tentative rulings for october 30 ... - fresno.courts.ca.gov · 10/30/2018 · barbara...

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Tentative Rulings for October 30, 2018

Departments 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).)

16CECG03190 Ramirez v. Hillcrest Travel Plaza, Inc. (Dept. 403)

15CECG02779 Zuniga v. Cherry Avenue Auction, Inc. (Dept. 502)

18CECG02381 Duncan vs. McCormick Barstow Sheppard Wayte & Carruth, LLP

(Dept. 503)

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

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

17CECG01166 Trejo v. Westcare California, Inc., is continued to Thursday,

November 15, 2018, at 3:00 p.m. in Dept. 501.

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 403

(30) Tentative Ruling

Re: Jesse Giovingo v. Pacifica Real Estate Services, Inc.

Court Case No. 17CECG04401

Hearing Date: October 30, 2018 (Dept. 403)

Motion: Motion for Leave to File Cross-Complaint, by: defendants Pacifica

Real Estate Services, Inc.; Island Lakes Investors, LP; and Pacifica

Enterprises, Inc.

Tentative Ruling:

To grant. The Cross-complaint shall be filed within 10 days of the clerk’s service of

this minute order. It shall be served within 10 days of its filing.

Explanation:

A defendant whose negligence is alleged to have caused an accident may file

a cross-complaint for equitable indemnity against concurrent tortfeasors. (Santa

Barbara Channelkeeper v. City of San Buenaventura (2018) 19 Cal.App.5th 1176, 1186.)

However, where a party is entitled to pursue a claim for indemnity by way of either a

cross-complaint or a separate action, “purposes of judicial economy and efficiency

militate in favor of a cross-complaint so the rights and liabilities of the parties can be

resolved in one proceeding rather than through successive lawsuits.” (Black Diamond

Asphalt, Inc. v. Superior Court (2003) 114 Cal.App.4th 109, 115.)

Here, defendants’ negligence is alleged to have caused the accident wherein

plaintiff was injured. Defendants may therefore file a cross-complaint for equitable

indemnity against concurrent tortfeasor, Trademark, Inc.

Also, the fact that trial is not set until October of 2019 shows that there will be no

interference with the trial date, and plaintiff’s non-opposition indicates that no

prejudice will 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 10/26/18 .

(Judge’s initials) (Date)

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Re: Robinson v. Cisneros III



Motion: Default Prove-Up

Tentative Ruling:

To deny without prejudice.

Explanation:

Plaintiff has not filed, or served on defendant, the required Judicial Council CIV-

100 form, which California Rules of Court, Rule 3.1800, subdivision (a), indicates is

mandatory. This is a dual-purpose form, used for requesting both entry of default and

court judgment. Plaintiff used the form when requesting entry of default, but he has not

filed and served this form again in order to request court judgment. Thus, neither

defendant nor the court have been informed of the details of the judgment plaintiff will

request to be entered (Paragraph 2 of the form), or of the costs requested (Paragraph

7).

Also, plaintiff has not filed a prove-up brief to summarize the evidence to be

submitted and the relief to be requested, and any legal analysis needed. (Cal. Rules of

Court, Rule 3.1800, subd. (a)(1).) The prove-up brief provides the critical focus for the

court’s attention. For instance, in this case plaintiff has prayed for attorney fees, but it is

not immediately clear there is authority for this based on the causes of action alleged.

Pursuant to Fresno County Superior Court Local Rule 2.1.14, all paperwork in conjunction

with the default prove-up hearing must be filed at least ten court days prior to the

scheduled hearing date.

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

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

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


Tentative Ruling

Issued By: RTM on 10/29/18 .


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Tentative Rulings for Department 501 (2)

Tentative Ruling

Re: In re Daniel Mendez, Jr.

Superior Court Case No. 18CECG03416

Hearing Date: None.

Motion: Petition to Compromise Minor’s Claim

Tentative Ruling:

To grant. Order signed. Hearing off calendar.



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

notice of the order.

Tentative Ruling

Issued By: JYH on 10/29/2018 .


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Re: Mendez v. Doe et al.


Hearing Date: If timely requested, oral argument will occur on November 1,

2018 @ 3:00 p.m. (Dept. 501)

Motion: Plaintiff’s Motion to Amend Judgment

Tentative Ruling:

To deny.

Explanation:

While many of the cases addressing amendment of judgment to change the

name of the judgment debtor involve alter-ego issues, it is not necessary that the

plaintiff establish alter-ego in order to correct the name of the judgment debtor. Alter-

ego may be the relevant inquiry where a separate legal entity or person is to be added

to a judgment. In some cases though, it is simply a matter of correcting the name of

the judgment debtor. (See Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36.)

In order to change the judgment in the manner requested here, the plaintiff must

give notice to the parties whose rights would be substantially affected by the requested

amendment and must present the court with evidence sufficient to support a finding

that the original and new defendant/judgment debtor is one and the same. (Thomson

v. L.C. Roney & Co. (1952) 112 Cal.App.2d 42 0, 427; Manson, supra, 176 Cal.App.4th

at pp. 44-47.)

Plaintiff contends that Sandridge Farms was a dba of Sandridge Partners.

But the only evidence referenced in support of this contention is (1) the fact that

over the years plaintiff’s counsel mailed various documents in this litigation to

“Sandridge Farms” at the Utica Avenue address, none of which were ever

returned undelivered or undeliverable; and (2) Sandridge Partners’ attorney’s

email inquiry seeking “to determine how our client, Sandridge Farms, is involved

in this case.” The former is not very compelling, consisting only of the lack of

response to actions by plaintiff’s counsel. The latter is compelling, but it isn’t an

admission by a party or made in a pleading, and accordingly will not be given

conclusive effect. As pointed out in the opposition papers, it would have been a

simple matter at the outset to ascertain the true name of the defendant by

checking readily available public records. Plaintiff presents no direct evidence

pertaining to Sandridge Partners’ business operations that would show it

operated under the name Sandridge Farms. In the absence of such evidence,

the court finds that plaintiff has not met his burden of showing that Sandridge

Farms is or was a dba of Sandridge Partners.

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

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serve as the order of the court and service by the clerk will constitute notice of the

order.

Tentative Ruling



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(29)

Tentative Ruling

Re: Dominguez, et al. v. Holaday, et al.


Hearing Date: If timely requested, oral argument will occur on November 1, 2018

@ 3:00 p.m. (Dept. 501)

Motion: Demurrer

Tentative Ruling:

To overrule. (Code Civ. Proc. §430.10(e), (f).)

