Superior Court, State of California · 2 days ago · SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 8, Honorable Sunil R. Kulkarni Mark Rosales, Courtroom Clerk

SUPERIOR COURT, STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

Department 8, Honorable Sunil R. Kulkarni Mark Rosales, Courtroom Clerk

191 North First Street, San Jose, CA 95113

1. To contest the ruling, call (408) 808-6856 before 4:00 P.M. Make sure to let the

other side know before 4:00 P.M. that you plan to contest the ruling, in accordance with

California Rule of Court 3.1308(a)(1) and Local Rule 8.E. 2. The prevailing party shall prepare the order unless otherwise ordered. (See

California Rule of Court 3.1312.)

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5. As ordered by the Presiding Judge of the Court, if the Court permits someone to

appear in person for the hearing, that person must observe appropriate social distancing

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LAW AND MOTION CALENDAR

DATE: NOVEMBER 10, 2020 TIME: 9:00 A.M.

LINE # CASE # CASE TITLE RULING

LINE 1 19CV344761 Everest Systems Company vs

Platinum Roofing, Inc.

OEX can proceed, since proof of personal

service on the examinee has previously been

shown.

LINE 2 19CV341814 Khanh Nguyen vs Huey Q.

Phan et al

CR/Bui: See tentative ruling. The Court will

prepare the final order.


Phan et al

Sellers: See tentative ruling. The Court will

prepare the final order.


Phan et al

See line 3.

LINE 5 19CV358182 Rebecca King vs Kendal

McMichael et al

See tentative ruling. The Court will prepare the

final order.























LINE 6 17CV316096 Katalyst Development, LLC vs

GABRIEL MICHEL et al

Good cause appearing, the Court GRANTS

plaintiff’s unopposed motion to compel.

Defendant must provide objection-free (except

privilege), Code-compliant responses to

plaintiff’s document demands within 30 days of

this order. Also, defendant must pay reasonable

monetary sanctions of $1800 within 30 days of

this order.

LINE 7 19CV343869 Luis Sanchez et al vs Ali

Nowaid et al

See tentative ruling. The Court will prepare the

final order.

LINE 8 19CV341275 Jamal Matar vs Tony Huicochea

Good cause appearing, the Court GRANTS the

unopposed motion to set aside the 6/22/20 entry

of default. Defendant must file a responsive

pleading within 30 days of this order.

LINE 9 19CV348643 Joseph Huang et al vs Frank

Liu et al

At the request of the parties, this motion is

CONTINUED to 12/10/20 at 9 am.























LINE 10 19CV361017 Yeung Chen vs Xu Zhong The Court DENIES this motion WITHOUT

PREJUDICE. Proper notice of the motion

under CCP § 1005 was not provided to the

opposing party—specifically, once a date was

assigned for the motion by the clerk’s office,

the moving party had an obligation to send a

notice with that date.

The moving party can try again.

LINE 11 19CV360687 Wesley Nguyen vs Joanne

Sandoval

Good cause appearing, the Court GRANTS the

motion for consolidate this case and

20CV362136 for all purposes, including trial.

This case (19CV360687) will be the lead case.

A case management conference for the

consolidated cases is set for 3/23/21 at 10 am in

Department 8. The 1/19/21 CMC in Case No.

20CV362136 is VACATED.

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Case Name: Nguyen v. Phan, et al.

Case No.: 19CV341814

Defendants CR Realty & Mortgage Corporation (“CR”) and Hoa Truc Bui (“Bui”)

(collectively, “Defendants”) demur to the Third Amended Complaint (“TAC”) filed by

plaintiff Khanh Nguyen (“Plaintiff”).

I. Background

A. Factual

In mid-2015, Plaintiff entered into negotiations to purchase real property (the

“Property”) owned by Sellers. (TAC, ¶ 7.) Defendant Hoa Troc Bui (“Bui”), a licensed real

estate agent, and CR Realty & Mortgage Corporation (“CR”), a licensed real estate company,

represented Plaintiff. (Id., ¶ 9.) Sellers were represented by Alan Huynh and KW Silicon City

(“Sellers’ Agents”). (Id., ¶ 9.) Escrow ultimate closed on October 8, 2015, with Plaintiff

purchasing the Property for $1.4 million. (Id. and Exhibit A.)

Prior to close of escrow, Plaintiff visited the Property and noticed the basketball court

located in the backyard had become unleveled and cracked. (TAC, ¶ 10.) When he returned a

few days later, the court had been filled in, and Sellers stated in an addendum to the purchase

agreement “settling should stop once the dirt are [sic] packed” and “…basketball court was

fixed from the dirt settling. (Id. and Exhibit B.) Trusting that Sellers were acting in good faith

and because Plaintiff’s agent did not advise him to do so, Plaintiff did not conduct any further

investigation. (Id., ¶ 11.)

However, experts retained by Plaintiff in 2018-2019 estimated that defects resulting in

the cracking observed on the basketball court were chronic and estimated the repairs would

cost approximately $750,000- half of what was paid for the Property. (TAC, ¶ 12.) The

Property is located on a hillside slope and Sellers checked “No” on the disclosure form when

asked whether there was flooding, drainage, or grading problems, and while Sellers checked

boxes related to noncompliant fill and soil problems, they did not explain or disclose the extent

of them. (Id., ¶ 13 and Exhibit C.)

On April 1, 2016, the Property experienced sliding and cracking. (TAC, ¶ 14.)

Plaintiff hired various experts to investigate and began repairs, as he was left with no other

options. (Id.) Investigations by these experts revealed that the backyard experienced multiple

cracking and landslides spanning the years Sellers owned the Property. (Id., ¶ 16.) Comparing

these results to Sellers’ disclosures reflect substantial material differences in what was

disclosed and what was not. (Id., ¶ 17.) Plaintiff could not have reasonably discovered these

defects in the short time he was considering purchasing the Property. (Id., ¶ 16.)

