Tentative Rulings for October 26, 2017 Departments 402 ... · PDF fileTentative Rulings for October 26, 2017 Departments 402, 403, ... The request for judicial notice is granted

Tentative Rulings for October 26, 2017

Departments 402, 403, 501, 502, 503

There are no tentative rulings for the following cases. The hearing will go forward on

these matters. If a person is under a court order to appear, he/she must do so.

Otherwise, parties should appear unless they have notified the court that they will

submit the matter without an appearance. (See California Rules of Court, rule 3.1304(c).)

16CECG00115 Montage Community Association v. Montage Attached Homes, LP

(Dept. 402)

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

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

16CECG03415 Arax v. Watershed Investments, Inc. is continued to November 2,

2017 at 3:30 p.m. in Department 402.

________________________________________________________________

(Tentative Rulings begin at the next page)

Tentative Rulings for Department 402

(5)

Tentative Ruling

Re: Taylor et al. v. West Hills Community College District et

al.

Fresno Superior Court Case No. 14 CECG 03586

Hearing Date: October 26, 2017 (Dept. 402)

Motion: By Plaintiff to transfer pending case in King’s County

and consolidate

Tentative Ruling:

To deny the motion.

Explanation:

On November 26, 2014, Plaintiffs filed the instant action alleging four FEHA based

causes of action, one labor code violation and one education code violation. On

March 30, 2015, the case was deemed provisionally complex. On November 4, 2016, a

joint stipulation and order was filed that continued trial. On February 21, 2017, a joint

stipulation and order was filed that continued trial.

On June 7, 2017, Plaintiff Shuntay Taylor dismissed the first cause of action for

racial harassment in violation of FEHA against Defendants West Hills College and

Charles Freeman. On June 14, 2017, the Court denied the Defendant’s motion for

judgment on the pleadings as to the third, fourth and fifth causes of action but granted

the motion as to the sixth cause of action. On July 3, 2017, a joint stipulation and order

was filed that continued trial to March 5, 2018.

In the interim, discovery had begun. Plaintiffs produced work-related recordings

that were allegedly recorded without permission of the other participants. As a result,

on June 8, 2017, Defendant filed a civil complaint against both Plaintiffs in Kings County

as Case No. 17C0159 alleging a violation of Penal Code § 632. On September 6, 2017,

Plaintiffs filed a motion seeking to transfer the latter case from Kings County to Fresno

County and consolidate it with the instant case.

Merits

CCP § 403 states:

A judge may, on motion, transfer an action or actions from another court

to that judge's court for coordination with an action involving a common

question of fact or law within the meaning of Section 404. The motion shall

be supported by a declaration stating facts showing that the actions

meet the standards specified in Section 404.1, are not complex as defined

by the Judicial Council and that the moving party has made a good faith

effort to obtain agreement to the transfer from all parties to each action.

Notice of the motion shall be served on all parties to each action and on

each court in which an action is pending. Any party to that action may

file papers opposing the motion within the time permitted by rule of the

Judicial Council. The court to which a case is transferred may order the

cases consolidated for trial pursuant to Section 1048 without any further

motion or hearing.

The Judicial Council may adopt rules to implement this section, including

rules prescribing procedures for preventing duplicative or conflicting

transfer orders issued by different courts.

The factors set forth in CCP § 404.1 are:

(1) Whether the “common question” of fact or law is predominating and significant to

the litigation;

(2) The convenience of parties, witnesses and counsel;

(3) The relative development of the actions and the work product of counsel;

(4) The efficient utilization of judicial facilities and manpower;

(5) The calendar of the respective courts;

(6) The disadvantages of duplicative and inconsistent rulings, orders or judgments; and

(7) The likelihood of settlement of the actions without further litigation should

coordination be denied. [CCP § 404.1; see McGhan Med. Corp. v. Sup.Ct.

(Hogan) (1992) 11 Cal.App.4th 804, 812]

Here, the Declaration of Amador did not address all of the factors set forth in

CCP § 404.1. She did not address factors 3, 5, 6 and 7. She only “touched” upon

factors 2 and 4. This is required. See CCP § 403.

Importantly, as stated supra, the “common question” of fact or law must be

predominating and significant to the case at bench. Whether these recordings were

made in violation of Penal Code § 632 appears to be tangential to the issues

concerning promotion and discrimination in this action. More importantly, on June 25,

2016, the parties filed a 19-page Joint Status Conference Report. In it, Plaintiffs listed

eight issues that they assert mandate the deeming of this case as complex. See pages

8 and 9. Now, Plaintiffs appear to argue that the instant case is not complex.

Finally, the Court observes that the dismissal of Defendant Charles Freeman

removes the sole Defendant whose residence permitted the case to be filed in Fresno

County. On October 18, 2017, a joint stipulation was submitted with a proposed First

Amended Complaint. Notably, ¶ 8 “Venue and Jurisdiction” of the proposed First

Amended Complaint states: “The acts and omissions which are the subject of this

Complaint occurred in Kings County, California.” Accordingly, it appears questionable

whether yet another action properly venued in Kings County should be transferred to

this court.

In the end, the instant case has been deemed provisionally complex and the

factors set forth in CCP § 404.1 mitigate in favor of denial. If the cases were

consolidated, trial would likely be continued yet another time given the state of

discovery in the Kings County action. Therefore, the motion will be denied.

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

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

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

will constitute notice of the order.

Tentative Ruling

Issued By: JYH on 10/25/17

(Judge’s initials) (Date)

(24) Tentative Ruling

Re: Maldonado v. Fresno Community Hospital and Medical Center

Court Case No. 15CECG01565


Motion: Plaintiffs’ Motion for Leave to Amend Complaint

Tentative Ruling:

To grant in part and deny in part. Plaintiffs are given leave to amend the

complaint to add the new causes of action as to Fresno Community Hospital and

Medical Center, dba Community Regional Medical Center and Community Medical

Centers, and Community Hospitals of Central California (“Hospital defendants”) and as

to Pervaiz A. Chaudhry, M.D., Robert Stewart, M.D., Valley Cardiac Surgery Medical

Group, and Chaudhry Medical, Inc. (“Chaudhry defendants”), but not as to Ramesh B.

Pamula, M.D. Plaintiffs are given leave to amend the complaint to add punitive

damage allegations and prayers as to the Hospital defendants and the Chaudhry

defendants, but not as to Dr. Pamula.

Rulings on evidentiary objections are as follows: To sustain objections to the

depositions taken in other cases based only on Evidence Code section 1291-1292. To

overrule all objections to the Declaration of Charles Pietrafesa, M.D. To sustain the

Chaudhry defendants’ Objections 14 (hearsay), 28 (authentication), and 58 (hearsay).

