tentative rulings for june 28, 2017 departments … rulings for june 28, 2017 departments 402, 403,...

Tentative Rulings for June 28, 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).)

The court has continued the following cases. The deadlines for opposition and reply

papers will remain the same as for the original hearing date.

14CECG02848 Sabrina Garcia v. Calavaras Materials, et al. is continued to

Thursday, July 6, 2017, at 3:30 p.m. in Department 502.

16CECG02428 Tafolla v. Hutchinson is continued to Thursday, July 6, 2017, at 3:30

p.m. in Department 502.

17CECG01022 Richard Bennett Transfer, Inc. v. Archer Daniels Midland Company

is continued to Wednesday, July 26, 2017 at 3:30 p.m. in Dept. 503.

________________________________________________________________

(Tentative Rulings begin at the next page)

Tentative Rulings for Department 402


(5)

Tentative Ruling

Re: Galdina Salazar Salgado v. Alexia Kirkland

Superior Court Case No. Case No: 17 CECG 00899

Hearing Date: June 28, 2017 (Dept. 403)

Motions: (1) Demurrer to Original Complaint ;

(2) Strike portion of Original Complaint; and

(3) Special Motion to Strike as a SLAPP suit

Tentative Ruling:

To request further briefing from both parties as stated infra. Both sides will submit

additional briefing to the Court on or before July 12, 2017. Both sides will submit a

rebuttal brief to the Court on or before July 24, 2017. Service on the other active parties

will be via fax or hand delivery.

To continue the hearing to Thursday, August 3, 2017 at 3:30 p.m. in Dept. 503.

Explanation:

Background

Plaintiff alleges that she was born on April 18, 1945 in Telolopan, Guerrero,

Mexico. She alleges that she entered the United States at the age of 56 on March 25,

2002. On or about 2015, she consulted with the Defendant as to whether she would be

eligible for a “green card.” Plaintiff alleges that the Defendant told her that she was

eligible and filled out an application on her behalf. See Complaint at ¶¶ 7-13.

The application was received by the United States Customs and Immigration

Service on July 20, 2015. Plaintiff appeared for an interview in Fresno on November 30,

2015. Shortly thereafter, she later received a “Request for Evidence” regarding proof

that she had been physically present in the United States on December 21, 2000. On

behalf of the Plaintiff, Defendant sent a letter indicating that Plaintiff entered the United

States on March 25, 2002. On March 29, 2016, Plaintiff received a letter denying her

application. See Complaint at ¶¶ 13-18.

On March 17, 2017, Plaintiff filed a Complaint alleging six causes of action:

1. Legal malpractice;

2. Intentional misrepresentation;

3. Negligent misrepresentation;

4. Concealment;

5. Restitution; and

6. Unfair Competition under Bus. & Prof. Code § 17200 et seq.

On May 5, 2017, Defendant filed a demurrer, motion to strike and special motion

to strike as a SLAPP suit. Opposition and replies were filed.

Issue of Damages

The gravamen of the action is that the Plaintiff has incurred attorney’s fees in a

“wasted effort.” More seriously, Plaintiff alleges that prior to the filing of the application,

the United States Immigration and Customs Enforcement (ICE) was previously unaware

of Plaintiff’s presence in the United States. She alleges: “Plaintiff’s failed application has

now exposed [her] to removal (‘deportation’ proceedings before the Executive Office

for Immigration Review (EOIR) (‘Immigration Court’), causing her substantial fear and

stress.” See ¶ 20 of the Complaint.

The elements of “legal malpractice” are set forth in CACI No. 601 “Negligent

Handling of Legal Matter.” It states:

To recover damages from [name of defendant], [name of plaintiff] must

prove that [he/she/it] would have obtained a better result if [name of

defendant] had acted as a reasonably careful attorney. [Name of

plaintiff] was not harmed by [name of defendant]’s conduct if the same

harm would have occurred anyway without that conduct.

As a matter of law, “[i]f the allegedly negligent conduct does not cause

damage, it generates no cause of action in tort. The mere breach of a professional

duty, causing only nominal damages, speculative harm, or the threat of future harm—

not yet realized—does not suffice to create a cause of action for negligence.”

(Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 749–

750.) “In the legal malpractice context, the elements of causation and damage are

particularly closely linked.” (Namikas v. Miller (2014) 225 Cal.App.4th 1574, 1582.)

“‘Damage to be subject to a proper award must be such as follows the act

complained of as a legal certainty … .’ Conversely, ‘ “ ‘[t]he mere probability that a

certain event would have happened, upon which a claim for damages is predicated,

will not support the claim or furnish the foundation of an action for such damages.’ ” ’ ”

(Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 165–166 [149 Cal.Rptr.3d 422], original

italics, footnote and internal citations omitted.)