Explanation:

Demurrer

In testing a pleading against a demurrer, the facts alleged are deemed to be

true, as it is “not the ordinary function of a demurrer to test the truth of the plaintiff's

allegations or the accuracy with which [plaintiff] describes the defendant's conduct. A

demurrer tests only the legal sufficiency of the pleading. [Citation.]” (Quelimane Co. v.

Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) Demurrers for uncertainty “are

disfavored, and are granted only if the pleading is so incomprehensible that a

defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory

Authority (2012) 208 Cal.App.4th 1125, 1135.) Special demurrers are strictly construed

because ambiguities can be clarified during discovery. (Ibid.)

In the case at bench, Defendant Colonial Van & Storage, Inc. (“Colonial”)

generally and specially demurs to Plaintiffs’ first through third causes of action.

Uncertainty

A demurrer for uncertainty may be sustained when the complaint is drafted in a

manner that is so vague or uncertain that defendant cannot reasonably respond, such

as where defendant cannot determine what issues must be admitted or denied, or

what causes of action are directed against it. (Khoury v. Maly's of California, Inc. (1993)

14 Cal.App.4th 612, 616.) Demurrers for uncertainty are appropriately overruled where

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

Here, every cause of action in the complaint is pled in ordinary language. The

facts underlying each claim are clear. Defendant Colonial should be able to

determine what issues must be admitted or denied. Plaintiff’s complaint is not uncertain.

Accordingly, the special demurrer to each cause of action for uncertainty is overruled.

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Negligence

The elements of negligence are duty, breach, causation, and damages.

(Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640.) Liability may

attach to an employer for negligent conduct of its employees, made in the course and

scope of employment. (Civ. Code §2338; see Childers v. Shasta Livestock Auction Yard,

Inc. (1987) 190 Cal.App.3d 792, 801 [employer liable for risks arising out of

employment].)

Here, Plaintiffs allege that all defendants had a duty to exercise reasonable care

and maintain the subject premises in a safe condition; that defendants breached that

duty, and that Plaintiffs suffered damages as a direct result of this breach. Plaintiffs

allege that Defendant Holaday invited Plaintiffs to her home to discuss work matters

with Plaintiff Schindler, and that Defendant Holaday was acting as Defendant

Colonial’s employee throughout the evening. Plaintiffs allege that Plaintiff Schindler

understood that the invitation to Defendant Holaday’s home was extended by

Defendants Holaday and Colonial. Plaintiffs allege that their attendance at the dinner

meeting was based on Plaintiff Schindler’s business relationship with Defendants Holiday

and Colonial. Plaintiffs state sufficient facts to adequately allege this cause of action.

Defendant Colonial’s general demurrer is therefore overruled.

Negligent supervision

Defendant Colonial generally demurs to the second cause of action for

negligent supervision. As this cause of action is not directed against Defendant

Colonial, the demurrer thereto is overruled.

Intentional infliction of emotional distress

Defendant Colonial demurs to Plaintiffs’ third cause of action on the ground that

this Court lacks subject matter jurisdiction.

Though the notice of motion states that Defendant Colonial demurs to this cause

of action on the ground that this Court lacks jurisdiction, no such argument is set forth in

the moving papers. Accordingly, Defendant Colonial’s demurrer to Plaintiffs’ third

cause of action is overruled.

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 10/29/2018 .


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Re: Vang v. California State University Board of Trustees


Hearing Date: If timely requested, oral argument will occur on November 1, 2018

@ 3:00 p.m. (Dept. 501)

Motion: Demurrer by Defendants California State University Board of

Trustees, Joseph Castro, James Marshall, Dennis Nef, Christopher

Pluhar, Keith Putirka, Peter Van de Water, and John Wakabayashi

to the Second Amended Complaint

Tentative Ruling:

To sustain the general demurrers to each cause of action, without leave to

amend. To sustain the special demurrer for uncertainty to the sixth cause of action,

without leave to amend, but otherwise to overrule the special demurrers for

uncertainty. To strike the unauthorized “second opposition” filed by plaintiff on October

3, 2018.

Explanation:

Request for Judicial Notice:

Defendants’ request for judicial notice of a statement from the University’s

website documenting its accreditation is granted. However, the request for judicial

notice of various letters and memos from several of the defendant professors, which

were attached to plaintiff’s First Amended Complaint (FAC), is denied. In the main,

defendants use the contents of these documents as factual support (i.e., evidence) for

many of their arguments. For instance, in arguing that the doctrine of judicial restraint in

reviewing academic decisions should be applied (where the standard is “substantial

departure from academic norms”), they point out that one professor said plaintiff’s

topic lacked “support in existing scientific literature” and another told him it held “no

merit” and that CSU lacked “faculty deeply experienced in meteorite impact geology.”

In other words, defendants use these statements to attempt to prove that the

university’s academic decisions with regard to plaintiff’s thesis program were not

arbitrary and were within academic norms. This is not the proper function of demurrer,

nor the proper function of judicial notice. “A court may take judicial notice of the

existence of each document in a court file, but can only take judicial notice of the truth

of facts asserted in documents such as orders, findings of fact and conclusions of law,

and judgments.” (Day v. Sharp (1975) 50 Cal.App.3d 904, 914, emphasis in the original;

Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22.) The hearing on demurrer may not be

turned into a contested evidentiary hearing through the guise of having the court take

judicial notice of documents whose truthfulness or proper interpretation are disputable.

Judicial notice of matters upon demurrer will be dispositive only in those instances

where there is not or cannot be a factual dispute concerning that which is sought to be

judicially noticed. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148

Cal. App. 4th 97, 114.)

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No Mandatory Duty Alleged

A public entity is not liable except as provided by statute. (Gov. Code § 815.

(Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) Government Code

section 815.6 provides:

Where a public entity is under a mandatory duty imposed by an

enactment that is designed to protect against the risk of a particular

kind of injury, the public entity is liable for an injury of that kind

proximately caused by its failure to discharge the duty unless the public

entity establishes that it exercised reasonable diligence to discharge

the duty.

Thus, a government may be liable when (1) a mandatory duty is imposed by

enactment, (2) the duty was designed to protect against the kind of injury allegedly

suffered, and (3) breach of the duty proximately caused injury. But even when a duty

exists, California has enacted specific immunity statutes that, if applicable, prevail over

liability provisions. (Creason v. Department of Health Services (1998) 18 Cal.4th 623, 635.)