To overrule all other objections by the Chaudhry defendants. To grant the Request for

Judicial Notice.

Explanation:

Motion to Amend to Add Causes of Action

Judicial policy favors resolution of all disputed issues between parties in the same

lawsuit, therefore the court’s discretion will usually be exercised liberally to permit

amendment of the pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.)

Plaintiffs have complied with the technical requirements under California Rules of Court,

Rule 3.1324 for a motion to amend. The policy of liberal allowance of amendment is in

favor of granting this motion. Therefore, the request to add causes of action for willful

misconduct, fraud, negligent misrepresentation, concealment, aiding and abetting,

and violation of the Consumer Legal Remedies Act (“CLRA”) is granted.

Motion to Amend Pursuant to CCP § 425.13

Objections and Request for Judicial Notice:

Request for Judicial Notice

The request for judicial notice is granted solely for the purposes of authenticating

the April 19, 2012 letter from Bipin K. Josh, M.D. to Dr. Chaudhry and not for considering

its truth: in attaching the letter as an exhibit to his complaint in Case #12CECG03112, Dr.

Chaudhry authenticated it as being what it purports to be. This letter was considered by

Dr. Pietrafesa in forming his opinion (Pietrafesa Decl., p. 3:7-10), and to the extent this

may constitute a “medical record,” it is appropriate to admit it into evidence. (Garibay

v. Hemmat (2008) 161 Cal.App.4th 735, 742.) Defendants’ evidentiary objection to it is

overruled (see below) as this constitutes a business record. This evidence also cannot

be found to violate the peer review privilege, since the privilege was clearly waived by

Dr. Chaudhry himself in attaching it to his complaint.

Depositions from other cases

All objections to the deposition testimony taken in other cases filed against

defendants are sustained as inadmissible hearsay, since plaintiffs failed to establish the

predicate fact that the deponents were unavailable as witnesses in this action, as

required by Evidence Code section 1291. That section requires that two elements be

established: 1) that the declarant is unavailable; and 2) the party against whom the

former testimony is offered was a party to the earlier action and had the right and

opportunity to cross-examine the declarant with an interest and motive similar to that

which he has at this hearing. While the second element is clearly established for all

depositions, no attempt was made to establish the first element, unavailability.

Declaration of Dr. Pietrafesa

Dr. Pietrafesa’s declaration is admissible, so all evidentiary objections to it are

overruled. His qualification as established by his declaration and the attached

Curriculum Vitae is appropriate to support his opinions. (Pietrafesa Decl., ¶2.) He is

experienced with the oversight of patient care, which would encompass determining

what conduct of medical staff would meet a hospital’s standard of care regarding,

inter alia, patient safety, quality of medical staff services and governance,

credentialing and privileging. The fact that he is not a thoracic surgeon does not render

him unequipped to opine. The authenticated medical records on which he relied were

submitted into evidence. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742-743.) He

states his findings (i.e., supporting facts) and opinions together (Decl., ¶8, p. 3:12-13),

but in the end, his opinion is adequately supported and is not conclusory.

The court has considered Dr. Pietrafesa’s opinions related to information from the

depositions from other cases, even though objections to them were sustained, since this

was based only on plaintiffs not establishing witness availability. At trial, these witness will

either be unavailable (so the testimony would be admissible), or they will be testifying in

person.

Pertinent law:

A plaintiff making a motion to amend to claim punitive damages under Code of

Civil Procedure section 425.13 (“section 425.13”) must make a sufficient prima facie

showing of facts to sustain a favorable decision if the evidence is credited. (Aquino v.

Superior Court (1993) 21 Cal.App.4th at p. 853; Looney v. Superior Court (1993) 16

Cal.App.4th 521, 538-539.) The trial court should not make any factual determination or

“become involved in any weighing process beyond that necessarily involved in

deciding whether a prima facie case for punitive damages exists.” (Looney at p. 539.)

In considering the opposing parties’ evidence and affidavits, the court’s “consideration

of the defendant's opposing affidavits does not permit a weighing of them against the

plaintiff's supporting evidence, but only a determination that they do or do not, as a

matter of law, defeat that evidence.” (Id., emphasis in the original.) Nevertheless, in

reviewing the declarations and supporting evidence, the trial court must be mindful

that the evidence and all inferences that can be drawn from it must meet the higher

“clear and convincing” standard. (Id.) “The court must also take care to distinguish

between evidentiary facts and argument or hyperbole presented by counsel.” (Aquino,

supra, at p. 856.) Thus, Plaintiffs must produce evidence sufficient to show, by a clear

and convincing amount, that it could make a prima facie case that defendants are

guilty of “oppression, fraud, or malice.”

Analysis:

The Chaudhry defendants provide no authority for the proposition that a motion

to amend under section 425.13 requires plaintiffs to “substantiate their claim for

damages” (i.e., present evidence of breach and causation) by way of expert testimony

in addition to presenting evidence of oppression, fraud or malice to support punitive

damages. They cited no case dealing with a section 425.13 motion which supports this

proposition. Instead, this motion requires plaintiffs to produce evidence that, if

accepted by the trier of fact, would establish a prima facie showing of “malice,

oppression or fraud,” bearing in mind the “clear and convincing” standard of proof

required at trial. (Looney v. Superior Court, supra, 16 Cal.App.4th at p. 539.) Plaintiff is

not required to show proof of breach and causation at this juncture.

Plaintiffs have provided sufficient evidence to establish a prima facie showing of

malice, oppression or fraud in order to sustain a favorable decision if the evidence is

credited by the jury, at least as to the Hospital defendants and the Chaudhry

defendants. However, the evidence is insufficient to establish such a showing as to

defendant Pamula, and plaintiffs’ arguments that they may be able to gather facts to

support such a showing at Dr. Pamula’s deposition are unpersuasive. They admit they

have not yet taken his deposition and the fact they have requested it “on multiple

occasions, but he has not yet been produced” is immaterial, since they could have

forced his attendance by court order, if necessary.

The evidence of the Hospital defendants’ corrective measures which predated

Ms. Maldonado’s surgery is opposing evidence which the court will not weigh, which

would be required in order to determine whether those measures were sufficient.

Furthermore, their reliance on Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034

for the proposition that even an incomplete peer review will defeat a claim for punitive

damages is misplaced. (Id. at p. 1048, including fn 14.) There, the court found that

punitive damages were not appropriate because the evidence at trial was insufficient

to show the Hospital had sufficient facts in front of it to know it needed to do further

investigation (i.e., beyond their negligent one) to prevent harm to its patients. (Id. at p.