On September 13, 2018, Plaintiff was informed by the City of San Jose that the

Property had been graded without permits. (Id., ¶ 15.) The listing for the Property described it

as level even though there were no permits. (Id.) The City directed Plaintiff to stop work until

he complied with all applicable laws and obtained proper permits. (Id.)

B. Procedural

Based on the foregoing, Plaintiff initiated this action against Sellers, Sellers’ Agents,

Bui and CR in January 2019. Plaintiff subsequently filed a first amended complaint (“FAC”)

in June 2019, asserting the following causes of action: (1) fraud/intentional misrepresentation;

(2) failure to disclose/concealment; (3) negligent misrepresentation; (4) breach of

contract/failure to disclose material facts; (5) negligence; and (6) breach of fiduciary duty.

After Sellers’ Agents’ demurrer to the FAC was sustained, a second amended complaint

(“SAC”) was filed in December 2019, asserting the same claims as the FAC, with the first

through fifth being asserted against Sellers. Sellers demurred to these claims, and in June

2020, the Court sustained the demurrer with leave to amend based on statute of limitations

grounds.

Plaintiff filed the operative TAC on July 13, 2020, asserting claims for: (1) breach of

contract/warranty/duty to disclose; (2) breach of fiduciary duty; and (3) negligence.1 On

August 17, 2020, Defendants filed the instant demurrer to each of the foregoing claims on the

ground of failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., §

430.10, subd. (e).) They also demur to the first cause of action on the grounds of uncertainty

and that it cannot be ascertained from the pleadings whether the contract at issue is written,

oral or implied by conduct. (Code Civ. Proc., § 430.10, subds. (f) and (g).) Plaintiff opposes

the motion.

II. Defendants’ Demurrer

A. Breach Contract/Warranty/Duty to Disclose (1st Cause of Action)

In the first cause of action, Plaintiff alleges that Defendants had a contractual and

common law duty to disclose to or advise them of any defects affecting the value and

marketability of the Property, and breached this duty by failing to fully disclose to or advise

them of defects concerning the status of the land, particularly grading, cracking and land

sliding problems. (TAC, ¶¶ 13, 15, 28-29.)

Defendants assert that the first cause of action is deficient because Plaintiff has not

articulated what contact they entered into with him that would impose any obligation on them,

much less the one they are alleged to have breached. They further explain that the only contact

attached to the TAC and mentioned in the first cause of action is the purchase agreement,

which they were not parties to. Absent the existence of such an agreement, Defendants

maintain, no claim for breach of contract has been stated against them.

Defendants’ argument is well taken. The existence of an agreement is a necessary

element of a claim for breach of contract. (See CDF Firefighters v. Maldonado (2008) 158

Cal.App.4th 1226, 1239 [stating elements of claim for breach of contract].) To the extent that

this claim is being asserted against Sellers, the contract it is predicated on is clear- the purchase

agreement. But to the extent that it is being asserted against Defendants, it is not clear what

agreement they are being accused of having breached. In his opposition, Plaintiff suggests that

he has sufficiently pleaded this claim by alleging that Defendants owed him contractual duties,

1 Sellers’ Agents are no longer parties to this action, having been dismissed as defendants after

their demurrer to the SAC was sustained without leave to amend.

but this assertion is unavailing. Ultimately, the Court cannot ascertain what contract this claim

is predicated on, much less whether it was written, oral or implied by conduct. Thus, no claim

for breach of contract has been stated against Defendants and the demurrer must be sustained.

Moreover, as this is the fourth iteration of the complaint, the Court will not grant Plaintiff leave

to amend.

Therefore, in accordance with the foregoing, Defendants’ demurrer to the first cause of

action on the grounds of failure to state facts sufficient to constitute a cause of action,

uncertainty and that it cannot be ascertained whether the agreement being sued upon is written,

oral or implied by conduct is SUSTAINED WITHOUT LEAVE TO AMEND.

B. Breach of Fiduciary Duty (2nd Cause of Action) and Negligence (3rd Cause of

Action)

Defendants next argue that the remaining claims asserted against them are time-barred

based on the two-year limitations period for negligence claims (see Code Civ. Proc., § 339,

subd. (1)) and the three-year limitations period for breach of fiduciary duty claims (Code Civ.

Proc., 338, subd. (a)).

Critically, a demurrer based on statute of limitations grounds will be sustained only

where is appears “clearly and affirmatively” from the dates alleged that the claims are time-

barred; it is not enough that the claims might be untimely. (See Roman v County of Los

Angeles (2000) 85 Cal.App.4th 316, 324-325.) In assessing the issue of timeliness, “two basic

questions drive [the] analysis: (a) What statute of limitations govern the plaintiff’s claims? (b)

When did the plaintiff’s causes of action accrue?” (E-Fab, Inc. v. Accountants, Inc. Services

(2007) 153 Cal.App.4th 1308, 1315.)

As a general matter, the statute of limitations on a claim begins to run when that cause

of action “accrues,” and a cause of action typically accrues when it is “complete with all of its

elements.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807; see also Aryeh v.

Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191-1192 [“[t]raditionally at common

law, a cause of action accrues when [it] is complete with all its elements- those elements being

wrongdoing, harm, and causation”].) Here, Defendants maintain that Plaintiff’s claims

accrued, and the limitations periods began to run, by the close of escrow (October 8, 2015)

because that was when Sellers disclosed to him facts that should have placed him on notice of

potential claims based on the physical condition of the Property. In opposition, Plaintiff insists

that the rule of delayed discovery is implicated because he was not aware of the issues with the

Property until September 2018.

Under the discovery rule, the accrual of certain claims is postponed “until the plaintiff

discovers, or has reason to discover, the cause of action.” (Fox v. Ethicon Endo-Surgery, Inc.,

supra, 35 Cal.4th at 807.) The rule assumes the existence of all elements of the causes of

action, including injury, and “protects those who are ignorant of their cause of action through

no fault of their own.” (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 832.)