To establish the first prong, a mandatory duty, the plaintiff must establish that the

enactment at issue is obligatory instead of merely discretionary or permissive, and must

require, rather than simply authorize or permit, that a particular action be taken or not

taken. (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498.) Even if a public entity or

officer is obligated to perform a function, if the function itself involves the exercise of

discretion, this does not establish a mandatory duty. (Id.) Courts strictly construe this

prong, and find a mandatory duty “only if the enactment affirmatively imposes the duty

and provides implementing guidelines.” (Guzman v. County of Monterey (2009) 46

Cal.4th 887, 898, internal quotations omitted.) Therefore, in order to recover, plaintiffs

“have to show that there is some specific statutory mandate that was violated by the

[public entity]....” (Id. at p. 911, emphasis and brackets in the original.)

Determining whether an enactment imposes a mandatory duty, rather than a

discretionary function, is a question for the courts. (Creason, supra, 18 Cal.4th at p. 631.)

Here, plaintiff asserts a mandatory duty in each cause of action. Defendants argue

there is no mandatory duty asserted in any cause of action “in the factual setting and

sought relief in this case.”

No mandatory duties are involved here, with any of the involved statutes. Where

a case does not involve the public entity’s “quasi-legislative policy-making, the inquiry

should focus on whether the entity must render a considered decision, one requiring its

expertise and judgment.” (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 899,

internal quotes and citations omitted.) If so, no mandatory duty is imposed by the

statute in question. Here, the defendants were called upon to make a discretionary

decision as to whether plaintiff qualified to remain in the master’s degree program. As

further discussed below, none of the statutes supporting plaintiff’s causes of action

create mandatory duties.

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First Cause of Action: Violation of the Donahoe Higher Education Act

The Donahoe Higher Education Act sets forth the missions and functions of

California’s public and independent segments of higher education. It enabled the

expansion of California’s higher education system to meet the needs of an increasing

population. (Educ. Code § 66002, subd. (f)(2).)

Whether a statute creates a private right of action “depends on whether the

Legislature has ‘manifested an intent to create such a private cause of action’ under

the statute.” (Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, 596.) On its

face, the Act does not indicate any mandatory duty for any agency of employee of

an agency to perform a specific act, nor does it indicate any specific remedy for failure

to perform any such act. Further, the legislative history does not show any mandatory

duty or indicate that any private cause of action was intended. It simply authorizes “the

work completed by the master plan review committees” to be used to guide higher

education policy. (Educ. Code § 66002, subd. (f)(5).) It is an “outline” of “broad policy

and programmatic goals of the master plan and clear, concise statewide goals and

outcomes for effective implementation of the master plan[.]” (Educ. Code § 66003.)

Furthermore, the legislative intent is expressly stated at section 66003: “[C]onsistent with

the spirit of the original master plan and the subsequent updates, it is the intent of the

Legislature that the governing boards be given ample discretion in implementing

policies and programs necessary to attain those goals.” (Id., last sentence.)

Plaintiff’s argument fails to show how the Act creates a private right of action or

embodies any mandatory duty. Therefore, demurrer to this cause of action must be

sustained, without leave to amend.

Second Cause of Action: Violation of the Equity in Higher Education Act

This Act provides that “all persons, regardless of disability, gender, gender

identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or

any other basis that is contained in the prohibition of hate crimes set forth in subdivision

(a) of section 422.6 of the Penal Code," must be afforded "equal rights and

opportunities in the postsecondary educational institutions of the state." (Ed. Code,§§

66250, 66292.4.) While in the complaint plaintiff describes his ethnicity as Hmong, there

are no facts showing unlawful discrimination based on ethnicity. Instead, the complaint

alleges that defendants are liable because they offered public services only to

“specific groups (i.e. research fields) within the Earth and Environmental Science

department” (SAC, ¶ 88) and that it has a Special Majors program for students with

interests in fields or degrees not offered by the university, and it should have been able

to accommodate his field of interest (impact geology) and it did not (Id., ¶82). He also

alleges public services were provided only to “outstanding students.” (Id. ¶103.)

This act does not establish any mandatory duty with regard to matriculation of

master’s degree students in a particular research topic. On its face, the Act addresses

the provision of equal rights and opportunities to students, regardless of their protected

status under applicable law. The statute expressly the legislative intent clearly states the

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purpose of the Act is to “prevent and respond to acts of hate violence and bias-related

incidents that are occurring at an increasing rate in California's public schools.” (Educ.

Code § 66252, subd. (d).) It affirms that institutions such as California’s universities “have

an affirmative obligation to combat racism, sexism, and other forms of bias, and a

responsibility to provide equal educational opportunity.” (Id., subd. (c).)

Plaintiff appears to assert that the Act should be stretched to require the

university to allow provision for a master’s degree program of the student’s

determination, without regard for the lack of any such language in the act itself, or the

detrimental effects such a rendering would have on the university’s ability to maintain

academic standards. In opposition, plaintiff readily admits he is not basing his cause of

action on any ethnicity-based discrimination. Instead, he argues only that the classes

protected by this Act (and apparently all others) are meant to be “liberally and broadly

interpreted” to effectuate its purpose. He also points out that Education Code section

66292.4 expressly provides that the Equity in Higher Education Act may be enforced

through a civil action.

Even though this Act clearly may be enforced through a civil action, because

plaintiff does not allege – or intend to allege – any ethnicity-based discrimination, or

any other type of discrimination within the obvious ambit of the Act, the demurrer to this

cause of action must be sustained, without leave to amend.

Third Cause of Action: Violation of Government Code sections 11135-11139.8

These Government Code statutes provide for a private right of action to prevent

unlawful denial of full and equal access to benefits and to prevent unlawful

discrimination in any state operated or funded program on the basis of “sex, race,

color, religion, ancestry, national origin, ethnic group identification, age, mental

disability, physical disability, medical condition, genetic information, marital status, or

sexual orientation." (Gov. Code, §11135, subd. (a).) Again, while plaintiff alleges his

Hmong ethnicity, this cause of action alleges that only students within certain research

fields in the Earth and Environmental Science Department were supported in the

graduate program pathway (SAC, ¶¶ 127, 128, 131) or that only “outstanding” students

were supported (id. at ¶¶ 142, 143).