1048—finding that the facts were “insufficient to impute knowledge to the Hospital that

renewal of [the doctor’s] staff privileges without further investigation would pose a very

probable risk of serious harm” (emphasis in the original).) Plaintiffs have presented

sufficient evidence on this motion to impute knowledge to the Hospital about Dr.

Chaudhry’s conduct which posed a risk of serious harm to its patients if not addressed,

which is sufficient to establish a prima facie claim of a willful and conscious disregard for

its patients, including Ms. Maldonado.

The Hospital defendants’ argument that Dr. Chaudhry’s various contracts with

the hospital do not tend to prove incentive to ignore his conduct, since they were set at

fair market value and were a small fraction of the contracts it had with other personnel,

does not establish that other personnel had the multiple roles at the hospital that Dr.

Chaudhry did, i.e., giving him the level of power which provided the economic

incentive in contrast to other personnel; this is the point of plaintiffs’ contention.

Defendants argue that plaintiffs have not established Dr. Chaudhry went beyond

the scope of consent because they did not provide evidence the tricuspid valve repair

was a “substantially different” surgery than the LVAD implantation. They maintain this is

required to establish that lack of consent to that procedure constituted a battery, citing

to and quoting Cobbs v. Grant (1972) 8 Cal.3d 229, 239. The court cannot agree. The

focus on the phrase “substantially different” is essentially focusing on a defense they

might be able to make to the charge of lack of consent; i.e., that the consent given to

the LVAD impliedly encompassed the tricuspid valve repair. The case law on the

subject of medical battery does not appear to make proving “substantial difference” a

part of a plaintiff’s prima facie showing where the doctor performs a procedure not

expressly consented to. California decisional law is clear that a surgeon who operates

without the patient’s consent commits a battery. (Id. at p. 240—“The battery theory

should be reserved for those circumstances when a doctor performs an operation to

which the patient has not consented.” See also Nelson v. Gaunt (1981) 125 Cal.App.3d

623, 634; Rainer v. Buena Community Memorial Hosp. (1971) 18 Cal.App.3d 240, 255—

finding this to be “well settled” in California; Valdez v. Percy (1939) 35 Cal.App.2d 485,

491—“It is firmly established as the law that where a person has been subjected to an

operation without his consent such an operation constitutes technical assault and

battery.”) Clearly, the LVAD implantation was one procedure, and the tricuspid valve

repair was another; Dr. Chaudhry took care to mention the latter as a separate

procedure in one of his notes. The consent form Ms. Maldonado signed did not give

consent for the tricuspid valve repair. That is sufficient to establish prima facie evidence

of a battery on this motion. The fact that there is also evidence that a note of Dr.

Chaudhry’s states he discussed the valve repair with Ms. Maldonado and obtained her

consent merely conflicts with the consent form evidence, which cannot be weighed on

this motion.

Plaintiffs provide admissible opinion evidence establishing that Ms. Maldonado

was abandoned post-operatively (see, e.g., Pietrafesa Decl., p. 10:1-10.) He opines that

based on his review of the records and in light of his education, training and

experience, the Hospital defendants were aware of this (p. 9:10-15) and failed to

provide proper oversight and failed to intervene to address the misconduct. He also

opines after his review of the evidence that Dr. Chaudhry omitted, underrepresented,

or misrepresented information regarding Ms. Maldonado’s surgical blood loss, which

adversely impacted her subsequent care. (Pietrafesa Decl., p. 9:24-26.)

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



(30)

Tentative Ruling

Re: Maryerie Berrios v. Heather Renee Holding

Superior Court No. 17CECG00995

Hearing Date: Thursday October 26, 2017 (Dept. 402)

Motion: Defendants EAN Holdings, LLC and Enterprise Rent-A-Car

Company, LLC’s DEMURRER

Tentative Ruling:

To Overrule the Demurrer

Explanation:

Code of Civil Procedure section 430.10, subdivision (e) – Negligence

Negligence may be alleged in general terms; it is sufficient to allege an act was

negligently done without stating the particular omission which rendered it negligent.

(McMillan v. Western Pac. R.R. Co. (1960) 54 Cal.2d 841, 845; Brooks v. E.J. Willig Truck

Transp. Co. (1953) 40 Cal.2d 669, 680.) “[T]here is no requirement that [the plaintiff]

identify and allege the precise moment of the injury, or the exact nature of the

wrongful act.” (Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97.)

Defendants argue that the complaint fails to state a cause of action because it

is pled in general terms. Defendant cites to several cases including People ex. Rel.

Dep’t of Transp. v. Superior Court (1992) 5 Cal.App.4th 1480, 1484 to support the

proposition that more specificity is needed. (Memo, filed: 9/13/17 pp 2-3.) However,

specificity is not required when pleading negligence causes of action. All that is

required is that Plaintiff allege that Defendant was negligent, which Plaintiff has done.

(see FAC filed: 8/2/17.) Overruled.

Judicial Notice

A trial court must take judicial notice of facts and propositions of generalized

knowledge that are so universally known that they cannot reasonably be the subject of

dispute. (Evid. Code § 451 subd. (f).) A trial court may take notice of facts and

propositions that are of such common knowledge within its territorial jurisdiction that

they cannot reasonably be the subject of dispute. (Id. at § 452, subd. (g).) (Comings v.

State Bd. of Education (1972) 23 Cal.App.3d 94, 102 a request for judicial notice may be

defeated simply by showing a “reasonable” dispute exists, in which event the matter

must be resolved by the jury through the customary adversarial process.)

Defendants request This Court take judicial notice of two items: (1) that

Defendant Enterprise Rent-A-Car is in the business of renting vehicles; and (2) that

Defendant EAN Holdings is an affiliate of Defendant Enterprise Rent-A-Car. (RJN filed:

9/13/17.) Item one is common knowledge beyond any reasonable dispute. Item two is

not. Request is granted as to item one, but denied as to item two.

Code of Civil Procedure section 430.10, subdivision (e) – Graves Amendment

A general demurrer can be used where a plaintiff has included allegations that

clearly disclose some defense or bar to recovery (Cryolife, Inc. v. Sup.Ct. (Minvielle)

(2003) 110 Cal.App.4th 1145, 1152; Casterson v. Sup.Ct. (Cardoso) (2002) 101

Cal.App.4th 177, 183; Holiday Matinee, Inc. v. Rambus (2004) 118 Cal.App.4th 1413,

1421.) But, a demurrer can be used only to challenge defects that appear on the face

of the pleading under attack or from matters outside the pleading that are judicially

noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co.