In the instant case, it appears that other than the restitution cause of action,

Plaintiff’s damages are based upon the threat of future harm and emotional distress

arising from worry about the threat. This type of damage cannot serve as the basis for a

legal malpractice claim. See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison,

supra at 749-750. In addition, it also appears that Plaintiff was always “under the threat

of deportation” given her circumstances. However, given the paucity of legal authority

on the unique circumstances of this case, the Court requests further briefing on this

issue. Cases from other jurisdictions may be relied upon provided a full and complete

hard copy of the case is submitted to the Court, either as an exhibit to a Declaration or

a Request for Judicial Notice.

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

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

adopting this tentative ruling will serve as the order of the court and service by the clerk

will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 06/27/17

(Judge’s initials) (Date)

(6)

Tentative Ruling

Re: Ross v. Kane

Superior Court Case No.: 15CECG03832


Motion: Leave to file first amended complaint by Plaintiffs Sheryl Ross

and Gregory Ross

Tentative Ruling:

To grant, in part, permitting the filing of the first amended complaint to allege the

third cause of action as one for lack of informed consent based on negligence, with

Plaintiffs granted 10 days within which to file the first amended complaint. The time in

which the complaint can be amended will run from service by the clerk of the minute

order. All new allegations in the first amended complaint are to be set in boldface type.

If oral argument is requested, it will be heard on Thursday, June 29, 2017, at 3:00

p.m. in Dept. 403.

Explanation:

The proposed amended pleading containing the new third cause of action for

lack of informed consent states a cause of action for negligence, not battery, as the

proposed amended pleading titles the cause of action.

Nowhere in the proposed amended complaint is there an allegation that

Defendant Drs. Kane and Grewall performed the February 22, 2013 surgery as

treatment for a nontherapeutic purpose that served their personal advantage to the

injury of Ross, as occurred in Rains with the “sluggo therapy” which had no therapeutic

purpose and the purpose of which was to benefit the psychiatrists by turning the

plaintiffs into slaves. Lying about the therapeutic purpose of the contact vitiated

consent. (Rains v. Superior Court (1984) 150 Cal.App.3d 933, 940.)

The facts of the proposed amended complaint are analogous to Cobbs v.

Grant, where the surgeon performed the precise surgery to which the patient

consented, but failed to advise the patient of certain “low-probability” complications

which unfortunately did develop. (Cobbs v. Grant (1972) 8 Cal.3d 229, 240.) There is no

allegation here that Defendants Kane and Grewall performed the salvage

brachytherapy surgery at issue here for a nontherapeutic purpose that benefitted

themselves. There is no allegation that the purpose of Defendants Kane and Grewall

was other than the rendition of therapeutic treatment, nor for any independent or

improve motive on their part. (Freedman v. Superior Court (1989) 214 Cal.App.3d 734,

737-739.) Rather, the allegations here are that at no time prior to the February 22, 2013,

procedure, did Defendant doctors advise Plaintiff Gregory Ross of any known risks,

complications or the like regarding having the seeds implanted after having already

undergone proton beam radiation treatment at Loma Linda as late as May 6, 2011.

(Proposed first amended complaint, ¶29.) What the proposed first amended complaint

alleges is a cause of action for lack of informed consent based on negligence, not a

battery theory.

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



Tentative Ruling



(19) Tentative Ruling

Re: Cusator v Shared Imaging

Fresno Superior Court Case No. 13CECG00192

Hearing Date: June 28, 2017 (Department 403)

Motions: renewed motion by named plaintiff for class certification and

preliminary approval of settlement of class action.

Tentative Ruling:

To deny with prejudice. To order that the parties meet and confer as the

contents of a notice to be given to the putative class members advising of the tolling of

statute of limitations. The parties are to submit a joint proposed notice or a separate

notice by each side on or before July 12, 2017. A hearing as to such notice will be held

on July 27, 2017 at 3:00 p.m.

In the event oral argument is requested it will be held on Thursday, June

29, 2017 at 3:00 p.m. in Dept. 403.

Explanation:

The court incorporates its past rulings on prior motions for class certification and

preliminary approval of settlement herein. Plaintiff is required to present admissible

evidence of all class certification factors but for trial manageability, as a matter of due

process. Amchem Products v. Windsor (1997) 521 U.S. 591. Plaintiff has failed to do so.

The sole admissible evidence of any policy on the part of defendant shows only its

mileage reimbursement and plaintiff’s individual experience in defendant’s employ.

Although counsel states he has seen policies and talked to putative class members, he

provides no documents so showing and no declarations from those he claims he spoke

with. Due process is not met by the hearsay statements of counsel as to the statements

of others who are not named. Therefore class certification is not permitted.

Plaintiff’s counsel admits, and an examination of Exhibit 5 to the Leviant

declaration shows, that some sort of sampling of employment data was done. But

there continues to be no information as to the method of sampling, who developed it,

or why it would result in a statistically valid result. Counsel avers that no expert would be

allowed to provide testimony, because legal expertise is required. That is incorrect.