Plaintiff also alleges that Government Code section 11135 has “been shown to

be liberally construed in order to effectuate its purpose,” and while he acknowledges

the current protected classes, he alleges that the “underlying concept” of these

statutes is “prohibition from discrimination for being, associating, and/or identifying with

a particular group,” and concludes that “[f]uture versions will likely hold the same

concept.” (SAC, ¶ 13.) However, this allegation simply represents plaintiff’s contentions

or conclusions about the law, which are not taken as true on demurrer. (Aubry v. Tri-City

Hospital Dist. (1992) 2 Cal.4th 962, 966; Serrano v. Priest (1971) 5 Cal.3d 584, 591;

Adelman v. Associated Intern. Ins. Co. (2001) 90 Cal.App.4th 352, 359.)

Plaintiff’s claim for discrimination is not based on any class protected by these

statutes. He argues that this cause of action should be allowed (i.e., demurrer should be

overruled) because defendants denied plaintiff his chance at a master’s degree

“because he associates with impact geologists.” However, there is no duty, mandatory

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or otherwise, for the university to provide plaintiff with a master’s degree program of his

choosing, as he appears to allege and argue. The demurrer to this cause of action must

be sustained, without leave to amend.

Fourth Cause of Action: Unruh Act

To prevail on a claim under the Unruh Act, a plaintiff must allege and establish

that defendants discriminated against him or her based on a protected status—e.g.,

"sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic

information, marital status, sexual orientation, citizenship, primary language, or

immigration status"—in the provision of "accommodations, advantages, facilities,

privileges, or services in all business establishments of every kind whatsoever." (Civ.

Code, § 51, subd. (b).) However, plaintiff’s fourth cause of action does not allege

discrimination on any of these bases, but instead alleges that public services were

provided only to “specific groups (i.e. research fields) within the Earth and

Environmental Science department” (SAC, ¶ 165.) and only to “specific groups (i.e. only

outstanding students) with the department” (id., ¶ 187).

The purpose of the Unruh Act is to protect all persons from arbitrary discrimination

by business establishments. (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 732.) The

list of protected classes given in the statutory scheme has been found to be illustrative

rather than restrictive. (Id. at pp. 730, 732.) For instance, in Marina Point, the California

Supreme Court held that a landlord’s policy of not allowing families with minor children

to rent an apartment violated the Unruh Act. So, while categories upon which

discrimination can be found may be broader than the other acts discussed above,

courts have found the protection of the Unruh Act generally extends to categories

bearing the “common element” of being “personal” characteristics, such as “a person's

geographical origin, physical attributes, and personal beliefs.” (Candelore v. Tinder, Inc.

(2018) 19 Cal.App.5th 1138, 1145.) While “personal characteristics” protected by the

Act are not defined by their immutability, they generally represent “conditions,

decisions, or choices fundamental to a person's identity, beliefs and self-definition.”

(Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 842-843 [marital status

discrimination regarding lesbian couple].)

Here, plaintiff alleges discrimination based on whether or not a student is

considered “outstanding,” and based on “association with impact geologists.” These

do not represent traits “fundamental to a person’s identity, beliefs and self-definition.”

Furthermore, the Act is intended to prohibit antisocial discriminatory practices, and not

socially beneficial ones. (Sargoy v. Resolution Trust Corp. (1992) 8 Cal.App.4th 1039,

1049 [senior citizen discounts].) Moreover, in Harris v. Capital Growth Investors XIV (1991)

52 Cal.3d 1142, the California Supreme Court noted it was appropriate for a court to

consider the adverse consequences of prohibiting conduct under the Unruh Act. (Id. at

pp. 1165-1168 [examining impact of plaintiff’s claim of economic discrimination based

on defendant’s minimum income policy for rental applicants].) Here, for a school to

discriminate on the basis of a student’s “outstanding” status or particular research field

is reasonable, and does not support antisocial discriminatory practices: CSU Fresno has

significant pedagogical, academic and reputational interests which are served by

differentiating between students seeking degrees based on their academic

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accomplishments and (for masters students) peer-reviewed research topics. This

comports with the standards of an educational community.

Moreover, the Unruh Act does not create a mandatory duty for a school or

university to accommodate majors or master’s degrees of the student’s determination,

and such an interpretation would certainly have a detrimental effect on a university’s

ability to maintain uniform academic standards. Plaintiff’s allegations do not support a

claim for discrimination under the Unruh Act.

Defendants also argue that the university is not a ‘business establishment” under

the Act, pointing to Taormina v. California Dept. of Corrections (S.D. Cal. 1996) 946

F.Supp. 829, where the court found that a prison was not a business establishment for

purposes of liability under the Unruh Act. (Id. at p. 834.) However, there have been

cases where courts have upheld Unruh Act claims against public entities. (See, e.g., Los

Angeles County Metropolitan Transportation Authority v. Superior Court (2004) 123

Cal.App.4th 261 [civil penalty under the Act not precluded against public entity].) Thus,

defendants did not adequately establish that it is not a business entity for purposes of

the Act.

Nonetheless, plaintiff has not grounded this claim on any discrimination status

that is cognizable under the Unruh Act. The demurrer to this cause of action must be

sustained, without leave to amend.

Fifth Cause of Action: Violation of Political Reform Act

This cause of action deals with the university’s decision concerning plaintiff’s EO-

1063 complaint, which the university, via defendant Castro, assigned to defendant Nef

for investigation. After investigation, it was decided that plaintiff’s allegations were not

substantiated. (SAC, ¶ 30.) Plaintiff alleges defendant Nef should have recused himself

because he had a conflict of interest in that he was paid with monies from the state of

California, and thus must be loyal to and depend on those who pay him (i.e., that it was

all but predetermined he would make the finding he did). (Id., ¶ 202, 204, 207.) His

executive decision was both directly and indirectly affected by his economic interest.

(Id., ¶ 208.) It was possible for Nef to be promoted to Provost or Vice President, which

would not be possible if he placed his superiors in a “legally indefensible position.”

A public official has a financial interest within the meaning of the Political Reform

Act only if it is reasonably foreseeable that the decision will have a material financial

effect on the official (as distinguished from an effect on the public generally). (Gov.