(2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e.,

no “speaking demurrers”). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881—

error for court to consider facts asserted in memorandum supporting demurrer; Afuso v.

United States Fid. & Guar. Co., Inc. (1985) 169 Cal.App.3d 859, 862 [disapproved on

other grounds in Moradi-Shalal v. Fireman's Fund Ins. Cos. (1988) 46 Cal.3d 287.)

Defendants contend they are immune based upon the Graves Amendment (49

U.S.C. § 30106). This argument fails for two reasons: First, it depends upon this Court

judicially noticing both items one and two. Second, it requires this Court to consider

several facts outside of the pleadings. The Graves Amendment holds that rental car

companies cannot be held vicariously liable for the acts/omissions of its renters.

However, it is unclear from the pleadings whether Plaintiff is alleging vicarious liability or

liability based upon Defendants’ own negligence. Overruled.

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

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



Tentative Ruling



Tentative Rulings for Department 403

Tentative Rulings for Department 501 (30)

Tentative Ruling

Re: Dustin Callison v. Corizon Health, Inc.

Superior Court No. 16CECG01663

Hearing Date: Thursday October 26, 2017 (Dept. 501)

Motion: Defendants’ Motion to Compel Plaintiff’s deposition

Tentative Ruling:

To Order Motion to Compel off calendar for failure to comply with Fresno Superior Court Rule

2.1.17.

Explanation:

Fresno Superior Court Rule 2.1.17

Fresno Superior Court Rule 2.1.17. states: “Except for motions to compel initial responses to

interrogatories, requests for production and requests for admissions, no motion under sections

2016.010 through 2036.050, inclusive, of the California Code of Civil Procedure shall be heard in

a civil unlimited case unless the moving party has first requested an informal Pretrial Discovery

Conference with the Court and such request for a Conference has either been denied and

permission to file the motion is expressly granted via court order or the discovery dispute has

not been resolved as a consequence of such a conference and permission to file the motion

is expressly granted after the conference.”

Here, Defendants’ motion to compel is filed pursuant to Code of Civil Procedure section

2025.450. (Notice filed: 9/18/17, p21 ln 25.) This sections is controlled by Local Rule 2.1.17, but

there is no evidence that Defendants made a request for a pretrial discovery conference.

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




Tentative Ruling

Issued By: MWS on 10/25/17



Re: Johnson et al. v. Luster et al., Superior Court Case No.

17CECG00784


Motion: Defendant Claude Luster III’s Demurrer and Motion to Strike

Complaint

Tentative Ruling:

To grant the motion to strike. (Code Civ. Proc. § 436(b).) To take the demurrer

off calendar as moot in light of the motion to strike. If plaintiffs choose to attempt to

amend the complaint, the amended pleading shall be filed within 10 days of service of

the order by the clerk. All new allegations shall be placed in boldface type, and any

deletions denoted by strikethrough.

Explanation:

The court may “[s]trike out all or any part of any pleading not drawn or filed in

conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ.

Proc. § 436(b).)

Defendant Luster demurs to and moves to strike the Complaint on the ground

that plaintiffs failed to comply with Code of Civil Procedure section 425.15 prior to filing

the Complaint.

Plaintiffs are “Concerned Members of The Second Baptist Church” and sue

multiple “Administrative Officers” of the Church. (Complaint ¶ 4.2.)

Section 425.15(a) provides:

No cause of action against a person serving without compensation as a

director or officer of a nonprofit corporation described in this section, on

account of any negligent act or omission by that person within the scope

of that person's duties as a director acting in the capacity of a board

member, or as an officer acting in the capacity of, and within the scope

of the duties of, an officer, shall be included in a complaint or other

pleading unless the court enters an order allowing the pleading that

includes that claim to be filed after the court determines that the party

seeking to file the pleading has established evidence that substantiates

the claim. The court may allow the filing of a pleading that includes that

claim following the filing of a verified petition therefor accompanied by

the proposed pleading and supporting affidavits stating the facts upon

which the liability is based. The court shall order service of the petition

upon the party against whom the action is proposed to be filed and

permit that party to submit opposing affidavits prior to making its

determination. The filing of the petition, proposed pleading, and

accompanying affidavits shall toll the running of any applicable statute of

limitations until the final determination of the matter, which ruling, if

favorable to the petitioning party, shall permit the proposed pleading to

be filed.

Luster points out that plaintiffs did not seek or obtain the court order required

under section 425.15 before filing the Complaint. Plaintiffs dispute the applicability of

section 425.15.

According to the Complaint, the defendants are current or past members of the

administrative leadership of the Second Baptist Church of Fresno. (Complaint ¶ 1.2.)

The Complaint also alleges that defendants are “Administrative Officers” of the Church.

(Complaint ¶ 4.2.) Accordingly, that defendants fall under the category of persons

covered by section 425.15 – “director or officer”. Plaintiffs do not dispute this point.

The next question is whether the Second Baptist Church is a “nonprofit

corporation described in this section …” Section 425.15, subdivision (e)(1) provides that

the statute applies to officers and directors that are subject to “Part 4 (commencing

with section 9110) of the Corporations Code,” which deals with nonprofit religious

corporations. The Complaint alleges that “The Church is also regulated as a Religious

Non-Profit Corporation, under the laws of the State of California. (Complaint ¶ 1.1.) The

Church is clearly a “nonprofit corporation described in this section …”

The main question is whether the claims and allegations bring the Complaint

within the scope of section 425.15. Initially, the court notes that plaintiffs improperly cite

to and rely on an unpublished opinion in violation of Cal. Rules of Court, Rule 8.1115.

The court will not discuss the case.

There does not appear to be any relevant published caselaw. On this issue, the

relevant language of section 425.15 is “No cause of action … on account of any

negligent act or omission … shall be included in a complaint … unless …” The

Complaint does not assert a cause of action for negligence, but the language of the

statute is broad enough to encompass causes of action with other labels, so long as the

cause of action is premised at least in part on negligent acts or omissions.

The sole cause of action is for an accounting, but in addition to alleging that

defendants breached their fiduciary duty to the Church, plaintiffs “ask the Court to

have the expenses defrayed by the Defendants if any are found to have been

negligent or have used the missing and unaccounted for funds for their own purposes.”

(Complaint ¶ 3.4, emphasis added.) Plaintiffs seek not just an accounting, but to

compel defendants to pay over the “the amounts found to be due” as a result of the

irregularities (Complaint, Prayer 2), which plaintiffs allege were the result of negligence.

Accordingly, the court concludes that the Complaint does include a cause of action

that based on alleged negligent acts or omissions.