Where a complaint shows on its face that a claim would be time-barred without the benefit of

the discovery rule, a plaintiff seeking to rely on its application must specifically plead facts

showing “(1) the time and manner of discovery and (2) the inability to have made earlier

discovery despite reasonable diligence.” (Fox, supra, at 808.) However, a plaintiff “cannot sit

on his rights and wait for the facts to find him, but must in a timely fashion discover facts if

possible and file suit if he does.” (Norgari v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398

[internal quotations omitted].) A plaintiff must conduct a reasonable investigation after

becoming aware of a possible issue and is charged with knowledge of information that would

have been revealed by such an investigation. (Fox, supra, 35 Cal.4th at 808.)

Defendants assert that Plaintiff essentially has sat on his rights because he had

sufficient facts to place him on notice at the time of the close of sale of the issues with the

Property. The Court agrees, given what is pleaded in the TAC. As the Court explained in its

order on a demurrer to the First Amended Complaint (“FAC”) by Sellers Agents,’ the

allegations contained in the pleading:

[P]ermit the reasonable inference that the subject facts were either known to

Nguyen or within the reach of his diligent attention and observation. In

particular, the documents attached to the FAC show that Nguyen received

numerous disclosures advising that: there was settling, slippage, sliding, or other

soil problems on the property; the “surface/dirt” of the backyard was sloping

near and around the basketball court; the backyard was settling; there was fill on

the property; dirt/fill had been added to the back of the property (specifically,

the “sport court”); more fill needed to be added and packed; [Plaintiff] should

“[keep] an eye” on water puddling in the backyard; alterations and repairs were

made without necessary permits and were not in compliance with building

codes; and the property was below street level. (FAC, Exhibits B and C.)

Given these disclosures, it is reasonable to infer that [Plaintiff] knew or was on

inquiry notice of the need to conduct further investigation regarding land

movement and drainage on the property and whether any issues remained after

repairs were performed on the Property without permits. (See Robinson v.

Grossman (1997) 57 Cal.App.4th 634, 644 [explaining that “once the sellers and

their agents make the required disclosures, it is incumbent upon the potential

purchasers to investigate and make an informed decision based thereon”].)

While Defendants were not parties this demurrer, the reasoning applies with equal force to the

claims asserted against them. Disclosures were made at the time of sale to Plaintiff regarding

cracking and land sliding problems; these are sufficient to have placed him on notice of his

claims, imposing an affirmative obligation on him to investigate them, and to have triggered

the three and two-year limitations periods for his second and third causes of action,

respectively. With the instant action not being filed until January 2019, well over three years

after the close of escrow in October 2015, Plaintiff’s claims for breach of fiduciary duty and

negligence are clearly time-barred. Consequently, Defendants’ demurrer to the second and

third causes of action on the ground of failure to state facts sufficient to constitute a cause of

action is SUSTAINED WITHOUT LEAVE TO AMEND.

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Calendar line 2 Case Name: Nguyen v. Phan, et al.


Defendants Huey Q. Phan and Jessica Thuong Vu (collectively, “Sellers”) demur to the

Third Amended Complaint (“TAC”) filed by plaintiff Khanh Nguyen (“Plaintiff”) and moves

to strike portions contained therein.

III. Background

C. Factual

In mid-2015, Plaintiff entered into negotiations to purchase real property (the

“Property”) owned by Sellers. (TAC, ¶ 7.) Defendant Hoa Troc Bui (“Bui”), a licensed real

estate agent, and CR Realty & Mortgage Corporation (“CR”), a licensed real estate company,

represented Plaintiff. (Id., ¶ 9.) Sellers were represented by Alan Huynh and KW Silicon City

(“Sellers’ Agents”). (Id., ¶ 9.) Escrow ultimate closed on October 8, 2015, with Plaintiff

purchasing the Property for $1.4 million. (Id. and Exhibit A.)

Prior to close of escrow, Plaintiff visited the Property and noticed the basketball court

located in the backyard had become unleveled and cracked. (TAC, ¶ 10.) When he returned a

few days later, the court had been filled in, and Sellers stated in an addendum to the purchase

agreement “settling should stop once the dirt are [sic] packed” and “…basketball court was

fixed from the dirt settling. (Id. and Exhibit B.) Trusting that Sellers were acting in good faith

and because Plaintiff’s agent did not advise him to do so, Plaintiff did not conduct any further

investigation. (Id., ¶ 11.)

However, experts retained by Plaintiff in 2018-2019 estimated that defects resulting in

the cracking observed on the basketball court were chronic and estimated the repairs would

cost approximately $750,000- half of what was paid for the Property. (TAC, ¶ 12.) The

Property is located on a hillside slope and Sellers checked “No” on the disclosure form when

asked whether there was flooding, drainage, or grading problems, and while Sellers checked

boxes related to noncompliant fill and soil problems, they did not explain or disclose the extent

of them. (Id., ¶ 13 and Exhibit C.)

On April 1, 2016, the Property experienced sliding and cracking. (TAC, ¶ 14.)

Plaintiff hired various experts to investigate and began repairs, as he was left with no other

options. (Id.) Investigations by these experts revealed that the backyard experienced multiple

cracking and landslides spanning the years Sellers owned the Property. (Id., ¶ 16.) Comparing

these results to Sellers’ disclosures reflect substantial material differences in what was

disclosed and what was not. (Id., ¶ 17.) Plaintiff could not have reasonably discovered these

defects in the short time he was considering purchasing the Property. (Id., ¶ 16.)

On September 13, 2018, Plaintiff was informed by the City of San Jose that the

Property had been graded without permits. (Id., ¶ 15.) The listing for the Property described it

as level even though there were no permits. (Id.) The City directed Plaintiff to stop work until

he complied with all applicable laws and obtained proper permits. (Id.)

D. Procedural

Based on the foregoing, Plaintiff initiated this action against Sellers, Sellers’ Agents,

Bui and CR in January 2019. Plaintiff subsequently filed a first amended complaint (“FAC”)

in June 2019, asserting the following causes of action: (1) fraud/intentional misrepresentation;

(2) failure to disclose/concealment; (3) negligent misrepresentation; (4) breach of

contract/failure to disclose material facts; (5) negligence; and (6) breach of fiduciary duty.