Code, § 87103.) An effect is considered “reasonably foreseeable” if there is substantial

likelihood that such effect will occur; if an effect is only a mere possibility, it is not

reasonably foreseeable. (Smith v. Super. Ct. (1994) 31 Cal.App.4th 205, 212.) Nef’s

position at the university did not create, as a matter of law, an economic interest in

conflict with his role in investigating the EO-1063 complaint, nor did the complaint

allege any facts making it reasonably foreseeable that Nef’s decision would have any

economic effect at all on Nef or his family, much less a material one. He was not

financially interested in the decision itself. Moreover, the allegation that “openly

admit[ing]…wrongdoing” (i.e., by finding plaintiff’s claim was substantiated) would put

his superiors in a “vulnerable position in a potential lawsuit” (SAC, ¶ 208) is speculative,

15

since arguably a finding in favor of plaintiff might well have avoided this lawsuit. Also,

the allegation that Nef had a financial interest in the matter because a negative

outcome to his evaluation might mean a loss to the university’s finances which might

mean a cut to his (Nef’s) income, is speculative. Likewise, the alleged economic

entanglement due to the possibility of Nef’s promotion is also entirely speculative.

The demurrer to the fifth cause of action must be sustained, without leave to

amend.

Sixth Cause of Action: Breach of Contract

Plaintiff alleges that his enrollment in the university and his payment of fees

created an implied contract with CSU Fresno. In Kashmiri v. Regents of University of

California (2007) 156 Cal.App.4th 809, the court did recognize that the relationship

between the student and the educational institution can to some degree be

characterized as contractual, although the relationship is “unique, and it should not be

and can not be stuffed into one doctrinal category....” (Id. at p. 824, quoting Lyons v.

Salve Regina College (1st Cir. 1977) 565 F.2d 200, 202.) Thus, courts recognize that there

must be a “rule of ‘flexibility’ when applying contract law” in such a situation. (Id.)

However, plaintiff’s government claim did not assert any claim of breach of

contract, which is a basis for sustaining the demurrer. The factual basis for the recovery

must be fairly reflected in the Government Claim, or it is vulnerable to demurrer. (Crow

v. State of California (1990) 222 Cal.App.3d 192, 201-202, disapproved on other grounds

by Regents of University of California v. Superior Court (2018) 4 Cal.5th 607 [claim could

not support contract cause of action, even under doctrine of substantial compliance,

since factual basis for it was “wholly absent from the claim (as opposed to being

described inaccurately).”].)

Defendants also argue that the statute of frauds bars this contract because it is

an “agreement which by its terms is not to be performed within a year from the making

thereof,” and thus comes under the statute. (Civ. Code, § 1624.) However, this provision

cannot be invoked simply because performance within one year is not likely or

probable. (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 671-675.) Furthermore,

agreements which are of indefinite duration are not invalidated by this aspect of the

statute of frauds, even if entirely oral. (White Lighting Co. v. Wolfson (1968) 68 Cal.2d

336, 343-344 and fn 2.) Thus, it is not clear that the statute of frauds bars this claim, so

demurrer cannot be sustained on this basis.

Also, plaintiff fails to allege the source of this alleged promise to uphold statutes

by providing him with unfettered support for his Master’s degree, regardless of merit. To

that extent, the claim is uncertain. Also, to the extent plaintiff relies on publications by

the university, “not all statements in these publications amount to contractual

obligations." (Kashmiri, supra, 156 Cal.App.4th at p. 829.) Instead, determining whether

a statement qualifies as a term in an implied contract “is measured by the definiteness,

specificity, or explicit nature of the representation at issue." (Id., at p. 832.) There must

be a specific promise that the school will provide a specified service or follow a

specified course of action. (Id., at p. 826.) General and vague statements which might

be viewed as “promises” in university publications do not create a contract, nor do

16

statements simply declaring the school’s general approach to the subject matter. (Id.,

at p. 832, 825, fn 9.)

More importantly, it appears from plaintiff’s opposition that the implied promise

on which he rests this claim is the university’s promise to follow “all statutory laws.”

(Oppo., p. 17:7-10.) However, as set forth above, plaintiff fails to state a claim for any

violation (or “breach”) of any mandatory duty under any statutory law. Thus, to that

extent, the claim also fails to state a cause of action.

The special demurrer for uncertainty must be sustained, and the general

demurrer (failure to state a cause of action) must also be sustained, without leave to

amend.

Seventh Cause of Action: Fraud and Deceit

“The essential allegations of an action for fraud are a misrepresentation,

knowledge of its falsity, intent to defraud, justifiable reliance, and resulting damage.”

(Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 109.)

First, the cause of action is subject to demurrer because plaintiff fails to

adequately allege a statement of material fact which defendants knew to be false

(i.e., a fraudulent misrepresentation). It appears one representation plaintiff alleges

“defendants” made is that they would “provide an environment in which research and

professional activity are valued and supported, a free and open scholarly inquiry for the

exploration and appreciation for diverse ideas and viewpoints, be responsive to the

needs of the citizens of this state, and show respect for and due consideration of the

role and contributions that each member of the university community, including the

student, makes toward the mission of the university.” (SAC, ¶251.) From the exhibits

referenced at Paragraph 251, it appears this “promise” was made via university

literature. But this is simply a general statement as to the university’s general approach

to its educational goals, and as such cannot serve as a representation that could

support a fraud cause of action. Also, it was not made by any of the individual

defendants, personally.

It appears plaintiff is also attempting to allege that defendants’ decision as to

plaintiff’s EO-1063 complaint was “fraudulent” (i.e., that it serves as a fraudulent

representation) in that it was, in plaintiff’s opinion, unethical because it was made by

defendant Nef, who plaintiff alleges had a conflict of interest. (SAC, ¶252.) However,

this does not outline a claim of fraud, even if made with an unethical conflict of interest.

Assuming, arguendo, there was a conflict of interest (which as established above did

not exist under the facts as alleged), defendants (or some of them) might be liable for

violation of various laws precluding such conflicts, but this would still not support a claim

of fraud.

Another apparent representation plaintiff alleges is that defendants made

statements to him, in a letter, which amounted to telling him he was not “free to choose

a thesis research that is central to his full development as a responsible citizen,” and

they told plaintiff he “would be removed if he did not choose a thesis research within

the existing fields of the Earth and Environmental Science Department.” (Id., ¶253 and

17

Att. 4, 7, and 13 of Ex. 1.) However, even if this is deemed to be the “representation”

supporting the fraud claim, under the allegations as pled, it is clear defendants fully

believed this statement to be true, and what is more, they followed through with that

statement and removed him from the program when he refused to choose a different

thesis topic. Thus, plaintiff cannot allege defendants knew this statement to be false.

Plaintiff may contend it was “false” in the sense that he disagrees defendants had the

right and privilege to impose this condition or to remove him from the program, but his

disagreement with their stance does not morph this statement into a false

representation, if defendants subjectively believed it to be true.