Capitol People First v. DDS (2007) 155 Cal. App. 4th 676, 692-693:

“In deciding whether the commonality requirement has been satisfied,

courts may consider pattern and practice, statistical and sampling

evidence, expert testimony and other indicators of a given defendant's

classwide practices in order to assess whether that common behavior

toward similarly situated plaintiffs renders class certification appropriate.”

In Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319, 333, the Court

proceeded to cite a plethora of cases wherein proof was made by such evidence:

“California courts and others have in a wide variety of contexts

considered pattern and practice evidence, statistical evidence, sampling

evidence, expert testimony, and other indicators of a defendant's

centralized practices in order to evaluate whether common behavior

towards similarly situated plaintiffs makes class certification appropriate.

Indeed, as the Court of Appeal recently recognized, the use of statistical

sampling in an overtime class action ‘does not dispense with proof of

damages but rather offers a different method of proof.’ ”

Duran v. U.S. Bank National Association (2014) 59 Cal. 4th 1 was a wage and hour

class action. The Court reversed a judgment in favor of a class because it was based

on an invalid sampling. See also Cochran v. Schwan’s Home Service, Inc. (2014) 228

Cal. App. 4th 1137, 1143:

“Duran, a case involving a wage and hour class action, explained that

sampling is a ‘methodology based on inferential statistics and probability

theory.’ ‘The essence of the science of inferential statistics is that one may

confidently draw inferences about the whole from a representative

sample of the whole.’ [Citation.] Whether such inferences are

supportable, however, depends on how representative the sample is.

‘[I]nferences from the part to the whole are justified [only] when the

sample is representative.’ [Citation.] Several considerations determine

whether a sample is sufficiently representative to fairly support inferences

about the underlying population.’ (Duran, supra, at p. 38.) Those

considerations include variability in the population, whether size of the

sample is appropriate, whether the sample is random or infected by

selection bias, and whether the margin of error in the statistical analysis is

reasonable. (Id. at pp. 38–46.) At the certification stage, a trial court

should consider . . . whether a [statistical] plan has been developed[.]’ ”

(Id. at p. 31.)

The damages estimation is based on the unsupported sample. The claim that a

willful finding of violation for penalties is very hard to demonstrate does not comport

with the law, which states such is shown by intentional conduct. Amaral v. Cintas Corp.

No. 2 (2008) 163 Cal. App. 4th 1157, 1201, Code of Regulations, Title 8, section 13520.

Counsel claims that defendant deducted a meal without regard to whether one was

taken, and the class representative says 80 miles a week to travel to jobs was deducted

from mileage, which was then reimbursed at a rate well under the Company’s stated

policy as a matter of course, at least for himself. Such tends to show intent. rather than

accident. The sample problem, and this “intent” issue render the damages estimate

unreliable.

There is also the problem that two lawyers from the same firm representing the

proposed representative have valued the claim at widely differing amounts, both

under oath. The second opinion contends that the first lawyer (the name partner) was

mistaken, but there is no declaration from the first lawyer. This further undermines the

record on the issue of the value of the case vs. the discounts applied for settlement.

This is the fourth try at certification and settlement approval. The record does not

disclose counsel has done any discovery or prepared for the need for a trial if

certification were not granted and/or a settlement was not approved. The five year

date runs in less than seven months. The Court therefore denies this motion with

prejudice at this time.

Because the motion fails due to the defects in evidence, it is possible there could

be class treatment if brought by another class member. The statute of limitations for the

claims of putative class members is tolled while this case was pending, up to the date

that this motion was denied. Becker v. McMillin Construction Co. (1991) 226 Cal. App.

3d 1493; Falk v. Children’s Hospital Los Angeles (2015) 237 Cal. App. 4th 1454. See also

Diaz v. Trust Territory of The Pacific Islands (9th Cir. 1989) 876 F. 2d 14011 and Bantolina v.

Aloha Motors, Inc. (D. Haw. 1977) 75 F.R.D. 26.

Plaintiff’s counsel states that he spoke with putative class members about this

case. Under such circumstances notice to them of the matter and of the tolling of the

statute of limitations is required, as they may have relied on this case to handle their

claims against defendant. Since there are less than 60 members, it will cause no

hardship to give such notice. Plaintiff’s counsel shall bear the expense of this notice.

Pursuant to 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



1 That part of Diaz declaring that a settlement of class claims could be made absent class

certification was overruled in Amchem.


(29)

Tentative Ruling

Re: Caren Isgrigg v. Royal T. Management Corp., et al.

Superior Court Case No. 17CECG01258


Motion: Strike

Tentative Ruling:

To grant Defendant Royal T. Management Corporation’s motion to strike, with

leave to amend. To deny the remaining defendants’ motion to strike.

Plaintiff is granted 25 days’ leave to file a first amended complaint. The time in

which the complaint may be amended will run from the clerk’s service of the minute

order. New allegations in the amended complaint are to be set in boldface type.

If oral argument is requested, the hearing will go forward on July 5, 2017 at 3:30

p.m. in Dept. 502.