After Sellers’ Agents’ demurrer to the FAC was sustained, a second amended complaint

(“SAC”) was filed in December 2019, asserting the same claims as the FAC, with the first

through fifth being asserted against Sellers. Sellers demurred to these claims, and in June

2020, the Court sustained the demurrer with leave to amend based on statute of limitations

grounds.

Plaintiff filed the operative TAC on July 13, 2020, asserting claims for: (1) breach of

contract/warranty/duty to disclose; (2) breach of fiduciary duty; and (3) negligence.2 On July

31, 2020, Sellers filed the instant demurrer to the first cause of action, the only claim remaining

against them, on the ground of failure to state facts sufficient to constitute a cause of action.

(Code Civ. Proc., § 430.10, subd. (e).) That same day, Sellers also filed the motion to strike

Plaintiff’s request for punitive damages. Plaintiff opposes both motions.

IV. Sellers’ Demurrer

In the first cause of action, Plaintiff alleges that Sellers had a contractual and common

law duty to disclose to or advise them of any defects affecting the value and marketability of

the Property, and breached this duty by failing to fully disclose to or advise them of defects

concerning the status of the land, particularly grading, cracking and land sliding problems.

(TAC, ¶¶ 13, 15, 28-29.) Plaintiff further alleges that Sellers’ statements in Addendum #3

created a warranty concerning the status of the land and repair and that this warranty was

breached because these statements were false. (Id., ¶ 30.)

Sellers maintain that their demurrer to this claim should be sustained because the

allegations are essentially identical to the allegations filed in his preceding three complaints

that were previously deemed insufficient by the Court to state a claim based on the failure to

disclose known defects. In its order on Sellers’ Agents’ demurrer to the FAC, the Court

explained that the allegations contained therein:

[P]ermit the reasonable inference that the subject fact were either known to

Nguyen or within the reach of his diligent attention and observation. In

particular, the documents attached to the FAC show that Nguyen received

numerous disclosures advising that: there was settling, slippage, sliding, or other

soil problems on the property; the “surface/dirt” of the backyard was sloping

near and around the basketball court; the backyard was settling; there was fill on

the property; dirt/fill had been added to the back of the property (specifically,

the “sport court”); more fill needed to be added and packed; [Plaintiff] should

“[keep] an eye” on water puddling in the backyard; alterations and repairs were

2 Sellers’ Agents are no longer parties to this action, having been dismissed as defendants after

their demurrer to the SAC was sustained without leave to amend.

made without necessary permits and were not in compliance with building

codes; and the property was below street level. (FAC, Exhibits B and C.)

Given these disclosures, it is reasonable to infer that [Plaintiff] knew or was on

inquiry notice of the need to conduct further investigation regarding land

movement and drainage on the property and whether any issues remained after

repairs were performed on the Property without permits. (See Robinson v.

Grossman (1997) 57 Cal.App.4th 634, 644 [explaining that “once the sellers and

their agents make the required disclosures, it is incumbent upon the potential

purchasers to investigate and make an informed decision based thereon”].)

While Sellers were not parties to this demurrer (their request for joinder was denied),

the reasoning applies with equal force to the claims asserted against them, as the Court made

clear in its order on Sellers’ own demurrer to the SAC. In ruling on the breach of

contract/failure to disclose claim in the SAC against Sellers, the Court explained that “[t]he

exhibits to the SAC show that [Plaintiff] received numerous disclosures about potential

material defects concerning the property, as outlined previously. (See SAC, Exs. B & C.)

These disclosures mentioned cracking and land sliding problems, and that repairs to rectify

these problems occurred without a permit. Given these disclosures, it cannot be said that

Sellers breached the contract, at least based on these allegations.”

As Sellers note in their demurrer, the only different allegation in the TAC pertaining to

the first cause of action is that “Sellers’ statements in Addendum #3 were statements creating a

warranty concerning the status of the land and repairs. Buyer relied on these statements in

purchasing the property- that were false or later turned out to be false, breaching the warranty.”

(TAC, ¶ 30.) It is not clear to the Court how the contents of Addendum #3 can be read as a

warranty for any work performed; Sellers merely made the following additional disclosures:

“the back yard settling from new dirt added over the years”; “settling should stop once the dirt

are packed”; “keep an eye on water pudding in the back yard, need to fill in dirt”; and

“basketball court was fixed from dirt settling.” (TAC, Exhibit B.) As a general matter, a

warranty is a contractual term concerning some aspect of the sale, such as title to the goods, or

their quality or quantity. (See Windham at Carmel Mountain Ranch Assn. v. Superior Court

(2003) 109 Cal.App.4th 1162, 1168.) The Court is not persuaded that the foregoing language

can be interpreted as a promise or guarantee relating to the status of the grading and land

sliding issues on the Property and any repairs performed. Usually, warranties occurs by reason

of the seller’s representations, and while particular words are not necessary to create a

warranty, the representations at issue must involve an affirmation of fact relating to the good

that is the subject of the sale. (U.C.C. § 2313; see Keith v. Buchanan (1985) 173 Cal.App.3d

13, 21.) The closest thing to an affirmation of fact in Addendum #3 is the phrase “settling

should stop once the dirt are packed,” but this phrase, when viewed in the context of all of the

disclosures made by Sellers, does not defeat the Court’s prior conclusion that the materials

provided by Sellers to Plaintiff placed him on inquiry notice of the need to conduct further

investigation regarding land movement and drainage on the property and whether any issues

remained after repairs were performed on the Property without permits. Thus, Addendum #3

did not create a warranty and cannot form the basis of the first cause of action. Because the

breach of contract portion of this claim has already been deemed to be insufficient, Sellers’

demurrer to the first cause of action on the ground of failure to state facts sufficient to

constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

V. Sellers’ Motion to Strike

With the instant motion, Sellers move to strike Plaintiff’s request for punitive damages.

As there are no longer any surviving claims against Sellers, their motion to strike is

GRANTED WITHOUT LEAVE TO AMEND.