Furthermore, plaintiff has not alleged that he relied on this statement; in fact, he

alleges just the opposite. He alleges defendants made this statement intending him to

“rely [on] and follow their false statements and when plaintiff refused, Defendants took

action and removed Plaintiff from the graduate program.” (Id., ¶ 255, brackets and

emphasis added.) He also alleges that “[w]hen Defendants attempted to defraud

Plaintiff, Plaintiff recognized the attempt.” (Id., ¶ 255a, emphasis added.) Therefore,

plaintiff has not alleged any reliance on what he deems a fraudulent statement. His

quote from Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 249 (at ¶

255b)1 misses the point. Plaintiff apparently thinks this quote means defendants are still

guilty of fraud even though he was not fooled by their attempt. But this is not what

Boschma stands for. The court simply observed that a fraud cause of action can be

stated even if the representation would be considered “obviously false” to a trained or

experienced person, if the plaintiff can honestly allege he/she believed the statement.

It does not mean a plaintiff can allege fraud even if he truly did not believe the

representation.

The demurrer to the fraud cause of action must be sustained without leave to

amend.

Demurrer to Writ of Mandamus

The complaint is entitled, in the alternative, a petition for writ of mandamus.

However, the court cannot discern that plaintiff has pled such a petition. Plaintiff himself

admits in his opposition that his “writ of mandate” essentially consists of the prayer for

an injunction compelling the university to allow him to complete his master’s degree in

the study of meteor impact craters. However, an action for injunction, which may in

some instances be properly joined with a petition for writ of mandate, is not itself the

writ of mandamus. It appears from the opposition brief that plaintiff acknowledges he is

merely seeking an injunction. Therefore, the demurrer to this cause of action should be

sustained, without leave to amend. Defendants challenge it, as well, based on statute

of limitations grounds, but based on plaintiff’s apparent abandonment of the cause of

action, this need not be addressed.

1 “The fact that a false statement may be obviously false to those who are trained and

experienced does not change its character, nor take away its power to deceive others less

experienced. There is no duty resting upon a citizen to suspect the honesty of those with whom

he [or she] transacts business. Laws are made to protect the trusting as well as the suspicious.

[T]he rule of caveat emptor should not be relied upon to reward fraud and deception.”

(Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 249, internal quotes omitted.)

18

Demurrer for Uncertainty as to whole complaint:

Defendants argue their special demurrer for uncertainty lies as to the whole

complaint because the entire complaint is made uncertain by “its text, length, breadth,

and various exhibits.” However, a demurrer for uncertainty will be sustained only where

the complaint is such that the defendant cannot reasonably respond, i.e., cannot

determine what issues need to be admitted or denied, or what counts or claims are

directed against him/her. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612,

615.) Also, with a demurrer for uncertainty, defendant 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, 808, disapproved of on other

grounds by Katzberg v. Regents of University of California (2002) 29 Cal.4th 300.) While

the complaint is by no means a model of pleading clarity, defendants did not

sufficiently specify what was uncertain, by reference to page and line numbers. The

court will not sustain the demurrer for uncertainty to the whole complaint; as noted

above, however, the cause of action for breach of contract has been found to be

uncertain.

Regarding Leave to Amend:

Liberality in permitting amendment is the rule, unless the complaint “shows on its

face that it is incapable of amendment.” ((McDonald v. Superior Court (1986) 180

Cal.App.3d 297, 303-304.) The court is aware this is the first instance where it is ruling on

the sufficiency of the pleading. However, plaintiff has already taken several

opportunities to amend the complaint, after extensive meet and confer efforts with

defendants. It is clear that plaintiff insists he is properly alleging that defendants had

mandatory duties under the various statutes raised in the complaint, and the court has

found that only discretionary duties were involved. Plaintiff has not shown any instance

where he could amend his causes of action to state valid claims, and in fact his

argument adamantly contends no amendment is necessary. Thus, the court has found

it proper to sustain the demurrers without leave to amend in the first instance.



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


Tentative Ruling



19

Tentative Rulings for Department 502


Re: Martin v. Familey Dollar 1810 Jensen



Motion: Demurrer and Motion to Strike re Second Amended

Complaint

Tentative Ruling:

To sustain the demurrer to the Second Amended Complaint without leave to

amend. (Code Civ. Proc. § 430.10(e), (f).) Prevailing party is to submit to this court,

within seven days of service of the minute order, a proposed judgment dismissing the

action as to the demurring defendant.

To take the motion to strike off calendar as moot in light of the ruling on the

demurrer.

Explanation:

In the complaint a plaintiff must “plead facts showing that he may be entitled to

some relief.” (Schnall v. Hertz Corp. (2000) 78 Cal.App.4th 1144, 1152.) The complaint

must contain “a statement of the facts constituting the cause of action, in ordinary and

concise language.” (Code Civ. Proc. § 425.10.) Plaintiff has filed three versions of the

complaint, and each time has failed to allege any facts at all. This issue was addressed

in the ruling on the demurrer to the First Amended Complaint (“FAC”), but is not cured

in the Second Amended Complaint, which does not even include the cause of action

attachment. Since plaintiff pleads no facts, he fails to state a cause of action.

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 DSB 10-29-18

Issued By: on .


20

(03)

Tentative Ruling

Re: Cortes v. Auto USA, Inc.

Case No. 17CECG03877


Motion: Defendants’ Motion for Judgment on the Pleadings

Tentative Ruling:

To deny defendants’ motion for judgment on the pleadings. (Code Civ. Proc. §

438.)

Explanation:

First of all, defense counsel did not properly meet and confer before bringing the

motion for judgment on the pleadings, as required by Code of Civil Procedure section

439. Under section 439, subdivision (a), “Before filing a motion for judgment on the

pleadings pursuant to this chapter, the moving party shall meet and confer in person or

by telephone with the party who filed the pleading that is subject to the motion for

judgment on the pleadings for the purpose of determining if an agreement can be

reached that resolves the claims to be raised in the motion for judgment on the

pleadings.” (Code Civ. Proc. § 439, subd. (a), emphasis added.)

Here, defense counsel’s declaration states that he attempted to meet and

confer by letter and email before filing the motion, and that plaintiff’s counsel never

responded to his letters or emails. (Dardenne decl., ¶¶ 2-5.) However, he does not

state that he ever met and conferred in person or by phone, as required by section 439.