As plaintiffs did not comply with section 425.15, the Complaint will be stricken.

Plaintiffs have the option of either filing a petition pursuant to section 425.15, or attempt

to amend the Complaint to take it outside the scope of the statute.

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



(5)

Tentative Ruling

Re: Wally Ali v. Old Navy, Inc.

Superior Court Case No. 16 CECG 01573


Motion: Summary Judgment or in the alternative, summary

Adjudication by Defendant

Tentative Ruling:

To grant the motion for summary judgment. The Defendant has met its burden of

proof pursuant to CCP § 437c(p)(2). The Declaration of Ryan Eddings and the exhibits

attached thereto establish that the Plaintiff has admitted that the Complaint has no

merit and the elements of the causes of action cannot be established. No opposition

was filed.

The prevailing party is directed to submit to this court, within 5 days of service of

the minute order, a proposed judgment consistent with the court's summary judgment

order.

Explanation:

The underlying facts are not well pleaded. Plaintiff is self-represented. He alleges

that he attempted to garnish the wages of one of the Defendant’s employees in New

Mexico but was “given the run around.” As a result, he filed a complaint on May 17,

2016 alleging negligence, breach of the covenant of good faith and fair dealing, and

a violation of Bus. & Prof. Code § 17200 et seq. Defendant filed an Answer.

On July 13, 2016, Defendant by and through its counsel of record propounded

and served Requests for Admission Set One upon the Plaintiff. No responses were

received. See Exhibit B attached to the Declaration of Eddings consisting of the RFAs

served.

On September 21, 2016 Defendant filed and served a motion seeking an order

that the genuineness of any documents and the truth of any matter specified in the

requests be deemed admitted pursuant to CCP § 2033.280(b). See Exhibit C attached

to the Declaration of Eddings in support of the motion for summary judgment. No

opposition was filed. Accordingly, the motion seeking an order deeming the truth of

matters specified in Requests for Admissions (Set One) deemed established was

granted pursuant to CCP § 2033.280(b). See Exhibits D and E attached to the

Declaration of Eddings.

On June 28, 2017, the Defendant filed a motion for summary judgment or in the

alternative, summary adjudication. No opposition was filed.

Admissions in response to RFAs are treated in effect as stipulations to the

truthfulness of the matters admitted. Therefore, no other evidence is necessary to

establish the point at trial and no contrary evidence is admissible unless leave of court is

obtained to withdraw or amend the response. [CCP §§ 2033.300-2033.410; see Murillo v.

Sup.Ct. (People) (2006) 143 Cal.App.4th 730 at 736; Scalf v. D.B. Log Homes, Inc. (2005)

128 Cal.App.4th 1510, 1522; People v. $2,709 United States Currency (2014) 231

Cal.App.4th 1278, 1286]

In the case at bench, RFA admissions bind the admitting party on a summary

judgment motion. [CCP § 2033.410] Therefore, the moving party has met its burden of

proof pursuant to CCP § 437c(p)(2). No opposition was filed and as a result, the Plaintiff

has not met his burden of proof pursuant to CCP § 437c(p)(2). Therefore, the motion

will be granted.





Tentative Ruling




Re: Wasatch Pool Holdings, LLC v. Nichols

Court Case No. 17 CECL 04502


Motion: Plaintiff’s motion for Attorney’s Fees

Tentative Ruling:

To grant in the amount of $2,500.

Explanation:

"Except as attorney's fees are specifically provided for by statute, the measure

and mode of compensation of attorneys and counselors at law is left to the

agreement, express or implied, of the parties . . ..” (Code Civ. Proc., § 1021.) Here there

was one claim unlawful detainer arising from breach of the lease, based on one

contract: the lease. It provides as follows:

In the event either Owner or Resident shall institute any action or

proceeding against the other relating to the occupancy of the premises,

construing the provisions of this Agreement or because of any default

hereunder, then the prevailing party shall be entitled to the payment of

reasonable costs, expenses and attorney's fees, which shall be deemed to

have accrued on the commencement of such action or proceeding, and

shall be enforceable whether or not such action is prosecuted to

judgment. Attorney's fees will not exceed $2,500.00 unless otherwise

provided by law.

Code of Civil Procedure section 1033.5 provides, in subdivision (a)(10), that attorney

fees are "allowable as costs under Section 1032" when they are "authorized by" either

"Contract," "Statute," or "Law."

Civil Code section 1717 provides, in relevant part:

In any action on a contract, where the contract specifically provides that

attorney's fees and costs, which are incurred to enforce that contract,

shall be awarded either to one of the parties or to the prevailing party,

then the party who is determined to be the party prevailing on the

contract, whether he or she is the party specified in the contract or not,

shall be entitled to reasonable attorney's fees in addition to other costs.

(Civ. Code § 1717, subd. (a).)

“[T]he party prevailing on the contract shall be the party who recovered a

greater relief in the action on the contract. The court may also determine that there is

no party prevailing on the contract for purposes of this section.” (Civ. Code, § 1717,

subd. (b).) Where the judgment is a “simple, unqualified win” on the only contract

claim, a trial court has no discretion to deny an attorney fee award to that prevailing

party under Civil Code section 1717. Thus, a party “whose litigation success is not fairly

disputable” can claim attorney fees as a matter of right. (Hsu v. Abbara (1995) 9 Cal.4th

863, 876 (Hsu).) Here, Wasatch recovers its attorney’s fees as a matter of right because

it was awarded possession of the leased premises and money damages, and Ms.

Nichols recovered nothing.

The Lease caps attorney’s fees at $2,500 “unless otherwise provided by law.”

Wasatch contends that the equitable doctrine of waiver applies to the attorney fee

cap. It cites no law directly on point and the court could find no case waiving an

attorney’s fee cap based on bad faith litigation conduct by a party litigant. Instead,

Wasatch cites and analogizes to cases where courts have found waivers of arbitration

clauses. These cases are distinguishable, and even if they were not, there are no facts

upon which to imply a waiver.

Wasatch cites Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951,

for the proposition that a party's ability to claim a contractual right or benefit can be

waived by that party's bad faith or unreasonable conduct that touches on the exercise

of that contractual right or benefit. (Id. at pp. 982-984.) In Engalla, the high court cited

Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, for the general proposition that

“[g]enerally, 'waiver' denotes the voluntary relinquishment of a known right. But it can

also mean the loss of an opportunity or a right as a result of a party's failure to perform

an act it is required to perform, regardless of the party's intent to ... relinquish the right.”