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Case Name: King v. McMichael, et al.


Defendants Kendal McMichael (“McMichael”) and KMA Emergency Services, Inc.

(“KMA”) (collectively, “Defendants”) move for summary judgment in their favor and against

plaintiff Rebecca Ann King (“Plaintiff”).

VI. Background

E. Factual

This is an action for personal injuries arising out of a motor vehicle collision involving

an ambulance. According to the allegations of the operative judicial form complaint

(“Complaint”), on November 11, 2017, McMichael was driving a KMA ambulance in a

negligent manner, causing it to collide with Plaintiff’s vehicle, resulting in injuries to her.

F. Procedural

Based on the foregoing, the Complaint3 was filed on November 6, 2019, asserting a

single claim for motor vehicle negligence. On August 14, 2020, Defendants filed the instant

motion for summary judgment. Plaintiff opposes the motion.

VII. Defendants’ Motion for Summary Judgment

A. Burden of Proof

“A defendant seeking summary judgment [or adjudication] must show that at least one

element of the plaintiff’s cause of action cannot be established, or that there is a complete

defense to the cause of action … The burden then shifts to the plaintiff to show there is a

triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty

Ins. Co. (2002) 98 Cal.App.4th 66, 72 [internal citations omitted].)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary

judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of

law, an essential element of plaintiff’s claim.” (Weil & Brown, Cal. Prac. Guide; Civ. Proc.

Before Trial (The Rutter Group 2014) ¶ 10:241, p. 10-104, citing Guz v. Bechtel National,

Inc. (2000) 24 Cal.4th 317, 334.) “The moving party’s declaration and evidence will be strictly

construed in determining whether they negate (disprove) an essential element of plaintiff’s

claim ‘in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (opposing

party’s) favor.’” (Id., ¶ 10:241.20, p. 10-105, citing Johnson v. American Standard,

Inc. (2008) 43 Cal.4th 56, 64.)

3 Defendants request that the Court take judicial notice of the Complaint. As this is a court

record, it is a proper subject of judicial notice pursuant to Evidence Code section 452,

subdivision (d). Accordingly, Defendants’ request for judicial notice is GRANTED.

“Another way for a defendant to obtain summary judgment is to ‘show’ that an

essential element of plaintiff’s claim cannot be established. Defendant does so by presenting

evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’

(because plaintiff must be allowed a reasonable opportunity to oppose the motion).” (Id., ¶

10:242, p. 10-105, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

“Such evidence usually consists of admissions by plaintiff following extensive discovery to

the effect that he or she has discovered nothing to support an essential element of the cause of

action.” (Id.)

B. Analysis

Defendants’ motion for summary judgment is based on a singular issue: the statute of

limitations. Defendants maintain that Plaintiff’s complaint is barred by the one-year

limitations period provided by the Medical Injury Compensation Reform Act (“MICRA” or the

“Act”), which applies in “professional negligence” actions against “health care providers” as

those terms are defined in the Act. (Code Civ. Proc., § 340.5, subd. (2).)

1. Defendants’ Undisputed Material Facts

In support of their motion, Defendants submit the following purportedly undisputed

material facts: at approximately 3:45 p.m. on November 11, 2017, McMichael was driving an

ambulance truck operated by KMA, transporting a patient to a Kaiser hospital in Santa Clara.

(Defendants’ Separate Statement of Undisputed Material Facts in Support of Motion for

Summary Judgment (“UMF”), Nos. 1, 2.) McMichael’s ambulance allegedly collided with a

motor vehicle in which Plaintiff was a passenger. (UMF No. 3.) The nurse accompanying the

patient in the ambulance continued to care for the patient until another emergency vehicle

arrived to transport that patient to Kaiser. (UMF No. 4.)

At the time of the incident, McMichael was a certified Emergency Medical Technician

(“EMT”) with KMA, having undergone training, passing a National EMT Certification Exam,

and obtaining an EMC System Identification Badge, which was a prerequisite to working in

Santa Clara County as an emergency medical provider. (UMF Nos. 5, 6.) KMA operated

ambulance services throughout the Bay Area, and both KMA and McMichael are healthcare

providers within the meaning of Civil Code section 3333.2, subdivision (c)(1), and Canister v.

Emergency Ambulance Services, Inc. (2008) 160 Cal.App.4th 388 (Canister).) (UMF Nos. 8,

9.) At the time of the collision, McMichael was rendering professional medical services within

the scope of services for which she is licensed. (UMF No. 10.) Plaintiff filed her Complaint

on November 6, 2019. (UMF No. 11.)

2. Applicability of MICRA to Plaintiff’s Complaint

As stated above, the entirety of Defendants’ motion is based on their contention that

Plaintiff’s lawsuit is time-barred under the one-year statute of limitations provided by MICRA.

In her opposition, Plaintiff disputes that MICRA applies to the circumstances at bar, and

contends that her Complaint is subject to a longer, two-year statute of limitations for “ordinary

negligence.” Thus, the determinative issue in this motion is the applicability of MICRA to

Plaintiff’s Complaint.

MICRA was enacted to control the rising cost of medical malpractice insurance, and

placed various caps on recoverable damages, as well as abolishing the so-called “collateral

source rule” in regard to medical malpractice defendants. (See Flores v. Presbyterian

Intercommunity Hosp. (2016) 63 Cal.4th 75, 81.) The Act applies only in “professional

negligence” actions against “health care providers” as those terms are defined therein.

“Professional negligence” refers to a negligent act or omission to act in the rendering of

professional services, and “health care provider” means a “natural person” licensed or certified

under Business and Professions Code section 500 et seq., pursuant to the Osteopathic Initiative

Act or the Chiropractic Initiative Act, or pursuant to Health and Safety Code section 1440 et

seq.; or a “clinic, health dispensary or health facility” licensed under Health and Safety Code

section 200 et seq.; or such provider’s legal representatives. (See Bus. & Prof. Code, § 6146,

subd. (c)(2) & (3); Code Civ. Proc., § 667.7, subd. (e)(3) & (4); Civ Code, §§ 3333.1, subd.