Also, “As part of the meet and confer process, the moving party shall identify all

of the specific allegations that it believes are subject to judgment and identify with

legal support the basis of the claims.” (Code Civ. Proc., § 439, subd. (a)(1).) Here,

defense counsel’s letter and email only identified one potential ground for a motion for

judgment on the pleadings, namely the plaintiff’s failure to bring a compulsory cross-

claim in the underlying small claims matter. (Exhibits 1 and 2 to Dardenne decl.) He did

not mention that he might also raise arguments that plaintiff’s complaint failed to state

a claim on other possible grounds, such as the alleged fact that the documents

attached to the complaint contradicted plaintiff’s claims or that she had generally

failed to allege facts to support her claims. Thus, defense counsel did not meet and

confer in good faith before bringing the motion.

Next, defendants’ primary argument, that plaintiff’s claims are all barred

because she failed to raise them as compulsory cross-claims in the underlying small

claims action, is without merit. Defendants note that Code of Civil Procedure section

426.30 states that, “[e]xcept as otherwise provided by statute, if a party against whom

a complaint has been filed and served fails to allege in a cross-complaint any related

cause of action which (at the time of serving his answer to the complaint) he has

21

against the plaintiff, such party may not thereafter in any other action assert against the

plaintiff the related cause of action not pleaded.” (Code Civ. Proc., § 426.30, subd.

(a).)

However, under section 426.60, “[t]his article does not apply to actions in the

small claims court.” (Code Civ. Proc., § 426.60, subd. (b).)

“The report of the Legislative Committee of the Senate, printed with the statute,

specifically states: ‘This changes prior law under which counterclaims within the

jurisdictional limits of the small claims court apparently were compulsory.’” (Davis v.

Superior Court (1980) 102 Cal.App.3d 164, 170, internal citation omitted.)

Also, Code of Civil Procedure 116.360 states that the “defendant may file a claim

in the same proceeding in an amount not to exceed the jurisdictional limits stated in

Sections 116.220, 116.221, and 116.231.” (Code Civ. Proc. § 116.360, subd. (a), italics

added.)

Thus, “[s]ince the small claims court defendant is not required to bring a claim in

order to preserve it, filing a counterclaim is voluntary rather than compulsory.”

(Universal City Nissan, Inc. v. Superior Court (1998) 65 Cal.App.4th 203, 205, internal

citations omitted.) “Stated otherwise, there is no such thing as a mandatory cross-claim

in small claims court.” (Anderson v. Superior Court (1990) 226 Cal.App.3d 698, 701,

internal citations omitted.)

As a result, defendants’ argument that plaintiff’s claims are barred for failure to

bring them in a compulsory cross-complaint in the small claims matter is misplaced and

erroneous. There is no such thing as a compulsory cross-complaint in small claims

matters, and the filing of a cross-complaint is purely optional. Thus, while plaintiff could

have brought her claims in small claims by filing a cross-complaint, she was not required

to do so, and her failure to file a cross-complaint does not bar her from bringing her

claims in the present case. Consequently, the court intends to deny the motion for

judgment on the pleadings to the extent that it is based on plaintiff’s failure to raise her

claims in the underlying small claims action.

Next, to the extent that defendants argue that plaintiff has failed to state any

facts to support her causes of action because her claims are contradicted by the

documents attached and incorporated into the complaint, defense counsel failed to

raise this contention in his meet and confer letter or email to plaintiff’s counsel. As a

result, it is questionable whether the contention is properly before the court, or whether

the court even needs to consider its merits.

However, even if the court were to consider the merits of defendants’

contentions, defendants have still failed to show that plaintiff failed to allege facts

sufficient to state a claim. Defense counsel argues that the documents attached and

incorporated into the complaint show that plaintiff was not misled about the condition

of the vehicle, and thus her second and third causes of action fail to state valid claims.

Defendant points out that the Autocheck report stated that the vehicle had multiple

owners and that there was a recall associated with the vehicle. Also, there was a

22

written disclaimer stating that the vehicle was being sold “as-is” to plaintiff. (Complaint,

Exhibit 2.)

Yet plaintiff has alleged that defendant’s representative told her that there were

no problems or issues with the vehicle. (Complaint, ¶ 17.) She also claims that the seller

knew that the manufacturer had ordered a safety recall of the vehicle, and actively

concealed this information from her. (Id. at ¶ 19.) None of the seller’s representatives

ever told plaintiff that there was a recall on the vehicle, or that it would need to be

taken to a Chevrolet dealership to fix the problem. (Id. at ¶ 23.) Plaintiff would never

had purchased the vehicle if she had known about the recall. (Id. at ¶ 25.)

Oral misrepresentations about the condition of a vehicle can form the basis for a

claim under the Consumer Legal Remedies Act. (Wang v. Massey Chevrolet (2002) 97

Cal.App.4th 856, 869-870.) “In light of the requirement that the act be construed

liberally, and the broad definition of ‘transaction,’ the only reasonable interpretation of

section 1770, subdivision (a)(14), is that it includes oral misrepresentations or promises

concerning the rights, remedies, or obligations under a written contract, like those

misrepresentations and promises alleged by the [plaintiffs] herein. By its very language,

subdivision (a)(14) of section 1770 contemplates the existence of collateral oral

promises, representations or agreements which may be inconsistent with the rights,

remedies, or obligations set out in a written contract; the statute makes such

misrepresentations unlawful. In light of the unlawful acts set out in subdivision (a)(14) of

section 1770, the Legislature clearly intended to repudiate any purported bar or

defense based on the parol evidence doctrine.” (Ibid.)

Thus, the fact that defendants may have disclosed in writing that the sale was

“as-is” and that the vehicle was used and might have problems associated with it does

not necessarily vitiate their potential liability for any oral representations they may have

made about the vehicle’s condition. Plaintiff clearly alleges that defendant’s

representatives made oral misrepresentations about the condition of the vehicle and

actively concealed the truth about the recall. These representations induced her to

buy the vehicle. Therefore, plaintiff has adequately alleged a claim under the CLRA

based on defendant’s alleged oral representations about the condition of the vehicle,

regardless of any written disclosures that might have been made to her at the time of

the sale.

In addition, since plaintiff has stated a claim under the CLRA, she has also

alleged an adequate statutory predicate claim to support her cause of action under

Business & Professions Code section 17200. Therefore, the court intends to deny the

motion for judgment on the pleadings in its entirety.

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 DSB 10-29-18

Issued By: __________________ on __________________.