Explanation:

A motion to strike is the proper procedure to challenge an improper request for

relief, or improper remedy, within a complaint. (Code Civ. Proc. §431.10(b); Grieves v.

Superior Court (1984) 157 Cal.App.3d 159, 166-167.)

Punitive damages are authorized in noncontract actions “where it is proven by

clear and convincing evidence that the defendant has been guilty of oppression,

fraud, or malice[.]” (Civ. Code §3294(a); see also Neal v. Farmers Ins. Exchange (1978)

21 Cal. 3d 910, 922.) To survive a motion to strike punitive damages, ultimate facts

showing entitlement to such relief must be pleaded by plaintiff, i.e., plaintiff must show

defendant engaged in conduct rising to oppression, fraud, or malice, and allege facts

in the pleading to support such claims. (Civ. Code §3294(a); Anschutz Entertainment

Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643; G.D. Searle & Co. v. Superior

Court (1975) 49 Cal.App.2d 22, 29.)

" 'Oppression' means despicable conduct that subjects a person to cruel and

unjust hardship in conscious disregard of that person's rights.” (Civ. Code §3294(c)(2).)

Malice is "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." (Civ. Code §3294(c)(1).) “Despicable”

conduct is “conduct which is so vile, base, contemptible, miserable, wretched or

loathsome that it would be looked down upon and despised by ordinary decent

people.” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

There is a common law implied warranty of habitability in every residential lease

in California. (Green v. Superior Court (1974) 10 Cal.3d 616, 619.) Though an action by a

tenant alleging breach of the warranty of habitability is a contract action, an act that

constitutes a breach of contract may also be tortious; accordingly, where a tenant

pleads sufficient facts, a cause of action in tort against the landlord for damages

resulting from the landlord's breach of the implied warranty of habitability, may form the

basis for an award of punitive damages. (Stoiber v. Honeychuck (1980) 101 Cal. App.3d

903, 917-919; see Kinney v. Vaccari (1980) 27 Cal.3d 348, 356 [punitive damages

recoverable where landlord terminated utilities during winter months, despite tenants

being current on rent]; Aweeka v. Bonds (1971) 20 Cal.App.3d 278, 281[punitive

damages proper where landlord retaliated against tenants by evicting them following

tenants' exercise of statutory right to obtain repairs and deduct cost from rent on

landlord's refusal to repair]; Farvour v. Geltis (1949) 91 Cal.App.2d 603, 606 [punitive

damages appropriate where landlord removed several windows and doors and

refused to replace for 2 weeks, making “everything damp and wet,” causing

discomfort and inconvenience, including tenants catching colds].) Punitive damages

may also be recoverable where a landlord is aware of “long existing physical

conditions of the premises which portend danger for the tenants,” and fails to take

corrective measures. (Penner v. Falk (1984) 153 Cal.App.3d 858, 867.)

In every lease, the landlord impliedly covenants that the tenant shall have quiet

enjoyment and possession of the premises. (Guntert v. City of Stockton (1976) 55

Cal.App.3d 131, 138.) A landlord's failure to fulfill an obligation to repair or to replace an

essential structure or to provide a necessary service is a breach of the covenant if the

failure substantially impacts the tenant's beneficial enjoyment of the premises.

(Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, 846; Sierad v. Lilly (1962)

204 Cal.App.2d 770, 773.) Though a claim for breach of the covenant of quiet

enjoyment is a contract claim, where plaintiff also claims wrongful eviction, tort

damages for breach of the covenant may be recovered. (Ginsberg v. Gamson (2012)

205 Cal.App. 4th 873, 897–902; Guntert, supra, 55 Cal. App.3d at p. 141.)

An employer shall not be liable for damages based upon the acts of an

employee 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. (Civ. Code §3294(b).)

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. (Ibid.; see also

White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 577 [to demonstrate an employee is true

managing agent under section 3294(b), plaintiff seeking punitive damages must show

the employee exercised substantial discretionary authority over significant aspects of

corporation's business].)

In the case at bench, Plaintiff does not plead sufficient facts to support a

punitive damages claim against a corporate employer. Accordingly, Defendant Royal

T. Management Corporation’s motion to strike is granted, with leave to amend.

With regard to the remaining defendants, Plaintiff alleges that, despite being

current on her rent, Defendants caused her apartment to be without heat from late

December 2015 through mid-April 2016; that Defendants were aware Plaintiff is a

disabled senior citizen with myriad health problems; that Plaintiff repeatedly requested

Defendants repair the heater in her unit, and that Defendants repeatedly refused; that

Plaintiff informed Defendants that she had certain health conditions that exacerbated

the problems typically associated with a lack of heat during cold months, and that

Defendant McCoy’s response to this was that Plaintiff’s medical issues were not

Defendant McCoy’s concern; that the extreme cold in Plaintiff’s apartment caused

Plaintiff to contract pneumonia twice, and suffer through various other maladies

caused by the lack of heat in her apartment; that Plaintiff informed Defendants that the

condition of Plaintiff’s apartment was causing Plaintiff to suffer both physically and

emotionally, but Defendants continued to refuse to make the requested repairs; and

that due to Plaintiff’s numerous requests that Defendants repair the heater in Plaintiff’s

apartment, and Defendants’ lack of interest in undertaking such repair, Defendants

evicted Plaintiff. Plaintiff has sufficiently alleged conduct on Defendants McCoy and

Pair’s parts to support a claim for punitive damages. Accordingly, Defendants McCoy

and Pair’s motion is denied.