(c)(1) & (2), 3333.2, subd. (c)(1) & (2); Lathrop v. Healthcare Partners Med. Group (2004)

114 Cal.App.4th 1412, 1419-1421.)

MICRA is not limited to “garden variety” medical malpractice; rather, the “test” is

whether the negligent act or omission occurred in the rendering of services for which the health

care provider is licensed. (Waters v. Bourhis (1985) 40 Cal.3d 424, 432-433.) Defendants rely

on Canister in support of their contention that McMichael’s alleged negligent operation of the

ambulance constitutes “professional negligence” under MICRA. In Canister, a police officer

was accompanying an arrestee in the back of an ambulance when it hit a curb, injuring the

officer. The ambulance was being driven by an employee of the ambulance company while

another employee attended to the arrestee in the rear of vehicle; both employees were licensed

EMTs acting in the course and scope of employment. The police officer alleged, among other

things, that the ambulance was being driven negligently. The trial court ruled that the officer’s

action was subject to the provisions of MICRA. After trial, the jury found that the ambulance

company was not negligent.

The police officer appealed, arguing that the trial court erred in ruling that his lawsuit

was subject to MICRA. In particular, he insisted that alleged negligence in operating an

ambulance was not “professional negligence” under the Act because operation of an

ambulance is not conduct for which EMTs are licensed. The appellate court first determined,

after a lengthy of review of various relevant statutes in order to determine legislative intent,

that EMTs are “health care providers” under MICRA. (Canister, 160 Cal.App.4th at 397-403.)

It then held that negligent operation of an ambulance constitutes “professional negligence”

within the meaning of MICRA, explaining that while the specific act of operating an

ambulance could be performed by someone “having no special knowledge, skill or care as a

member of the medical profession, it did not mean that the EMTs in question “were not acting

as health care providers in transporting [their] patient to a medical facility.” (Id. at 404.) The

court continued that under the EMS Act, “emergency ambulance service” encompasses all

services rendered by emergency ambulances, “even if the ambulance is engaged in

nonemergency interfacility transfers.” (Id. at 405.) What qualifies as “emergency ambulance

services,” the court explained, turns “on whether that level of serves is available, not on

whether the particular patient actually needs that level of services.” (Id., internal citations

omitted, emphasis added.)

The court rejected the officer’s assertion that a EMTs “professional services” can only

extend to those services for which the EMT is licensed, i.e., medical services such as basic life

support and providing CPR, for two reasons: EMTs are licensed to provide transport to

patients, and the term “professional services” “encompasses more than the distinct services that

a health care provider is licensed to perform.” (Canister, 160 Cal.App.4th at 405.) The

transport of a patient, the court continued, is an integral part of the professional services being

rendered and for which an EMT is licensed. Based on the foregoing, the court held that the

services rendered by the EMTs in the action before it were “directly related to the manner in

which professional services were provided,” and because the accident occurred during the

commission of an act for which the ambulance driver and attendant were licensed (the

transporting of a patient from one hospital to another) the trial court did not err in ruling that

the action was subject to MICRA. The fact that the officer was not the patient was deemed by

the court to have no effect on its conclusions because by its terms, the Act applies to

negligence by a health care provider in the rendering of services; it is not limited to actions by

the recipients of those services. (Canister, supra, 160 Cal.App.4th at 407-408.)

Defendants maintain that the instant action is analogous to Canister and therefore it is

instructive. Plaintiff, however, challenges the import of Canister, and contends that

subsequent cases, particularly Flores v. Presbyterian Intercommunity Hospital (2016) 63

Cal.4th 75, Aldana v. Stillwagon (2016) 2 Cal.App.5th 1 and Johnson v. Open Door Community

Health Centers (2017) 15 Cal.App.5th 153, call into question its holding regarding the

applicability of MICRA and compel the conclusion that her claim here is merely one for

ordinary negligence and not professional negligence under the Act.

In Flores v. Presbyterian Intercommunity Hospital, a patient brought an action against

a hospital for general negligence and premises liability after she was injured when one of the

rails on her hospital bed collapsed, causing her to fall to the floor. The defendant hospital

demurred to the complaint, arguing that it was governed by Code of Civil Procedure section

340.5’s (“Section 340.5”) statute of limitations, i.e., the limitations period provided for claims

falling under MICRA, and therefore time-barred because it was filed more than a year after the

plaintiff fell. This code section provides, in pertinent part, that:

In an action for injury or death against a health care provider based upon such

person’s alleged professional negligence, the time for commencement of action

shall be three years after the date of injury or one year after the plaintiff

discovers, or through the use of reasonable diligence should have discovered,

he the injury, whichever occurs first.

(Emphasis added.)

The plaintiff, conversely, insisted that her claim was one for ordinary negligence, subject to the

two-year statute of limitations provided by Civil Code section 335.1 (“Section 335.1”) because

the rendition of professional services ended when the defendant medically assessed her

condition and determined that the sidewalls of her bed needed to be raised. The trial court

disagreed, and deemed the claim untimely, which was affirmed by the Court of Appeal. The

Supreme Court then considered whether alleged negligence in the use or maintenance of

hospital equipment or premises qualifies as “professional negligence” subject to Section 340.5

and concluded that it does not, reversing the ruling of the appellate court.