(Id. at p. 315.) Here, it cannot be said that Ms. Nichols’ ordinary litigation of her unlawful

detainer action was the “voluntary relinquishment” of the known right of the attorney’s

fees cap. Moreover, the Supreme Court observed that “varied meanings of the term

‘waiver’ are reflected in the case law on the enforcement of arbitration agreements.”

(Engalla, supra, 15 Cal.4th at p. 983.) Here, unlike arbitration clauses in Engalla, there is

no case law on waiver of caps on attorney’s fees.

To the contrary, there is one Appellate panel decision 511 S. Park View Inc. v.

Tsantis (2015) 240 Cal.App.4th Supp. 44 (Tsantis), which uphold a cap on attorney’s fees

in the unlawful detainer context. In Tsantis, the lease between the parties provided a

cap on attorney’s fees of $750. After a bench trial, the trial court awarded attorney’s

fees in the amount of $12,375 on defendant’s motion as the prevailing party under Civil

Code section 1717, arguing the provision for reasonable attorney’s fees could not be

reconciled with the cap on fees. The appellate reversed, explaining:

Here, there is but one interpretation based on the plain meaning of the

terms. The attorney fees provision imposes two conditions on the recovery

of fees—they must be reasonable and must be no more than $750. The

measure and mode of compensation of attorneys are left to the

agreement of the parties (Code Civ. Proc., § 1021; see Reynolds Metals

Co. v. Alperson (1979) 25 Cal.3d 124, 130, 158 Ca1.Rptr. 1, 599 P.2d 83

[holding trial court was bound by provision of two promissory notes limiting

award of fees]), and here the parties expressly agreed that in an action to

enforce the lease agreement, the prevailing party would be entitled to no

more than $750 in attorney fees.

(Tsantis, supra, 240 Ca1.App.4th Supp. at p. 48.)

Even assuming the doctrine of waiver applies to attorney’s fee caps, there are

no facts in the instant case that would support the application of that doctrine.

Although “'bad faith' or 'willful misconduct' of a party may constitute a waiver and thus

justify a refusal to compel arbitration” “a waiver of arbitration is not to be lightly

inferred” and “[w]hether there has been a waiver of a right to arbitrate is ordinarily a

question of fact.” (Ibid.) Wasatch contends that given Ms. Nichols’ answer, it was bad

faith frivolous conduct to have requested a jury trial and served discovery, which

merely served to run up Wasatch’s attorney’s fee in what should have been a routine

case.

However review of Ms. Nichols’ answer reveals she did not admit that that only

issue to be tried was the legal issue of the effect of a credit card charge back – she

disputed there was a genuine or legitimate chargeback at all. Thus, there were factual

issues to be tried at least at the time of her answer. (See also Declaration of Ms.

Nichol’s counsel, Ryan Bowler ¶ 9 “Only on the morning of trial was Defendant informed

that the credit card payments in question were completely and finally “charged

back.”)

As for the jury demand, Ms. Nichols’ counsel admits it was not proper, but directs

Wasatch’s counsel to section XVII of the Lease wherein the parties waive their rights to a

jury. (Bowler Decl. at ¶ 13.) Thus, Wasatch unreasonably incurred the costs of

preparation for a jury trial, because Wasatch could have stricken the request for a jury

trial based this provision of the contract. Accordingly, the demand for a jury did not

require the preparation of jury instructions, trial briefs, a neutral statement of the case, a

general verdict form, judgment forms, a voir dire outline, a witness list and an exhibit list.

Moreover, Wasatch’s counsel had far exceeded the cap on attorney’s fees prior to

incurring the fees for jury trial preparation. (Bowler Decl. ¶¶ 14-16.)

As for the first $2,500 in Wasatch’s counsel’s fees, the court finds they were

reasonably incurred.





Tentative Ruling



Tentative Rulings for Department 502 03

Tentative Ruling

Re: Moreno v. Allstate Insurance Co.

Case No. 16 CE CG 02598

Hearing Date: October 26th, 2017 (Dept. 502)

Motion: Defendant Allstate’s Demurrer to Complaint and Motion to

Strike Punitive Damages Claim

Tentative Ruling:

To sustain Allstate’s demurrer to the entire complaint, with leave to amend, for

uncertainty and failure to state facts sufficient to constitute a cause of action. (Code

Civ. Proc. § 430.10, subd. (e), (f).) To grant the motion to strike punitive damages,

without leave to amend. (Code Civ. Proc. § 435, 436.) Plaintiff shall serve and file his

first amended complaint within 10 days of the date of service of this order. All new

allegations shall be in boldface.

Explanation:

Demurrer: Plaintiff attempts to state claims for premises liability and general

negligence against all of the defendants, including Allstate. Plaintiff alleges that “A

tree had fallen down on the fence at my mother’s residence at 2676 S. Eleventh Street,

Fresno CA 93725, when I went to remove the tree from the fence it fell and broke my

arm.” (Complaint, p. 4, Prem. L-1.) He alleges that the Fidela Moreno Irrevocable Living

Trust and Steve Chavez, the trustee for the Trust, negligently owned, maintained,

managed and operated the premises. (Id. at Prem. L-2.) However, plaintiff alleges no

facts to support his claim as to Allstate, which he admits is an insurance company. He

never alleges that Allstate had any duty as a landowner, possessor, or controller of the

premises.

Generally, in order to state a claim for premises liability, the plaintiff must allege

that the defendant owned, possessed, or controlled the premises on which the

dangerous condition existed. (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.) “In most

instances, where there is no control over the premises, there is no duty to exercise

reasonable care to prevent injury. Generally, ‘a landowner has no right to control and

manage premises owned by another.’” (Annocki v. Peterson Enterprises, LLC (2014) 232

Cal.App.4th 32, 37, internal citations omitted.)

Here, plaintiff only alleges that the Fidela Moreno Irrevocable Living Trust and

Steve Chavez, the trustee, were the defendants who negligently owned, maintained,

managed and operated the premises where the dangerous condition existed.

(Complaint, p. 4, Prem. L-2.) Plaintiff alleges no facts at all that would indicate that

Allstate had any duty to warn of or remove the dangerous condition caused by the

fallen tree. He does allege that “Defendants, and all of them failed to take care of the

fallen tree causing plaintiff’s damage.” (Id. at Prem. L-5 b.) He also alleges that

Allstate, Chavez, and the Trust were all agents and employees of each other. (Id. at

Prem. L-5 a.) However, he never alleges any facts that would tend to show that Allstate

was the type of agent or employee of Chavez or the Trust that would have had a duty

to remove or warn of the fallen tree. The mere conclusory allegation that Allstate was

an employee or agent of Chavez and the Trust, without more, does not support

imposing premises liability against Allstate, especially where plaintiff has not alleged

that Allstate owned, possessed, managed, or controlled the property and thus might

have had a duty to maintain the property in a reasonable safe condition.