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




Tentative Ruling

Issued By: DSB on 06/23/17



(30)

Tentative Ruling

Re: Belmore v. Ford

Superior Court No. 17CECG01300

Hearing Date: Wednesday June 28, 2017 (Dept. 503)

Motion: Defendant Ford Motor Company’s Demurrer and Motion to Strike

Tentative Ruling:

To OVERRULE ALL DEMURRERS

To DENY MOTION TO STRIKE

Defendant is granted 10 days leave to file an answer. The time in which the

answer may be filed will run from service by the clerk of the minute order. (Code

Civ. Proc., § 472b.)

Explanation:

Demurrer

Cause of Action 3 – Concealment: In order to state a claim for concealment Plaintiffs

must allege: (1) Defendant concealed or suppressed a material fact; (2) Defendant

had a duty to disclose the fact to Plaintiffs; (3) Defendant intentionally concealed or

suppressed the fact with the intent to defraud Plaintiffs; (4) Plaintiffs were unaware of

the fact and would not have acted as they did had they known of the concealed or

suppressed fact; and (5) Plaintiffs were damaged as a result of the concealment.

(Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613;

Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1198.) Regarding element

two, a duty to disclose arises in four circumstances: “(1) when the defendant is in a

fiduciary relationship with the plaintiff, (2) when the defendant had exclusive

knowledge of material facts not known to the plaintiff, (3) when the defendant actively

conceals a material fact from the plaintiff; and (4) when the defendant makes partial

representations but also suppresses some material facts.” (Heliotis v. Schuman (1986)

181 Cal.App.3d 646, 651.)

Here, Plaintiffs adequately pleads concealment: Defendant actively concealed

information from the public regarding PowerShift – it had the opportunity to disclose the

information via press release or marketing materials, but choose not to. (Complaint, ¶¶

17, 28, 47, 52, 135, 137.) Defendant was under a duty to disclose to Plaintiffs because it

had exclusive knowledge of the defect thorough sources not available to consumers,

including: pre-release data, early consumer complaints, testing, high failure rates,

aggregate data, and similar defects in the substantially identical European and

Australian models. (Id. at ¶¶ 44-45.) Knowledge is also imputed based on the negative

consumer reviews of which it was aware (Id. at ¶¶ 31-32), and evidenced by the

numerous Technical Service Bulletins that it issued. (Id. at ¶¶ 78-81.) And though Plaintiffs

may have had access to negative customer reviews, that alone is insufficient to

establish knowledge or to negate their allegations considering the vast amount of

information that Defendant had in its exclusive possession. Defendant intentionally

concealed or suppressed the fact with intent to defraud Plaintiffs. (Id. at ¶¶ 57-58.)

Plaintiffs were unaware of the fact and would not have acted as Plaintiffs did if Plaintiffs

had known of the concealed or suppressed fact (Id. at ¶ 42) and Plaintiffs were

damaged by the concealment. (Id. at ¶43.)

Analysis of the issues presented in the Daniel v. Ford Motor Co. (9th Cir. 2015) 806 F.3d

1217 (e.g. agency) is not necessary because Plaintiffs allege adequate facts to support

concealment independent of their allegation that Ford of Clovis also concealed

material facts. (see 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 as long as

enough essential facts are alleged to state a valid cause of action, the complaint is

good against a general demurrer.)

Furthermore, Defendant’s arguments regarding what is “well known” (Memo, filed:

5/22/17 p7 lns 2-3) will not be considered, as evidence extrinsic to the pleadings or to

that which is judicially noticeable cannot be considered. (Ion Equip. Corp. v. Nelson

(1980) 110 Cal.App.3d 868, 881.)

Cause of Action 4 - Intentional Misrepresentation: The elements of intentional

misrepresentation are: “(a) misrepresentation… (b) knowledge of falsity… (c) intent to

defraud, i.e. to induce reliance; (d) justifiable reliance; and (e) resulting damage.”

(Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.) Moreover “[a]

misrepresentation need not be oral; it may be implied by conduct.” (ThriftyfTel, Inc. v.

Bezenek (1996) 46 Cal.App.4th 1559, 1567.) “[F]alse representations made recklessly

and without regard for their truth in order to induce action by another are the

equivalent of misrepresentations knowingly and intentionally uttered.” (Engalla, supra,

15 Cal.4th at 974.)

Here, Plaintiffs adequately allege intentional misrepresentation. Plaintiffs allege:

Defendant drafted, produced, and distributed marketing brochures to the public

containing false representations about the PowerShift. Specifically, Defendant

represented that the Powershift “[s]hifts crisply and efficiently to keep you smiling.

