendant Webb Law Group’s (“WLG”) also argues based upon Evans v. Pillsbury,
Madison & Sutro (1998) 65 Cal.App.4th 599. WLG argues that it, like the Cross-Defendant
law firm in Evans, should be dismissed because Cross-Complainant failed to comply
with the prefilling requirement pursuant to Civil Code section 1714.10. This argument is
supported by the Evans holding wherein the Court ruled that Cross-Defendant law firms
are also entitled to the protections of the pre-filing procedures. (Id. at 607.) Sustained.
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: KCK on 12/04/17
(Judge’s initials) (Date)
(17) Tentative Ruling
Re: The Diocese of San Joaquin v. The Rev. James Snell et al.
Court Case No. 10 CECG 00908
Hearing Date: December 6, 2017 (Dept. 403)
Motion: Motion to Lift Stay and Set Trial Date
Tentative Ruling:
To lift the stay previously imposed. All trial counsel, or counsel familiar with trial
counsels’ schedules, are ordered to appear for this hearing (telephonic appearance is
acceptable) to select a new trial date. Counsel are directed to call the clerk of this
department by 4:00 p.m. December 5, 2017, to confirm their appearances.
Explanation:
Where jurisdiction exists, Code of Civil Procedure section 187 grants courts
authority to exercise any of their various powers as may be necessary to carry out that
jurisdiction. It is well settled that courts have fundamental, inherent powers to control
litigation before them. (Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377.)
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: KCK on 12/04/17
(Judge’s initials) (Date)
Tentative Rulings for Department 501 (2)
Tentative Ruling
Re: In re Bethany Tapia
Superior Court Case No. 17CECG03584
Hearing Date: December 6, 2017 (Dept. 501)
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 has failed to check any box at item 9. The petition fails to tell this
court if the minor has or has not fully recovered from the effects of her injury.
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: MWS on 12/04/17
(Judge’s initials) (Date)
(20) Tentative Ruling
Re: Central Valley Young Men’s Christian Association, Inc. v. The
Sequoia Lake Conference and Young Men’s Christian
Associations et al.
Superior Court Case No. 10CECG00746
Hearing Date: December 6, 2017 (Dept. 501)
Motion: (1) Plaintiff’s Motion for Entry of Modified Judgment on
Special Verdict
(2) Plaintiff’s Renewed Motion for Attorneys’ Fees
(3) Defendant’s Motion for Attorneys’ Fees
Tentative Ruling:
To continue all three motions to February 7, 2017, at 3:30 p.m. in Department 501.
Regarding the motion for entry of modified judgment on special verdict, as
stated in the opinion of the Court of Appeals, the parties are directed to meet and
confer on the language to modify the judgment. Within 10 calendar days of the
continued hearing date, the parties shall file a joint statement briefly summarizing their
meet and confer efforts, where they are in agreement, and the remaining dispute.
Pursuant to Cal. Rules of Court, Rule 3.1312(a) and Code Civ. Proc. § 1019.5(a),
no further written order is necessary. The minute order adopting this tentative ruling will
serve as the order of the court and service by the clerk will constitute notice of the
order.
Tentative Ruling
Issued By: MWS on 12/05/17
(Judge’s initials) (Date)
Tentative Rulings for Department 502 Tentative Ruling
Re: Guled Abdillah v. Western Dental Svs, Inc.
Superior Court No. 16CECG03528
Hearing Date: Wednesday December 6, 2017 (Dept. 502)
Motion: Defendants’ Demurrer
Tentative Ruling:
To sustain without leave to amend. Defendants are directed to immediately
submit a judgment to This Court.
Explanation:
Plaintiff’s original Complaint was filed on November 2, 2016, and alleges a single
cause of action for general negligence against defendant Western Dental. It is alleged
that the dental work that forms the basis of the Complaint occurred on October 27,
2015. Defendant demurred to the Complaint based upon the one-year statute of
limitations. (Code of Civil Procedure section 340.5.) The demurrer was sustained with
leave to amend instructing plaintiff to file an amended pleading to attempt to allege a
factual basis to toll the running of the statute of limitations.
Plaintiff’s First Amended Complaint (FAC) was filed on June 14, 2017 alleging
medical malpractice and negligence against Defendants Western Dental and William
Murphy, D.D.S. Again, plaintiff alleges surgery was performed on October 27, 2015
resulting in loss of gum and loss of bone. Defendants demurred to the FAC. The court
found that plaintiff’s claim as to Dr. Murphy was time-barred and no leave to amend
was granted on this issue. Once again the Court sustained the demurrer as to Western
Dental giving plaintiff “one more chance to amend her complaint so that she can
attempt to allege a factual basis to toll the running of the statute of limitations.”
Plaintiff filed her Second Amended Complaint on October 2, 2017. Plaintiff has
completely failed to comply with this Court’s prior orders. Namely, there is no factual
basis alleged to toll the running of the statute of limitations. Plaintiff has been given two
opportunities to allege a factual basis to toll the running of the statute of limitations and
has not done so. Therefore, the Court assumes she is unable to do so and giving further
leave to amend would not produce a different result.
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: RTM on 12/04/17
(Judge’s initials) (Date)
Tentative Rulings for Department 503
(29) Tentative Ruling
Re: Leonel Valencia, et al. v. H/S Development, et al.
Superior Court Case no. 13CECG03980
Hearing Date: December 6, 2017 (Dept. 503)
Motion: Intervenor State Auto Insurance Company - Rockhill Insurance
Company’s application for determination of good faith settlement
Tentative Ruling:
To deny without prejudice.
Explanation:
The Court found no proof of service of the instant application. Accordingly, the
application is denied without prejudice.
Pursuant to California Rules of Court, rule 3.1312, and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this ruling will serve as the order of the court, and service by the clerk of the
minute order will constitute notice of the order.
Tentative Ruling
Issued by: A.M. Simpson on 12/04/17
(Judge’s initials) (Date)