Therefore, the court intends to sustain the demurrer to the first cause of action for

premises liability against Allstate, for uncertainty and failure to state facts sufficient to

state a cause of action. The court does, however, intend to grant leave to amend, as it

is possible that plaintiff might be able to allege more facts to support imposing liability

against Allstate.1

Likewise, the second cause of action for general negligence also fails to state a

claim against Allstate. The general negligence claim appears to be duplicative of the

premises liability claim, as it again alleges that Chavez and the Trust failed to properly

take care of the property, and that, when a tree fell onto a fence on the property and

plaintiff tried to remove it, he was injured after the tree fell on him and broke his arm.

(Complaint, p. 5, GN-1.) He also alleges that “Defendans [sic] and all of them failed to

remove a tree that had fallen on the fence in the back yard of the residence of Fidela

Moreno.” (Ibid.)

However, plaintiff never alleges any facts that would tend to show that Allstate

had a duty to maintain the property in a reasonably safe condition. Again, plaintiff

never alleges that Allstate owned, controlled, managed or possessed the property at

the time of the incident, or that it was responsible for keeping the property in a safe

condition. While he claims that “defendants” failed to remove the tree from the

property, he does not allege any facts showing that Allstate had a duty to remove the

tree or otherwise maintain the property in a safe condition. Given the lack of

allegations showing that Allstate had any ownership, control, or possession of the

property, there is nothing in the complaint to support imposing a duty to maintain the

property in a reasonably safe condition. Therefore, the court intends to sustain the

demurrer to the second cause of action as to Allstate, with leave to amend.

Motion to Strike: Plaintiff seeks $100,000 in punitive damages. However, other

than checking the box in the complaint for punitive damages, he has not alleged any

facts showing that defendants acted with malice, fraud, or oppression when they failed

to “take care” of the tree that fell on the property. (Civil Code § 3294.) It is not enough

that plaintiff allege facts showing that defendants acted negligently, or even with gross

1 Allstate also contends that it did not issue an insurance policy for the property, and that, even if

it did, plaintiff cannot state a claim against it for simply issuing a policy covering the property

because he was not the policy holder. However, these facts are not evident from the face of

the complaint, and thus the court will not consider them on demurrer.

negligence, order to recover punitive damages. (Johns-Manville Sales Corp. v.

Workers’ Comp. Appeals Bd. (1979) 96 Cal. App. 3d 923, 931.) “[P]unitive damages

require both an intent to act and malice. The malice in Civil Code section 3294 is

defined as intent to vex, injure, or annoy, or as criminal indifference toward an

obligation owed another. Mere negligence or recklessness will not suffice.” (Ibid,

internal citations omitted.)

Here, plaintiff alleges no facts at all that would show that Allstate acted with

malice, fraud or oppression toward plaintiff, or even that Allstate was negligent.

Indeed, plaintiff alleges no specific wrongful conduct with regard to Allstate, other than

a general allegation that it failed to “take care” of the property and remove the tree,

despite the fact that it is never alleged to be an owner, possessor, or controller of the

property. Even assuming that Allstate did have a duty to maintain the property in a

safe condition and that it breached this duty, which is never actually alleged in the

complaint, such facts would show, at the most, negligence by Allstate. There are no

facts to support a finding that Allstate acted with malice, oppression, or fraud in failing

to maintain the property in a safe condition. Nor has plaintiff filed opposition or made

any attempt to explain how he could truthfully allege that Allstate acted with malice,

fraud or oppression. Therefore, the court intends to grant the motion to strike the

punitive damages claim, without leave to amend.

Pursuant to CRC 3.1312 and CCP §1019.5(a), no further written order is necessary.

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

service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: ________RTM______ on 10/24/17

(Judge’s Initials) (Date)


Re: Chuor v. McMillin Rustic Oaks, LLC

Case No. 17CECG00678


Motion: Motion by Proposed party in intervention Financial Pacific

Insurance Company on behalf of Royce Nalls & Sons Masonry, Inc.,

for leave to file a complaint in intervention.

Tentative Ruling:

To continue the motion to November 16, 2017 at 3:30 p.m. in Department 502.

Proposed intervenor shall file evidence of coverage and that the covered entity is a

suspended corporation on or before November 8, 2017. Any objection to this evidence

should be filed with the Court on or before November 14, 2017.

Explanation:

[Note- as of October 24, 2017, no opposition, reply brief or objection appears in the

Court’s files.]

California Code of Civil Procedure §387, subdivision (a) states, in pertinent part:

Upon timely application, any person, who has an interest in the matter in

litigation, or in the success of either of the parties, or an interest against

both, may intervene in the action or proceeding. An intervention takes

place when a third person is permitted to become a party to an action or

proceeding between other persons, either by joining the plaintiff in

claiming what is sought by the complaint, or by uniting with the

defendant in resisting the claims of the plaintiff, or by demanding

anything adversely to both the plaintiff and the defendant, and is made

by complaint, setting forth the grounds upon which the intervention rests,

filed by leave of the court and served upon the parties to the action or

proceeding who have not appeared in the same manner as upon the

commencement of an original action, and upon the attorneys of the

parties who have appeared, or upon the party if he has appeared

without an attorney.

It appears that the proposed party-in-intervention may have a right to intervene

in this matter. (Code of Civ.Proc. §387, subd.(b).) Financial Pacific Insurance Company

(“FPIC”) has asserted that it is the insurer for cross-complainant Royce Nalls & Sons

Masonry, Inc. pursuant to a commercial general liability policy and that Royce Nalls is a

suspended corporation. If this is the case, then FPIC has an interest in the transaction

and is so situated that any judgment rendered in its absence “may as a practical

matter impair or impede that person’s ability to protect that interest.” (Id.)

Furthermore, even if intervention of right were not available, the proposed

intervenor could participate under permissive intervention. (Kuperstein v. Superior Court

(1988) 204 Cal.App.3d 598, 600.) The proposed intervenor appears to be able to show

that it has a direct interest in the litigation, that participating will not substantially

enlarge the issues, and that intervention will not tread on the rights of other parties. (Id.)

In the proposed Complaint in Intervention, FPIC has alleged the policy number

and policy that would give rise to coverage. However, nowhere in the papers does

FPIC provide copy of the insurance policy that would cover Royce Nalls & Sons nor is

there any evidence before the court that Royce Nalls & Sons is a suspended

corporation. As a result, the proposed intervenor has not borne its burden on this motion

to show that it is entitled to the intervention requested.