After recounting the history of both Section 340.5 and Section 335.1 and surveying

existing authority, the Supreme Court examined the text of Section 340.5 and set forth guiding

principles for determining whether an injury’s legal cause is “the rendering of professional

services” or ordinary negligence. (Flores, 63 Cal.4th at 82-88.) The court first determined that

for the purposes of MICRA, “professional services” are not limited to those activities requiring

the application of medical skill and training, opining that the plaintiff’s proposed meaning of

Section 340.5 was too narrow and the defendant hospital’s too broad. (Id. at 84.) It explained

that injury-causing conduct that requires no special skill may nonetheless occur in the

rendering of professional services, “for example, when a janitor accidentally bumps a patient’s

ventilator; a hospital employee accidentally serves a patient food that is not part of the patient’s

medically proscribed diet ….” (Id. at 85-86.) It continued that while “sweeping the floor,

serving food” and other actions in hospital “do not require medical training, they may

nonetheless affect the quality of a patient’s medical care.” (Flores, 63 Cal.4th at 85.) It also,

however, stated that a rule that “professional services” includes all acts associated with the

provision of medical care, including, e.g., because an action merely violates a licensing

requirement, would be too broad because it:

would collapse the first (“a negligent act or omission … in the rendering of

professional services”) and third (“within the scope of services for which the

[health care] provider is licensed”) part of the statutory definition, thereby

essentially reading out of the statute the independent requirement that the

negligent act or omission must occur “in the rendering of professional services.”

[Citation.] It would thus sweep in not only negligence in performing the duties

that hospitals owe to their patients in the rendering of medical diagnosis and

treatment, but negligence in the performing the duties that hospitals owe to all

users- including personnel and visitors- simply by virtue of operating a facility

that is open to the public.

(Flores, supra, at 86.)

In other words, the court explained, such an approach would run counter to the Legislature’s

intent by making Section 340.5 into “an all-purpose rule covering every form of ordinary

negligence that happens to occur on hospital property.” (Id.) Thus, the Supreme Court

counseled courts to “draw a distinction between the professional obligations of hospitals in the

rendering of medical care to their patients and the obligations hospitals have, simply by virtue

of operating facilities open to the public, to maintain their premises in a manner that preserves

the well-being and safety of all users.” (Id. at 87.) In the case before it, this approach meant

that the plaintiff was injured due to a breach of duty owed only to patients, with the hospital

staff failing to competently carry out her doctor’s order to raise the rails on her bed. As the

hospital’s negligent use or maintenance of the bed rails was “integrally related to her medical

diagnosis and treatment,” the alleged negligence at issue occurred in the “rendering of

professional services” and fell within the scope of MICRA. (Id. at 89.)

Several months after the Flores decision was issued came Aldana v. Stillwagon, in

which a motorist brought an action against a paramedic supervisor for negligence following a

collision at an intersection between the motorist’s vehicle and the supervisor’s pickup truck,

which was en route to an emergency. The trial court granted the supervisor’s motion for

summary judgment based on the one-year statute of limitations under MICRA and the motorist

appealed, arguing that his claim did not fall within the scope of the Act. The appellate court

agreed, concluding that the supervisor’s act in driving his pickup truck to an accident scene did

not constitute “professional services” within the meaning of MICRA.

In arriving at its conclusion, the appellate court discussed Canister, and opined that its

conclusion that both the EMT driving the ambulance and the EMT attending the patient were

rendering professional services was “questionable” in light of Flores. It continued that even if

Canister was correctly decided, it was distinguishable because the negligence in that case

occurred while the EMTs were transporting a patient to the hospital- conduct included within

the regulations governing a paramedic’s “scope of practice.” (Aldana, 2 Cal.App.5th at 7.) In

the circumstances before it, in contrast, the negligence was alleged to have occurred while a

nonambulance vehicle was being driven to the scene of an injured victim and thus not during

the rendering of services for which the paramedic supervisor was licensed. As the court

explained, “[d]riving to an accident victim is not the same as providing medical care to the

victim,” and “[a] paramedic’s exercise of due care while driving is not necessary or otherwise

integrally related to the medical treatment and diagnosis of the patient, at least when the patient

is not in the vehicle.” (Aldana, 2 Cal.App.5th at 8, internal citations and quotations omitted.)

Finally, in Johnson v. Open Doors Community Health Centers, a patient filed suit

against a health clinic for personal injuries allegedly suffered when she tripped on a scale that

was partially obstructing the path from the treatment room to the hall. The trial court granted

the clinic’s motion for summary judgment on the ground that the claim was time-barred under

the one-year statute of limitations provided by MICRA. The appellate court reversed, holding

that MICRA did not apply to the claim because the plaintiff was not injured during the

provision of medical care, but rather after the provision of that care was completed and

allegedly as a result of a breach of duties owed generally to all visitors to the clinic. (Johnson,

15 Cal.App.5th at 160.) The court reached this conclusion after discussing Flores and applying

the guiding principles articulated therein to the circumstances before it, with the court noting

that the plaintiff had not alleged that the failure to properly maintain the scale she tripped over

affected the quality of her medical treatment, as she was weighed without incident. The

improper placement of the scale, the court explained, implicated the clinic’s duty to all users of

the facility, patients and nonpatients alike. Had she alleged that the improper placement of the

scale caused her to fall off it and injure herself or that the clinic’s failure to properly calibrate

the scale resulted in inaccurate information and inappropriate medical care, the court opined,

MICRA might have applied. But what plaintiff ultimately described, the court concluded, was

ordinary premises liability and not negligence during the rendering of professional services for

which the clinic was licensed.

The court concluded its opinion by discussing numerous pre-Flores cases cited by the

defendant, and explained that to the extent they were still viable, they were nonetheless

unavailing. Notably, however, while the court proclaimed that the court’s rationale in Canister

did not comport with the analysis in Flores, it explained that the outcome was still “arguably

correct” in that: “(1) the negligent performance of tasks requiring no medical skill or training

may nonetheless implicate professional medical services and trigger application of MICRA

(Flores, supra, 63 Cal.App.4th at 85-86); and (2) the EMTs who allegedly operated an

ambulance without due care were rendering professional services at the time and their failure

to do so competently caused the officer’s injuries.” (Johnson, 15 Cal.App.5th at 162.) Aldana

was distinguished by the court because the paramedic was not engaged in providing

“professional [medical] services” when he allegedly injured the plaintiff by operating his

vehicle negligently. (Id.)

Plaintiff maintains that based on the foregoing cases, the Court should conclude that her

claim is one for ordinary negligence subject to Section 335.1’s two-year statute of limitations

because the obligation to safely operate a vehicle runs to all members of the public and

McMichael’s operation of the ambulance on public roadways played no part in her patient’s

medical diagnosis or treatment.