Class—exclusive Powershift 6- speed automatic transmission,” and that “[a]n available

PowerShift 6-speed automatic transmission can provide torque to the wheels 100% of

the time during shifts, for an extra-connected feel.” (Complaint, ¶ 146.) Defendant also

marketed and sold its PowerShift as an automatic transmission. (Id. at ¶¶ 17, 28, 149,

150.) Defendant had extensive knowledge of that these representations were false. (Id.

at ¶¶ 24 – 25, 44-51.) Defendant acted with the intent to induce reliance (Id. at ¶ 151),

and Plaintiffs’ reliance was justifiable as Defendant- the manufacturer- was in a

“superior position of knowledge.” (Id. at ¶ 152.) Plaintiffs were damaged because they

purchased a defective vehicle that they would not have purchased but for

Defendant’s misrepresentations. (Id. at ¶ 153.)

Defendant attempts to nullify Plaintiffs’ allegations in several ways, none of which are

convincing. First, Defendant argues that Plaintiffs are inventing misrepresentations by

exaggerating the distinction between “automatic transmission” and PowerShift. (Memo,

filed: 5/22/17 p7 ¶ C.) In essence, Defendant is arguing that Plaintiffs’ assertions are not

actionable because PowerShift is automatic. However, this contradicts Plaintiffs’

allegations that the PowerShift was not in fact an automatic, but rather a dual clutch

transmission. (Complaint, ¶ 150.) And on demurrer, This Court is required to accept

Plaintiff’s assertions as true unless there can be but one reasonable interpretation. (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; see also TracFone Wireless,

Inc. v County of Los Angeles (2008) 163 Cal.App.4th 1359, 1368; Kruss v Booth (2010) 185

Cal.App.4th 699, 713-715 questions of fact may be resolved on demurrer only when

there is but one legitimate inference to be drawn from the allegations of the

complaint.) Next, Defendant’s argument that Plaintiffs do not assert reliance (Memo,

filed: 5/22/17 p8 ln13), ignores Plaintiffs’ allegations that they relied upon Defendant’s

representations that the vehicle was basically a well-functioning automatic (see

above). Defendant’s final argument mischaracterizes the pleadings. In the paragraphs

cited to (e.g. Complaint, ¶¶ 17, 19), Plaintiffs do not allege that “Ford publicly

advertised that the transmission had some qualities of a manual transmission although it

behaved with the convenience of an automatic transmission.” Rather, both

paragraphs clearly allege that Defendant marketed its PowerShift as an automatic

transmission. (Complaint, ¶¶ 17, 19.)

Specificity: It is true that the “requirement of specificity in a fraud action against a

corporation requires the plaintiff to allege the names of the persons who made the

allegedly fraudulent representations, their authority to speak, to whom they spoke,

what they said or wrote, and when it was said or written.” (Tarmarm v. State Farm

Mutual Auto-Mobile Ins. Co. (1991) 2 Cal.App.4th 153, 157; Mason v. Drug Inc. (1939) 31

Cal.App.2d 697, 703.) But it is also true that the requirement of specificity is relaxed

when the allegations indicate that the defendant must necessarily possess full

information concerning the facts of the controversy or when the facts lie more in the

knowledge of the opposite party. (Tarmarm, supra, 2 Cal.App.4th at 158.)

Here, Defendant objects based on its assertions that Plaintiffs fail to identify the

salesperson to whom they spoke and to associate a specific time therewith, or to

identify what “advertisements” Plaintiffs reviewed or relied upon in purchasing the

vehicle. (Memo, filed: 5/22/17 p9 lns 19-26 & p10 lns 1-9.) But Defendant ignores the fact

that Plaintiffs are excused from this requirement because the pleadings indicate that

Defendant – the manufacturer/purveyor of information- has complete access to its own

brochures, marketing, and advertising materials regarding its representation of the

PowerShift. And again, the issue of agency need not be addressed.

Puffery: Generalized, vague assertions of superiority that do not make specific claims

about a product or service may be regarded as “mere puffery” upon which a

reasonable consumer could not rely, and hence are not actionable as “fraudulent.”

(see Anunziato v. eMachines, Inc. (C.D. CA 2005) 402 F.Supp.2d 1133, 1139 [applying

Calif. Law]; Hauter v. Zogarts (1975) 14 Cal.3d 104, 111; see also ConsumerAdvocates v.

EchoStar Satellite Corp. (2003) 113 Cal.App.4th 1351, 1361.) But, whether a statement is

an actionable misrepresentation of fact is a question of fact for the jury, unless there is

but one legitimate inference to be drawn from the allegations of the complaint. (Furla

v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1081; TracFone Wireless, Inc. v County of

Los Angeles (2008) 163 Cal.App.4th 1359, 1368; Kruss v Booth (2010) 185 Cal.App.4th

699, 713-715.)