Therefore, the Court will continue the hearing three weeks, to 3:30 p.m. on

November 16, 2017 in Department 502. Proposed intervenor shall submit on or before

November 8, 2017, evidence of both coverage and the suspension of the covered

corporation.

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


Tentative Ruling

Issued By: ________RTM______ on 10/24/17


(5)

Tentative Ruling

Re: Michael Roberts Trust v. Max Melchor dba No Limit

Fitness

Superior Court Case No. 17 CECG 01598


Application: Default Judgment

Tentative Ruling:

To deny without prejudice as stated infra.

Explanation:

Background

Plaintiff owns real property located at 5322 W. Spruce Avenue, #102 in Fresno,

CA. On or about February 1, 2017, Plaintiff and Defendant entered into a lease of the

property in order for the Defendant to operate a gym/fitness center. The monthly rent

was $2968.50 for a four year term.

On May 9, 2017, Plaintiff filed a complaint alleging breach of contract and a

common count based upon an account in writing. The amount owed is alleged to be

$136,955.86 plus $404.96 in unpaid utilities. Plaintiff alleges that Defendant breached

the contract on April 1, 2017 by “abandoning the premises and failure to make monthly

lease payments and utilities owing pursuant to the lease.” See Complaint at ¶ BC.2.

The Complaint was served via substituted service on the manager of a gym

located at 4368 Brawley, #102, Fresno CA on June 7, 2017. The summons, complaint,

etc. were mailed the same day. On August 3, 2017, Plaintiff filed an application seeking

the entry of default and a clerk’s judgment. In addition, the Declaration of Pinion in

support of the request, a request for the dismissal of the Doe Defendants and a

proposed judgment were filed.

Ultimately, the request for a court judgment was denied. But, the default of the

Defendant was entered on August 3, 2017. Thereafter, Plaintiff calendared a hearing

for a default judgment by the court.

Merits

The Plaintiff failed to re-file the application seeking a default judgment from the

court. See CRC 3.1800(a). This is a mandatory Judicial Council Form and thus, it must

be filled out properly. [Holloway v Quetel (2015) 242 Cal.App.4th 1425, 1432; Simke,

Chodos, Silberfeld & Anteau, Inc. v Athans (2011) 195 Cal.App.4th 1275, 1287] The form

requesting a clerk’s judgment cannot be substituted.

Second, the common count for account stated appears invalid. A common

count on an “account stated” must be based on a separate agreement and not an

express written contract. See Martini E Ricci Iamino S.P.A.--Consortile Societa Agricola

v. Western Fresh Marketing Services, Inc. (E.D. Cal. 2014) 54 F.Supp.3d 1094, 1108 citing

inter alia Gleason v. Klamer (1980) 103 Cal.App.3d 782.

In addition, Plaintiff failed to file the necessary documents in support of the

default judgment as required by CRC Rule 3.1800. Finally, Plaintiff failed to comply with

Local Rule 2.1.14 regarding the submission of the default packet at least 10 days before

the scheduled hearing date. Accordingly, the application will be denied without

prejudice.





Tentative Ruling

Issued By: ________RTM______ on 10/24/17


Tentative Rulings for Department 503 03

Tentative Ruling

Re: BMO Harris Bank, N.A. v. Aulakh

Case No. 17 CE CG 01720

Hearing Date: October 26th, 2017 (Dept. 503)

Motion: Plaintiff’s Motion for Summary Judgment

Tentative Ruling:

To deny plaintiff’s motion for summary judgment. (Code Civ. Proc. § 437c.)

Explanation:

While plaintiff has met its burden of presenting evidence to support its claim for

breach of contract, including the existence of the contract, plaintiff’s performance,

defendant’s breach of the agreement, and resulting damages (Acoustics, Inc. v. Trepte

Construction Co. (1971) 14 Cal.App.3d 887, 913), it has not presented any evidence at

all to support its second cause of action for replevin. In fact, the notice of motion and

supporting points and authorities do not even mention the replevin cause of action,

and the separate statement does not point to any facts related to that claim. Plaintiff’s

notice of motion only seeks summary judgment of the entire complaint, not summary

adjudication of the individual causes of action.

Thus, even though plaintiff has submitted evidence that might entitle it to

summary adjudication of the breach of contract claim, it cannot obtain adjudication

of this cause of action alone. (See Gonzales v. Superior Court (1987) 189 Cal.App.3d

1542, 1545; Maryland Casualty Co. v. Reader (1990) 221 Cal.App.3d 961, 974, fn. 4: no

summary adjudication of individual causes of action where notice of motion only seeks

summary judgment.) Nor can plaintiff obtain summary judgment of the entire

complaint without presenting evidence, authorities, and argument regarding the

replevin claim.

Also, plaintiff has not dismissed the replevin cause of action, or indicated that it is

electing to pursue only the breach of contract claim. Given that replevin is an

alternative remedy that would result in a mitigation of plaintiff’s damages, plaintiff must

elect to pursue either the breach of contract or the replevin claim, but not both.

Indeed, plaintiff never states whether it has attempted to repossess the truck, and if it

was able to do so, whether it sold the truck at auction and thus reduced the total

amount owed on the loan. Obviously, repossession and sale of the truck would affect

the total damages that can ultimately be imposed on defendant, yet plaintiff never

addresses this issue in its motion. Therefore, the court intends to deny the motion for

summary judgment.

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


Tentative Ruling

Issued By: __ A.M. Simpson__ on 10/19/17



Re: Sucilla v. Puentes

Case No. 17CECG02408


Motion: By Defendant Francisco Puentes Demurrer and Motion to Strike

Request for Attorney’s Fees and Improper Matter from Complaint.

Tentative Ruling:

To overrule the demurrer and deny the motion to strike as moot.

Explanation:

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

portions of Plaintiff’s initial complaint. On October 13, 2017, Plaintiff filed a First

Amended Complaint.

Because an amended pleading supersedes the previous pleadings, the

demurrer must be overruled and the motion to strike must be denied on the grounds

that they are moot. (See, e.g., JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477 (when

plaintiff files an amended complaint after a demurrer is filed, but before it is decided,

the demurrer must be overruled as moot). Therefore, the demurrer is overruled and the

motion to strike is denied.

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


Tentative Ruling

Issued By: __ A.M. Simpson__ on 10/24/17


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Tentative Rulings for October 26, 2017 Departments 402 ... · PDF fileTentative Rulings for October 26, 2017 Departments 402, 403, ... The request for judicial notice is granted