(Judge’s Initials) (Date)

23

Tentative Rulings for Department 503 (5)

Tentative Ruling

Re: Progressive Packing Group, Inc. v. Quality Fresh Farms, Inc.



Application: RTAO and Writ of Attachment

Tentative Ruling:

To grant the application. The proposed order will be signed.

Explanation:

Background

Plaintiff sells high quality packing materials for agricultural products. The

Defendant is one of its customers. The parties have done business together since

January 16, 2015. They had an agreement whereby if an invoice was paid within 10

days, a 1.00% discount was given on the total price. If not, payment was due in full in 45

days. (See Declaration of Eli Riddle, Plaintiff’s President at ¶¶ 2-4 and Exhibit A attached

thereto consisting of a Progressive Packaging Group Credit Application executed by

Quality Fresh Farms on January 16, 2015.)

Riddle indicates that for the first two years, payment was not an issue. However,

beginning in 2017 and continuing to the present, Defendant failed to pay numerous

invoices. (See Declaration of Riddle at ¶¶ 5-6 and Exhibit B attached thereto consisting

of the invoices sent in 2018.)

On August 23, 2018, Plaintiff sent a demand letter to Gurdip Singh Billan, one of

the principals of Quality Fresh Farms, Inc. The letter indicated that the current balance

was $26,778.40, while the outstanding balance was $976,452.80. It further stated that, if

the Defendant did not pay $55,000 every Tuesday or Friday until the balance was paid,

legal action would be taken. No payment was made. (See Declaration of Riddle at ¶¶

7-8 and Exhibit C attached thereto.)

On September 11, 2018, Plaintiff filed a complaint alleging three causes of action

and three common counts:

1. breach of written contract for sale of goods;

2. goods sold and delivered;

3. open book account;

4. account stated;

5. fraud; and

6. negligent misrepresentation.

24

A proof of service was filed on September 14, 2018 showing that the summons,

complaint, and other documents had been personally served upon the agent

designated for service of process (the law firm of Dowling & Aaron) on September 13,

2018. On September 24, 2018, Plaintiff filed a right to attach order and a proposed writ

of attachment. No opposition has been filed.

Attachments in General

Proper Claims

Attachment is a purely statutory remedy. The attachment statutes are subject to

strict construction—i.e., unless specifically provided for by the attachment law, no

attachment procedure may be ordered by the court. (See Nakasone v. Randall (1982)

129 Cal.App.3d 757, 761.) Generally, an attachment may issue only if the claim sued

upon is:

· A "claim for money . . . based upon a contract, express or implied";

· Of a "fixed or readily ascertainable amount not less than $500";

· That is either unsecured or secured by personal property (including

fixtures); AND

· That is a commercial claim.

(See CCP § 483.010.)

The money claim must be for a "fixed or readily ascertainable amount" of at least

$500 (excluding costs, interest and attorney fees). (See CCP § 483.010(a).) Claims may

be aggregated to reach the minimum $500. The damages sought need not be

liquidated, but must be measurable by reference to the contract itself. (See Lewis v.

Steifel (1950) 98 Cal.App.2d 648, 650.) A complaint must be filed before plaintiff may

apply for an attachment. (See CCP §§ 484.010, 485.210, 492.020.)

Form of Evidence

A plaintiff’s declaration must, at the very least, show that the plaintiff would

prevail on the claim for which attachment is sought. In many cases, the plaintiff may

be required to make additional showings (e.g., that an individual defendant was

engaged in a trade, business or profession). The defendant must likewise present

declarations to support its claims. Unless the code specifically authorizes facts to be

shown by information and belief, the declarant must affirmatively show that if sworn as

a witness he or she could competently testify to the facts stated in the declaration.

(See CCP § 482.040.) At a minimum, this means the declarant must show actual

personal knowledge of the relevant facts. (See Evid. Code § 700 et seq.) Thus, for

example, a declaration should not contain hearsay unless the declarant lays a

foundation for an exception to the hearsay rule based on personal knowledge.

25

Further, all facts must be stated "with particularity." (See CCP § 482.040.) This

means that attachment declarations must contain evidentiary facts, rather than the

ultimate facts commonly found in pleadings. Mere conclusions of law or fact are not

sufficient. (See House v. Lala (1960) 180 Cal.App.2d 412, 416 (construing "particularity"

requirement of former summary judgment law). If matters are set forth on information

and belief (where authorized), the declarant must state the nature and reliability of the

information. (CCP § 482.040.)

Merits

The Declaration of Riddle, President of Progressive Packaging Group, Inc., has

been submitted in support of each application. The declaration meets the

requirements of Code of Civil Procedure section 482.040 and the statutory requirements

of Code of Civil Procedure section 483.010. (See Riddle Declaration in its entirety and

all exhibits attached thereto.) The application will be granted.

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

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



Tentative Ruling

Issued By: KAG on 10/29/18


26

(29)

Tentative Ruling

Re: PACCAR Financial Corp. v. Uppal, et al.



Motion: Writ of possession

Tentative Ruling:

To deny without prejudice.

Explanation:

Moving papers must be properly served. (Code Civ. Proc. §1005.) The Court’s

review of the file revealed no proof of service of the instant motion, or of the summons

and complaint. As it does not appear that Defendants have been properly served, the

application is denied without prejudice.

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




Tentative Ruling

Issued by: KAG on 10/29/18

(Judge’s Initials) (Date)

27

(30)

Tentative Ruling

Re: Maria Cedillo v. Margarito Neri



Motion: Motion to Strike by Defendant Margarito Neri

Tentative Ruling:

To order Defendant’s motion to strike off calendar.

Explanation:

The moving party shall file and serve with the motion to strike a declaration

stating either of the following: (1) the means by which the moving party met and

conferred with the party who filed the pleading subject to the motion to strike, and that

the parties did not reach an agreement resolving the objections raised by the motion to

strike; or (2) that the party who filed the pleading subject to the motion to strike failed to

respond to the meet and confer request of the moving party or otherwise failed to

meet and confer in good faith. (Code Civ. Proc., § 435.5, subd. (a)(3).)

Here, Defendant has failed to file a conforming declaration stating that the

parties either have met and conferred, or were unable to meet and confer, as required

by Code of Civil Procedure section 435.5. Accordingly, Defendant’s motion to strike is

ordered off calendar.

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




Tentative Ruling

Issued By: KAG on 10/29/18


tentative rulings for october 30 ... - fresno.courts.ca.gov · 10/30/2018 · barbara...

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