Here, Defendant asserts that all of its marketing statements were mere puffery, and as

such are non-actionable. (Memo, filed: 5/22/17 p10 ln28 – p11 lns 1-5.) However,

Defendant’s statements that its PowerShift had “dry clutch facings and new energy-

saving electromechanical actuation for clutches and gear shifts . . . is sealed with low-

fliction gear lubricant for the life of the vehicle…” and that it “requires no regular

maintenance” (Complaint, ¶18) are all reasonably interpreted to be misrepresentations

of fact. The same is true for Plaintiffs’ less specific allegations (see Paduano v. American

Honda Motor Company (2009) 169 Cal.App.4th 1453 wherein The Court found that the

representation that the Hybrid had “terrific gas mileage” was actionable.) As such, this

issue cannot be decided via demurrer.

Cause of Action 5 - Negligent Misrepresentation: Plaintiffs’ cause of action for negligent

misrepresentation is equally supported with all the facts detailed above.

Statute of Limitations: The Discovery Rule

The statute of limitations for fraud is three years. (Code of Civ. Proc., § 338, subd. (d).)

But the delayed discovery rule tolls the accrual of the statute until a plaintiff discovers,

or has reason to discover, the cause of action. (Id.) “[I]f an action is brought more than

three years after commission of the fraud, plaintiff has the burden of pleading and

proving that he did not make the discovery until within three years prior to the filing of

his complaint.” (Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412, 437.) To excuse failure

to discover the fraud within three years after its commission, a plaintiff also must plead

“facts showing that he was not negligent in failing to make the discovery sooner and

that he had no actual or presumptive knowledge of facts sufficient to put him on

inquiry.” (Id.; Johnson v. Ehrgott (1934) 1 Cal.2d 136, 137.) To that end, a plaintiff must

allege facts showing “the time and surrounding circumstances of the discovery and

what the discovery was.” (Hobart, supra, 26 Cal.2d at 441.) Nonetheless, it is well-settled

that whether the plaintiff exercised reasonable diligence in discovering his injury and its

cause are generally questions for the trier of fact except where the uncontradicted

facts are susceptible of only one legitimate inference. (Fox v. Ethicon-Endo Surgery, Inc.

(2005) 35 Cal.4th 797, 810; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112; April

Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 833.)

Here, Plaintiffs sufficiently allege that the statute of limitations for their fraud-based

claims was tolled by the discovery rule. Plaintiffs did not realize that Defendant was

unable to fix the vehicle or that it had misrepresented the quality of the PowerShift until

after Plaintiffs received a letter from Defendant on or around July 2014. (Complaint, ¶

85.) Defendant’s letter informed Plaintiffs for the first time that the PowerShift exhibited

excessive transmission clutch shudder and suggested that the vehicle is equipped with

a manual transmission rather than an automatic as advertised. (Ibid.) Plaintiffs could not

have discovered his claims at an earlier time because most of the relevant information

was in Defendant’s exclusive control (Id. at ¶¶ 44-45) and each time Plaintiffs presented

the vehicle for repair during the warranty period, Defendant’s authorized repair facilities

only ever assured Plaintiffs that the problems were repaired and safe. (Id. at ¶¶ 72-75.)

Defendant points to a few significant dates that it alleges should have alerted Plaintiffs

to their cause of action and to (therefore) show a lack of due diligence: (1) Septermber

28, 2012, the filing date of Vargas v. Ford Motor Company a related class action

(Complaint, ¶ 98) (2) July 15, 2011, the date of the New York Times review criticizing the

PowerShift was published (Id. at ¶¶ 31, 48); and (3) December 2011 and November

2013, dates when Plaintiffs brought the vehicle in for repairs. (Id. at ¶¶ 73-73.) Though

these assertions are reasonable, so too are Plaintiffs.’ Therefore, this issue may not be

resolved on demurrer.

In light of Plaintiffs’ adequate pleading of the discovery rule, it is unnecessary to address

equitable tolling and the tolling doctrine under American Pipe & Construction v. Utah

(1974) 414 U.S. 538.

Economic Loss Rule

The economic loss rule provides: where a purchaser’s expectations in a sale are

frustrated because the product he bought is not working properly, his remedy is said to

be in contract alone, for he has suffered only economic losses. (Robinson Helicopter

Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988.) Quite simply, the economic loss rule

prevents the law of contract and the law of tort from dissolving one into the other.

(Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118,

1130 [citing Robinson Helicopter, supra, 34 Cal.4th at 988].) “[E]conomic loss consists of

damages for inadequate value, costs of repair and replacement of the defective

product or consequent loss of profits—without any claim of personal injury or damages

to other property.” (Id. at 1130, fn. 4 [citing Robinson Helicopter, supra, 34 Cal.4th at

988].)