This argument, however, ignores the Supreme Court’s acknowledgement in Flores that

injury-causing conduct that requires no special skill may nonetheless occur in the rendering of

professional services and a claim based on such injury could fall within the scope of MICRA.

In other words, MICRA’s scope is broader than Plaintiff is arguing it is, despite the narrowing

of that scope as articulated in Flores. Notably, despite what was said by the court in Aldana,

Canister has not expressly been overruled and is therefore still good law that this Court is

obligated to follow. Here, the subject incident occurred while McMichael was undoubtedly

rendering professional services for which she was licensed- the transporting of a patient from

one hospital to another. It is undisputed that this is what McMichael was doing when the

alleged collision occurred. (UMF Nos. 1-3.) Per Canister, the fact that Plaintiff was not a

patient does not affect the applicability of MICRA, as it applies to negligent conduct by a

health care provider in the rendering of professional services and is not limited to actions by

the recipient of those services. (Canister, 160 Cal.App.4th at 407.) Flores, Aldana and

Johnson are all factually distinguishable from the case at bar as in each the alleged negligence

did not occur during the rendering of professional services for which the purportedly negligent

actor was licensed. If, as suggested in Aldana, there had been no patient in the ambulance

when the subject incident took place, an argument could possibly be made that MICRA would

not apply. But the fact remains that Defendants were transporting a patient, and thus clearly

engaged in the rendering of professional services when the collision took place.

Plaintiff also disputes that McMichael was a certified or licensed EMT in the first

instance, stating that her assertions in her declaration that she was employed as a certified EMT

and attended an EMT program at National University (see Declaration of Kendal McMichael

in Support of Motion for Summary Judgment, ¶ 3) is not the “same” as her responses to

discovery, particularly Form Interrogatories (“FI”), Set One, Nos. 2.6 and 2.7. FI No. 2.6

asked McMichael to identify her employment for the preceding five years (and all relevant

details) and she responded as follows:

Responding Party work [sic] at the Gregory Gym at the University of Texas-

Austin from 2015 to 2016; she then worked at KMA Emergency Services, Inc.

from May 2017 to November 2017 as an EMT; then she worked for Virtuity-

John Muir from June 2018 to March 2020 as a scribe.

(Declaration of Jeff Atterbury in Support of Opposition to Motion for Summary Judgment

(“Atterbury Decl.”), Exhibit 1.)

FI No. 2.7 asked McMichael to identify, beginning with high school, each school or “other

academic or vocational institution” she attended, when she attended them and the degrees

received. She listed the following: Monte Vista High School; University of Texas-Austin

(Bachelor of Science); San Diego State University (no degree); Diablo Valley College (no

degree); University of California, Berkeley (no degree); and Baylor University (nursing degree

in progress). (Atterbury Decl., Exhibit 1.) Plaintiff notes that McMichael did not list National

University or mention the receipt of an EMT certification in response to the foregoing request,

or preface the word EMT with the term “certified.” Further, she states that in response to a

document production request, McMichael produced her driver’s license, which is Class C and

does not contain an AMB endorsement. She continues that this is supported by McMichael’s

response to FI No. 2.4, wherein in she admitted that she did not have any other permit or

license for the operation of a motor vehicle at the time of the accident. (Id., Exhibits 1 and 2.)

Plaintiff maintains that Defendants have not met their burden to establish that McMichael was

properly certified as an EMT or was properly trained or licensed to operate an ambulance. The

Court disagrees.

In her declaration, McMichael states unambiguously that she attended an EMT

program, passed the National EMT Certification Exam, and applied for and was approved for

the EMC System Identification Badge. This is sufficient for Defendants to meet their initial

burden on this issue. The Court is left to speculate why the foregoing was not listed in her

responses to the aforementioned discovery responses, but this is not sufficient to raise a triable

issue of material fact as to whether or not McMichael was a certified EMT at the time of the

subject incident. (See, e.g., Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 [evidence that

gives rise to no more than mere speculation is insufficient to establish a triable issue of

material fact].)

Ultimately, the Court finds that at the time of the incident, Defendants were engaged in

the rendering of professional services for which they were licensed and therefore MICRA

applies to Plaintiff’s action. As her Complaint was filed over a year after the incident giving

rise to her alleged injuries, it is time-barred. Consequently, Defendants’ motion for summary

judgment is GRANTED.

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19CV343869

Luis Sanchez et al vs Ali Nowaid et al

Plantiffs have filed a motion to compel responses to several discovery requests. Defendants

oppose this motion. After considering the parties’ papers, as well as attorney arguments made

at the September 22 hearing on this motion, the Court provides the following tentative rulings:

1. The Court credits Plaintiffs’ counsel’s statement that he (and other attorneys for

Plaintiffs) did not receive any discovery responses on April 20, 2020 (as Defendants claim).

Therefore, there was no need to meet and confer before filing this motion.

2. Even if there had a problem with proper notice of the motion, any resulting prejudice

was cured when the Court continued the hearing from September 22 to November 10. That

allowed Defendants to file an opposition brief and state their positions.

3. The Court also credits Plaintiffs’ statement in their reply brief that “Defendants have

still not served or sent discovery responses for nine of the twelve written discovery requests

served on them on February 15, 2020.” (Reply Br., at p. 1.) Therefore, the Court GRANTS

Plaintiffs’’ motion to compel. Defendants must provide objection-free (except for privilege),

Code-compliant responses to the nine remaining discovery requests within 30 days of this

order.

4. The Court finds that Defendants’ failure to provide discovery responses in a timely way

was not substantially justified. The Court therefore assesses reasonable monetary sanctions

against Defendants in the amount of $5,000, payable to Plaintiffs c/o Plaintiffs’ counsel, within

30 days of this order. The Court DENIES Defendants’ request to assess monetary sanctions

against Plaintiffs.

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Documents

Superior Court, State of California · 2 days ago · SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 8, Honorable Sunil R. Kulkarni Mark Rosales, Courtroom Clerk