In Robinson Helicopter, supra, 34 Cal.4th 979, The California Supreme Court carved out

a narrow and limited circumstance where “a party alleging fraud or deceit in

connection with a contract” can recover in tort if he can “establish tortious conduct

independent of a breach of the contract itself, that is, violation of ‘some independent

duty arising from tort 1aw.’” (Food Safety, supra, 209 Cal.App.4th at 1130 [citing

Robinson, supra, 34 Cal.4th at 990].) This particular ruling was limited to a defendant’s

affirmative misrepresentations on which a plaintiff relied and which expose a plaintiff to

liability for personal damages independent of the plaintiff‘s economic loss. (Robinson,

supra, 34 Cal.4th at 993.) But the ruling was not preclusive, as the Court specifically

cited to several other instances where tort damages were permitted in contract cases.

(Id. at 989-990.)

Regarding causes of action three and four, Plaintiffs have sufficiently alleged fraudulent

inducement and fraud by affirmative misrepresentation to avoid the economic loss

rule. (see above and Erlich v. Menezes (1999) 21 Cal.4th 543, 552 citing Las Palmas

Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1238-1239.) In

addition, Plaintiffs pled that as a result thereof, they have been exposed to liability for

damages independent of their economic loss. These independent damages include

potential future personal injury to Plaintiffs or others likely to be caused by serious

transmission problems which can severely affect the driver’s ability to control the

vehicle’s speed, acceleration, and deceleration, and make it difficult to safely

navigate in traffic, thereby increasing the risk of accidents. (Complaint, ¶¶ 21-22.)

Regarding cause of action five, there is a substantial disagreement among Courts as to

whether a claim for negligent misrepresentation should be recognized as an exception

to the economic loss doctrine. (see e.g. Apollo Group, Inc. v. Avnet, Inc. (1995) 58 F.3d

477, 480.) As such, the complaint itself clearly discloses no defense that would bar

recovery. (Guardian North Bay, Inc. v. Sup.Ct. (Myers) (2001) 94 Cal.App.4th 963, 971-

972; Estate of Moss (2012) 204 Cal.App.4th 521, 535.)

Motion to strike

A motion to strike punitive damages allegations may lie where the claim sued upon

would not support an award of punitive damages as a matter of law. (Civ. Code §

3294, subd. (a); Commodore Home Systems, Inc. v. Sup.Ct. (Brown) (1982) 32 Cal.3d

211, 214-215.) But, when seeking punitive damages, allegations of “ultimate facts” are

all that are necessary to survive a motion to strike. (Clauson v. Superior Court (1998) 67

Cal.App.4th 1253, 1255.) So as long as the basis for the claim is apparent from the

context of the entire complaint, no further specificity is required. (Perkins v. Superior

Court (1981) 117 Cal.App.3d 1, 6.)

Here, Plaintiffs adequately assert causes of action for concealment (cause of action

three) and intentional misrepresentation (cause of action four) (see above). Both

warrant punitive damages. Therefore, each form the basis for the prayer and whether

the remaining claims are entitled to punitive damages or not is of no consequence at

this stage.

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




Tentative Ruling

Issued By: A.M. Simpson on 06/27/17


(28) Tentative Ruling

Re: Soto v. Saint Agnes Medical Center

Case No. 15CECG01529


Motion: Motion for Leave to Amend Complaint.

Tentative Ruling:

To continue the hearing to Wednesday July 19, 2017, at 3:30 p.m. in Department

503 of this Court. Plaintiffs shall file a declaration which complies with California Rule of

Court 3.1324, if they can, by July 12, 2017.

Plaintiffs will also file a substantive reply to the opposition of proposed defendant

Dr. Pamula by July 12, 2017.

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).).

The declaration of counsel attached to the motion for leave to amend does

none of these things. Therefore, the hearing is continued to Wednesday July 19, 2017, at

3:30 p.m. in Department 503 of this Court. Plaintiffs shall file a declaration which

complies with California Rule of Court 3.1324, if they can, by July 12, 2017.

Motion for Leave to Allege Punitive Damages

Because the scope of the ability of Plaintiffs to seek punitive damages within the

time period allowed depends, at least in part, on whether Plaintiffs can comply with

California Rule of Court 3.1324, the hearing on these matters will also be continued to

July 19, 2017.

Adding Dr. Ramesh Pamula as Defendant

As part of the motion to amend, Plaintiffs seek to add Ramesh Pamula, M.D. as a

defendant and to have punitive damages alleged against him. Dr. Pamula filed a

timely opposition. In response, Plaintiffs filed what was essentially only an objection to

the opposition because, since it was served only by mail, it was not “reasonably

calculated” to reach Plaintiffs the next day after the filing deadline. Therefore, because

the hearing is being continued, this will give Plaintiffs ample time to file a substantive

reply brief. This reply brief must be filed by July 12, 2017.

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

Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The

minute order adopting this tentative ruling will serve as the order of the court and

service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: A.M. Simpson on 06/27/17


tentative rulings for june 28, 2017 departments … rulings for june 28, 2017 departments 402, 403,...

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